next important statutes was a liberal act, which has not been amended much since its passage, concerning divorces. There was considerable controversy upon this subject. The previous legislature had failed to pass a divorce law; and, when the matter came up in the assembly, that body, after a long debate, passed the bill by a vote of only seventeen ayes to sixteen noes. In the senate the bill was referred to a select committee, of which Elcan Heydenfeldt presented a majority report against the bill, pronouncing it unconstitutional and urging that it was inexpedient to legislate upon the subject. It claimed that the constitutional provision that no divorce should be granted by the legislature deprived the legislature not only of granting a divorce but also of granting the power to the courts to decree divorces. It seemed to admit that the courts could grant divorces, as at common law, for causes existing before marriage presenting insuperable obstacles to entering into the marital relation. But it claimed that the marriage contract was a religious sacrament indissoluble except by death, and that it should never be dissolved except by death. On the other hand George B. Tingley submitted a minority report in favor of divorces, showing that the reasoning of the majority was not logical and claiming that there were various cases in which the marital obligation became a distressing burden to the parties and a festering curse to the community.'

Heydenfeldt next presented a petition of a number of residents of San José against a divorce law, followed a day or two afterwards by a similar petition from residents of San José Mission, and a third from residents of San Francisco, all of which were referred to the select committee; and Heydenfeldt as its chairman reported in favor of the petitions and recommended that the bill should be rejected. But the senate refused to act on his recommendation. Heydenfeldt appears then, as chairman of the select committee and evidently with a view of strengthening his cause among certain classes of the community, to have invited Rev. O. C. Wheeler, a Baptist preacher, to deliver a sermon against divorces. There is no reason to believe that anything Wheeler could have said would have produced much effect; but 'Journals of Legislature, 1851, 89, 100-121, 656–668.

the fact that Heydenfeldt had resorted to such an expedient as inviting a sermon in the name of his committee on a subject pending before the senate provoked much adverse comment and drew down upon him a resolution, adopted by six votes to four, that he had exceeded his powers and in effect censuring him therefor. The bill was then bitterly fought inch by inch, but was finally passed in the senate by a vote of seven ayes to three noes; and on March 26 it received the signature of the governor and became a law. On the next day notice was given in the assembly that a bill would be introduced to repeal the act thus passed; and a week or two afterwards such a bill was presented and passed the assembly by a vote of eighteen ayes to eleven noes; but when it reached the senate, it was indefinitely postponed by a vote of seven ayes to two noes.1

Another important statute passed by the legislature of 1851, which has in substance continued in force in California to this day and which has given rise to a long, interesting and important series of decisions by the supreme court, was the homestead act. A bill to exempt a homestead and other property from forced sale in certain cases had been presented in the assembly of 1850; but it had failed to pass and the subject was postponed. The same bill was on January 17, 1851, introduced into the senate, where it was very fully discussed, amended in various particulars and at length, in the form of a substitute bill which had been adopted in the assembly, passed by a vote of nine ayes to four In the assembly the substitute had been passed by a vote of sixteen ayes to ten noes, when Samuel A. Merritt moved to amend its title so as to read “A bill to prevent the collection of debts;" but his motion was indefinitely postponed by a vote of seventeen ayes to nine noes; and on April 22, 1851, the bill was signed by the governor and became a law. Another act, very different in its purview but in one sense intended for the somewhat similar object of providing against improvidence, and equally with the homestead act demanded by a special provision of the constitution, was the act to prohibit lotteries. It was introduced into the senate by David C. Broderick on January 9 and passed

noes.

'Journals of Legislature, 1851, 131, 349, 404, 960, 1417, 1535, 1580. 2 Journals of Legislature, 1851, 62, 105, 109, 399, 1495-1498, 1654.

that body on January 16, 1851. The assembly a few days afterwards made certain amendments, which the senate refused to accept; and there had to be a conference committee and some compromise before an agreement could be reached. The act as passed became a law on March 11, 1851. Though it had to be explained by a new act in 1854 and was afterwards superseded by much broader legislation on the same subject, it served as the beginning of a steady and persistent effort, so far at least as legislative provisions are concerned, to carry out the constitutional provision.' It can not be said, notwithstanding these efforts to prevent lotteries, that the Californian community had advanced far enough to relinquish gambling. This was shown not only by the opposition manifested to the lottery bill, but still more so by a renewed and, as it proved, successful attempt in this legislature to license gaming. A bill to this effect was introduced into the senate by Thomas B. Van Buren on March 4 and passed that body on March 8. The assembly passed it with some amendments a few days afterwards; and it was signed by the governor on March 15, 1851. About two weeks subsequently it was amended in some particulars and continued to be the law until April 17, 1855. when it was repealed by an act to suppress gaming, which in the course of a few years was followed by more and more stringent laws in the same direction. In this connection, it may be added that on March 19, 1851, Elisha O. Crosby presented a memorial of citizens of San José, praying for laws prohibiting gambling altogether as well as various other offenses against public morals; but the legislature paid no attention to it. A much more effective petition was presented from citizens of El Dorado county, praying that horse, mule or ox stealing might be made a capital offense punishable summarily by hanging. In response in part at least thereto, an act was passed on April 22, 1851, making robbery and grand larceny punishable by imprisonment in the state prison "or by death in the discretion of the jury" and petty larceny by imprisonment in the county jail or fine "or

'Journals of Legislature, 1851, 44, 61, 69, 101, 282, 310; Hittell's Gen. Laws, 4407.

2 Journals of Legislature, 1851, 282, 297, 308; Hittell's Gen. Laws, 3322

by any number of lashes not exceeding fifty upon the bare back or by such fine or imprisonment and lashes in the discretion of the jury"—and so the law remained until 1856.1

The most exciting subjects, however, which were considered at the session of the legislature of 1851 were the so-called water-lot act of San Francisco and the removal of the state capital. The first, embracing the grant to the city of San Francisco for ninety-nine years of the lands covered by the tides on the city front, which has already been adverted to and described in speaking of the progress of San Francisco, gave rise to much controversy and some bitter charges. A bill providing for the granting of certain public lands in San Francisco, which had been sold under the so-called Kearny grant of 1846, and quieting the title of claimants thereto was first introduced into the senate on February I by Heydenfeldt. The judiciary committee, to whom it was referred, reported a substitute, which was passed by a vote of eleven ayes to two noes on February 5. When the bill reached the assembly, it was referred to a special committee, of which Benjamin F. Moore was chairman; and he on March 10, as such chairman, presented an able report, holding that no title and substantially no equity had been acquired by purchasers under the Kearny grant and that the right to the control and management of the property resided exclusively in the state. He therefore reported another substitute; but the assembly rejected it, at the same time materially amending the senate bill and in many respects making it conform to Moore's substitute. Upon returning to the senate the bill was again amended and passed; but this passage was reconsidered and the bill again amended and passed; and finally on March 26, 1851, it became a law.

About the time of the passage of this act, grave charges of corruption were made and became so frequent that on April 11, Duncan W. Murphy, a member who had voted for the bill, introduced into the assembly a resolution which was adopted, directing an inquiry as to whether any member of the house had been influenced in his action or vote by a promise of reward; and a

'Journals of Legislature, 1851, 91, 101, 328; Hittell's Gen. Laws, 1459-1461 and notes.

committee of five with Murphy as chairman was appointed by the speaker to make the investigation, with full power to send for persons and papers. But it appears that the credit of the state was not sufficiently good to insure the attendance of witnesses; and the next day H. S. Richardson moved that each member of the house should contribute to the sergeant-at-arms his pro rata of the amount required to summon and pay witnesses; but, on motion of Gaven D. Hall and after some wrangle, a substitute was adopted dissolving the committee and recalling all writs and processes issued. Notwithstanding this action, Drury P. Baldwin on the same day introduced a resolution asking for a committee to inquire whether any charge of corruption or bribery had been made against any member which demanded investigation. A committee, with Baldwin as chairman, was accordingly appointed. It reported on May 1, the last day of the session, that, if it had had time, it believed facts of a startling character would have been elicited; but, as it was, the most important witnesses failed to appear and there was no time left to coerce their attendance. Such testimony as had been taken accompanied the report. On motion of Stephen J. Field the report and accompanying documents were laid on the table; and later in the day, on motion of John Bigler, the testimony presented was directed to be erased from the journals and filed in the office of the secretary of state.'

Still more exciting and bitter than the water-lot controversy was that in reference to the removal of the state capital. This contest had in effect commenced in the legislature of 1850. The question of removal from San José being moved, a number of propositions were offered-one from the citizens of Monterey, another from those of San José, another from Jonathan D. Stevenson and W. Parker, the proprietors of an obscure place near the mouth of the San Joaquin river called New York on the Pacific, and another from Mariano G. Vallejo. All were more or less schemes for private advantage; but the grandest was that of Vallejo. He represented himself to be the owner of extensive lands on the Straits of Carquinez and Napa river 'Journals of Legislature, 1851, 103, 110, 116; 1329–1333, 1348-1351, 1447, 1579, 1584-1586, 1588, 1793, 1794, 1813.