CHAPTER XVI.

FREMONT'S CAREER AS UNITED STATES

SENATOR-SPEECH

ON THE INDIAN AGENCY BILL-SPEECH ON THE BILL MAKING TEMPORARY PROVISIONS FOR WORKING THE MINES OF CALIFORNIA CHALLENGES SENATOR FOOTE

FOOTE'S RETRACTION-FREMONT'S LETTER ABOUT THE

AFFAIR.

THE long and anxious struggle which resulted in the admission of California into the Union, as an independent State, with a constitutional provision against slavery, is familiar to the country. The legislation upon the subject was consummated on the 9th of September, 1850. On the following day, the Californian senators presented themselves for admission to their seats. Colonel Fremont's credentials were submitted by Senator Barnwell of South Carolina, who remarked in doing so, that "it was well known he entertained the strongest constitutional objections to the admission of California into the Union, but Congress having passed an act for her admission, Mr. Fremont's admission could not be otherwise than very acceptable." Jefferson Davis, a senator from Mississippi, moved a reference of the credentials to a committee, on the ground " that the constitutional provisions for the election of senators could not

have been complied with." Senators Mason of Virginia, Butler of South Carolina, and Turney of Tennessee, also favored the reference. Senators Clay of Kentucky, and Foote of Mississippi opposed the reference, which was defeated by a vote of 36 to 12.

The new senators were then sworn in, and immediately after, the Senate proceeded to ascertain by lot the class or length of senatorial term of the respective candidates. The shortest term, expiring on the 3d day. of March, 1851, was drawn by Colonel Fremont. But three weeks remained of the session within which to accomplish anything for California. No time was to be lost, therefore, in doing what had to be done. On the day after he became entitled to his seat, he offered a resolution instructing the post-office committee to inquire into and report upon the expediency of establishing seventeen post routes in California, each described in the resolution, which was considered by unanimous consent, and agreed to. He, at the same time, gave notice of his intention on the following or some subsequent day, to ask leave to introduce a series of bills, designed to complete the political organization of California. The titles of those bills show their scope, and the statesmanlike views he took of the political needs of the young and as yet governmentless State which he represented.*

*"1. A bill to provide for the recording of land titles in California. "2. A bill to provide for the survey of the public lands of California. "3. A bill to provide for the erection of land offices in California. "4. A bill to provide for the settlement of private land claims in Cali fornia.

"5. A bill to grant donations of land to settlers before the cession of the country to the United States, and pre-emption rights to all subsequent settlers.

On the 14th of September he had leave to introduce a bill to make temporary provisions for the working and discovery of gold mines and placers in California, and for preserving order in the gold mine district. The bill, he stated, had been drawn up with great care; he had reviewed the Spanish laws, extending over a space of three hundred years, and had endeavored to embody in the bill all that he considered applicable to our age and institutions.

On the same day, the bill authorizing the President to appoint Indian agents in California being under consideration, Senator Atchison, from the Committee on Indian Affairs, stated that he was entirely unable to communicate to the Senate the information that they would probably require. The committee, he said, did not know the number of tribes of Indians, nor the num

"6. A bill to regulate the working of mines in California.

"7. A bill to extend the laws and judicial system of the United States to the State of California.

"8. A bill to refund to said State duties collected at San Francisco and other ports, before the custom-house laws were extended to it.

"9. A bill to grant said State public lands for purposes of education. "10. A bill to grant six townships for a university.

"11. A bill to grant land to aid in constructing public buildings.

"12. A bill to grant land for asylums for the deaf and dumb, for the blind and insane.

"13. A bill to relinquish to the city of San Francisco certain public grounds no longer needed for public purposes.

"14. A bill to grant to the State of California twelve salt springs, with a section of ground around each.

"15. A bill to grant to the city of Monterey the old

and its grounds.

government house

"16. A bill to provide for opening a road across the continent.

"17. A bill to grant land for internal improvement.

"18. A bill to preserve peace among the Indian tribes, by providing for the extinction of their titles to the gold districts."

ber of Indians within the State of California, nor the kind of title by which they held their lands; he therefore referred the Senate for further information, to the senators from California.

Whereupon Col. Fremont proceeded to state his reasons for introducing the bill, as follows:

SPEECH OF COL. FREMONT IN THE UNITED STATES SENATE, ON THE INDIAN AGENT BILL.

"The general policy of Spain in her Indian relations, was the same as that which was afterwards adopted by all Europe, and recognized by the United States. The Indian right of occupation was respected, but the ultimate dominion remained in the Crown. Wherever the policy of Spain differed from that of the other European nations, it was always in favor of Indians. Grants of land were always made subject to their rights of occupancy, reserving to them the right to resume it, even in cases where it had been abandoned at the time of the grant. But the Indian right to the lands in property, under the Spanish laws, consisted not merely in possession, but extended even to that of alienation; a right recognized and affirmed in the decisions of the Supreme Court of the United States. A claim to lands in East Florida, under a title derived from grants by the Creek and Seminole Indians, and ratified by the local authorities of Spain before the cession of Florida to the United States, was confirmed.

"I have here in my hand a volume of Spanish laws, published in the city of Mexico in 1849, and purporting to contain all the legislation on this subject, which was in force in Mexico up to that date. These laws extend from 1533, some twelve years after the conquest of Mexico by Cortez, to 1817. The policy of Spain in regard to the Indians differed somewhat from that of the United States, and particularly in this: that, instead of removing the Indians from amidst the Spanish population, it kept them there and protected them in the possession of their lands among their civilized neighbors; having always in view the leading object of converting them to the Christian religion. To this end the power of the government was always directed; it was a national object, and in great part was a governing principle in the laws of which they were the subject. I will not occupy the time of the Senate by reading at length the several laws, but will merely make a few statements of such particular parts as bear directly upon the rights in question.

"A royal order of Charles V. (a supreme law in Spain), of the year 1533, decreed that the woods, pasture lands, and water contained in any grants of seigniories, which had been or should be made in the Indies, should be common to Spaniards and Indians. Another royal order of 1687 (confirming and extending an ordinance of the viceroy, Count Saint Stephen, of the year 1567) commanded that in all the villages of the Indians throughout all New Spain, who needed land to live upon and sow, there should be given to them a space of 500 yards, and as much more as they had any need of for cultivation around their village, measuring from the furthest outside house, and if the village happened to be a large one an unlimited quantity should be allowed, and that thereafter no grant of pasture ground or land should be given to any one within eleven hundred yards of the most outside house of the population.

"A law of Philip III. of 1618, ordained that no pasture grounds of black cattle should be situated within a league and a half of any village converted in old times of the Christian religion, and not within three leagues of any villages of newly converted Indians, upon pain of forfeiting the pasture ground and half the cattle which there should be upon it, and the Indians had the right to kill any cattle which should be so found trespassing upon their lands, and were subject to no penalty whatsoever from them.

"A decree of Philip IV. ordained that the sale, improvement and location of lands, should be made with such attention to the Indians, that they should be left with a superfluity beyond all the lands which might belong to them, as well individually as in communities, together with waters and water privileges, and the lands upon which they might have made canals for irrigation, or any other improvements, should be reserved to them in the first place, and in no case were they to be sold or alienated from them.

"The Spanish law likewise recognizes the Indian right to alienate, and prescribed the terms and mode in which such alienation shall be legal. A decree of Philip II. of 1571, commanded that the Indians should have the right to alienate their landed property as well as their personal effects, prescribing only that proclamation should be made during a specified time, and at a place of public sale. We have here a circular of the royal audience of Guadalajara of 1817, reviving for information, and to correct abuses, a decree of one of the superior tribunals of Mexico, which annulled a sale of the rancho of Tena Banca, made by the Indians of Colchis, for a failure to comply with the forms prescribed by law. In California we have both classes of Indians-the Christian or converted Indians, collected together at the missions and in large villages at the sea