USA > California > Los Angeles County > Los Angeles > Los Angeles from the mountains to the sea : with selected biography of actors and witnesses to the period of growth and achievement, Volume I > Part 28
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A law of 1535 exempted from execution pearl-fishery boats, machines used in mining; also horses or weapons, except in default of other goods.
This Recopilacion or compilation, modified from time to time as to special subjects by the various "reglamentos" or instructions above referred to, issued by king or viceroy, con- stituted the law of California, of which Los Angeles was a part, from its settlement in 1769 until the establishment of the Mexican Empire. Under Mexican rule California, being a territory, was governed directly by the federal executive and Cortes of Mexico. Territorial juntas or legislative assemblies had or, at least, exercised, legislative functions in regard to local affairs. The general laws of Mexico were based upon the civil law, and were in their general scope similar to the laws of the Recopilacion.
In the colonization law of 1824 and the Regulations of 1828 the decrees of Spanish monarchs as set forth in the Recopila- cion are expressly recognized. Recopilacion and "Novissima Recopilacion" were in force in California in 1840.
As the law of Spain, and later as the foundation of the law of Mexico, the civil law obtained in California until April 13, 1850. On the last-mentioned date the Legislature of Califor- nia passed an act providing "The Common Law of England, so far as it is not repugnant to or inconsistent with the con- stitution of the United States, or the constitution or laws of the state of California, shall be the rule of decision in all the courts of this state."
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In the above synopsis we have quoted Mr. Rodman ver- batim.
This first Legislature of California is celebrated in history as the "Legislature of a Thousand Drinks," which would seem to indicate on the face of the epithet that about all the members of the body did was to stew themselves in alcoholic beverages. But, fortunately, while it may be true that the flowing bowl was much in evidence, the fact remains that it was probably the best Legislature the State of California has . ever had, down to this day. It consisted of fifty-two members and its session lasted 129 days. It performed an enormous amount of work and put the new commonwealth on a firm foundation legally. Among other things it created Los An- geles as a bona fide American city by Act of April 4th.
But let us go back to the days before the star of California was placed in the azure field of Old Glory, in order that we may see just how the law of the land was executed, especially as Los Angeles was affected thereby.
In the patient and painstaking way of all student lawyers, Mr. Rodman tells us that the judicial officers most frequently mentioned in California history are the alcaldes. And he goes on further to say :
The office of alcalde is of ancient origin, having been cre- ated and recognized in Spain long prior to the conquest of Mexico. The Recopilacion de las Indias provides for the ap- pointment of alcaldes in Spanish colonies, and defines their jurisdiction and powers. In each city or pueblo there were two ordinary alcaldes chosen each year. Ordinary alcaldes had jurisdiction in the first instance of all cases, civil or erim- inal. Appeals from their acts or sentences went to the audien- cias or royal councils, to the governor, or to the ayuntamiento, the local governing body.
The Recopilacion provided that alcaldes "must be hon- orable persons, able and sufficient, know how to read and write, and have other qualities which are required for such offices; preference given to descendants of pioneers 'if they have the necessary qualifications for government and the administra- tion of justice'; must be citizens; cannot be re-elected until
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after an interim of two years and passing an inspection of their term."
The law creating the office of alcalde seems to have been operative in California under Spanish rule. Alcaldes also exercised certain administrative and legislative functions, acting as members of ayuntamientos, and as rulers of towns in the event of the death of a governor, leaving no lieuten- ant; having general supervisory duties, and the power to in- spect houses of the religious brotherhoods.
A communication from Governor Borica (1794-1800) to a newly elected alcalde indicated the nature of the duties apper- taining to the office. As this communication might prove use- ful to judicial or administrative officers of today, it is given:
"I approve of the election of your honor as alcalde for the ensuing year, and am persuaded that you will exercise the duties of your office with the dignity of an honest man. You will consent to no immoral practices, to no drunkenness, to no species of gaming that is prohibited by law. You will en- courage and stimulate every poblador who does not enjoy military exemption to work his land and take proper care of his stock. You will permit no idleness. You will, in fine, be zealous in complying with all the obligations of your employ- ment, treat the Indians, both Christian and Gentile, with kind- ness and consideration, and fulfill the orders of the govern- ment without attempting to put strained constructions upon them."
During the early years of Spanish rule, captains, military chiefs and governors of California were authorized to act as ordinary judges of first instance in all cases, civil and crim- inal, arising in their respective districts. Criminal cases were tried by military officers under and according to military law, except capital cases, which were to be tried by a council of war or court martial. Prior to 1800 the viceroy exercised the powers of a judge in criminal cases. (1 Bancroft, p. 638.) It seems to have been the custom in important cases to trans- mit the papers for decision to the commandante-general. (Hit- tell.)
In 1791, Don Felipe De Neve, the immortal founder of Los Angeles, then commandante-general, on receiving papers in a
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criminal prosecution, advises with the assessor or law adviser of the commandancia (or province) and refused to entertain the cases, on the ground that his jurisdiction was military rather than judicial, and that the only proper course of pro- cedure was for the captain who had acted as judge of first instances, to decide every cause before him, and from his de- cision an appeal might be taken to the royal audiencia or su- preme court. Gradually the judicial powers of military offi- cers were either taken away by law, or suffered to lapse to a great extent, for the history of later years of Spanish rule shows an increasing exercise of judicial functions by alcaldes. These officers acted as judges of first instance, neither their jurisdiction nor the right of procedure upon appeal from their judgments being clearly defined. A decree of the Spanish Cortes, dated October 9, 1812, defining certain duties and functions of alcaldes, is as follows :
"CHAPTER THIRD
"OF THE CONSTITUTIONAL ALCALDES IN THE TOWNS
"Art. 1. Inasmuch as the alcaldes of towns exercise in them the office of amicable compounders, every person who wishes to attack another before the district judge, either on account of some civil wrong or some tort, must present him- self before the competent alcalde, who, with two good men (hombres buenos), appointed one by each of the contending parties, shall hear both parties, and take into consideration the reasons they allege, and after hearing the opinion of the associates shall give, within eight days at most, his concil- iating decision, calculated, in his opinion, to terminate the lit- igation, without going any further. This decision will, in effect, terminate the dispute, if the parties acquiesce in the decision, which must be inscribed upon a book, which the alcalde must keep, bearing the title of 'Decisions of Concilia- tion,' signed by the said alcalde, the good men and the parties, if they know how to write, and certificates of the same are to be given to such as may desire the same.
"Art. 2. If the parties do not conform to this decree, it must also be inscribed in the same book, and the alcalde shall
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give a certificate to the party desiring it, that he has brought an action of conciliation, and that the parties interested have not consented thereto.
"Art. 3. When some person residing in another town is cited before the competent alcalde of conciliation, the alcalde must cause him to be cited, by means of the judge of his resi- dence, that he may appear, either in person or by an attorney of competent powers, within a sufficient period of time, which must be prescribed; and if he should not appear, the plaintiff will be entitled to a certificate, specifying that he has made a demand in conciliation, which has failed because the defend- ant has neglected to appear.
"Art. 4. If the demand in conciliation has reference to the effects of a debtor about to remove the same; or to pre- vent the construction of some new work, or other things of like urgency, and the plaintiff requires the alcalde to take provisional measures in order to avoid the injury which might arise from delay, the alcalde shall do so immediately, and forthwith proceed with the conciliation.
"Art. 5. The alcaldes will, moreover, take cognizance in their respective towns of all civil suits wherein the sums in controversy do not exceed fifty reals vellon in the peninsula, and the adjacent lands, and one hundred silver dollars in the ultramarine provinces; and in criminal cases of slight faults and injuries which only require reprimand or light correction, the proceedings in both cases being verbal. For this purpose, the alcaldes, as well in civil as in criminal matters, will asso- ciate good men, as above mentioned, chosen by each of the con- tending parties, and after hearing the plaintiff and defendant and taking the opinion of the associates, shall give such a decision before the notary as they may deem just, and from such an opinion the parties cannot appeal, nor does it require any other formality than to inscribe it, together with a suc- cinct exposition of the proceedings, in the book which is re- quired to be kept for verbal judgments, and to have it sub- scribed by the alcalde, the good men and the notary.
"Art. 6. The alcaldes of towns shall likewise take cog- nizance of all judicial proceedings in civil suits until litigation
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arise among the parties thereto, in which event they shall transfer them to the district judge.
"Art. 7. They may all take cognizanee, at the request of the parties, of such proceedings as are litigated, when they are very urgent, as the preparation of an inventory, the quiet- ing of possession, or others of a like nature, referring the mat- ter to the judge as soon as the object of their interference has been accomplished.
"Art. 8. The alcaldes, when a erime has been committed in their towns, or some delinquent has been discovered, ought to proceed ex-offieio, or at the request of a party, to institute the first proceedings of the inquest (summaris) and cause the criminals to be apprehended, in every cause where an offense has been committed, which according to law deserves corporal punishment, or when the offender has been found flagrante delieto; but in such cases they shall immediately transfer to the district judge the proceedings by them had, and place the criminal at his disposal.
"Art. 9. The alcaldes of towns in which the district judge resides may, and onght to make all the preparatory proceed- ings spoken of in the preceding article, and give immediate notice of the same to the district judge, that he may continue the proceedings.
"Art. 10. In all the proceedings which may be required as well in civil as in criminal causes, the district judges cannot employ other alcaldes than those of their respective towns.
"Art. 11. As it respects the government, economy and the police of the towns, the alcaldes shall exercise the same juris- diction and powers which existing laws grant to the ordinary alcaldes, observing in every respect the provisions of the con- stitution on this subject."
So far as appears from history, the Mexican judicial sys- tem was similar to that of Spain, and during the Mexican Empire and the early years of the republic, laws were admin- istered by the same courts as under the Spanish regime.
Coming now to the times of the American occupation of California, we see that in his proclamation to the people, call- ing a convention to form a state constitution, Governor Riley stated that courts were in existence in California as follows :
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1. A Superior Court (tribunal superior) of the territory, consisting of four judges and a fiscal. 2. A judge of first instance for each district. This office is, by a custom not in- consistent with the laws, vested in the first alcalde of the district. 3. Alcaldes who have concurrent jurisdiction among themselves in the same district, but are subordinate to the higher judicial tribunes. 4. Local justices of the peace.
As to the Superior Court referred to by Governor Riley, we are not fully informed by history concerning its jurisdic- tion; nor does history show that it was ever fully organized or performed its functions.
Under the "Plan de Gobierno," or plan of government, adopted for the Mexican Republic of 1824, judicial power, so far as concerned people of the pueblos, was vested in the first instance in the alcaldes, or in justices of the peace; in the second instance, in commandants of presidios, and in the third and final instance in the governor.
As concerned people outside pueblos, judicial power was vested in first instance in alcaldes, in the second and final instance in the governor.
Alcaldes continued to exercise the same powers as they had exercised prior to the revolution. Courts of First In- stance were never organized in California. But records of Los Angeles County show that suits were brought and deter- mined in a court of that name, presided over by an alcalde.
Shortly after Mexico achieved independence, the two Cal- ifornias were united into the Sixth Judicial Circuit of the Mexican Republic, and Alta California was made one of the districts of that circuit. In 1828 a court for the circuit was instituted at Rosaria, but at that time no district court had been organized in Alta California.
Bancroft says that in 1826 there were no courts of law in California competent to try civil or criminal cases.
Under the Mexican law of 1836, alcaldes continued to ex- ercise jurisdiction over cases of conciliation, what was known as "oral litigation," and preliminary proceedings of both civil and criminal nature.
They had jurisdiction in all municipal matters, in cases of minor offences, and in actions to recover debts not exceed-
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ing $100. Appeals from their decisions were taken to the Court of First Instance.
The Mexican system provided that there be in each partido a Court of First Instance, presided over provisionally by the first alcalde, in places having an ayuntamiento; in other places by the justice of the peace of first nomination. From 1824 to 1840 Courts of First Instance were presided over by alcaldes or justices of the peace. We find no record, during this pe- riod, of the election or appointment of any person as judge of first instance eo nomine. Judge Nathaniel Bannett, one of the first three justices of the Supreme Court of the State, says: "It is believed that judges of first instance were never appointed and never held office in California under the Mexi- can regime, but that alcaldes possessed the powers and juris- diction of judges of first instance. The alcaldes, before the an- nexation of the country, it is believed, certainly afterwards, to a great extent, both made and enforced the law; or, at least, they paid but little regard either to American or Mexi- can law further than suited their own convenience and con- duced to their own profit."
Courts of First Instance had appellate jurisdiction over alcalde's courts, and original jurisdiction of all cases involving more than $100.
The Court of Second Instance provided for by Mexican law was an appellate tribunal with jurisdiction of appeals from Courts of First Instance.
Courts of Third Instance were courts of last resort, ex- cept the Supreme Tribunal of Mexico. This court was com- posed of all the judges of second instance. It had cognizance of cases involving more than $4,000. Its power of review was not limited to questions raised below, but it could not review questions upon which the two inferior courts had concurred.
It may have been intended that Courts of Second and Third Instance should be established in California, but we have no evidence of their establishment. In a decree of the Mexican Congress made March 2, 1843, it is said that no Courts of Second and Third Instance had been established in Cali- fornia.
By act of March 28, 1843, the governor of the territory was
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instructed to see that justice be administered in the first in- stance "by judges of that grade, if there be such, or by al- caldes, or justices of the peace." Whether or not these courts had ever been established in California, the first Legislature of the State considered it necessary to pass a statute abolish- ing them.
In 1839, on recommendation of Governor Alvarado, the de- partmental junta established a Superior Court, and appointed four judges and an attorney-general, or "fiscal." Several judges and the fiscal declined to act, and for some years the court transacted no business.
On account of the commission of numerous crimes, and influenced by the protests of foreign governments against the prevailing lawlessness, an extra session of the junta was called for the purpose of filling vacancies on the bench and putting the superior tribunal into working order. On May 31, 1842, the junta elected a new fiscal, and designated persons to act as substitute members of court and fill vacancies that had occurred or might ocenr. The tribunal organized and transacted some business, but according to Hittell's history, "it cannot be said to have distinguished itself either for learn - ing, diligence, or effectiveness." No judge of this court was a lawyer.
On June 15, 1845, the superior tribunal of justice was re- organized. It was to consist of two members and a fiscal, and was divided into two chambers denominated "First" and "Second." Ministers and fiscal were to be appointed by the governor upon nomination by the junta. Clerks and other ministerial officers were appointed by the court. Ministers and fiscal, whose first appointments were provisional, were to receive $2,000 per year; but when the offices should be filled by professional lawyers, incumbents were to receive $3,000 per year. It was directed that the government should, by means of notices published in newspapers, invite candidates for positions as ministers or fiscal to present statements show- ing their qualifications. The employment of a similar system at this day would make the governor's duties exceedingly onerous. The same statute provided that in each capital of a "partido" a Court of First Instance should be established,
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to be presided over provisionally by the first alcalde in places having ayuntamientos; elsewhere by the justice of the peace of first nomination. The first judicial district, which was to be known as that of Los Angeles, included all territory from the northern boundary of San Luis Obispo Mission to the southern boundary of Alta California.
The first district was divided into three partidos-the first that of Los Angeles, extending from the crest of Santa Susana Mountains to the southern limit of the Mission of San Juan Capistrano; the second, Santa Barbara, extending from the northern limits of the Mission of San Luis Obispo south- wardly to and including the ranchos of Simi and El Triunfo; the third, San Diego, to comprehend all the Mission of San Luis Rey, thence southward to the southern boundary of the territory. Very little is known of the nature or volume of business transacted by courts established or provided for by this system.
Mr. Rodman calls attention to the fact that Bancroft men- tions a certain person as having been appointed "Superior Judge" in 1849, but of this judge, or of the Superior Court referred to in the governor's proclamation, we have no defi- nite information.
Alcaldes continued to transact the greater portion, if not all, of the judicial business of the territory. Their powers were varied and extensive.
In 1836 one Maria del Pilar Buelna complained to Michael Requena, alcalde of Los Angeles, that her husband, Policarpo Higuera, had beaten her so severely that she had been obliged to leave his house. The husband justified himself on the ground that his wife had disobeyed his commands not to visit her mother. Requena attempted as part of his duty as judge of a Court of Conciliation, to settle this dispute and reconcile the couple. But in this he failed, and the controversy came to trial. It appeared upon investigation that the husband was dissatisfied not only because his wife had visited her mother, but because she had gone with his brother, whom he had forbidden his house. As the husband did not charge his wife with the commission of any crime, the court ordered that the couple should live together "as God had commanded,"
Vol. 1-22
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and also ordered that if in the future the husband should have any complaint, he should make it to the court, and not attempt to take the punishment into his own hands, and that if the husband's brother should interfere, he should be punished according to his deserts. This judgment was not only de- cidedly in personam, but is an example of equitable pater- nalism. Husbands frequently applied to courts for orders compelling their wives to live with them. In 1840 one Ortez of Los Angeles, claiming that his wife had run away to San Gabriel, an officer was sent with instructions to bring her back to marital protection.
And thus we see how Los Angeles was governed from the time it was founded until the Stars and Stripes floated in conquest over it and it became subject to American laws. But whether or not the new laws were better than were the old ones, it were hard to say. But certainly we can say this, that there are altogether too many laws in these days in cities and out of cities, and that this is a charge that cannot be made against the older system.
When we speak of law and the courts, we naturally think of litigation. We might have reason to suppose that if all laws were obeyed, and if there were no argument as to their mean- ing, there would be no need of courts. But, unhappily, it is quite impossible now, as it has always been, to frame the simplest law without subjecting it to a different interpretation by almost everybody that reads it.
This same thing is what causes so many different religions, and so many sects of the same religion. One man reads the Bible and interprets it differently from another man who reads it. Consequently, we have a great many creeds and sects, and the number seems to be constantly increasing.
It is the same way with laws enacted by human beings, and the result is an ever increasing multiplicity of courts. The more laws the more litigation.
Now, immediately upon the American occupation of Cal- ifornia, and for many years succeeding it-even down to the present day-the most fruitful source of litigation has been the title to real property. And this brings us to the often- mentioned subject of land grants. "Old Spanish Land
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Grants" and "Mexican Land Grants" are familiar phrases in California. The title to all property in the City of Los An- geles, as well as throughout all California, goes back to one or the other of these "Grants," and depends upon them for validity.
Spain acquired title to California by virtue of discovery, conquest and occupation-a title admitted as valid by the custom of nations and international law. Wherefore, all real property in California, all title to the land, was vested orig- inally in the Spanish crown.
Then the crown proceeded to "grant" lands to individuals, and thus began the business upon which real estate operators, lawyers, title and abstract companies and the courts thrive. The first conveyance of crown land to any individual in Cal- ifornia was made in November, 1775, to one Manuel Butron somewhere in the northern part of the province which was authorized by instructions given by the Governor Bucareli to the Commandante Rivera y Moncada.
The first grants made in the present City of Los Angeles are recounted in detail in the early chapters of this book.
Rodman says: "At first all grants were executed by the Government; later, grants of pueblo lands were made by the ayuntamientos of the various pueblos. Grants of other lands were always executed by the Governor. During the early years of Spanish rule, grants of absolute titles were not made, citizens receiving merely the right to use the land or take its produce."
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