USA > California > History of California, Volume V > Part 25
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In the period which elapsed between the formal occu- pation of the country by the Spaniards and Mexicans (1769) and the subsequent invasion by the Americans (1846), the population of the country was not large. In fact it may be said to have been exceedingly small. Up to the year 1847, the population did not exceed eight thousand souls. This of course is exclusive of Indians. A few villages dotted the coast line, such as San Diego, Santa Barbara, Monterey, and San Francisco. Some inland towns there were such as Los Angeles, San Luis Obispo, Santa Clara, and San José. Along the line of the Pacific from San Diego to San Francisco was stretched a chain of missions at intervals of a day's journey, which fulfilled the double purpose of churches for the Indians and houses of rest and entertainment for the traveler. The hospitality of the
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priests of these missions was boundless, and only limited by their abilities and the extent of their possessions.
The first concern of the Spanish and afterwards the Mexican settlers of California was to procure a title to the soil. This of course must be the first care of any people pretending to any degree of civilization, even the smallest. There was enacted under the authority of the Mexican congress a law or plan providing for the colonization of the territories of the republic. Of course there had been grants of land by the Mexican and territorial governments to the immigrants to California for many years before 1824. But they were made under special authority to the governors of California, or under authority assumed for the occasion. Suffice it to say that the grantees under those grants, their heirs and vendees have remained in unchallenged possession until the present day. After the successful revolt of Mexico from Spain and the throwing off of the Spanish yoke, all this was changed. A law was passed (that of 1824) providing for the coloni- zation of vacant lands in the territories of the republic. This was followed after a brief interval by a subsequent law of 1828 (in the nature of an amendment), which remained the law until the occupation by the Americans. The grants made under these laws did not exceed in quantity the amount of eight million acres. One peculiarity of these grants, although not expressed in terms, was that they were not subject to be taken in execution for the debts of the grantee. This no doubt was a direct result and consequence of the feudal system, under which the result and consequence of the holding of lands was the liability to be called upon to take up
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arms and resist invasion under the leadership of a feudal superior. Nothing could be permitted to inter- fere with this paramount duty. The claims of creditors were as dust in the balance in comparison with the duty of taking up arms in defence of their homes and country. All the land grants in California descended to the sons of the grantees and to their sons forever. There were occasional grants made to women, married or single, but these were few and far between.
One striking fact about the population of California during the Mexican regime was that there were no lawyers. Whether this was due to the fact that there was no law to practice or that there were no courts, is a question which will plague the inquirer. One thing is certain-there is no occasion for litigation about land, where land in any desired quantity may be had for the asking. Of course there were some men versed in the law among the Californians. Take the case of Governor Figueroa, who was said to be a capable lawyer and administrator of the system of land laws which existed in California at the time. Another was the secretary of the governors of California from 1832 to 1845-Manuel Jimeno Casarin. The care, cir- cumspection, ability, and integrity of this individual were remarkable. He was the one official at the time of the American conquest who was found faithful among the faithless. He had compiled an index of Spanish and Mexican grants in California which was the touch- stone by which all grants were tried. If they were found registered in Jimeno's Index they were correct and valid and were confirmed. If they were not, they were at once dismissed as fraudulent and void.
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The fact that land was to be had in any quantity for the asking is a certain proof that it was of no value. But there is proof of the truth of this statement beyond its mere assertion. During all the period of the Spanish and Mexican sway over the territory of California there can be found only three proceedings in the nature of lawsuits, concerning the possession of real property. Two of these were concerning property in Los Angeles county, and another in Monterey county. Both the cases in Los Angeles county were settled in a somewhat Solomonic manner. The party out of possession was told to cease from troubling and to receive a grant of a like number of acres wherever he chose to select it. This ended all strife. Again there is only one record to be found of a criminal proceeding. This was in Monterey county. It was a prosecution for an assault with a deadly weapon, or an assault with intent to kill. Of course this was an Utopian style of existence. Imagine a community without lawyers for the reason that there was nothing worth contending for. Of course in such a community credit did not exist. There could consequently be no litigation about personal obligations.
The population of California being thus limited, the question of derivative titles from the first possessor or grantee was likewise limited. In the seventy-seven years which elapsed between the arrival of the first Spanish settlers and their Mexican followers, and the American invasion, men must have contracted mar- riages, made fortunes, and died. Their property must have descended to their sons. All these things happened without creating a ripple upon the surface
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of society. Sons stepped into the places of their fathers, daughters contracted marriages, widows con- tinued to exist in the families of their children. In the third generation came the Americans. They soon changed all that.
Of all the law which existed in California, prior to its annexation by the United States, only one vestige remains. All else has passed away. That which remains is the law of the property of husband and wife. The common law of England provided that the prop- erty of a woman by the mere act of marriage became the property of the husband and descended to his heirs, not hers, upon his death. The civil law was that the property of the wife, before marriage remained her property after marriage, and descended to her heirs after death. This principle of law has been carried into the constitution and is now unchangeable by legislation. It is thus expressed by Section 8 of Article XX of the constitution :
Sec. 8. All property real and personal, owned by either husband or wife before marriage, and that acquired by either of them afterwards by gift, devise or descent, shall be their separate property.
The converse of the rule, stated by the constitution is also true: that all property acquired by the hus- band and wife after marriage, and the issues, increase, and profits thereof shall be community property. Thus far it is apparent that the civil law which existed in California prior to the American occupation had only a precarious existence; in fact it may be considered merely nominal. We have seen that its only force was in regard to the titles to real property. Of credit and personal obligations there was none.
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When a native Californian was on a journey and his horse gave out, he immediately caught another from a neighboring band, leaving his own in its place, and went his way. When the same person needed food, he killed a steer in the nearest drove, cooked, fed, and was satisfied. He neither paid nor thought of paying anything. This was the universal custom of the country until the advent of the Americans. One of the hardest lessons to instill into the minds of the Mexicans after that time was the law of meum et tuum in regard to horses and cattle. They could not imagine that the old customs of the country had passed away. The frequency of convictions of Mexicans for horse and cattle stealing during the period 1850-60 must be attributed to the inability of the Mexicans to perceive the new order of events. It was not strange that the prosecutors in such cases were almost always Ameri- cans. The wealthy native Californians rarely ever brought a charge of horse or cattle stealing against their fellow countrymen.
After the discovery of gold in California a sudden increase of population took place. The population of the state may be assumed to be at least fifty thousand on the first day of January, 1850. Almost all of the newcomers were of the Anglo-Saxon race, to whom the civil law and its forms, methods and proceedings were unknown. Before the admission of the state into the Union a legislature was elected which met at San José, and enacted many laws. This was the only case on record of a country under a territorial form of government becoming a state without the passage of an Enabling Act by congress. The state was after-
-
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wards admitted into the Union in September, 1850. But the laws which were enacted by the legislature before the admission of the state into the Union were held to be valid and binding. Between the assembling of the legislature at San José and the admission of the state into the Union, courts were established, laws regulating their procedure, laws providing for the punishment of crime, laws of succession and inheritance, laws providing for the registration of deeds and mort- gages, for taxation and for all the necessities of civilized society were enacted.
At the earliest moment of the organization of the legislature the question arose, what law should furnish the rule of decision in civil and criminal cases? Both systems of law, the civil and the common, had their supporters and advocates. At the head of the partisans of the civil law as a system stood Alexander P. Crittenden. He had come to California from Texas where the civil law prevailed. On the other side stood Nathaniel Bennett who was a native of Vermont, where the common law was established. Each system had its partisans. The leaders made reports to the legislature. The report of Judge Bennett in favor of the adoption of the common law as the rule of decision was adopted the by legislature. It may be found in the appendix to the first volume of the Reports of the Supreme Court of California, at page 556. The first edition of the reports is referred to. By either in- attention or oversight, the report of Judge Bennett is omitted in the subsequent editions of the volume. We know not where else it may be found. Suffice it to say the adoption of that report by the legislature
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was immediately followed by an act adopting the common law as the rule of decision in civil and criminal cases, and so the law has continued to be and remain until this day. The civil law was the rule of decision under the Spanish and Mexican domination. That law was the Roman jurisprudence, jus civile Roman- orum. It is in force at the present time in every state in Europe except England. In America it is the law of Louisiana, Canada, Mexico and all the republics of South America. It is the foundation of the Equity Jurisprudence which now prevails in England and the United States.
Between the advent of the Americans and the seizure of the country by them in 1846, up to the admission of the state of California into the Union in 1850, a space of nearly four years, an anomalous condition of affairs existed.
"The commanding officer of the American forces in California was the civil governor. He appointed judges, alcaldes, prefects, sheriffs and notaries; superseded or removed them; regulated municipal government; authorized and vacated elections; pro- mulgated regulations which had the force of law and fixed the fees of public officers. This exercise of authority was acquiesced in by the people as their only refuge from disorder and anarchy; and the judgments of the courts thus established were respected for the same reason. By the judgments of these courts criminals were punished; property was attached and sold; large sums of money were collected under execution; numerous vessels were libeled; real estate, now of immense value, was sold at forced sale to innocent purchasers in good faith, and the estates of deceased persons were managed, administered upon and settled. The functionaries who thus administered justice, after a crude fashion, made little or no pretension to any knowledge of the Mexican or civil law, and did not attempt to follow the forms of procedure
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which that law prescribed. On the contrary, they generally adopted the common law forms; and their records exhibit a clumsy effort to administer what little they knew of the civil law by means of common law proceedings. If tested by the rigid and inflexible rules of the common law it is questionable whether any judgment ever rendered by any of these courts could stand. To say nothing of the tenure by which they held their offices, their proceedings were of so summary a character, and often so repugnant to the well-established principles which regulate the administration of justice in other countries, as almost to excite our special wonder at this day, after the lapse of twenty years. We are therefore, in this class of cases, reduced to one of two alternatives, to-wit; we must either treat the judgments and proceedings of these courts, however informal, as valid and operative, under the anomalous condition of affairs which then existed, or we must subject them to the rigid tests by which the validity of judicial proceedings is determined in other and older communities. When examined in the light of the latter rule, it is probable but few, if any judgments ever rendered by the court of first instance would stand the test of judicial scrutiny. Nearly every forced sale of real estate made under its process would be liable to be set aside as rendered under a void judgment; almost every man convicted and punished by it for crime would be entitled to his action for damages; and many innocent persons might be compelled to surrender their estates, acquired on the faith of judicial proceedings which transpired twenty years ago, and which at the time were universally recognized as valid proceedings of the only courts which existed in the country.
"We deem it to be our duty to adopt the former alternative, and to hold the judgments of these courts and the titles acquired under them to be valid, notwithstanding they might be void if tested by the strict rules of the common law. They do not purport to be proceedings at common law, and their validity cannot therefore be tested by the principles applicable to that system; nor are they, in any strict sense, proceedings under the civil law, but a sort of judicial anomaly, having some of the features of each, without the distinctive character of either. Nevertheless
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the judgment of the court of first instance was the judgment of a de facto court, exercising general and unlimited jurisdiction in civil cases and in matters of administration on the estates of deceased persons. It was the only court then in existence in California exercising these functions, and its authority was uni- versally acquiesced in and respected by the people. Being a court of general jurisdiction, its judgments even if tested by the common law rule, would be upheld unless it appeared affirmatively from the record that it had not acquired jurisdiction of the parties in interest."*
Thus the attempt to subvert all judgments and all titles flowing from judgments of the courts established under military rule in California, failed. Then came the system of law and justice under a written con- stitution, laws duly adopted, and officers elected by the people. The common law was adopted by the legislature as the rule of decision. Courts and judges were elected, and administrative officers installed in office.
As this paper is only intended to deal with the peculiarities of the law which continued to exist in California, we shall devote ourselves to those which remain.
Upon the discovery of gold in California a vast increase of population occurred. Between 1850 and 1860, the population grew from fifty-five thousand to five hundred and sixty thousand. Almost all the newcomers went straight to the mines, San Francisco became the second county in the state in population. El Dorado was the first. At least three-fourths of the population of the state were engaged in mining or in pursuits tributary to mining. There was no law
*Ryder v. Cohn (37 Cal. 87-89).
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to govern contests or disputes with regard to mines. Strange to say no law was ever passed by the congress of the United States governing the primary disposition of mining property until the year 1866.
But in the meantime the legislature of California had got to work upon the question. In 1851, an act was adopted by the legislature, which by its terms was applicable to justice's courts authorizing the admission "of proof of the customs, uses or regulations established or in force at the bar or diggings embracing such claims; and such customs, usages, and regulations when not in conflict with the constitution and laws of this state shall govern the decision of the action." (Civil Practice Act of 1851, Sec. 621.) This act was never made applicable in express terms to the district or superior courts, or to appellate courts, but they acted on the presumed acquiescence of the legislature in adopting this self established code. It would seem from the foregoing that justice's courts alone had jurisdiction of mining controversies. At the same time the question of how or by what writing a mining claim should or could be conveyed made its appearance and demanded a decision. It was held that a mining claim could be conveyed by word of mouth coupled with an immediate delivery of possession, or by a bill of sale. At that time there arose in the state of California a school of lawyers and statesmen who contended that a mining claim was not real property, but that it was a mere right to the possession of real property. This notion seems to have made some impression on the law-making body, for it was not until 1860, that the legislature solved the question
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definitely by enacting that a mining claim was real property and that thereafter it could be conveyed only by deed or bill of sale. It followed from that act that actions for the recovery of mining claims or for tres- passes thereon could only be maintained in the district courts, and subsequently in the superior courts.
This was followed by a decision of the supreme court of California (in Melton v. Lambard, 51 Cal. 258.) that a mine was real estate, and could only be conveyed by deed.
After the American invasion and occupation of California, a board of commissioners to examine and confirm Spanish and Mexican land grants was ap- pointed by the president of the United States under the authority of an act of congress passed in 1851. To this board were presented almost all then existing grants. In addition to these there were presented many grants which had been manufactured, or to use plain terms forged, by unscrupulous adventurers who saw chances of great fortunes in their successful con- firmation. These purported grants were rejected. The government was in possession of the Spanish and Mexican archives and of Jimeno's Index. But Jimeno's Index only contained the grants which had been issued prior to 1844. From that time until June, 1847, there was no index. But the government came into the possession of the books and proceedings of the departmental assembly or territorial legislature to which all grants had to be presented for approval. By the aid of these books the genuineness or fraudulent character of many grants made or purporting to have been made during the troublous times of California from 1844 to 1847 was established.
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We have called attention to the fact of the small amount of litigation in regard to lands which existed in California prior to 1847. But in all the time from the settlement of California by the Mexicans in 1769 up to its invasion and occupation by the Americans in 1846, there was but one mine discovered of which there is any record. We refer to the New Almaden quicksilver mine in Santa Clara county. This mine was discovered and denounced by Andrés Castillero in 1843. The term "denounced" is a phrase of the civil law, nearly equivalent to discovery and appro- priation as the terms are used in the common law of miners, under the American system. This was before the discovery of gold in California by James W. Marshall. The discovery and development of the New Almaden mine by Castillero was stated by him in contemporaneous correspondence, to be for the purpose of supplying quicksilver for the working of mines in Mexico. Suffice it to say, that the work of prospecting and developing the New Almaden mine went on apace. The title to the mine passed into the hands of Mexican and American citizens. Then came the discovery of gold and a market for the ores and product of the New Almaden mine was created almost at the mouth of the shaft. The mine became almost as valuable as any gold mine in Cali- fornia in a single night. Castillero then presented his claim to the land commission for confirmation. Two other claimants appeared at the same time-José de los Reyes Berreyesa claiming the mine to be situated on his rancho and Charles Fossat claiming it to be situated on his rancho called Los Capitancillos. The
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contest therefore was quadrangular-between the three individual claimants, in which each was opposed to the other, and the United States, which was opposed to each and every one of the individual claimants.
It is not necessary for me to enter into the merits of this litigation, or the justice of the final decision of the supreme court of the United States in the matter. Suffice it to say the supreme court finally decided that the mine was upon the rancho of Charles Fossat, and awarded it to him. But the most interesting question was as to the title of Andrés Castillero, the original claimant. He presented two claims to the mine originating in different sources. One claim was to the mine itself, the other to a certain tract of land, surrounding and embracing the mine, taken up under the laws of Mexico. These proceedings in relation to the denouncement of the mine had to be taken before the judge of the court of first instance in Cali- fornia, or in case of his absence before the alcalde of the jurisdiction. But at this time, and during the entire period of Mexican rule in California, there was no judge of the court of first instance, and consequently no court. Castillero then betook himself to the alcalde or justice of the peace and filed his papers with him. All this was in attempted compliance with the law for the denouncement of mines or mining property. But the supreme court held that the law prescribing the steps necessary to be taken before the judge of the court of first instance was mandatory, and that its provisions must be complied with. They therefore rejected Castillero's claim for the mine. There re- mained his claim for the lands adjoining and sur-
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rounding the mine, which was also rejected upon the ground that the grant for the same had been manu- factured by the connivance of Mexicans high in office after the seizure of California by the United States. The result of all this was, that there were no courts and no judges in California, and that no title to a mine however valuable could be secured by a Mexican citizen. These observations are submitted for the purpose of showing the disorganization or lack of organization of the country at the time. Imagine a territory of ten thousand inhabitants without a court and where the governor is the supreme and final judge. This alone shows the primitive style of government under which the Mexicans were content to exist.
The pleadings and forms of procedure in these cases were unique. The governor in addition to his executive functions, exercised the powers and duties of a supreme and final judge. There is no record of a judgment or final decree pronounced by him.
An example of the invocation of the judicial powers of the Mexican governor of California is found in the case of Mott v. Reyes (45 Cal. 391). In this case although the judicial powers of the governor were invoked, they were not exercised. The governor (Alvarado) referred the entire matter in dispute to the departmental assembly (or local legislature) then in session, so that the matter might be arranged to the satisfaction of the litigants. The departmental assembly did nothing. The course of justice seems to have been no more rapid under the Mexican than under the American system. These proceedings were had in the year 1839. They then slumbered upon the
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