an extent as he did. It can not, perhaps, be said that there was anything particularly brilliant about him, either as a politician or a lawyer, either as a logician or a rhetorician, either as a speaker or a writer, though in all these capacities he made strenuous efforts and was at least respectable. But there can be no doubt that he intended well. His faults were to a great extent the faults of his education and circumstances. His successes in a wild country, where there were no superior men to contend against, gave him too much confidence in his own abilities and infused, as it were, too much of a didactic tone and spirit in everything he did and wrote. He appeared to be always wanting to teach and unfortunately did not himself always possess the requisite knowledge. He was always wanting to lead the blind and unfortunately was himself too often blind. One of his faults was that, while he very properly recognized the doctrine that legislation and law, especially in a new country, must be made to suit the condition of affairs, he carried it entirely too far and substituted his own, in some instances very crude, ideas of policy and expediency where there was no call or need of turning aside from the main path. He imagined that he had no prejudices; while his prejudices were so apparent, even in his published writings, that it is almost ludicrous to read what he has to say about his freedom from such weaknesses and what he has to say, particularly about negroes and Chinamen, within the same covers.'

On Monday, January 6, 1851, the legislature met for its second session at San José; and on the next day Burnett presented his annual message. It was a characteristic document. Among other things he said in reference to the Indians: "That a war of extermination will continue to be waged between the races, until the Indian race becomes extinguished, must be expected. While we can not anticipate this result but with painful regret, the inevitable destiny of the race is beyond the power or wisdom of man to avert." And again: "Considering the number and mere predatory character of the attacks at so many different points along our whole frontier, I had determined in my own mind to leave the people of each neighborhood to protect themselves, 1 Burnett's Recollections, passim.

1

believing they would be able to do so, and that a regular force would not find employment in the field. In two instances only have I deviated from the rule I had laid down for the government of my own action. In these cases the attacks were far more formidable and made at points where the two great emigrant trails enter the state." As each neighborhood and particularly each neighborhood containing an Oregonian element had a peculiar method of protecting itself against Indians and as the two instances of state aid referred to were the San Diego expedition under General Bean and the El Dorado expedition under Sheriff Rogers, already very fully described, it is plain that no very great effort was to be expected during the first state administration to stop the war of extermination against the Indians.'

In reference to negroes he said: "Although it is assumed in the Declaration of Independence as a self-evident truth, that all men are born free and equal, it is equally true that there must be acquired as well as natural abilities to fit men for self government. Without considering whether there be any reason for the opinion entertained by many learned persons that the colored races are by nature inferior to the white, and without attaching any importance to such opinions, still it may be safely affirmed that no race of men, under the precise circumstances of this class in our state, could ever hope to advance a single step in knowledge or virtue." As to Chinamen, there was up to that time no proscriptive cry; and the governor therefore had nothing to say in his message against them. On the contrary the prospective commercial relations with what was called the "golden orient" and the "oldest nation in the world" rendered the Chinese residents of those early times welcome guests and their presence desirable in the civic celebrations of the day. But notwithstanding his failure to anticipate Governor Bigler in raising the cry against the Chinese, he subsequently took advantage of his autobiography to express his "unprejudiced" opinion against them as "more than a match for the white man in the struggle for existence" and to add his mite to Chinese proscription.2

Another remarkable portion of Burnett's message was the 'Journals of Legislature, 1851, 5, 11, 15-18.

Journals of Legislature, 1851, 19; Burnett's Recollections, 354-356.

recommendation of the punishment of death for grand larceny and robbery. He admitted that this extreme penalty should not be continued when the state should have county prisons and penitentiary; but he said that there had been such a frightful increase of these crimes since the adjournment of the last legislature that he knew of no other mode of punishment likely to check the evil and prevent citizens from taking justice into their own hands. He believed in usury laws, declaring that "the idea that competition among lenders would reduce the rate of interest to a fair and just standard, such as the legitimate profits of business would justify, seemed to be delusive." He also believed that notaries public should be elected instead of appointed. He regretted the failure of the previous legislature to pass a homestead law and recommended a reduction of salaries. He was of opinion that no extra session of a legislature had ever been a success and refused to call one to procure a loan for the state; and he was opposed to the practice of putting burdens upon posterity without their consent by contracting debts which they would have to pay. And, lastly, he urged the entire repeal of a section of the civil practice act of 1850 which provided that no action should be maintained for criminal conversation or for seduction.'

On January 9, 1851, to the surprise of nearly everybody, he sent in to both houses of the legislature a message resigning his office of governor. He gave as a reason that circumstances entirely unexpected and unforeseen and over which he could. have no control rendered it indispensable that he should devote all his time and attention to his private affairs. The real reason seems to have been a consciousness on his part that he was not giving satisfaction. Whatever the fact may have been, the resignation was at once accepted by each house and also in the afternoon of the same day by a joint convention of both houses, which had been called for the purpose of inaugurating the lieutenantgovernor as his successor. In commenting upon the subject the San Francisco Daily Herald, then one of the ablest journals in the state, expressed its opinion to the effect that Burnett should not have resigned and said of him: "His conduct has in many 'Journals of Legislature, 1851, 22-37.

instances been reprehensible; he has been swayed by bad advisers and has suffered himself to be duped by men of more cunning and less honor than himself; but we have never for a moment doubted his good intentions." And again: "He was sadly imposed upon and, yielding to false representations, he suffered himself to become the dupe of designing men who wished to secure their own selfish ends by the prostitution of his office." And still again: "In a time of almost universal depravity he has been thoroughly honest and, notwithstanding a great many temptations, he has maintained a character for uprightness. He has made many enemies and few friends—a thing which might not have happened if he had conducted himself with less regard for integrity."

1

Burnett was in person tall and spare, but strong and rugged. He was very abstemious in his habits and believed in never entirely satisfying his appetite. He was of cheerful disposition, usually earnest but sometimes sportive in conversation, and fond of reminiscences and anecdotes. He and his wife, with whom he lived to celebrate their golden wedding, reared a family of several sons and daughters, all of whom were born before their arrival in California; and all of whom became excellent citizens. After his resignation of the office of governor, he practiced law for a few years and in 1857 was appointed a justice of the supreme court of California by Governor Johnson. After the expiration of his incumbency of that office, he became a banker in San Francisco and continued such until his final retirement from active business about 1880.

'Journals of Legislature, 1851, 43-46; San Francisco Daily Herald, January 13, 1851.

CHAPTER II.

THE

MC DOUGAL.

HE lieutenant-governor, who became governor of the state upon the resignation of Burnett, was John McDougal, a native of Ross county, Ohio, born about the beginning of 1818. In early years he moved from Ohio to Indiana, where he learned something about military affairs and took part as a volunteer first in the Blackhawk, and afterwards in the Mexican, war. In 1846 he became superintendent of the Indiana state prison in the neighborhood of Indianapolis and in 1848 started for California, where he arrived on February 28, 1849, following his brother, George McDougal, widely known in the early days as a lucky sporting character, who had come out in 1845. While in Indiana he married a lady of Indianapolis, who afterwards joined him in his home on the Pacific. His first experience in California appears to have been that of an unsuccessful miner; but he soon abandoned the mines and settled at Sacramento as a merchant. In the summer of 1849 he was elected a delegate to the constitutional convention from the Sacramento district and took his seat as a member of that body on September 8, 1849. The part he played in that august body was not calculated to do either himself or his constituency any great credit. One of his main contentions was to insert the word "buncombe" in a resolution, offered by John M. Jones, to fix the pay of members at eight dollars per day instead of sixteen as reported by the committee on finances; and another was, on a motion to insert the words "to be" in a certain section of the constitution under consideration, that, as the question was "to be or not to be," the motion ought to prevail. On almost every vote, at which he

'Debates of Constitutional Convention, 289, 290, 297; Overland Monthly, XIV, 329.