HISTORY of the The EARLY BENCH and BAR of I have undertaken to prepare a sketch of the Bench and Bar of San Jose from the era of the American Alcaldes inclusive down to a time when wellestablished institutions and forms of legal procedure supplanted the ruder and freer methods of pioneer days. The purpose which moves me to this congenial task is the preservation of those traditions, reminiscences, anecdotes and incidents which now rest mainly in the memories of the members, and especially the pioneers, of the profession; and which, as time and fate affect their number, are in danger of being lost. This fund of personal recollection is too rich in humor and in wisdom to go down into forgetfulness. If the product of my leisure can but preserve a modicum of this wealth with somewhat of its original luster, I shall deem the time spent in its collection not entirely thrown away. THE AMERICAN ALCALDES. Old John Burton, Capitan, Viejo, the natives called him, was the first American alcalde of the pueblo of San Jose. He was appointed to the office by Captain Montgomery, military commandant of the northern district of California, on October 19, 1846, about three months after Captain Thomas Fallon had hoisted the Stars and Stripes in front of the Juzgado. The old alcalde was a pioneer of the pioneers. He had deserted from a New England merchantman away back in 1830, and, coming to the pueblo of San Jose, had married a Mexican woman, assumed the title of captain, and lived an easy existence among the natives until disturbed by the American occupation. He was a native of Massachusetts, but he seems to have neglected those opportunities for book learning which that home. of culture afforded. He was a man, however, of considerable common sense, is reputed to have been very honest and to have had the esteem and confidence of the native population. The office of alcalde required these qualities in an eminent degree just at that time when the loose garments of Mexican rule were being replaced with the close-fitting fabric of American institutions. The alcalde's courts of California had, prior to the change in government, possessed a very wide and quite undetermined jurisdiction and been conducted with a freedom from the formalities of jurisprudence which was primitive in the extreme. Alcalde Burton continued to exercise the jurisdiction of his predecessors with much. the same laxity in forms. No fusty lawyers ever profaned the sacred precincts of Alcalde Burton's Juzgado to either hinder or hasten his judgments with pleas or writs sustained by musty precedents. There was a patriarchal simplicity about the administration of justice in Alcalde Burton's court. The old Juzgado stood in the center of what is now known as Market street, at its intersection with El Dorado. It was a low adobe building divided into three compartments-the alcalde's court, the smaller rooms for the clerk of the court, and the calaboose. A picture of this structure is to be found in Hall's "History of San Jose." There old Captain Burton sat and administered justice in his own original way, following somewhat loosely the forms of the Mexican law relating to alcaldes' courts. The method of procedure was as interesting as it was unique. Every grievance which a complainant had against a person for which he had, or hoped to have, a legal remedy, he carried to the alcalde and orally stated his case. Thereupon Alcalde Burton called his aquazil, or constable, and delivering to him his silverheaded cane, as the symbol of his authority, directed him to bring the person against whom the complaint was urged before the alcalde. The cane was an important part of the judicial system. It was the vara de justicia, or "staff of justice," and in the hands of the aquazil it symbolized the State. Bearing the alcalde's silver-headed cane before him, the aquazil sought out the defendant and holding up the staff delivered his oral summons to appear immediately at the Juzgado. The defendant never disobeyed the command of the alcalde, but came at once before him. When he arrived, the complainant was sent for and the parties met in the presence of the alcalde. What was technically called, what in fact was, "an altercation" then ensued between the parties. The alcalde sat and heard their dispute and endeavored to adjust their differences and strike a balance of justice between them upon their own statement of facts. Very frequently he was successful and a sort of compromise judgment was rendered at once. When, however, the parties were too widely apart for compromise the cause proceeded as follows: Each party chose an arbitrator, and these two buenos hombres, as they were termed, sat with the alcalde and heard the evidence in the case. If, then, they and the alcalde could agree upon a judgment, it was rendered accordingly, but if not, the alcalde dismissed the buenos hombres, and decided the case himself. So ran the wheels of justice in Alcalde Burton's Juz gado. The record which old John Burton kept of his cases was a very meagre one, and hence a large mass of interesting court notes have been lost to us with the passage of the years. Some few recorded cases there are, and in the recollection of our pioneers a few more remain to illustrate the unique character of primitive justice here. From among the ancient documents reposing in our city archives the following case has been exhumed and translated for this sketch. Pedro Mesa was accused of stealing Thomas Jones' horse. The record reads: "Territory of California vs. Pedro Mesa-May 1, 1847. The parties having appeared and the case entered into, after weighing the case and taking the testimony, judgment is rendered that defendant shall pay a fine of $5 and $9 for saddling the horse, and costs of court taxed at $4.75; $2 for the guard." Alcalde Burton evidently did not regard horse-stealing as a very serious offense, and does not seem to have visited upon it a sufficient penalty to make the avocation unprofitable. It is curious to note that Alcalde Burton records himself as "weighing the case and taking the testimony." It would appear from all that we can learn that it was the mental habit of the old Captain to weigh the case first and make up his mind about it, and then, as a mere formality, "take the testimony." Another of Alcalde Burton's decisions has survived the tooth of time. Juan Lesaldo and his wife did not agree and yet had hardly reached that point where they agreed to disagree. Juan, therefore, laid before the alcalde a complaint, |