Two distinguished men of the law, who counseled the miners and legislated for them, though not credited with having handled pick, shovel nor pan, are Elisha W. McKinstry and Stephen J. Field. McKinstry was a member of the Assembly from Sacramento at the first session of the Legislature which met at San Jose on December 15, 1849, and ended its work on April 22, 1850. He served the people in various other capacities, judicial and otherwise, with satisfaction to the public and great credit to himself, terminating a highly honorable career of over 15 years on the supreme bench by resignation October 1, 1888.

Shuck, in his history of the Bench and Bar of California says:
"Judge McKinstry wrote the majority opinion (4 to 3) of the State Supreme Court in that great water rights case of Lux vs. Haggin in May, 1885, and the majority opinion of that court (also 4 to 3) in the Sharon case, February 1, 1888."

The Lux case was one in which the court held that the Common Law doctrine of riparian rights prevailed in California. The Sharon decision affirmed a judgment of the Superior Court sustaining the validity of a Common Law marriage.

Another pioneer lawyer, legislator and jurist who did not delve into the sides of the Sierra was Stephen J. Field. Perhaps more than any other one man he fabricated the law of California and her sister commonwealths between the Rocky Mountains and the western sea. He was the Alcalde and justice of the peace in Marysville in 1850, and as a member of the Assembly in 1851 performed a most valuable service by revising and formulating the fundamental civil and criminal practice codes of California. An extra-judicial service greatly to his credit and redounding permanently to the harmonious working of the California codes enacted in 1872 was that performed in collaboration with Judge Jackson Temple and John W. Dwinelle under appointment by Governor Booth, as commissioner to report suggested amendments to the codes at the Legislature of 1873-1874. This work was done thoroughly with great detail and months of work while Field was a justice of the United States Supreme Court. The amendments reported by the commissioners and enacted by the Legislature constituted a good-sized volume of laws, as I well remember, because after opening my law office, June 10, 1874, at 637 Kearny street I passed several months of my time, not overcrowded with clients, in cutting my bound volume and inserting each amendment in its appropriate place in my original volume of the codes of 1872. President Lincoln had appointed Judge Field in 1863 to the supreme bench. His service in the highest court continued 26 years. A similar long and honorable service by Justice McKenna has given California representation in the greatest judicial tribunal in the world for more than 50 years.

A pioneer lawyer who preceded the gold seekers was Horace Hawes, who arrived in California in 1847. As Judge Field was a great factor in the foundation of the permanent law of California. Horace Hawes was possibly the greatest factor in shaping the political government of San Francisco. Originally the City of San Francisco was the county seat of the County of San Francisco, one of the first 27 counties organized by the Legislature February 18 1850. The territory known since 1856 as San Mateo county was the southern and greater portion of San Francisco county. The first incorporated City of San Francisco was bounded on the south by a line two miles south of the center of Portsmouth Square parallel with Clay street, and on the west by a line 1 1/2 miles from the square parallel with Kearny street. The statute of 1856 created the County of San Mateo and made of the remaining territory of San Francisco county a consolidated City and County of San Francisco, the smallest bit of territory, but the greatest political and commercial factor in the upbuilding of the Golden State. Horace Hawes created the original charter of San Francisco. His Consolidation Act of 1856 has shaped the political history of our local government ever since.

Events affecting the future of the Mexican province of Alta California followed in quick succession. Active hostilities ceased when General Winfield Scott, after battling down the guardian fortresses of Molinao del Rey and Chapultepec, at the gates of the Mexican capital, stood in the center of the Grand Plaza, September 14, 1847, and bared head and uplifted sword proclaimed the conquest of Mexico.

The treaty of Guadalupe Hidalgo, defining the terms of peace, was signed on February 2, 1848, and finally proclaimed by President Polk July 4, 1848.

Immediately following the cessation of hostilities with Mexico, and the proclamation of peace, an event of epochal importance transpired on the south fork of the American river on the lands of John A. Sutter, a Swiss, who had become a Mexican citizen. Convinced that the public attention which the war had focused on California would result in a large influx of newcomers and a resulting demand for lumber, Sutter sought the co-operation of a New Jersey millwright named [John] Marshall to build in partnership with him a sawmill at a point known as Coloma in El Dorado county. As the mill was nearing completion a change in the tail-race became necessary, which involved digging up of the river bed at the lower end and the release of accumulated waters over the rocks and earth at the bottom. The sluicing over night left exposed to the astonished eyes of millwright Marshall in the morning a glittering substance which proved to be gold. The exact date of the discovery is in dispute. Hittell in his history of California gives January 19, 1848, as the date. No dispute has ever existed as to its effect. Within five years twelve hundred million dollars in gold were extracted from its repository of the ages in California and placed in the coffers of the world. Alta California has become a foremost American commonwealth and the vast stretch of territory from Baja (Lower) California to British Columbia and from the Rocky Mountains to the great western ocean has become an unbroken field of American states.

On February 12, 1848, Colonel Richard B. Mason, as Acting Governor of California, made a proclamation abrogating Mexican mining laws and customs in California. Whether Mason's proclamation amounted to a mere brutum fulmen, or not, it served a useful purpose, preventing the assertion of false claims of mine ownership or operation based on the former Mexican law.

Certainly no Mexican law governed ownership or operation of mines on public lands already the property of the United States. No law of the United States regulated the sale of mining lands or their operation by an invading army of gold seekers. Immediate or early Congressional legislation seemed improbable. Of the thirty organized governments constituting the United States 15 favored the maintenance and expansion of the institution of slavery. An equal number stood in opposition. Legal chaos confronted the adventurous, earnest, honest men who faced failure or success at the end of their pilgrimage. With the Anglo-Saxon respect for law and order and for personal rights and property, and with purely American initiative, these miners in a moment evolved from their own brains and through their united harmonious action a system of rules and usages concerning the occupation and operation of mines which at once became law. Speaking of this miner-made law and its equal operation, Judge Field, in behalf of the United States Supreme Court, said:

"Nothing but such equality would have been tolerated by the miners, who were emphatically the lawmakers as respects mining upon the public lands in the state. The rules and regulations originally established in California have in their general features been adopted throughout all of the mining regions of the United States. They were so wisely framed and were so just and fair in their operation that they have not to any great extent been interfered with by legislation state or national. In the first mining statute, passed July 9, 1866, they received the recognition and sanction of Congress, as they had previously the legislative and judicial approval of the states and territories in which mines of gold and silver were found."

These discriminating mining legislators initiated a different rule for load claims from that applied to placers. Departing from the Common Law they ordained that the ownership should attach to the thin sheet-like quartz veins and that a claim should consist of a certain horizontal block of the vein, however it might run, but extending indefinitely downward with a strip of surface on or embracing the vein's outcrop for the necessary machinery and buildings.

Ownership and working of quartz vein did not preclude different ownership and use of the surface above for commercial or agricultural purposes. Thriving towns have been built and owned in small holdings, while hundreds, and in some cases thousands of feet underneath mining operatives extracted the precious metals from the veins.

Similarly these wise pioneers of the West devised and operated plan for the use in mining of necessity water on public lands.

The great seal of the State of California carries as its foreground a figure of the Goddess Minerva, fabled as having sprung full grown from the brain of Jupiter, designed to symbolize the full-grown political birth of the state. It may be well claimed to symbolize also the instantaneous full-grown birth in California of the mining and water law of western America.

On June 3, 1849, Bennett Riley announced by direction of his superior officers that he has assumed the administration of civil affairs in California, not as a military governor, but as the executive of an existing civil government whose character and organization he defined. At the same time he called for a convention to meet at Monterey to frame a constitution. Such a convention met in Colton Hall, Monterey, on September 1, 1849, and worked continuously, intelligently and conscientiously until it completed its labors on October 13. Robert Semple of Benicia was president, William G. Marcy, secretary, and J. Ross Brown, official reporter of the convention.

Besides the president, 47 other members signed the constitution. The personnel embraced 36 natives of Eastern States, New York having 11. Seven native Californians were members; also one native from each of the following countries: France, Ireland, Scotland, Spain and Switzerland (John A. Sutter). Fourteen styled themselves lawyers and one gave his profession as "U.S. Engineer," being the same H.W. Halleck, who as secretary of state had attested Governor Riley's call for the convention. A graduate of West Point, a distinguished engineer and for a time was one of San Francisco's law firm of Halleck, Peachey, Billings & Park, which, between July and December of 1853, as owners, built the Montgomery block at Washington, Montgomery and Merchant streets. For years it was the nest of the greatest collection of law books and lawyers in California. Halleck must have been a good engineer as Montgomery block is still where he put it. His public papers, his convention debates and his published works prove him a good lawyer.

The constitution was framed in line with the best organic law of American commonwealths. It ruled the state without fundamental change for 30 years. Space permits reference to only a few points.

William E. Shannon, 27 years old, a native of Ireland and three years a resident of California, secured the declaration in the Bill of Rights that neither slavery or involuntary servitude, unless for the punishment of crimes, shall ever be tolerated in this state.

While securing the freedom of other races, the legislators believed in the emancipation of the married woman of their own. Favoring the common as contradistinguished from the civil law, they abolished the common law penalties of loss of identity and loss of property inflicted on the women of property who married. The debates show that the provision was incorporated into the constitution instead of being left to the Legislature in order to insure its perpetuity. Among its motives were its inherent justice to the woman herself; the immunity of the woman's property against spoliation or loss in the reckless whirl of mining adventures of the time, and finally, a chivalrous impelling urge was found in the fact that a small percentage of the citizenry represented by a small membership in the convention had grown up under the system of Spain and Mexico and become accustomed to the better treatment of women. This honest and chivalrous treatment of women has been characteristic of Californians throughout 75 years of the law, constitutional and statutory.

The people of California on November 13, 1849, adopted the constitution and elected the officers of the state, therein provided for. The Legislature thus elected met at San Jose on December 15 following. The statutory work to carry out the directions and to supplement the legislation of the constitution itself was well and quickly done.

The state was organized into counties (originally 27) and into judicial districts (originally 9). The Common Law of England as Americanized, was adopted by the statute April 13, 1850. In addition a general scheme of legislation for the proper functioning of the state and its officers was made effective.

The Legislature at its next session in 1851 rounded out the hastily prepared governmental scheme of 1850, and under the dominating influence of Assemblyman Stephen J. Field gave permanent form to the statute of crimes and punishments and to the general laws affecting personal and family relations and to the civil, probate and criminal practice in our courts.

In 1872, after strenuous and very competent labor by Creed Haymond and his associates, and a very elaborate report by the commission, the general laws of the state were segregated into four codes--Civil, Civil Procedure, Penal and Political. Each code was enacted as a single statute. The Legislature of 1871-1872 directed that the code provisions should become effective as of the first day of the following year. Amendments of the law since that date are made by reference to the appropriate sections of the code affected.

With but unimportant amendment the constitution of 1849 ruled the state for 30 years.

As authorized by Section 2 of Article X of the constitution, the Legislature of 1876 submitted to the people a proposition to call a convention. The people voted in favor of the proposition. The people voted in favor of the proposition. On March 30, 1878, the Legislature passed an act calling for the election on June 19, 1878, of 152 delegates to the convention. The delegates elected met in Sacramento, September 28, 1878. On March 3, 1879, the convention adopted the constitution.

On May 7, 1879, a new constitution was adopted by a vote of the people. It took effect July 4, 1879, as to the election of officers, the commencement of terms and the meeting of the Legislature. In all other respects it took effect January 1, 1880.

To a lawyer the outstanding change wrought by the constitution of 1879 was the creation of an entirely new judicial system. All former courts, save justices and police courts, were abolished. The County Courts and the 23 District Courts and the former Supreme Court of five justices ceased to exist January 1, 1880.

The new court of Chief Justice and six associate justices, which took office Monday, January 5, 1880, consisted of Robert F. Morrison, chief justice, and Samuel Bell McKee, Erskine M. Ross, John R. Sharpstein, James D. Thornton, E.W. McKinstry and M.H. Myrick, associate justices... .

The new system created a Superior Court for each county in lieu of the former county courts and of the 23 district courts. The court in San Francisco was to have 12 judges, but one judge was to be elected by the two courts of Yuba and Sutter counties, the unique distinction of filling two offices going to Judge Phil W. Keyser of Marysville, who was district judge in the Tenth District covering the counties named.

Six counties were allowed two judges each for their courts, viz., Alameda, Los Angeles, Sacramento, San Joaquin, Santa Clara and Sonoma. San Francisco was given 12 judges... .

The courtrooms of the first eight [San Francisco judges] were in what was known in those days as the old City Hall on Kearny street, the site of the present Hall of Justice. The chambers in which they discharged officials duties when not on the bench were in Montgomery block. Judges Finn and Halsey had courtrooms and chambers in the then unfinished new City Hall, corner of McAllister and Larkin streets, the site of the former Yerba Buena (City) Cemetery. Judges Freelon and Ferral transacted the criminal business, and their departments in quarters located on the west side of Montgomery street north of Washington.

The business has increased in 45 years. Sixty-nine Superior Court judges were provided in 1880. One hundred and thirty-two are supplied now. The Supreme Court of 1880 is no longer adequate to the appellate work. By constitutional amendment District Courts of Appeal were established as an intermediate system, one such court sitting in Sacramento, for the northern counties; one at San Francisco for the central counties, and the third in Los Angeles for the southern district, each court having three judges. A continued increase of business demanded the additional divisions of the District Court of Appeal are housed in the State Building at the Civic Center. The departments of the Superior Court, with the exceptions of those handling criminal cases in the Hall of Justice, have quarters in the City Hall at the Civic Center, as fine a courthouse as can be found in the United States.

The pioneers who astonished the world by the instant creation of codes of mining and water laws for the western mining world are no longer with us. But the mold in which they were cast was not broken. As a Californian it has been my boast that the pioneers who builded our American state reared such a race of fair, virtuous women, of honest, brave and brainy men as forms a fitting complement for the wealth and beauty with which God and Nature have endowed our loved Californian land. The California law of the closing 75-year period is the most romantic as well as the most useful offering to the world's progress. I trust that in the future, as in the earlier days, California lawyers may prove themselves doers of high-class public service and counselors of the commonweal. Their highest obligation is to perpetuate the respect for the Constitution of the United States shown by founders of the commonwealth.