“The Western Empire State”: A Report of the Senate Judiciary Committee on California Statehood, 15 January 1849

by Paul R. Spitzzeri

After the seizure of the Mexican department of Alta California by American forces, concluded after the Battle of Los Angeles on 9 January 1847 (after which William Workman helped bring out the flag of truce) and then subject to the Treaty of Guadalupe Hidalgo of 2 January 1848, discussion began about what to do with the status of that area and everything taken by the United States during the Mexican-American War.

In normal circumstances, the status of a “territory” would be the first step, but California’s situation constituted anything but normal.  Nine days before the signing of the war-ending treaty, James Marshall stumbled upon gold in the American River in the Sierra Nevada Mountains and ushered in the Gold Rush.


Immediately, gold-seekers poured into that region, first from northern Mexican mining regions, then from many parts of the globe (South America, China, Australia, Europe and the rest of the United States.  This stunning, unexpected turn of events completely changed the dynamics of California’s status within the American union.

In the aftermath of the conquest, American military forces were left to govern California, though their numbers were drastically reduced by personnel leaving for the gold fields.  This basically meant that there was little effective government in the region and, with the motley assemblage of people rushing in from various areas of the world representing different ethnicities, trying to contain the animosities that would be expected was all but impossible.

Violence was legion and virtually unchecked, but there was a massive political barrier to the expedient and timely decision of the status of California.  Namely, this was the long-standing issue of admitting states that permitted or denied slavery.  The Missouri Compromise of 1820 establishing a precedent of admitting one followed by the other, based on the geographical location of the state.  California, however, turned that concept upside down by simultaneously being north and south as being particularly “vertical.”

Another significant matter was what the boundaries of a new California would be, as there were varying proposals about how to draw those lines.  Today’s highlighted artifact from the Homestead’s collection reflects this question as a “Report of the Committee on the Judiciary with the Views of the Minority of that Committee On Bill S.350 For the Admission of California Into the Union as a State.”


The report was submitted, read and ordered to be printed on 9 January 1849 and the printed version is dated six days later.  It begins with the text of a bill, Senate Number 350, that was referred to the Judiciary Committee and which proposed:

That all that portion of the territory of the United States, which was acquired by the treaty of peace with Mexico, shall be one State . . .

That such State shall be on an equal footing with the original States, in all respects whatsoever, by the name and title of the State of California.

With a proviso, which declares—That Congress reserves to itself the right, at any time it may choose to exercise the same, of forming and admitting new States out of any portion of said territory which lies east of the summit of the range known as the Sierra Nevada, or California mountains, and with certain other reservations for the protection of the public property of the United States in said State.

The bill also allowed for the creation of federal district courts and for the appointment of members of Congress.  It also served to “provide for the election of delegates to a convention to form a constitution for the State of California.”

The report also discussed “the actual condition of the territory of California,” observed that military government there “ceased, by the conclusion of the treaty of peace, to derive its authority from that source of power.”  Obviously, the military remained in authority after the ratification and signing of the Treaty of Guadalupe Hidalgo, though in a much-weakened condition since the onset of the Gold Rush.


However, Secretary of State James Buchanan, who remained in office until March, “thinks that the termination of the war left a government de facto in full operation, which will continue, with the presumed consent of the people, until Congress shall provide for them a territorial government.”  Otherwise, Buchanan added “the only alternative would be a state of anarchy, beyond the protection of all laws.”

Outgoing President James K. Polk “declares it to be the duty of Congress to provide, with the least possible delay, for New Mexico and California, regularly organized territorial governments.”  It was added that the Treaty of Guadalupe Hidalgo’s Article IX, which would allow “those Mexicans who chose to transfer their allegiance to the United States” was amended so that this provision of citizenship was to be handled “at the proper time, to be judged of by the Congress of the United States” in establishing a form of government that would facilitate “treating with strangers to our peculiar institutions.”


The admission of states came from either the formation of one from an existing state or “out of territories ceded to the United States by one of the states, or by a foreign government,” this last applying to California through the treaty with Mexico.  The issue, however, was that California was to yet be given official territorial status, but there was a movement to admit it instead directly to statehood.

The word “admit” rather than “create” was at issue here, as well, because of the stress placed upon the “sovereignty of the people” resident in the area in question.  The Judiciary Committee, in fact, was of the view that the bill should not pass “because it proposes the exercise, by Congress, of a power not vested by the constitution in the national legislature, namely, the creation of a new State.

Additionally, the statement continued, another major objection to the bill was that “it proposes to unite all the territories acquired by the treaty with Mexico, and with it to constitute one State.”  This involved a size of land “too large for one of the States of this Union” and the committee cited that proviso about Congress reserving the right to carve smaller states out of the portion east of the Sierra Nevada summit.  Yet, it was acknowledged that no state could have portions of it taken for another state without the assent of its legislature.


The committee also expressed its concerns with the question of an admission of a new state without a prior establishment of a territorial government that would later lead to the admission of that territory into the Union as a new state.  It also took issue with  the proposal to admit all land acquired by the United States from Mexico “including this in its whole extent the territory of New Mexico.”

Yet, “it is know that the State of Texas [admitted in 1845 after nine years as an independent republic] claims the Rio Grande as its western boundary,” a claim made during the years it was a republic.  In fact, William Workman and John Rowland left New Mexico for California in 1841 because of that issue, which led to an armed invasion by Texas that fell to pieces upon arrival in New Mexico early the next year.

The committee was concerned that the passage of the bill would “lay the foundation of a litigation between the new State and the State of Texas, to be determined by the Supreme Court.”  If, however, California was to be a territory, Congress would be the administrator and there would be no boundary dispute with Texas as the size of California would be handled before new states were created in the recently annexed lands acquired from Mexico.


Consequently, the committee, sure to express its understanding “of the importance of providing a government for each of these territories” and for the welfare of its peoples, resolved that the bill should not pass and that

It is proper to organize territorial governments for that portion of the territory of California which lies west of the Sierra Nevada or California mountains, and for the territory of New Mexico, lying west of the western boundary of the State of Texas.

The minority of the Committee, namely Louisiana Senator Solomon Downs, offered his views, starting with its observation that:

Long before the acquisition [of California and New Mexico] was consummated, the demon of discord, fanaticism and sectional jealousy, stimulated and excited by thirst for political power, took hold of the subject, and insisted that the territory about to be acquired should be so governed, and so restricted, that it should not be equally open to the people, and their property, from all parts of the Union.  In other words, that the “Wilmot proviso” should be extended over it.

The Wilmot Proviso, named for a Democratic member of the House of Representatives from Pennsylvania, and while it passed the House, which had more Northerners in it, as part of appropriations bill, the Senate passed the bill but struck the proviso.


Downs continued to note that “the war was gloriously conducted and terminated” and that “no objection was made to the expenditure of blood or treasure by a particular section.”  Another attempt to institute the Wilmot Proviso failed and Downs added that the political maneuverings on the subject of the slavery question for these new territories meant that “we of the south are, on this subject, in a minority.”

There was a lengthy section in which Downs went into great detail about the formation of states from either secession with consent from another state or through acquisition of land from a foreign power and offered contrary views to those expressed by the majority, especially in regards to the creation as opposed to the admission of new states and with regard to the expression of the sovereignty of the people in these territories as they were in the process of reaching statehood.


Downs, in fact, cited the example of his own state, Louisiana, and its acquisition from France in 1803 as “similar to those in the Mexican treaty by which California and New Mexico were acquired.”  Importantly, Louisiana drafted a constitution as a territory immediately before it was admitted to the Union in 1812.  Downs claimed that the bill did not seek to create a state but only to allow “what has been done seventeen times in our history” in allowing for the admission of American land as a state.

Yet, he believed that California’s admission before the adoption of a constitution “does not prove that Congress have not the power to admit her” but also that all of the rights associated with statehood were not fully necessary.  He noted that Iowa was admitted into the Union in 1845, but did not have representation in Congress for some time afterward.

Downs addressed another important point, specifically one made by the committee’s majority that California and New Mexico were “sparsely populated and inhabited by a people, the greater portion of whom are strangers to our constitution and laws; and, in the judgment of the committee, unfitted, in their present condition, to be incorporated into this Union.”


He noted that “these objections would have been perfectly good, but for the great events that have recently taken place in California, and which assuredly will take place within the next few months.”  This, of course, was the onset of the Gold Rush and Downs could have said “the next few years” as he correctly surmised the immigration numbers “will be immense.”  Downs added:

There can be no doubt that before your law could reach that country, and a State government be organized, that there would be an American population there consisting of more men, intelligent, enterprising, and educated, (and “these constitute a State,”) then there ever was in any new State when first admitted.  Why then should they not be permitted to form a constitution and govern themselves?

To any assumption that such men would seek their wealth and, finding it or not, return home, Downs replied “they never retreat either in battle or in immigration . . . show me the spot inhabited by Americans, that was ever abandoned or depopulated.”  Even if gold was all mined out, “they would soon find other resources and means of wealth, happiness, and prosperity, perhaps, better than gold.”

The senator went on to note that one proposal for the size of California, at about 550 miles long and some 175 miles wide would be such that

We thus have a State of noble proportions, to bear, perhaps, the proud appellation of the western empire State; unsurpassed in climate, and in mineral wealth, and destined at some future day to rival her eastern empire in expanded and active commercial enterprise, with all the internal resources which can contribute to the happiness of man.

Downs opined that this “includes nearly all the seacoast and population in Upper [Alta] California, leaving only a small space on the coast and the town of San Diego and a few missions or settlements, to form an outlet for the vast territory, most of it yet unexplored, which lies to the north and east.”  The boundary could be determined “by a line drawn direct from the southern point of the Sierra Nevada to that point on the Rio Colorado where the river Gila enters it, and the boundary line with Mexico [still in dispute] crosses it.”  This would avoid considerations “about a future division of the State” and the Texas boundary question.


He then offered an amended bill that called for a new state of California in the bounds mentioned in the previous paragraph, meaning the northern limit would only be roughly to where Palmdale is today.  Of course, Downs was a Southerner and keenly interested in the extension of slavery, so keeping California as far south as possible satisfied his desire for following the Missouri Compromise in allowing a slave state of California to the dimensions that met the conditions of that legislation.

Downs’ bill specified a judicial district, its personnel and operations, and called for the district judge and marshal to work with the local military commander to establish election districts for a constitutional convention.  Electors would include all Americans and Mexicans who became U.S. citizens through the Treaty of Guadalupe Hidalgo, provided they were at least 21 years of age.  There would be a single representative to Congress until the 1850 census would determine the population of California for apportionment of representatives as done in other parts of the country.


The legislation went nowhere and the debate continued on until citizens in California formed their own constitution in late 1849, elected a government that began operation in spring 1850, and so spurred Congress to admit California as the 31st state that September.  This document is a fascinating look at the difficult question of what to do with “the western empire State.”

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