Taming the elephant: an introduction to California's statehood and constitutional era.

Burns, John F.

The phrase "seeing the elephant" was frequently used during the California Gold Rush by western sojourners to describe their encounters with strange and alien situations or exotic and enlivening experiences--something as unique as actually seeing an elephant was at that time. The reality of seeing the elephant sometimes did not match the anticipation of the event. Thus, "seeing the elephant" became an apt metaphor for the Gold Rush, in which most people found more disappointments than riches. Although the phrase was generally applied to a gold-seeking adventure, the task of bringing discipline and order to the new state's politics and government in its chaotic infancy was a mammoth undertaking in its own right. California's extraordinary gold-rush-induced growth during a period of difficult transition from Mexican to American sovereignty was a challenge of elephant-like dimensions, as the essays in this book demonstrate. Those people involved in early California governance not only "saw the elephant," but they also had to attempt to corral it.

The extraordinary and rapid development of California's public sector after 1848 is a fascinating but largely obscure story. Driven by the rare occasion of immediate statehood and the subsequent necessity to quickly institute a broad range of civic activities, governmental development played a key role in the transformation of California from conquered place and unbridled frontier into a viable entity that could take its place alongside the other states of the Union. But how instrumental was that role in the making of California as we know it? Although the social, cultural, and economic ramifications of California's first thirty years as a state have been treated extensively in historical literature, no comparable body of work has yet emerged that thoroughly delves into the public arena. The state sesquicentennial anniversary prompted the preparation of several excellent new works on the Gold Rush and its aftermath, but the emergence of the state and its public institutions has been ignored or, at best, sligh ted.

A prevalent notion is that California's early efforts at government were unimportant, incompetent, and principally devoted to fleecing whatever unfortunate souls could be victimized. Historian J. S. Holliday recently contended that "certainly no other state endured an adolescence so orphaned from the steadying hand of enlightened leadership as California... narrow ambition and greed ruled the time....California did not inspire political idealism [and] statecraft seemed a pestering distraction." Earlier authors were no more complimentary. Andrew Rolle, for instance, echoed Hubert Howe Bancroft's characterization of the state's politics as permeated by "corruption, mediocrity, and bossism," and Rolle labeled the constitutional era "one of the dullest periods in California's political life." (1)

Yet that may not be the whole story In his interpretive history of the state, Edward Staniford, for example, maintained that "party and public affairs rumbled with political turbulence. In such precarious times, mixed concentrations of people produced unstable and unrestrained communities. The California cauldron was boiling with the elements of both lowly and heroic achievement." Even more affirmative, Judson A. Grenier called California's initial political period "almost as important as gold in shaping the state." Indisputably, government agencies and public policy were formed and civic activities undertaken in the frontier period, and it is reasonable to assume that, to some degree, they affected subsequent California politics and government. Staniford asserted that the leadership impulses, political bargaining, and interest-group pressure that characterized California's early governmental efforts continue to be the basic manner of operation of California's party and governmental system." (2)

The essays in this volume begin an overdue examination of some of these issues and test and modify long-standing perceptions. It is hoped that these brief treatises will tantalize others to initiate more thorough study of the seminal elements and individuals, both the base and the noble, that shaped the founding of California's public affairs. Historian William Leuchtenburg asserted in 1986 that "there is mounting evidence of a renascent interest in political history" and that such study would be "the historian's next frontier." In California, at least, the opportunity exists to realize Leuchtenburg's prediction, and with greater knowledge of California's political and governmental legacy society might gain a needed, more comprehensive understanding of contemporary California's public environment. (3)

What to do about governing California was an urgent matter confronting the nation in 1849. Congress, typically not the speediest of bodies and hamstrung by the very tenuous balance between free and slave states, could not immediately decide, presenting those living or arriving in California with a serious situation as to governance. General Bennet Riley, the appointed military governor, presided by treaty over an area of the United States that was no longer simply a conquered province but one that was transiting from one type of civil administration based on Spanish and Mexican codes to another, very different type rooted in common law derived from English and American precedent. And this was occurring in an incredibly tumultuous socioeconomic environment caused in large measure by the Gold Rush, leading Riley to describe with considerable restraint the governmental situation as "the embarrassments of our present position." (4)

There were certainly pressing concerns. The signing of the Treaty of Guadalupe Hidalgo in 1848 concluded the armed conflict between the United States and Mexico and transferred what is now the southwest United States to American jurisdiction. It was a lightly occupied, vast area that gained worldwide attention with unprecedented speed. The discovery of gold in early 1848, even before the treaty had been ratified by the U.S. Senate, fueled extensive journalistic coverage and hype and launched a rush of mostly young men (and a few women) from all regions of the globe, but especially from the eastern United States, into the ports and then the foothills of northern California. While Riley was confronted with congressional inaction in the middle of 1849, California's population was increasing dramatically. Within a year the nonnative population would double to around a hundred thousand, ten times that of 1846. Of the migrants, about 80 percent were young males- in the 1850 census, fifty-eight thousand of these sa id they were miners.

What they discovered when they arrived in California was exceptional. The former Spanish-Mexican economy had been mostly based on subsistence for relatively few people. Then, in the instant boom of the Gold Rush, scarcity became the rule. Everything, including much food, had to be imported. Many new arrivals to mushrooming cities such as Sacramento lived in tents. Most early buildings were prefabricated and shipped to California. Prices were bizarre; items could cost twenty or more times what they did in the East, such as a dollar for a mere egg. There were few roads, and transportation was mostly limited to navigable waterways. Living conditions could be harsh. When Frank Marryat arrived in Sacramento he found it "terribly dusty... the dirtiest dust I ever saw, never visited by a shower until the rainy season sets in and suddenly converts it into a thick mud," overrun by "rats distinguished for their size and audacity" that "come out after dark in street gangs, as if the town belongs to them, and attack any thing." (5) Diseases such as cholera became epidemic. Public and governmental operations were virtually nonexistent.

It is difficult to imagine how overwhelming this situation was to the Mexican Californians (Californios), who soon constituted less than 5 percent of the population, or the disastrous consequences to the Native American peoples and their way of life. Even the migrants themselves were often caught bewildered. Gold seekers who left San Francisco for a mere three months found upon their return that the town had quadrupled in size. The existing governmental institutions of a formerly pastoral, now conquered, California did not have a chance of coping with such a demographic onslaught. Moreover, most gold seekers did not view California as a permanent destination and had little interest in civic affairs. The majority of the young men heading for the gold-saturated foothills were passing through; they talked about "making their pile" and going home. When the California constitution was put up for ratification in late 1849, with virtually all white men able to vote, "interest could not have been intense," and only about 15 percent exercised the franchise. (6)

But there were also growing numbers of merchants, lawyers, city builders, and tradesmen who needed reliable governmental order. To these people, many of them intending to stay, Riley's "holding pattern" of governing through existing formerly Mexican institutions, with a small military presence backing it up, was very unsettling. Where was the guarantee that, if you bought property, it would be recorded properly? Who would maintain these government records? Could your person and belongings be made secure? As David Alan Johnson observed: "Mexican law was alien and could not provide the desired framework to order the complexities of an instantly created market economy." (7) Not even a rudimentary legal system existed in the mining regions, which lacked any significant earlier Spanish-Mexican presence. It was up to the new arrivals to determine what to do, and the response was ad hoc mining camp "law." More than five hundred camps adopted local mining codes. There were influences on those codes from Spanish-Mexic an, English, and other customs, but underlying them was pragmatic American frontier self-government, coupled with "vigilance" promptly laid upon alleged lawbreakers. Today, such justice administered by miners is often considered arbitrary and unjust, but one scholar's reexamination of the evidence submits that "in cases of severe antisocial behavior, such as theft, homicides or attempted rape, and in cases involving mining claims or possessory rights, they had a clear understanding of legal customs and tried to abide by them." (8)

In the mining camps, apart from the establishment of necessary local codes to regulate mining claims and assure a modicum of order, state-making and politics generally were not a matter for much attention. The movement for a more regularized system of government was one urged by a few city dwellers and property holders. To these individuals, "public order and commercial opportunity demanded the certainty of American law." (9) By the middle of 1849 this element of the population was already largely American, entrepreneurs who had come west in search of opportunity, full of the ebullience of a victorious people, confident in the values that underpinned and promoted western expansion. They were the young, impatient, eager children of Manifest Destiny, who created "a new state based on their collective experience. The new society was a California version of the American system--so unlike its Mexican predecessor and its American successor, yet a genuine blend of both. That society was democratic with a note of rac ial discrimination. It favored individual enterprise over corporate enterprise, and professed liberal sentiments while including conservative restraints." (10)

On June 3, 1849, Riley issued the proclamation that would move California to a more stable government and eventual statehood. He was influenced to make this decision by virtue of an expanding population that had overwhelmed the existing structure and that was relentlessly and restlessly moving toward self-government in any event. As in the mining camps, communities were taking action on their own. In Sacramento, for example, "activists in the local area moved to create a municipal government...without mandate or direction from higher authority." (11) Using Congress's failure to act on the question of California's status as a rationale, but with no legal authority, Riley proclaimed that "it becomes our imperative duty to take some active measures to provide for the existing wants of the country...by putting in full vigor the administration of the laws as they now exist....While at the same time a convention...shall meet and frame a State constitution or a Territorial organization, to be submitted to the people for their ratification, and then proposed to Congress for its approval." (12)

Early in September 1849 a total of forty-eight delegates elected from districts around the state assembled in Monterey to begin drafting a state constitution. The majority quickly decided to opt for statehood, despite reservations by the minority of landowning delegates from southern California, who rightly feared that they would be beleaguered by excessive property taxation to support the government, and who therefore favored territorial status. The delegates were not a representative body of those who were in California at the time. In keeping with the practices of the era, there were no women, Native Americans, African Americans, or anyone of Asian descent. Only eight were Hispanic. Southern California had eleven delegates, well outnumbered by those from the far more populous north. They were young, half were under thirty-five. They were not Forty-niners, as most of them had been in California for three years or more. They were not primarily miners. Several delegates from the mining districts did not atten d, because they were busy working their claims and, for them, the pursuit of gold took precedence over constitution-making. Fourteen, or 30 percent, were lawyers. Eleven were farmers, and seven were businessmen. One described himself as a man of "elegant leisure," though what that pursuit entailed remains a matter of speculation.

Robert Semple, the convention president, in his opening address said, "I am confident ... that we can prove to the world that California has not been settled entirely by unintelligent and unlettered men." (13) The principal model that delegates followed in crafting the California constitution was that of Iowa, although elements of other state constitutions were also included. Nonetheless, as they framed the various provisions and debated their construction, the delegates encountered situations that demanded a novel, California solution. One of these was the question of what to do about married women's property, and it was proposed that the existing Mexican practice be followed. Under Spanish and Mexican civil law a woman retained legal right to property she acquired as an individual before and during marriage. English common law, however, to which many of the convention delegates were predisposed, ordained that all property of a woman became legally owned by her husband upon marriage. Heated arguments ensued. Charles T. Botts, a married proponent of the common law, pleaded that "the God of nature made women, frail, lovely and dependent.., the only despotism on earth that I would advocate is the despotism of the husband." But bachelor Henry Halleck, backed by the Hispanic delegates and those who were younger, rejoined, "I am not wedded to the common law, or the civil law, or yet to a woman... but I do not think we can offer a greater inducement for women of fortune to come to California," arguing that it was the best way to get wives. Halleck's practical argument was more persuasive, and the proposal passed. (14) A suggestion by the southern California delegates to publish all laws in both English and Spanish was also accepted.

One of the most engaging questions to face the convention was the issue of California's boundary. How much territory could California undertake to control? Some delegates wanted to include most of the unorganized former Mexican territory, namely parts of what now is Nevada, Arizona, and Utah. The convention was badly split on this issue, the irrepressible Mr. Botts sardonically commenting, "why not indirectly settle it by extending your limits to the Mississippi. Why not include the Island of Cuba." The winning reasoning in the end was that there was nothing on the other side of the Sierra Nevada of any value, and thus acquiring "interminable plains of artemesia, vast bodies of salt water a great part of the year, and immense deserts," as delegate J. R. Snyder put it, would only be a burden. The boundary question was interwoven with the consequential issue of whether slavery should be allowed in the state. A ban on slavery was quickly accepted, as some delegates were abolitionists and others simply did not wa nt the unfair competition that owners with slaves might offer. There was more extensive debate about permitting "free Negroes" to enter and reside in the state, resolved in favor of such admission, and settling on a reasonable boundary for the state virtually eliminated any possibility that sections of the state might eventually be carved into slave territory. (15)

The constitutional outcome was an amalgamation of influences. It was the last time until the late twentieth century that a sizable number of Latino Californians had a significant role to play in state political events. Most Californios had experience, not always pleasant, in dealing with Americans. Employing skillful negotiation and argument, the Californios helped to guide the convention to adopt provisions on such matters as voter qualifications, taxation, lands, state boundaries, and civil liberties, in addition to property and language, that protected certain practices that existed under the former regime, although in later years the Californios found that constitutional intent was not easy to maintain. In a referendum predictably characterized by low turnout, the constitution was overwhelmingly ratified 12,061 to 811 on November 13, 1849. The final document was largely "in the main stream of American constitutional history in the several states.... [It] may not have been the best of its time, but neither was it the worst. It was representative of, neither in advance of nor behind, the thinking and political climate of its time." (16) The 1849 constitution began with an extensive declaration of rights, emblematic of California's "adamant resistance to government restrictions on private personal conduct." (17) This litany of rights is one that has expanded over the years, but from the outset it included "pursuing and obtaining safety and happiness." As one group of authors observed: "How characteristically Californian to guarantee not only the pursuit but the achievement of happiness!" (18) Although superseded by the adoption of the 1879 constitution and by many amendments subsequent to that time, elements of the 1849 constitution, including the right to happiness, remain today.

One of the more peculiar and notable legacies of the original constitution relates to the state legislature. In 1849 the number of Assembly members was constitutionally fixed in a range of thirty to eighty, with the number of senators being no more than half that number, and with the exact numbers to be determined by the legislature itself. At that time, one Assembly member represented fewer than four thousand people and, given that less than half of the adult population could vote, needed to reach only several hundred voters to be elected. The later 1879 constitution fixed the number permanently at the upper levels of 1849, namely, eighty assembly persons and forty senators, with each Assembly district representing about ten thousand people. Unchanged in maximum numbers since 1849, today each of California's assembly persons now represents four hundred thousand people. And each state senator, serving double the number of constituents present in an Assembly district, represents substantially more people than does a U.S. member of Congress. In New York, the next closest state in population size, each assembly delegate represents 120,000 constituents, or about a quarter of a California district. (In the "mentor" state, Iowa, there is one representative for every twenty-seven thousand people.) The result is remoteness for the average voter from his or her representatives in Sacramento, contributing to the media orientation of California campaigns, the enormous amounts of money involved in winning political office, the excessive influence of political consultants, and the vast pressure of special interests. All of these consequences spring in part from the initial constitutional provisions fixing the size of the legislature.

After the constitution was ratified, it was immediately put into effect, with state officials and legislators being elected, although there was still no legal recognition from Congress. Vilified as the "Legislature of a Thousand Drinks," California's initial statecrafters have often received little respect for their work. Historian John Caughey labeled them "gold-mad westerners" characterized by "inexperience" and "inattention induced by the absorbing and highly profitable nature of private enterprise. In the conduct of state government the result of this crass neglect was a record of the grossest abuses." However, such a low opinion of the early legislators is not universal. William Henry Ellison claimed that "it is doubtful whether ... any legislature has ever done more work ... or more important or better work, than that done by the [first]. ... The adaptation of the governmental structure of the state to changing conditions is a perennial tribute to the devotion and political wisdom of the builders in Cal ifornia's first legislative session." Studies such as that by Judson A. Grenier in his biography of the first state controller and in his essay in this volume can help to more judiciously evaluate the impact and character of these individuals. (19)

Whatever the quantity of alcohol consumed by the early statecrafters, it is important to recall that they were attacking governance in the midst of a wild and fluid situation, a political entity growing in population at breakneck speed with no infrastructure to support such growth and without financial resources, given the uncertainty of the government's legal status. In the middle of this maelstrom, the first legislature did organize some of the machinery of government and adopted the Anglo-American common law as the basis of law in California. The effects of its actions continue to be felt in the present. It provided for a local government structure, creating the majority of counties in the more populous north and thereby leaving contemporary California with many small county governments in the north, the tiniest being twelve-hundred-person Alpine County, and a few large counties in the south, such as nine-million-person Los Angeles County. It appointed pilots for ports and harbors, assembled the state arch ives and library, created a state printing operation, set up elections, provided for limited partnerships, organized the state militia, and tried to regulate steamboats, in part to stop the often fatal practice of racing them. It also failed to launch a public school system and could not settle on the location of a capital; Sacramento was finally chosen in 1854. The first legislature also imposed an odious and discriminatory tax on foreign miners in a blatant attempt to drive nonwhite miners from the gold fields. The first legislature had a mixed record. It operated to a degree within the norms of American state legislative activity, but it was also driven by other factors and elements as outlined by the essays in this volume.

Despite the positive or negative mythology that sometimes surrounds stories of the state's founding fathers of 1849-50 and the actions they took, by and large they rather predictably were a product of their era, values, prejudices, and economic circumstances. California's political reputation from its earliest days has been often that of "a land of loony schemes and political extremes, an image which has stuck and refuses to come unglued." (20) As debate raged in Congress over California statehood, the legendary South Carolina senator John C. Calhoun fumed about California's impatient actions to govern itself, prophetically charging California with being "revolutionary" and "anarchistic." Later, the feud between David Broderick and William Gwin and the impact of the Civil War overshadowed other elements of the state's political life, including the irregular development of the state's political parties, unsuccessful movements for state division, and the expanding application of state governmental procedures. As there is evidence that California's politics bore significant resemblance to that of other states, a reexamination of the negative political image that California has garnered since its early governmental period is in order. The essays in this volume also address that goal.

After the question of statehood was resolved and the initial state organizational efforts were completed, it was time to get on with business. California was finally admitted to the Union on September 9, 1850, thanks to a compromise between the free and slave states crafted by Henry Clay. Not surprisingly, economic affairs were predominant in much of the work of the next several legislatures. Gerald Nash, the only scholar to examine in depth the economic impact of the early state government, wrote that the practices that the founders brought with them served as the "institutional heritage with which California's first constitution makers and legislators were acquainted. On the foundations of English local legislation and mercantilist administrative practices Americans had fashioned an intricate institutional framework to which they adhered with remarkable consistency. The functions of government were to promote and regulate private enterprise, to engage in research where needed, and to undertake public owners hip and operation under certain conditions. Techniques to carry out these functions had been developed over the course of two centuries, ranging from noncoercive methods to formal sanctions." (21) However, up to this point little work has been done to examine the manner in which governmental functions were initially carried out in California. Adequate histories of governmental functions and agencies have been few in number, and much scholarship remains to be accomplished.

Thirty years later, the constitution of 1849 came under considerable attack, and an effort to replace it with a new one gained momentum, as the original constitution was held responsible for some of the adverse economic circumstances the state then confronted. In three decades the face of California had changed substantially. The population had grown eightfold, and its demographic characteristics had changed as well. The formerly Mexican population had declined substantially in proportion to people of European American origin, and Californio political impact had essentially disappeared. African Americans remained small in number and excluded from most political participation, and Native Americans, their populations much reduced by disease, violence, and dislocation, were struggling for sheer survival. The most substantial numerical minority was Asian, predominately Chinese, but they were politically prostrate and made scapegoats for many of the woes afflicting the state that had escalated as the state's econo my moved beyond the Gold Rush. Historian Kevin Starr summarized California's unhappy situation, observing, "from start to finish, north and south, the 1870s had been an unmitigated disaster of drought, crop failure, urban rioting, squatter wars, harassment and murder of the Chinese, cynical manipulation of politics by the railroad, depression, price fixing, bank failure, and stock swindles." (22)

The constitution of 1849 had been considered for overhaul as early as the middle of the 1850s. Numerous attempts were made at calling a new constitutional convention, but they were unsuccessful until the election of September 5, 1877, by which time economic circumstances had deteriorated to the point that many in the Workingmen's Party and those sympathetic to it especially felt that substantial reform was in order. Primary issues included regulation of the railroads, changes in taxation to reduce the burden on farmers, more accountability on the part of corporations and banks, protection for labor, and anti-Chinese provisions. The duration of the convention that gathered in Sacramento beginning in September 1878 extended to six months, or four times as long as the first convention. Three times the number of delegates were in attendance, 152 compared to the forty-eight in Monterey. Of the delegates, fifty-seven were lawyers and thirty-nine were farmers, with the rest distributed among a wide range of occupati ons. All were Caucasian males, most born outside the state; as such they were representative only of those allowed to participate politically. One proposal that they turned down would have extended suffrage to women. An idea that they accepted eliminated the 1849 requirement to publish laws in both English and Spanish.

The results of the overall efforts of the 1878-79 delegates have not often been applauded. The unwieldy product that emerged was vastly different from the constitution of 1849. The new constitution was an extremely detailed document full of minor provisions on such topics as nut trees and wrestling that in many other states would have been deemed of statutory, not of constitutional, import. The document was many times longer than the Constitution of the United States or the original California constitution; at one point only the constitutions of the state of Louisiana and the nation of India were wordier. Moreover, the principal aims of the new constitution were not realized. The railroads continued to escape strong regulation until the Progressive era reforms of the early twentieth century. The degree of tax relief for farmers was disappointing, and the operations of neither banks nor other corporations were significantly altered. Workers found that the new constitution did little to protect their interests. The racist efforts to restrict and exclude the Chinese were not truly accomplished, as most of the specific provisions offered would have violated elements of the U.S. Constitution. Severe limitations on Chinese immigration were eventually instituted by the federal government, not the state, when Congress passed the Chinese Exclusion Act in 1882.

When the new constitution was submitted to the people for adoption, there was little enthusiasm for the convention's product, although the vote ultimately came down in favor of ratification largely because the farmers hoped that it would result in much lower freight rates and taxes. The new constitution won acceptance on May 7, 1879, by a vote of 77,959 to 67,134, with more than 8o percent of the eligible electorate participating. The large northern California cities, where Workingmen's Party influence was strongest, turned the document down, while most rural counties and southern California voted for it. The greatest percentage of votes against it were in Alameda County It received the largest favorable majority in Los Angeles County. Amended more than 350 times and substantially revised and shortened through the efforts of a constitutional revision commission one hundred years later, the 1879 constitution remains the fundamental law of California. The most significant reform subsequent to the adoption of th e 1879 document was "people's lawmaking" in the form of the initiative and referendum, enacted in the Progressive period. Widely used in the twentieth century, people's lawmaking may reflect the desire displayed in 1878-79 to constitutionally embed most elements of public policy and to circumvent what was seen as an ineffective legislative process.

Although the constitution has been amended more than three hundred times since the 1879 version was ratified, many facets of the 1879 document continue to directly affect contemporary California. For example, the University of California remains a separate constitutional agency as set up in 1879, exempt from most of the laws that apply to the rest of the government. The basic judicial system was reconstructed into its present form. Almost the same number and type of constitutional officers continue to be elected as specified in 1 879, even though today several of the functions supervised by these constitutional officers could be handled by other constitutional officers or appointed officials, as is often seen in other states. Moreover, the policy discretion of these independently elected constitutional officers is severely limited by the wishes of the governor, who controls the budget process, personnel regulations, and decisions of executive agencies with overlapping authority. Accountability for a variety o f constitutional functions is thereby blurred, but change in the system is difficult because substantive alterations require a constitutional amendment. As previously noted, the numerical composition of the legislature remains the same as in 1879, even though the state's population is now more than thirty times larger. Former Speaker of the Assembly Bob Monagan's assessment of badly needed change in California's system of representative government places expansion in the numbers of legislative representatives as one of the foremost reforms to repair major defects in the 1879-based governmental structure. Others he recommends include a new method for reapportionment, shorter legislative sessions, enforceable campaign finance reform, and a revised initiative process. (23)

All of this strongly infers that greater study of the long-term impact of California's constitution-making endeavors would likely be quite fruitful, though such a comprehensive effort is beyond the scope of this volume. Particularly scant historical analysis has been undertaken in respect to the constitution of 1879 and its effects. Most general histories mention its development only in passing, or dismiss its impact. Rolle and Gaines, for instance, merely offered that "in spite of the constitution's many technical defects, California has developed a workable and efficient governmental system." A more elaborate analysis appears in The Elusive Eden, whose authors suggest that "whatever its shortcomings, the new constitution established important principles of state economic regulation,... distributed the tax burden more widely,... and created the machinery for increasing state revenues. The state now possessed a stronger legal and fiscal framework for dealing more actively with the economic, scientific, and en vironmental problems of modernization." David Alan Johnson's perceptive evaluation takes an even longer view: "The 1879 constitution of California was thus an effort to make sense of a modernizing corporate order....the delegates, Workingmen and nonpartisan alike, were anticipating the regulatory state that would be established by Progressive reformers a generation hence. They intended to widen government's role as the guarantor of individual liberty, giving it the responsibility to limit and control, but also assist, the pursuit of private advantage." (24)

President Robert Semple, concluding his opening remarks to the first constitutional convention, predicted: "The knowledge, enterprise and genius of the old world will reappear in the new, to guide it to its destined position among the nations of the earth. Let us, then, go onward and upward, and let our motto be, 'Justice, Industry, and Economy.'" (25) If movement indeed was "onward and upward," it was to unfold in erratic fashion, as the articles in this volume indicate. But no matter how erratic, what happened in California public life during the state's first thirty years was vital to the state's future, and it certainly invites greater study and comprehension to help understand public life in the present. The essays in this volume provide an initial step in that direction. Each discusses an important element of California's early affairs, with an emphasis on looking anew at government's role.

Roger D. McGrath challenges several prevailing conceptions about crime, violence, and law enforcement in California's early governmental period. Novels and motion pictures have contributed to a heavily romanticized and often fictional picture of law and order on the frontier and about the characters who played a part in it. But McGrath shows, for instance, that Joaquin Murieta was just a brutal bandit from Mexico, not a Hispanic Robin Hood, and that he was prone to assault easy victims, including other Mexicans. Vigilantes, according to McGrath, "operated coolly and deliberately" and "left the community in a better state" as they focused their remedial attention on those who preyed on the innocent. McGrath found few damsels m distress on the California frontier. In fact, women were a "protected class" rarely the subject of criminal activity. He judges pioneer defense attorneys "highly competent," and also asserts that "it is difficult to cite an instance of an innocent man being hanged" by vigilantes. On nume rous matters, including the first state prison system, early lawmen, and the effects of an armed citizenry "too dangerous to rob," McGrath reevaluates popular notions and explores new ground.

The essay by Gordon Morris Bakken logically succeeds that of McGrath, as it treats the development of the California courts and the legal system. Bakken examines the constitutional underpinnings of California's initial judicial efforts and finds that they reflected "the popular sovereignty and Jacksonian democratic rhetoric of the history of the early bar and judicial action sheds considerable light on the practice of justice in the state's tumultuous early days, including its "dismal" record on matters related to racial equity. Especially useful is his elaboration on real estate law, tort law, mortgages, and mechanics liens, important subjects that rarely gain even a modicum of attention. While Bakken found that judges "clearly favored entrepreneurs and insulated them" from liability, he also found that the state Supreme Court "exhibited an independence that produced extraordinary decisions." His overall research concludes that there was substantial judicial activity in the constitutional era that was far fr om amateurish and that this activity contributed materially to California's maturation as a state.

Shirley Ann Wilson Moore's essay provides insight in respect to some of the important and troubling issues on racial prejudice and discrimination raised by Bakken. Unsympathetic to the popular premises of Manifest Destiny and focusing on the theme of law and race, she synthesizes the thirty-year period of California's early state experience, beginning with the state constitution that gave "legal sanction to discrimination" and the first legislative enactments against miners of color "erecting a bulwark of laws that deprived them of civil rights." She demonstrates that such laws were no accident of ignorance, nor did they have only casual impact. Moore traces the web of statutes that purposefully, blatantly served to keep nonwhite people in a subservient and disfranchised economic, educational, and political status, and reveals the reality of slavery in the sometimes not-so-free Golden State. Prominent among early laws were those that barred any judicial redress for Native Americans, Chinese, and African Americans, who were all prevented from even testifying in any action involving whites. Moore concludes by pointing out that, far from remaining silent, active responses were undertaken by some individuals and groups, especially African Americans, as they often successfully contested frontier California's legal strictures and began to challenge second-class citizenship.

A fascinating interlude is provided by Joshua Paddison in the essay that follows Moore's, as Paddison discusses some of the visual archival materials that vividly illustrate political and governmental activity and people associated with it. The color plates remind the reader of certain realities and conflicts associated with the emergence of Americanized government in California, and Paddison's text relates these and other images of early California to the eventual mythology of the state. Representations of such figures as Joaquin Murieta, Andres Pico, and the Peralta family recall actual people displaced by and adapting to or taking advantage of forces of conquest, and a painting of Chinatown unveils a more benign portrayal of the Chinese than that prevailing throughout most of the nineteenth century. Elements of American-style governments, such as the post office, state capitol, and fire department, symbolize and cement the newcomers' presence, while views of the majesty of Yosemite, effects of hydraulic mi ning, and the island of Alcatraz in San Francisco Bay hint at contrasting approaches to governmental handling of the state's remarkable natural resources.

Topical treatments of California's governmental legacy resume with Judson A. Grenier's unique essay on early California officials. Grenier's research upends the conventional wisdom that denigrates early California officialdom with charges of ineptitude and graft. To the contrary, he argues that California was "fortunate that most of its officials were responsible men," whose service "often meant relinquishing a more lucrative career," and that their governmental conduct was "creative and generally responsible." The first legislature was the "most creative and probably the most competent," was noticeably less racist than subsequent legislatures, and proved so capable that some of their acts "endure to the present." Grenier asserts that the 1879 constitution in fact did little to alter the fundamental structure of officialdom imposed by the first constitution-builders and legislators. Especially valuable are his detailed descriptions of the offices, departments, and functions of the early government, and his ca psule histories of the various gubernatorial administrations during the first thirty years of the state.

The preceding essays focus primarily on men in the creation of California as a state. Although prevented by law and custom from exercising overt political participation, women also played a role in the evolution of state law as they fought for equal rights in an arena dominated by men. Donna C. Schuele's essay treats these developments in considerable depth and draws some surprising conclusions that impel a fresh look at female experiences in pioneer California. For example, one of the most celebrated provisions of the 1849 constitution was the one that provided defined marital property rights to women. Schuele demonstrates, however, that the reality of application of this provision was far different from what the mythology holds, and that it "actually rendered California wives worse off than their eastern sisters." She also connects California's "subsistence frontier environment" with an increase in employment for white women, and that in turn spurred the development of women's literature, the suffrage movem ent, and the development of female leaders. She shows that early lawmakers were somewhat receptive in the end to demands for equal occupational treatment, and that a more positive response to job discrimination against women arrived in the 1879 constitution.

While these first six essays all emphasize developments in state law, government, and politics, the final two essays turn to the development of local government and the continuing presence of the federal government, respectively. Edward Leo Lyman discusses how local government was initiated "in an amazingly short time." He uncovers details about local government actions undertaken for a variety of functions, such as the improvement of roads and bridges so that rudimentary transportation arteries might be initialized and the establishment of county care for the "indigent ill" as a "precursor of the later welfare system." Lyman illustrates the difficulties confronting county officials in the north (El Dorado County) and the south (San Bernardino County), as well as in San Francisco and Sacramento, as samples of the struggles counties faced to provide schools, law enforcement, fire and flood protection, and other basic services. He finds that despite manifest problems, they "rather quickly laid the institutional and infrastructural foundation for local government," citing the work of both newcomers and Mexican Americans to provide local order.

The concluding essay, by Robert J. Chandler, examines the continuing and important federal role in the state's development, determining that while routine matters such as providing harbor defenses and building lighthouses were often handled successfully, the national government "failed in any actions that required speed," as in the timely resolution of land, mineral, and water issues. Chandler shows that federal involvement was vital in certain arenas; chief among them was the creation of California's transportation system, including the railroads. His investigation of the federal patronage system in California, especially in the Post Office and Treasury Department, is also revealing, as is his extensive discussion of military affairs during the Civil War and federal political effects on the state. As a fascinating bonus, interesting tidbits jump out of Chandler's broad research, such as the continuing efforts of the California legislature to receive recompense as promised by the federal government for the Ci vil War military services provided by the state, or the "ingenious" drug smuggling methods employed 140 years ago that are not unlike those the federal and state governments fight against today.

This exploration of the political and governmental side of the gold-rush years and California's constitutional era collectively gives the reader an intensive new look at the formation and growth of the early state and suggests that there may be a great deal more depth to California's initial civic experiences than has been heretofore assumed. Moreover, much of the information offered implies that the mythology that has grown up around the politics and government of the state's first thirty years may be faulty or, at best, imprecise.

The essays in this volume range across numerous seldom-treated topics, with substantial, if sometimes merely tantalizing, results. Nineteenth-century constitution-building efforts and the statutes that soon followed were deliberative and complex, and they left strong residual effects. Frontier law and order, and the government's role in it, was evidently more measured and "orderly" than previously understood. The initial courts and justice system laid some important and thoughtful groundwork for the future, as did the struggles and successes of state, local, and federal jurisdictions and their unheralded officials, who brought considerable prior experience and organizational skill to bear in a unique frontier environment. At the same time, economic and governmental interplay favored certain groups, and flagrant racial discrimination flourished, materially aided and abetted by political actions. Both minorities and women fought to secure and maintain basic rights in the face of significant, intended instituti onal and legal barriers.

The story of political and governmental California in the state's constitutional and statehood period is connected to national issues, and to the ideals and misdeeds that accompanied them, with adaptation to the unparalleled and unprecedented governance situation that California presented. A recently conquered province with a diverse population, expanding exponentially in the midst of the phenomenal Gold Rush, had to quickly find a way to govern itself, and then almost as rapidly to modify its governing practices to reflect ever-changing economic and demographic imperatives. From the ambiguous mists of early state realities--adventure, profit, failure, boldness, tradition, creativity, compassion, and prejudice--the shape and substance of modern California emerged and remains today.

NOTES

(1.) J. S. Holliday, Rush for Riches (Berkeley: Oakland Museum of California and University of California Press, 1999), 201; Andrew F. Rolle, California: A History (New York: Thomas Y. Crowell, 1969), 330.

(2.) Edward Staniford, The Pattern of California History (San Francisco: Canfield Press, 1975), 161; Judson A. Grenier, Golden Odyssey: John Stroud Houston, California's First Controller and the Origins of State Government (Los Angeles: Historical Society of Southern California, 1999), 14.

(3.) William E. Leuchtenburg, "The Pertinence of Political History: Reflections on the Significance of the State in America," Journal of American History 73 (December 1986): 588-89. The existing literature on California's early political and governmental history is sparse and, for the most part, dated. The best work on California's first constitutional convention, for example, remains Woodrow James Hansen, The Search for Authority in California (Oakland: Biobooks, 196o). Textbooks typically point to sources such as the following for further reading: Cardinal Goodwin, The Establishment of State Government in California, 1846-1850 (New York, 1914); Joseph Ellison, California and the Nation, 1850-1969 (Berkeley: University of California Press, 1927); James A. B. Scherer, Thirty-First Star (New York: G. P. Putnam's Sons, 1942); William Henry Ellison, A Serf-Governing Dominion: California, 1849-1860 (Berkeley: University of California Press, 1950); and Theodore Grivas, Military Governments in California, 1846-1850 (Glendale, Calif.: The Arthur H. Clark Company, 1963). Little scholarship has appeared since the 1960s. Notable exceptions include Grenier, Golden Odyssey; David Alan Johnson, Founding the Far West: California, Oregon, and Nevada, 1840-1890 (Berkeley: University of California Press, 1992); Shelley Bookspan, A Germ of Goodness: The California State Prison System, 1851-1944 (Lincoln: University of Nebraska Press, 1991); and the material in this volume.

(4.) J. Ross Browne, Report of the Debates in the Convention of California, on the Formation of the State Constitution, in September and October, 1849 (Washington, D.C.: J. T. Towers, 1850), 3.

(5.) Frank Marryat, Mountains and Molehills (New York: Harper and Brothers, 1855), 203-205.

(6.) David Lavender, California: Land of New Beginnings (Lincoln: University of Nebraska Press, 1972), 199.

(7.) Johnson, Founding the Far West, 27-28.

(8.) Martin Ridge, "Disorder, Crime, and Punishment in the California Gold Rush," Montana: The Magazine of Western History 49 (Autumn 1999): 27.

(9.) Johnson, Founding the Far West, 27.

(10.) Staniford, Pattern of California History, 155.

(11.) Edward H. Howes, "The World's Gateway to the Gold, 1848-1860s," in Sacramento: Gold Rush Legacy, Metropolitan Destiny, ed. John F. Burns (Carlsbad, Calif.: Heritage Media, 1999), 30.

(12.) Browne, Debates, 3.

(13.) Ibid., 18.

(14.) Ibid., 258-59.

(15.) Ibid., 137-200 (the quotations are on pp. 178 and 182).

(16.) William J. Palmer and Paul P. Selvin, The Development of Law in California (St. Paul, Minn.: West Publishing Co., 1983), 24.

(17.) Charles P. Sohner and Mona Field, California Government and Practices Today (New York: HarperCollins, 13.

(18.) Bernard L. Hyink, Seyom Brown, and Ernest W. Thacker, Politics and Government in California (New York: Thomas Y Crowell, 1967), 21.

(19.) John W. Caughey, California: A Remarkable State's Life History (Englewood Cliffs, N.J.: Prentice-Hall, 1970), 216; Ellison, A Self-Governing Dominion, 27; Grenier, Golden Odyssey.

(20.) Neal R. Peirce, The Pacific States of America (New York: W.W. Norton, 1972), 26.

(21.) Gerald D. Nash, State Government and Economic Development: A History of Administrative Policies in California, 1849-1933 (Berkeley: University of California Press, 1964), 26.

(22.) Kevin Starr, Americans and the California Dream, 1850-1915 (New York and Oxford: Oxford University Press, 1973), 132.

(23.) Robert T. Monagan, The Disappearance of Representative Government (Grass Valley, Calif.: Comstock Bonanza Press, 1990).

(24.) The most useful monograph on the 1879 constitutional convention remains Carl Brent Swisher, Motivation and Political Technique in the California Constitutional Convention, 1878-79 (New York: Da Capo Press, 1969). Quoted here are Andrew F. Rolle and John S. Gaines, The Golden State: A History of California (Arlington Heights, Ill.: Harlan Davidson, 1979), 150; Richard B. Rice, William A. Bullough, and Richard J. Orsi, The Elusive Eden: A New History of California (New York: Alfred A. Knopf, 1988), 280; Johnson, Founding the Far West, 255.

(25.) Browne, Debates, 18.

JOHN F. BURNS is history and social science consultant for the California Department of Education. For sixteen years he served as the State Archivist of California and was responsible for planning and building the new State Archives facility; Golden State Museum, and Constitution Wall in downtown Sacramento, and for creating the State Government Oral History Program. He has been adjunct professor in the Public History Program at California State University, Sacramento, and in the Library Science Program at San Jose State University He has also been president of the National Association of Government Archives and Records Administrators, member of numerous local, state and national boards and commissions, and recipient of several awards, including the California Military History Medal. Recent publications include the history essay in Courthouses of California (Heyday Books and California Historical Society; 2001) and several articles as well as editing Sacramento: Gold Rush Legacy, Metropolitan Destiny (Heritag e Media, 1999) and the California History--Social Science Standards issue of Social Studies Review (Spring/Summer 1999).