California Legal History: The Legal System under the United States Military Government, 1846-1849

Law Library Journal

Volumn 88, Issue 4, 1996, Pages 488-512

  Saunders, Myra K ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 0345876270     PISSN: 00239283     EISSN: None     Source Type: Journal    
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References (155)

1. Myra K. Saunders, California Legal History: A Review of California's Spanish and Mexican Legal Institutions, 87 L. LIBR. J. 487 (1995). There is naturally some overlap between the two periods: to reduce repetition, readers will be referred to the earlier article as appropriate.
2. Treaty of Peace, Friendship, Limits and Settlement with the Republic of Mexico, March 10-May 30, 1848, U.S.-Mex., 9 Stat. 922, 926 (1851).
3. An Act for the Admission of the State of California into the Union, ch. L, 9 Stat. 452 (1850).
4. See DAVID J. LANGUM, LAW AND COMMUNITY OF THE MEXICAN CALIFORNIA FRONTIER: ANGLO-AMERICAN EXPATRIATES AND THE CLASH OF LEGAL TRADITIONS, 1821-1846, at 22-23 (1987).
5. See RICHARD R. POWELL, COMPROMISES OF CONFLICTING CLAIMS: A CENTURY OF CALIFORNIA LAW, 1760-1860, at 8 (1977).
6. See CHARLES HOWARD SHINN, MINING CAMPS: A STUDY IN AMERICAN FRONTIER GOVERNMENT 132 (Rodman Wilson Paul ed., Peter Smith 1970) (1884).
7. See POWELL, supra note 5, at 207.
8. See WALTON BEAN, CALIFORNIA, AN INTERPRETATIVE HISTORY 94 (1968).
9. 5 HUBERT HOWE BANCROFT, HISTORY OF CALIFORNIA 194-99 (Wallace Hebberd 1963-1970) (1884-1890).
10. 5 Id. at 198-99.
11. See 5 id. at 101-90; WOODROW HANSEN, THE SEARCH FOR AUTHORITY IN CALIFORNIA 59 (1960) (citing Letter from John Sutter to John Marsh (Mar. 9, 1846) (Sutter Collection, California State Library)).
12. Proclamation of John D. Sloat (July 7, 1846), in DOCUMENTS FROM THE STATE DEPARTMENT ON RELATIONS WITH MEXICO, S. EXEC. DOC. NO. 1, 29th Cong., 2d Sess., at 644 (1850).
13. Id. at 644-45.
14. See THEODORE GRIVAS, MILITARY GOVERNMENTS IN CALIFORNIA 1846-1850, at 50-78 (1963).
15. See CARDINAL GOODWIN, THE ESTABLISHMENT OF STATE GOVERNMENT IN CALIFORNIA, 1846-1850, at 30 (1914) (citing OCCUPATION OF MEXICAN TERRITORY, H.R. EXEC. DOC. NO. 19, 29th Cong., 2d Sess., at 109-10 (1847).
16. See CARDINAL GOODWIN, THE ESTABLISHMENT OF STATE GOVERNMENT IN CALIFORNIA, 1846-1850, at 30 (1914) (citing OCCUPATION OF MEXICAN TERRITORY, H.R. EXEC. DOC. NO. 19, 29th Cong., 2d Sess., at 109-10 (1847).
17. There was to be a governor (who was the commander-in-chief of the army) and a legislative council consisting of seven members. The municipal officers of cities, towns and departments, and districts formerly existing in the territory were to be continued, and all their proceedings were to be regulated by the laws of Mexico, until other provisions were made by the governor and legislative council. H.R. EXEC. DOC. NO. 19, supra note 15, at 109-10. See also JABEZ HALLECK & WILLIAM E. P. HARTNELL, TRANSLATION AND DIGEST OF SUCH PORTIONS OF THE MEXICAN LAWS OF MARCH 20 AND MAY 23, 1837 AS ARE SUPPOSED TO BE STILL IN FORCE AS ADAPTED TO PRESENT CONDITIONS, pt. 1, § 5, art. 1, at 13 (San Franciso, Office of The Alta Californian, 1849) [hereinafter HALLECK TRANSLATION]. For more information on the Mexican Laws of 1837 and their provisions, see SAUNDERS, supra note 1, at 498-504.
18. There was to be a governor (who was the commander-in-chief of the army) and a legislative council consisting of seven members. The municipal officers of cities, towns and departments, and districts formerly existing in the territory were to be continued, and all their proceedings were to be regulated by the laws of Mexico, until other provisions were made by the governor and legislative council. H.R. EXEC. DOC. NO. 19, supra note 15, at 109-10. See also JABEZ HALLECK & WILLIAM E. P. HARTNELL, TRANSLATION AND DIGEST OF SUCH PORTIONS OF THE MEXICAN LAWS OF MARCH 20 AND MAY 23, 1837 AS ARE SUPPOSED TO BE STILL IN FORCE AS ADAPTED TO PRESENT CONDITIONS, pt. 1, § 5, art. 1, at 13 (San Franciso, Office of The Alta Californian, 1849) [hereinafter HALLECK TRANSLATION]. For more information on the Mexican Laws of 1837 and their provisions, see SAUNDERS, supra note 1, at 498-504.
19. See NEAL HARLOW, CALIFORNIA CONQUERED 154 (1982); 5 BANCROFT, supra note 9, at 284-85.
20. Grivas says that after the departure of Stockton, council members declined to serve, but Robertson indicates that the decision not to call the council was made by Kearny. GRIVAS, supra note 14, at 95; James R. Robertson, From Alcalde to Mayor: A History of the Change from the Mexican to the American Local Institutions in California 111 (1909) (unpublished Ph.D. diss., University of California, Berkeley) (on file with the Main and Bancroft Libraries at the University of California at Berkeley).
21. See H.R. EXEC. DOC. 19, supra note 15, at 108; GRIVAS, supra note 14, at 89.
22. See GRIVAS, supra note 14, at 99-101.
23. Proclamation to the People of California from S. W. Kearny (Mar. 1, 1847), in PRESIDENTIAL MESSAGE TRANSMITTING INFORMATION ON CALIFORNIA AND NEW MEXICO, H.R. EXEC. DOC. NO. 17, 31st Cong., 1st Sess., at 288-289 (1849).
24. Sherman, who later played a significant role in the Civil War, was stationed in California from 1847 until 1850. Sherman again visited California in 1852 and, after resigning his commission, returned to California as a private citizen to pursue an unsuccessful business venture from late 1853 through May of 1857. GENERAL WILLIAM TECUMSEH SHERMAN, RECOLLECTIONS OF CALIFORNIA 1846-1861 (1945).
25. Proclamation of R.B. Mason (Aug. 13, 1847), in H.R. EXEC. DOC. NO. 17, supra note 21, at 377. Halleck served as Secretary from August of 1847 until the dismantlement of the military government in December of 1849. Halleck put his experience in the military government to good use. After California achieved statehood, Halleck launched a successful San Francisco law practice, Halleck, Peachy, and Billings, which specialized in defending Spanish and Mexican land-grant claims. In 1861, he published a text entitled International Law, or, Rules Regulating the Intercourse of States in Peace and War. Later, he served as President Lincoln's Chief of Staff for two years during the Civil War. Milton H. Shutes, Henry Wager Halleck, Lincoln's Chief of Staff, 16 CAL. HIST. Q. 195 (1937).
26. Proclamation of R.B. Mason (Mar. 10, 1847), in H.R. EXEC. DOC. NO. 17, supra note 21, at 291.
27. GREGORY YALE, LEGAL TITLES TO MINING CLAIMS AND WATER RIGHTS IN CALIFORNIA 17 (San Francisco, A. Roman & Co. 1867).
28. HENRY WAGER HALLECK, HALLECK'S INTERNATIONAL LAW, OR, RULES REGULATING THE INTERCOURSE OF STATES IN PEACE AND WAR 450 (Sir Sherston Baker ed., C. Kegan Paul & Co. 1861).
29. Message from the President of the United States (Dec. 22, 1846), in H.R. EXEC. DOC. NO. 19, supra note 15, at 1-2. Originally Polk seemed to have sanctioned establishment of a territorial government, but revised his position after reaction from Congress. For a discussion of the Congressional debate over the proper handling of Mexican lands held by conquest, see GOODWIN, supra note 15, at 20-34 and Joseph Ellison, The Struggle for Civil Government in California 1846-1850 (pt.1), 10 CAL. HIST. SOC'Y Q. 20-22 (1931).
30. Message from the President of the United States (Dec. 22, 1846), supra note 27, at 2.
31. Proclamation to the People of California from S. W. Kearny (Mar. 1, 1847), in H.R. EXEC. DOC. NO. 17, supra note 21, at 288-89.
32. Letter from R.B. Mason to L.W. Boggs (June 2, 1847), in H.R. EXEC. DOC. NO. 17, supra note 21, at 317-18.
33. Letter from R.B. Mason to John Grisby (June 2, 1847), in H.R. EXEC. DOC. NO. 17, supra note 21, at 318-19.
34. See HALLECK TRANSLATION, supra note 16.
35. For a fuller discussion of the alcalde's functions in Spanish and Mexican California, see SAUNDERS, supra note 1, at 498-502, and GRIVAS, supra note 14, at 150-65.
36. "It was expedient for the military commanders of the United States to continue the office of alcalde and to retain as many loyal Californians in the office as was practicable. The combination of legislative, executive, and judicial duties in one man, although odious to many American immigrants in California, was nonetheless advantageous to the military governors in California. The conflicts that would necessarily arise with the division of these functions in separate individuals was prevented by the adoption of the alcalde system by the Americans." Grivas, supra note 14, at 165 (footnotes omitted).
37. The Laws of 1837 were finally implemented in July of 1849. Hansen postulates that the implementation of the 1837 laws might have satisfied the demand for self-government, had it been done earlier. HANSEN, supra note 11, at 92-94.
38. See, e.g., Letter from R.B. Mason to Alcalde John Burton (July 13, 1847), in H.R. EXEC. DOC. NO. 17, supra note 21, at 321-22; Letter from R.B. Mason to W.D.M. Howard (July 28, 1847), id. at 581; Letter from W.T. Sherman to Captain F.J. Lippett (Aug. 25, 1847), id. at 351-52; Letter from H.W. Halleck to Alcalde Ignacio Escquer (May 9, 1849), id. at 761; Letter from H.W. Halleck to Captain Simmons, Mr. Harrison and others (Sept. 20, 1849), id. at 831; Letter from H.W. Halleck to Prefect David Spence (Nov. 20, 1849), in PRESIDENTIAL MESSAGE COMMUNICATING FURTHER INFORMATION ON FORMATION OF STATE GOVERNMENT IN CALIFORNIA, AND ALSO IN RELATION TO THE CONDITIONS OF CIVIL AFFAIRS IN OREGON, S. EXEC. DOC. NO. 52, at 27-8, 31st Cong., 1st Sess. (1850); Letter to T. H. Green from H.W. Halleck (Nov. 20, 1849), id. at 27-8.
39. For a detailed description of the California Archives, see J. N. Bowman, History of the Provincial Archives of California, 64 S. CAL. Q. iv-97 (1982). For more information on the types of legal materials available in Spanish and Mexican California, see Saunders, supra note 1, at 504-06.
40. See, e.g., Letter from R.B. Mason to W. D. M. Howard (July 28, 1847), in H.R. EXEC. DOC. NO. 17, supra note 21, at 581; Letter from R.B. Mason to Captain J.L. Folsom (Jan. 5, 1848), id. at 453-54; Letter from R.B. Mason to Messrs. Alrigo and Larkin (May 6, 1848), id. at 547; Letter from H.W. Halleck to Alcalde J.G. Majors (June 2, 1849), id. at 772; Letter from H.W. Halleck to P.M. Foley (Dec. 1, 1849), in S. EXEC. DOC. NO. 52, supra note 36, at 29-30.
41. The governor's office had a copy of Gordon's Digest of the Laws of the United States. Letter from R.B. Mason to Captain J.L. Folsom (Jan. 5, 1848), in H.R. EXEC. DOC. NO. 17, supra note 21, at 453-54. Both Mason's and Sherman's correspondence make reference to having access to the statutes of Missouri and a digest of the laws of Texas. Letter from to J.S. Griffen (Oct. 20, 1847), id. at 403; Letter from R.B. Mason to L.W. Boggs and M.G. Vallejo (Nov. 11, 1847), id. at 419. Riley, Mason's successor, requested and was sent copies of Kent's and Blackstone's commentaries, as well as Wheaton's Elements of International Law. Letter from W. L. Marcy to R.B. Mason (Oct. 13, 1848), id. at 263-64. The California Star also reported the use of the Missouri statutes in an alcalde's court. The Power of Making Laws, CAL. STAR (San Francisco), Jan. 23, 1847, at 2. Halleck indicated that he sometimes borrowed legal materials found in the libraries of visiting ships of war. HALLECK, supra note 26, at iii.
42. See EDWIN BRYANT, WHAT I SAW IN CALIFORNIA 436 (New York: D. Appelton & Co. 1848); REV. WALTER COLTON, THREE YEARS IN CALIFORNIA 47-48, 55, 200, 232 (1949). But cf. Noel C. Stevenson, The Glorious Uncertainty of the Law 1846-1851, 28 J. ST. BAR CAL. 374 (1953) (discussing the scarcity of common-law legal materials, mostly in the gold-rush area).
43. See EDWIN BRYANT, WHAT I SAW IN CALIFORNIA 436 (New York: D. Appelton & Co. 1848); REV. WALTER COLTON, THREE YEARS IN CALIFORNIA 47-48, 55, 200, 232 (1949). But cf. Noel C. Stevenson, The Glorious Uncertainty of the Law 1846-1851, 28 J. ST. BAR CAL. 374 (1953) (discussing the scarcity of common-law legal materials, mostly in the gold-rush area).
44. See EDWIN BRYANT, WHAT I SAW IN CALIFORNIA 436 (New York: D. Appelton & Co. 1848); REV. WALTER COLTON, THREE YEARS IN CALIFORNIA 47-48, 55, 200, 232 (1949). But cf. Noel C. Stevenson, The Glorious Uncertainty of the Law 1846-1851, 28 J. ST. BAR CAL. 374 (1953) (discussing the scarcity of common-law legal materials, mostly in the gold-rush area).
45. Letter from R.B. Mason to Alcaldes Don Pablo de la Guerra and Don Luis Carillo (June 14, 1847), in H.R. EXEC. DOC. NO. 17, supra note 21, at 321-22.
46. See GRIVAS, supra note 14, at 176-77.
47. Letter from R.B. Mason to J. Maria Bonilla (Jan. 25, 1848), in H.R. EXEC. DOC. NO. 17, supra note 21, at 462-63. For a description of an incident that took place in Sonoma (the home of the Bear Flag Revolt) shortly after Mason assumed office relating the refusal of the locally elected alcalde to relinquish his office to the alcalde appointed by Mason, see SHERMAN, supra note 25, at 20-7 and Letter from R.B. Mason to Alcalde L.W. Boggs (July 22, 1847), in H.R. EXEC. DOC. NO. 17, supra note 21, at 377-78.
48. "[B]e governed by the customs and laws of the country as far as you can ascertain them, and by your own good sense and sound discretion." Letter from R.B. Mason to Alcalde L.W. Boggs (June 2, 1847), in H.R. EXEC. DOC. NO. 17, supra note 21, at 317-18 (1850); see also Letter from R.B. Mason to 2d Alcalde Don Luis Carillo (June 2, 1847), id. at 354.
49. HANSEN, supra note 11, at 82 (in specific reference to the activities Alcalde L. W. Boggs).
50. "Previous to 1846 an American occasionally held a position of the Ayuntamiento [town council], served as a Sindico [trustee], or even held the office of Alcalde, but incumbents of office were mainly of Mexican or Spanish descent. After 1846 however the lists of officials are filled with Americans and occasionally a foreigner of some other nationality than Spanish or Mexican. . . . It had been the intention at the time of the American occupation that the two should be placed together in the offices and that the Mexican population should be admitted to the offices so far as safe. As the period passed however the proportion of Spanish and Mexican incumbents decreased. Only those who were known to be favorable to the United States were desired and [sic] especially in the southern part of California. In many cases military men were selected." Robertson, supra note 18, at 198-99 (descriptions added).
51. See Rockwell D. Hunt, Legal Status of California 1846-49, 12 ANNALS AM. ACAD. POL. & SOC. SCI. 387, 391-92 (1898); HARLOW, supra note 17, at 266 (citing JOSIAH ROYCE, CALIFORNIA FROM THE CONQUEST IN 1846 TO THE SECOND VIGILANCE COMMITTEE IN SAN FRANCISCO 201-02 (Boston and New York: Houghton Mifflin, 1886)).
52. See Rockwell D. Hunt, Legal Status of California 1846-49, 12 ANNALS AM. ACAD. POL. & SOC. SCI. 387, 391-92 (1898); HARLOW, supra note 17, at 266 (citing JOSIAH ROYCE, CALIFORNIA FROM THE CONQUEST IN 1846 TO THE SECOND VIGILANCE COMMITTEE IN SAN FRANCISCO 201-02 (Boston and New York: Houghton Mifflin, 1886)).
53. "I heard it frequently asserted in San Francisco by some, who were enumerating the various codes, statutes, kinds and descriptions of law administered or rather pretended to be administered in California, that our Alcalde here, had adopted for his district the Missouri statutes. This is not exactly true, but being about the only law book the court could lay hands on, has served as a sort of guide, text and form to go by, our judge, like others in California, having no particular constitution, statutes or usages to govern his course . . ." Letter from "Pacific" to the Editor, CAL. STAR (San Francisco), Jan. 22, 1848, at 2.
54. Letter from H.W. Halleck to Major J.C. Graham (May 11, 1849), in H.R. EXEC. DOC. NO. 17, supra note 21, at 762.
55. See Hunt, supra note 47, at 392.
56. See COLTON, supra note 40, at 47.
57. See GRIVAS, supra note 14, at 175.
58. Proclamation of R.B. Mason (Dec. 29, 1847), in H.R. EXEC. DOC. NO. 17, supra note 21, at 452.
59. Letter from R.B. Mason to Alcalde Charles White (Mar. 2, 1848), id. at 487; Letter from R.B. Mason to Don Pedro C. Carillo (Apr. 5, 1848), id. at 505.
60. Letter from H.W. Halleck to Major J. C. Graham (May 11, 1849), id. at 762.
61. See GRIVAS, supra note 14, at 112-13 (citing Letter from R.B. Mason to J. L. Folsom (Nov. 11, 1847) and Letter from H.W. Halleck to J. D. Stevenson (July 20, 1848)).
62. Letter from H.W. Halleck to Major J.C. Graham (May 11, 1849) in H.R. EXEC. DOC. NO. 17, supra note 21, at 762.
63. HALLECK TRANSLATION, supra note 16, pt.1, § 5, art. 1, at 13.
64. Id. pt. 1, § 6, art. 2, at 15-16.
65. Id. pt. 1, § 6, art. 2, at 15.
66. See Robertson, supra note 18, at 239.
67. Letter from R.B. Mason to Alcalde George Hyde (July 15-Aug. 13, 1847), in H.R. EXEC. DOC. NO. 17, supra note 21, at 378-79.
68. See, e.g., The Power of Making Laws, CAL. STAR (San Francisco), Jan. 23, 1847, at 2.
69. The Laws of California, CAL. STAR (San Francisco), Jan. 9, 1847, at 2.
70. HANSEN, supra note 11, at 77.
71. The Laws in Force, CAL. STAR (San Francisco), Mar. 27, 1847, at 2.
72. "It has not been satisfactorily taught us, yet, why that 'limited authority,' which is nevertheless unrestricted in the abolishment of the Mexican 'laws in force' when they are deemed conflicting with the general interest and hurtful to our common welfare; cannot, upon as safe footing, adopt and immediately execute, laws, whereby the general good so vigilantly guarded may be promoted." Civil Government, CAL. STAR (San Francisco), May 20, 1848, at 2.
73. See, e.g., CAL. STAR (San Francisco), Apr. 22 1848; CALIFORNIAN (Monterey), Apr. 26, 1848. The newspaper articles discussing the code are excerpted or summarized in Chester March Gate, The First California Laws Printed in English, in BIBLIOGRAPHIC ESSAYS: A TRIBUTE TO WILBERFORCE EAMES 330-36 (1924), and in Lindley Bynum, Laws for the Better Government of California, 1848, 2 PAC. HIST. REV. 279-91 (1933).
74. See, e.g., CAL. STAR (San Francisco), Apr. 22 1848; CALIFORNIAN (Monterey), Apr. 26, 1848. The newspaper articles discussing the code are excerpted or summarized in Chester March Gate, The First California Laws Printed in English, in BIBLIOGRAPHIC ESSAYS: A TRIBUTE TO WILBERFORCE EAMES 330-36 (1924), and in Lindley Bynum, Laws for the Better Government of California, 1848, 2 PAC. HIST. REV. 279-91 (1933).
75. "I sent to you but a few days ago, upon the recommendation of Mr. Sutter, the appointment of alcalde, and am sorry to learn, by one of your letters of the 15th ultimo, that you do not wish it. I am well aware of the difficulties that the alcalde as heretofore labored under. Those difficulties will soon be removed by the duties of alcaldes, prefects, judges, etc., being clearly defined and published, and the ways and means prescribed for raising the necessary funds to defray all proper civil funds." Letter from R.B. Mason to John Sinclair (Mar. 5, 1848), in H.R. EXEC. DOC. NO. 17, supra note 21, at 489.
76. See CALIFORNIAN (Monterey), May 3, 1848; CALIFORNIAN (Monterey), May 17, 1848; CAL. STAR (San Francisco), May 20, 1848; CALIFORNIAN (Monterey), Aug. 14, 1848; ALTA CALIFORNIAN (San Francisco), June 14, 1849. See also Cate, supra note 68, at 333; Bynum, supra note 68, at 285.
77. Letter from R.B. Mason to Captain J.L. Folsom (May 21, 1848), in H.R. EXEC. DOC. NO. 17, supra note 21 at 555; Letter from R.B. Mason to Alcalde Stephen Foster (May 31, 1848), id. at 558; Letter from R.B. Mason to Alcalde John Townsend (June 1, 1848), id. at 559; Letter from R.B. Mason to W.D.M. Howard (July 28, 1848), id. at 581; Letter from H.W. Halleck to Major James A. Hardie (Aug. 1, 1848), id. at 581.
78. "I had prepared a code of laws, and a judicial organization; and, although they were sent to the press in due season, I did not succeed in getting them printed before I received official notification of the ratification of the treaty of peace between the two republics, owing to the stopping of the presses upon the discovery of the gold mines." Letter from R.B. Mason to L.W. Hastings (Oct. 24, 1848), in H.R. EXEC. DOC. NO. 17, supra note 21, at 677.
79. The code was discovered at the sale of the personal library of the former librarian of the New York Law Institute and was acquired in 1923 by the Huntington Library in San Marino, California. Bynum, supra note 68, at 279.
80. R.B. MASON, LAWS FOR THE BETTER GOVERNMENT OF CALIFORNIA, "THE PRESERVATION OF ORDER, AND THE PROTECTION OF THE RIGHTS OF THE INHABITANTS," DURING THE MILITARY OCCUPATION OF THE COUNTRY BY THE FORCES OF THE UNITED STATES (San Francisco, S. Brannan 1848) [hereinafter cited as MASON CODE].
81. See, e.g., the assumption of one author (writing before the copy of the Mason Code was discovered): "Meanwhile he [Mason] set about discovering and formulating the 'principal features of Mexican law applicable to the country at the time of the conquest.'" Hunt, supra note 47, at 396.
82. MASON CODE, supra note 74, Administration, § 1.
83. "Every person who shall be convicted of breaking into and entering in the night time, the dwelling house of another, in which there shall be at the time some human being, with intent to commit some felony, or any larceny therein, either, "First, By [sic] forcibly bursting or breaking the wall, or any outer door, window, or shutter of a window of such house, or the lock or bolt of such door, or the fastening of such window or shutter; or, "Second, By [sic] breaking in, in any other manner, being armed with such dangerous weapon, or with the assistance or aid of one or more confederates, then actually present, aiding or assisting; or "Third, By [sic] unlocking an outer door by means of false keys, or by picking the lock, thereof, shall be adjudged guilty of burglary in the first degree." Id., Crimes & Punishments, § 32.
84. See supra notes 37-40 and accompanying text.
85. The Power of Making Laws, CAL. STAR (San Francisco), Jan. 23, 1847, at 2.
86. Letter from S.W. Kearny to the Adjutant General (Sept. 22, 1846), in H.R. EXEC. DOC. NO. 19, supra note 15, at 26.
87. Laws for the Better Government of the Territory of New Mexico, in H.R. EXEC. DOC. NO. 19, supra note 15, at 32-73.
88. For the purposes of this discussion, the MASON CODE, supra note 74, was compared with JAMES WILMER DALLAM, DIGEST OF THE LAWS OF TEXAS (Baltimore, John D. Toy 1845),
89. OLIVER C. HARTLEY, A DIGEST OF THE LAWS OF TEXAS (Philadelphia, Thomas, Cowperwaite & Co. 1850)
90. and THE REVISED STATUTES OF THE STATE OF MISSOURI (St. Louis, Chambers and Knapp 1845).
91. Coincidentally, Missouri had also been a Spanish possession. It became a United States territory in 1804, but did not adopt the common law until 1816. Kathianne Knaup, The Transition from Spanish Civil Law to English Common Law in Missouri, 16 ST. LOUIS U.L.J. 218, 219 & 225 (1971).
92. Although Mason's correspondence indicates that he was also arranging to have the code translated into Spanish, no Spanish version has been identified: "I send Mr. Hartnell, the government interpreter, to San Francisco, to attend to the correctly [sic] printing of the Spanish translation of some laws etc., that I intend to publish." Letter from R.B. Mason to Captain J.L. Folsom (May 21, 1848), in H.R. EXEC. DOC. NO. 17, supra note 21, at 555. This translation was also reported in the local press: "Governor Mason has had printed both in the English and Spanish languages, a code of laws for the better government..." HANSEN, supra note 11, at 84 (citing Laws, CALIFORNIAN (Monterey), Aug. 14, 1848.)
93. HALLECK TRANSLATION, supra note 16, at 4.
94. Hunt, supra note 47, at 74.
95. Letter from R.B. Mason to Adjutant General R. Jones (Aug. 19, 1848), in H.R. EXEC. DOC. NO. 17, supra note 21, at 597.
96. "The government, of which Colonel Mason was the executive, had its origin in the lawful exercise of the belligerent right over a conquered territory. It had been instituted during the war at the command of the President of the United States. It was the government when the territory was ceded as conquest, and did not cease, as a matter of course, or a necessary consequence of the restoration of peace. The President might have dissolved it by withdrawing the army and navy officers who administered it, but he did not do so. Congress could have put an end to it, but that was not done. The right inference from the inaction of both is that it was meant to be continued until it had been legislatively changed." Cross v. Harrison, 57 U.S. (16 How.) 164, 193 (1853).
97. Letter from H.W. Halleck to the Reverend F. Jose Maria de Jesus Gonzales, Governor of the Bishopric of California (Aug. 13, 1849), in H.R. EXEC. DOC. NO. 17, supra note 21, at 801.
98. HALLECK TRANSLATION, supra note 16, at 3 (quoting The American Insurance Company v. Canter, 26 U.S. (1 Pet.) 511, 541 (1828)).
99. An earlier study indicates that the proposal to implement the Laws of 1837 came from Halleck. HANSEN, supra note 11, at 92-94.
100. HALLECK TRANSLATION, supra note 16.
101. See, e.g., Letter from R.B. Mason to Nathan Spear (June 3, 1847), in H.R. EXEC. DOC. NO. 17, supra note 21, at 319; Letter from R.B. Mason to Gabriel Abbisu (June 3, 1847), id. at 319; Letter from R.B. Mason to Alcalde L.W. Boggs (June 7, 1847), id. at 321; Letter from R.B. Mason to Messrs. James and Carolan Mathews (Apr. 1, 1848), id. at 505; Letter from H.W. Halleck to the Reverend F. Jose Maria de Jesus Gonzales (Dec. 3, 1849), in S. EXEC. DOC. NO. 52, supra note 36, at 31-2; Letter from H.W. Halleck to Messrs. Charles Gray, Abram P. De Witt (Dec. 6, 1849), id. at 36; Letter from H.W. Halleck to Benjamin Brewster (Dec. 6, 1849), id. at 36.
102. See, e.g., Letter from R.B. Mason to Alcalde L.W. Boggs (June 7, 1847), in H.R. EXEC. DOC. NO. 17, supra note 21, at 231; Letter from R.B. Mason to the Rev. Padre Fr. Jose Ma. R. S. del Real (June 3, 1847), id. at 453; Letter from R.B. Mason to Alcalde Charles White (Mar. 10, 1848), id. at 492-93; Letter from J. W. Halleck to Alcalde Don Ignacio Esquer (Mar. 10, 1848), id. at 761; Letter from J. W. Halleck to Alcalde J. L. Majors (July 1, 1849), id. at 794.
103. Letter from R.B. Mason to Alcalde William Blackburn (June 21, 1847), in H.R. EXEC. DOC. NO. 17, supra note 21, at 332-33. See also Letter from H.W. Halleck to Prefect A. M. Pico (Dec. 4, 1849), in S. EXEC. DOC. NO. 52, supra note 36, at 33-34. For a discussion of Native American land claims in California, see Donald G. Shanahan, Jr., Compensation for the Loss of Aboriginal Lands of the California Indians, 75 HIST. SOC'Y SO. CAL. Q. 297-320 (1975).
104. See, e.g., GEORGE COSORAVE, THE LAND GRANT IN EARLY CALIFORNIA JUSTICE 25-32 (1948); HANSEN, supra note 11, at 81; ROYCE, supra note 47, at 467-80.
105. Letter from Paisano to the Editor, CAL. STAR (San Francisco), Mar. 13, 1847.
106. See Robertson, supra note 18, at 245-50; HARLOW, supra note 47, at 289-90; HANSEN, supra note 11, at 83-84. Even the military officers took part: "A naval officer, Lieutenant Washington A. Bartlett, its [San Francisco's] first alcalde, had caused it to be surveyed and laid out in to blocks and lots, which were being sold at sixteen dollars a lot of fifty varas (yards) square; the understanding being that no single person could purchase of the alcaldes more than one in-lot of fifty varas, and one lot of out-lot of one hundred varas. Folsom, however, had got his clerks, orderlies, etc., to buy lots, and they, for a small consideration, conveyed them to him, so that he was nominally the owner of a good many lots. Lieutenant Halleck had both one of each kind, and so had Warner. Many naval officers had also invested, and Captain Folsom advised me to buy some, but I felt actually insulted that he should think me such a fool as to pay money for property in such a horrid place as Yerba Buena [San Francisco] . . ." SHERMAN, supra note 22, at 23 [descriptions added].
107. Alcalde Walter Colton, in particular, was criticized: "Neither Governor Kearny nor Governor Mason gave to alcalde Colton any power to sell lands. Governor Mason directly questioned the power of the alcalde to make such sales, and demanded of this his authority for doing so . . ." Letter from H.W. Halleck to Alcalde Ignacio Escquer (May 9, 1849), in H.R. EXEC. DOC. NO. 17, supra note 21 at 761. Gardner Quincy Colton, Walter Colton's brother, became an alcalde in San Fransciso in 1849. He was also active in selling municipal lands, but it is unclear whether the proceeds of sales were turned over to the pueblo treasury, or kept by Colton. G.Q. Colton's grants were declared void by the San Francisco ayuntamiento in late 1849 and an 1851 state statute recognizing those claims was repealed in 1853. Kenneth M. Johnson, The Judges Colton, 57 HIST. SOC'Y SO. CAL. Q. 349, 355-59 (1975).
108. H.W. Halleck, Report on the Laws and Regulations Relative to Grants or Sales of Public Lands in California, in H.R. EXEC. DOC. NO. 17, supra note 21, at 118-80.
109. The translations contained in the appendices to the report included the DeNeve Regulations (Appendix 2), the Colonization Act and implementing regulations (Appendices 4 and 5). In addition to the texts of official documents contained in the archives, Halleck makes reference to having certain translations made from the 1844 edition of the Ordenanzas de Tieras y Aguas ed. by Marianos Galván (Appendix 9). Id.
110. Letter from H.W. Halleck to Colonel J. D. Stevenson (July 25, 1848), in H.R. EXEC. DOC. NO. 17, supra note 21, at 576.
111. Paul W. Gates, Adjudication of Spanish-Mexican Land Claims in California, in LAND AND LAW IN CALIFORNIA 9 (1991). For further discussion on and sources for researching Spanish and Mexican Land Grants, see SAUNDERS, supra note 1, at 490-91, 496-98, 507-14.
112. Letter from H.W. Halleck to the Judges and Inspectors of San Francisco (June 5, 1849), in H.R. EXEC. DOC. NO. 17, supra note 21, at 775.
113. See SHINN, supra note 6, at 122.
114. In 1849, $23 million in gold had been mined. Gold revenues peaked in 1853 and within a decade had receded below the 1849 levels. Id. at 109, 146, 157.
115. Id. at 132.
116. Letter from R.B. Mason to Adjutant General R. Jones (Aug. 17, 1848), in H.R. EXEC. DOC. NO. 17, supra note 21, at 528-36.
117. Letter from R.B. Mason to Adjutant General R. Jones (Aug. 17, 1848), in H.R. EXEC. DOC. NO. 17, supra note 21, at 533; Letter from R.B. Mason to Adjutant General R. Jones (Nov. 24, 1848), id. at 648; SHERMAN, supra note 22, at 44-45.
118. See YALE, supra note 25, at 19; SHINN, supra note 6, at 117; GRIVAS, supra note 14, at 134 (citing WILLIAM S. M'COLLUM, CALIFORNIA AS I SAW IT 51-52 (Talisman Press 1960) (1850); Letter from R.B. Mason to Adjutant General R. Jones (Aug. 30, 1849), in H.R. EXEC. DOC. NO. 17, supra note 21, at 785-92, 788-98.
119. See RODMAN W. PAUL, CALIFORNIA GOLD: THE BEGINNING OF MINING IN THE FAR WEST 210 (1947); Charles S. Cushing, The Acquisition of California, Its Influence and Development Under American Rule, 8 CAL. L. REV. 67, 76 (1920); JOHN R. UMBECK, A THEORY OF PROPERTY RIGHTS 69-70 (1981).
120. See RODMAN W. PAUL, CALIFORNIA GOLD: THE BEGINNING OF MINING IN THE FAR WEST 210 (1947); Charles S. Cushing, The Acquisition of California, Its Influence and Development Under American Rule, 8 CAL. L. REV. 67, 76 (1920); JOHN R. UMBECK, A THEORY OF PROPERTY RIGHTS 69-70 (1981).
121. See RODMAN W. PAUL, CALIFORNIA GOLD: THE BEGINNING OF MINING IN THE FAR WEST 210 (1947); Charles S. Cushing, The Acquisition of California, Its Influence and Development Under American Rule, 8 CAL. L. REV. 67, 76 (1920); JOHN R. UMBECK, A THEORY OF PROPERTY RIGHTS 69-70 (1981).
122. Proclamation of R.B. Mason (Feb. 12, 1848), in H.R. EXEC. DOC. NO. 17, supra note 21, at 452. The term "denouncement" referred to a procedure used to reclaim abandoned or unused claims, but by this action Mason is thought to have meant to abolish the Mexican laws pertaining to the establishment of rights in new and old mines. UMBECK, supra note 111, at 69 n.6. See also YALE, supra note 25, at 12. Apparently, Halleck disapproved of this action and, for this reason, did not countersign this proclamation as he would normally have done. Id. at 17.
123. See SHINN, supra note 6, at 113; PAUL, supra note 111, at 197-209. M'COLLUM, supra note 110, at 147.
124. See POWELL, supra note 5, at 89.
125. See SHINN, supra note 6, at 123-31.
126. One mining region "alcalde" was future United States Supreme Court Justice Stephen J. Field. Field's own description of the office has been frequently quoted: "Under the Mexican law, alcaldes had, as already stated, a very limited jurisdiction. But in the anomalous conditions of affairs under the American occupation, they exercised almost unlimited powers. They were, in fact, regarded as magistrates elected by the people for the sake of preserving public order and settling disputes of all kinds. In my own case, and with the approval of the community, I took jurisdiction of every case brought before me. I knew nothing of Mexican laws; did not pretend to know anything of them; but I knew that the people had elected me to act as magistrate and looked to me for the preservation of order and the settlement of disputes; and I did my best that they should not be disappointed." STEPHEN J. FIELD, PERSONAL REMINISCENCE OF EARLY DAYS IN CALIFORNIA 19-22 (Da Capo Press 1968) (1893). Field was elected alcalde in January 1850, before statehood, but after the first constitutional convention and the transfer of the government from the military to a civil regime. Accordingly, Field took care to have himself confirmed as a justice of the peace by California's first governor. Id. at 19. Whatever Field's title, he was alcalde neither under Mexican nor military rule and his remarks should not be used to assess the office of the alcalde in either system.
127. See Letter from R.B. Mason to Adjutant General R. Jones (Aug. 17, 1848), in H.R. EXEC. DOC. NO. 17, supra note 17, at 528-36; Letter from R.B. Mason to Adjutant General R. Jones (Nov. 24, 1848), id. at 648.
128. See, e.g., ROYCE, supra note 47, at 271-376; PAUL, supra note 111, at 204-09.
129. See PAUL, supra note 111, at 233.
130. Arvo Van Alstyne, The California Civil Code, in CAL. CIV. CODE 1, 1 (West 1954).
131. See PAUL, supra note 111, at 212-13; YALE, supra note 25, at 58.
132. See YALE, supra note 25, at 59.
133. POWELL, supra note 5, at 89.
134. The Criminal and Civil Practice Codes drafted by Stephen Field in the second legislative session were based closely on the acts drafted by his brother, David Dudley Field, for the New York legislature. CARL BRENT SWISHER, STEPHEN J. FIELD, CRAFTSMAN OF THE LAW 54 (1969).
135. "In actions respecting 'Mining Claims' proof shall be admitted of the customs, usages, or regulations established or in force at the bar, or diggings, embracing such claim; and such customs, usages, or regulations, when not in conflict with the constitution and laws of this state, shall govern the decision of the actions." An Act to Regulate Proceedings in Civil Cases, in the Courts of Justice of this State, ch. 5, § 621, 1851 Cal. Stat. 149.
136. See PAUL, supra note 111, at 226-27.
137. Id. at 233 (quoting MINING & SCIENTIFIC PRESS, July 14, 1866) [descriptions added].
138. Letter from James Buchanan to William Vorhies (Oct. 7, 1848), in H.R. EXEC. DOC. NO. 17, supra note 21, at 7-8; see also Letter from Brevet Major General Persifor F. Smith to Messrs. James Creighton, George Hyde, Henry A. Harrison, Thomas J. Roach, Talbot H. Green (Mar. 10, 1849), id. at 732-36 (discussing the status of the military government).
139. See HUNT, supra note 47, at 64-84; 80-81; William E. Franklin, Peter H. Burnett and the Provisional Government Movement, 40 CAL. HIST. SOC'Y Q. 123-36 (1961).
140. Thomas H. Benton, United States, ALTA CALIFORNIAN (San Francisco), Jan. 11, 1849, at 2.
141. Id.
142. See, e.g., PETER H. BURNETT, RECOLLECTIONS AND OPINIONS OF AN OLD PIONEER 294 (Da Capo Press 1969) (1880) (The full text of the resolutions passed in Sacramento appear at 296-98); Provisional Government, ALTA CALIFORNIAN (San Francisco), Jan. 4, 1849, at 2; Provisional Government, ALTA CALIFORNIAN (San Francisco), Jan. 25, 1849; Provisional Government, ALTA CALIFORNIAN (San Francisco), Feb. 22, 1849; Provisional Government, ALTA CALIFORNIAN (San Francisco), Mar. 1, 1849; Provisional Government, ALTA CALIFORNIAN (San Francisco), Mar. 22, 1849.
143. See, e.g., PETER H. BURNETT, RECOLLECTIONS AND OPINIONS OF AN OLD PIONEER 294 (Da Capo Press 1969) (1880) (The full text of the resolutions passed in Sacramento appear at 296-98); Provisional Government, ALTA CALIFORNIAN (San Francisco), Jan. 4, 1849, at 2; Provisional Government, ALTA CALIFORNIAN (San Francisco), Jan. 25, 1849; Provisional Government, ALTA CALIFORNIAN (San Francisco), Feb. 22, 1849; Provisional Government, ALTA CALIFORNIAN (San Francisco), Mar. 1, 1849; Provisional Government, ALTA CALIFORNIAN (San Francisco), Mar. 22, 1849.
144. The Legislative Assembly - The Alcalde - The Military and the De Facto Government, ALTA CALIFORNIAN (San Francisco), Mar. 29, 1849.
145. Public Meeting, ALTA CALIFORNIAN (San Francisco), Feb. 15, 1849), at 2.
146. In November 1848, a clearly discouraged Mason had asked to be reassigned: "The war being over, the soldiers nearly all deserted, and having now been from the States two years, I respectfully request to be ordered home." Letter from R. B. Mason to Adjutant General R. Jones (Nov. 24, 1848), in H.R. EXEC. DOC. NO. 17, supra note 21, at 649. Mason died of cholera in St. Louis in the summer of 1849, shortly after leaving California. 6 BANCROFT, supra note 9, at 274.
147. Proclamation of B. Riley (June 3, 1849), in H.R. EXEC. DOC. NO. 17, supra note 21, at 776. Harlow claims that Riley was relying on Mexican law for precedent, but that is not clear from the text of the proclamation. HARLOW, supra note 47, at 325 and accompanying notes.
148. "Whatever may be thought of the right of the people to temporarily replace the officers of the existing government by others appointed by a provisional territorial legislature, there can be no question that the existing laws of the country must continue in force till replaced by others made and enacted by competent power. That power, by the treaty of peace, as well as from the nature of the case, is vested in Congress. . . . The situation of California in this respect is very different from that of Oregon. The latter was without laws, while the former has a system of laws, which, although somewhat defective and requiring many changes and amendments, must continue in force till repealed by competent legislative power. The situation of California is almost identical with that of Louisiana; and the decisions of the Supreme Court in recognizing the validity of the laws which existed in that country previous to its annexation to the United States, where not inconsistent with the constitution and laws of the United States, or repealed by legitimate legislative enactments, furnish us a clear and safe guide in our present situation." Proclamation of B. Riley, supra note 136, at 777.
149. "As Congress has failed to organize a new territorial government, it becomes our imperative duty to take some active means to provide for the existing wants of the country. This, it is thought, may be best accomplished by putting in full vigor the administration of the laws as they now exist, and completing the organization of the civil government by the election and appointment of all officers recognized by law." Id.
150. Id.
151. Id. at 778.
152. Letter from B. Riley to Adjutant General R. Jones (June 30, 1849), in H.R. EXEC. DOC. NO. 17, supra note 21, at 749.
153. See, e.g., Letter from B. Riley to Governor [sic] L.W. Boggs (Aug. 10, 1849), in H.R. EXEC. DOC. NO. 17, supra note 21, at 807; Letter from H.W. Halleck to J. E. Brackett (Aug. 17, 1849), id. at 809; Letter from H.W. Halleck to Judge Wm. B. Almond (Oct. 3, 1849), id. at 836; Letter from H.W. Halleck to Judge J. W. Geary (Oct. 3, 1849), id. at 836; Letter from H.W. Halleck to Captain J. E. Brackett (Oct. 3, 1849), id. at 837; Letter from H.W. Halleck to J. B. Donalen and Francis J. Russell (Oct. 4, 1849), id. at 839; Letter from H.W. Halleck to P. M. Foley (Nov. 3, 1849), in S. EXEC. DOC. NO. 52, supra note 36, at 22; Letter from H.W. Halleck to Prefect David Spence (Nov. 5, 1849), id. at 22; Notice from H.W. Halleck (Nov. 17, 1849), id. at 28; Letter from H.W. Halleck to E. O. Crosby (Dec. 4, 1849), id. at 34.
154. The first constitution did adopt the principle of community property. CAL. CONST, art. XI, § 14 (1849). For a discussion of whether the civil law concept of community property was ever actually implemented in California, see Susan Westerberg Prager, The Persistence of Separate Property Concepts in California's Community Property System, 1849-1975, 24 UCLA L. REV. 1 (1976).
155. The first constitution did adopt the principle of community property. CAL. CONST, art. XI, § 14 (1849). For a discussion of whether the civil law concept of community property was ever actually implemented in California, see Susan Westerberg Prager, The Persistence of Separate Property Concepts in California's Community Property System, 1849-1975, 24 UCLA L. REV. 1 (1976).