CHAPTER III

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 Tarquin." The judge roared

out "A what?"

"An oscillating Tarquin, 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.

The Forty-Niners: A Chronicle of the California Trail and El Dorado · 第 3 / 16 章