The Alcalde System of California. mind these irregularities, and to recollect that, by the law, there could be Alcaldes only at Monterey: as by a decree of Santa Anna, issued about this time, Alcaldes in California, New Mexico, and Tabasco, were authorized to exercise the functions of Judges of First Instance, which class of Judges, by the Mexican law, had admiralty jurisdiction. The discussions, that have taken place at the city of Mexico, in relation to the extraordinary powers of Santa Anna, but recently occurred. The question not having been raised before the Supreme Court, the court seems to have felt bound to follow the opinion commonly received, at that time, and to give to those decrees the force of Mexican laws, although some of the most learned Licenciados at that city now insist, that they ought not in any instance to have the force of laws, unless they were afterwards confirmed by an act of the Mexican Congress. It is not necessary for the purposes of this treatise, to discuss the question, now so difficult of solution, whether the Government of Alvarado was sufficiently settled, or his authority sufficiently acknowledged, to entitle him to the character of Governor de facto, or whether any of his official acts are to be regarded as the acts of the Governor of the Department of California, nor is it necessary to determine the claims of Micheltoreno to make and to confirm grants of land in a manner different from that prescribed in the existing laws of Mexico, and to exercise legislative functions and to do other acts for which there was no legal sanction. The most liberal construction put upon his extraordinary commission was, that he was a quasi-military Governor. A soldier by profession, he was sent with a military force "to give peace" to a distracted department,-empowered to negotiate as well as to make war. He might do all things lawful for a military Governor to do; but his other acts would seem to require the subsequent approval of the dictator or of the legislature to give them validity. But the most important event connected with the legal history of California, was the occupation of the country by the Americans on the 7th day of July, 1846. This was followed by the proclamation of Commodore Stockton, annexing California to the United States and granting it a constitution. Though this proclamation was afterwards disallowed, yet American emigrants claimed under it all the rights of Mexican citizens in acquiring land during the war. But the politico-military career of Commodore Stockton, and, also, that of Colonel Fremont, in California, was soon at an end; and then followed them two regularly appointed military Governors, General Kearney, and Colonel, who was afterwards General Mason, the legality of whose acts as military Governors cannot be questioned. But it is more difficult to characterize the administration of General Riley. He was not a military Governor, for the war had ceased before his appointment. The provision in the Mexican constitutional act, which authorized the military Comandante of a Department to exercise the office of Governor, in the absence of a civil Governor, could not apply to The Alcalde System of California. him, as the law political of Mexico had terminated in California by the annexation. But without the law political to set in motion the wheels of government and furnish administrators of law, the laws which regulate the intercourse between man and man are dormant-there is an absence of all the machinery that gives them their vitality. So that it may be well said that, during General Riley's administration in California, there was in fact no law existing. Society was without any laws, and had no political existence. The traditional law of the country was the traditional law of the Mexican population, and had never been in existence in that portion of California most densely populated in the times of General Riley; for the reason that, before the American emigration, the northern portions of California had been in possession of hostile Indians, and the Mexicans could not dwell in that portion of the country or even visit it. The written Mexican law, if any existed in California, was in the southern, and not in the northern portions of the territory, and consisted of the traditions and laws of that portion of California inhabited by the Mexicans, and had never been in force in that portion inhabited by Americans. Commercial transactions to an immense amount had been entered into, and large transactions in real estate had taken place between Americans, based upon the laws as they exist. ed in the United States and not in reference to the unknown laws of Mexico To say that the whole of the corpus juris civilis Mejicana was in force throughout all California, and that it was to measure all transactions that were entered into at that time by Americans, would be to invalidate contracts of incalculable amount, entered into without any of the contracting parties knowing that such laws existed. General Riley's government must be sustained on another hypothesis that it was a necessary and unavoidable usurpation. The commission from the President does not improve the matter, for it was issued without any authority of law. This usurpation being acquiesced in by the people, as an unavoidable necessity, and the offices which he created, as well as his own office of Governor, having been recognized by the people in the constitutional convention, and by the legislature as well as the laws regulating their duties; the question naturally arises, what were the laws recognized? Did they consist only of the small manual of laws published by General Riley, portions of which are contained in this essay, or of the whole body of the Spanish-Mexican laws? The obvious answer to this question is-that it was the intention of the convention to recognize the manual published by General Riley, and as a necessary consequence, when any thing appeared obscure or unintelligible in that manual, we were driven to Mexican sources for its elucidation; but this is the utmost limit to which this clause in the schedule of the constitution can be extended. And this small manual was all there was of positive law in California until the meeting of the state legislature; all else was shrouded in a maze of uncertainties. Which was the rule and which was the exception, it is extremely difficult at this late day to determine. The Alcalde System of California. With the establishment of the American military government, the Alcalde system was restored. On every bar, and in every gulch, and ravine, where an American crowd was collected, there an American Alcalde was elected. And there were strange and often conflicting laws in adjoining neighborhoods, depending on the settlers or on the Alcaldes, who made the laws, as the occasion required. The American Alcaldes were generally ignorant of the Spanish language and Spanish laws, but they had learned traditionally that the Spanish Magistrates were in the habit of charging a fee on the occasion of assigning to a new colonist a house lot. A liberal construction of this precedent was the foundation of those extensive transactions in town lots, which proved to be of so much pecuniary advantage to American Alcaldes and Justices of the Peace. The proclamation of General Riley of June 3d, 1849, established a new era in the political and judicial administration of California. He called upon the people in the several districts to indicate, by an election, the persons whom he should appoint as Judges of First Instance and Prefects, and also in districts composed of several primary ones, to indicate the persons who should be appointed Judges of Second Instance. The Judges of Second Instance, when assembled in banco, constituted the Superior Tribunal or Court of Appeals. But neither the Courts of Second Instance nor the Superior Tribunal did any business, except granting a few orders, before they were superceded by the present judiciary. The Courts of First Instance originated a large portion of the cases which went up on appeal to the Supreme Court. Although these were courts organized according to the Mexican system, and their duties pointed out by the small manual of law before referred to, yet the Judges, who presided over them, being mostly common law lawyers, and being entirely unacquainted with Mexican law, they were, in their proceedings, substantially common law courts, and, for the most part, their decisions turned upon common law. But, in the south, there were some Judges who followed the traditions of law common in that region. Inartificial and rude as was the whole judiciary system, before the organization of the state courts, still it was wonderfully efficient. And it was well for the people of California that it was so. For, an unparalleled immigration had brought with it an unparalleled amount of litigation-an amount of litigation, that at this day appears almost incredible. With the daily accruing causes of legal controversy, crowds assembled at the school-house on the Plaza of San Francisco; where from morning till night the judge of First Instance in civil cases might be seen at the desk dispensing off-hand justice. In front of him sat three or four clerks, conducting the business of the court; while on the bench opposite or standing within the rail was a crowd of lawyers waiting a hearing for their clients, who, with their witnesses, filled the remainder of the room, and formed groups about the door. The crowd was not composed of idlers, but it was the representation of the ordinary accumulation of business The Alcalde System of California. for the day, which was to be disposed of before the adjournment of the court. All were anxious to be heard and to have their several controversies disposed of within the shortest possible time. Speedy justice was more desirable than exact justice, when labor was valued at an ounce of gold a day. And none among the multitude were more desirous for speed than the lawyers, whose compensation would depend much upon a speedy judgment. The moving spirit of the whole scene, the judge, watched all that was done or said; and he seldom withdrew his attention unless to administer an oath for the consideration of a dollar, or to sign an order for the consideration of two dollars. Sometimes he would move his position, but whether warming his uncovered feet at the fire-place, or drawing on his boots, there was the same unalterable attention on his part. But as soon as he comprehended a case, his authoritative voice was heard, closing the discussion, and dictating to a clerk the exact num ber of dollars and cents for which he was to enter up judgment. And then, successive cases went through this summary process until the day's work was completed. To a jury, in a passenger's case for damages against the Pacific Mail Company, he informed them that they must not bring in a verdict for plaintiff for more than the amount of passage money paid, or he would set it aside. And as for long speeches to juries, they were not allowed. All orders asked for by a respectable attorney were granted ex parte—the judge remarking that if the order was not proper, the other party would soon appear and move to set it aside, and then he could ascertain the real merits of the case. After this manner did the administration of justice, rather than law, proceed from day to day "according to the very right of the case," not only in San Francisco, but substantially in the same way, though on a more limited scale, throughout the interior. Hardly one unsuccessful suitor in a hundred thought of appealing a suit, and if he did so, it was a rare thing that enough material appeared of record out of which to make a correct showing of the case. But the criminal administration of justice was in a deplorable condition. Judges of First Instance, in criminal cases, were appointed and were authorized to take fees. But from whom? From the criminal and his friends, or from the complaining witness? Either of these alternatives was abhorrent to our American notions. There were no jails, no district funds, or district organization. When the community was aroused at the commission of some flagrant crime, men were found to act voluntarilly as sheriffs and clerks, and volunteers guarded the prisoner. But the whole proceeding was necessarily attended with great delays, and the unavoidable expenses were so exceedingly onerous, that it led to the practice, when the district was large, of trying by a jury, without the aid of a judge, persons taken in the commission of a crime. Such unauthorized trials were called "Miners' Courts," and as many persons engaged in mining were familiar with legal proceedings, "Miners' Courts" were oftentimes conducted with as much regularity in their proceedings as the courts of The Mexican Appellate Court. law. But it is our duty also to add, that under this name of "Miners' Courts," many monstrous abuses have been perpetrated. Such is a summary of the legal history of the department of California, and of the California territory. The Common Law was, in later times, for the most part, the rule of decision, but in adjudicating on cases arising out of the territorial courts, the supreme court of the state was obliged to consider the Mexican law when clearly ascertained, and when the same was applicable to the particular case before it for its determination. And it is understood that recently the supreme court has decided, that the whole of the Mexican written law was not in full force throughout California, nor was to be considered as the rule of decision in all cases arising out of commercial contracts. This equitable determination of this vexed question, must render unnecessary a more extended examination of the traditional laws of California, or a more extended discussion of the question as to the extent to which the statutory law of Mexico is to be considered as applicable in this state. THE MEXICAN APPELLATE COURT IN CALIFORNIA. We have omitted to say anything of the character of the Appellate Judge under the Mexican régime-the only judge in California, above a Justice of the Peace or Alcalde, viz.: the Governor in person, because we preferred to have official documents speak for us. On page 600 of President Taylor's California Message and Documents, (Ex. Doc. No. 17 of House of Rep. of 1st Sess. of 31st Congress,) the commander at Los Angeles writes to General Mason:— "Don Pio Pico is about five feet seven inches high, corpulent, very dark, with strongly marked African features; he is no doubt an amiable, kind-hearted man, who has ever been the tool of knaves; he does not appear to possess more intelligence than the rancheros generally do; he can sign his name, but I am informed cannot write a connected letter; hence, as he informed me, he would be compelled to send for his former secretary before he could answer my order or communicate with you, which he advised me he intended doing." Lest it might be believed that the practice of making ante-dated grants, and afterwards inserting them in the blank leaves of a Record book, originated with an Alcalde of San Francisco, the following extract from page 668 of the same volume is added, from which it will appear, that this California Appellate Judge, "with strongly-marked African features," "who has ever been the tool of knaves," "and cannot write a connected letter,"-this last Mexican Governor of California, who has granted most of the valuable lands about San Francisco, out-stripped Alcaldes in the business of manufacturing ante-dated land grants. "[Confidential.] "STATE DEPARTMENT TERRITORY OF CALIFORNIA, "SIR: It is highly probable that the persons who obtained grants or deeds of |