2.8      District Court, N.D. California, UNITED STATES V: SUTTER; June 10th 1861 (Westlaw, Hoff. Dec. 27, 27FOO8.1368 and Supreme Court of the United States No. 258, The United States, Appellants vs John A. Sutter – Appeal from the District Court U.S. for the Northern District of California (Westlaw.69US.562.1864WL6589 (U.S.Cal.)

a) Background

The biographer J. P. Zollinger  in Johann August Sutter “Der König von Neu Helvetien, Sein Leben und sein Reich, Zürich 1930, emphatically commenced his foreword as follows: “It is fair to say, that the year of 1839 marks the beginning of the history of the United States on the pacific ocean. At that time, that is exactly before 100 of years, it happened, that the man came through the golden arches (Goldene Tor), who formed first strong point for the American Union on that coast and who built the first provisional bridge across the vast sea of deserts and stones between the Missouri and the Pacific. The man’s was Johann August Sutter” (translation by the editor).

Johann August Sutter has a controversial biography, regardless if one tries to understand his life from a Swiss or from an American end and perspective. We include this pioneer of the Western Movement in the United States in an Anthology on Swiss law and legal culture, because law played a decisive role in the building and particularly in the falling apart of General Sutters possessions in the State of California and because thereafter he had used law for many years in order to obtain an indemnity from the American Congress. Law and legal institutions finally were of no avail in protecting General Sutter’s properties, which he had acquired based upon various grants by the Mexican government before California becoming a state in the Union. We are looking through many lenses at an early stage of the emerging property law in the State of California. Law and legal institutions apparently were not a consolidated part of the governmental organization of the United States at this moment of time (see among others Lawrence M. Friedman, A History of American Law, Third ed, New York, 2005 in Part III American Law to the close of the Nineteenth Century in Chapter 1 Blood and Gold, Some Main Themes in the Law in the Last Half of the Nineteenth Century, p. 251 – 278).

The situation of legal rights is described in the Wikipedia on the Californian Gold Rush as follows:
When the Gold Rush began, California was a peculiarly lawless place. On the day when gold was discovered at Sutter’s Mill, California was still technically part of Mexico, under American military occupation as the result of the Mexican–American War. With the signing of the treaty ending the war on February 2, 1848, California became a possession of the United States, but it was not a formal “territory” and did not become a state until September 9, 1850. California existed in the unusual condition of a region under military control. There was no civil legislature, executive or judicial body for the entire region.  Local residents operated under a confusing and changing mixture of Mexican rules, American principles, and personal dictates.

While the treaty ending the Mexican-American War obliged the United States to honor Mexican land grants, almost all the goldfields were outside those grants. Instead, the goldfields were primarily on “public land”, meaning land formally owned by the United States government. However, there were no legal rules yet in place, and no practical enforcement mechanisms.

The benefit to the forty-niners was that the gold was simply “free for the taking” at first. In the goldfields at the beginning, there was no private property, no licensing fees, and no taxes. The miners informally adapted Mexican mining law which had existed in California. For example, the rules attempted to balance the rights of early arrivers at a site with later arrivers; a “claim” could be “staked” by a prospector, but that claim was valid only as long as it was being actively worked.

The Swissness of the inclusion of Johann August Sutter in the Anthology lies in the fact, that General Sutter always stayed a Swiss and that he called his venture “Neu-Helvetien” (New-Helvetia) alluding to the name of Switzerland Confederatio Helvetica. We therefore include the case study on Johann August Sutter as a witness of American law and legal culture at the time.

From a broader perspective of legal culture, the fate of Johann August Sutter after fifty years of anonymity became known throughout the Western world because works of art based upon his life story, in which the reference to law played a specific and an above average function. This merits to be subsumed in a broader concept of legal culture – as an interesting example of “law and literature”. We therefore include parts of the novel of Blaise Cendrars “Gold” (see text 2.10) as well as a text of Stefan Zweig, The Discovery of Eldorado (see text 2.11). Part of American law thereby became a part of world literature in the early 20th Century. Sutter’s life has been the basis of many movies (see biography Wikipedia). 1866 he was painted in Washington while petitioning to Congress for an indemnity by the Swiss painter Frank Buchser, who was sent to Washington to paint the great victors of the Civil War.

In 1938 the biography of the Swiss historian J.P. Zollinger Johann August Sutter, Der König von Neu-Helvetien, Sein Reich, appeared. It was mainly researched and written at the Bancroft Library, at the California State Library and the Henry E. Huntington Library and was based on original sources. In 1934 the text New-Helvetia (Neu-Helvetien) Lebenserinnerungen des Generals Johann August Sutter, (memoirs of the general Johann August Sutter) was published.) This narrative and transcript of Erwin Gustav Gudde, a German historian, of the life of Johann August Sutter (see text 2.9) is based on Sutters personal memoirs,letters and other personal reports. Zollinger argued that based upon superficial bibliographical scetches of a local historian, the writers Blaise Cendrars and Stefan Zweig had considerably distorted the personal life of Johann August Sutter.

We paraphrase his biography as follows:.Johann August Sutter (February 15, 1803 – June 18, 1880) was a Swiss pioneer of California known for his association with the California Gold Rush by the discovery of gold by James W. Marshall and the mill making team at Sutter’s Mill, and for establishing Sutter’s Fort in the area that would eventually become Sacramento, the state’s capital. He was born in German village of Kandern, Baden then moved to the Swiss village Rünenberg. After having had to face charges that would have put him in jail in connection with his business matters, he decided to dodge trial and ventured to America. In May 1834, he left his wife and five children behind in Burgdorf, Switzerland, and with a French passport he boarded the ship Sully which travelled from Le Havre, France, to New York City where it arrived on July 14, 1834. Together with 35 Germans he moved from the St. Louis area to Santa Fe, New Mexico Territory, then moved to the town of Westport, Oregon Territory. On April 1, 1838, he joined a group of missionaries, led by the fur trapper Andrew Dripps, and went along the Oregon Trail to Fort Vancouver in Oregon Territory. From the Russian colony at Sitka, Sutter traveled by ship to Yerba Buena, now San Francisco, at that time a tiny poor mission station. Sutter embarked on a series of enterpreneurial ventures. He made peace with the Indians; the territory at that point was a part of Mexico. The governor Juan Bautista Alvarado, granted him permission to settle; in order to qualify for a land grant, Sutter became a Mexican citizen on August 29, 1840. He questionably identified himself as Captain Sutter of the Swiss guard. In the following year on 18 June, he received title to 48,827 acres (197.60 km2). Sutter named his settlement New Helvetia, or “New Switzerland,” after his homeland, “Helvetia” being the Latin name for Switzerland. Sutter began to establish Sutter’s Fort in August 1839, and the fort’s construction was completed in 1841.

A Francophile, Sutter threatened to raise the French flag over California and place New Helvetia under French protection, but in 1847 the Mexican land was occupied by the United States.[5] Sutter at first supported the establishment of an independent California Republic but when United States troops briefly seized control of his fort, Sutter did not resist because he was outnumbered.

Sutter’s El Sobrante (Spanish for leftover) land grant was challenged by the Squatter’s Association, and in 1858 the U.S. Supreme Court denied its validity. John Sutter got a letter of introduction to the Congress of the United States from the governor of California. He moved to Washington D.C. at the end of 1865 after Hock Farm was destroyed by fire. Sutter sought reimbursement of his losses associated with the Gold Rush. He never was successful with the American Congress. Sutter built a new home across from the Lititz Springs Hotel. On June 18, 1880, John Augustus Sutter died in the Made’s Hotel in Washington D.C. More than 50 years after the death of Johann August Sutter his name almost was forgotten.

We start this “case study” on Johann August Sutter with the supposedly hard currency of law, the texts of the judgments of the competent District Court of North California and the Supreme Court of the United States. Those texts are hardly brought to light in dealing with this man.
The editor thanks Professor Urs Gasser, Harvard Law School, for his help in searching the legal documents at hand.

b) Summary

Before studying the decisions of the District Court in the matter United States versus Sutter of June 10th 1861 and Decision on appeal in the matter by the Supreme Court of the United States in the Sutter case of the December term of 1864 the reader and user may take note of a paraphrased history of the complex political, legal and societal conditions in the transfer of land under Mexican and under Californian rule for the gold rush.

With the cession of California to the United States following the Mexican-American War, the 1848 Treaty of Guadalupe Hidalgo provided that the land grants would be honored. As required by the Land Act of 1851, in 1852 Sutter filed a claim with the Public Land Commission for the eleven square leagues granted by Alvarado in 1841. In 1853 Sutter amended his petition, and claimed an additional twenty-two square league “Sobrante”, granted to him and his son, John A. Sutter Jr., by Governor Manuel Micheltorena in 1845. Both grants (New Helvetia and Sobrante) were confirmed by the US District Court in 1857; but the US Attorney General filed an appeal and took the case to the US Supreme Court. Although Sutter could not produce the original records of his grant, the Supreme Court accepted the 1841 Alvarado grant (New Helvetia); but sent the 1845 Micheltorena grant (Sobrante) back to the district court. In 1864, the US Supreme Court rejected the 1845 Micheltorena grant (Sobrante). The eleven square league Alvarado grant was patented to John A. Sutter in 1866.

Although the cases at hand have hardly been made public, political and institutional preconditions and the proceedings in front of the Land Commissions as well as the Courts are well documented and accessible on the internet. The reader and user may consult and do further research while consulting the results of the Wikipedia biography of Johann August Sutter and Wikipedia texts on New Helvetia and the Californian Gold Rush.

If a reader and user is interested to know how nowadays legal issues of landownership can also be handled, hemight turn to the seminal book of Robert C. Ellikson, Order without Law How Neighbors Settle Disputes, Harvard University Press, Cambridge, Massachusetts and London, England, 1991.

c) Text

You can find a scan (PDF) of the original text here:
A_2.8_Sutter Supreme Court

© Prof. Jens Drolshammer,,


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