have to be relieved either by extending the water front of San Francisco and making sales of lots or by increased taxation, and that the latter alternative was not to be thought of if it were possible to avoid it.1

A bill to extend the water front in accordance with Bigler's recommendations had been introduced into the assembly and passed by a majority of four. The circumstances of its passage and the excitement it produced in San Francisco have already been related in speaking of the early progress of the city. When the bill reached the senate it was chiefly engineered there by Paul K. Hubbs of Solano county and supported by him and other non-residents of San Francisco. They claimed that the water-front limits embraced by the line of 1851 were too narrow; that, on account of all the front being already sold and the enormous rents asked for leases, no man of moderate means could establish himself on it; that, besides, the depth of water on the line was too shallow for ocean vessels, and that therefore the line should be extended to deep water so as not only to afford berths for vessels but also to allow the ebb and flow of the tides in the channel to scour and keep them clean. On the other hand, it was charged that the project was not only useless but that it would be of incalculable injury to the harbor of San Francisco; that it was a scheme of Bigler and a number of his interior country friends to raise money and for that purpose to "cinch" San Francisco for the benefit of the country, which as a rule was always ready for projects of that kind, and that, so far as the land to be gained was concerned, it could only be of advantage to real-estate jobbers and speculators who had purchased it for a mere song at what were known as the Peter Smith sales on execution against the city. It was said that these men were lavish with their money and influence to get the measure through. Many of these persons were politicians by occupation, which fact did not render the reports any the less credible. As the controversy progressed, much feeling was evinced and many bitter charges made. At length, on April 26, when the matter came up for final disposition, Joseph C. McKibben moved its indefinite postponement. Upon roll-call, the vote stood evenly 1 Senate Journal, 1853, 154, 155, 222-225, 254.

divided, thirteen ayes to thirteen noes, when Lieutenant-governor Purdy threw his famous casting vote in favor of indefinite postponement and effectually killed the scheme.1

Among other matters of interest and importance, which came up for consideration before the same legislature of 1853 was a project for calling a miners' convention. The object seems to have been the formulation of some plan by which miners should be required to procure fee-simple titles to their mining ground, so that such ground might be taxed for the benefit of the state treasury. The subject having been referred in the assembly to a committee of one from each of the mining counties, that committee by its chairman, Benjamin B. Redding, made its report on March 19. It said that since the discovery of gold in California the federal government had thought proper to leave the mines free to the operations of American labor, regulated only by such laws under the constitution as the people might see fit to enact. The state, with the same confiding faith in the deep-rooted democratic tendencies of its people, had continued the same wise policy and confirmed the course pursued by the general government. The state had gone further and, even without knowing what laws the miners had adopted or would adopt, had declared by statute that the customs, usages and regulations of the miners should under the constitution and laws of the state, govern the decisions of the courts. This confidence in the people-unexampled in the history of the world-had not been betrayed; and California presented the example of a large majority of its people regulating their own internal affairs, involving the monthly return of millions of dollars, without restraint by legal enactment on the part of the state or of the general government.

The president of the United States in his message of December 2, 1851, had said that he had previously recommended the survey and sale of the mines in small parcels and under such restrictions as would guard against monopoly and speculation. But upon further information and in deference to the opinion of persons familiar with the subject he had changed that recommendation and advised that they should be permitted to remain a common field, open to the enterprise and industry of all citizens Senate Journal, 1853, 360, 420, 421.

until further experience should have developed the best policy to be ultimately adopted in regard to them. It was safer, in his opinion, to suffer existing inconveniences for a short period than by premature legislation to fasten on the country a system founded in error, which might place the whole subject beyond the future control of congress. When, in addition to these views of the president, it was considered that at the beginning of work in the mines a very large majority of the miners were entirely unacquainted with any system of extracting the gold, and that in the course of a very few years, the amount annually exported was over fifty millions of dollars, it would have to be conceded that the rules and regulations of miners, so far as they affected the obtaining of gold, had been as successful as could have been anticipated. The committee therefore, entertaining these views, was of opinion that the wishes of the people of the mining regions would be met by the enactment of a law which, without violating the fundamental principles of existing arrangements, should at the same time organize them into a more perfect system by regulating the time of enacting local mining rules, giving them greater force and efficiency and providing for their record and preservation. For these reasons, though it was willing that there should be a large increase of the revenue of the state by a tax upon gold-dust after it was taken out of the ground-which however could be effected by the revenue laws the committee believed that the calling of the proposed convention was inexpedient and unnecessary. And with this the subject was dropped.'

About the same time a novel question was presented in a special message of the governor in reference to the Peruvian bark Eliza. It appeared that the vessel referred to on January 5, 1851, while entering the harbor of San Francisco in charge of David B. Morgan, one of the board of pilots appointed under the laws of the state for San Francisco, was by his negligence or unskillfulness run on Tonquin shoal to the great loss and damage of vessel and cargo. In May, 1851, José Fernando Santiago of Lima filed in the United States district court a libel in admiralty against all the San Francisco pilots, six in number, as copartners; 'Assembly Journal, 1853, 294; Appendix, No. 35.

and in July he obtained a judgment against them for twenty-four thousand dollars and upwards. An execution on this judgment was issued against the pilots; but they were apparently an impecunious set, and it was returned with an indorsement that no property was found on which to levy. Upon this, Juan Y. De Osma, chargé d'affaires of Peru at Washington, addressed Daniel Webster, then United States secretary of state, on the subject and asked reparation. He alleged that foreign vessels were obliged by the law of California to employ pilots; that the pilots appointed under the state law had made from foreign vessels and divided among themselves two hundred and seventyone thousand dollars of profits within fifteen months, and that, if they nevertheless could not pay for losses and damages occasioned by their unskillfulness or carelessness, the state of California should do so, for the reason that it compelled the employment of such men. Webster thereupon addressed a communication to Bigler, inclosing Osma's letter, and intimating an opinion that, if Osma's representations were correct, the state should be considered responsible for such acts of negligence or ignorance on the part of the pilots as to which they themselves had not the means to make reparation, and recommending that provision should be made by the state therefor. Bigler in his message claimed that the state was not liable. He said that Osma had applied for reparation from the United States and it was for the United States to answer. He had assumed that as the board of pilots was established by authority of the state, foreign vessels were required to provide themselves with the pilots of such board and that the state was responsible for their conduct. But there was no good ground for such assumption. Foreign vessels were not obliged to employ pilots. It was true, if they did not, they were obliged to pay half pilotage; but this was simply a matter of state police and in fact only a port charge. The system was the same in all the principal commercial countries of the world, not excepting Peru, and involved no new principle; and longestablished usage respecting marine insurance rendered it indispensable. And besides, it appeared from the papers presented that the legal remedies for satisfaction of the judgment had not been exhausted either against the property of the defendants or their bondsmen.

But Bigler went still further and maintained that the state was not responsible for the misconduct of a pilot for the reason that a pilot was not in any sense an officer of the state. A board of commissioners was created by the law of the state to license pilots; but no revenue was derived to the state from such licenses. The state was no more responsible for the conduct of a pilot than for that of any other person performing a public duty under a license or commission. Auctioneers and commission merchants, for instance, acted under statute regulations and even paid a revenue; but a citizen of Peru in dealing with them. acted under the law of contract, and the state was not an insurer of their fidelity. So with the contract of pilotage. There was an option to make it or not. In case of refusal, the vessel simply subjected itself to an additional port charge of half pilotage. If the contract were made, it was an entirely private one. If the state were responsible on the grounds stated, the United States could not escape an equal responsibility, because they had adopted the pilotage laws either as a part of their revenue laws or as a part of the international usages of the world. And with. this argument-the best perhaps that Bigler ever made-the matter seems to have been dropped as a public affair.'

Another interesting question came up in the senate on a petition of Thomas Burdue, the person who had been arrested and prosecuted and in fact convicted under the state laws for the crimes of James Stuart, who was executed by the San Francisco vigilance committee in 1851. He claimed that the state ought to pay him four thousand dollars in re-imbursement of the expenses to which he had been put. But the judiciary committee took a different view of the subject and reported against the claim. They said that to establish such a precedent and follow it would more than exhaust the entire revenue of the state. Burdue might have been subjected to expense; but he had been protected, and "he should rejoice that the laws have afforded that protection to him when wrongfully accused, rather than seek remuneration for his expenses from the government whose justice has protected him from ignominious death." It can hardly be said that Burdue had much cause to rejoice in the 1 Senate Journal, 1853, 201; Appendix, No. 38.