PREFACE.

In presenting to the public the first volume of California reports, it may not be improper to preface it with a brief account of the condition of things in California previous to the organization of the state government.

All the other states of our confederacy had, previously to their admission into the union, an established government, on which their state organizations were based. The people of California, however, were driven by extreme necessity, growing out of the political and legal chaos in which they found themselves, to the formation of a state government. A large amount of labor, consequent upon the unorganized state of society, was necessarily imposed upon the tribunal of last resort-the labor of searching for authorities in an unfamiliar language, and an unfamiliar system of jurisprudence; of ascertaining the law, as laid down in the codes of Spain; in the royal and vice-royal ordinances and decrees; in the laws of the imperial congress of Mexico; in the acts of the republican congress; in presidential regulations; in decrees of dictators, and acts of pro-consular governors. Many ordinances and decrees, claimed to have the force of law, had not been printed even in Mexico; and they, as well as all other books upon Spanish and Mexican laws, could be procured only with great difficulty and at great expense, and, indeed, at first, they could not be procured at all. In addition to these causes of embarrassment, great doubts were entertained as to the force, as a rule of decision, which the laws of Spain and of Mexico, never but partially enforced in the remote province of California, should have, after the acquisition of the country by the Americans, in the construction of contracts made between American citizens, who had settled in California in such numbers as greatly to exceed the native population.

California was, at first, a missionary territory. As auxiliary to the Missions, Presidios (Forts) were established, and Pueblos (agricultural vil lages) were established in the neighborhood of the Missions and Presidios, with the two-fold object of providing supplies for the Presidios, and of establishing colonies of Indian Neophytes. In these Pueblos and Missions, converted Indians and discharged soldiers, in addition to other Pobladores, were settled. These colonies were on the out-skirts of civilization. They needed but few laws. The government was of a patriarchal character, little regard being paid to the strict letter of the laws, either of Spain or Mexico.

Such was substantially the condition of things in California under the Spanish rule. With the revolution, which severed Mexico from the Spanish

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Crown, came disorder and disorganization. The Missions were broken up; the Presidios, neglected; and no new system was adopted and enforced in place of the one which had fallen into disuse. Land had never been, previously to the acquisition of the country by the Americans, of much value. The wealth of the colonists consisted principally in their cattle and horses, which were sold for a trifling sum. During the disorders which characterized the Mexican régime, land can be said to have had scarcely any value-at all events, not a value worth the trouble and expense of procuring a perfect title under the colonization laws of Mexico and Spain. No mail facilities were enjoyedlong journeys had to be made to the capital of the province, in the midst of civil disorders and revolutions, in order to procure a perfect title. Men could not always, perhaps but seldom, be found, who were capable of making the necessary surveys. This condition of things led, in some cases, without taking any steps to obtain a title, in others, after having taken only the incipient proceedings, to the practice of taking possession, or at least of claiming, large tracts of land which had not been surveyed, and the boundaries of which were undefined, and even unknown. This system continued until the conquest of the country-until the discovery of gold-until the Americans thronged into northern California, a portion of the country which could be said previously to have contained scarcely any population except Indians. A sudden change then took place; land became valuable; towns sprung up, and, to supply the population, agriculture was found to be one of the most lucrative employments. Americans, desirous of cultivating the earth, rather than of mining or engaging in commercial or professional avocations, did not hesitate to take possession of such agricultural lands as they found wild and vacant, notwithstanding the lands might have been claimed as a portion of some large ranch. In the towns, extensive speculations had been carried on in lands which were claimed to have been granted by American Alcaldes, after the American forces had taken possession of the country. Questions involving immense amounts of property, and of pervading interest to the public, came up for adjudication, and the courts were asked to usurp the functions of legislators, and declare papers to constitute a title, which were absolutely void. Difficulties occurred in determining the jurisdiction and powers of judges of First Instance, Alcaldes, Justices of the Peace, and Ayuntamientos. Destructive fires desolated the city of San Francisco, where the sessions of the court were held. Records and papers were destroyed, or lost. Libraries, which had (been collected at great cost, were burned, and confusion and disorder were the

inevitable result.

Before the organization of the state government, society was in a disorganized state. It can scarcely be said that any laws were in existence further than such as were upheld by custom and tradition. This was the case more particularly in Northern California and in the mineral region-in Southern California, perhaps, to a less extent. Commercial transactions to an immense amount had been entered into, and large transactions in real estate had taken place between Americans, with reference to the Common Law as modified and adminis

tered in the United States, and without regard to the unknown laws of the republic of Mexico, and the equally unknown customs and traditions of the Californians; and the application of the strict letter of Mexican law in all cases, would have invalidated contracts of incalculable amount, which had been entered into without any of the parties having had the means of knowing that such laws ever existed.

It is believed that judges of First Instance were never appointed and never held office in California under the Mexican régime, but that Alcaldes possessed the powers and jurisdiction of judges of First Instance. The Alcaldes, before the annexation 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 Mexican law further than suited their own convenience, and conduced to their own profit. The supreme court was called upon to pass upon but few cases on appeal from Alcaldes' courts, but on many from courts of First Instance. The judges of these courts, appointed by General Riley, then military governor of California, being common law lawyers and not acquainted with Mexican or Spanish law, further than they could gather it from a small pamphlet translated and published by order of General Riley, conducted their proceedings, for the most part, according to the Common Law, or the statutory regulations of the several states from which they respectively came, and their decisions were generally based upon Common Law grounds.

In the supreme court, on appeal, it was necessary to take into consideration, so far as might be done, without infringing positive statutory, or clearly defined and settled law, the peculiar and anomalous condition of the country, of the government, of the state of society, of the old citizens of California, and of their American invaders. This the court always endeavored to do, sometimes, perhaps, ineffectually.

The initiatory step taken towards reducing chaos to order, was the formation of a state constitution. This was in the autumn of 1849. On the 15th day of December, 1849, the first legislature under the constitution met at San José, and, under most discouraging circumstances, accomplished an amount of labor, which few legislatures, in the same space of time, ever accomplished. In pursuance of a clause in the constitution, the first judges of the supreme court, and of district courts were appointed by this legislature. The state was divided into nine judicial districts, for each of which a district judge was appointed. The terms of the supreme court were appointed to be held at San Francisco. Appeals to the supreme court were authorized from courts of First Instance, from district courts, and, in certain cases, from Alcaldes; and the practice was prescribed by which such appeals should be carried up. The following volume embraces the decisions of the supreme court on such appeals.

A statute of the state authorized the supreme court to appoint a reporter, and it appointed Edward Norton, Esq. He had, as early as May, 1851, advanced far in the preparation of a volume of reports, but his manuscript was destroyed

in the fire of May 4, 1851. He then resigned his office, and the undersigned, by the advice of his associates on the bench, assumed the task of reporting the decisions. By another statute, the decisions of the court, in all cases, were required to be given in writing, and, by another statute, all decisions were required to be reported. The following volume embraces all the decisions of the court, from its first organization in March, 1850, to the end of the June term, 1851, together with one case decided at the October term, 1851.

Such are the reasons why the undersigned presents to the members of the profession in California, the following volume. I have here to acknowledge the obligations I am under to WM. S. REESE, Esq., for the assistance he has given in the preparation of the work for the press, particularly of the index, the merits of which, if there be any, should be principally ascribed to him, and for the faults in which, if there be any, he must be chiefly responsible; also to Hon. R. A. WILSON, one of the judges of First Instance in Sacramento district, for his treatise upon the Alcalde system in California, and the Mexican Appellate Court, and San Francisco and its Provisional Government, which he has furnished me for the purposes of this work. I have also thought proper to insert in the appendix the report upon the Common Law made by a committee of the first legislature, as illustrative of the condition of things in California at the meeting of the first legislature, and of the efforts made to procure the adoption, on the one hand, of the Common, and, on the other, of the Civil Law system of jurisprudence.

SAN FRANCISCo, 1851.

NATHL. BENNETT.