In the September 1987 issue of Chronicles, Jacob Neusner wrote, “To state matters bluntly, if you have to teach in a college in order to pursue the research you wish to undertake, then go, teach.” In his “Acknowledgments,” Professor Langum admitted doing just that: “I wrote this book over many years and at three different schools, Detroit College of Law, Nevada School of Law, Reno, and . . . Cumberland School of Law, Samford University, Birmingham. All three provided wonderful institutional support in many direct and indirect ways.”
The Southwestern humorist-writer J. Frank Dobie once commented that most academic research consists of moving bones from one graveyard to another—meaning that scholars hunt obscurities and then use them to produce academic articles and books which do little more than gather dust in libraries. Langum shows in this work that such does not have to be the case, for this study is a tribute to the relevancy that can be produced through university-subsidized research—and the intellectual excitement that can be generated by poring through dusty archives.
His topic is the law—that body of statutes whereby men try to live together without being at each other’s throats. In particular he studied, as his title indicates, Mexican law in California during the period 1821-1846. This is a subject of such obscurity that the result, in the hands of a less thoughtful man, doubtless would have been of interest only to the most dedicated antiquarian. Instead we have here a volume that deserves wide reading for its insights into some of the failings of our modern legal system.
The law has been variously defined. It may be, as Dickens had one of his characters say, “a ass, a idiot”; or perhaps it is, as Sir Edward Coke called it, the “perfection of reason.” In the past most legal historians viewed the law as the command of the sovereign. Thus its use—or misuse—depended upon the intent of the state and its rulers. The law could be used to the benefit of society, or it could be used to suppress human rights and human dignity; C.S. Lewis once cynically stated it was his belief that such was the case “among Communists and Democrats no less than among Fascists.”
More recently, activists have studied legal history to prove that the law has been a manipulative instrument used by the economic and political establishment to perpetuate its power. And these activists have condemned the law for failing to bring about social, economic, and political change in the direction they feel society should move. Yet they have been among the most active in using the law to bring suit against every level of government and business to effect the changes they want made.
It was with these arguments in mind that Langum produced his study. First he sketches the general history of California prior to the war between the United States and Mexico. This is followed by a three-chapter description of the civil and criminal legal structure of California both as actually practiced and as viewed from the local level. Next he details how Anglo-Americans in California were treated by the law. These sections will be of considerable interest to historians.
The third part of the book deals with the conflicts between Anglo and Hispanic legal traditions which caused foreigners to be hostile to the Mexican system as it was practiced in California. In the final section of the book, Langum reviews the ways in which foreigners, who usually were contemptuous of the legal environment in California, handled their legal affairs in this remote Mexican province which was without lawyers. It is the last two sections which will be of most interest to lawyers.
In each section of the volume, the author cites numerous cases to support his contentions. As one who has worked with documents from the Hispanic period of Southwestern history, I applaud the tenacity of research that was necessary before this volume could be written.
Langum argues that the law in California during the Mexican era was inefficient but not corrupt, that it was neither an instrument of power nor of social change. Rather the civil law and the legal environment in California were designed to conciliate disputing parties—to restore harmony and heal the breach in the community and between the parties involved in any dispute. Where conciliation was impossible, community pressure rather than political force (i.e., a sheriff, writs, etc.) was the instrument which compelled adherence to a judicial resolution.
Determining disputed facts, settling the matter of right and wrong, even compensating victims—all were secondary to achieving a reconciliation that hopefully involved face-saving on all sides. In short, the Mexican civil legal system was designed to prevent litigation. The words of Jose Febrero, a leading Mexican jurist writing in 1851, show this clear intent—and perhaps should be emblazoned above the doors of our present courts:
The evils that lawsuits cause society, diminishing the fortunes of families and promoting private disputes and interminable discussions, are deterred through our laws by the beneficial object of securing their prevention in their origin. Thus it is that it has been prudently prescribed as a required procedure to initiate lawsuits, that an act be performed through which means authority interposes its office and attempts with discreet observations to conciliate the spirit of the litigants, proposing to them some means of agreement and exhorting them to amiably compromise their differences.
Judge Wapner could not have said it better.
In California, criminal justice involved an arrest, an investigation to determine guilt, and then a community consensus to prescribe a punishment that rarely was the same as that meted out to others committing the identical offense. And the alcalde who arrested, investigated, and sentenced was somewhat analogous to a combination sheriff, mayor, and judge.
Americans complained that this procedure deprived them of prompt bail, a trial by jury in which accusers were confronted, and a separation of judicial and executive functions. Moreover, Americans of the years 1821-1846 were too individualistic to appreciate such a system; they called it inefficient and slow—which it was. Yet a close study of all extant criminal dockets in California shows that Americans (and Englishmen) were not singled out for harsher punishments than Mexican defendants.
Thus the conflict in California, in Langum’s words, “was between the traditional values and the languid procedures of a pre-industrial, pastoral people and the atomistic, individualist energies of those in the very throes of the Industrial Revolution.” The Mexican legal system in California between 1821 and 1846 urged alcaldes to make decisions in both criminal and civil cases according to their own judgment of what was right. Almost invariably such decisions reflected community wishes and mores. The intent was to restore harmony, avoid litigation, and reconcile people to living together peacefully. The Californios respected this system, believed in its legitimacy, and obeyed its decrees.
Americans, on the other hand, did not respect this system, thought it lacked legitimacy, and criticized it continuously. Americans wanted certainty and predictability in the law. Their industrial and commercial interests demanded fixed legal rules known in advance to all. Anyone investing large amounts of capital as well as time in rational planning wanted property rights to be recognized, exact, and enforced in an evenhanded way that took no note of individual differences. One of the foremost merchants in northern California was Thomas Oliver Larkin. He lived in Monterey and from 1843 to 1846 served as American consul. Thus he made frequent reports to Washington of conditions in California and was a regular critic of the legal system there. Then came the American conquest, followed quickly by the introduction of the common law, American courts, and endless litigation. In 1856 Larkin would recall of the Mexican era, with its different legal tradition, “Halcyon days they were. We shall not enjoy there [sic] like again.”
[Law and Community on the Mexican California Frontier: Anglo-American Expatriates and the Clash of Legal Traditions, 1821-1846, by David J. Langum; Norman: University of Oklahoma Press; $30.00]