California Legal History:The California Constitution of 1849*

Myra K. Saunders**

Professor Saunders explores the California Constitutional Convention of

1849 and the constitution that it produced. She reviews the historicalbackground leading up to the convention and pays particular attention tothe provisions of the resulting constitution that illustrate the conflict be-

tween Anglo-American and Spanish-Mexican legal traditions. An annotatedbibliography of research sources is included.

The constitution developed at the Constitutional Convention of 1849 servedthe state for thirty years, and its bill of rights, in main part, still survives today.The delegates to the Constitutional Convention of 1849 grappled with a widevariety of legal and social issues, ranging from slavery to the state's bounda-ries, suffrage to taxation, individual freedoms to dueling. The 1849 constitu-tion was deeply influenced by the language of the constitutions of other states,and the convention delegates consulted the texts of the constitutions of at leasttwenty-one other states when considering the language to use in variousprovisions of the 1849 constitution.

The California Constitution of 1849 was also an intentional and virtuallycomplete rejection of the legal systems, both Spanish-Mexican and military, thatpreceded statehood in California. Traditional histories have noted that a tone ofcompromise and conciliation toward the old Californians permeated the conven-tion. It is true that the majority of delegates were considerate of the Latinomembers on a personal level. And it is true that the Latinos won some concessions.But the fact remains that on the two issues most important to the old Californians,

voting rights and property taxes, threats of walkouts were necessary to gainaccommodation. While some Anglo-Americans clearly demonstrated concern forminority views and the former prevailing customs, this can hardly be said to have

been the theme of the convention. More pervasive motives on the part of theAnglo-American delegates included their insistence on implementing their ownsystems and values, their urgent desire to be rid of a system they abhorred, andtheir determination to gain statehood without delay.

* 0 Myra K. Saunders, 1998. For C. I would like to thank all of my colleagues at the UCLA School

of Law for their support of this project, and I would specifically like to thank Jeremy Halpern forhis research assistance.

** Law Librarian and Professor of Law, UCLA School of Law, Los Angeles, California.

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This is the third in a series of articles that explore the legal framework ofhistoric California and the materials available to research California legalhistory.' This paper will focus on the Constitutional Convention of 1849 and theconstitution it produced. It will provide a brief summary of California legal historyleading up to the convention. It will then offer a more in-depth examination of theconstitutional convention and particular provisions of the constitution that illus-trate the conflict between the Anglo-American and Spanish-Mexican legal tradi-tions. The essay concludes with an annotated bibliography of research sources.

Historical Background

California was colonized by the Spanish in the late eighteenth century. Mexico,which then included present-day California (known then as Alta [upper]Cali-fornia-Baja [lower] California is, of course, a Mexican state), rebelledagainst Spain and gained its independence in 1821. The Mexican-AmericanWar began in 1846, and the United States occupied California in July of 1846.Gold was discovered in California in January of 1848. California was formallyceded to the United States by treaty in the spring of 1848.2 President Polk setup a military government in California after the American occupation.3

Anglo-Americans coming to California after the United States' occupationhad difficulty understanding the Spanish and Mexican system, in part becausethe immigrants coming to California after 1846 never experienced it. Themilitary government had announced its intention to carry forward the alcaldesystem-the Spanish colonial system that had been developed for remote,sparsely populated frontier areas-to govern California. As the sole civilofficer in the Spanish colonial scheme, the alcalde functioned in various roles:mayor, arbitrator, justice of the peace, trial judge, and legislator. The primarygoal of the alcalde system was to maintain peace within the civilian populationby resolving conflicts and disputes without litigation, to the satisfaction of bothparties. For these reasons this system did not focus as much on written law orstrict enforcement of judgments as did the common law system. These verycharacteristics set the Anglo-Americans who encountered this system against it.4

1. See Myra K. Saunders, California Legal History: California's Spanish and Mexican LegalInstitutions, 87 L. LBR. J. 487 (1995) [hereinafter Saunders 1]; Myra K. Saunders, CaliforniaLegal History: The Legal System Under the United States Military Government, 1846-1849, 88L. LIBR. J. 488 (1996) [hereinafter Saunders II].

2. Treaty of Peace, Friendship, Limits and Settlement with the Mexican Republic, May 10-May 30,1848, U.S.-Mex., 9 Stat. 922, 926 (1851).

3. The military regime from 1846-1849 is the focus of an earlier article. See Saunders I1, supra note 1.4. 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 CALIFORNIA1846-1850, 150-65 (1963). The conflict between Anglo-Americans and the Mexican legal systemis thoroughly explored in DAVID J. LANGUM, LAW AND COMMUNITY OF THE MEXICAN CALIFORNIAFRONTIER: ANGLO-AMERICAN EXPATRIATES AND THE CLASH OF LEGAL TRADITIONS, 1821-1846 (1987).

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Despite articulated intentions to the contrary, the military governors ofCalifornia and their civil officers dramatically altered the alcalde system theyclaimed to enforce. The military government responded to the changing demo-graphics of California brought on by the Gold Rush and the concomitantpressure to instate an "American" form of government by developing a hybridlegal system that clung to Spanish colonial nomenclature, but engrafted upon

it Anglo-American legal values and traditions.' The integration of the two legalsystems by the military leaders seemed to prove to the Anglo-Americans thatthere was no Mexican system to enforce. In addition, the military government'sfailure to publish and distribute the text of those Mexican laws that were to beenforced also fueled Anglo-American objections to the system.6

Beyond this, the new immigrants' desire for land conflicted sharply withthe military government's determination to respect Mexican land laws and todiscourage the acquisition of property outside of pueblo (town) limits. 7 In

1849, after news of the discovery of gold reached the eastern United States,California was inundated with Anglo-Americans seeking their fortunes. Themining camps were located in areas not colonized by either the Spanish or

Mexicans and beyond the military government's ability to govern. The miningcamps sprang up as individual, independent townships functioning entirely

under their own, self-created, set of rules, but often utilizing Spanish-Mexicanterminology.8

After the war with Mexico ended in 1848, the United States Congress(stalled by the debate over slavery in the territories) did not move quickly to

create a territorial government for California.' Settlers' groups, impatient withthe federal government and unhappy with the military regime, met throughoutNorthern California and began to organize civil government on their own.' °

Congress adjourned in March of 1849 without having made provisions for theestablishment of a territorial government in California. By June of 1849,civilian unhappiness with the governmental system had culminated with the

inhabitants of San Francisco establishing an independent legislative assemblywhich began passing laws. In order to quash the activities of these ad hoc

groups, General Bennett Riley, then military governor of California, issued a

5. See Saunders II, supra note 1, at 495-98.6. See id. at 498-504.7. See id. at 504-06.8. See id. at 506-09.9. 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, ASELF-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 effortto 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).10. See Saunders II, supra note 1, at 509-10.

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call for a general constitutional convention to meet in the fall of 1849 to createa civil government in California."

The constitutional convention met in Monterey, California, from Septem-ber 1 through October 13, 1849. On October 12, 1849, Military Governor Rileyissued the new constitution with a proclamation calling for an election ratify-ing the document. The constitution was adopted by the voters on November13, 1849. Governor Riley proclaimed the constitution ratified on December12, 1849, and turned the government over to civil authorities. The stategovernment operated on a defacto basis until California was admitted into theUnion on September 9, 1850.12

The Sentiment for Change

Given the historical Anglo-American criticism of the Spanish-Mexican system, itis not surprising that examination of the convention record makes it clear that thevast majority of Anglo-American conventioneers had no intention of preserving,in any significant way, the Spanish-Mexican legal heritage of California. Despitecalls for flexibility and compromise,' 3 "the native Californians... were expectedto cooperate in making a constitution that would embody the political theories oftheir conquerors." 4 In return, with the possible exception of the issue of communityproperty, the Anglo-Americans were deferential to Latino concerns only when itwas politically expedient for them to be so. Anglo-American disdain for the militarygovernment implemented after the United States occupied California in 1846 wasalso expressed by the convention delegates. Robert Semple, president of the con-vention, observed: "We were to make something out of nothing; to constructorganization out of chaos." 5 In discussing the frequency with which the legislatureshould meet, irritation with the United States military regime was evident. MyronNorton commented: "We have no laws here. It has been impossible to ascertainwhat the law is, or to enforce it. The Mexican system, as retained in the existingcivil government, is repugnant to the feelings of American citizens." 6 EdwardGilbert expressed much the same sentiment: "It is notorious that the laws now inforce are repugnant to the feelings, education, and habits of the great majority of

11. See CARDINAL GOODWIN, THE ESTABLISHMENT OF STATE GOVERNMENT IN CALIFORNIA 1846-1850,80 (1914); Saunders II, supra note 1, at 509-11.

12. An Act for the Admission of the State of California into the Union, ch. L, 9 Stat. 452 (1850).13. 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 useall possible care, discretion and judgment; and especially that a spirit of compromise should prevailin all your deliberations:' J. Ross BROWNE, REPORT OFTHE DEBATES IN THE CONVENTION OF CALIFOR.NIAONTHEFORMATION OFTHESTATECONSTITUTION, INSEPTEMBERANDOCTOBER, 1849, 18 (President'sAddress) (Washington, D. C., John T. Towers 1850) [hereinafter BROWNE'S REPORTOFDEBATES]. Formore information on BROWNE'S REPORTOF DEBATES, see infra notes 128-131 and accompanying text.

14. ELLISON, SELF-GOVERNING, supra note 9, at 26.

15. BROWNE's REPORT OF DEBATES, supra note 13, at 23 (statement of The Chair).16. Id. at 77 (statement of Mr. Norton).

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the people?" 7 So strong was this animosity that the delegates even expressed reluctanceto continue enforcing the existing laws pending enactments by the new legislature.'"

Thus the history of Anglo-American unhappiness with the Spanish-Mexi-can colonial system and ongoing conflict with the United States militarygovernmental scheme that succeeded it combined with the complete transfor-mation of the area's demographics brought by the Gold Rush to create wide-spread sentiment at the constitutional convention for instituting a substantialchange in the governmental system in California.

The Delegates to the Constitutional Convention

Governor Riley's proclamation 9 had called for the election of thirty-sevendelegates to the convention from ten districts, but the proclamation alsoincluded a provision that permitted districts seeking larger representation toelect additional delegates and seek their admittance at the convention.2°

Because of the Anglo-American conflict with the existing government, therewas some question whether Riley was authorized to call for a convention and,because of this debate, there was some agitation for a boycott of the conven-tion.2' In addition, as the convention was scheduled to begin at the end of thegold mining season, there was uncertainty about whether delegates from themining regions would actually come to Monterey.22 Moreover, there was somedoubt about whether the Latino population, especially those in the southernpart of the state, would send representation. 23 When the convention convenedin September, these fears proved to be unfounded. The convention's Committeeon Privileges and Elections admitted forty-eight members.

The convention seats were also redelegated from those set out in Riley'sproclamation to favor the burgeoning (and highly Anglo-American) miningregions, 24 while at the same time the representation from slower growing (and

17. Id. at 79 (statement of Mr. Gilbert).18. See id. at 380-84 (statements of Messrs. McCarver, Botts, and Steuart).19. Proclamation of B. Riley (June 3, 1849), in PRESIDENTIAL MESSAGE TRANSMIrING INFORMATION

ON CALIFORNIA AND NEW MEXICO, H.R. ExEc. Doc. No. 17, 31st Cong., 1st Sess., at 777 (1849).20. Id. at 778; GOODWIN, supra note 11, at 82.21. See SAMUELH. WILLEY, THETRANSITION PERIOD IN CALIFORNIA 87(1901). Apparently, the boycott

was avoided when Peter Burnett, the future governor and a leader of the movement that refusedto recognize the postwar authority of the military government, also called for a constitutionalconvention at the same time and place. See 1 IRA B. CROSS, FINANCING AN EMPIRE: THE HISTORY

OF BANKING IN CALIFORNIA 95 (1927).

22. See VILLEY, supra note 21, at 87, 90. In fact, none of the delegates representing the miningdistricts was a miner. DAVID A. JOHNSON. FOUNDING THE FAR WEST 33 (1992).

23. See WILLEY, supra note 21, at 86-87, 90.24. 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).

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largely Latino) areas in the southern portion of the state was decreased.25 SanDiego's representation, for example, went from five to two delegates. Indefense of redistributing the seats from south to north, delegate Gwin un-tactfully observed: "[i]t was not for the Native Californians we were makingthis Constitution; it was for the great American population, comprising four-fifths of the population of this country."2 6

Of the forty-eight delegates eventually seated, seven were reported ashaving been born in California, five were born in Europe, and the rest camefrom the United States. Fifteen of the delegates came from the southern states.Six of the delegates who had not been born in California had been in Californiaten or more years. Thirty members had been in California less than four years;eight of the delegates had been in California less than one year.27 Fourteendelegates were lawyers, 28 two had participated in the constitutional conven-tions of other states, another in the promulgation of a territorial constitution,and several had held office in other states before coming to California.29

There were eight Latino representatives to the convention.30 The conventionrecord indicates that seven had been born in California and one in Spain.3 SixLatino delegates served on the twenty-member Standing Committee on theConstitution which did most of the drafting of the constitution, but there is little

25. 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).

26. Id. at I 1 (statement of Mr. Gwin). Gwin later remarked that what he had meant was that becausethe 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 wasto 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 withthe ambition of becoming a United States Senator. See William V. Gwin, Memoirs of Hon.William W. Givin, 19 CAL HisT. Soc'y. Q. 1, 3 (W. Ellison ed., 1940). By all accounts, Gwin wasone of the most vocal participants of the convention.

27. See Members of the Convention of California, in BROWNE'S REPORT OF DEBATES, supra note 13,at 478-79 tbl.

28. Id.29. See, e.g., Merrill G. Burlingame, The Contribution of lowa to the Formation of the State

Government of California in 1849,30 IowAJ. HisT. & POL 182, 183-86 (1932).30. 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 CaliforniaGovernor Pico, represented San Luis Obispo; Pablo Noriega De La Guerra, a former alcalde whois referred to in BROWNE'S REPORT OF DEBATES as Mr. Noriego, represented Santa Barbara; MiguelDe Pedrorena, a shipping agent who was born in Spain and served under United States Commo-dore Stockton, represented Monterey; Manuel Dominguez, a former alcalde in Los Angeles andSan Pedro, represented Los Angeles; Antonio Pico, alcalde of San Jose and active in the Californiamilitia and Mexican government, represented San Jose; Jacinto Rodriguez, alcalde of Monterey,represented Monterey; and Mariano Guadalupe Vallejo, a huge landowner, former CommodanteGeneral 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).

31. The convention record reports that Covarrubias was born in California, but Hargis and Hansenindicate that he came to California from France in 1834. BROWNE'S REPORT OF DEBATES, supranote 13, at 478-79; HARGIS, supra note 30, at 12; WOODRow HANSEN. THE SEARCH FOR AUTHORITYIN CALIFORNIA 110 (1960).

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information on how active the Latino members were in committee.32 The extentto which language difficulties impeded the Latinos' full participation in theconvention is also unclear, but it was certainly a factor."

The overall tone of the convention was conciliatory to the Latino repre-sentatives. For example, there was both a Protestant and Catholic chaplain tothe convention;34 discussions of some matters were postponed to permit trans-lation of materials into Spanish;35 and a translator was dismissed for discour-tesy to a Latino delegate.36

The Latino delegates were reported to have come to Monterey to prevent,as much as possible, "too liberal Americanizing of the country,"37 but thatcharacterization oversimplifies matters. Analysis of the voting records of the

Latino delegates reveals that these delegates were not inclined to vote as ablock, but, instead, asserted individual judgments on an issue-by-issue basis.38

The Latinos might not have felt the need to resort to "block" voting becausethe Anglo-Americans, apparently fearing that significant objections from theLatino population might lead to a walkout which would forestall statehood, werereportedly somewhat more flexible than they might otherwise have been. 39

32. "There was a great deal of work done outside the Convention, perhaps more done by consultationoutside the convention than by public debate. The time was so short most of the determinationswere 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 0. CROSBY. MEMOIRS OF ELISHA OSCAR CROSBY 45 (Charles Albro Barker ed., 1945).

33. Several sources indicated that most delegates could understand English even if speaking it wasdifficult for them. See Hargis, supra note 30, at 5, 9-10; CROSBY, supra note 32, at 37; JAMESA.B. SCHERER, THIRTY-FIRST STAR 57 (1942).

34. See ELLISON, SELF-GOVERNING, supra note 9, at 27.

35. 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" andrequested that the discussion be delayed until a translation could be made." BROWNE's REPORT OFDEBATES, supra note 13, at 31 (statement of Mr. Jones). Jos6 Cobarruvias made a similar requestwhen the report on the judiciary was presented. Id. at 153 (statement of Mr. Cobarruvias).

36. Id. at 95 (statements of Messrs. Carillo and Botts)37. Elisha 0. 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, supranote 32, at xxiv-xxv, 33 n.17.).

38. "It has been charged, that they voted together on nearly all issues and usually were at variancewith 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 themselvesin eighteen and disagreed in seventeen. The majority of them concurred with the majority of theAmericans thirty-seven times and differed, nine. This demonstrates that they were not acting asa block and that they agreed more often with the Americans than they did among themselves."Hargis, supra note 30, at 5 (footnotes omitted).

39. "A second and perhaps more important source of the mood of accommodation was the enormousextent to which the convention was dominated by Anglo desire for statehood. Evidence of theimportance of convincing the Congress to admit California to the union is abundant, and thisultimate objective significantly influenced the content of the constitution. The participation ofthe Californians in the convention was viewed as an indication of political stability and of thewisdom of admitting the annexed area or portion of it. A walkout of the Californians or deep

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Several of the Latino delegates did continue in public service after statehood,a fact that suggests that at least these few Latinos were committed to workingwithin the new regime.40

In addition to the Latino representatives, there were six long-term, non-Latino residents.4 ' It has been suggested that these longer term residents'interests coincided closely with those of the Latino population.42 The long-term Anglo-American residents might be counted on to side with the Latinoson some issues, mostly relating to property rights and taxation. But the factthat many of these Anglo-Americans had experienced ongoing conflict withthe Spanish-Mexican legal system meant that the long-term Anglo-Americanresidents would also support substantial, if not complete, Americanization ofthe legal system.43

Some newer Anglo-American residents also allied themselves with theinterests of long-term residents. Henry Tefft, a four-month resident who

divisions apparent from the debates could have been detrimental to the effort of those who wouldgo to Washington to advance the cause of California. Similarly, the popular vote on the constitu-tion was immensely important. It was critical that the convention end with the delegates inwholehearted support of their product so that these powerful individuals would return to theirdistricts to urge an overwhelming vote for ratification." Susan Westerberg Prager, The Persistenceof Separate Property Concepts in California's Community Property System, 24 UCLA L. REV. 1,16-17 (1976).

40. Manual Dominguez was a county supervisor; De La Guerra served several terms in the CaliforniaSenate, served as the state's acting lieutenant governor in 1860, and served as a United Statesmarshall; Jose Covarrubias served in the state assembly and as a county judge; Antonio Picoserved as register of the United States Land Office in Los Angeles; and Mariano Vallejo servedin 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, "fewheld office thereafter").

41. Julian Hanks, a ten-year resident and a rancher, represented San Jose; Thomas Larkin, asixteen-year resident and merchant who also served as the United States Consul in Californiabefore the war, represented Monterey; Pedro Sansevaine, an eleven-year resident born in Francewith Latino relatives, represented San Jose; Hugo Reid, a rancher, born in Scotland, who was asixteen-year resident with a Native American wife, represented Los Angeles; Abel Sterns, amerchant, rancher and twenty-year resident who had married into one of southern California'smost powerful ranching families, represented Los Angeles; and John A. Sutter, a native ofSwitzerland and ten-year resident on whose property gold was first discovered, representedSacramento. For biographical information, see HANSEN, supra note 31, at 97-105; 6 BANCROFT,supra note 37, at 284-87; SCHERER, supra note 33, at 147-85; ROBERT GLASS CLELAND. THECATTLE ON A THOUSAND HILLS 243-73 (1941).

42. "While there is a tendency to classify the delegates as either English-speaking newer residentsor Spanish-speaking Californians, this descriptive framework tends to obscure the presence inthe convention of a small but significant group of delegates who had important roots in bothcamps. 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. Theyspoke and wrote Spanish, most had married into Spanish-speaking families, and their economicinterests and those of the Spanish-speaking Californians were similar if not identical. In realitythen, 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 forthis theory, see LEONARD PiTr, THE DECLINE OFTHE CALIFORNIoS 44 (1968); PETER T. CONMY, THECONSTITUTIONAL BEGINNINGS OF CALIFORNIA 16 (1959); JOHNSON, supra note 22, at 107-08.

43. See generally LANGUM, supra note 4.

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represented San Luis Obispo (which had a large Latino population), expressedhis intent to fully represent the interests of his native Californian constitu-ents.44 Stephen Foster, a three-year resident from Los Angeles, was alsoaligned with Latino interests.45

State or Territory?

Once the task of appointing convention officers and personnel was accom-plished, the convention turned itself to the question of whether a territorial orstate government should be sought. The convention record reports littlediscussion of the matter, but the vote in favor of drafting a state constitutionwas overwhelming. It is also clear from statements made during debates onvarious issues that achieving statehood was, for most delegates, the primarygoal of the convention.46

Not everyone embraced statehood. One commentator made the tellingobservation that: "[t]he few who opposed State organization were for the mostpart either native Californians or old and conservative settlers."'47 Of the eightdelegates who opposed the promulgation of a state constitution, three wereLatinos 4

' and five were non-Latinos representing districts from the southernpart of the state.49 Jose Carillo suggested the division of California into twoterritories, north and south, at San Luis Obispo." The only Latino whovoted to support drafting a state constitution was M. G. Vallejo, a northernCalifornian." Opposition to statehood endured beyond the convention. Inthe spring of 1850, southern Californians held rallies and sent a petition toCongress opposing the admission of California as geographically definedby the 1849 constitution. Instead, they urged the division of California intotwo regions (north and south) and the creation of a southern territory to becalled Central California. Regular and serious efforts by southern Califor-nians to divide California were undertaken throughout the 1850s.52

44. "Representing, as I do, a constituency entirely of native Californians, because the few Americansin 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).

45. See PiTT, supra note 42, at 44.46. See PRAGER, supra note 39, at 12 n.58.47. ROCKWELL D. HUNT. THE GENESIS OF CALIFORNIA'S FIRST CONSTITUTION (1846-49), at 41 (Balti-

more, Johns Hopkins Press 1895).48. 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.16.49. See BROWNE'S REPORT OF DEBATES, supra note 13, at 23.50. 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).

51. See BROWNE'S REPORT OF DEBATES, supra note 13, at 23.

52. See Ellison, supra note 50, at 105-07; CLELAND, supra note 41, at 164.

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Slave or Free State?

Despite the fact that the debate over slavery in the United States Congress hadstalled the establishment of civil government in California, the conventiondelegates held little discussion on this issue. In fact, contrary to what one mightexpect given the fifteen delegates who came from southern states, the delegates wereunanimous in their vote to reject slavery.53 The question of slavery at the conven-tion did prompt a protracted debate on the admission of free or indenturedAfrican-Americans into California. 4 Concern regarding the admission of freeAfrican-Americans was clearly racist," but economic concerns were also voiced.The population in the mining regions was reportedly concerned that slaveholderswould "under contracts for limited terms of service, free their slaves at home andthen bring them into the mining regions to work out their contracts "'56 Ultimately,the proposal to bar free African-Americans from coming to California was alsodefeated at the convention and again in the first session of the legislature. 7

Sources for the California Constitution

The California Constitution was not an original document, and it is clear thatthe delegates readily looked to other state constitutions for inspiration andguidance. As one delegate put it:

He [Norton] was not prepared to say they could form a constitution better than those ofthe several states; but the Committee could select from then such provisions as weremost applicable to this country, and by combining the wisdom of the whole, make abetter Constitution than could be accomplished in any other way.58

53. See BROWNE'S REPORT OF DEBATES, supra note 13, at 44. The intensity of the antislavery sentimentat the convention is confirmed by the convention chaplain, Samuel Willey, in S. H. WILLEY TmRTYYEARS IN CALIFORNIA 31 (San Francisco, A. L. Bancroft & Co. 1879). But see EUGENEH. BERWANGER,THE FRONTIER AGAINsT SLAvERY 65, n.10 (1967) and Paul Finkelinan, The Laiv of Slavery andFreedom in California 1848-1860, 17 CAL. W. L. REv. 437 (1981), both of which discuss theexistence of slavery in California despite the Mexican and state constitutional prohibitions. Formore information on African Americans in California during this period, see DELILAH BEASLEY, TilENEGRO TRAIL BLAZERS OF CALIFORNIA (R&E Research Assoc. 1968) (1919); NV. SHERMAN SAVAGE,BLACKS IN THE WEST (1976); RUDOLPH M. LAPP BLACKS IN GOLD RUSH CALIFORNIA (1977).

54. See GOODWIN, supra note 1I, at 108-32; JOHNSON, supra note 22, at 127-30. Given the remotenessof California and the difficulty of the journey, there was little concern in California at the timeof the convention about the issue of runaway slaves. See Finkelman, supra note 53, at 447.

55. See GOODWIN, supra note I1, at 114-15; WALTER COLTON, THREE YEARS IN CALIFORNIA 374(Stanford Univ. Press 1949) (1850); ROBERT F. HEIZER & ALAN F. ALMQUIST, THE OTHER CALIFOR.NIANS 104-15 (1971); BERWANGER, supra note 53, at 60-69.

56. GOODWIN, supra note 11, at 117. Berwanger noted that in addition to white miners' concernsabout competing with slave labor, many whites believed that African-Americans were unusuallylucky in finding gold and objected to competing with African-American miners on that basis aswell. BERWANGER, supra note 53, at 61.

57. See BROWNE'S REPORT OF DEBATES, supra note 13, at 338-40. The bill barring African-Americanswas passed in the assembly, but was tabled in the senate. See LAPP, supra note 53, at 130; JOURNAL OFTHE ASSEMBLY OF THE STATE OF CALIFORNIA 1233 (1850); JOURNAL OF THE SENATE OF THE STATE OFCALIFORNIA 347 (1850).

58. BROWNE'S REPORT OF DEBATES, supra note 13, at 28 (statement of Mr. Norton).

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The belief that California had no extant legal system upon which to build mayhave served to encourage delegates to rely on the constitutions of other states asmodels. There is evidence that they had access to the actual texts of the variousstate constitutions for consultation.59 Gwin provided the membership with acopy of the constitution of the state of Iowa.6' Gwin, William E. Shannon, andPacificus Ord claimed to have reviewed the texts of the other state constitutions,6'and Tefft's remarks have been interpreted to mean that he had as well, 62 althoughthat fact seems less clear. An analysis of the convention debates revealed that theconstitutions of New York, Iowa, Louisiana,63 Michigan, Illinois, Virginia, Arkansas,Ohio, Mississippi, Wisconsin, Florida, Indiana, Kentucky, Tennessee, Alabama,Texas, Maryland, South Carolina, Maine, Pennsylvania, and Delaware werespecifically referred to in speeches on the convention floor.64 Since much of thework in framing the constitution was done in committee and was unreported,the full range of materials consulted at the convention remains unknown. In

59. One author has noted that compilations of the various state constitutions were popular in thenineteenth century, with over seventy different editions of such compilations produced between1781 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 delegatesengaged in constitution making." Christian Fritz, Rethinking the American Constitutional Tradi-tion: 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 wereavailable to or used by the delegates, it is certainly possible. The existence of such a pamphlet atthe convention is suggested in an earlier article: "The Constitution of 1849, if one can judge fromcomparing it with the State constitutions contained in a manual published in 1846 for the use ofthe constitutional convention, added scarcely any new ideas to the stock of constitutional law."Orrin K. McMurray, Seventy-Five Years (f California Jurisprudence, 8 CAL. L. REv. 445, 453(1925). It is extremely unlikely that such a pamphlet would have been prepared in 1846 for the1849 Constitutional Convention. It is more likely that any 1846 pamphlet examined by McMurraywould have been one of the commercially produced pamphlets referred to above, or one producedfor either the Iowa or New York constitutional conventions held in 1846.

60. Iowa seems to have been chosen for the practical, but uninspiring reason that "it was one of thelatest and shortest' BROWNE'S REPORTOF DEBATES, supra note 13, at 24 (statement of Mr. Gwin).For detailed analysis of the influence of the Iowa Constitution on the California Constitution, seeBurlingame, supra note 29, at 190.

61. "He had carefully examined all the State Constitutions and he preferred the Constitution of Iowato 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).

62. See GOODWIN, supra note I1, at 232; Tefft's actual remark was: "He appealed to their goodjudgment 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).

63. The Constitution of the state of Louisiana was cited at least six times. BROWNE'S REPORT OFDEBATES, 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, whichbarred 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, at241. According to one source, the dueling provision was introduced in part because of analtercation between two delegates, Tefft and Jones, which led other delegates to fear that achallenge would be forthcoming. See Gwin, supra note 26, at 8-10.

64. See Burlingame, supra note 29, at 190.

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the end, the New York and Iowa constitutions were the sources of most of thelanguage adapted from other state constitutions.

The Declaration of Rights (the term commonly used in the nineteenthcentury for bill of rights65) is the portion of the 1849 constitution that survivestoday in closest to its original form: "Most of the provisions of our presentCalifornia Declaration of Rights go back to our original state constitution,drafted in Monterey in 1849. "66 At the time of the constitution's drafting, thefederal bill of rights did not apply to the states,67 so the drafting of the statebill of rights was an important exercise. Modern writers disagree on whetherone might infer that the use of nonfederal sources for the bill of rights impliesa legislative intent to reject the federal model. 6

' The bill of rights created in1849 does offer more protections than the federal bill of rights of the sameperiod, paralleling the protections of the federal counterpart in only six provi-sions. 69 Studies have identified the New York and Iowa constitutions as theprimary state constitutional models for the bill of rights.70

Thus the 1849 California Constitution was a highly derivative document,a "compilation of articles and sections from other state constitutions." 71 Oneauthor has argued that the derivative nature of California's first state constitu-tion is one of its strengths:

The fact that the delegates carefully canvassed, studied, and ultimately chose provisionsfrom many pre-existing state constitutions supports the idea that they recognized theywere engaged in the important process of constitution building. The comparative

analysis of state constitutions within the convention, which occurred on a broader scalethan many have realized, is a measure of their seriousness of purpose. '72

Spanish and Mexican Influences on the Constitution

The delegates were not so prone to look to Spanish or Mexican law or traditionsfor guidance, but, from time to time, reference to Mexican or civil law wasmade. According to one memoir, Vallejo repeatedly proposed Spanish or

65. See Christian Fritz, More Than "Shreds and Patches:" California's First Bill of Rights, 17HASTINGS CONST. L. Q. 13 n.3 (1989).

66. Ira Reiner & George Glenn Size, The Law Through a Looking Glass: Our Supreme Court and theUse and Abuse of the California Declaration of Rights, 23 PAC. L. J. 1183, 1185 (1992); see alsoFRrrz, supra note 65, at 13 (confirming that the 1849 constitution is the source for much ofCalifornia's current Bill of Rights).

67. See Reiner & Size, supra note 66, at 1191.68. 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 1191-97.69. The six protections appearing in both constitutions are "the right of habeas corpus, right of

assembly, prohibitions on quartering soldiers, protection against unreasonable searches andseizures, a restrictive definition of treason, and the assertion of the non exclusivity of theenumeration of rights." Fritz, supra note 65, at 20-21.

70. See Reiner & Size, supra note 66, at 1187-89; Fritz, supra note 65, at 18-19.71. GOODWIN, supra note 11, at 23 1.72. Fritz, supra note 65, at 18.

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Mexican approaches to various issues.73 In a discussion relating the to theimplications of the use of the word franchise in the proposed bill of rights,the Mexican Constitution was mentioned in passing.74 Mexican law was againconsulted when voting rights were discussed.75 During this discussion, JamesM. Jones indicated that he had copies of both the 1824 and 1836 Mexicanconstitutions, but lacked a copy of the 1843 constitution.76 In the discussionon corporations,77 Charles Botts cited the civil law approach to corporateprerogatives as being superior to that of the common law.78 The Constitutionof Mexico was again referred to in discussions regarding qualifications forstate office. 79

One of the most heavily debated issues at the convention was the fixing ofthe state's eastern boundary.8 0 Some of the Latino delegates expressed somemisgivings about changing the California borders from those that existedduring the Spanish and Mexican periods (the eastern boundary of theSpanish and Mexican territory of California was not clearly defined, butincluded all of Nevada and the western portions of present-day Utah and

73. CROSBY, supra note 32, at 70. These suggestions must been made in committee as the conventionrecord does not confirm this.

74. BROWNE'S REPORT OF DEBATES, supra note 13, at 37 (statement of Mr. Dimmick).75. Id. at 63-73 (statements of Messrs. Gwin, Noriego [De la Guerra], Forster, Tefft, Botts, Jones,

Hastings, and Wozencraft), 305 (statement of Mr. Noriego [De la Guerra]).76. 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 hismother, Jones indicates his expectation of being able to market his knowledge of Spanishand the civil law successfully and asked his mother to procure for him a number ofSpanish law books. Letter from J. M. Jones to his mother (Aug. 26, 1849), in JAMES MCHALLJONES, Two LETTERS OF JAMES MCHALL JONES; DELEGATE TO THE CALIFORNIA CONSTITUTIONAL

CONVENTION 8 (1948).77. 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 andother corporations. For a full discussion of these issues, see GOODWIN, supra note 1I, at 175-92;CRoss, supra note 21, at 95-119.

78. "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 becomesubdivided into the hands of the heirs, but remains subject to the rules of the corporation. Anotherwas, to sue and be sued in their corporate capacity, instead of being regarded as a partnershipmerely 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 thecrown; and it followed soon with the numerous other prerogative of the crown, that it was claimedby the crown; and certain privileges and immunities were given to these corporations. This is theevil which we have followed so nearly in our own country, and of which we have such grievouscause 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 froma combination of New York and Iowa provisions. See GOODWIN, supra note 11, at 178-87; CROSS,supra note 21, at 96-114.

79. See BROWNE'S REPORT OF DEBATES, supra note 13, at 314-15 (statement of Mr. Botts).80. For a detailed discussion of the boundary issues, see GOODWIN, supra note I1, at 133-74. For a

simple map comparing the Spanish/Mexican border with the state border, see SCHERER, supranote 33, at 167. For maps of the various boundary proposals presented to the delegates, seeJOHNSON, supra note 22, at 131, 132, 135.

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Arizona) .' But concern about the Congressional reaction to such a huge state, whencoupled with doubts about the wisdom of including the Mormon settlers near theSalt Lake (who were not represented at the convention), served to persuade thedelegates to set the eastern boundary along the Sierra Nevada.82 In discussionsrelating to the establishment of the state capital, San Jose was proposed as thenew state capital. Since Monterey had been the capital since 1781 and, perhapsmore important, because it housed the Spanish and Mexican governmental ar-chives and records, Secretary of State Henry Halleck, a delegate from Monterey,recommended that Monterey remain the capital.83 The majority felt that reloca-tion of the capital as well as the archives would not be a problem "unless,indeed, we are to be governed altogether by time-honored customs " '84

While some authorities have claimed that the judicial system adoptedby the convention was identical to that of the Mexican laws of 1837,85 thismight have been coincidental, as the structure of the judicial system wasalso similar to that of a United States territory.86 The language of the articledealing with the conciliation courts (which was never implemented) is identi-cal to that of the New York Constitution,8 7 but the inclusion of this provisionmay have been in consideration of long-term residents.88 In any event, nodiscussion of the sources of the judicial scheme appears in the conventionrecord. Crosby, four months in California at the time of the convention, claims:"I took an interest in the organization of the Judiciary of the State and did whatI could to direct the Organization according to my conceptions for the bestinterests of the people."89 It is unlikely that Crosby, a staunch defender of thecommon law,90 would have knowingly copied the Mexican law.

81. Jos6 Carillo, speaking through an interpreter, said "The only question is what is California? It isthe territory defined as such by the Government of Spain, and always recognised as such by theMexican government. I do not conceive that this Government has any right whatever to take theleast portion away [from] that [which] has been ceded by the Government of Mexico." BROWNE'SREPORT OF DEBATES, supra note 13, at 193 (statement of Mr. Carillo).

82. See id. at 190-93 (statement of Mr. Shannon), 418 (statement of Mr. Sherwood), 446 (statementsof 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 proposedby Jones. See id. at 443 (statement of Mr. Jones).

83. See id. at 239-40 (statement of Mr. Halleck).84. Id. at 245 (statement of Mr. Hastings).85. 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 I I (West 1954).86. 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).87. See Orrin K. McMurray, Seventy-Five Years of California Jurisprudence, 13 CAL. L. REV. 445,

453 (1925)88. See William Wirt Blume, Cal rrnia Courts in Historical Perspective, 22 HASTINGS L. J. 123, 132

(1970).89. CROSBY, supra note 32, at 44.90. 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 Reportof 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 I CAL, 588-604 app. (1850).

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Concessions to Latino Interests

Pressure from Latino representatives in the convention, many of whose con-

stituents had Native American progenitors, 9 1 was instrumental in producingone concession from the delegates relating to voting rights. The originallanguage proposed by the Standing Committee on the Constitution denied the

franchise to Native Americans. 92 When it was pointed out that the Mexicansystem permitted propertied Natives to vote, 93 the Anglo-Americans acqui-esced to a small degree and approved an amendment permitting the legisla-ture, upon two-thirds vote, to grant suffrage to Native Americans and theirdescendants.94 While it is not apparent from the official report of the conven-tion, the Latinos apparently felt deeply enough on this issue to threaten to

walk out of the convention.95

The Latino delegates also successfully sought publication of the laws inSpanish as well as English96 and delayed the general election to ratify theconstitution to permit its translation into Spanish. 97 At the same time, the

Anglo-Americans were explicit in identifying English as the language of thefuture: "[B]ut we cannot but foresee here, that the day will soon arrive whenevery man in the State will understand the English language."'9 8

The Latinos, as were most of the residents in the southern portion ofCalifornia that was largely unaffected by the gold rush, were concerned thatthe tax burden of financing the new government might fall unfairly upon

91. See I BAYARD TAYLOR, ELDORADO 115 (Alfred Knopf 1949) (1850). In fact, delegate ManuelDominguez was himself half Native American. See Prrr, supra note 42, at 43.

92. One source reports that "[t]he fear of the delegates was that large landowners who employed agreat many Indians might on election day lead scores of 'docile' Indians to the polls.' HEIZER &ALMQUIST, supra note 55, at 96.

93. See BROWNE'S REPORT OF DEBATES, supra note 13, at 306-07 (statement of Mr. Noriego [De laGuerra]). Noreigo claimed that "[a]ll the Indians in the entire Territory who owned land andtherefore were entitled to vote, under the laws of Mexico, were not more than two hundred." Id.

94. 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 thatto disenfranchise them would be tantamount to denying them part of their citizenship as grantedby the Treaty of Guadalupe Hidalgo. But his most telling argument needed no words, since theconvention could not logically allow mestizo Manuel Dominguez to sign the constitution and yetbar "half-breeds" from the franchise." Pitt, supra note 42, at 45. The right to vote was not extendedto Native Americans by the legislature. An Act to Regulate Elections, ch. 38, § 10 [1849-50] Cal.Stat. 101, 102.

95. "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 theconsequent breaking up of the whole convention, has just been decided to the satisfaction of allparties." Letter from J. Ross Browne to his wife (Oct. 1, 1849), in J. Ross BROWNE. MULEBACKTO THE CONVENTION 40-41 (1950).

96. See Hargis, supra note 30, at 8; BROwNE's REPORTOFDEBATES, supra note 13, at 273-74 (statementof Mr. Noriego [De la Guerra]).

97. See Hargis, supra note 30, at 8; BROWNE's REPORT OF DEBATES, supra note 13, at 390 (statementof Mr. Noriego [De Ia Guerra]).

98. BROWNE's REPORT OF DEBATES, supra note 13, at 273 (statement of Mr. Botts).

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landowners.99 It was this concern that motivated the southern Californians tosupport separate territorial status.' 0 Gwin's memoirs reveal that the Latinosfelt as intensely about this issue as they had on the suffrage issue and that"unless some provision was made in the Constitution that would allay the fearsof those representing landed interests in the territory, they would withdraw ina body from the convention and break it up."'' Tefft articulated the positionof the old Californians, successfully urging the adoption of a scheme in whichassessors would be locally elected."0 2

When discussing the qualifications to run for the office of governor, severaldelegates voiced concern over a proposal requiring that eligibility to becomegovernor be contingent upon having been a United States citizen for at leasttwo years. They feared that this requirement would prohibit former Mexicancitizens from holding this office.'0 3 Eventually an exception to this require-ment was permitted for the first election.

Community Property

It was in relation to marital property' 0 4 that the convention took its most seriouslook at the civil law. In fact, the constitutional provision recognizing thisconcept stands as the only point on which a civil law concept prevailed overthe common law. Tefft remarked:

It was said this evening that this was an attempt to insert in our Constitution, a provisionof the civil law. Very well-suppose it is; is there a gentlemen in the house wedded tothe common law; I am myself greatly attached to it but that does not prevent me fromseeing many excellent provisions in the civil law. The gentleman (Mr. Lippett) terms

99. Spanish and Mexican land grants were quite vast and thus the potential property tax liability wasenormous. For example, one author has estimated that the land holdings of the thirteen delegateswho 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, seeSaunders I, supra note 1, at 494-98.

100. See CLELAND, supra note 42, at 163-65.101. Gwin, supra note 26, at 13.102. See BROWNES 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 SANFRANCISCO 267-68 (Houghton Mifflin Company 1886) (claiming that the tax article was proposedby Gwin and Jones to get the Latinos' support in the boundary issue). Even with the provisionguaranteeing 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 6,000paid $42,000 in property taxes, plus $4,000 in school poll taxes, while the northern counties with apopulation 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).

103. See BROWNE's REPORT OF DEBATES, supra note 13, at 157 (statements of Messrs. Norton, Dimmick,and Shannon).

104. For a detailed account of the history of community property law in California, see Prager, supranote 39; Donna C. Scheule, Community Property Law and the Politics of Married Women's Rightsin Nineteenth Century California, 7 W. LEGAL HisT. 245 (1994).

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this an invasion. I do not regard it in that light; but I think that to strike this section out

would be a very decided invasion upon the people of California. This very section not

only stands upon the statute books of many of the old States, but is inserted in the

Constitution of some of them. It is our duty to give a favorable consideration to any

proposition which does not do marked and radical wrong to any class in California, andwhich deeply concerns the interests of the native Californians. It would be an unheardof invasion, not to secure and guarantee the rights of the wife to her separate property;and of all classes in California, where the civil law is the law of the land, where familieshave lived and died under it, where the rights of the wife are as necessary to be caredfor as those of the husband, we must take into consideration the feelings of the native

Californians, who have always lived under this law.10 5

Botts argued against considering the best interests of the Latino population ifto do so would run counter to the best interests of the majority: "I do not, indiscussing any question in this body, stop to consider the claims of particularclasses. All distinctions should be lost among us; I consider that we are allCalifornians. The question then is, what is best for the great majority of the peopleof California?"'1 6 Unfortunately, no Latino delegates spoke on this issue, so theirpositions remain unknown.

The conventioneers were also fully cognizant of the added protection that thisclause would offer women.' 07 While genuine concern toward protecting the rightsof women was clearly a motive,108 there also was support for this provision basedon more paternalistic grounds.' 09

Some of the delegates saw the decision on community property as beinginseparably linked to the more fundamental decision before them: that of choosingbetween a civil law or a common law legal system in California. Francis Lippettargued against this provision on the basis that it violated common law princi-ples and voiced the recurrent theme that the Latino minority must give way tothe Anglo-American majority."o Kimball Dimmick felt that it was preciselybecause he expected California to adopt the common law that this provision

105. BROWNE's REPORT OF DEBATES, supra note 13, at 258 (statement of Mr. Tefft).106. Id. at 259 (statement of Mr. Botts).107. 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 bewedded ... 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 offortune to come to California. It is the very best provision to get us wives that we can introduceinto the Constitution." Id. at 259 (statement of Mr. Halleck).

108. 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 enlight-ened, as the influence of free and liberal principles had extended among the nations on earth, therights of women have become more generally recognized." Id. at 263 (statement of Mr. Dimmick).

109. "[l]t is to those gentle and confiding creatures who do not think of contracts - that the protectionof the law is designed to be given." Id. at 265 (statement of Mr. Jones).

110. "I must confess that, for one, I am wedded to the common law. I am wedded to it as a member ofthis Convention, as representing a portion of the people, and as a citizen of California; and if Iwere in the Legislature, I should be, as a member of the Legislature, and for this reason: that thecommon law and no other law, is the law under which nine-tenths of the people not in California

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needed to be placed in the constitution."' t One delegate, Jones, even went sofar as to use the discussion of community property as an opportunity to makea virulent (and clearly unrepresentative) attack on the common law. 12

No roll call vote was recorded on this provision, so it is unknown whichdelegates ultimately voted to support it.' ' 3 Still, the adoption of the communityproperty provision establishes that the delegates were able to overcome theirdevoted adherence to common law principles on a limited, issue-by-issuebasis.

The Code Commission

At several points during the convention, the preparation of a code of laws bya commission appointed by the convention delegates was also proposed" 1f4 Theformal resolution that proposed the code commission also named its members:Peter Burnett, who would soon be elected as the first governor of the state ofCalifornia, and John B. Weller, a future United States senator and Californiagovernor." 5 Discussion on the floor indicates that some delegates doubted that

were born and educated; it is the only law which is known, the only law which her lawyers andjudges 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 viewsof my friend from San Luis Obispo, we may as well at once pass another section making thewhole civil law the law of the land:' Id. at 260 (statement of Mr. Lippitt).

111. "The main reason which the gentleman from San Francisco [Mr. Lippett], has so urgentlypresented against this provision, is that the common law will soon be the established law of thiscountry. If that is so, it will make a great change over the laws as they now exist, and willmaterially affect the rights of women, unless we incorporate a portion of if so far as relates tothis subject. Women now possess in this country the right which is proposed to be introduced intothe constitution. Blot it out, and introduce the common law, and what do you do? The wife whoowns her separate property loses it the moment the common law prevails, and it is to avoid takingaway that right of control over her property that I would wish to see this provision engrafted inthe Constitution." Id. at 262-63 (statement of Mr. Dimmick). This argument was seconded byNorton of San Francisco. Id. at 265-68 (statement of Mr. Norton).

112. "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 explodedprinciples, with nothing to recommend it but some dog latin, or the opinion of some lawyer wholived a hundred years ago; they want something that the people can comprehend.... Where isthis common law that we must all revert to? Has the gentleman from Monterey got it? Can heproduce it? Did he ever see it? Where are the ten men in the United States that perfectlyunderstand, appreciate, and know this common law? I should like to find them. When that law isbrought into this House-when these thousand musty volumes ofjurisprudence 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 ofall such law as the people can understand... "' Id. at 264 (statement of Mr. Jones).

113. See id. at 269.114. 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).

115. See id. at 322 (statement of Mr. Sherwood). In a letter to his mother, James MeHall Jones wrote: "1am the originator of a commission to be named by the convention for the purpose of codifying allthe law. It is an idea that must succeed.' Letter from J. M. Jones to his mother, supra note 76, at 7.

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the convention was empowered to create such a code, and they successfullyargued that the task of drafting laws should be left to the legislature: "Thepeople had not sent delegates to the Convention to form a code of laws, but toform a Constitution.... [H]e [Tefft] believed that if the Commissioners wereappointed by the Convention, the Legislature would indignantly reject any codeof laws they might present to them?"' 6 Given the fact that a few months later, afterbeing elected governor, Peter Burnett unsuccessfully urged the first legislature toadopt the Louisiana Civil Code and Code of Procedure," 7 the convention'srejection of the proposal to establish the code commission might well have ruinedthe best opportunity the civil law had to be adopted in California.

Ratification of the Constitution

On October 11, 1849, the convention delegates approved the final sections ofthe constitution.1 8 On the same day, the delegates approved the production of10,000 copies of the Constitution for distribution to the general population:8,000 in English, 2,000 in Spanish.'9 The next day, the convention forwardeda copy of the completed constitution to Governor Riley.' 20

Upon completion of its work, the convention unanimously approved an"Address to the People of California." This address, while attempting toappear conciliatory and deferential toward the old Californians, reiteratesthe ongoing the convention theme of minority interests giving way to thatof the majority:

It is to be remembered, moreover, that a considerable portion of our fellow-citizens are

natives of Old Spain, Californians, and those who have voluntarily relinquished therights of Mexicans to enjoy those of American citizens. Long accustomed to a differentform of government, regarding the rights of persons and property as interwoven withancient usages and time-honored customs, they may not at once see the advantage ofthe proposed new government, or yield with immediate approval of new laws, howeversalutary their provisions or conducive to the general welfare. But it is confidentlybelieved, when the government as now proposed, shall have gone into successfuloperation, when each department thereof shall move on harmoniously in its appro-priate and respective sphere when laws based on the eternal laws of equity andjustice shall be established when every citizen shall find himself secure in life,liberty and property-all will unite in the cordial support of institutions, which arenot only the pride and boast of every true hearted citizen of the Union, but which

116. BROWNE,sREPoRTO F DEBATES, supra note 13, at 302 (statement of Mr. Tefft). Jones, whose lettersseem to reveal in him tendencies to exaggerate and to be quick to take offense, claimed thatpersonal 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 16.117. See Governor's Message (Dec. 21, 1849), in JOURNAL OFTHE SENATE OFTHE STATE OF CALIFORNIA

30, 33-34 (1850).118. See BROWNE'S REPORT OF DEBATES, supra note 13, at 461.119. See id. at 462.120. See id. at 473.

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havegoneforth,a guiding light to every people groping through the gloom ofreligious superstition or political fanaticism. 12 1

The constitution was signed by the delegates12 2 on October 12, 1849.The general election to approve the constitution was held on November 13,1849. There was low voter turnout, due to poor road conditions caused byheavy rains. According to one account, Latinos took an active interest inparticipating in their first American election. 123 The constitution was ap-proved by a vote of 12,061 to 811,124 with only 803 ballots cast in southernCalifornia. 12 In order to avoid a second election, voters also elected officersfor the new government. The new legislature began to meet in San Jose onDecember 15, 1849, and the new governor, Peter H. Burnett, was inauguratedon December 20, 1849.126

Conclusion

At the time of the California Constitutional Convention, California was in themidst of tremendous change brought on by the acquisition of California by theUnited States, the discovery of gold, and the dramatic influx of fortune seekersfrom the United States. The unhappiness of the newer settlers with the Span-ish-Mexican colonial system, their ongoing conflict with the United Statesmilitary governmental scheme that succeeded it, and their devotion to UnitedStates governmental and common law models made it clear from the verybeginning that substantial change in the legal system was inevitable.

Standard histories have characterized the Anglo-American delegates asdisplaying an attitude of deference and accommodation toward the old Cali-fornians. But this study has found that the courtesy was expressed on a largelysuperficial level. Thus, while the Latinos won some concessions at the conven-tion, on the two issues most important to the old Californians, voting rightsand property taxes, threats of walkouts were necessary to gain any realcompromises. Some Anglo-Americans clearly did demonstrate concern forminority views and the former prevailing customs, but far more pervasive wasthe Anglo-American insistence on implementing their own systems and values,their urgent desire to be rid of a system they abhorred, and their determinationto gain statehood without delay. At the same time, on some issues, such as

121. Id. at 475.122. 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 Constitutionof California of 1849, 28 CAL. HIST. Soc'y Q. 193 (1948); NEAL HARLOW, CALIFORNIA CONQUERED422 n.78 (1982).

123. See GOODWIN, supra note 11, at 252 (citing 2 TAYLOR, supra note 91, at 6-7).124. See HARLOW, supra note 122, at 351.125. See OWEN Coy & HERBERT C. JONES, CALIFORNIA'S CONSTITUTION 27 (1930).

126. See HARLOW, supra note 122, at 351-52.

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community property, the delegates were willing to deviate from common lawnorms and provide added protections.

The delegates to the Constitutional Convention of 1849 struggled with anumber of pressing social and legal issues, and their debates reflect theconcerns of Californians at that time. While little of what the delegatesproduced was novel, their methodology of reviewing the extant state constitu-tions and, variously, adopting or adapting selected provisions from them tocreate their own unique document provides an interesting example of westernfrontier constitutional drafting. Moreover, the delegates' willingness to takethe effort to study a variety of constitutional models and to debate the relativemerits of different provisions establishes how seriously the delegates took theircharge. Finally, the convention produced a constitution whose bill of rightslargely survives today. Studying the convention proceedings not only helpsexplain a central historical event in the evolution of the Anglo-American legalsystem in California, it illuminates the origins of many of the current rightsand privileges of California citizens.

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AppendixCalifornia's Constitution of 1849:

A Selective Bibliography of Sources

General Research Overview

The tale of the creation of California's first constitution has been well docu-mented. A brief research overview is presented here, followed by more detailedinformation on individual titles.

The most useful bibliographical source for studying this period is AComprehensive Bibliography ofAmerican Constitutional and Legal History.127

As the title implies, this bibliography is quite comprehensive and is a goodstarting point for researching the 1849 Convention and Constitution. While thesingle alphabetical listing of articles regardless of topic is a bit cumbersomeand the bibliography is unannotated, the author does provide information onthe chronological periods covered in each work that is listed.

The convention contracted with J. Ross Browne to create an officialrecord of its work. The Report of Debates was produced from the shorthandnotes taken by Browne at the convention 128 and is a combination of verbatimtranscripts and "paraphrased summaries" of the delegates' discussions. 129

Unfortunately, the Report of Debates contains no index, so one must rely onsecondary sources to locate discussion on particular topics within the Report. Oneparticipant, Elisha Crosby, later recollected that most of the significant work ofthe convention had been done in committee and that those most vocal in theofficial debates were not necessarily those who had done most of the drafting.' 10

Nonetheless, the report of the convention, like any record of legislative debate,still provides material from which substantial inferences about legislative intentcan be drawn. A Spanish language edition of the Report was also published.' 3 '

The records of the United States military government (which operatedfrom July 1846 through December of 1849) are helpful to understanding thisperiod. Of these, the most valuable is Presidential Message TransmittingInformation on California and New Mexico,' 32 which covers the period fromFebruary of 1847 through October of 1849, includes documentation from theconvention as well as the text of the 1849 constitution. Also useful is Presi-dential Message Communicating Further Information on the Formation of

127. 4 KERMIT HALL, A COMPREHENSIVE BIBLIOGRAPHY OF AMERICAN CONSTITUTIONAL AND LEGALHISTORY 2540-60 (1984).

128. See HARLOW, supra note 122, at 350. A journal record was also created by a convention clerk.That manuscript is available at the California State Archives. See id. at 350, 422 n.85.

129. See JOHNSON, supra note 22, at 367 app. 2A.130. See CROSBY, supra note 32, at 45.131. J. Ross BROWNE, RELACION DE Los DEBATES DE LA CONVENCION DE CALIFORNIA SOBRE LA FORMCION

DE LA CONSTITUCION DEESTADO, EN SETIEMBREY OCTUBRE DE 1849 (New York, S. W. Benedict 185 1).132. PRESIDENTIAL MESSAGETRANSMI1TING INFORMATION ON CALIFORNIA AND NEW MEXICO, supra note 19.

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State Government in California, 133 which includes the final civil correspon-dence of Governor Riley. While a number of secondary sources cite to individ-ual items in these collections, they rarely reproduce the complete documents.

A number of the more prominent participants in early state government wrotereminiscences of their experiences. These memoirs can help the researcherappreciate the tone of the convention and develop a better understanding of theperiod. Collections of the papers and correspondence of convention participantsand other prominent residents can also be useful, as can biographies of theseindividuals.

The Alta California newspaper, whose editor, Edward Gilbert, was a delegate,carried extensive coverage of the constitutional convention. The concerns of theAnglo-American community are well documented in the editorials and letters pub-lished in theAlta California. References to many articles and editorials can be located

through secondary sources, but again, since only excerpts of documents are normallyreproduced in such tools, it is helpful to read through the papers themselves (mostissues are quite brief) to gain a fuller understanding of the American perspective.

There are a number of works that focus on the first constitutional conven-tion. The classic and still most useful source for studying the first constitu-tional convention is Cardinal Goodwin's The Establishment of State Govern-ment in California.'34 It is so thorough and detailed that it almost serves as anindex to the official report. General California histories are helpful in devel-oping a broader understanding of the period as well as for locating informationrelating to specific issues or events and references to source materials. Butresearchers should bear in mind the clear Anglo-American biases of many ofthese works, particularly older texts.

Bibliographic Aids

Bauer, John E. "Early American California, 1848-1880." In A Guide to theHistory of California, edited by Doyce B. Nunis Jr. and Gloria RicciLothrop, 21-33. New York: Greenwood Press, 1989.Less useful for the constitutional convention than for other periods of

California history.

Browne, Cynthia. State Constitutional Conventions from Independence to the

Completion of the Present Union 1776-1959; A Bibliography. Westport,Conn.: Greenwood Press, 1973.

133. PRESIDENTIAL MESSAGE COMMUNICATINO FURTHER INFORMATION ON THEFORMATION OF STATE GOVERN-

MENT IN CALIFORNIA AND ALSO ON CIVIL AFFAIRS IN OREGON, S. EXEC. DOC. NO. 52, 31st Cong, 1st

Sess. (1850).134. GOODWIN, supra note 11.

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Lists official or government publications of state constitutional conven-tions, commissions, and legislative or executive committees. Does not includeunofficial or secondary material.

Fritz, Christian, and Gorden M. Bakken. "California Legal History: A Bibliog-raphic Essay," 70 Southern California Quarterly 203-222 (1988).Includes a brief, but helpful listing (at page 214) of the works studying the

convention.

Hall, Kermit L. A Comprehensive Bibliography ofAmerican Constitutional andLegal History. Milwood, N.Y.: Kraus International Publications, 1984.As the title implies, this bibliography is quite comprehensive and is a good

starting point for researching the 1849 Convention and Constitution. While thesingle alphabetical listing of articles regardless of topic is a bit cumbersomeand the bibliography is unannotated, the author does provide information onthe chronological periods covered in each work that is listed.

Kemble, Edward C. A History of California Newspapers 1846-1858, edited byHelen Harding Bretnor. Los Gatos, Calif.: The Talisman Press, 1962.Useful for identifying relevant publications and their dates of publication.

Lowman, Matthew P. "The California Constitution of 1849," 63 Papers of theBibliographic Society of America 25-29 (1969).An examination of the typesetting variations between the two editions

of the pamphlets containing the text of the 1849 constitution that weredistributed as ballot pamphlets for the general election seeking ratificationof the constitution.

Shearer, Augustus H. A List of Official Publications of American State Consti-tutional Conventions 1776-1916, Compiled for Use in the Newberry Li-brary. Chicago: Newberry Library, 1917.This work's scope is virtually identical to that of the later published work

by Browne (listed above) and includes: official or government publications ofstate constitutional conventions, commissions, and legislative or executivecommittees. Does not include unofficial or secondary material.

University of Chicago Libraries Documents Section. Official PublicationsRelating to American State Constitutional Conventions. New York: H.W.Wilson Co., 1936.The scope of this work is the same as the Browne and Shearer works listed

above: official or government publications of state constitutional conventions,commissions, and legislative or executive committees. It does not includeunofficial or secondary material.

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Primary Source Materials

Reports and Records

Browne, J. Ross. Report of the Debates in the Convention of California, on theFormation of the State Constitution, in September and October, 1849.Washington: John T. Towers, 1850.The official record of the convention. Though titled Report of Debates, it

is not a verbatim transcript of the debates but rather a combination oftranscripts and summaries of the proceedings prepared by the convention'sreporter, J. Ross Browne. Unfortunately, it contains no index, so one must relyon secondary sources to locate discussion on particular topics within theReport of Debates.

Browne, J. Ross. Relacion de Los Debates de la Convencion de California,sobre la Formcion de la Constitucion de Estado en Setiembre y Octubre de1849. New York: S. W. Benedict, 1851.The Spanish language edition of Browne's Report of Debates.

Constitution of the State of California; includes Proclamation to the People ofCalifornia the Twelfth Day of October, 1849 by Governor Riley. SanFrancisco, 1849.The very rare1 35 ballot pamphlet.

The Constitution of the State of California, 1849, edited by Robert F. Cleland.San Marino, Calif.: Friends of the Huntington Library, 1949.A reproduction of the 1849 constitution preceded by a historical overview.

Journal of the Constitutional Convention. 1849.The manuscript version of the record of proceedings of the California Con-

stitutional Convention of 1849. It is available at the California State Archives.

U.S. Congress. House. Presidential Message Transmitting Information on Cali-

fornia and New Mexico, 31st Cong, 1st Sess., House. Ex. Doc. No. 17(1849), Serial No. 573, Washington, D.C.: 1850. CIS No.: 573 H.exdoc.17(Serial-Set).The major compilation of official government papers for the military

government of California. This compilation covers the period from approxi-mately February 1847 through October 1849 and includes the Kearny andMason governorships. While lengthy, unindexed, and poorly paginated, this isan important document.

135. See HARLOW, supra note 122, at 422 n.70.

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U.S. Congress. Senate. Message from the President Communicating Informa-tion Called for by a Resolution of the 17th Instant, in Relation to CaliforniaandNew Mexico, 31st Cong, 1st Sess., Senate Ex. Doc. No. 18 (1849), SerialNo. 557, Washington, D.C.: 1850. CIS No.: 557 S.exdoc. 18 (Serial-Set).Although not as comprehensive a collection of documents as House Ex-

ecutive Document 17, this volume is also more accessible because it is not asrare. It contains many important items.

U.S. Congress. Senate. Presidential Message Communicating Further Informationon the Formation of State Government in California, and also on Civil Affairsin Oregon, 31st Cong, 1st Sess., Senate Ex. Doc. No. 52 (1849), Serial No.561, Washington, D.C.: 1850. CIS No.: 561 S.exdoc. 52 (Serial-Set).The final document containing records of the military government, this

includes General Riley's civil correspondence from the end of October 1849through mid-December, when the government was turned over to civilauthorities.

Memoirs and Correspondence

Browne, J. Ross. Muleback to the Convention. San Francisco: Book Club ofCalifornia, 1950.These letters written by the official reporter provide some insight to the

convention action that occurred away from the floor.

Burnett, Peter H. Recollections and Opinions of an Old Pioneer. New York: DaCapo Press, 1969.Although Burnett was the first civil governor after United States acquisi-

tion of California and an observer at the convention, his memoirs do not coverthe constitutional convention.

Colton, Walter. Three Years in California. New York: A.S. Barnes & Co., 1850;reprint, Stanford, Calif.: Stanford University Press, 1949.The original edition includes several chapters (chapters XXVII-XXXIII) that

deal with events that took place after Colton's departure from California, includ-ing a brief assessment of the constitutional convention. These chapters wereeliminated from the 1949 edition (presumably because they described events thatColton did not personally witness).

Crosby, Elisha 0. "The First State Election in California," 5 Society of Califor-nia Pioneers Quarterly 65-75 (1928).This memoir concentrates on recollections of the personalties and individ-

ual contributions of particular delegates.

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Crosby, Elisha Oscar. Memoirs of Elisha Oscar Crosby; Reminiscences ofCalifornia and Guatemala from 1849 to 1864, edited by Charles AlbroBarker. San Marino, Calif.: Huntington Library, 1945.This larger memoir of Crosby covers several decades; the chapter on the

1849 Constitutional Convention goes over much of the same ground as "TheFirst State Election in California" listed above. Much of Hubert Howe Ban-croft's coverage of the convention in the History of California listed below isbased on Crosby's recollections.

Gwin, William W. "Memoirs of Hon. William W. Gwin," edited by William H.Ellison. 19 California Historical Society Quarterly 1-26, 157-367 (1940).Gwin was one of the most vocal of the Convention delegates. In part one

of his memoirs, he details his recollections of the major events of the conven-tion. Part two covers his experiences representing California in the UnitedStates Senate.

Jones, James McHall. Two Letters of James McHall Jones; Delegate to theCalifornia Constitutional Convention. San Francisco: Grabhorn Press, 1948.These two letters discuss sources consulted by the delegates in promul-

gating the 1849 constitution as well as events not recorded in the officialreport.

Taylor, Bayard. El Dorado or Adventures in the Path of the Empire, 2 vols. NewYork: Putnam, 1850; reprint, New York: Alfred A. Knopf, 1949 (variousother editions were also published in the United States and Europe).Taylor was a spectator for most of the constitutional convention, and his

detailed account of the conventions's closing celebrations is often cited.

Willey, Samuel. Thirty Years in California; A Contribution to the History of theState. San Francisco: A. L. Bancroft & Co., 1879.Reverend Willey, the Protestant chaplin to the convention, deals briefly

with his recollections of the constitutional convention.

Willey, Samuel H. The Transition Period in California from a Province ofMexico in 1846 to a State of the American Union in 1850. San Francisco:Whitaker and Ray Company, 1901.Unlike Thirty Years in California listed above, this longer memoir is

annotated with references to a number of other works. Reverend Willeydevotes three chapters to the convention, and his observations are helpful inunderstanding the tone of the convention and providing background informa-tion on many delegates.

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Newspapers

Alta California (weekly edition). San Francisco, Calif.: January 4-December 29,1849. Continued by Alta Californian (triweekly edition), December 10,1849January 18, 1850; followed by the Daily Alta Californian. Available inmicrofilm.

Secondary Materials

Bancroft, Hubert Howe. History of California, 7 vols. San Francisco: TheHistory Company, 1884-1890; facsimile edition of the first Americanedition, Santa Barbara, Calif.: W. Hebberd, 1963-1970.This multivolume set is the classic history of California. Much of Bancroft's

coverage of the convention is based on Crosby's Memoirs listed above. 36

Berwanger, Eugene H. The FrontierAgainst Slavery: Western Anti-Negro Preju-dice and the Slavery Extension Controversy. Urbana, Ill.: University ofIllinois Press, 1971.In chapter 3, "In Eldorado," the author presents an interesting discussion

of the slavery and racial bias issues at the constitutional convention and moregenerally in California during this period. The work is well documented.

Blume, William Wirt. "California Courts in Historical Perspective," 22 Hast-ings Law Journal 121-195 (1970).This historical review of the California courts includes a study of the

judicial issues raised at the convention.

Bowman, J. N. "The Original Constitution of 1849," 28 California HistoricalSociety Quarterly 193-197 (1948).A summary of a careful study done by the author comparing the original

wording of the various sections of the constitution as approved by the dele-gates at various points in the convention with the final engrossed versionproduced for publication.

Burlingame, Merrill G. "The Contribution of Iowa to the Formation of the StateGovernment of California in 1849," 30 Iowa Journal of History and Politics182-218 (1932).A very useful, detailed study of the provisions of the Iowa Constitution of

1846 that were used as models for sections of the 1849 California Constitution.

Cleland, Robert Glass. The Cattle on a Thousand Hills: Southern California1850-1870. San Marino, Calif.: Huntington Library, 1941.

136. See CROSBY, supra note 32, at xxiv-xxv, 33 n.17.

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This classic study of the California rancheros provides a good backgroundon the land issues at the convention and during early statehood as well asbiographical information on some of the leading ranchers.

Conmy, Peter Thomas. The Constitutional Beginnings of California. San Fran-cisco: Grand Parlor, Native Sons of the Golden West, 1959.A survey of the issues covered in the convention; includes a brief bibliography.

Cosgrave, George. Early California Justice, edited by Roy Vernon Sowers. SanFrancisco: Grabhorn Press, 1948.This series of articles by a former federal district court judge attempts to

chronicle the history of the district court in California, but also provides usefulinformation on general California legal history.

Cosgrave, George. "James McCall Jones: The Judge That Never Presided," 20California Historical Society Quarterly 97-116 (1941).A biography of the convention's youngest delegate and its most ardent

supporter of the civil law.

Coy, Owen, and Herbert C. Jones. California's Constitution. Los Angeles:Marjorie Tisdale Wolcott, 1930.A brief study of the major issues of the 1849 and 1879 constitutional

conventions; includes a short bibliography of standard sources.

Cross, Ira B. Financing an Empire: The History of Banking in California, 4 vols.Chicago: S. J. Clark Publishing Company, 1927.The author devotes a chapter to the banking and corporate issues discussed

at the constitutional convention.

Crotty, Homer D. "The California Constitutional Convention of 1849," 31California Historical Society Quarterly 155-166 (1949).A review essay in honor of the California Constitution's centennial which

relies on standard sources.

David, Leon T. "Our California Constitution: Retrospections in this Bicenten-nial Year," 3 Hastings Constitutional Law Quarterly 697-760 (1976).This piece covers a broader period, but it does highlight the issues relating to the

1849 Convention and Constitution and offers some unique assessments and references.

Eldredge, Zoeth S. History of California, 5 vols. New York: The CenturyHistory Co., 1915.Another classic California history, quite readable, but the scarcity of notes

to source documents reduces its usefulness.

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Ellison, Joseph. "The Struggle for Civil Government in California, 1846-1850,"10 California Historical Society Quarterly 4-26, 129-164,226-244 (1931).While highly sympathetic to the Anglo-American settlers' complaints,

this multiple-part article is heavily noted and identifies numerous primarymaterials. Part one contains chapter 1, "American Beginnings in California,"and chapter 2, "Promises and Disappointments." Part two contains chapter 3,"Conflict of Theories," and chapter 4, "The Constitutional Convention andthe Organization of a State Government." Part three contains chapter 5,"Admission of California into the Union," and a bibliography.

Ellison, William Henry. "Constitution Making in the Land of Gold;' 18 PacificHistorical Review 319-330 (1949).A transcript of a paper presented to the Pacific Coast Branch of the American

Historical Association, which was based on the research for his then forthcomingbook, A Self-Governing Dominion; California, 1849-1860 (listed below).

Ellison, William Henry. "The Movement for State Division in California,1849-1860," 17 Southwestern Historical Quarterly 101-139 (1913).Details the various efforts to create a separate territorial status for the

southern part of California.

Ellison, William Henry. A Self-Governing Dominion; California, 1849-1860.Berkeley, Calif.: University of California Press, 1950.In studying this period, the author devotes a chapter to the constitutional

convention. A good source for placing the convention in its historical period.Includes an annotated bibliography.

Finkelman, Paul. "The Law of Slavery and Freedom in California 1848-1860,"17 California Western Law Review 437-464 (1981).While primarily focused on the period after statehood, this piece does

provide valuable information on the issues surrounding slavery at the time ofthe constitutional convention.

Fritz, Christian. "More than 'Shreds and Patches': California's First Bill ofRights," 17 Hastings Constitutional Law Quarterly 13-34 (1989).This piece examines the sources of California's 1849 Bill of Rights and

uses the convention's process of comparative analysis and incorporation ofother states' provisions into the California Constitution as a model for the studyof nineteenth-century constitution making.

Fritz, Christian. "Rethinking the American Constitutional Tradition: NationalDimensions in the Formation of State Constitutions," 26 Rutgers LawJournal 969-992 (1995).

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In this article reviewing David Johnson's Founding the Far West (listedbelow), the author provides a helpful discussion of the nineteenth-centurypractice of "borrowing" from provisions of other state constitutions in devel-oping new state constitutions.

Goodwin, Cardinal. The Establishment of State Government in California,1846-1850. New York: The Macmillan Company, 1914.The classic and still most useful source for studying the first constitutional

convention. This text is so thorough and detailed that it almost serves as anindex to the official report. Although indexed and well noted, the text does notinclude a bibliography.

Goodwin, Cardinal. "The Question of the Eastern Boundary of California in theConvention of 1849," 16 Southwestern Historical Quarterly 227-258 (1913).Published prior to his more comprehensive work on the convention, this

piece clearly formed the basis for the chapter devoted to this issue in TheEstablishment of State Government in California (listed above).

Grodin, Joseph R., Calvin R. Massey, and Richard B. Cunningham. The CaliforniaState Constitution: A Reference Guide. Westport, Conn.: Greenwood Press, 1973.The historical essay at the beginning of this work is a useful introduction

to the issues surrounding the 1849 constitution and provides citations to manyof the most significant sources. A good starting point for research.

Grodin, Joseph R. "Commentary: Some Reflections on State Constitutions," 15Hastings Constitutional Law Quarterly 391-402 (1988).This piece reviews the 1849 convention while emphasizing the importance

of studying state constitutional law.

Hansen, Woodrow. The Search for Authority in California. Oakland, Calif.:BioBooks, 1960.While the author's own views come through rather too clearly (at times

obscuring the impact of the original sources he cites), Hansen devotes severalchapters to the events of the constitutional convention. The chapter notes arefilled with references to a wide variety of helpful materials. The appendixincludes an extensive bibliography.

Hargis, Donald E. "Native Californians in the Constitutional Convention of1849," 36 Historical Society Southern California Quarterly 3-13 (1954).The only study to focus exclusively on the contributions of Latino dele-

gates to the 1849 Constitutional Convention. Also a source of biographicalinformation on Latino delegates.

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Hargis, Donald E. "Southerners in the California Constitutional Convention,"19 Southern Speech Journal 193-204 (1954).The author studied the participation in the convention by the fifteen men

from southern states and concluded that the southerners did not act in concertto influence the convention's outcome.

Hargis, Donald E. "Women's Rights: California 1849," 36 Historical SocietySouthern California Quarterly 320-334 (1955).This article studies the remarks of the seven delegates who participated in

the convention debate on community property. Gives brief biographical dataon the participants in notes 5 and 6.

Harlow, Neal. California Conquered. Berkeley, Calif.: University of CaliforniaPress, 1982.The author devotes a chapter to a narration of the events of the constitu-

tional convention and a summary of issues discussed by the delegates. Theauthor was a special collections librarian, and the notes are well documented.Includes an extensive bibliography of sources.

Heizer, Robert F., and Alan F. Almquist. The Other Californians: Prejudice andDiscrimination Under Spain, Mexico and the United States to 1920.Berkeley, Calif.: University of California Press, 1971.In the chapter entitled "Constitutional Debate on Race and Rights," the

authors analyze the prejudice and bias revealed in the convention record.Includes a bibliography.

Hittell, Theodore H. History of California, 4 vols. San Francisco: N. J. Stone& Co., 1885-1897.Heavily noted and clearly written, this multivolumed history provides

access to source materials other than those in the Bancroft Collection andremains a valuable research tool.

Hunt, Rockwell D. The Genesis of California's First Constitution. Baltimore:The Johns Hopkins Press, 1895.An often-cited, early analysis of the convention. Hunt's arguments that

delegates who came from southern states dominated the convention has largelybeen rejected by later scholars.

Johnson, David Alan. Founding the Far West: California, Oregon and Nevada1840-1890. Berkeley, Calif.: University of California Press, 1992.In chapter 4, which is devoted to California's 1849 Constitutional Conven-

tion, Johnson provides biographical information on the delegates who he

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determined were the most influential, as well as a review of the issues thatreceived the most discussion by the delegates (the state boundary, corporationsand banks, the "free Negro" question, and suffrage). Well researched, but doesnot include a bibliography.

McMurray, Orrin K. "The Beginning of the Community Property System inCalifornia and the Adoption of the Common Law," 3 California Law Review359-380 (1915).This article takes a staunchly Anglo-American perspective in reviewing the

transition from Mexican to United States law, but it does discuss the significantissues. The author devotes several pages to the debates on community property.

McMurray, Orrin K. "Seventy-Five Years of California Jurisprudence," 13California Law Review 445-467 (1925).This transcript of a bar association speech deals only in passing with the

1849 constitution.

Mason, Paul. "Constitutional History of California" in Constitution of theUnited States and of the State of California and Other Documents. Sacra-mento: California Printing Office, 1938.This essay appears at the head of numerous editions of the United States

and California Constitutions that were published by the state legislature fordistribution to the state public schools, and provides a traditional, Anglo-American-slanted reading of California legal history.

Palmer, William J., and Paul P. Selvin. "The Development of Law in California,"in California Constitution, Art. 1-4-1. St. Paul, Minn.: West Publishing Co.,1954; reprinted 1983.This often-cited source tremendously oversimplifies the issues, but is

helpful for general background information.

Pitt, Leonard. The Decline of the Californios. Berkeley, Calif.: University ofCalifornia Press, 1968.This study of Latinos in California devotes a chapter to the 1849 Consti-

tutional Convention and offers a different perspective from traditional Anglo-American histories.

Powell, Richard R. Compromises of Conflicting Claims: A Century of Califor-nia Law, 1760-1860. Dobbs Ferry, N.Y.: Oceana, 1977.Powell devotes only four pages to the constitutional convention in Septem-

ber of 1849, but the notes provide helpful references.

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Prager, Susan Westerberg. '"The Persistence of Separate Property Concepts in Cali-fornia's Community Property System," 24 UCLA Law Review 1-82 (1976).This well-researched piece includes a detailed review of the 1849 Consti-

tutional Convention and provides references to a number of helpful sourcesincluding some unique primary materials.

Reiner, Ira, and George C. Size. "The Law Through a Looking Glass: OurSupreme Court and the Use and Abuse of the California Declaration ofRights'" 23 Pacific Law Journal 1183-1285 (1992).In developing their thesis, the authors closely study the sources for the

California Bill of Rights in the state's first constitution. Includes extensivenotes to primary materials as well as appendix table tracing the origin andsubsequent history of each section of the bill of rights.

Royce, Josiah. California From the Conquest in 1846 to the Second VigilanceCommittee in San Francisco, a Study of the American Character. Bostonand New York: Houghton, Mifflin & Co., 1886; other editions published byKnopf in 1948 and Peregine Publishers in 1970.Royce's analysis of the convention revolves almost entirely around the

actions of Gwin, whom Royce saw as attempting to manipulate the conventionin order to preserve options for southerners and other proponents of slavery.

Scherer, James A.B. Thirty-First Star. New York: G.P. Putnam's Sons, 1942.The author, in a decidedly avuncular tone, highlights the convention events

from the perspective of Jesse Benton Fremont, wife of John Fremont, an earlymilitary governor and one of the sstate's first senators, and daughter of SenatorBenton of Missouri.

Still, Bayrd. "California's First Constitution: A Reflection of the Political Philoso-phy of the Frontier," 4 Pacific Historical Society Review 221-234 (1935).This piece provides an interesting study of the convention and the tendency

of its delegates to use eastern United States constitutional models whilesimultaneously retaining their own frontier perspective and largely resistingthe eastern tendency to restrict the powers of the state executive and legislature.

Thorpe, Francis Newton. A Constitutional History of the American People1776-1859, 2 vols. New York: Harper Brothers Publishers, 1898.In volume 2 of this work, the author provides a detailed summary of the

convention's debates (at pages 287-389).

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