Wednesday, May 11, 2011
Page 7
PERSPECTIVES (Column)
Ogier Is First DA of Los Angeles County; Earlier, He Sought to Bar Blacks From California
By ROGER M. GRACE
144th in a Series
ISAAC STOCKTON KEITH OGIER (better known as “I.S.K. Ogier” or “Isaac S.K. Ogier”) was the first district attorney of Los Angeles County. William C. Ferrell and Thomas W. Sutherland had previously served as DAs for this county, as well as San Diego County, acting in the capacity of district attorneys of California’s First District.
Ferrell’s stint started in May, 1850, prior to statehood (attained on Sept. 9, 1850).
Ogier came after Sutherland, who was one of Los Angeles’ two forgotten DAs, and before the other DA whose service has been overlooked by historians, Lewis Granger.
Ogier’s service in office, far from being unnoticed, has been exaggerated. The various lists of past DAs of this county—those appearing in books published in the 19th Century, those found in recent volumes, and ones you’ll encounter on websites—list him as having been in office from 1851-52. The website of the Los Angeles District Attorney’s Office says, in a biographical section (stuffed with fiction):
“Ogier served a year as District Attorney.”
The truth is that Ogier was chosen in the election of Sept. 3, 1851, for a term beginning Oct. 6; he quit the same month he took office.
A report on his resignation appears in an issue of the Los Angeles Star some time in October of 1851, the precise date being unknown. A copy might well exist somewhere, but the issue is not among those available on microfilm. Nonetheless, the Nov. 13, 1851 edition of San Francisco’s Daily Alta California, accessible via the Internet, summarizes recent reports from the Star through Nov. 1, including this:
“I. S. K. Ogier, Esq., has resigned the office of District Attorney. The alleged cause of this step is that the Court manifested a disposition to thwart him in his endeavors to prosecute the indictments found by the grand jury. The Court appointed Lewis Granger, Esq., to perform the duties of the office for the balance of the term.”
In other words, Ogier was believed to have quit in a huff based on a perception that District Judge Oliver Witherby was biased against the prosecution. Particulars of Ogier’s displeasure with the jurist—if, in fact, such was the cause of the DA’s abandonment of office—float in one of many dense fog patches of California’s early history.
Though Ogier’s stint as DA was fleeting, his role in early California affairs was significant. His story implicates two controversies that sizzled in California in the early 1850s: slavery and issues that were offshoots of it—discussed today—and vigilantism, the subject of the next column.
Ogier was imbued with Southern values. He was born in Charleston, South Carolina, July 27, 1819. His father, Thomas Ogier, owned nine slaves, according to the 1830 census.
Presence of persons of African origin was most welcome in South Carolina…provided, however, that those persons were slaves. Those who had been freed were banned from setting foot in the state. An 1835 statute provided “[t]hat it shall not be lawful for any free negro or person of color to migrate into this State, or be brought or introduced into its limits, under any pretext whatever, by land or by water….”
On May 14, 1844, an ad appeared in the Southern Patriot, a Charleston newspaper, announcing a public meeting that night “FAVORABLE TO THE IMMEDIATE ANNEXATION OF TEXAS.” The text begins: “We the undersigned, believing that the annexation of Texas is an American Measure; that its loss will be a triumph of British policy, and a deep wound to the Slave States….” I.S.K. Ogier was among the many signatories.
Slavery existed in the Republic of Texas. Great Britain, opposed to slavery, was boycotting U.S. cotton, but was proposing the purchase of cotton from Texas if it would abolish slavery.
The Aug. 3 edition of the same newspaper shows that Ogier was active in the Young Men’s Democratic Association which favored annexation of Texas, massive terrain in which slavery was lawful. At the time annexation took place in 1845, there were an estimated 30,000 slaves there.
Ogier was admitted to the bar in 1845, started his law practice in Charleston, then moved later that year to New Orleans. The next year, he joined the U.S. Army’s Montezuma Regiment, from Louisiana, which defended Texas against Mexico in the Mexican-American War. Though Texas had been a republic since 1836, Mexico had not recognized its loss. Ogier served as a captain.
The war ended in 1848, Ogier resumed practice in New Orleans that year, then forayed to California in 1849. In December of that year, he became a member of California’s first Assembly, representing San Joaquin.
The following report from the March 2, 1850 issue of the Placer Times will not cast that assemblyman in endearing light:
“Mr. Ogier gave notice that on Thursday he would introduce a bill providing against the emigration to this state of free negroes.”
At that point, slavery was forbidden in California. A constitution for the would-be state was ratified by voters at a Nov. 13, 1849 election—the tally, according to the Dec. 22 issue of the Placer Times, being 9,977 in favor, 813 opposed—and Art. I, §18 of that document proclaims:
“Neither slavery nor involuntary servitude, unless for the punishment of crimes, shall ever be tolerated in this State.”
In the days following U.S. seizure of California from Mexico in 1847, slavery did exist here, though on quite a limited scale. In particular, some southerners, lured by the gold strikes which began in 1848, brought slaves with them to wield pick axes.
With the Dec. 12, 1849 proclamation by the outgoing military governor, Bennett C. Riley, that the “yes” vote on the Constitution had prevailed, slavery in California ended. Well, supposedly. Some slave owners didn’t happen to get around to apprising their slaves of the news.
Also, legislation passed on April 15, 1852, caused persons who seemingly had been liberated by the California constitutional provision to be, effectively, returned to bondage. It provided that those brought here as slaves prior to California’s admission to the Union and who refused to return with their purported owner to the state from which they had come, were now “fugitives from labor.” They were subject to arrest and being handed over to their owners. At the October term of the state Supreme Court, each of the three justices wrote an opinion in the case of In re Perkins and found the enactment valid.
Ogier’s 1850 bill was reflective of wide-spread—albeit not prevailing—sentiment of the time. Here are a couple of antecedent events:
· The Oct. 6, 1849, edition of the Placer Times, reporting on actions of the constitutional convention, tells of approval by delegates, sitting as a committee of the whole, of this provision:
“The Legislature shall, at its first session, pass such laws as will effectually prohibit free persons of color from immigrating to and settling in this state, and to effectually prevent the owners of slaves from bringing them into this state for the purpose of setting them free.”
The newspaper was late in its receipt of information. Approval by the committee had occurred on Sept. 19, as shown by the official record of the convention, made by John Ross Browne. His report of the convention shows that the proposal was defeated on Oct. 3 by a vote of 31-8.
Among those voting against it was Kimball Dimmick, who would follow Granger as district attorney. His ground, however, was not an ethical concern but a legalistic one. Dimmick argued on Sept. 19 that the Legislature should not be dictated to as to what laws were to be passed, and remarked:
“If the Legislature should at any future period, find that our interests are endangered by any particular class of population, there will then be justifiable reasons for excluding them. But in the absence of this proof, let our organic law be consistent with the declarations embraced in our bill of rights. Let Africans be placed upon the same footing with natives of the Sandwich Islands, Chilians, and Peruvians, and the lower classes of Mexicans. You permit those classes to come here and enjoy the political rights which we enjoy ourselves. Why should we adopt a prescriptive rule with reference to another class speaking our own language, fully as intelligent as they are, possessed of as much physical energy, and better acquainted with our habits and customs. I have no partiality for the negro race. I have the same personal antipathies which other gentlemen avow; but I desire that we should act with consistency.”
·The Daily Alta California’s edition of Dec. 26, 1849, contains the text of the “FIRST ANNUAL MESSAGE Of the Governor of the State of California.” (While California was not a state yet, it operated as if it were, to show Congress that it was ready for that status without the intermediary step of being a territory.)
In that message, Gov. Peter Burnett hails the non-slavery provision, but adds that “the constitution has made no provision in reference to the settlement of free people of color within our limits, but has left the legislature to adopt such legislation upon this delicate and important subject, as may be deemed most essential to the happiness of our people.”
He notes that under the Constitution, such persons could not vote or hold office, and declares:
“If we permit them to settle in our state, under existing circumstances, we consign them, by our own institutions, and the usages of our own society, to a subordinate and degraded position; which is in itself, but a species of slavery. They would be placed in a situation where they would have no efficient motives for moral or intellectual improvement, but must remain in our midst, sensible of their degradation, unhappy themselves, enemies to the institutions, and the society whose usages have placed them there, and forever fit teachers in all the schools of ignorance, vice, and idleness.”
The Constitution also denied women the right to vote or hold office, but it somehow did not occur to the governor to suggest barring further admission to California of females, out of a similar beneficent concern for their welfare.
The governor’s message contains the assertion that “[w]e have certainly the right to prevent any class of population from settling in our state, that we may deem injurious to our own society.”
Unsettling as it is to contemplate, that proposition was, at the time, legally sound. Under the view then prevailing, Ogier’s proposal did not offend the “privileges and immunities clause” of the federal Constitution.
In the 1856 Dred Scott decision—references to which are often preceded aptly by the modifier “infamous”— the majority’s opinion by U.S. Chief Justice Roger Taney declares that free Negroes “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”
(The term “African Americans” which has pretty much supplanted reference to “Negroes” in recent years, is not employed here for the simple reason that under that 1856 decision, those brought to the U.S. from Africa were not, at that time, regarded as “Americans.”)
The Dred Scott decision validated the view expressed in various opinions of state courts, such as that of the Tennessee Supreme Court in 1838 upholding this statute:
“It shall not be lawful for any free person of color (whether he be born free, or emancipated agreeably to the laws in force and use, either now, or at any other time, in any State within the United States or elsewhere), to remove himself to this State to reside therein, and remain therein twenty days.”
Free Negroes, the opinion says, “are not citizens in the sense of the Constitution; and therefore when coming among us are not entitled to all the ‘privileges and immunities’ of citizens of this State.”
Other states had similar provisions.
In California, it is set forth in one of the opinions in the 1852 Perkins case that it was “well established that the States for their own safety may exclude any obnoxious class of inhabitants,” and in another of the opinions in that case that “protection of the State from this obnoxious class of population”—that is, blacks—was permissible.
Sentiments expressed by Burnett, and reflected in Ogier’s legislative proposal, were steeped in immorality. Yet, Ogier’s bill did pass the Assembly.
Theodore Henry Hittell recites in his 1885 book, “History of California” (Volume 2), that “[w]hile there was very general unanimity against slavery” in California in 1850, many “had an almost unutterable aversion to free negroes.”
The book notes:
“John F. Williams of Sacramento introduced into the assembly a bill directed against the immigration of free negroes, mulatto servants and slaves, which, on motion of Edmund Randolph of San Francisco, was promptly rejected. But afterwards [I.] S. K. Ogier of San Joaquin introduced, through the judiciary committee of the same house, a bill to prevent the immigration of free negroes and persons of color, which was passed by a vote of eighteen ayes to seven noes. When the bill reached its second reading in the senate it was, on motion of David C. Broderick, indefinitely postponed by a vote of eight to five.”
Hittell advises:
“In October of 1850, Ogier lost a race in Mariposa County for the state Senate and in November, 1852, he failed to gain election in Los Angeles to the state Assembly.”
Ogier did, however, gain election as Los Angeles County district attorney in 1851, defeating Granger by a vote of 285-192 (according to the Alta California’s Sept. 25 recitation of the tally, lifted from the Los Angeles Star), and would go on to serve as a U.S. district attorney and as a federal district judge.
Copyright 2011, Metropolitan News Company