DIGEST OF LAWS. Translation and Digest of such portions of the Mexican Laws of March 20th and May 23d, 1837, as are supposed to be still in force and adapted to the present condition of California; with an Introduction and Notes, by J. HALLECK, Attorney at Law, and W. E. P. HARTNELL, Government Translator. EXECUTIVE DEPARTMENT OF CALIFORNIA, The following pages have been examined in manuscript and compared with the original text, and are believed to be essentially correct. As it is thought that their publication at this time will be useful and advantageous, three hundred copies are ordered for distribution among the officers of the existing Government, to be paid for out of the "Civil Fund." [SIGNED.] B. RILEY, B'ot. Brig. Gen'l U. S. Army, and Governor of California. INTRODUCTION. In 1828 the Supreme Court of the United States, in a case concerning the then Territory of Florida, made the following decision: "The usage of the world is, if a nation be not entirely subdued, to consider the holding of conquered territory as a mere military occupation until its fate be determined at the treaty of peace. If it be ceded by the treaty, the acquisition is confirmed, and the ceded territory becomes a part of Xthe nation to which it is annexed, either on the terms stipulated in the treaty of cession, or on such as its new master shall impose. On such transfer of territory it has never been held that the relations of the inhabitants with each other undergo any change. Their relations with the former sovereign are dissolved, and new relations are created between them and the Government: which has acquired their territory. The mere act which transfers their country, transfers the allegiance of those who remain in it; and the law which may be denominated political, is necessarily changed, although that which regulates the intercourse and general conduct of individuals remains in force until altered by the newly created power of the State. "The treaty (by which Florida was ceded) is the law of the land, and admits the inhabitants of Florida to the enjoyment of the privileges, rights, and immunities of the citizens of the United States. It is unnecessary to inquire whether this is not their condition, independent of stipulation. They do not, however, participate in political power; they do not share in the government till Florida become a State. In the mean time, Florida continues to be a territory of the United States, governed by virtue of that clause of the Constitution which empowers Congress to make all needful rules and regulations respecting the territory or other property belonging to the United States. "Perhaps the power of governing a territory belonging to the United States, which has not by becoming a State, acquired the means of self-government, may result necesssarily from the fact, that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territory. Whichever may be the source whence the power is derived, the possession of it is un-questioned." This decision shows plainly and conclusively what is the present legal condition of things in California. The laws which were in force in this country previous to its conquest, and which do not conflict with the Constitution, Treaties and Laws of the United States, constitute the existing laws of California, and the government recognised in those laws is the only one which can be recognised in any legal court, and these laws and this government must continue until changed by or with the consent of Congress. During the military occupation of California, the commanding officer here, under the general authority conferred on him by the laws of war, eould suspend or change any of the laws of Mexico affecting the people of this Territory; but all such suspensions and changes were only of a temporary character, and ceased with the war. The relations which formerly existed between this government and Mexico were dissolved by the transfer of the territory, and it may be a question how far these relations have been transferred to the Government of the United States. Some of the powers of the General Government of Mexico over this country we know have never been transferred to the Government of the United States, because the Constitution of the United States forbids certain powers to our Government which by the Constitution of Mexico are given to its Government; while, on the other hand, the Government of the United States possesses certain powers over the Territory of the United States which Mexico did not possess over even her frontier department. For example, the Government and Legislature of California, under the Mexican laws, could on certain conditions make and confirm grants of public lands; but no one will pretend that the Government and Legislature of California can now make or confirm such grants, Congress alone having power to dispose of the public domain. Again, the people of California could participate in a limited manner in the General Government of Mexico; but now they cannot participate in the Government of the United States till Congress gives them that right. Formerly, the peeple of California had only such rights as were given them by the Constitution and laws of Mexico; now they have all the rights, privileges, and immunities given by our Constitution and laws to the people of the United States. This is a great and important distinction, which cannot be too highly appreciated, and which compensates more than a thousand fold for what little we have temporarily lost in political power. As some months will necessarily elapse before the existing government and laws of California can be changed, it is important to know the powers and responsibilities of the several political and judicial officers of the present Government. The following pages have been prepared to assist in furnishing this information. The laws of March 20th and May 23d, 1837, are regarded as the laws in force in California up to the time of the conquest. The Mexican Constitution of 1844, partially adopted in Mexico, was never regarded as in force in California, nor was it known here that these laws were materially modified by any decrees or orders of the Mexican Congress. It will be a question hereafter for the decision of courts, what modifications were legally made by Mexico, and how far they are actually in force under the existing circumstances of the country. It is not pretended that all the provisions of the laws of 1837, actually in force in California, are embodied in the following pages, nor that all the articles which have been selected are applicable in their full extent to the existing state of the country. This little work is merely intended as a temporary guide and assistance to the inferior officers of Government, till more complete treaties can be prepared by competent persons. Most of the articles in the following pages are nearly literal translations of the Spanish text, consequently new words and awkward expressions are frequently introduced. This was deemed preferable to attempting a more liberal iendering. The translator will not vouch for the perfect correctness of his translation in every instance, for he does not himself understand the exact meaning of some of the terms and phrases used in the Spanish laws. Where doubts arise respecting the meaning of these phrases, it will be necessary for the court to critically examine the words of the original text. In putting in practice the existing laws of California important assistance will be derived by consulting the Febrero Mejicano," "Alvarez' Instituciones de derecho real de Castilla y de Indias," "Gutierres' Practica Criminal,” the work of "Salas," &c. The codes of Louisiana, which are almost identical with the Spanish codes, will also be found applicable in most of the cases which may arise in the courts of California. The following brief sketch of the history of the jurisprudence of that State by an eminent American writer will be read with interest at the present time: Louisiana was ceded by France to Spain in 1762, and was taken possession of by this latter power in 1769, when the Spanish law was introduced. The great body of this law, called the Siete Partidas, was compiled as early as 1263. The Recopilacion de Castilla, published in 1567, was intended to clear up the confusion of the previous codes, but it leaves the authority of the partidas generally unimpaired. The cession of Louisiana to the United States necessarily introduced the trial by jury in a modified form, and the writ of habeas corpus, which were unknown to the pre-existing laws. The legislative council of the territory of Orleans borrowed largely from the common law, but principally those forms of proceedings necessary to confer efficient powers on the courts organized under the authority of the union. But, in the adjudication of suits between individuals, the Spanish jurisprudence was the sole guide, except in commercial questions. In 1806 the legislative council ordered two able jurists to prepare a civil code for the use of the territory on the groundwork of the civil laws which governed the territory. It was reported in 1808 and adopted, but was not allowed to supersede the previous laws, except as far as those laws were inconsistent with its provisions. The "Digest of the Civil Code now in force in the territory of Orleans," as it was called, though termed a code, is, in fact, little more than a synopsis of the jurisprudence of Spain. It continued in operation for fourteen years without any material innovation. In 1822 Messrs. Derbigny, Livingston, and Moreau Lislet were selected by the legislature to revise and amend the civil code, and to add to it such of the laws still in force as were not included therein. They were authorized to add a system of commercial laws and a code of practice. The code which they prepared, having been adopted, was promulgated in 1824, under the title of the "Civil Code of the State Louisiana;" and the legislature resolved, that "from and after the promulgation of this code, the Spanish, Roman, and French laws, which were in force when Louisiana was ceded to the United States, and the acts of the legislative council of the legislature of the territory of Orleans, and of the legislature of the state of Louisiana, be, and hereby are, repealed in every case for which it has been specially provided in this code." It would seem that where the code is silent on any subject, any pre existing laws on that subject, whether of French or Spanish origin, or of native growth, would be considered as s'ill in force. The new code, independently of the great changes which it has introduced, is much more full and explicit in the doctrinal parts than the former digest. The theory of obligations particularly deserves to be mentioned, as comprising, in a condensed and even elegant form, the most satisfactory enunciation of general principles. The jurisconsults appear to have profited much by the great work of Toublier, entitled Le Droit civil Francais. The code contains 3,552 articles, numbered from the beginning for convenience of reference. The most striking and material changes introduced by the new code relate to the rules of succession, and the enlarged liberty of disposing of property by last will, by curtailing the portions which must be reserved for forced heirs. The new order of succession conforms to that established in France by the Code Napoleon, and will be found to be copied almost precisely from the 118th novel of Justinian, from which the Spanish rules of descent had deviated in some essential particulars. The legislature of Louisiana provided also for the formation of a penal code, by an act passed in 1820, and entrusted the charge of preparing it to Mr. Edward Livingston. A plan of a penal code was accordingly drawn up by him, and presented to the legislature in 1822. This code has since been published, and is regarded as one of the most elegant and learned legal works extant. PART FIRST. POLITICAL. LAW OF MARCH 20TH, 1837. The interior Government of the Department shall be under the charge of the Governor, Departmental Legislature (Juncta,) Prefects and Sub-Prefects, Ayuntamientos, Alcaldes, and Justices of the Peace. SECTION I. Of the Governor. ART. 1. His term of service and the necessary qualifications for election are specified in the sixth constitutional law. (1) It shall be his duty, 1st. To take care of the preservation of public order in the interior of the department; 2nd. To dispose of the armed force which the laws assign to him for this purpose, and in default thereof, or where it may not be sufficient, to ask the necessary force from the military commandant, who cannot refuse it ; 3d. To publish without delay, execute and cause to be executed, the laws and decrees of Congress, and circulate them through the Department; 4th. To execute also, and cause to be executed, the decrees and orders of the General Government and the resolutions of the departmental legislature, previously approved, when necessary, by Congress ; 5th. To remit to the General Government, with his report, all the resolutions of the departmental legislature; 6th. To appoint the Prefects, approve the appointment of Sub Prefects of the department, confirm that of the Justices of Peace, and to remove any of these functionaries, having first the opinion of the departmental legislature respecting such removal; (1) These qualifications are no longer necessary, nor even admissible, for by the transfer of his Territory to the United States our relations with Mexico were dissolved. 7th. To apppoint likewise the other officers of the Department, whose appointment is not reserved to some other authority; 8th. To suspend the officers of the Department for a term not exceeding three months, and even deprive them of half of their salary for the same period; 9th. To suspend the Ayuntamientos of the Department with the consent of the departmental legislature; (1) 10th. In case of exercising either of the two foregoing attributes, he shall immediately report to the general government; 11th. To grant permission with a just motive, for a period not exceeding two months in each year, to government officers to be absent from their stations; 12th. To decide executively and without appeal the doubts which may arise respecting the elections of Ayuntamientos, and admit or not the renunciations of the members elected; 13th. To exercise, in union with the departmental legislature, with a casting vote in case of a tie, the rejecting power (esclusiva) referred to in Article 22nd, Attributes 8th of the fifth constitutional law; (2) 14th. To incite the tribunals and magistrates to the prompt and correct administration of justice, and report to the respective superior authorities the faults of the inferior ones → 15th. To watch over the revenue officers of the Department in the manner which shall be prescribed by law; 16th. To watch over the public health of the Department, taking, in concert with the legislature, the necessary measures for its preservation; 17th. To take particular care that there be no want of elementary schools in any of the towns of the Department, and that the masters and mistresses, as far as the circumstances of the place will admit, possess good moral character and the necessary qualifications. ART. 2. He may in his executive capacity, and without appeal, impose fines not exceeding two hundred dollars, which shall be paid into the municipal funds (propios y arbitrios) of the place to which the person fined belongs; or he may sentence the inhabitants of the Department who shall disobey him or be wanting in respect, or who in any other manner disturb the public tranquillity, to one month at public works, or double the time of arrest, conforming himself to the circumstances of the individuals, and allowing them a summary and verbal hearing, in case they should request it. But with respect to faults for which the law has provided a penalty, the existing regulations must be observed. ART. 3. He shall hear complaints against the functionaries of the departmental government, and for faults cognizable by government he may impose executively and without appeal a fine not exceeding fifty dollars, to be likewise paid over to the municipal funds; but said functionaries shall also be heard in a summary and verbal manner in case they desire it. ART. 4. He may send vagabonds, idle persons, and such as have no known occupation, to the establishment dedicated to this object, or to such workshops or agricultural establishments as may choose voluntarily to admit them; but the persons so to be disposed of shall have the choice of the two latter destinations. ART. 5. When the public tranquility shall require it, he may give a written order to search houses and to arrest persons; and even without this requisite he may command the arrest of any delinquent caught in the act: but in either case the persons arrested must within three days be put at the disposal of the competent magistrate, to whom he will make a written report of the motives of the arrest. (3) ART. 6. On the report of the Prefect (the opinion of the departmental legislature being obtained) he may grant permission to the Ayuntamiento or authorities in charge of the administration and expenditure of municipal funds, to defray such extraordinary expenses as may be required for objects of necessity or common utility. ART. 7. In cases of necessity or for motives of public utility, he may, in concert with the departmental legislature, grant permission to said authorities to alienate certain property belonging to the municipal funds (proprios y arbitrios ;) and any cession, donation, or contract made without this requisite, will be null and void. ART. 8. He will issue the respective commissions to the officers whom by law he is entitled to appoint. (4) (1) Where there is no departmental legislature organized it has always been held that the power of removal and suspension rests with the Governor, who is responsible for his acts to the general government. (2) This has reference to the appointments of certain subaltern officers. (3) It may be a question whether this clause is not slightly modified by Art. IV. amendments to the Constitution of the United States. (4) The original text also states how he shall sign his name to different documents, when his family name, and when his mere flourish is sufficient. With us one and the same signature is always used. ART. 9. At public meetings he will take precedence of all the authorities of the department. ART. 10. He will also preside at the departmental legislature when he shall attend the sessions; but he shall only be entitled to vote in case of a tie, or in such cases as are or may be provided for by the Constitution and the laws. ART. 11. Should he be in any town of the department, he may preside without vote at the sessions of the ayuntamiento thereof. ART. 12. He shall nominate and remove at pleasure the Secretary of the Departmental government, but he cannot appoint to this office, or to that of prefect, any public officer, without the consent of the authority who named him. 13. His ordinary residence shall be in the capital of the department, and in order to remove therefrom, he will require the permission of the President. ART. 14. He shall be the ordinary channel of communication between the supreme powers of the nation and the departmental legislature, and between the latter and the authorities of the department. ART. 15. In all official matters, the Governor, whether regularly appointed, or acting as such ad interim, shall be entitled to the appellation of "Your Excellency.' ART. 16. The salary of the Governor is regulated by the General Government, but can never exceed five thousand dollars per annum. ART. 17. In temporary default of the Governor, another shall be named ad interim, in the same manner as the proper one. If the default should be of short duration, the senior (mas antiguo) lay member of the departmental legislature shall take charge of the government, as he shall in like manner do, during the interval which may take place between the default of the Governor proper and the appointment of his successor ad interim. (1) SECTION II. Of the Secretary. ART. 1. There shall be a Secretary's Office in the Department for the transaction of the affairs of its interior government. ART. 2. The Secretary shall be the immediate head of the office and shall form regulations for the interior government of the same, which must be submitted to the Governor for him to approve or reform as he may see fit. ART. 3. The Secretary shall authorize under his signature the publication and circulation of the laws, decrees and orders of the Supreme powers, the determinations of the departmental legislature, the municipal ordinances of the Ayuntamientos, the interior police regulations of the Department and the titles or despatches issued by the Governor. ART. 4. He shall carry on the Governor's correspondence with the inferior authorities under his signature, restricting himself to what is directed by the Governor, and he shall be answerable for any deviation therefrom. ART. 5. He shall likewise be answerable for the want of the espedientes, laws, decrees, orders, and other papers, which ought to be on file in the office. ART. 6. Neither the Secretary or any of the Clerks of the office shall ask or accept any fees or emoluments for the despatch of any kind of business. ART. 7. He shall be officially entitled to the appellation of "Honorable" (Senoria.) ART. 8. The salary of the Secretary is fixed by the Governor (with the approbation of the General Government,) but can never exceed two thousand five hundred dollars per annum. SECTION III. Of the Departmental Legislature. ART. 1. In this Department there shall be an assembly denominated the "Departmental Legislature," composed of seven individuals. (1.) In the older Departments of Mexico the Legislature nominated several persons from which the President selected the Governor, but in California and the other frontier Departments, no such right was vested in the Legislature, the President having power to select any person for Governor without a previous nomination. In the present instance, the commanding officer of this military department is designated by the President of the United States, as Governor of California, which power is exercised in accordance with the former laws of the country; it is therefore unnecessary to examine whether this power could not have been exercised (any laws of this country to the contrary notwithstanding) under the new relations, created by the trausfer of the territory, between its inhabitants and the General Government of the United States. |
