DESTINY AND THE LAW: THE CALIFORNIA LAND ACT OF 1850 by Maximilian Joseph Rieger

A Dissertation Submitted to the Faculty of Purdue University In Partial Fulfillment of the Requirements for the degree of

Doctor of Philosophy

Department of History West Lafayette, Indiana May 2019 2

THE PURDUE UNIVERSITY GRADUATE SCHOOL STATEMENT OF COMMITTEE APPROVAL

Dr. Yvonne Pitts, Chair Department of History Dr. John Larson Department of History Dr. David Atkinson Department of History Dr. Trenton Cole Jones Department of History

Approved by: Dr. David Atkinson Head of the Graduate Program

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To My Parents, Karen and Konrad

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ACKNOWLEDGMENTS

I would like to thank my advisor Professor Yvonne Pitts for her infinite patience, my committee for their support and guidance, the Purdue Department of History for giving me a home, and my good friends Charles Peterson, Mike Noyes, and Shelley Whelan-Noyes for their support.

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TABLE OF CONTENTS

ABSTRACT ...... 6 INTRODUCTION ...... 7 THE LONG BIRTH OF A NEW KIND OF STATE ...... 42 CREATING CALIFORNIA ...... 71 THE GENISIS OF THE CALIFORNIA LAND ACT ...... 103 EQUITY AND DESTINY; THE MOTIVES THAT SHAPED THE CLA ..... 144 THE COMMISSION AND IT’S WORK ...... 193 CONCLUSION: THE LEGACY OF THE CALIFORNIA LAND ACT ...... 216 BIBLIOGRAPHY ...... 231

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ABSTRACT

Author: Rieger, Maximilian. PhD Institution: Purdue University Degree Received: May 2019 Title: Destiny and the Law: The California Land Act Committee Chair: Yvonne Pitts

The California Land Act sought to remake landholding in early California. Though bound by promises to uphold existing ownership in the treaty of Guadeloupe Hidalgo, the United States attempted to use the law to fundamentally change who held land in California and the exploitation of its resources. Analysis of archival materials demonstrates that the California Land Act intended to transform California from a ranching-based economy dominated by large landholders of

Spanish descent into an agrarian economy dependent on small scale farming modeled on the traditional land use of the eastern United States. This intrinsic policy characterized the legislative formation of the act, and years later influenced North American settlement policies of formerly

French and Imperial Mexican territories. As such, this study focuses on a little understood agent of change: the administrative law. A careful examination of the crafting and implementation of the

California Land Act reveals that land law legislation and its extra-judicial commission, alongside other more traditional markers of American occupation, occupied a prominent place in the continued colonization California.

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INTRODUCTION

1846 was a watershed year in American and California history. In the midst of fulfilling its self-proclaimed “manifest destiny” to expand from ocean to ocean, the United States made war upon Mexico. The Treaty of Guadalupe Hidalgo brought an end to this conflict, resulting in the

United States’ seizure of several Mexican northern territories, including New Mexico, and the costal territory of Alta California.1 The treaty demanded of the conquering Americans to respect the individual property claims of the Californios, the original Hispanic settlers of California, this being a necessary step for the desired integration of these former Mexican citizens into the United

States.2 However, this process was suddenly, unexpectedly, and profoundly obstructed by the discovery of gold in 1849 and the rapid explosion of immigration following statehood. In this context the land claims of these Californios, and the way they would be absorbed into the

American legal system, came into question. During this process the United States would attempt to transform California from a ranching-based economy dominated by large landholders descended from the original Spanish settlers of the state into an agrarian economy dependent on small scale farmers modeled on the land use traditions of the eastern United States. This process explicitly sought to make California more “American.”3

In an attempt to remedy this situation, the United States Congress passed the Act to Settle the Private Land Claims in the State of California, more commonly then and now referred to as

1 For a broad depth study of the Treaty of Guadeloupe Hidalgo and its Legacy see: Richard Griswold del Castillo, The Treaty of Guadeloupe Hidalgo; A Legacy of Conflict (Norman: Univ. Oklahoma Press, 1990). This work does a good job of demonstrating the political and diplomatic issues that occurred during the treaty’s formulation, as well as its legacy for both the United States and Mexico. 2 For the most well-regarded social history of the Californios see Leonard Pitt, The Decline of the Californios; A Social History of the Spanish Speaking Californians, 1846-1890, (Berkeley: University of California Press, 1988) (2nd Edition). This work will be discussed in some detail later in this study. 3 In this case American means integration into the broader American system of landholding, and the broader legal and political community of the United States. 8 the California Land Act. It established the California Land Commission, “for the purpose of ascertaining and settling Private land claims in the State of California.”4 The commission would consist of three commissioners, appointed by the President, and confirmed by the Senate. In addition, the act called for a secretary, “skilled in the Spanish and English languages. . .to act as an interpreter, and to keep a record of the proceedings.”5 Finally the commission included an agent of the United States government, who would represent the nation’s interest, be “learned in the law” and bilingual as well.6 This focus on linguistic skills either anticipated with remarkable sensitivity the difficult cultural and legal problems to be faced by the committee, or simply served as lip service to the stated requirements of Guadalupe Hidalgo. Throughout the duration, this ambivalence underscored the more than six-hundred cases adjudicated by the commission, with the majority ultimately appealed to the federal courts. This study explores the impact of the Act and its attendant commission on the new state, which in turn implicates a myriad of issues central to the overall process of American expansion in the mid-nineteenth century. Demonstrably, through a redefinition of real property rights as equities, and an extensive system of administrative and appellate scrutiny, the United States government sought to fundamentally change land use in

California, using a fungible definition of property rights as a novel tool of colonization.

This dissertation provides for a more comprehensive understanding of the California Land

Act through the lenses of legislative intent, and practical application. Through a careful study of the debates surrounding the legislation, and the work of the California Land Act’s implementation committee, two facts are apparent. First, the California Land Act was an attempt to profoundly remake landholding in California, with an aim towards putting more land in the hands of American

4 31st Congress, Sess. II, Ch. 41 5 Ibid. 6 Ibid. 9 settlers streaming in from the east. In this process redefining property rights in the golden state.

Secondarily, the California Land Act failed – in spite of the best litigious efforts of the Federal government – due to the tenacity of the Californios in defending their claims, and the simple fact that those claims were inherently legitimate. Following a lengthy appeals process, the courts upheld the vast majority of all land grants, most of which would be disposed of through subsequent sale by their original owners. All told, the United States government used the California Land Act to redefine vested property rights of those protected by treaty in such a way as to reshape the basic economy of California and substantially change the use of land in the state.

The California Land Act was written entirely within the language, philosophy and political attitudes of American political and legal conventions. Its authors viewed themselves as spokesmen for The United States as a nation of laws, a nation that placed an almost religious significance onto the legal rights given to citizens. As stated in countless legal preambles, they asserted that new laws passed by the nation exemplified the goals and desires of the national government united in a common goal. In the case of the California Land Act, the United States Congress enacted a law that serves as a uniquely enlightening illustration of the antebellum project of continental expansion.7 The California Land Act demonstrates this self-perceived union of law and national intent to an almost unprecedented degree of clarity as it was the result of a wholly intentional act by the Federal government whose motives became all the more clear as the discovery of gold demanded an accelerated payout of political capital. The Mexican War itself was a planned war, one fought with the sole aim of expanding the territorial boundaries of the United States. In turn,

California entered the Union with the Missouri Compromise the goal of which was to allow the

7 This study contains an extensive bibliographical look into westward expansion and manifest destiny, but perhaps the most formative work in my mind is Anders Stephanson’s Manifest Destiny; American Expansion and the Empire of Right, (New York: Macmillan, 1996). 10 further expansion of statehood westward. As the California Land Act was designed to incorporate the existing system of property ownership in California into this broader project, it embodies the very nature of the process of westward expansion. The written Act and its commission offer a discrete view into the legal aspects of manifest destiny and the ways in which this broader project collided with resistance by well-heeled and litigious locals, like Abel Sterns and the De la Guerra family, determined to defend their lands.

Analysis of archival materials demonstrates that the intent of the California Land Act was to transform California from a ranching based economy dominated by large landholders descended from the original Spanish settlers of the state into an agrarian economy dependent on small scale farmers modeled on the land use traditions of the eastern United States. This intrinsic policy was carried out across the legislative formation of the act, through its application, and was ultimately influential on the North American settlement policy of formerly French and Imperial Mexican territories. Study of the Act highlights an important and neglected aspect of Manifest Destiny and

American expansion. Traditional scholarship on the subject views the agents of this work as the settlers themselves, who arrived from the east to claim the new lands. To the consternation of the

Californio gentry, the American military machine, always euphemistically called “the cavalry” backed these doughty pioneers when difficulty arose.8 This study seeks to add another player to this stage: the administrative law. A careful examination of the crafting and implementation of the

California Land Act reveals that land law legislation and its extra-judicial commission, alongside

8 In his book Flush Times and Fevered Dreams, Joshua Rothman (Athens: University of Georgia Press, 2012), 20. outlines a story of explosive growth in a different earlier frontier, the trans-Mississippi of the American south. He makes an important point about American ideas of the frontier when he writes, “But many sought not merely a place where they might make a better life. They sought the place where they might make the best of all possible lives. And in the nineteenth century the best place was always someplace else.” Thus, the concept of a frontier could mean many things to many people, ultimately amounting to the idea of opportunity being found someplace better than here. This these is apparent throughout this study. The dream of gold or land in California was for many just that, a dream. However, the fact that this dream was shared by so many in the aftermath of the gold strike at Sutter’s Mill meant that land ownership in the state became a matter of national legal policy, and immediate legislation. 11 other more traditional markers of American occupation, occupied a prominent place in the early colonization of California. If it is nothing else, the story of the California Land Act is the story of a group of property owners, and the conflict that arose when they came into contact with a rush of landless settlers. This conflict was further complicated by the racial and political issues that dominated California in the 1850s, and the ongoing desire to spur growth in the new state.

This study of the California Land Act and its attendant commission will consist of a historiographical discussion followed by five chapters. These chapters will examine the general historical background of the act, its drafting and implementation, and the impact it had on

California, and American expansion. They are entitled, Chapter One: The Long Birth of a New

Kind of State. This chapter examines the history of California, and the basis of its land titles.

Chapter Two: Creating California examines the creation of the state of California and the land issues that swirled around its founding. In addition, this chapter looks at the Treaty of Guadeloupe

Hidalgo, and the impact it would have on crafting land policy. Chapter Three: The Genesis of the

California Land Act looks at the legislative debates that surrounded the formation of the act.

Particular attention is paid to the impact that those debates, and the ideals of men like Senator

Gwin and his opponent Senator Thomas Hart Benton had on land policy in the state. Chapter Four:

Equity and Destiny; The Motives that Shaped the California Land Act examines the motives and historical trends that fueled the formation of the California Land Act. This chapter also shows how changing ideas about property and land use fueled the debate over the states’ land. In Chapter Five:

The Commission and its Work, the impact and process of the Land Commission is discussed through the use of specific case studies. In addition, we examine the lengthy appeals process and the impact these proceedings had on the Californios and the Ranchos themselves. These chapters 12 will be followed by concluding remarks about the land act and its place in California and American history.

Historiographical Debates

This study begins by considering three primary areas of scholarship of westward expansion in the nineteenth century: direct discussions of the California Land Act, broader studies of Manifest

Destiny, and analysis of the changes and challenges that faced American law in the nineteenth century.

The literature on the California Land Act itself begins with Hubert Bancroft’s broad and influential study of the history of California written barely a generation after the events it described.

Over time two major schools of thought branched from his treatment of the nature of the Act and its attendant Commission.9 The first, following Bancroft’s model, views the commission as a tool to steal land from Mexican Californios. This scholarship largely points to the collapse of the fortunes of Californio families, and the fact that few retained their economic status. Perhaps the most notable example of this is Leonard Pitt’s Decline of the Californios. Pitt, holds that the act was specifically created to extend preference to Anglo Settlers who were streaming into California, and that Californio claimants were mystified by the commission and poorly represented at the bar.10 Pitt insightfully examines the squatter pressure that faced the Californios, but as his study preferred the broad strokes of cultural transitions, he avoided more granular consideration of the ways that the Californios interacted with the commission, and the motives inherent in its day to

9 Hubert Howe Bancroft, The History of California Volume VI 1848-1859, (San Francisco, The History Company, 1888), accessed via https://archive.org/details/worksofhuberthow23bancrich/page/n5 10 Pitt, 83-100. For more on this view of the land act see: Augustin Resendez and Robin Santos Doak, California 1542- 1850., (New York: National Geographic Society, 2006), Hubert Bancroft, History of California, (San Francisco: The History Company, 1890). 13 day proceedings. Pitt further sought to focus on cultural change rather than the systemic changes impacting the Californios during the period, beyond the initial political pressure caused by the gold strike.

Significantly, public perception and historical generalizations have long been the basis of understanding California during this period, but that perception often ignores the actual situation created by the Act, and the ways that individuals dealt with it. The imminent historian of California,

Kevin Starr, noted in his much larger study of California history that while most of the cases brought before the commission were upheld, it came at a great cost to the claimants. He argued that many participants were forced to sell their land to cover the attorney’s fees, creating the perception that the commission was actively taking land from Hispanic citizens and giving it to white settlers.11 While Starr usefully speaks to public understanding, he chose not to delve into the specific workings of the commission, nor does he link the actions of the commission to broader trends in American law and politics.

Linda Heidenreich, in "This Land was Mexican Once" Stories of Resistance in Northern

California, echoes Starr's argument about the perception of the California Land Act.12 Heidenreich persuasively asserts that the net effect of the law was to classify all land not covered by the claims as free, and thus make it open to Anglo settlers. Focusing on the legislative history of the act, she quotes Senator Thomas Hart Benton’s explicit claims that the intent was to disenfranchise

Latinos.13 For this was indeed one of Benton’s arguments. It is not a complete picture of the act or its creation. David Vaught seeks to add a more complete and nuanced account of the act and its creation by revealing how the relative skill of the advocate might counteract what might be

11 Kevin Starr, Americans and The California Dream, 1850-1915, (London: Oxford, 1973). 12 Linda Heidenreich, “This Land Was Mexican Once” Stories of Resistance in Northern California, (Austin: University of Texas Press, 2007). 13 Ibid, 89. 14 otherwise viewed as inevitable in his, After the Gold Rush: Tarnished dreams in the Sacramento

Valley14. His discussion of the commission highlights the ability of a good lawyer to present a better case. In addition, he noted that many Mexican claimants, unfamiliar with American law, struggled to conform their cases to the requirements of the commission. Yet, while Heidenreich and Vaught decidedly show the challenge faced by the Californios may have been daunting, the record shows that the vast majority of Californios won their cases.

The second view to branch out from post-Bancroft histories of California is typified by

Paul Gates and David Hornbeck. In his 1971 article entitled, “The California Land Act of 1851,”

Gates concluded that the act was a statesmanlike measure that ultimately succumbed to partisan bickering in Washington.15 In 1979 David Hornbeck addressed the subject of the California Land

Commission in his article, “The Patenting of California’s Private Land Claims, 1851-1885.”16

Hornbeck, a geographer by trade, was primarily concerned with the technical aspects of integrating land into the broader system of landholding, such as the recording, legal description, and establishment of a chain of title. He argued that while the process may