The long reach of the California Constitutional Convention

In January 1847, the United States conquered the territory that was once the Mexican territory of Alta California. In the aftermath of the conquest, the U.S. Army provided a government for the captured territory. That government kept the peace, communicated with Washington, D.C., and did little else. In the meantime, James Marshall made his discovery in the Sierra foothills at Coloma, and the world, primarily Yankee gold-seekers, rushed in.

By the fall of 1849 the population had mushroomed to the point that it exceeded the typical size of a territory seeking admission to the Union as a new state. The Army's commander decided that it was time to bring California into the Union. So 48 delegates met, at the Army's call, in Colton Hall in Monterey, in the fall of 1849.

The delegates included six who spoke only Spanish, six from various European countries, and 36 American Argonauts. They hammered out a document that was to be sent to the United States Congress with the intention that it become the founding document and basic law of the new state of California.

With few exceptions, they were writing on a blank slate. The Treaty of Guadalupe Hidalgo, ratified in 1848, controlled the rights of the former citizens of Mexico, and property rights under Mexican land grants. That was it.

On that blank slate they decided the issues that built the state of California, to a surprising degree, as it still exists today. These were some of those issues.

Slave or Free?

If admitted, California would be the 31st state. In 1849, the U.S. Senate had 30 members from the 15 slave states, and an equal number from free states. "Free" meant, at least theoretically, that human beings could not be held therein as chattel property. This delicate balance had been maintained for decades by a policy of admitting new states in tandem, one free and one slave.

Seen from today, in the knowledge that it took a civil war, and the deaths of perhaps a million people, to finally settle the "free" versus "slave" issue, this would seem to have been the toughest nut that the delegates would have to crack. In fact, it was one of the easiest. Almost all of the men knew when they arrived in Monterey that a slavery Constitution would never get past the Congress in Washington, as required by the U. S. Constitution, in Article IV, Section 3.

The Senate was split down the middle, but, due to demographic changes in recent decades, anti-slavery members held a firm majority in the House of Representatives, which was reapportioned by population every 10 years.

So everybody, even arch-Southerners like William Gwin, knew this. Gwin was a son of the South, a medical doctor, and a member of the bar. He had been active in pro-slavery circles for years. But he came to Monterey prepared, with a draft anti-slavery clause in his bag.

In the final version as reflected in the 1849 Constitution, it read as follows: "Neither slavery, nor involuntary servitude, unless for punishment of crimes, shall be tolerated in this State."

This language allowed the proposed Constitution to make it past the Northern faction in the House, as intended, but it also caused statehood for California to be delayed by almost a year because of the strength of the Southern faction in the Senate.

State or Territory?

Whether California would become a state or a territory was an issue that was at most only ancillary to the slavery issue emerged during the Convention. This was raised by delegates from the cow counties -- the southern portion of the former Alta California, including Los Angeles, Santa Barbara and San Diego. These men, most of whom were Spanish-speaking former "Californios" (Mexican citizens born in California), were highly aware that the bulk of the Convention delegates were Americans who had only recently pushed into the mining districts of the Mother Lode, places like Placerville, Sacramento and Marysville. In those districts land ownership did not reflect wealth -- that resided in mining claims, which did not require fee ownership of the land in which the claim resided. Thus, property taxes were difficult to assess and collect. But it was easy to do so on a rancho. The cattle counties men wanted California to enter the Union as a territory, which would have greatly reduced their property tax burden. As an alternative, they wanted to have their region be deemed a territory, with the northern districts free to enter the US as a state. But in both instances they were solidly outvoted. (N.B.: This fact, that the tax burden was lighter in the territories than in states, depended on a large and varying set of enactments, but in the 19th century, it was reliably so.)

Ten years later things would be different. A bill splitting the state just above San Luis Obispo and creating the Territory of Colorado in the southern portion made its way to Washington, where it was overlooked by the Congress, which was focused on the coming civil war.

Property Rights of Married Women

Like slavery, at first the property rights of married women seemed to be an area where agreement would turn out to be difficult. By the time of the Monterey Convention, New York and Pennsylvania had enacted statutes protecting certain types of property, acquired in certain ways. Three Midwest states and Texas had passed much more limited statutes. It is clear that the delegates knew that in most states, the property of a married woman, however acquired, was held by the husband, and not, repeat not, by the wife.

In contrast to those states further east, California was oversupplied with men of marriageable age, and undersupplied with eligible mates. So the delegates took the minority stance, attempting to entice some of those propertied women to move to California. The law became what it remains to this day.

Boundary of the State

The boundaries of state were the issue that should have been, on the surface, the easiest to resolve. Yet it took more of the delegates' time than any other.

And it mattered if you looked in only one direction. To the north was the Oregon Territory. No give possible there. South, Mexico. West, the blue Pacific. To the east, however, nothing constrained the Convention, short of (perhaps) the Great Salt Lake.

Of course, to create a state out of all of the conquered Mexican territory would have created an immense geographic entity impossible to govern. But look at Texas, said some. It was governable, after a fashion.

A modern cynic would say that they followed the money. After they talked about if for a long time, the delegates finally decided to run the border straight south from the Oregon border into Lake Tahoe, then taking an oblique right turn in the Lake, thereafter proceeding south until the line reached the Colorado River.

This design excluded the portion of the Great Basin that became the State if Nevada, admitted to the U.S. during the Civil War. But it included the entire Mother Lode, as far as was known. The Mother Lode, located in the Sierra Nevada foothills, was one of the greatest sources of wealth in the known world at that time.

Of course, less than ten years after the 1849 Constitution was signed, the Comstock Lode was discovered just a about twenty air miles further east. Millions in gold and silver ores were later extracted from the mountains around Virginia City, Nevada.

That could have been Virginia City, California.

You never know.