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San Francisco and its Provisional Government.

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“I therefore desire you call a town meeting for the election of six persons, who, when elected, shall constitute the town council, and who, in conjunction with the alcalde, shali constitute the town authorities until the end of the year 1848.

"All the municipal laws and regulations will be formed by the council, but executed by the alcalde in his judicial capacity, as at present. The first alcalde will preside at the meetings of the council, but shall have no vote, except in cases where the votes are equally divided.

"The town council (not less than four of whom shall constitute a quorum for the transaction of business) to appoint all the necessary town officers, such as treasurer, constables, watchmen, &c., and to determine their pay, fees, &c. The town treasurer, to enter into ample and sufficient bonds, conditioned for the faithful performance of his duties, the bonds to be fully executed to the satisfaction of the town council before the treasurer enters upon his duties.

"The second alcalde shall, in case of the absence of the first alcalde, take his place, and preside at the council, and then perform all the proper functions of the first alcalde. No soldier, sailor, or marine, nor any person who is not a 'bona fide' resident of the town, shall be allowed to vote for a member of the town council."

"AUGUST 13.

"I had written the above, when a press of business came upon me which caused me to lay it aside for the time. I was then unexpectedly called to the south, which has caused a delay in this matter. Since my return, I see by the Californian of the 31st July, that you have organized a council, &c., &c. Now, the council can either stand as it is, or an election be held, as may be deemed advisable. Whatever may be most agreeable to the good people of your town, cannot but be satisfactory to me.

"I am, respectfully, your obedient servant,

"Mr. GEORGE HYDE,

"R. B. MASON,
"Colonel 1st Dragoons, Governor of California.

"First Alcalde, San Francisco, California."

The history of this resoluorder for granting lots in

This council is remarkable for having passed an ordinance, dispensing with the conditions annexed to all grants of town lots. tion is as follows: General Kearney having, in his San Francisco, prescribed the conditions of building and fencing lots within a year, a large number of valuable lots had been granted to officers of the army on these conditions; but before the designated year had expired, Colonel Mason wished to detail some of the officers at San Francisco on distant duty, against which they remonstrated, as it would involve a forfeiture of their lots. To avoid this difficulty (at the suggestion of Colonel Mason, as it is said), this ordinance was passed. During the administration of Alcalde Leavenworth the inhabitants, for reasons alleged in a foregoing extract, organized an independent government, under the name of "The Provisional Government of the District of San Francisco," which consisted of a Legislative Assembly of fifteen members, three Justices of the Peace, &c. (California Message and Correspondence, 1850, p. 731.) The following is an extract from the Journal of this body: "The legislative assembly of the district of San Francisco met the first time "MONDAY EVENING, March 5, 1849. at the Public Institute. Present: Messrs. Creighton, Ellis, Grayson, Green, VOL. I.

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San Francisco and its Provisional Government.

Harrison, Hubbard, Hyde, Lemon, Lippitt, Montgomery, Parker, Roach, Smith, Swasey, and Wright.

"The oath of office was administered to the aforesaid members elect by his honor Judge II. R. Per Lee, which was in the following words: 'I do solemnly swear that I will support the constitution of the United States and government of this district, and that I will faithfully discharge the duties of office of according to the best of my ability.'

"Mr. Hyde was then appointed chairman pro tempore.

"The members then proceeded to elect, by ballot, their officers, Messrs. Roach and Spith having been appointed tellers, who, after counting the votes, declared Francis J. Lippitt duly elected as speaker to the house, and J. Howard Ackermann clerk. Accordingly, Mr. Lippiti took the chair.

"On motion, a committee of three were appointed to draw up rules of proceeding, to report at a special meeting to be held on Tuesday evening, at 7 o'clock. Messrs. Harrison, Hyde, and Roach, committee.

"Mr. J. Cade was appointed sergeant-at-arms, and Mr. E. Gilbert printer for

the house.

"On motion, a special committee of three were appointed to act in connexion with the judges of the district, to report a code of laws as soon as practicable. "On motion, Mr. Lippitt was added to the committee. Messrs. Hyde, Harrison, and Creighton committee.

"The following resolution was presented by Mr. Hyde, which, after some discussion, was carried unanimously:

“Resolved, That Mr. Frank Ward be appointed the treasurer of the district of San Francisco, to act temporarily until properly superseded by law, and who shall be empowered to receive all bonds, mortgages, notes, and money or moneys now in the hands of any officers existing under the late authority, and report the amount to this house.

"Moved by Mr. Smith, and seconded, that a suitable place be provided in which the magistrates elect may hold a court.

"On motion, a committee of three were appointed to confer with the judges on the subject. Messrs Parker, Wright, and Ellis, committee.

"On motion, the meeting adjourned until Friday evening, 7 o'clock.

"True copy from the minutes:

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"FRANCIS J. LIPPITT, Speaker.

“J. HOWARD ACKERMAN, Clerk.”

His honor Myron Norton, after he had qualified as Justice of the Peace issued an order for that purpose and the Records of the town were forcibly taken from the possession of "Alcalde " Leavenworth. And for some time the Provisional Government was a government de facto. But General Riley having disapproved of the proceedings and threatened to remove the custom house to Benicia and to close the port of San Francisco, a compromise was entered into, by which the Provisional Government disbanded, and “Alcalde” Leavenworth was restored to power, and he continued to be the only Government at San Francisco until he was superseded in August 1849, by the new government elected under the proclamation of General Riley of 3d day of June of the same year. This new government consisted of Horace Hawes, Esq., Prefect of the newly created District of San Francisco, with A. P. Brismade for Sub-Prefect, of the Town of San Francisco, (to which name Yerba Buena had been changed by a vote of the people two years before,) and Guerrero for Sub-Prefect at

San Francisco and its Provisional Government.

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Dolores or the Mission House. A Town Council or Ayuntamiento was also elected, consisting of John W. Geary, First Alcalde, Frank Turk, Second Alcalde; with a council consisting of Rodman M. Price, and eleven others, as Councillors.

Soon after the installation of the above Government, John W. Geary was appointed Judge of First Instance of the District of San Francisco, but on recommendation of the Superior Tribunal of California, as provided by Mexican law, this appointment was modified by Gen. Riley, and Col. Geary's commission was limited to Judge in criminal cases only, and Wm. B. Almond, on the recommendation of the Superior Tribunal, was appointed Judge of First Instance in civil cases only. Some months later, G. Q. Colton was appointed Justice of the Peace at San Francisco, and Mr. Tracy at the Mission, by the Prefect. These Justices of the Peace created a good deal of excitement, by claiming the right to make grants of town lots according to the custom of Spanish Justices of the Peace, and by virtue of the authorization of Gen. Kearney. And on account of the wholesale and reckless manner in which they conducted this lucrative business, they brought lot-granting into disre pute, and also interfered with the lot-granting business of an "ex-Magistrate and Justice." Alcalde Geary made no grants of land under General Kearney's order, but the Town Council over which he presided, and which had assumed the name of Ayuntamiento since the publication of Halleck's Digest, made numerous sales of lots at public auction.

The remainder of the history of San Francisco is familiar to most of its present residents. Alcalde Geary, who still held the office of Judge of First Instance in criminal cases, was re-elected, with a Council consisting of Saml. Brannan, M. Crooks, James Haggard, James Graham, Frank Grey, Talbot H. Green, H. C. Murray, A. J. Ellis, Wm. Stewart, Frank Tilford, A. Van Nostrand, and B. R. Buckalew, as Councillors, on the 1st day of January, 1850, and he held his office until April following when he was elected Mayor, and Frank Tilford Recorder, under the Charter of the City of San Francisco, granted by the Legislature. The common council last mentioned will long be famous in the annals of San Francisco. Their Charter gave them full license to run in debt, and so effectually did they avail themselves of this privilege, that before the close of their political year they had accumulated a debt of nearly two millions of dollars, besides expending about $250,000 of taxes.

As the mass of the population of San Francisco had arrived in the country after the Territorial Government and the Provisional Government had both been superseded, the foregoing sketch seemed necessary to explain the origin of the application of a Mexican corporate title to a town that had formally surrendered its corporate rights, in due form, thirteen years before; corporate rights which it had enjoyed under an old Spanish "General Corporation law," which law itself had been abolished two years before the surrender. July, 1852. R. A. WILSON.

REPORT ON CIVIL AND COMMON LAW.

IN SENATE, February 27, 1850.

THE Committee on the Judiciary, to whom was referred the petition of certain members of the bar of San Francisco, beg leave

Respectfully to Report,

That they have had the same under consideration, and have given the subject, of which it treats, that serious attention which its magnitude seems to demand. The petition, praying, as it does, that the Legislature will retain, in its substantial elements, the system of the Civil Law, distinctly presents the alternative of the adoption of the Common, or of the Civil Law, as the basis of the present and future Jurisprudence of this State. A choice between these two different, and in many respects conflicting systems, devolves upon this Legislature; and, we think, we do not over-estimate the importance of the subject, in expressing our conviction, that this choice is the most grave and serious duty which the present Legislature will be called upon to perform. It is, in truth, nothing less than laying the foundation of a system of Laws, which, if adapted to the wants and wishes of the People, will, in all probability, endure through generations to come,- which will control the business transactions of a great community,-which will direct and guide millions of human beings in their personal relations,-protect them in the enjoyment of liberty and property,-guard them through life, and dispose of their estates after death. Actuated by these considerations, your Committee have felt it their duty to submit to the Senate a more full and detailed Report upon the matter referred to them, than they should otherwise have felt themselves justified in doing.

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The petition sets out with a description of the gentlemen, whose signatures are affixed to it, as "practising members of the Bar of San Francisco." Your Committee is of the opinion that the judgment of intelligent members of the legal profession upon this subject, is entitled to great weight, and should not be lightly disregarded. We are aware, that it is a somewhat popular doctrine, that, in matters of Law and Legislation, the crude notions of any man, who is not a lawyer, are entitled to higher consideration than the reflection and ripe experience of the most profound jurist. According to this creed that magic power, "good common sense," as it is termed, inspires every man who may

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Report on Civil and Common Law.

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happen to be possessed of it, instinctively, and without investigation or study, with a thorough knowledge of an abstruse and difficult science. In short, reduced to its simplest terms, and traced through its legitimate consequences, the proposition is, that the man who is entirely ignorant of a multifarious subject, is more competent to form a just and correct judgment concerning it, than the man who has made it the business of his life to comprehend it in theory and understand it in its minute and practical details. From all such doctrine we respectfully dissent. We hold to the opinion, unpopular though it may be, that a person is best qualified to judge of the matter upon which he has bestowed most examination, and to which he has devoted most study and reflection. We hold that a carpenter may reasonably be expected to build a better house than a tailor, and a tailor stitch a coat more neatly than a house joiner; that a machinist may construct a steam-engine, arrange and adapt its complicated parts, and set them in harmonious motion, with more facility and greater success, than a shoemaker. We even think that an experienced surgeon may amputate an arm or a leg, with as little pain to the patient, and with as much safety to his life, as a wood sawyer; and that a well read and skilful physician may be able to counteract and remove the various "ills that flesh is heir to," as quickly and adroitly as a farrier, or even a quack doctor. And, for the same reasons, we do honestly maintain that a member of the Bar,-who has been educated to the profession which he practises,-who has made law his study and engrossing occupation,-who has bestowed upon it the "viginti annorum lucubrationes," made it the subject of his reflections by day, and of his meditations by night,-traced it through all its ramifications and mysteries, gloried in its excellence, and regretted its defects, is quite as competent to form a sound and correct judgment in respect to the wisdom or impropriety of its particular provisions, as well as the beauty or deformity of the whole, as if he had been educated behind the counter, or brought up at the anvil or the plough.

We think, therefore, that the enlightened opinions of the legal profession, when fairly expressed, should go far towards inducing conviction of the policy, or impolicy, of establishing, abrogating, or modifying, a system of laws; and if the petition under consideration be in unison with the settled convictions and real wishes of a large proportion of the practising members of the Bar in this State, we should feel bound to accord to it a very respectful deference.

For the purpose, then, of determining to what extent your Committee ought to consider the memorial as an expression of the sentiments of the Bar, we have taken some pains to ascertain the reasons why this petition happens to be laid before the Senate at the present time. From inquiries made by us, we have learned that, a short time since, a meeting of the members of the Bar of San Francisco was held, for the purpose of taking into consideration the subject of the adoption of the Common, or of the Civil Law, as the substratum of the legal system of the State. We have further learned, that such meeting

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