California Legal History: The California Constitution of 1849

Law Library Journal

Volumn 90, Issue 3, 1998, Pages 447-466

  Saunders, Myra K ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 0542420325     PISSN: 00239283     EISSN: None     Source Type: Journal    
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References (186)

1. See Myra K. Saunders, California Legal History: California's Spanish and Mexican Legal Institutions, 87 L. LIBR. J. 487 (1995) [hereinafter Saunders I]; Myra K. Saunders, California Legal History: The Legal System Under the United States Military Government, 1846-1849, 88 L. LIBR. J. 488 (1996) [hereinafter Saunders H].
2. See Myra K. Saunders, California Legal History: California's Spanish and Mexican Legal Institutions, 87 L. LIBR. J. 487 (1995) [hereinafter Saunders I]; Myra K. Saunders, California Legal History: The Legal System Under the United States Military Government, 1846-1849, 88 L. LIBR. J. 488 (1996) [hereinafter Saunders H].
3. Treaty of Peace, Friendship, Limits and Settlement with the Mexican Republic, May 10-May 30, 1848, U.S.-Mex., 9 Stat. 922, 926 (1851).
4. The military regime from 1846-1849 is the focus of an earlier article. See Saunders II, supra note 1.
5. For a fuller discussion of the alcalde's functions in Spanish and Mexican California, see Saunders I, supra note 1, at 498-502; and THEODORE GRIVAS, MILITARY GOVERNMENTS IN CALIFORNIA 1846-1850, 150-65 (1963). The conflict between Anglo-Americans and the Mexican legal system is thoroughly explored in DAVID J. LANGUM, LAW AND COMMUNITY OF THE MEXICAN CALIFORNIA FRONTIER: ANGLO-AMERICAN EXPATRIATES AND THE CLASH OF LEGAL TRADITIONS, 1821-1846 (1987).
6. For a fuller discussion of the alcalde's functions in Spanish and Mexican California, see Saunders I, supra note 1, at 498-502; and THEODORE GRIVAS, MILITARY GOVERNMENTS IN CALIFORNIA 1846-1850, 150-65 (1963). The conflict between Anglo-Americans and the Mexican legal system is thoroughly explored in DAVID J. LANGUM, LAW AND COMMUNITY OF THE MEXICAN CALIFORNIA FRONTIER: ANGLO-AMERICAN EXPATRIATES AND THE CLASH OF LEGAL TRADITIONS, 1821-1846 (1987).
7. For a fuller discussion of the alcalde's functions in Spanish and Mexican California, see Saunders I, supra note 1, at 498-502; and THEODORE GRIVAS, MILITARY GOVERNMENTS IN CALIFORNIA 1846-1850, 150-65 (1963). The conflict between Anglo-Americans and the Mexican legal system is thoroughly explored in DAVID J. LANGUM, LAW AND COMMUNITY OF THE MEXICAN CALIFORNIA FRONTIER: ANGLO-AMERICAN EXPATRIATES AND THE CLASH OF LEGAL TRADITIONS, 1821-1846 (1987).
8. See Saunders II, supra note 1, at 495-98.
9. See id. at 498-504.
10. See id. at 504-06.
11. See id. at 506-09.
12. Bills that would have provided for a territorial government for California were introduced in Congress in July and December of 1848, but were not enacted. See WILLIAM HENRY ELLISON, A SELF-GOVERNING DOMINION; CALIFORNIA, 1849-1860, 16-17 (1950) [hereinafter ELLISON, SELF-GOVERNING]. For a good discussion of the impact of the slavery issue on the Congressional effort to establish a territorial government in California, see Joseph Ellison, The Struggle for Civil Government in California, 1846-1850 (pt. 2), 10 CAL. HIST. SOC'Y Q. 129, 132-38 (1931).
13. Bills that would have provided for a territorial government for California were introduced in Congress in July and December of 1848, but were not enacted. See WILLIAM HENRY ELLISON, A SELF-GOVERNING DOMINION; CALIFORNIA, 1849-1860, 16-17 (1950) [hereinafter ELLISON, SELF-GOVERNING]. For a good discussion of the impact of the slavery issue on the Congressional effort to establish a territorial government in California, see Joseph Ellison, The Struggle for Civil Government in California, 1846-1850 (pt. 2), 10 CAL. HIST. SOC'Y Q. 129, 132-38 (1931).
14. See Saunders II, supra note 1, at 509-10.
15. See CARDINAL GOODWIN, THE ESTABLISHMENT OF STATE GOVERNMENT IN CALIFORNIA 1846-1850, 80 (1914); Saunders II, supra note 1, at 509-11.
16. See CARDINAL GOODWIN, THE ESTABLISHMENT OF STATE GOVERNMENT IN CALIFORNIA 1846-1850, 80 (1914); Saunders II, supra note 1, at 509-11.
17. An Act for the Admission of the State of California into the Union, ch. L, 9 Stat. 452 (1850).
18. Robert Semple, in his inaugural speech as president of the convention (also referred to in the convention record as the chair), remarked: "It is important, then, in your proceedings you should use all possible care, discretion and judgment; and especially that a spirit of compromise should prevail in all your deliberations." J. Ross BROWNE, REPORT OF THE DEBATES IN THE CONVENTION OF CALIFORNIA, ON THE FORMATION OF THE STATE CONSTITUTION, IN SEPTEMBER AND OCTOBER, 1849, 18 (President's Address) (Washington, D. C., John T. Towers 1850) [hereinafter BROWNE'S REPORT OF DEBATES]. For more information on BROWNE'S REPORT OF DEBATES, see infra notes 128-131 and accompanying text.
19. ELLISON. SELF-GOVERNING, supra note 9, at 26.
20. BROWNE'S REPORT OF DEBATES, supra note 13, at 23 (statement of The Chair).
21. Id. at 77 (statement of Mr. Norton).
22. Id. at 79 (statement of Mr. Gilbert).
23. See id. at 380-84 (statements of Messrs. McCarver, Botts, and Steuart).
24. Proclamation of B. Riley (June 3, 1849), in PRESIDENTIAL MESSAGE TRANSMITTING INFORMATION ON CALIFORNIA AND NEW MEXICO, H.R. EXEC. Doc. No. 17, 31st Cong., 1st Sess., at 777 (1849).
25. Id. at 778; GOODWIN, supra note 11, at 82.
26. See SAMUEL H. WILLEY, THE TRANSITION PERIOD IN CALIFORNIA 87 (1901). Apparently, the boycott was avoided when Peter Burnett, the future governor and a leader of the movement that refused to recognize the postwar authority of the military government, also called for a constitutional convention at the same time and place. See 1 IRA B. CROSS, FINANCING AN EMPIRE: THE HISTORY OF BANKING IN CALIFORNIA 95 (1927).
27. See SAMUEL H. WILLEY, THE TRANSITION PERIOD IN CALIFORNIA 87 (1901). Apparently, the boycott was avoided when Peter Burnett, the future governor and a leader of the movement that refused to recognize the postwar authority of the military government, also called for a constitutional convention at the same time and place. See 1 IRA B. CROSS, FINANCING AN EMPIRE: THE HISTORY OF BANKING IN CALIFORNIA 95 (1927).
28. See WILLEY, supra note 21, at 87, 90. In fact, none of the delegates representing the mining districts was aminer. DAVID A. JOHNSON, FOUNDING THE FAR WEST 33 (1992).
29. See WILLEY, supra note 21, at 87, 90. In fact, none of the delegates representing the mining districts was aminer. DAVID A. JOHNSON, FOUNDING THE FAR WEST 33 (1992).
30. See WILLEY, supra note 21, at 86-87, 90.
31. See BROWNE'S REPORT OF DEBATES, supra note 13, at 16 (statement of Mr. Shannon presenting the report of the Special Committee listing the delegates admitted to the convention).
32. See id. at 11-12 (statement of Mr. Hill), 121-23 (statements of Messrs.. Hill, Botts, Tefft, Shannon, Gwin, Gilbert, Dimmick, Carver, and the Chair).
33. Id. at 11 (statement of Mr. Gwin). Gwin later remarked that what he had meant was that because the American population was in the majority, the constitution to be formed would be American, but that "government was instituted for the protection of minorities - that this constitution was to be formed with a view to the protection of the minority: the native Californians." Id. at 22 (statement of Mr. Gwin). Gwin had come to California four months before the convention with the ambition of becoming a United States Senator. See William W. Gwin, Memoirs of Hon. William W. Gwin, 19 CAL. HIST. SOC'Y. Q. 1, 3 (W. Ellison ed., 1940). By all accounts, Gwin was one of the most vocal participants of the convention.
34. See Members of the Convention of California, in BROWNE'S REPORT OF DEBATES, supra note 13, at 478-79 tbl.
35. Id.
36. See, e.g., Merrill G. Burlingame, The Contribution of Iowa to the Formation of the State Government of California in 1849, 30 IOWA J. HIST. & POL. 182, 183-86 (1932).
37. Jose Antonio Carrillo, a former alcalde and representative to the Mexican Congress, represented Los Angeles; Jose Maria Covarrubias, a former alcalde and secretary to Mexican California Governor Pico, represented San Luis Obispo; Pablo Noriega De La Guerra, a former alcalde who is referred to in BROWNE'S REPORT OF DEBATES as Mr. Noriego, represented Santa Barbara; Miguel De Pedrorena, a shipping agent who was born in Spain and served under United States Commodore Stockton, represented Monterey; Manuel Dominguez, a former alcalde in Los Angeles and San Pedro, represented Los Angeles; Antonio Pico, alcalde of San Jose and active in the California militia and Mexican government, represented San Jose; Jacinto Rodriguez, alcalde of Monterey, represented Monterey; and Mariano Guadalupe Vallejo, a huge landowner, former Commodante General of Mexico, and representative to the Mexican Congress, represented Sonoma. Donald E. Hargis, Native Californians in the Constitutional Convention of 1849, 36 HIST. Soc. SO. CAL. Q. 1, 3-13 (1932).
38. The convention record reports that Covarrubias was born in California, but Hargis and Hansen indicate that he came to California from France in 1834. BROWNE'S REPORT OF DEBATES, supra note 13, at 478-79 ; HARGIS, supra note 30, at 12; WOODROW HANSEN, THE SEARCH FOR AUTHORITY IN CALIFORNIA 110 (1960).
39. The convention record reports that Covarrubias was born in California, but Hargis and Hansen indicate that he came to California from France in 1834. BROWNE'S REPORT OF DEBATES, supra note 13, at 478-79 ; HARGIS, supra note 30, at 12; WOODROW HANSEN, THE SEARCH FOR AUTHORITY IN CALIFORNIA 110 (1960).
40. The convention record reports that Covarrubias was born in California, but Hargis and Hansen indicate that he came to California from France in 1834. BROWNE'S REPORT OF DEBATES, supra note 13, at 478-79 ; HARGIS, supra note 30, at 12; WOODROW HANSEN, THE SEARCH FOR AUTHORITY IN CALIFORNIA 110 (1960).
41. "There was a great deal of work done outside the Convention, perhaps more done by consultation outside the convention than by public debate. The time was so short most of the determinations were made by discussions in committees and interviews outside of the public seatings and debates. In looking through the debates you see how short and meager they are. A great many of the men most active and influential in the making of the Constitution hardly appeared as debaters on the floor." ELISHA O. CROSBY, MEMOIRS OF ELISHA OSCAR CROSBY 45 (Charles Albro Barker ed., 1945).
42. Several sources indicated that most delegates could understand English even if speaking it was difficult for them. See Hargis, supra note 30, at 5, 9-10; CROSBY, supra note 32, at 37; JAMES A.B. SCHERER, THIRTY-FIRST STAR 57 (1942).
43. Several sources indicated that most delegates could understand English even if speaking it was difficult for them. See Hargis, supra note 30, at 5, 9-10; CROSBY, supra note 32, at 37; JAMES A.B. SCHERER, THIRTY-FIRST STAR 57 (1942).
44. Several sources indicated that most delegates could understand English even if speaking it was difficult for them. See Hargis, supra note 30, at 5, 9-10; CROSBY, supra note 32, at 37; JAMES A.B. SCHERER, THIRTY-FIRST STAR 57 (1942).
45. See ELLISON, SELF-GOVERNING, supra note 9, at 27.
46. When a draft of the declaration of rights was introduced on the floor for consideration, J. M. Jones pointed out that some delegates "did not understand the language of this bill of rights" and requested that the discussion be delayed until a translation could be made." BROWNE'S REPORT OF DEBATES, supra note 13, at 31 (statement of Mr. Jones). José Cobarruvias made a similar request when the report on the judiciary was presented. Id. at 153 (statement of Mr. Cobarruvias).
47. Id. at 95 (statements of Messrs. Carillo and Botts)
48. Elisha O. Crosby, The First State Election in California, 5 SOC' Y CAL. PIONEERS Q. 65, 69 (1929). See also 6 HUBERT HOWE BANCROFT, HISTORY OF CALIFORNIA 284-85 (Wallace Hebberd 1963-1970) (1888) (Bancroft relied upon Crosby's recollections for his own work, see CROSBY, supra note 32, at xxiv-xxv, 33 n.17.).
49. Elisha O. Crosby, The First State Election in California, 5 SOC' Y CAL. PIONEERS Q. 65, 69 (1929). See also 6 HUBERT HOWE BANCROFT, HISTORY OF CALIFORNIA 284-85 (Wallace Hebberd 1963-1970) (1888) (Bancroft relied upon Crosby's recollections for his own work, see CROSBY, supra note 32, at xxiv-xxv, 33 n.17.).
50. Elisha O. Crosby, The First State Election in California, 5 SOC' Y CAL. PIONEERS Q. 65, 69 (1929). See also 6 HUBERT HOWE BANCROFT, HISTORY OF CALIFORNIA 284-85 (Wallace Hebberd 1963-1970) (1888) (Bancroft relied upon Crosby's recollections for his own work, see CROSBY, supra note 32, at xxiv-xxv, 33 n.17.).
51. "It has been charged, that they voted together on nearly all issues and usually were at variance with the Americans. However, on the eleven role calls in which all the native Californians voted, they cast a unanimous ballot in only five; on the thirty-five others they agreed among themselves in eighteen and disagreed in seventeen. The majority of them concurred with the majority of the Americans thirty-seven times and differed, nine. This demonstrates that they were not acting as a block and that they agreed more often with the Americans than they did among themselves." Hargis, supra note 30, at 5 (footnotes omitted).
52. "A second and perhaps more important source of the mood of accommodation was the enormous extent to which the convention was dominated by Anglo desire for statehood. Evidence of the importance of convincing the Congress to admit California to the union is abundant, and this ultimate objective significantly influenced the content of the constitution. The participation of the Californians in the convention was viewed as an indication of political stability and of the wisdom of admitting the annexed area or portion of it. A walkout of the Californians or deep divisions apparent from the debates could have been detrimental to the effort of those who would go to Washington to advance the cause of California. Similarly, the popular vote on the constitution was immensely important. It was critical that the convention end with the delegates in wholehearted support of their product so that these powerful individuals would return to their districts to urge an overwhelming vote for ratification." Susan Westerberg Prager, The Persistence of Separate Property Concepts in California's Community Property System, 24 UCLA L. REV. 1, 16-17 (1976).
53. Manual Dominguez was a county supervisor; De La Guerra served several terms in the California Senate, served as the state's acting lieutenant governor in 1860, and served as a United States marshall; Jose Covarrubias served in the state assembly and as a county judge; Antonio Pico served as register of the United States Land Office in Los Angeles; and Mariano Vallejo served in the first state senate. Hargis, supra note 30, at 12 n.4-10. But see Earl Pomeroy, California, 1846-1860: Politics of a Representative Frontier State, 32 CAL. HIST. SOC'Y Q. 291, 298 (1953) (stating that while native Californians were represented at the constitutional convention, "few held office thereafter").
54. Manual Dominguez was a county supervisor; De La Guerra served several terms in the California Senate, served as the state's acting lieutenant governor in 1860, and served as a United States marshall; Jose Covarrubias served in the state assembly and as a county judge; Antonio Pico served as register of the United States Land Office in Los Angeles; and Mariano Vallejo served in the first state senate. Hargis, supra note 30, at 12 n.4-10. But see Earl Pomeroy, California, 1846-1860: Politics of a Representative Frontier State, 32 CAL. HIST. SOC'Y Q. 291, 298 (1953) (stating that while native Californians were represented at the constitutional convention, "few held office thereafter").
55. Julian Hanks, a ten-year resident and a rancher, represented San Jose; Thomas Larkin, a sixteen-year resident and merchant who also served as the United States Consul in California before the war, represented Monterey; Pedro Sansevaine, an eleven-year resident born in France with Latino relatives, represented San Jose; Hugo Reid, a rancher, born in Scotland, who was a sixteen-year resident with a Native American wife, represented Los Angeles; Abel Sterns, a merchant, rancher and twenty-year resident who had married into one of southern California's most powerful ranching families, represented Los Angeles; and John A. Sutter, a native of Switzerland and ten-year resident on whose property gold was first discovered, represented Sacramento. For biographical information, see HANSEN, supra note 31, at 97-105; BANCROFT, supra note 37, at 284-87; SCHERER, supra note 33, at 147-85; ROBERT GLASS CLELAND, THE CATTLE ON A THOUSAND HILLS 243-73 (1941).
56. Julian Hanks, a ten-year resident and a rancher, represented San Jose; Thomas Larkin, a sixteen-year resident and merchant who also served as the United States Consul in California before the war, represented Monterey; Pedro Sansevaine, an eleven-year resident born in France with Latino relatives, represented San Jose; Hugo Reid, a rancher, born in Scotland, who was a sixteen-year resident with a Native American wife, represented Los Angeles; Abel Sterns, a merchant, rancher and twenty-year resident who had married into one of southern California's most powerful ranching families, represented Los Angeles; and John A. Sutter, a native of Switzerland and ten-year resident on whose property gold was first discovered, represented Sacramento. For biographical information, see HANSEN, supra note 31, at 97-105; BANCROFT, supra note 37, at 284-87; SCHERER, supra note 33, at 147-85; ROBERT GLASS CLELAND, THE CATTLE ON A THOUSAND HILLS 243-73 (1941).
57. Julian Hanks, a ten-year resident and a rancher, represented San Jose; Thomas Larkin, a sixteen-year resident and merchant who also served as the United States Consul in California before the war, represented Monterey; Pedro Sansevaine, an eleven-year resident born in France with Latino relatives, represented San Jose; Hugo Reid, a rancher, born in Scotland, who was a sixteen-year resident with a Native American wife, represented Los Angeles; Abel Sterns, a merchant, rancher and twenty-year resident who had married into one of southern California's most powerful ranching families, represented Los Angeles; and John A. Sutter, a native of Switzerland and ten-year resident on whose property gold was first discovered, represented Sacramento. For biographical information, see HANSEN, supra note 31, at 97-105; BANCROFT, supra note 37, at 284-87; SCHERER, supra note 33, at 147-85; ROBERT GLASS CLELAND, THE CATTLE ON A THOUSAND HILLS 243-73 (1941).
58. Julian Hanks, a ten-year resident and a rancher, represented San Jose; Thomas Larkin, a sixteen-year resident and merchant who also served as the United States Consul in California before the war, represented Monterey; Pedro Sansevaine, an eleven-year resident born in France with Latino relatives, represented San Jose; Hugo Reid, a rancher, born in Scotland, who was a sixteen-year resident with a Native American wife, represented Los Angeles; Abel Sterns, a merchant, rancher and twenty-year resident who had married into one of southern California's most powerful ranching families, represented Los Angeles; and John A. Sutter, a native of Switzerland and ten-year resident on whose property gold was first discovered, represented Sacramento. For biographical information, see HANSEN, supra note 31, at 97-105; BANCROFT, supra note 37, at 284-87; SCHERER, supra note 33, at 147-85; ROBERT GLASS CLELAND, THE CATTLE ON A THOUSAND HILLS 243-73 (1941).
59. "While there is a tendency to classify the delegates as either English-speaking newer residents or Spanish-speaking Californians, this descriptive framework tends to obscure the presence in the convention of a small but significant group of delegates who had important roots in both camps. This handful of men raised in the Anglo culture had lived in California for many years. Socially and economically they were fully integrated into the pre-1848 California culture. They spoke and wrote Spanish, most had married into Spanish-speaking families, and their economic interests and those of the Spanish-speaking Californians were similar if not identical. In reality then, the convention contained substantial representation of the longstanding California residents, the Californians and the old line Anglos." PRAGER, supra note 39, at 13. For further support for this theory, see LEONARD PITT, THE DECLINE OF THE CALIFORNIOS 44 (1968); PETER T. CONMY, THE CONSTITUTIONAL BEGINNINGS OF CALIFORNIA 16 (1959); JOHNSON, supra note 22, at 107-08.
60. "While there is a tendency to classify the delegates as either English-speaking newer residents or Spanish-speaking Californians, this descriptive framework tends to obscure the presence in the convention of a small but significant group of delegates who had important roots in both camps. This handful of men raised in the Anglo culture had lived in California for many years. Socially and economically they were fully integrated into the pre-1848 California culture. They spoke and wrote Spanish, most had married into Spanish-speaking families, and their economic interests and those of the Spanish-speaking Californians were similar if not identical. In reality then, the convention contained substantial representation of the longstanding California residents, the Californians and the old line Anglos." PRAGER, supra note 39, at 13. For further support for this theory, see LEONARD PITT, THE DECLINE OF THE CALIFORNIOS 44 (1968); PETER T. CONMY, THE CONSTITUTIONAL BEGINNINGS OF CALIFORNIA 16 (1959); JOHNSON, supra note 22, at 107-08.
61. "While there is a tendency to classify the delegates as either English-speaking newer residents or Spanish-speaking Californians, this descriptive framework tends to obscure the presence in the convention of a small but significant group of delegates who had important roots in both camps. This handful of men raised in the Anglo culture had lived in California for many years. Socially and economically they were fully integrated into the pre-1848 California culture. They spoke and wrote Spanish, most had married into Spanish-speaking families, and their economic interests and those of the Spanish-speaking Californians were similar if not identical. In reality then, the convention contained substantial representation of the longstanding California residents, the Californians and the old line Anglos." PRAGER, supra note 39, at 13. For further support for this theory, see LEONARD PITT, THE DECLINE OF THE CALIFORNIOS 44 (1968); PETER T. CONMY, THE CONSTITUTIONAL BEGINNINGS OF CALIFORNIA 16 (1959); JOHNSON, supra note 22, at 107-08.
62. "While there is a tendency to classify the delegates as either English-speaking newer residents or Spanish-speaking Californians, this descriptive framework tends to obscure the presence in the convention of a small but significant group of delegates who had important roots in both camps. This handful of men raised in the Anglo culture had lived in California for many years. Socially and economically they were fully integrated into the pre-1848 California culture. They spoke and wrote Spanish, most had married into Spanish-speaking families, and their economic interests and those of the Spanish-speaking Californians were similar if not identical. In reality then, the convention contained substantial representation of the longstanding California residents, the Californians and the old line Anglos." PRAGER, supra note 39, at 13. For further support for this theory, see LEONARD PITT, THE DECLINE OF THE CALIFORNIOS 44 (1968); PETER T. CONMY, THE CONSTITUTIONAL BEGINNINGS OF CALIFORNIA 16 (1959); JOHNSON, supra note 22, at 107-08.
63. See generally LANGUM, supra note 4.
64. "Representing, as I do, a constituency entirely of native Californians, because the few Americans in my districts are identified with them and may be classed as native Californians, I am compelled, not against my wishes, for my wishes coincide with theirs, to advocate this on the floor." BROWNE'S REPORT OF DEBATES, supra note 13, at 259 (statement of Mr. Tefft).
65. See PITT, supra note 42, at 44.
66. See PRAGER, supra note 39, at 12 n.58.
67. ROCKWELL D. HUNT, THE GENESIS OF CALIFORNIA'S FIRST CONSTITUTION (1846-49), at 41 (Baltimore, Johns Hopkins Press 1895).
68. At the time of this vote, Cobarruvias, Dominguez, De la Guerra, and De Pedrorena had not yet taken their seats at the convention. See Hargis, supra note 29, at 12 n.16.
69. See BROWNE'S REPORT OF DEBATES, supra note 13, at 23.
70. Id. at 22 (statement of Mr. Carillo). For more information on early efforts to divide California, see William Henry Ellison, The Movement for State Division in California, 1849-1860, 17 SW. HIST. Q. 101 (1913).
71. See BROWNE'S REPORT OF DEBATES, supra note 13, at 23.
72. See Ellison, supra note 50, at 105-07; CLELAND, supra note 41, at 164.
73. See Ellison, supra note 50, at 105-07; CLELAND, supra note 41, at 164.
74. See BROWNE'S REPORT OF DEBATES, supra note 13, at 44. The intensity of the antislavery sentiment at the convention is confirmed by the convention chaplain, Samuel Willey, in S. H. WILLEY, THIRTY YEARS IN CALIFORNIA 31 (San Francisco, A. L. Bancroft & Co. 1879). But see EUGENE H. BERWANGER, THE FRONTIER AGAINST SLAVERY 65, n.10 (1967) and Paul Finkelman, The Law of Slavery and Freedom in California 1848-1860, 17 CAL. W. L. REV. 437 (1981), both of which discuss the existence of slavery in California despite the Mexican and state constitutional prohibitions. For more information on African Americans in California during this period, see DELILAH BEASLEY, THE NEGRO TRAIL BLAZERS OF CALIFORNIA (R&E Research Assoc. 1968) (1919); W. SHERMAN SAVAGE, BLACKS IN THE WEST (1976); RUDOLPH M. LAPP, BLACKS IN GOLD RUSH CALIFORNIA (1977).
75. See BROWNE'S REPORT OF DEBATES, supra note 13, at 44. The intensity of the antislavery sentiment at the convention is confirmed by the convention chaplain, Samuel Willey, in S. H. WILLEY, THIRTY YEARS IN CALIFORNIA 31 (San Francisco, A. L. Bancroft & Co. 1879). But see EUGENE H. BERWANGER, THE FRONTIER AGAINST SLAVERY 65, n.10 (1967) and Paul Finkelman, The Law of Slavery and Freedom in California 1848-1860, 17 CAL. W. L. REV. 437 (1981), both of which discuss the existence of slavery in California despite the Mexican and state constitutional prohibitions. For more information on African Americans in California during this period, see DELILAH BEASLEY, THE NEGRO TRAIL BLAZERS OF CALIFORNIA (R&E Research Assoc. 1968) (1919); W. SHERMAN SAVAGE, BLACKS IN THE WEST (1976); RUDOLPH M. LAPP, BLACKS IN GOLD RUSH CALIFORNIA (1977).
76. See BROWNE'S REPORT OF DEBATES, supra note 13, at 44. The intensity of the antislavery sentiment at the convention is confirmed by the convention chaplain, Samuel Willey, in S. H. WILLEY, THIRTY YEARS IN CALIFORNIA 31 (San Francisco, A. L. Bancroft & Co. 1879). But see EUGENE H. BERWANGER, THE FRONTIER AGAINST SLAVERY 65, n.10 (1967) and Paul Finkelman, The Law of Slavery and Freedom in California 1848-1860, 17 CAL. W. L. REV. 437 (1981), both of which discuss the existence of slavery in California despite the Mexican and state constitutional prohibitions. For more information on African Americans in California during this period, see DELILAH BEASLEY, THE NEGRO TRAIL BLAZERS OF CALIFORNIA (R&E Research Assoc. 1968) (1919); W. SHERMAN SAVAGE, BLACKS IN THE WEST (1976); RUDOLPH M. LAPP, BLACKS IN GOLD RUSH CALIFORNIA (1977).
77. See BROWNE'S REPORT OF DEBATES, supra note 13, at 44. The intensity of the antislavery sentiment at the convention is confirmed by the convention chaplain, Samuel Willey, in S. H. WILLEY, THIRTY YEARS IN CALIFORNIA 31 (San Francisco, A. L. Bancroft & Co. 1879). But see EUGENE H. BERWANGER, THE FRONTIER AGAINST SLAVERY 65, n.10 (1967) and Paul Finkelman, The Law of Slavery and Freedom in California 1848-1860, 17 CAL. W. L. REV. 437 (1981), both of which discuss the existence of slavery in California despite the Mexican and state constitutional prohibitions. For more information on African Americans in California during this period, see DELILAH BEASLEY, THE NEGRO TRAIL BLAZERS OF CALIFORNIA (R&E Research Assoc. 1968) (1919); W. SHERMAN SAVAGE, BLACKS IN THE WEST (1976); RUDOLPH M. LAPP, BLACKS IN GOLD RUSH CALIFORNIA (1977).
78. See BROWNE'S REPORT OF DEBATES, supra note 13, at 44. The intensity of the antislavery sentiment at the convention is confirmed by the convention chaplain, Samuel Willey, in S. H. WILLEY, THIRTY YEARS IN CALIFORNIA 31 (San Francisco, A. L. Bancroft & Co. 1879). But see EUGENE H. BERWANGER, THE FRONTIER AGAINST SLAVERY 65, n.10 (1967) and Paul Finkelman, The Law of Slavery and Freedom in California 1848-1860, 17 CAL. W. L. REV. 437 (1981), both of which discuss the existence of slavery in California despite the Mexican and state constitutional prohibitions. For more information on African Americans in California during this period, see DELILAH BEASLEY, THE NEGRO TRAIL BLAZERS OF CALIFORNIA (R&E Research Assoc. 1968) (1919); W. SHERMAN SAVAGE, BLACKS IN THE WEST (1976); RUDOLPH M. LAPP, BLACKS IN GOLD RUSH CALIFORNIA (1977).
79. See BROWNE'S REPORT OF DEBATES, supra note 13, at 44. The intensity of the antislavery sentiment at the convention is confirmed by the convention chaplain, Samuel Willey, in S. H. WILLEY, THIRTY YEARS IN CALIFORNIA 31 (San Francisco, A. L. Bancroft & Co. 1879). But see EUGENE H. BERWANGER, THE FRONTIER AGAINST SLAVERY 65, n.10 (1967) and Paul Finkelman, The Law of Slavery and Freedom in California 1848-1860, 17 CAL. W. L. REV. 437 (1981), both of which discuss the existence of slavery in California despite the Mexican and state constitutional prohibitions. For more information on African Americans in California during this period, see DELILAH BEASLEY, THE NEGRO TRAIL BLAZERS OF CALIFORNIA (R&E Research Assoc. 1968) (1919); W. SHERMAN SAVAGE, BLACKS IN THE WEST (1976); RUDOLPH M. LAPP, BLACKS IN GOLD RUSH CALIFORNIA (1977).
80. See BROWNE'S REPORT OF DEBATES, supra note 13, at 44. The intensity of the antislavery sentiment at the convention is confirmed by the convention chaplain, Samuel Willey, in S. H. WILLEY, THIRTY YEARS IN CALIFORNIA 31 (San Francisco, A. L. Bancroft & Co. 1879). But see EUGENE H. BERWANGER, THE FRONTIER AGAINST SLAVERY 65, n.10 (1967) and Paul Finkelman, The Law of Slavery and Freedom in California 1848-1860, 17 CAL. W. L. REV. 437 (1981), both of which discuss the existence of slavery in California despite the Mexican and state constitutional prohibitions. For more information on African Americans in California during this period, see DELILAH BEASLEY, THE NEGRO TRAIL BLAZERS OF CALIFORNIA (R&E Research Assoc. 1968) (1919); W. SHERMAN SAVAGE, BLACKS IN THE WEST (1976); RUDOLPH M. LAPP, BLACKS IN GOLD RUSH CALIFORNIA (1977).
81. See GOODWIN, supra note 11, at 108-32; JOHNSON, supra note 22, at 127-30. Given the remoteness of California and the difficulty of the journey, there was little concern in California at the time of the convention about the issue of runaway slaves. See Finkelman, supra note 53, at 447.
82. See GOODWIN, supra note 11, at 108-32; JOHNSON, supra note 22, at 127-30. Given the remoteness of California and the difficulty of the journey, there was little concern in California at the time of the convention about the issue of runaway slaves. See Finkelman, supra note 53, at 447.
83. See GOODWIN, supra note 11, at 108-32; JOHNSON, supra note 22, at 127-30. Given the remoteness of California and the difficulty of the journey, there was little concern in California at the time of the convention about the issue of runaway slaves. See Finkelman, supra note 53, at 447.
84. See GOODWIN, supra note 11, at 114-15; WALTER COLTON, THREE YEARS IN CALIFORNIA 374 (Stanford Univ. Press 1949) (1850); ROBERT F. HEIZER & ALAN F. ALMQUIST, THE OTHER CALIFORNIANS 104-15 (1971); BERWANGER, supra note 53, at 60-69.
85. See GOODWIN, supra note 11, at 114-15; WALTER COLTON, THREE YEARS IN CALIFORNIA 374 (Stanford Univ. Press 1949) (1850); ROBERT F. HEIZER & ALAN F. ALMQUIST, THE OTHER CALIFORNIANS 104-15 (1971); BERWANGER, supra note 53, at 60-69.
86. See GOODWIN, supra note 11, at 114-15; WALTER COLTON, THREE YEARS IN CALIFORNIA 374 (Stanford Univ. Press 1949) (1850); ROBERT F. HEIZER & ALAN F. ALMQUIST, THE OTHER CALIFORNIANS 104-15 (1971); BERWANGER, supra note 53, at 60-69.
87. See GOODWIN, supra note 11, at 114-15; WALTER COLTON, THREE YEARS IN CALIFORNIA 374 (Stanford Univ. Press 1949) (1850); ROBERT F. HEIZER & ALAN F. ALMQUIST, THE OTHER CALIFORNIANS 104-15 (1971); BERWANGER, supra note 53, at 60-69.
88. GOODWIN, supra note 11, at 117. Berwanger noted that in addition to white miners' concerns about competing with slave labor, many whites believed that African-Americans were unusually lucky in finding gold and objected to competing with African-American miners on that basis as well. BERWANGER, supra note 53, at 61.
89. GOODWIN, supra note 11, at 117. Berwanger noted that in addition to white miners' concerns about competing with slave labor, many whites believed that African-Americans were unusually lucky in finding gold and objected to competing with African-American miners on that basis as well. BERWANGER, supra note 53, at 61.
90. See BROWNE'S REPORT OF DEBATES, supra note 13, at 338-40. The bill barring African-Americans was passed in the assembly, but was tabled in the senate. See LAPP, supra note 53, at 130; JOURNAL OF THE ASSEMBLY OF THE STATE OF CALIFORNIA 1233 (1850); JOURNAL OF THE SENATE OF THE STATE OF CALIFORNIA 347 (1850).
91. See BROWNE'S REPORT OF DEBATES, supra note 13, at 338-40. The bill barring African-Americans was passed in the assembly, but was tabled in the senate. See LAPP, supra note 53, at 130; JOURNAL OF THE ASSEMBLY OF THE STATE OF CALIFORNIA 1233 (1850); JOURNAL OF THE SENATE OF THE STATE OF CALIFORNIA 347 (1850).
92. See BROWNE'S REPORT OF DEBATES, supra note 13, at 338-40. The bill barring African-Americans was passed in the assembly, but was tabled in the senate. See LAPP, supra note 53, at 130; JOURNAL OF THE ASSEMBLY OF THE STATE OF CALIFORNIA 1233 (1850); JOURNAL OF THE SENATE OF THE STATE OF CALIFORNIA 347 (1850).
93. See BROWNE'S REPORT OF DEBATES, supra note 13, at 338-40. The bill barring African-Americans was passed in the assembly, but was tabled in the senate. See LAPP, supra note 53, at 130; JOURNAL OF THE ASSEMBLY OF THE STATE OF CALIFORNIA 1233 (1850); JOURNAL OF THE SENATE OF THE STATE OF CALIFORNIA 347 (1850).
94. BROWNE'S REPORT OF DEBATES, supra note 13, at 28 (statement of Mr. Norton).
95. One author has noted that compilations of the various state constitutions were popular in the nineteenth century, with over seventy different editions of such compilations produced between 1781 and 1894: "Printed as pocket-sized volumes and occasionally appearing in miniature, compilations easily traveled to remote regions and served as handy reference tools for delegates engaged in constitution making." Christian Fritz, Rethinking the American Constitutional Tradition: National Dimensions in the Formation of State Constitutions, 26 RUTGERS L. J. 969, 981-82 (1995). While the convention record does not clearly establish that such compilations were available to or used by the delegates, it is certainly possible. The existence of such a pamphlet at the convention is suggested in an earlier article: "The Constitution of 1849, if one can judge from comparing it with the State constitutions contained in a manual published in 1846 for the use of the constitutional convention, added scarcely any new ideas to the stock of constitutional law." Orrin K. McMurray, Seventy-Five Years of California Jurisprudence, 8 CAL. L. REV. 445, 453 (1925). It is extremely unlikely that such a pamphlet would have been prepared in 1846 for the 1849 Constitutional Convention. It is more likely that any 1846 pamphlet examined by McMurray would have been one of the commercially produced pamphlets referred to above, or one produced for either the Iowa or New York constitutional conventions held in 1846.
96. One author has noted that compilations of the various state constitutions were popular in the nineteenth century, with over seventy different editions of such compilations produced between 1781 and 1894: "Printed as pocket-sized volumes and occasionally appearing in miniature, compilations easily traveled to remote regions and served as handy reference tools for delegates engaged in constitution making." Christian Fritz, Rethinking the American Constitutional Tradition: National Dimensions in the Formation of State Constitutions, 26 RUTGERS L. J. 969, 981-82 (1995). While the convention record does not clearly establish that such compilations were available to or used by the delegates, it is certainly possible. The existence of such a pamphlet at the convention is suggested in an earlier article: "The Constitution of 1849, if one can judge from comparing it with the State constitutions contained in a manual published in 1846 for the use of the constitutional convention, added scarcely any new ideas to the stock of constitutional law." Orrin K. McMurray, Seventy-Five Years of California Jurisprudence, 8 CAL. L. REV. 445, 453 (1925). It is extremely unlikely that such a pamphlet would have been prepared in 1846 for the 1849 Constitutional Convention. It is more likely that any 1846 pamphlet examined by McMurray would have been one of the commercially produced pamphlets referred to above, or one produced for either the Iowa or New York constitutional conventions held in 1846.
97. Iowa seems to have been chosen for the practical, but uninspiring reason that "it was one of the latest and shortest." BROWNE'S REPORT OF DEBATES, supra note 13, at 24 (statement of Mr. Gwin). For detailed analysis of the influence of the Iowa Constitution on the California Constitution, see Burlingame, supra note 29, at 190.
98. Iowa seems to have been chosen for the practical, but uninspiring reason that "it was one of the latest and shortest." BROWNE'S REPORT OF DEBATES, supra note 13, at 24 (statement of Mr. Gwin). For detailed analysis of the influence of the Iowa Constitution on the California Constitution, see Burlingame, supra note 29, at 190.
99. "He had carefully examined all the State Constitutions and he preferred the Constitution of Iowa to that of any other State." BROWNE'S REPORT OF DEBATES, supra note 13, at 28 (statement of Mr. Gwin); "Mr. Shannon had carefully examined the Constitutions of the different States. . . ." Id. at 34 (statement of Mr. Shannon); "Mr Ord had looked over the whole thirty Constitutions. . . ." Id. at 36 (statement of Mr. Ord).
100. See GOODWIN, supra note 11, at 232; Tefft's actual remark was: "He appealed to their good judgment to let it stand as it stands in the Constitutions of the twenty-nine States of the Union." BROWNE'S REPORT OF DEBATES, supra note 13, at 40 (statement of Mr. Tefft).
101. See GOODWIN, supra note 11, at 232; Tefft's actual remark was: "He appealed to their good judgment to let it stand as it stands in the Constitutions of the twenty-nine States of the Union." BROWNE'S REPORT OF DEBATES, supra note 13, at 40 (statement of Mr. Tefft).
102. The Constitution of the state of Louisiana was cited at least six times. BROWNE'S REPORT OF DEBATES, supra note 13, at 248, 250, 371, 380, 384, and 385 (statements of Messrs. Gwin, Botts, and Halleck). However, only one provision in the 1849 constitution (Article XI, Section 2, which barred from public office and disenfranchised any person convicted of participating in a duel) appears to have been derived from the Louisiana Constitution. See GOODWIN, supra note 11, at 241. According to one source, the dueling provision was introduced in part because of an altercation between two delegates, Tefft and Jones, which led other delegates to fear that a challenge would be forthcoming. See Gwin, supra note 26, at 8-10.
103. The Constitution of the state of Louisiana was cited at least six times. BROWNE'S REPORT OF DEBATES, supra note 13, at 248, 250, 371, 380, 384, and 385 (statements of Messrs. Gwin, Botts, and Halleck). However, only one provision in the 1849 constitution (Article XI, Section 2, which barred from public office and disenfranchised any person convicted of participating in a duel) appears to have been derived from the Louisiana Constitution. See GOODWIN, supra note 11, at 241. According to one source, the dueling provision was introduced in part because of an altercation between two delegates, Tefft and Jones, which led other delegates to fear that a challenge would be forthcoming. See Gwin, supra note 26, at 8-10.
104. The Constitution of the state of Louisiana was cited at least six times. BROWNE'S REPORT OF DEBATES, supra note 13, at 248, 250, 371, 380, 384, and 385 (statements of Messrs. Gwin, Botts, and Halleck). However, only one provision in the 1849 constitution (Article XI, Section 2, which barred from public office and disenfranchised any person convicted of participating in a duel) appears to have been derived from the Louisiana Constitution. See GOODWIN, supra note 11, at 241. According to one source, the dueling provision was introduced in part because of an altercation between two delegates, Tefft and Jones, which led other delegates to fear that a challenge would be forthcoming. See Gwin, supra note 26, at 8-10.
105. See Burlingame, supra note 29, at 190.
106. See Christian Fritz, More Than "Shreds and Patches:" California's First Bill of Rights, 17 HASTINGS CONST. L. Q. 13 n.3 (1989).
107. Ira Reiner & George Glenn Size, The Law Through a Looking Glass: Our Supreme Court and the Use and Abuse of the California Declaration of Rights, 23 PAC. L. J. 1183, 1185 (1992); see also FRITZ, supra note 65, at 13 (confirming that the 1849 constitution is the source for much of California's current Bill of Rights).
108. Ira Reiner & George Glenn Size, The Law Through a Looking Glass: Our Supreme Court and the Use and Abuse of the California Declaration of Rights, 23 PAC. L. J. 1183, 1185 (1992); see also FRITZ, supra note 65, at 13 (confirming that the 1849 constitution is the source for much of California's current Bill of Rights).
109. See Reiner & Size, supra note 66, at 1191.
110. See, e.g., Joseph R. Grodin, Some Reflection of State Constitutions, 15 HASTINGS CONST. L. Q. 391, 391-402 (1988); Reiner & Size, supra note 66, at 1191-97.
111. See, e.g., Joseph R. Grodin, Some Reflection of State Constitutions, 15 HASTINGS CONST. L. Q. 391, 391-402 (1988); Reiner & Size, supra note 66, at 1191-97.
112. The six protections appearing in both constitutions are "the right of habeas corpus, right of assembly, prohibitions on quartering soldiers, protection against unreasonable searches and seizures, a restrictive definition of treason, and the assertion of the non exclusivity of the enumeration of rights." Fritz, supra note 65, at 20-21.
113. See Reiner & Size, supra note 66, at 1187-89; Fritz, supra note 65, at 18-19.
114. See Reiner & Size, supra note 66, at 1187-89; Fritz, supra note 65, at 18-19.
115. GOODWIN, supra note 11, at 231.
116. Fritz, supra note 65, at 18.
117. CROSBY, supra note 32, at 70. These suggestions must been made in committee as the convention record does not confirm this.
118. BROWNE'S REPORT OF DEBATES, supra note 13, at 37 (statement of Mr. Dimmick).
119. Id. at 63-73 (statements of Messrs. Gwin, Noriego [De la Guerra], Forster, Teftt, Botts, Jones, Hastings, and Wozencraft), 305 (statement of Mr. Noriego [De la Guerra]).
120. Id. at 69 (statement of Mr. Jones). Jones (who was raised in Louisiana) read Spanish, was building a Spanish law library, and had been trained in the civil law. In his letters to his mother, Jones indicates his expectation of being able to market his knowledge of Spanish and the civil law successfully and asked his mother to procure for him a number of Spanish law books. Letter from J. M. Jones to his mother (Aug. 26, 1849), in JAMES MCHALL JONES, Two LETTERS OF JAMES MCHALL JONES; DELEGATE TO THE CALIFORNIA CONSTITUTIONAL CONVENTION 8 (1948).
121. The delegates were reportedly haunted by recollections of the collapse of state banks in the Panic of 1837. Consequently, delegates were quite concerned with the regulation of banks and other corporations. For a full discussion of these issues, see GOODWIN, supra note 11, at 175-92; CROSS, supra note 21, at 95-119.
122. The delegates were reportedly haunted by recollections of the collapse of state banks in the Panic of 1837. Consequently, delegates were quite concerned with the regulation of banks and other corporations. For a full discussion of these issues, see GOODWIN, supra note 11, at 175-92; CROSS, supra note 21, at 95-119.
123. "Corporations as they were originally known to the Roman Law had several beneficial properties. One was the power of succession, by which the property of the corporation does not become subdivided into the hands of the heirs, but remains subject to the rules of the corporation. Another was, to sue and be sued in their corporate capacity, instead of being regarded as a partnership merely of individuals. The institution was as it was known when adopted by the common law, had engrafted upon it this doctrine that to establish a corporation was the great prerogative of the crown; and it followed soon with the numerous other prerogative of the crown, that it was claimed by the crown; and certain privileges and immunities were given to these corporations. This is the evil which we have followed so nearly in our own country, and of which we have such grievous cause to complain." BROWNE'S REPORT OF DEBATES, supra note 13, at 124 (statement of Mr. Botts). Ultimately, the delegates adopted provisions on the regulation of corporations that were derived from a combination of New York and Iowa provisions. See GOODWIN, supra note 11, at 178-87; CROSS, supra note 21, at 96-114.
124. "Corporations as they were originally known to the Roman Law had several beneficial properties. One was the power of succession, by which the property of the corporation does not become subdivided into the hands of the heirs, but remains subject to the rules of the corporation. Another was, to sue and be sued in their corporate capacity, instead of being regarded as a partnership merely of individuals. The institution was as it was known when adopted by the common law, had engrafted upon it this doctrine that to establish a corporation was the great prerogative of the crown; and it followed soon with the numerous other prerogative of the crown, that it was claimed by the crown; and certain privileges and immunities were given to these corporations. This is the evil which we have followed so nearly in our own country, and of which we have such grievous cause to complain." BROWNE'S REPORT OF DEBATES, supra note 13, at 124 (statement of Mr. Botts). Ultimately, the delegates adopted provisions on the regulation of corporations that were derived from a combination of New York and Iowa provisions. See GOODWIN, supra note 11, at 178-87; CROSS, supra note 21, at 96-114.
125. "Corporations as they were originally known to the Roman Law had several beneficial properties. One was the power of succession, by which the property of the corporation does not become subdivided into the hands of the heirs, but remains subject to the rules of the corporation. Another was, to sue and be sued in their corporate capacity, instead of being regarded as a partnership merely of individuals. The institution was as it was known when adopted by the common law, had engrafted upon it this doctrine that to establish a corporation was the great prerogative of the crown; and it followed soon with the numerous other prerogative of the crown, that it was claimed by the crown; and certain privileges and immunities were given to these corporations. This is the evil which we have followed so nearly in our own country, and of which we have such grievous cause to complain." BROWNE'S REPORT OF DEBATES, supra note 13, at 124 (statement of Mr. Botts). Ultimately, the delegates adopted provisions on the regulation of corporations that were derived from a combination of New York and Iowa provisions. See GOODWIN, supra note 11, at 178-87; CROSS, supra note 21, at 96-114.
126. See BROWNE'S REPORT OF DEBATES, supra note 13, at 314-15 (statement of Mr. Botts).
127. For a detailed discussion of the boundary issues, see GOODWIN, supra note 11, at 133-74. For a simple map comparing the Spanish/Mexican border with the state border, see SCHERER, supra note 33, at 167. For maps of the various boundary proposals presented to the delegates, see JOHNSON, supra note 22, at 131, 132, 135.
128. For a detailed discussion of the boundary issues, see GOODWIN, supra note 11, at 133-74. For a simple map comparing the Spanish/Mexican border with the state border, see SCHERER, supra note 33, at 167. For maps of the various boundary proposals presented to the delegates, see JOHNSON, supra note 22, at 131, 132, 135.
129. José Carillo, speaking through an interpreter, said "The only question is what is California? It is the territory defined as such by the Government of Spain, and always recognised as such by the Mexican government. I do not conceive that this Government has any right whatever to take the least portion away [from] that [which] has been ceded by the Government of Mexico." BROWNE'S REPORT OF DEBATES, supra note 13, at 193 (statement of Mr. Carillo).
130. See id. at 190-93 (statement of Mr. Shannon), 418 (statement of Mr. Sherwood), 446 (statements of Messrs.Hill and Hoppe), 448-50 (statement of Mr. Lippitt), and 452-53 (statement of Mr. Jones). The precise boundary ultimately agreed upon by the delegates was a compromise proposed by Jones. See id. at 443 (statement of Mr. Jones).
131. See id. at 239-40 (statement of Mr. Halleck).
132. Id. at 245 (statement of Mr. Hastings).
133. See Paul Mason, Constitutional History of California, in CAL. CONST. 4 (1938); William J. Palmer & Paul P. Selvin, The Development of Law, in CAL. CONST, art. 1-4-1, at 11 (West 1954).
134. See Paul Mason, Constitutional History of California, in CAL. CONST. 4 (1938); William J. Palmer & Paul P. Selvin, The Development of Law, in CAL. CONST, art. 1-4-1, at 11 (West 1954).
135. See William Wirt Blume, Adoption in California of the Field Code of Civil Procedure: A Chapter in American Legal History, 17 HASTINGS L. J. 710, 718 (1966).
136. See Orrin K. McMurray, Seventy-Five Years of California Jurisprudence, 13 CAL. L. REV. 445, 453 (1925)
137. See William Wirt Blume, California Courts in Historical Perspective, 22 HASTINGS L. J. 123, 132 (1970).
138. CROSBY, supra note 32, at 44.
139. Crosby was a member of a committee in the first legislature that considered (and rejected) a petition from a number of San Francisco attorneys urging the adoption of civil law in California. See Report of Mr. Crosby on Civil and Common Law, in JOURNAL OF THE SENATE OF THE STATE OF CALIFORNIA 459-80 app. (1850), reprinted as Report on Civil and Common Law, in 1 CAL. 588-604 app. (1850).
140. Crosby was a member of a committee in the first legislature that considered (and rejected) a petition from a number of San Francisco attorneys urging the adoption of civil law in California. See Report of Mr. Crosby on Civil and Common Law, in JOURNAL OF THE SENATE OF THE STATE OF CALIFORNIA 459-80 app. (1850), reprinted as Report on Civil and Common Law, in 1 CAL. 588-604 app. (1850).
141. See 1 BAYARD TAYLOR, ELDORADO 115 (Alfred Knopf 1949) (1850). In fact, delegate Manuel Dominguez was himself half Native American. See PITT, supra note 42, at 43.
142. See 1 BAYARD TAYLOR, ELDORADO 115 (Alfred Knopf 1949) (1850). In fact, delegate Manuel Dominguez was himself half Native American. See PITT, supra note 42, at 43.
143. One source reports that "[t]he fear of the delegates was that large landowners who employed a great many Indians might on election day lead scores of 'docile' Indians to the polls." HEIZER & ALMQUIST, supra note 55, at 96.
144. See BROWNE'S REPORT OF DEBATES, supra note 13, at 306-07 (statement of Mr. Noriego [De la Guerra]). Noreigo claimed that "[a]11 the Indians in the entire Territory who owned land and therefore were entitled to vote, under the laws of Mexico, were not more than two hundred." Id.
145. See id. at 63 (statement of Mr. Noriego [De la Guerra]), 305-07, 341 (statements of Mr. Noriego [De la Guerra]). "De la Guerra arose to argue that many Californians were dark-skinned and that to disenfranchise them would be tantamount to denying them part of their citizenship as granted by the Treaty of Guadalupe Hidalgo. But his most telling argument needed no words, since the convention could not logically allow mestizo Manuel Dominguez to sign the constitution and yet bar "half-breeds" from the franchise." Pitt, supra note 42, at 45. The right to vote was not extended to Native Americans by the legislature. An Act to Regulate Elections, ch. 38, § 10 [1849-50] Cal. Stat. 101, 102.
146. "The question of the right of suffrage of Indians which occasioned so much trouble on Saturday, and which it was feared would end in the withdrawal of the Spanish delegation, and the consequent breaking up of the whole convention, has just been decided to the satisfaction of all parties." Letter from J. Ross Browne to his wife (Oct. 1, 1849), in J. Ross BROWNE, MULEBACK TO THE CONVENTION 40-41 (1950).
147. See Hargis, supra note 30, at 8; BROWNE'S REPORT OF DEBATES, supra note 13, at 273-74 (statement of Mr. Noriego [De la Guerra]).
148. See Hargis, supra note 30, at 8; BROWNE'S REPORT OF DEBATES, supra note 13, at 273-74 (statement of Mr. Noriego [De la Guerra]).
149. See Hargis, supra note 30, at 8; BROWNE'S REPORT OF DEBATES, supra note 13, at 390 (statement of Mr. Noriego [De la Guerra]).
150. See Hargis, supra note 30, at 8; BROWNE'S REPORT OF DEBATES, supra note 13, at 390 (statement of Mr. Noriego [De la Guerra]).
151. BROWNE'S REPORT OF DEBATES, supra note 13, at 273 (statement of Mr. Botts).
152. Spanish and Mexican land grants were quite vast and thus the potential property tax liability was enormous. For example, one author has estimated that the land holdings of the thirteen delegates who represented the interests of the long-term residents totaled nearly 650,000 acres. JOHNSON, supra note 22, at 107, 414 n.21 . For more information on Spanish and Mexican land grants, see Saunders I, supra note 1, at 494-98.
153. Spanish and Mexican land grants were quite vast and thus the potential property tax liability was enormous. For example, one author has estimated that the land holdings of the thirteen delegates who represented the interests of the
154. See CLELAND, supra note 42, at 163-65.
155. Gwin, supra note 26, at 13.
156. See BROWNE'S REPORT OF DEBATES, supra note 13, at 376 (statement of Mr. Tefft). See also JOSIAH ROYCE, CALIFORNIA FROM THE CONQUEST IN 1846 TO THE SECOND VIGILANCE COMMITTEE IN SAN FRANCISCO 267-68 (Houghton Mifflin Company 1886) (claiming that the tax article was proposed by Gwin and Jones to get the Latinos' support in the boundary issue). Even with the provision guaranteeing local election of tax assessors, the tax burden fell to the southern California landholders: "For example, in 1852 it was asserted that the six southern counties with a population of only 6,000 paid $42,000 in property taxes, plus $4,000 in school poll taxes, while the northern counties with a population of 120,000 paid only $21,000 in property taxes, and $3,500 in poll taxes." Leon T. David, Our California Constitutions: Retrospections in this Bicentennial Year, 3 HASTINGS CONST. L. Q. 697, 717 (1976).
157. See BROWNE'S REPORT OF DEBATES, supra note 13, at 376 (statement of Mr. Tefft). See also JOSIAH ROYCE, CALIFORNIA FROM THE CONQUEST IN 1846 TO THE SECOND VIGILANCE COMMITTEE IN SAN FRANCISCO 267-68 (Houghton Mifflin Company 1886) (claiming that the tax article was proposed by Gwin and Jones to get the Latinos' support in the boundary issue). Even with the provision guaranteeing local election of tax assessors, the tax burden fell to the southern California landholders: "For example, in 1852 it was asserted that the six southern counties with a population of only 6,000 paid $42,000 in property taxes, plus $4,000 in school poll taxes, while the northern counties with a population of 120,000 paid only $21,000 in property taxes, and $3,500 in poll taxes." Leon T. David, Our California Constitutions: Retrospections in this Bicentennial Year, 3 HASTINGS CONST. L. Q. 697, 717 (1976).
158. See BROWNE'S REPORT OF DEBATES, supra note 13, at 376 (statement of Mr. Tefft). See also JOSIAH ROYCE, CALIFORNIA FROM THE CONQUEST IN 1846 TO THE SECOND VIGILANCE COMMITTEE IN SAN FRANCISCO 267-68 (Houghton Mifflin Company 1886) (claiming that the tax article was proposed by Gwin and Jones to get the Latinos' support in the boundary issue). Even with the provision guaranteeing local election of tax assessors, the tax burden fell to the southern California landholders: "For example, in 1852 it was asserted that the six southern counties with a population of only 6,000 paid $42,000 in property taxes, plus $4,000 in school poll taxes, while the northern counties with a population of 120,000 paid only $21,000 in property taxes, and $3,500 in poll taxes." Leon T. David, Our California Constitutions: Retrospections in this Bicentennial Year, 3 HASTINGS CONST. L. Q. 697, 717 (1976).
159. See BROWNE'S REPORT OF DEBATES, supra note 13, at 157 (statements of Messrs. Norton, Dimmick, and Shannon).
160. For a detailed account of the history of community property law in California, see Prager, supra note 39; Donna C. Scheule, Community Property Law and the Politics of Married Women's Rights in Nineteenth Century California, 7 W. LEGAL HIST. 245 (1994).
161. For a detailed account of the history of community property law in California, see Prager, supra note 39; Donna C. Scheule, Community Property Law and the Politics of Married Women's Rights in Nineteenth Century California, 7 W. LEGAL HIST. 245 (1994).
162. BROWNE'S REPORT OF DEBATES, supra note 13, at 258 (statement of Mr. Tefft).
163. Id. at 259 (statement of Mr. Botts).
164. See, for instance, Halleck's irreverent remarks: "I am not wedded to either the common law or the civil law, nor as yet, to a woman; but having some hopes that some time or another I may be wedded . . . I shall advocate this section in the Constitution, and I would call upon all the bachelors in this Convention to vote for it. I do not think we can offer a greater inducement for women of fortune to come to California. It is the very best provision to get us wives that we can introduce into the Constitution." Id. at 259 (statement of Mr. Halleck).
165. Dimmick, for example, noted: "The time was, sir, when woman was considered an inferior being; but as knowledge had become more generally diffused, as the world has become more enlightened, as the influence of free and liberal principles had extended among the nations on earth, the rights of women have become more generally recognized." Id. at 263 (statement of Mr. Dimmick).
166. "[I]t is to those gentle and confiding creatures who do not think of contracts - that the protection of the law is designed to be given." Id. at 265 (statement of Mr. Jones).
167. "I must confess that, for one, I am wedded to the common law. I am wedded to it as a member of this Convention, as representing a portion of the people, and as a citizen of California; and if I were in the Legislature, I should be, as a member of the Legislature, and for this reason: that the common law and no other law, is the law under which nine-tenths of the people not in California were born and educated; it is the only law which is known, the only law which her lawyers and judges know, and which we have access to. For this reason it must be the law of the land hereafter, whether it is established this month or next, this year, or next. . . . In order to carry out the views of my friend from San Luis Obispo, we may as well at once pass another section making the whole civil law the law of the land." Id. at 260 (statement of Mr. Lippitt).
168. "The main reason which the gentleman from San Francisco [Mr. Lippett], has so urgently presented against this provision, is that the common law will soon be the established law of this country. If that is so, it will make a great change over the laws as they now exist, and will materially affect the rights of women, unless we incorporate a portion of if so far as relates to this subject. Women now possess in this country the right which is proposed to be introduced into the constitution. Blot it out, and introduce the common law, and what do you do? The wife who owns her separate property loses it the moment the common law prevails, and it is to avoid taking away that right of control over her property that I would wish to see this provision engrafted in the Constitution." Id. at 262-63 (statement of Mr. Dimmick). This argument was seconded by Norton of San Francisco. Id. at 265-68 (statement of Mr. Norton).
169. "Sir, I want no such thing; the inhabitants want no such thing; the Americans want no such thing. They want a code of simple laws which they can understand; no common law, full of exploded principles, with nothing to recommend it but some dog latin, or the opinion of some lawyer who lived a hundred years ago; they want something that the people can comprehend. . . . Where is this common law that we must all revert to? Has the gentleman from Monterey got it? Can he produce it? Did he ever see it? Where are the ten men in the United States that perfectly understand, appreciate, and know this common law? I should like to find them. When that law is brought into this House - when these thousand musty volumes of jurisprudence are brought in here, and we are told this is the law of the mass - I want these gentlemen to tell me how to understand it. I am no opponent of the common law, nor am I an advocate of the civil law. Sir, I am an advocate of all such law as the people can understand. . . ." Id. at 264 (statement of Mr. Jones).
170. See id. at 269.
171. See id. at 77 (statement of Mr. Wozencraft), 80 (statement of Mr. Gwin), 298-304 (statements of Messrs. Gwin, Halleck, Norton, Sherwood, Shannon, McCarver, Vermuele, Hastings, and Gilbert), 322 (statement of Mr. Sherwood).
172. See id. at 322 (statement of Mr. Sherwood). In a letter to his mother, James McHall Jones wrote: "I am the originator of a commission to be named by the convention for the purpose of codifying all the law. It is an idea that must succeed." Letter from J. M. Jones to his mother, supra note 76, at 7.
173. BROWNE'S REPORT OF DEBATES, supra note 13, at 302 (statement of Mr. Tefft). Jones, whose letters seem to reveal in him tendencies to exaggerate and to be quick to take offense, claimed that personal animosity toward Jones, Burnett, and Weller was the real motive. Letter from J. M. Jones to his mother (Oct. 1, 1849), in Two LETTERS OF JAMES MCHALL JONES, supra note 76, at 16.
174. BROWNE'S REPORT OF DEBATES, supra note 13, at 302 (statement of Mr. Tefft). Jones, whose letters seem to reveal in him tendencies to exaggerate and to be quick to take offense, claimed that personal animosity toward Jones, Burnett, and Weller was the real motive. Letter from J. M. Jones to his mother (Oct. 1, 1849), in Two LETTERS OF JAMES MCHALL JONES, supra note 76, at 16.
175. See Governor's Message (Dec. 21, 1849), in JOURNAL OF THE SENATE OF THE STATE OF CALIFORNIA 30, 33-34 (1850).
176. See BROWNE'S REPORTOF DEBATES, supra note 13, at 461.
177. See id. at 462.
178. See id. at 473.
179. Id. at 475.
180. Delegate Pedro Sainsevaine did not actually sign the constitution even though his name appears with that of the other delegates in printed versions. See J. N. Bowman, The Original Constitution of California of J 849, 28 CAL. HIST. SOC'Y. 193 (1948); NEAL HARLOW, CALIFORNIA CONQUERED 422 n.78 (1982).
181. Delegate Pedro Sainsevaine did not actually sign the constitution even though his name appears with that of the other delegates in printed versions. See J. N. Bowman, The Original Constitution of California of J 849, 28 CAL. HIST. SOC'Y. 193 (1948); NEAL HARLOW, CALIFORNIA CONQUERED 422 n.78 (1982).
182. See GOODWIN, supra note 11, at 252 (citing 2 TAYLOR, supra note 91, at 6-7).
183. See GOODWIN, supra note 11, at 252 (citing 2 TAYLOR, supra note 91, at 6-7).
184. See HARLOW, supra note 122, at 351.
185. See OWEN COY & HERBERT C. JONES, CALIFORNIA'S CONSTITUTION 27 (1930).
186. See HARLOW, supra note 122, at 351-52.