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.