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Chapter 3

LAW--MILITARY AND CIVIL

The military conquest of California was now an accomplished fact. As long as hostilities should continue in Mexico, California must remain under a military government, and such control was at once inaugurated. The questions to be dealt with, as may well be imagined, were delicate in the extreme. In general the military Governors handled such questions with tact and efficiency. This ability was especially true in the case of Colonel Mason, who succeeded General Kearny. The understanding displayed by this man in holding back the over-eager Americans on one side, and in mollifying the sensitive Californians on the other, is worthy of all admiration.

The Mexican laws were, in lack of any others, supposed to be enforced. Under this system all trials, except of course those having to do with military affairs, took place before officials called alcades, who acknowledged no higher authority than the Governor himself, and enforced the laws as autocrats. The new military Governors took over the old system bodily and appointed new alcaldes where it seemed necessary. The new alcaldes neither knew nor cared anything about the old Mexican law and its provisions. This disregard cannot be wondered at, for even a cursory examination of the legal forms convinces one that they were meant more for the enormous leisure of the old times than for the necessities of the new. In the place of Mexican law each alcalde attempted to substitute his own sense of justice and what recollection of common-law principles he might be able to summon. These common-law principles were not technical in the modern sense of the word, nor were there any printed or written statutes containing them. In this case they were simply what could be recalled by non-technical men of the way in which business had been conducted and disputes had been arranged back in their old homes. But their main reliance was on their individual sense of justice. As Hittell points out, even well-read lawyers who happened to be made alcaldes soon came to pay little attention to technicalities and to seek the merit of cases without regard to rules or forms. All the administration of the law was in the hands of these alcaldes. Mason, who once made the experiment of appointing a special court at Sutter's Fort to try a man known as Growling Smith for the murder of Indians, afterwards declared that he would not do it again except in the most extraordinary emergency, as the precedent was bad.

As may well be imagined, this uniquely individualistic view of the law made interesting legal history. Many of the incumbents were of the rough diamond type. Stories innumerable are related of them. They had little regard for the external dignity of the court, but they strongly insisted on its discipline. Many of them sat with their feet on the desk, chewing tobacco, and whittling a stick. During a trial one of the counsel referred to his opponent as an "oscillating Tarquín." The judge roared out "A what?"

"An oscillating Tarquín, your honor."

The judge's chair came down with a thump.

"If this honorable court knows herself, and she thinks she do, that remark is an insult to this honorable court, and you are fined two ounces."

Expostulation was cut short.

"Silence, sir! This honorable court won't tolerate cussings and she never goes back on her decisions!"

And she didn't!

Nevertheless a sort of rough justice was generally accomplished. These men felt a responsibility. In addition they possessed a grim commonsense earned by actual experience.

There is an instance of a priest from Santa Clara, sued before the alcalde of San José for a breach of contract. His plea was that as a churchman he was not amenable to civil law. The American decided that, while he could not tell what peculiar privileges a clergyman enjoyed as a priest, it was quite evident that when he departed from his religious calling and entered into a secular bargain with a citizen he placed himself on the same footing as the citizen, and should be required like anybody else to comply with his agreement. This principle, which was good sense, has since become good law.

The alcalde refused to be bound by trivial concerns. A Mexican was accused of stealing a pair of leggings. He was convicted and fined three ounces for stealing, while the prosecuting witness was also fined one ounce for bothering the court with such a complaint. On another occasion the defendant, on being fined, was found to be totally insolvent. The alcalde thereupon ordered the plaintiff to pay the fine and costs for the reason that the court could not be expected to sit without remuneration. Though this naive system worked out well enough in the new and primitive community, nevertheless thinking men realized that it could be for a short time only.

As long as the war with Mexico continued, naturally California was under military Governors, but on the declaration of peace military government automatically ceased. Unfortunately, owing to strong controversies as to slavery or non-slavery, Congress passed no law organizing California as a territory; and the status of the newly-acquired possession was far from clear. The people held that, in the absence of congressional action, they had the right to provide for their own government. On the other hand, General Riley contended that the laws of California obtained until supplanted by act of Congress. He was under instructions as Governor to enforce this view, which was, indeed, sustained by judicial precedents. But for precedents the inhabitants cared little. They resolved to call a constitutional convention. After considerable negotiation and thought, Governor Riley resolved to accede to the wishes of the people. An election of delegates was called and the constitutional convention met at Monterey, September 1, 1849.

Parenthetically it is to be noticed that this event took place a considerable time after the first discovery of gold. It can in no sense be considered as a sequel to that fact. The numbers from the gold rush came in later. The constitutional convention was composed mainly of men who had previous interests in the country. They were representative of the time and place. The oldest delegate was fifty-three years and the youngest twenty-five years old. Fourteen were lawyers, fourteen were farmers, nine were merchants, five were soldiers, two were printers, one was a doctor, and one described himself as "a gentleman of elegant leisure."

The deliberations of this body are very interesting reading. Such a subject is usually dry in the extreme; but here we have men assembled from all over the world trying to piece together a form of government from the experiences of the different communities from which they originally came. Many Spanish Californians were represented on the floor. The different points brought up and discussed, in addition to those finally incorporated in the constitution, are both a valuable measure of the degree of intelligence at that time, and an indication of what men considered important in the problems of the day. The constitution itself was one of the best of the thirty-one state constitutions that then existed. Though almost every provision in it was copied from some other instrument, the choice was good. A provision prohibiting slavery was carried by a unanimous vote. When the convention adjourned, the new commonwealth was equipped with all the necessary machinery for regular government.[3]

[3: The constitution was ratified by popular vote, November 13, 1849; and the machinery of state government was at once set in motion, though the State was not admitted into the Union until September 9. 1850.]

It is customary to say that the discovery of gold made the State of California. As a matter of fact, it introduced into the history of California a new solvent, but it was in no sense a determining factor in either the acquisition or the assuring of the American hold. It must not be forgotten that a rising tide of American immigration had already set in. By 1845 the white population had increased to about eight thousand. At the close of hostilities it was estimated that the white population had increased to somewhere between twelve and fifteen thousand. Moreover this immigration, though established and constantly growing, was by no means topheavy. There was plenty of room in the north for the Americans, and they were settling there peaceably. Those who went south generally bought their land in due form. They and the Californians were getting on much better than is usual with conquering and conquered peoples.

But the discovery of gold upset all this orderly development. It wiped out the usual evolution. It not only swept aside at once the antiquated Mexican laws, but it submerged for the time being the first stirrings of the commonwealth toward due convention and legislation after the American pattern. It produced an interim wherein the only law was that evolved from men's consciences and the Anglo-Saxon instinct for order. It brought to shores remote from their native lands a cosmopolitan crew whose only thought was a fixed determination to undertake no new responsibilities. Each man was living for himself. He intended to get his own and to protect his own, and he cared very little for the difficulties of his neighbors. In other words, the discovery of gold offered California as the blank of a mint to receive the impress of a brand new civilization. And furthermore it gave to these men and, through them, to the world an impressive lesson that social responsibility can be evaded for a time, to be sure, but only for a time; and that at the last it must be taken up and the arrears must be paid.


Stewart Edward White

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