Instance were appointed for the District; Ibid. 797, 832; and a Superior Tribunal of Justice appointed on the Mexico-Californian basis. Ibid. 807, 808, 820, 821, 827. Everything proceeded as if the civil institutions of California had not lapsed, but still existed complete in form and vigor. A. D. 1847. MARCH. GENERAL KEARNY, MILITARY GOVERNOR OF CALIFORNIA, RECOGNIZES THE CORPORATE TOWN OF SAN FRANCISCO, AND GRANTS IT BEACH AND WATER LOTS. § 127. California had not been a year in the possession of the Americans, when General Kearny, the Military Governor of the Department, on the tenth day of March, A. D. 1847, made a grant to the Town of San Francisco of all the Beach and Water Lots lying on the east front of the town, between the points known as the "Rincon" and "Fort Montgomery," being the "Rincon Point" and a Point opposite the dotted line running east from the Presidio, as both are indicated on the accompanying map. Those who came to San Francisco as late as the Fall of 1849 will remember an open battery on a high terrace cut down in the face of the cliff at the latter point, which gave its name to "Battery Street" whose lines passed through it. "Beach and Water Lots," -lands overflowed by the ordinary tides-belong to the Sovereign of a country. Pollard v. Hagan, 3 Howard, U. S. Rep. Formerly these lots in question belonged to Mexico; when they were conquered from Mexico, they belonged to the United States; when California was erected into a Sovereign State they belonged to her as appurtenant to her sovereignty, and she granted them to the City of San Francisco. California Statutes of 1851, page 307, Chap. 41. But on March 10th, 1847, these Beach and Water Lots in question undoubtedly belonged to the United States, and General Kearny, being the Governor of California, and either having the right or supposing that he had the right to grant them, did assume to grant them to the "Town of San Francisco." See the grant, ADDENDA, No. LXXII, page 104. It is remarkable that Governor Kearny uses every form of description which could be conveniently employed to designate the grantees with the greatest certainty: "Do hereby grant, convey and release to the Town of San Francisco, the people or corporate authorities thereof all the right," etc., etc. Governor Kearny was no lawyer, but he may have been told that Mexican PUEBLOS were not full corporations but only quasi-corporations, as was probably true, and so may have feared that a grant to the "corporate authorities" would not have been effectual. But his own good sense doubtless suggested to him that the "people" of the town really constituted the corporation, [5 Abbott Pr. Rep. 325, ] and that if he used every significant term of description some of them must work effectually to vest the lands granted to the "Town." Be this as it may, this grant or attempted grant shows conclusively that the then Governor of California recognized a Town or Pueblo of San Francisco, and that this town was not the miserable ruined Indian hamlet at the Mission of Dolores, but was the Mexico $128. Nearly two years had elapsed since the conquest of California by the Americans, the gold mines had been discovered, the Pueblo of San Francisco had attained a population of 10,000 to 15,000, and still had no Municipal government except that of Alcaldes. There was no Town-Council, no representative or deliberative local legislature, and meanwhile no modern city ever stood in greater need of a strong and efficient local government, based directly upon public opinion, responsible to it, and controlled by it. The inhabitants of San Francisco, with that executive instinct of self-government and self-preservation which first challenged the wonder of the civilized world and afterwards won its approbation, determined that they would have a responsible and representative government. Accordingly they organized a "District Legislature" or "Legislative Assembly," an elective body, with a Speaker and Clerk, proceeding according to the AngloSaxon Legislative and Parliamentary Law, assuming to supersede all other local officers. See ADDENDA, No. LXXIII, pages 104, 105, 106, 107. That the citizens of San Francisco who thus undertook to supersede the established local authorities, acted in good faith, cannot be doubted, for on the 10th March immediately ensuing, they reported all that they had done to Major General Persifer F. Smith, Commanding the Pacific Division U. S. Army. Executive Doc. 1st Sess. 31st Cong. House of Reps. No. 17, pages 732, etc. General Smith, (now long deceased,) who had been a lawyer before he entered the Military service of the United States, instead of assenting to the projects of the Legislative Assembly, mildly suggested to them that the municipal (or civil) laws of California had not been changed by the conquest, and that the "Legislative Assembly" was a body wholly unknown to the law. Executive Doc. No. 17, 1st Sess. 31st Congress, House, pages 735, etc. See § 54 of this argument. GOVERNOR RILEY, MILITARY GOVERNOR, REPUDIATES THE "LEGISLATIVE ASSEMBLY OF SAN FRANCISCO." § 129. Governor Riley, the Military Governor of California, having higher powers than Major General Smith, who only remonstrated against the creation of the "District Legislature of San Francisco" as stated in the next preceding § 128 of this argument, and probably being fully advised on the points of law involved in the discussion, did not hesitate at once to repudiate the action of the citizens of San Francisco in constituting a "District Legislature." On June 4th, 1849, he issued his proclamation in that regard. See ADDENDA, No. LXXIV, page 107. I have entitled that ADDENDA as follows: "Governor Riley, Military Governor of California, DENOUNCES 'the Legislative Assembly of San Francisco' But here the "facilitas utriusque_linquae" for a moment misled me. For the Spanish word denunciar has not the strong force of our English word "to denounce," but rather the milder sense, "to indicate, to publish, to make known." Thus Salvá, Diccionario Español, in verbo: "Denunciar: Noticiar; avisar alguna cosa; prognosticar algo; promulgar; publicar solemnente alguna cosa. PROMULGARE." So that when it was said that Governor Riley "DENOUNCED" the Legislative Assembly of San Francisco, it was simply meant that he DISAPPROVED of it; for, instead of threatening to hang or shoot the members of the Legislative Assembly as malefactors, he merely notified them that they had mistaken their remedy or means of relief. See ADDENDA, No. LXXIV, page 107, over date of June 4th, 1849. GOVERNOR RILEY, UNITED STATES MILITARY GOVERNOR OF CALIFORNIA, RESTORES THE AYUNTAMIENTO OF THE PUEBLO OF SAN FRANCISCO. § 130. But on the very next day, June 5th, 1849, (and perhaps accompanying it in the same envelope, with that admirable consideration which is la politesse des supérieurs) the Governor transmitted to some of these same gentlemen of the Legislative Assembly together with others, an order for the election of an Ayuntamiento of the Pueblo or Town of San Francisco, indicating that that was the legal and perfectly adequate mode of relieving the existing pressure upon the inhabitants of that Pueblo. See ADDENDA, No. LXXV, page 108. This admirable document sets forth in the most condensed, and yet in the clearest manner, the rights of the PUEBLO to a representative and deliberative local legislature, (ADDENDA, No. LXXV, page 109, and §§ 47, 90, 92, of this argument,) and also: ¶ 1st, the police, administrative and fiscal powers of the Ayuntamiento; Ibid, ¶ 2: 2dly, the right of the Ayuntamiento to grant building lots; Ibid, ¶ 3: ante § 83 of this argument; 3dly, the inviolability and inalienability of the ejidos, Ibid, 3: ante § 14 of this argument, and 4thly, that all elections should be duly certified, transmitted to the Governor, and receive his approval. Ibid, ¶ 4. Thus the familiar principle of the law of nations, and of all Public Law, was formally and properly recognized, and well expressed, namely, that when a country is conquered, the laws regulating the rights and relations of citizens towards each other, and the rights of property, remain unchanged. See §§ 54, 84, of this argument. And here again we see that in June, 1849, the Military Amercan Governor of California, was fully impressed with the notion that the PUEBLO of San Francisco existed, and that it had a proprietary right to grant lands, which it could not have had unless they belonged to it. How remarkable it is, that all the Mexico-Californian Governors and Legislatures, and after them the Americo-Californian Governors and Secretaries of State should have been mistaken in this respect,- -IF IT WAS A MISTAKE! That this Ayuntamiento thus ordered by Governor Riley to be instituted was elected, organized, and went THE PUEBLO RECOGNIZED BY THE LEGISLATURE, A. D. 1850. 91 into operation is very evident from public history, a condensed résumé of which is found in No. LXXVII, pages 111, 112, of the ADDENDA, prepared by the present very efficient City Clerk, who anticipated me in compiling that list; and also from the more convincing fact, that the present citizens of San Francisco are now submitting to annual taxation for the purpose of paying the debts created by that same Ayuntamiento or Town Council, under the pressing necessity of providing instantly for the Town Halls, Court-rooms, jails, streets, and sewers required by a WHOLE NATION of civilized people, set down bodily and at once on the sandy slopes of the old PUEBLO of San Francisco. The United States kindly concedes that we may pay the debts of the ancient PUEBLO OF SAN FRANCISCO, but endeavors to confiscate the lands of that PUEBLO. Is this the definition of a paternal government? The old caducous government of Mexico would at least have let us alone. This Ayuntamiento thus ordered to be elected by Governor Riley, and thus elected and organized, was on January 11th, succeeded by another Ayuntamiento, elected on the same Hispano-Californian basis, which held office from January 11th to May 8th, 1850. ADDENDA, No. LXXVII, page 112. See THE LEGISLATURE OF A. D. 1850. APRIL. RECOGNIZES THE PUEBLO OF SAN FRANCISCO. § 131. On the 15th of April, 1850, the legislature of California raised San Francisco to the dignity of a City. See An Act to incorporate the City of San Francisco, Laws 1850, chap. 98, page 223. If the inhabitants had theretofore been only a quasi-corporation, they then became a full corporation, with all the powers belonging to such institutions. By the same act, page 229, § 11, the Legislature declare that on the day when that City Charter should go into effect, "all the "powers and functions of Prefect, Sub-Prefect, Alcaldes, Second Al"caldes, the Ayuntamiento, and all other officers whatsoever, hereto"fore exercising authority in the MUNICIPAL GOVERNMENT OF THE "PUEBLO OF YERBA BUENA OR SAN FRANCISCO, or City of San "Francisco, shall cease and determine." This demonstrates the fact that in less than three years after the conquest by the Americans, the Legislature of California believed that there was an organized PUEBLO of Yerba Buena or San Francisco. In § 1, page 223, of the same act, the Legislature fix the corporate limits of the City, which, on consulting the map, we find did not include the whole of the MISSION OF DOLORES. In the same section is a provision that the fixing of these boundaries shall not "be construed to divest or in any manner prejudice any right or "privilege to which the City of San Francisco may be entitled beyond "the limits above described." These declarations establish two facts: FIRST: That although the Legislature recognized the PUEBLO OF SAN FRANCISCO, they did not imagine that it was located at the MisSION OF DOLORES, for when they raised the PUEBLO to the rank of a City, they did not include all of the Mission of Dolores within its boundaries. SECONDLY: That the Legislature "had heard" of some claim of the PUEBLO of San Francisco to lands situate beyond the limits prescribed for the new incorporation. It was only years afterwards that counsel were found bold enough to assert that "nobody had ever heard of such a claim." THE AUTHORITIES, THE CITIZENS, AND THE LEGISLATURE HAVE FAITH § 132. Meanwhile the Ayuntamiento of San Francisco, supposing that they had the ownership in trust of the Pueblo lands, proceeded to execute the Legislative enactment of the Cortes of Spain. of January 4th, 1813, ordering the Pueblo lands to be sold, (see ante § 52 of this argument, ADDENDA, No. XI, page 21,) and at various dates in the years 1849 and 1850 a large portion of those lands was exposed for, sale at public auction by the authorities of the Pueblo, and publicly sold, the proceeds of which were paid into the treasury of the Municipality. See Wheeler's Land Titles, which are in evidence in the case by stipulation. And afterwards, when the new city found itself in debt, and was struggling to regain its credit, its Common Council created a "Board of Commissioners of the Sinking Fund of the City of San Francisco," to whom the most valuable of these lands were conveyed, in the hope that on the credit of their hypothecation a fund might be created, upon which the debt of the city might be funded for a period of years, and thus delayed until it could be gradually liquidated from the resources created by these lands and the annual revenue of the city. See the history of this plan, Smith v. Morse, 2 California Reports, 524. When this plan proved ineffectual, another device was successfully adopted, namely: to fund the existing city debt on a credit of twenty years, pledging to the payment of its annual interest and of $50,000 annually to its Sinking Fund a first lien on all the revenues of the city derived from taxation, and also all those Pueblo lands theretofore conveyed to the Commissioners of the Sinking Fund, who were required to convey, and did convey them to the "Commissioners of the Funded Debt" created for that purpose. See Laws of California for 1851, Chap. 88, page 387, and page 390, § 12 of "An Act to authorize the Funding of the Floating Debt of the City of San Francisco, and to provide for the payment of the same," passed May 1st, 1851. It is a matter of history that under that Act the Commissioners of the Funded Debt sold a vast quantity of real estate, constituting a large portion of the current titles to land, to which there is no title at all in the hands of these grantees, immediate and derivative, except that derived from the CITY OF SAN FRANSee Wheeler's Land Titles in evidence ut supra. And even as late as the year 1862 the Legislature of California, by "An Act to authorize the Commissioners of the Funded Debt of the City of San Francisco to compromise and settle certain claims to real estate, and to CISCO. |