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Of Alcaldes and Justices of the Peace.
Art. 2. It likewise belongs to such Alcaldes and Justices of the Peace to take cognizance of, and decide in their respective towns, all verbal processes which may occur, except those in which ecclesiastics and military persons are sued.
ART. 3. It belongs likewise to them, to dictate in litigious cases the very urgent measures that will not admit being taken before the primary judges; and to take, under similar circumstances, the first steps in criminal causes, and also such others as they may be commissioned to do by the respective tribunals and primary courts.
Art. 4. Of the attributions comprehended in the three foregoing articles, the Justices of Peace of such places as do not contain one thousand inhabitants shall only exercise that of taking (whether in civil or criminal cases) such steps as from their urgency do not give time to apply to the nearest respective authorities.
ART. 5. In order to verify the judgment of conciliation, whosoever may have to institute any civil suit, the value of which does not exceed one hundred dollars, or any criminal one respecting serious injuries, purely personal, shall make his complaint to the Alcalde or competent Justice of the Peace, demanding verbally to have the accused party summoned in order to commence the trial of conciliation, and said Alcalde or Justice of Peace will immediately have the summons made out, which must mention the object of the complaint, and fix the day, hour, and place, in which the parties have to appear, and both the accuser and the accused are to be told to bring each his arbitrator (hombre-bueno), who must be a citizen in the exercise of his rights, and completed his 25th year of age--(with us 21 years is the legal age.]
Art. 6. The accused party is bound to concur in obedience to the summons of the Alcalde or ✓ Justice of Peace, but should he not do so, a second summons must be sent to him to appear at
some newly appointed time, under a penalty of from two to ten dollars fine; and should he still not come forward, it shall be considered that the means of conciliation have been at'empted, and that the trial is at an end, (i. e. the trial of conciliation,) and the fine imposed upon the accused party shall be irremissibly exacted.
ART. 7. It shall likewise be considered that the means of conciliation have been tried, and that the trial is concluded, if the person summoned appear before the Alcade or Justice of Peace in obedience to the first or second summons, and say that he renounces the benefit of concil. iation.
Art. 8. In the two cases treated of in the two foregoing articles, the corresponding record must be made in the respective book, and be signed in the first case by the Alcalde or Justice of Peace, the plaintiff and Clerk, (Escribano,) if there be one, and it not by two assisting witnesses ; and in the second case, by the Alcalde or Justice of Peace, the Plaintiff and Defendant; and whenever the latter does not make his appearance, but renounces the aforesaid benefit, he must necessarily do it in writing.
Arr. 9. When the parties do come forward, either personally or by means of their lawful representatives, to proceed with the trial of Conciliation, the Alcalde or Justice of Peace and the Arbitrators will make themselves acquainted with what the parties have to expose respecting the matter in dispute, and when the said parties retire, the Alcalde or Justice of Peace will bear the opinion of the Arbitrators, and will immediately, or within eight days at farthest, give the sentence which he may consider most fitting to avoid a law suit, and to bring about the mutual conform ity of the parties.
Art. 10. Each Alcalde or Justice of Peace shall have a book entitled “BOOK OF CONCILIATIONS," in which he shall note down a concise account of what occurs in the trials of Conciliation, agreeably to what is ordered in the preceding article and in contingation of the Con: ciliatory Sentence dictated by the Alcalde or Justice of Peace, which must be notified to the parties interested in presence of the Arbitrators, in order that they may say whether they agree to it or not, which must also be noted down and be signed by the Alcalde or Justice, the Arbitrators, and parties interested.
Art. 11. When the parties agree to the Sentence, the certified copies of the proceedings which they may ask for shall be given to them in order that the corresponding authority may carry it into effect, and if either of the parties should not agree, the Alcalde or Justice of Peace will give him a certificate that the means of Conciliation have been attempted, but without success; the parties interested merely paying the costs of said certificates in the accustomed form.
Art. 12. In the same Book of Conciliations must be entered the record mentioned in Art. 8, and this Book must remain in the archives when the Alcalde or Justice of Peace conclude the time of their appointment.
Art. 1. In every criminal suit the sentence of first appealisegunda ustanela) shall sem eru cution when it is perfectly agreable to the frst senteness or of the justice are to!
Ann 2. In criminal cause there cannot be less than one apywal las instalna) erw when the accuser and the culprit agree to the first senteno
ANT, & All witnesses to be examined in any evit er eriminal cause must never by dear amined by the proper tribunals or magistrates which have aynisance of mail us and they should reside at other plaers they must do examined by the Magistrate or Aloul when they
Ant 4 Every person, of whatever class privileges or condition he may be when he has to give his declaration as a witness in a criminal cause, is obliged to appear for this purpwe Row the Magistrate who has cognizance there without the neensity of previous wmiesien dom his phine or superiors
ART. & The confrontation of witnesses with the culprit shall enly he practised when the Ma gistrate considers it absolutely necessary in onler to find out the truth
Art. 6. Both the confrontation mentioned in the prveling article and the ratitlations are to be made in the process immediately after having examined the witness the culprit being made to appear in order that he may know him, and the witness summonel in the act of ratification, which must take place immediately after the culprit retires.
ART. 7. If the first steps of the proon (information sumaria) take place before the outpuit be apprehended, as soon as he is apprehended and his preparatory declaration shall have been taken, the witnesses which have to be examined must be summoned for the purposes mentioned in the preceding article
ART. 8. No summens shall be sent which has not some relation to the erlme, or which de judged to be useless or of no weight in the business as regards the ellolting of truth
(1). It may be a question whether this and some of the following articles are not modified by Arts. V. and VI. of the amendments to the Constitution of the United States,
ART. 9. When the pleas alleged by the culprit have no relation to the crime, or cannot in any way diminish its enormity, or are unlikely or improbable, they shall be left out altogether without receiving the cause on proof (a’prueba ;) in which case the trial (sumaria) being concluded, the culprit having been previously cited, and the Attorney General in the superior tribunal, it shall be delivered to the attorney or defender of the culprit for him to answer to the charges in the term of three days, which having taken place the definitive sentence shall be given.
Art. 10. When any criminal escapes he shall not be summoned by edicts or by the public crier ; but requisitory letters shall be made out for his apprehension and the necessary steps taken for his recovery : in the mean time the trial shall be postponed, except as to collecting proof of the crime and its circumstances : but it shall be resumed when the apprehension takes place.
Art. 11. In cases where the plenary judgment has to be renewed, the cause shall be received on proof for a short time, to be postponed, according to its circumstances, as far as forty days 4 and only in the case of having to examine witnesses or to receive some other proof at such considerable distances as to make that term not sufficient, it may be postponed for sixty days, without any restitation or other recourse taking place in these terms.
Art. 12. When the criminals interpose an appeal against any interlocutory proceedings, or any other appeal that has to go to the tribunal of second or third instance, the continuation of the cause shall not be suspended ; and, therefore, if the original acts which caused the appeal can not be forwarded, certified copies must be sent.
ART. 13. In all civil and criminal causes the interlocutory sentences must be pronounced within the precise term of three days; and the definitive ones shall be dictated by the superior tribunals within fifteen days after the xrst stage of the suit (vista) be concluded ; and by the judges of first instance within eight days after finishing the causes.
Art. 14. In trials of property, plenary ones of possession, and any other civil trial wherein the amount disputed shall exceed $4,000, appeal may be made to the tribunal of the third instance if the parties wish it, although the second sentence agree with the first.
ART. 15. In the same trials, if the amount in question be less than $4,000, the sentence of the tribunal of second instance will cause execution, if it correspond exactly with the first, that is if the second sentence neither adds nor takes away anything which alters the substance or intrinsic merit of the first instance ; so that neither the condemnation to pay costs, nor any other demonstration of a similar uature, can be called in opposition to said agreement.
EXECUTIVE DEPARTMENT of CaliforBIA,
Monterey, September 11, 1849. GENTLEMEN : I have the honor to acknowledge the receipt of your communication of yesterday, respecting the mode of providing for the payment of the expenses of the convention now in session.
I consider myself authorized by the Executive of the United States to use the "civil funds” now in my hands for defraying the necessary expenses of the civil officers of the exiating government.
The necessary expenses of the convention will be paid by me from this fund, as far as I may have the means at my disposal ; but, as these means may be limited, and as I am held responsible to the government of the United States for the expenditure of the money, I cannot say beforehand whether I shall feel authorized to pay all, or, if not all, what proportion of the expenses incurred by the convention. Very respectfully, your obedient servant,
B. RILEY, Brevet Brig. Gen. U. $. Army, and Governor of California. Messrs. C. T. Botts, E. O. Crosby, T. O. Larkin, Elam Brown, R. M. Price, Committee.
EXECUTIVE DEPARTMENT OF CALIFORNIA,
Monterey, September 13, 1849. SIR: I have the bonor to acknowledge the receipt of your note, (without date,) with a copy of a resolution of the committee, asking if I can place at the disposition of the convention, on or before the first day of October next, the sum of $70,000. I have no authority to place any of the public money now under my control at the disposition of any other person ; but, as stated in my letter of the ilth instant, I shall consider it my duty to pay, so far as my means will allow, all the necessary expenses of the convention. I cannot, however, now say positively whether I shall have money enough at my disposal for the accomplishment of this object. In order that your committee may judge of this contingency for yourselves, I enclose a copy of my letter of August 30 to Lieu. tenant Colonel Hooker. Very respectfully, your obedient servant,
Brevet Brig. Gen. U. $. A., and Governor of California. Hon. C. T. Botte, Chairman, $c.
EXECUTIVE DEPABTMENT OF CALIFORNIA,
Monterey, August 30, 1849. COLOneL: I have the honor to acknowledge the receipt of your letter of the 12th instant, communicating the views of General Smith respecting my acts and duties as governor of California,
I must beg leave to dissent from some of these views, and to offer a few remarks in defence of the course which I have pursued in the administration of civil affairs in this country.
In the instructions issued from Washington to General Kearney in 1846, for his guidance in California, the establishment of port regulations was assigned to the commander of the Pacific squadron, while it was said the appointment of temporary collectors at the several ports appertains to the civil governor of the province.” It was also directed that the duties at the customhouses should be used for the support of the necessary officers of the civil government. This division of duties and this disposition of the proceeds of the customs were continued during the whole war, except that for a part of one year the duties of collectors in some of the ports were performed by army and navy officers, white in others the civil collectors appointed by the governot of California were retained. On the reception of the treaty of peace, Governor Mason, for rea. sons which have been communicated to government, determined to continue the collection of revenues in this country, on the authority which has been given him, until Congress should act in the matter, or orders to the contrary should be received from Washington. He, therefore, as Governor of California, again appointed collectors in the ports where military officers had performed those duties, and collected the customs on all foreign goods as directed in the tariff of 1846—the commodore of the Pacific squadron continuing the direction of all matters relating to port regu
A double necessity impelled the governor to this course : the country was in pressing need of these foreign goods, and Congress had established no port of entry on this coast; the want of a more complete organization of the existing civil government was daily increasing ; and as Congress had made no provision for supporting a territorial government in this country, it was abso lutely necessary to create a fund for that purpose from duties collected on these foreign goods. It is true there was no law of Congress authorizing the collection of those duties, but at the same time the laws forbade the landing of the goods till the duties were paid. Congress had declined to legislate on the subject, and both the President and Secretary of the Treasury acknowledged the want of power of the Treasury Department to collect revenue in California. The Governor of California, therefore, assumed the responsibility of collecting this revenue for the support of the government of this country—a responsibility which he was fully justified in assuming by the necessity of the case, by the instructions which he had received from Washington, (and which had never been countermanded,) and by the existing laws of the country. It is not pretended that the Governor of California could derive any authority, either from the laws of this country or the instructions of the President, to collect revenue here, after Congress assumed the control of it. But in the interim between the signing of the treaty of peace and the extension of the revenue laws over this country, it is a fair presumption that the temporary regulations established here by executive authority respecting foreign commerce continued in force, so far as they conflicted with no provision of the constitution, treaties, or laws of the United States; at any rate, such was the course which Governor Masod determined to pursue, and, as this determination was immediately communicated to Washington, and the receipt of his despatch acknowledged, without one word of dissent being expressed, it is to be presumed that his action in the case met the approval of the government. The executive departments, though well informed of the course which the governor of California was pursuing in reference to the collection and disposition of this money, refrained from any interference, and, in all their orders, letters, and circulars, they most carefully avoided expressing the slightest disapprobation, or even doubt, as to the propriety of that course. Congress was fully aware that Governor Mason was collecting revenue here for the support of the civil government, and yet that body declined passing any laws for appointing collectors on this coast till the very close of the session, and even then no cognizance was taken of the moneys which had been or might be collected previous to the appointment and due instalment of these officers. The reason of this is obvious : as Congress had failed to organize a territorial government here, all were aware that the existing government must continue in force, and that it must have some means of support; such means were found in the neglected revenues of this coast, and employed for that object, and no one felt disposed to interfere or turn these revenues into the general treasury, until a fund was established sufficient for the more immediate and urgent wants of California. On no other supposition can we account for the action of Congress and of the authorities at Washington. It cannot for a moment be supposed that they would direct the continuance of a government here without the means of defraying its expenses; nor that they would tax, through the custom houses, the people of this infant colony, and at the same time deprive them of all the benefits of a government. Such a course might accord with the policy of the despotic powers of the Old World, but it would never be attempted with impunity in our country.
On assuming command in this country as civil governor, I was directed to receive from Governor Mason all his instructions and communications, and to take them for my guidance in the administration of civil affairs. Upon an examination of these instructions, and a full consultation with Governor Mason, I determined to continue the collection of the revenue tilf the general go vernment should assume that power, and to add the proceeds to the “civil fund "--using that fund for the necessary expenses of the civil government. Indeed, I had no other course left for me to pursue. This fund formed my only means of defraying the expenses of the government, which were already great. These expenses are daily increasing, and, as I have no power to impose taxes in this country, I cannot carry on the government without the moneys belonging to this “civil fund." Under existing circumstances, the necessity of employing civil officers, and paying them the full salaries allowed by law, is too obvious to require comment. I have pledged myself to pay these salaries from that fund, unless forbidden to do so by direct orders from Washington ; and I shall redeem my pledge.
This “civil fund” was commenced in the early part of 1847, and has been formed and used in the manner pointed out in the early instructions to the governor of this Territory. The money has been collected and disbursed by the “Governor of California," and by those appointed by him in virtue of his office. He is, therefore, the person responsible for this money, both to the go vernment and the parties from whom it was collected ; and it can be expended only on his orders. Not a cent of this money has been collected under the authority of any department of the army: nor can any such department, or any officer of the army, simply in virtue of his military commission, have any control, direct or indirect, over it. It is true, some of this money has, from time to time, as the wants of the service required; been transferred to the different military departments ; but this transfer was in the form of a loan; and the money so transferred is still dae to the "civil fund," and should be returned. The increased expenditures for the support of the civil government as it is now organized, and the pressing necessity of constructing prisons for the secu