advance in civilization, this was the last of the political duels in California.

Several matters of more than ordinary public importance, in addition to those mentioned and those which will be mentioned in other connections, occurred during Downey's administration. In April, 1860, an act had been passed for a geological survey of California and appointing Professor Josiah D. Whitney state geologist. In December, 1860, Whitney commenced his work and in 1861 made his first report to the legislature, which was well received. On May 8, 1861, the law relating to common property of husband and wife was so changed that, instead of being divided in case of the death of either spouse between the survivor and the descendants of the deceased, it was now provided that on the death of the wife the entire common property should go to the husband; and this in substance, with some further privileges on behalf of the husband which are supposed to be beneficial, continues to be the law of the state. On May 15, 1861, the corner-stone of the state capitol building was laid at Sacramento. On May 20, 1861, a Sunday law was passed, that occasioned a number of prosecutions for keeping open business houses on Sunday and caused considerable annoyance without any corresponding good. The supreme court, which had previously declared such a law unconstitutional, changed its opinion and held it valid; but the public opinion of the people of the state was opposed to it; and it became in substance a dead letter and was afterwards expressly repealed. At no time has the broaderminded portion of the community ever been in favor of it. A somewhat curious complication, which occasioned much noise, arose between the two houses of the legislature towards the end of the session of 1861. One Samuel Wittgenstein, who was employed as a copyist by the secretary of the senate, made certain charges of corruption against an assemblyman. A committee of the assembly thereupon charged him with attempting to blackmail and demanded his dismissal from the public service. The senate in response ordered an investigation and invited the 1Stats. 1860, 225; Senate Journal, 1861, 555, 648.

2 Stats. 1861, 310.

Senate Journal, 1861, 809.

* Stats. 1861, 655; Ex parte Andrews, 18 Cal. 678.

assembly to send a representative to conduct the prosecution and prove the charges. This the assembly refused to do and returned the communication to the senate, which thereupon refused to accede to the request of the assembly. Fortunately the disagreement was on a matter that was rather unclean and unsavory than dangerous or vital. To all appearance Wittgenstein's charges may not have been untrue; but it was questionable whether Wittgenstein himself was trustworthy or reliable.1

In the course of the session of 1861, Downey exercised the veto power, with which he had acquired so much reputation in 1860, on several occasions. The most notable of them was in reference to the trial of a person of some prominence, named Horace Smith, for murder. Smith, on January, 1861, had shot and killed a man, named Samuel T. Newell, on the open street in San Francisco and had been indicted and held for trial. Appearances were very much against him; and it is not unlikely that he would have found it difficult to escape punishment, as there was much public feeling on the subject. He applied to the San Francisco court for a change of venue; but his motion was denied; and his friends then, being unable otherwise to accomplish their purpose, introduced a bill in the senate to change the place of trial from San Francisco to Placer county. The bill having passed both houses, the governor vetoed it on the ground that it was unconstitutional, whereupon the houses passed it over the veto. A certified copy of the act as passed was next presented to the court and the motion to change the place of trial renewed; but the court denied it on substantially the same ground of unconstitutionality. Smith thereupon applied to the supreme court for a mandamus to compel the change of venue as directed; and the supreme court decided that the bill was not unconstitutional and ordered the change to be made. The result, as was expected, was an acquittal of Smith and a disappointment of the public.

Downey's political career, so far as office-holding was concerned, closed with the end of his gubernatorial term in 1862. 1 Assembly Journal, 1861, 744, 777, 778; Senate Journal, 1861, 684, 724, 855-860.

* Senate Journal, 1861, 197, 198; Assembly Journal, 1861, 375; Stats. 1861, 47, 48; Smith vs. Judge of Twelfth District, 17 Cal. 547.

He was a candidate before the anti-Lecompton or so-called Union Democratic convention in 1861 for re-election as governor; but, though receiving a large vote, he did not obtain the nomination. On January 9, 1862, upon retiring from office, he presented his last message. In this document he spoke of the good financial condition of the state and advised that the direct tax of a little over a quarter of a million of dollars, that had been levied by the United States upon California for war purposes, should be collected by the state through its own officers instead of submitting to federal officials. He spoke of the various state institutions as flourishing, with the exception of the state insane asylum which he pronounced "a miserable failure." He said he had made a sparing use of the pardoning power and believed he had not exercised it except in cases where it did good. He thought the supreme court reports entirely too costly. He was severe on the extravagance practiced in what was called reclaiming swamp lands by frittering away the funds in salaries and wages instead of on levees and practicable work. He had something to say on Indian hostilities and coast defenses and spoke of the requisitions of the general government for the state contingents-one on July 14, 1861, for one regiment of infantry and five companies of cavalry, and one on July 24, 1861, for four regiments of infantry and one regiment of cavalry. These had been quickly raised and equipped under Brigadiergeneral Edwin V. Sumner, then in charge of the Pacific division of the United States army, without cost to the state and consisted of the best material. As to the general condition of affairs, he spoke, not as might have been expected of a “Union governor" and still less of a "war governor," but in a half-hearted way. He said that war had come; that there had been no need of it, perhaps; but it had come and it was the duty of the state to stand by the congress of the United States and, if necessary, shed blood in their support. As for himself, though entertaining political proclivities at variance with the administration, no one would respond more promptly to its call for aid. It was very plain to him, however, that, if the country was to be defended or kept republican, there would still have to be a union or alliance with the southern states. But he deemed it necessary

and proper to speak of and deprecate what he called sectional pride, referring to the action of the north in resisting the south, and thought that there would have to be compromise and concession. He intimated that affairs would be different, if this policy had been pursued. But things had come to a sorry pass. Emancipation was threatened. It was very certain, in his opinion, that the Republican party was not to restore the Union.'

After relinquishing his office of governor, Downey retired to his residence at Los Angeles and devoted his time chiefly to the banking business and the care of real estate, of which he owned a large quantity in Los Angeles county. He became an active capitalist and did much towards the development of the southern portion of the state. In 1863 he was nominated and ran for governor, but was defeated by Frederick F. Low. Subsequently he was frequently named in the councils of the Democratic party, which always recognized him as one of its most prominent and trustworthy members; but, as before stated, he did not after 1862 hold any public office. In person Downey was well formed, a very little below medium height, ruddy of complexion and active in movement. He was a pleasant man, easily accessible and assumed no airs. He died at his home in Los Angeles on March 1, 1894; and nearly everybody had a kind and good word for him.

1 Senate Journal, 1862, 31, 32.

CHAPTER XI.

STANFORD.

W

HATEVER talk may have been made by such politicians as John B. Weller and a few others about a Pacific republic-all of which was plainly in aid and encouragement of slavery and secession-it can hardly be said that the people of California in general considered such a thing as the disruption of the Union possible. They could not, and they did not, believe that the great body of the people of the southern states would allow themselves to be led or driven into taking up arms against the federal government. There can be little or no question, if secession had succeeded, that California would have adhered to the north; the community at heart was strongly Union; and such a thing as setting up a new and independent government was no more contemplated than joining and making common cause with the south. There were from time to time, particularly before the Pacific coast sent up its voice in clear and unmistakable tones in favor of the Union and sustaining it against any and all attacks, rumors of plots and conspiracies of various kinds to seize the forts and take military possession of the country for the benefit, direct or indirect, of the rebellion. But, though there were some hot heads and foolish schemers, who might have made rash attempts, nothing of that character was put in execution; nor, considering the real temper and feeling of the community, could it have succeeded.

The military commander of the department of California at the time was Brigadier-general Albert Sidney Johnston, a native of Kentucky. He was a man of marked ability and good repute. He had been transferred from the command of the Texas department to that of the Pacific in the early part of 1861, very soon after South Carolina passed its ordinance of secession. About