The American conquest of Alta California and the instinct for justice: the "first" jury trial in California.
MONTEREY IN 1846
The trial was held in Monterey on September 4, 1846. Although Monterey was the capital of Alta California, it was a small community whose elite consisted of a handful of Mexican government officials and Hispanic, American, English, Scottish, Irish, and French entrepreneurs. (3) In addition, there was a polyglot population of laborers in the surrounding area. The community functioned reasonably well, but this mix of nationalities, languages, and cultures created some inevitable misunderstandings and frictions.
Mexican law provided relative stability in the fields of real property and family law. (4) But in other areas, the Mexican legal and political systems were the source of much dissatisfaction, particularly among the expatriates. The central authority in Mexico City was too remote to govern effectively. (5) In the twenty-five years since Mexican independence, there had been at least twelve internal revolts against the provincial government in Alta California. (6) Government was routinely unstable.
Justice was administered locally by alcaldes, local magistrates who exercised executive, legislative, and judicial powers. The alcaldes were not trained in the law. Instead, they were respected members of the community who were expected to govern with wisdom, common sense, and an ability to work well with people. Mediation--not litigation--lay at the heart of the judicial system. The alcaldes sought to foster reconciliation and agreement. (7)
There were no juries, in either civil or criminal cases. Civil disputes featured compulsory mediation and an ineffective system for collecting money owed to a successful claimant. (8) This created discontent among the American residents who were used to a more adversarial, less conciliatory system of justice and who believed Mexican law was incapable of protecting their business interests. (9)
Many were expecting an end to Mexican rule. There had been much discussion about which power--the United States, England, or France--would take Alta California from Mexico. (10) So it was no surprise when an American fleet, under the leadership of Commodore John Drake Sloat, seized the town on July 7, 1846 to begin the occupation of Alta California.
The locals were eager to learn how Sloat would administer justice. The commodore had given thought to that. His first act was to issue a conciliatory proclamation: "Henceforward California will be a portion of the United States, and its peaceful inhabitants will enjoy the same rights and privileges as the citizens of any other portion of that territory, with all the rights and privileges they now enjoy, together with the privilege of choosing their own magistrates and other officers for the administration of justice among themselves.... I invite the judges, alcaldes, and other civil officers to retain their offices, and to execute their functions as heretofore, that the public tranquility may not be disturbed; at least, until the government of the territory can be more definitely arranged." (11)
Sloat asked the incumbent alcaldes, Manuel Diaz and Joaquin Escamilla, to remain in office. (12) But they declined to serve. So he directed the purser from the sloop Cyane, Rodman M. Price, and the surgeon from the sloop Levant, Edward Gilchrist, to go ashore and assume their duties. (13)
A week later, on July 15, Commodore Robert F. Stockton sailed into Monterey harbor aboard the frigate Congress. (14) Eight days afterward, Sloat retired, turning command over to Stockton. (15) Stockton took a different view of how California should be governed: he declared martial law. His proclamation "require[d] ... all officers, civil and military ... to remain quiet at their respective homes and stations, and to obey the orders they may receive from me, and by my authority." It also promised, "As soon ... as the officers of the civil law return to their proper duties, under a regularly-organized government, and give security for life, liberty, and property, alike to all, the forces under my command will be withdrawn, and the people left to manage their own affairs in their own way." (16)
These mixed messages made it difficult for the inhabitants of Alta California to know what law governed them. First, Sloat had announced that he wanted Mexican officials to remain in power but to apply American law, at least in part. Then, in a more bellicose statement, Stockton directed Mexican officials to "remain quiet at their ... stations" and follow his orders until civil government was restored. (17) Regardless of what was said about governance, two Americans--Price and Gilchrist--now held the most powerful local positions as alcaldes.
Soon it became clear that Stockton was not going to stay in Monterey to give his orders. Between July 15 and August 1, he prepared to sail south to continue the battle for Alta California. He decided that he could not leave Gilchrist and Price in Monterey, since he needed the surgeon and supply officer for more urgent roles. (18) That left the question: who could Stockton spare? He must have concluded the ship's chaplain was most expendable, for on July 28, he ordered Walter Colton ashore.
It was a strange turn of events for the Congregational Church minister from Vermont. Walter Colton was born on May 9, 1797, one of twelve children. It was said that his father had not missed a Sabbath service in more than forty years. (19) Although Colton was sent to learn cabinetry at the age of seventeen, he enrolled in Yale at nineteen and then attended Andover Theological Seminary, from which he graduated in 1825. (20) After being licensed by the church, he took a position as chaplain and professor of belles lettres at a military academy in Connecticut. (21) Four years later, he moved to Washington, D.C., where he edited a newspaper. He also became friends with President Andrew Jackson, who attended services at which Colton preached. (22)
When Colton resigned from the newspaper, President Jackson offered him a position as chaplain in the U.S. Navy. Colton accepted. One of only nine navy chaplains, he was commissioned on January 14, 1831. (23) He served on various ships as well as on shore in Washington, D.C., Boston, and Philadelphia, until he sailed on the Congress with Commodore Stockton on October 25, 1845, bound for Valparaiso, Callao, Honolulu, and Monterey. (24)
Stockton and Colton developed a relationship during the many months they sailed together. Stockton was a religious man who occasionally gave lay sermons. (25) He preached that "[a]ll the troubles between man and man, and all the troubles that have arisen in the Christian community, arise in the first place from a disregard of [the Bible's] sacred precepts." (26) So who better to maintain order in a land with unsettled law than the ship's chaplain?
Colton took up his duties as alcalde on July 30, 1846. He noted immediately that his jurisdiction included "the reckless Californian, the half-wild Indian, the roving trapper of the West, the lawless Mexican, the licentious Spaniard, the scolding Englishman, the absconding Frenchman, the luckless Irishman, the plodding German, the adventurous Russian, and the discontented Mormon." And, he lamented, "[t]hrough this discordant mass I am to maintain order, punish crime and redress injuries." (27) Two days later, his former ship, the Congress, sailed out of Monterey harbor to war. Only the Savannah--one of the ships of the Pacific Squadron that had captured Monterey--stayed in port to secure the newly seized city.
Colton seems to have made a good first impression on the local Americans. A July 30, 1846 letter from James Henry Gleason to his uncle, Captain John Paty, records: "Our new 'Alcalde', in the person of Rev. Walter Colton enters on the duties of his office today. It is a wise appointment, he is a Christian gentleman, capable, just, kind hearted, but firm in his convictions of right." (28)
The new alcalde may have brought good judgment and interpersonal skills to the job, but he also brought significant impediments. He was a Protestant minister in a Catholic land, spoke no Spanish, was ignorant of the customs of the community, and knew none of its inhabitants. He found lodging in the home of Thomas O. Larkin, the American consul who could, undoubtedly, have been a great help. (29) But Stockton asked Larkin to help him negotiate with the Mexican leaders who had retreated toward Los Angeles. By August 1, 1846, Larkin sailed south with Stockton and did not return to Monterey until September 15, 1846. (30) Thus, Colton had the benefit of no more than two days of advice from Monterey's most prominent and informed American.
Colton did, however, find a local guide. He inherited from Price and Gilchrist a secretary named William Garner, whose services proved invaluable to the novice officeholder. (31) Garner was born in 1803 and educated in London. In 1824, he shipped out on a whaler, arriving in San Francisco Bay in the fall of 1824. When the ship set out again, he had a serious dispute with the captain, who in November 1824 set Garner and four others ashore in Santa Barbara. They were marooned in a foreign land. (32) A resourceful young man, Garner learned Spanish, converted to Catholicism, married, and established a lumber business in the Carmel Valley. He was sometimes active in Mexican politics and military affairs and knew many of the provincial leaders. In 1839, he was granted Mexican citizenship and in 1843 built a home in Monterey. On January 27, 1846, the Mexican alcalde of Monterey appointed Garner as the town's head constable. (33) When the Americans seized the town, Garner was one of the only incumbent officeholders to switch sides.
Colton recognized Garner's value, just as Price and Gilchrist had. As Garner's biographer wrote, "[Colton] and Garner seem to have taken an instant liking to each other. William Garner became not only his efficient clerk and skillful translator but his guide and mentor--showing him the country ... explaining the manner of thinking and living with the Californians." (34)
Colton set about learning his job. There is an intriguing document in the Mexican archives in Salinas, which any new judge would recognize instantly. It is a "cheat sheet" for a new bench officer. It includes a form of oath to be administered to a witness, a draft form of warrant, and a draft form of an affidavit. Clearly, Colton was assembling the tools of his new trade. (35)
Colton occupied an office and kept it open from 9:00 a.m. to 4:00 p.m. (36) Horse theft was, in the nineteenth century, as common as auto theft is today. By the end of his first month in office, Colton had sentenced a total of eight Indians, three "Californians," and one Englishman for stealing horses or bullocks. (37) He gave none a jury trial. (38)
As alcalde, Colton also had legislative and executive powers. On August 13, 1846, he ordered that "no one is to sell or dispose of any intoxicating liquors whatever, and all persons that have formerly vended liquor, and all store and shop keepers and keepers of public houses are prohibited from keeping any liquors, or wines of any kind or description in their shops or stores, so doing ... will be looked upon with the greatest severity, and punished by forfeiture of their liquors, fine and imprisonment at the discretion of the Magistrate." (39) This seems unlikely to have made him popular in some quarters.
Colton also returned to the newspaper business. Just two weeks after coming ashore, he and another American, Robert Semple, began publishing The Californian, the first newspaper printed in California. Parts were printed in English, parts in Spanish. Garner did at least some of the translations.
COLTON'S POLITICAL PROBLEM
Meanwhile, challenges were brewing for Colton on two fronts. One was political. On August 13, 1846, Stockton captured Los Angeles and believed the Mexican army to be routed. On August 17, he issued a new proclamation that continued martial law and anticipated California's organization as a territory of the United States. But until then, he said, "the people will be permitted, and are now requested to meet in their several towns and departments ... to elect civil officers." (40) On August 22, he ordered that elections for the position of alcalde take place on September 15, conducted by the incumbent alcalde. (41) Colton published both proclamations in The Californian in English and Spanish.
Colton had been in office only three weeks. Here was his chance to return to his assignment as a navy chaplain. Although he could not immediately rejoin the Congress, which was somewhere in southern California prosecuting the war with Mexico, he could have gone back to his duties as chaplain aboard the Savannah, which had remained in port. Indeed, he had conducted Sunday services aboard that ship. But he seems to have taken a liking to public office, for he decided to stand for election.
Stockton may have secretly directed his appointed alcaldes to try to retain office. (42) His San Francisco alcalde, Washington Bartlett, sought election on September 15. (43) But running for alcalde seemed to present political difficulties of the first order. Indeed, Bartlett's clerk, Joseph T. Downey, frankly admitted that "if the People had their own way, our Naval Judge would lose his office and well he knew it." (44) Downey described how the election was rigged to ensure Bartlett's victory. (45)
In Monterey, an established elite of Americans, British, and Californios (and others of Spanish or Mexican descent) held office and ran successful businesses. They were a coherent social group that had led the community--politically, socially, and commercially--for many years. Most had looked forward to the American takeover and the freedom and stability it would bring. Colton was an outsider, at best a recent arrival to their circle. If the Americans were sincere about the principle of self-rule, it seemed unlikely that a newly arrived military man would be elected.
COLTON'S OTHER PROBLEM: ISAAC GRAHAM
While Colton was sorting through the problem of how to get elected, his second challenge was brewing. He was about to deal with a dispute spawned by one of the nastiest Americans in Alta California: Isaac Graham.
Although Graham has had a few defenders, most have described him as an illiterate, combative, obstreperous figure. In 1846, his erstwhile friend Joseph L. Majors signed a petition alleging that Graham "is perpetually corrupting the peace of our vicinity and for the last six years has not ceased to invite or attempt revolutions, challenges for duels, assassinations, and disobedience of the laws even to the extent of arming himself when summoned." (46) Earlier, Majors had written to the Mexican authorities, renouncing Graham as "a seditious malefactor who is constantly disturbing the peace and precipitating others in trouble and difficulties which have no goal." (47)
In divorce proceedings, Graham's second (bigamous) wife accused him of domestic violence: "I was so tired of being beat ... and [found] it impossible to please the old tyrant." (48) His mother-in-law advised her daughter to put "poison spiders" in the dumplings she fed him. (49) Perhaps the most succinct summary of Graham's reprobate life was a comment by a contemporary: upon hearing of Graham's death, Captain Thomas Fallon noted dryly, "his mourning period would be brief." (50)
Graham was born in the western reaches of Virginia in 1800 in Fincastle, a small town nestled in the Roanoke Valley between the Appalachian Mountains and the Blue Ridge. When he was three, his family moved farther west to Crab Orchard, Kentucky, a small town whose population even today is fewer than a thousand. (51) When he was eighteen, he left home. In 1823, he married a Miss Jones, with whom he had four children. But by May 1830, he headed west with Henry Naile and several others, including, perhaps, William Ware and Joseph L. Majors. (52)
The men spent several months trapping, hunting, and surviving dangerous encounters with the Arapahoe and Pawnee tribes. (53) (Two members of their party were killed.) By the end of 1830, they arrived in Taos, New Mexico. It is probable that Graham continued trapping in the West before heading to California sometime between 1833 and 1835. (54) There is evidence of him in Salinas in 1833, (55) and he is recorded in the Los Angeles census of 1836 as a thirty-four-year-old tramp or transient. (56) However, most historians believe that Graham was living in the vicinity of Monterey by 1836. Indeed, in November of that year he helped Juan Bautista Alvarado overthrow the government of Nicolas Gutierrez. (57)
Graham was a member of a small but growing community of Americans settling California. Initially, he lived near Salinas in an area called Natividad. There he ran a distillery with his old trapping partner, Henry Naile. Their tule hut became known as a gathering place for disreputable trappers, runaway sailors, and other "ruffians." (58) In 1840, Governor Alvarado ordered the arrest of Graham and many others for plotting against the Mexican government. They were sent to Mexico to stand trial but were acquitted and returned to Monterey the following year. (59)
Graham reestablished himself in the redwoods north of Santa Cruz. Since foreigners could not own land in Alta California, he and Naile worked through their friend Majors (who had obtained Mexican citizenship) to get title to Rancho Zayante. (60) Graham either built or bought the first water-powered sawmill in California and began producing boards. (61) By 1846, lumber had become a major industry. Nearly one million feet of boards, shingles, and spars were exported that year. (62) Ships picked up wood from the beach at Santa Cruz and sold it along the California coast and in the Sandwich Islands. (63) It was this trade that gave rise to the dispute facing Colton.
Graham had been nursing a claim against Charles Roussillon, one of his competitors in the lumber business. A Frenchman who had come to California from Bordeaux, possibly as early as 1833, Roussillon had set up a water-powered sawmill not far from Graham's. (64)
The French community in Alta California was small. Jean-Louis Vignes, another native of the Bordeaux region, had settled in Los Angeles in the early 1830s and established a rancho and vineyard on about 104 acres. He actively recruited other skilled Frenchmen to join him. (65) His nephew Pierre Sansevain arrived around 1839. (66) Roussillon and Sansevain probably met at Vignes's rancho. They became close friends and started a number of businesses together. (67)
Sansevain obtained a grant of land, the Canada del Rincon rancho in the Santa Cruz Mountains. It adjoined the southern border of Graham's property at Zayante. (68) There, he and Roussillon built a sawmill sometime between 1842 and 1844. (69)
Graham built a steep road--still in existence as Graham Hill Road--on which to haul lumber from the Zayante hills to the Santa Cruz beach. (70) Roussillon likely used that road, too. Both men piled their lumber on the beach and sold it to visiting ships. Their piles were about twenty yards from one another.
These competing piles of lumber created the conflict that led to the case now confronting Colton. Graham contended that Roussillon sold lumber to two trading vessels but directed the buyers to take the wood from Graham's pile rather than his own. In short, Graham charged that Roussillon sold Graham's inventory and pocketed the cash.
Graham said that Roussillon's deceptions occurred once in 1845 and once in 1846. It is possible that he did not seek satisfaction in court the first time because he distrusted Mexican justice. But that explanation is not wholly satisfactory, for Graham brought two disputes involving other parties to the Mexican alcalde in 1846. One was settled by arbitration in April and one by mediation in May. (71)
Whatever the reason, Graham waited until August 30, 1846 to lay his dispute with Roussillon formally before Colton. (72) The alcalde was then likely making preparations for the imminent election. (73) However, Graham and Roussillon had been assembling affidavits since at least August 9, and Colton was well aware that the matter was brewing. As he wrote, "[i]ts merits had been pretty widely discussed, and had called forth unusual interest." (74) Indeed, as early as August 20 Colton had written to the alcalde of Santa Cruz, asking him to order five people to appear in Monterey to testify. (75)
Graham instituted his suit with a "complaint of theft." (76) It charged Roussillon with selling about 10,000 feet of Graham's lumber to the ship Fama in July 1845 and with taking another 5,000 feet of boards, 50 joists, and 52 rafters and selling them to the Euphemia in July 1846. Although the complaint uses the criminal term theft, the case was treated as a civil matter, in which Graham asserted that Roussillon converted Graham's property to his own use.
Graham v. Roussillon caused quite a stir within the community. As Colton put it, "the plaintiff and defendant are among the principal citizens of the country. The case ... involv[es] property on one side, and integrity of character on the other." (77) How he handled the dispute could have a significant impact on the September 15 election. (78)
COLTON PICKS A JURY
Colton set the trial for Friday, September 4. Then, in a masterstroke, he decided that a twelve-man jury would try the case--unlike every other case he had heard. It was a brilliant maneuver. Colton would not have to render a decision by himself and suffer, alone, the political consequences of its outcome.
But that was not the extent of his creativity. Colton put four of his rival candidates for alcalde--William Hartnell, Juan Malarin, Manuel Diaz, and Milton Little (79)--on the jury, thereby tying most of his competitors to the controversial case and ensuring they would share any resulting credit or blame.
Although Colton's diary describes the jury as having equal numbers of Americans, Californios, and Mexicans, it is not accurate. He placed five Americans on the jury: Charles Chase and George Minor, respectively the fleet surgeon and a lieutenant off the Savannah; (80) Talbot H. Green, a native of Pennsylvania and resident of Monterey since 1842; (81) Milton Little, a New Yorker who had arrived in 1844; (82) and Robert Thomes, who had migrated from Maine to California in 1841. (83)
It is difficult to understand how Colton distinguished between Mexicans and Californios. (84) Juan Malarin, who came from Peru, had been in California since 1820; William Hartnell, who was born in England, since 1822. (85) Colton regarded them as Californios, perhaps because they had lived in Alta California for more than twenty years.
The remaining five jurors were from Mexico, and all had arrived more recently. Jose Abrego and Florencio Serrano had come to San Diego with the Hijar-Padres party in 1834. Abrego made his way to Monterey and worked as a hatter and trader. He owned considerable land and held a variety of offices under the Mexican government, including treasurer of territorial finances. (86) (He was wealthy enough to own one of the first pianos in California. (87)) Serrano also was prominent in the community, serving as a teacher, judge, and, in 1844, one of two alcaldes. (88) Manuel Diaz, who had lived in Alta California since 1843, was alcalde at the time the United States seized Monterey. (89) Pedro Narvaez served in the Mexican navy and had been the captain of the port of Monterey since 1839. (90) Rafael Sanchez was a Mexican sublieutenant who arrived in Monterey about 1842. He had extensive landholdings and was in charge of the Custom House in 1845. (91)
THE JURY AS A POLITICAL SYMBOL
Colton's decision to appoint a jury served his immediate political needs. But in a larger sense, it was an important signal to the Americans and British in Alta California: trial by jury was emblematic of the liberty they hoped the American conquest would bring. A jury trial plucked deep chords in their memories of home and their understanding of how a "proper" government should function.
It is hard to overstate the significance of juries to the mid-nineteenth-century Anglo American mind. As the legal scholar Stephan Landsman has observed, "[T]he ... rise of the jury in both England and America [is] ... intertwined with the creation and defense of fundamental rights." (92) In England, the jury was said to be "the rand bulwark of [an Englishman's] liberties." (93) In each of the American colonies, local law jealously protected the right to trial by jury. (94) Indeed, the Declaration of Independence cited King George III for depriving colonists of that right.
While Colton was growing up, the "use and democratization of juries was expanding." (95) By 1830, Justice Joseph Story, writing for the United States Supreme Court, observed, "trial by jury is justly dear to the American people. It has always been an object of deep interest and solicitude, and every encroachment upon it has been watched with great jealousy." (96)
Alexis de Tocqueville understood the American jury to be a political institution that "places the real direction of society in the hands of the governed, or a portion of the governed, instead of leaving it under the authority of the Government." (97) But more than that, "the jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching it to rule well." (98)
The depth of the American commitment to law and the jury is evident in the way in which it was utilized by the overland pioneers. (99) West of Saint Joseph, Missouri, there were no institutions of government to regulate the emigrants. Yet when homicides occurred, the travelers convened juries to try the matters, even if it meant delaying their trips--which could be dangerous, since they were racing to cross the Sierra Nevada before snow made the mountains virtually impassable. (100)
By the mid-nineteenth century, the functions of the jury were not much in dispute. Trial procedures had acquired a significant degree of uniformity in the American states. If a litigant wished to have a jury trial, a sizeable panel of potential jurors was summoned to court. From that panel, men were chosen by lot--in open court--and called into the jury box. There they were screened in a voir dire ("to see, to speak") process of questioning prospective jurors to be sure they had little or no information about the dispute, no relevant biases, and no preconceptions about how the case should be decided. Once a jury of (usually twelve) men was impaneled, its members sat in silence as evidence of an alleged crime or civil wrong was presented to them. At the end of the trial, the judge instructed them on the law and told them what factual issues they were to decide. The jury then retired to deliberate in secret and render a decision. Jurors were neither required nor expected to give a reason for their verdict. (101)
Colton's jury served some of these functions. Most notably, it heard evidence, determined the facts in dispute, and agreed upon a verdict. However, Colton's recollection of the legal process was incomplete, and his jury was unusual in several ways.
First, Colton seems not to have asked the parties if they wanted a jury. He had previously conducted criminal trials without the benefit of a jury. Now, for the first time, it appears, he decided to assemble one, without a jury demand from either party or an opportunity for the litigants to waive the jury.
Second, the selection of jurors was not random. In seventeenth- and eighteenth-century common-law England, the sheriff selected people and brought them to court to serve as jurors. (102) As this led to charges of bias or corruption, American jurisdictions generally prepared lists of potential jurors from which a jury would be selected by lot in open court. This helped to ensure that they were not pre-selected to guarantee a certain result at trial. Colton ignored these protocols. He neither compiled a list of potential jurors nor chose the actual jury panel by lot in open court, handpicking them instead.
Third, Colton assembled a jury akin to that which ancient law called a jury de medietate linguae (jury of the half-tongue). Until Victorian times, English statutes permitted a foreigner who was party to litigation to request a special jury composed of six foreigners and six English citizens. Although use of this special jury was all but abandoned in the United States, Colton's instinct for justice caused him to mirror this antiquated practice. (Both the American and Frenchman were considered "foreigners" in Monterey's Mexican community.) (103)
Fourth, Colton's blue-ribbon jury of the community's political, business, and military elite was definitely not a jury of the litigants' peers. They looked down on Graham and his roughneck, illbred, illiterate existence. (104)
Finally, the parties had no opportunity to challenge individual jurors. This right to challenge a potential juror is deeply ingrained in both common law and America's early statutory law. (105) That jurors must be disinterested is a bedrock principle of American jurisprudence, ensuring that there are no pre-existing relationships or biases that might prevent a fair trial. (106)
In Graham v. Roussillon, the absence of challenges was not an academic point, for the jurors were hardly strangers to the controversies that Graham had aroused in the community. Indeed, except for Chase and Minor (the two jurors from the Savannah), the jurors knew one another quite well, and some of the witnesses, too, (107) further compromising their impartiality.
Since Monterey consisted of fewer than one hundred homes, (108) it was inevitable that many jurors were neighbors. Juan Malarin, Milton Little, and Pedro Narvaez owned city lots within a block or two of one another. (109) William Hartnell had a house in town and a ranch in Alisal (now Salinas). (110) Manuel Diaz also lived in town; (111) his sister was married to alcalde candidate David Spence, who owned property on the same block as Malarin. (112)
Other jurors were related. Pedro Narvaez and Jose Abrego married sisters; so, too, did Juan Malarin and Manuel Diaz. The four women all came from the Estrada family and were first cousins. Malarin's daughter married an Estrada brother. (113)
Other jurors were joined by historical events. As members of the Hijar-Padres party of immigrants, Abrego and Florencio Serrano had known each other at least since 1834. Robert Thomes and Talbot Green came to California with the Bidwell-Bartleson party in 1841. (114) Abrego and Narvaez had negotiated the Mexican government's surrender when Commodore Thomas ap Catesby Jones had mistakenly seized Monterey in 1842. (115) Abrego and Hartnell had attended a meeting at Thomas Larkin's house to discuss the political situation in the spring of 1846. (116) A few days later, Abrego was called upon by Mexican General Jose Antonio Castro for advice and, along with Narvaez and Rafael Sanchez, signed a declaration expressing their support for Castro in the latest internecine dispute in Alta California. (117) Hartnell and Narvaez met Sloat the day he sailed into Monterey harbor. (118)
Serrano was a local teacher whose students included the sons of Malarin and Narvaez and the court clerk, William Garner. (119) A couple of years earlier, Malarin had enrolled his son in Hartnell's school. (120) Indeed, Hartnell and Malarin had been acquainted since the 1820s. (121)
There were commercial links, too. Hartnell helped Colton establish The Californian by finding the printing press, identifying potential subscribers, and serving as an editor of the Spanish language section. (122) Lieutenant George Minor provided office space for the paper in an American barracks. (123) Both Hartnell and Green bought advertisements in Colton's newspaper. (124) When Serrano sold a town lot to Larkin on July 3, 1846, Hartnell translated the document into English. (125)
In short, this was a jury composed primarily of men who had extensive relationships reaching back twenty years or more. Seven had been high-ranking officials in the Mexican government, three were prominent American businessmen, and many were partisans in the disputes that roiled the Mexican government. Graham, too, was active in a number of those battles for power. Some of the jurors were on the same side as Graham; some on the opposite side. This jury was not a blank slate.
One other element was missing from the jury trial: lawyers. Colton observed, "through ... the absence of young lawyers, we got along very well." (126) That was not a stray comment. (127) A year later, in 1847, when attorneys had appeared in Monterey, he was pleased to implement the Mexican law that prohibited lawyers from making closing arguments. He thought that would only slow the wheels of justice: if "the floodgates of eloquence" were lifted, he explained, "I should never get through with the business pressing on my hands." (128) Consequently, in Graham v. Roussillon the two litigants represented themselves.
There are notes of the testimony. Although others have attributed them to Colton, they were actually written by the clerk, Garner. (129) According to Colton, the trial lasted a few hours, yet Garner's notes are only five and a half pages. Since Hartnell had to translate all the testimony, the case would have proceeded slowly. (130) But even if the trial were slow paced, it seems likely that some testimony escaped Garner's quill.
As plaintiff, Graham presented his case first. Remarkably, he did not testify. Instead, he called six witnesses. One testified about the 1845 incident and three about the 1846 incident. The other two gave rather confusing testimony; Garner did not record which incident they were discussing. When the men had finished, it was clear that Graham had failed to prove his case.
The only witness to address Graham's complaint that Roussillon had sold about 10,000 feet of Graham's lumber to the Fama in 1845 (131) was Graham's old crony, William Ware, (132) and most of his testimony consisted of hearsay. He related what Graham, G. H. Nye (captain of the Fama), and E. H. Dunn (first officer) had said while standing on the beach the previous year: Graham said that some of his lumber was missing and Dunn said that it was put on the Fama. Dunn said he bought the lumber from Roussillon, but when asked to identify the pile from which it came, he pointed to where Graham said he had stockpiled his boards. Since Ware did not testify to any quantities, the jury had no idea whether 10,000 feet was taken, as Graham maintained, or some other amount.
Graham committed the amateur's mistake of asking his witness a question without knowing what answer would be given. Garner's notes record that when Ware was "asked if he knew that said lumber belonged to Graham or not, he answered he did not know," (133) a response that could not have helped Graham's cause.
With respect to the 1846 incident--regarding Graham's 5,000 feet of lumber--Graham called William Swasey to the stand. Although Swasey had been in California less than a year and in Monterey only six months, (134) he was Larkin's clerk, which probably gave him presumptive credibility. But he, too, offered largely hearsay evidence. He was on the Santa Cruz beach with Graham and Dunn in July 1846 and heard Graham complain that his lumber had been taken and must have been delivered to the Euphemia. Swasey testified that Dunn said he bought the wood from Roussillon, who twice told him which pile of lumber to use. (He later sent a man to point out the pile again.) Swasey testified that he knew "for certain" that the lumber belonged to Graham; however, he did not say how he knew that. (A lawyer would have objected that the testimony lacked foundation.) Garner recorded Swasey's final dig before he left the stand: "Witness thinks the owner might easily be able to distinguish his own pile of lumber from another person's." However, again, Graham's witness failed to establish how much lumber was taken and certainly did not offer evidence to support Graham's complaint.
Although Graham had listed Dunn as a potential witness, he did not call him. Instead, Colton allowed other witnesses to give hearsay testimony about what they heard Dunn say. This seems a bit unfair, considering that Dunn had executed an affidavit on August 4, 1846, in which he swore that he had said nothing to Graham to give him "any idea or authority" to take action against Roussillon with regard to lumber dispatched to the Euphemia. (Dunn's affidavit is silent with regard to the 1845 incident involving the Fama.) (135)
The other two witnesses to the 1846 incident, William Davis and Francisco Alviso, gave almost diametrically opposite testimony, although both agreed that about 8,000 feet of lumber were loaded onto the Euphemia, 3,000 more than Graham claimed. Davis, part owner of the Euphemia, testified that he originally obtained 1,900 feet from Roussillon and then asked him to bring an additional 6,000, while Alviso said that he had brought 6,000 feet to the ship, after which 2,000 more were requested.
Alviso seems to have been something of an evasive witness, but he was not skilled at dissembling. (136) First he said that Roussillon told him to deliver the extra 2,000 feet of lumber. Then he contradicted himself, declaring that he did not know who ordered him to do that. Finally, he swore that Roussillon did not tell him from which pile to take the lumber and did not give him any orders.
But Graham impeached Alviso with a written statement the witness had signed on August 12, when he was summoned before the alcalde in Santa Cruz. There, Alviso acknowledged that Roussillon had ordered him to take the lumber to the beach. Somewhere in this tangled web, Alviso asserted that he did "not know whether the lumber belonged to Graham or no." The jury was not persuaded by his testimony.
Graham called two other witnesses who may have been in business together selling lumber: George Chapell (137) and Alexander Bernal. Garner's notes do not specify which of the two incidents they discussed. Each gave a confusing account of the quantity of lumber they delivered and sold.
Chapell muddled matters further by testifying that while working at Graham's mill, Graham told him "to use the lumber on the beach if he wished to do so." Chapell said he delivered 1,200 feet of Graham's lumber to Roussillon. Bernal confirmed that he and Chapell had sold Graham's lumber.
Just before Graham closed his case, he must have realized that none of his witnesses had mentioned the joists or rafters. He recalled Ware, who testified that he saw a rafter with Graham's mill mark on it near Roussillon's house two days earlier. Graham also re-called Bernal, who said that Graham had brought him to a place near Roussillon's house where he saw some joists with Graham's mark on them.
In short, Graham rested his case without establishing any particular quantity of lumber, joists, or rafters that might have been converted by Roussillon. It appears that Graham's case was more bluster than substance, much like the man.
Roussillon's evidence painted a different picture. His first witness, Francois Poile, (138) testified that Roussillon had sold some lumber to the clerk of an unnamed vessel. When Roussillon directed Poile to show the clerk which lumber to take, Poile pointed to 1,200 feet lying on the beach. Those boards, he acknowledged, originated at Graham's mill, but Chapell had delivered them to Poile, who, in turn, had delivered them to Roussillon.
Graham wanted to question Poile, but the concept of cross-examination appears to have eluded Colton. According to Garner's records, "Poile [was] re-called by Graham." When questioned by Graham, Poile stuck by his story.
Next, Roussillon called Robert King, (139) whose testimony focused not on Graham but on Henry Naile, Graham's partner in Graham and Naile, the partnership that ran the sawmill (140) (Naile had been killed in April 1846). King testified that Naile was present in 1845, when Roussillon was delivering lumber to the Fama. There ensued a discussion about whether the lumber belonged to Roussillon or to Graham and Naile's establishment. The men examined the mill marks and decided it came from Graham and Naile. Roussillon and Naile settled the dispute. Sometime afterward, King heard Graham and Naile arguing about the matter. King testified that he had said to Naile, "I thought you settled this long ago," to which Naile had replied, "I did but Graham has heated my brain so much that I hardly know what I am about."
To bolster King's testimony, Roussillon called Jose Bolcoff, a well-respected Russian immigrant who was alcalde of Santa Cruz in 1845. Bolcoff testified that Roussillon had described to him the dispute with Naile, after which he told the Frenchman that "he had better settle it because it was bad to have to go to law about the things." Bolcoff added that within a few days, both Roussillon and Naile told him they had settled the matter.
Finally, Roussillon himself testified very briefly that "the mistake consisted [of] 3,243 feet [and] that it was shipped by Nail[e]'s consent." Presumably, he was referring to the events of 1846, as his position was that the 1845 dispute was long since settled. He added that Naile also mistakenly had taken 1,000 feet of rafters from Roussillon.
It is clear that the jurors believed Roussillon, for their verdict tracked his testimony exactly. They found that (1) the amount taken was 3,243 feet, for which Roussillon owed Graham $97.29, (2) Naile had taken 1,000 feet of rafters from Roussillon, warranting an offset, thereby reducing the judgment to $67.29, and (3) Graham should pay the court costs "as [Roussillon] once offered to settle it amicably." (141)
That was enough to decide Graham's suit, which simply sought an order that Roussillon pay him money. But because the real stakes in the case also involved Roussillon's reputation, Colton also asked the jury to determine intent. The jury found that the lumber "was taken but through mistake which was settled by [Roussillon] at once." (142)
Although it was not part of the evidence at trial, Colton also found that there was an open account between Roussillon and Graham and Naile; the latter owed the former $30. So he reduced the judgment to $37.29. (143) Although Colton wrote that "neither party completely triumphed in the issue," (144) it is clear that the verdict was a complete vindication for Roussillon.
When Graham was presented with a bill for court costs of $40, he left town owing $2.71. He did not pay it for nearly a year. (145) Nonetheless, Graham gave Colton an immediate public relations present. Before leaving Monterey, he signed a note: "I am satisfied from the investigation before the court of Monterey in the case pending between me and Don Carlos Roussillon, and from the verdict of the Jury in the same, that any remarks which may have been made by me, impeaching the moral honesty of said Roussillon, were without just foundation." (146) (According to one historian, "this statement was undoubtedly drawn by Judge Colton." (147)) Colton printed the note in full in his newspaper the following week, together with a short account of the trial and verdict. The story ended, "To this enlightened and impartial verdict both parties bowed without a dessenting [sic] word." (148)
Colton had accomplished what few before him had been able to do. He had tamed Graham. He had safely navigated the shoals of a high-profile trial and had a well-earned, pre-election coup to show for it.
The election for alcalde was held three days following publication of the account of the trial in The Californian. Three hundred thirty-eight votes were cast. Colton received only sixty-eight, about 20 percent. But with the remaining votes divided among six candidates, his votes were enough to win by three. David Spence, who had not served on the jury, received sixty-five votes. The candidates who had served on the jury split a combined total of 165 votes. (149)
In his diary, Colton recorded his love of juries: "If there is anything on earth besides religion for which I would die, it is the right of trial by jury." He was not alone. Others bringing American justice to the occupied frontier were determined to bring juries with them. On September 22, 1846, soon after he conquered New Mexico, General Stephen Kearney published a comprehensive Organic Law of the Territory of New Mexico. (150) It included a bill of rights, the fifth clause of which read, "That the right of trial by jury shall remain inviolate." (151) The accompanying Laws for the Government of the Territory of New Mexico preserved the office of alcalde, but stipulated that "either party to any cause pending before an alcalde may ... demand that the same be tried by a jury." (152)
Nevertheless, Colton would preside over many trials before he convened another jury. There is no hard evidence that he conducted another jury trial until October 6, 1847, when two Indians were charged with murder, a capital offense. (153) Colton appears not to have used the one "thing on earth besides religion for which I would die ... trial by jury" as he continued to try "the reckless Californian, the half-wild Indian," and others.
Colton's failure to use juries reflects the region's uncertain legal environment. The Mexican War was still being fought and California was only a conquered province. The United States Congress neither made California a territory nor passed laws to govern it. Under international law, this meant that existing Mexican law and institutions were to be retained until lawfully changed. (154) This principle informed Stockton's August 17, 1846 proclamation that "until the ... various civil departments of the government are arranged ... the people will ... elect civil officers and ... administer the laws according to the former usages of the territory." (155) Mexican law did not provide for trial by jury. Arguably, Colton violated the law when he convened a jury in Graham v. Roussillon.
Although the Americans in Alta California were eager to enjoy the protection of American law, both the military governors and the Polk administration tried, more or less, not to usurp Congress's authority to prescribe laws for California. But Congress refused to make laws to govern the newly conquered land. (156)
The residents of Alta California chafed at the congressional inaction; there was considerable public dissatisfaction with the confused state of the law. But the instinct to use juries was strong. (157) Over time, the American alcaldes began using them in serious cases. By 1847, there were scattered references to juries in official reports from the military commanders. (158) On December 29, 1847--almost sixteen months after Graham v. Roussillon--Colonel Richard B. Mason, the military governor of California, issued an order requiring alcaldes to hold jury trials in cases "when the amount involved shall exceed one hundred dollars." He specified that the jury was to consist of six men. (159)
But during that sixteen-month period, only rough wartime justice prevailed. As late as June 1847, Larkin described the uncertain state of affairs: "We must live on in lawless blessedness. We have, however, a fair supply of lawyers, and each can produce the laws of his native state and urge on the alcalde their adoption as most applicable to the case at hand." (160)
Untrained in the law and presiding in a confused legal environment, Colton did his best to summon a "shadowy remembrance" of the common law of the eastern states in which he had lived. (161) He studied the military orders he received. He took guidance from his new constituents, biblical tradition, and the occasional lawyer. He concocted a unique mixture of martial law, common law, Mexican law, and California customs, leavened by his theological training and personal sense of right and wrong. (162) He produced as much justice as could be created in an uncertain time. By all accounts, he did a remarkable job, if not one to be cited as legal precedent. (163)
TWO OTHER "FIRST" JURY TRIALS
Colton's assertion that Graham v. Roussillon was the first jury trial in California is not true. There is evidence of at least two others. The first was recorded by Richard Henry Dana in Two Years Before the Mast. In 1835 or 1836, an American living in Pueblo de Los Angeles was murdered. When the government of Alta California refused to address the crime, a group of American trappers and hunters, along with some resident Englishmen, arrested the culprit and formed an impromptu court. "They proceeded to try the man according to the forms in their own country. A judge and jury were appointed, and he was tried, convicted and sentenced to be shot." (164) Colton had read Dana's account (165) but presumably had forgotten this vignette when he called Graham v. Roussillon the first jury trial in California.
The other jury trial was held during the Bear Flag Revolt, a fortnight before Sloat sailed into Monterey Bay. The account is recorded in a letter Vice Consul William Leidesdorff wrote to Larkin on June 19, 1846. After the Bear Flaggers seized Sonoma, a young man was trying to lasso a horse owned by General Mariano Guadalupe Vallejo. When the horse kicked him, the callow lad shot the animal. He was arrested and "a jury summoned and the Culprit put on his trial for the offence. He acknowledged the act, and the Jury assessed the horse to be worth $30 and that he must pay that amount to Genl. Vallejo, the owner." (166)
As these examples show, American expatriates living in California during this era did not leave behind American notions of justice. Those deep-seated values drove their instinctive response to the need for ordered justice in a far-off territory.
Nonetheless, Colton's trial was the most public early display of the American ideal of justice. Even at a time when no one was entirely sure what law governed the conquered territory, Graham v. Roussillon pointed the way to the future. It gave Americans in Alta California hope that liberty, as they knew it, would become the organizing principle of their adopted home. It showed that real change was coming, even when statehood--and a constitutional right to trial by jury--was still four years in the future.
Caption sources: Walter Colton, Three Years in California (Stanford: Stanford University Press, 1949); "Song of the Redwood-Tree": http://classiclit.about.com/library/bl-etexts/ wwhitman/bl-ww-redwood.htm; Joseph Warren, A Tour of Duty in California (New York: C.S. Francis & Co. 1849); William Henry Thomes, On Land and Sea in California in the Years 1843, '44 and '45 (Boston: DeWolfe, Fiske & Co., 1884); Nicholas Dawson, Narrative of Nicholas "Cheyenne" Dawson (Overland to California in '41 and '49 and Texas in '51) (San Francisco: Grabhorn Press, 1933).
(1) Walter Colton, Three Years in California (Stanford: Stanford University Press, 1949), 17; facsimile of the first edition (New York: A.S. Barnes, 1850), edited and with an introduction by Marguerite Eyer Wilbur. Citations refer to the Stanford edition unless otherwise noted.
(2) See, for example, Hubert H. Bancroft, "History of California, vol. 5, 1846-1848," The Works of Hubert Howe Bancroft, vol. 22 (Boston: Elibron Classics, 2004), 289m; Theodore H. Hittell, History of California (San Francisco: N. J. Stone, 1897), 2:590; Zoeth S. Eldredge, ed., History of California (New York: Century History, n.d.), 3:88-89; Doyce B. Nunis, Jr., The Trials of Isaac Graham (Los Angeles: Dawson's Book Shop, 1967), 46-58; William Henry Ellison, A Self-Governing Dominion, California 1849-1860 (Berkeley and Los Angeles: University of California Press, 1950), 12-13; J. M. Guinn, History of the State of California and Biographical Record of Coast Counties, California (Chicago: Chapman, 1904), 150; Clifford M. Drury, "Walter Colton, Chaplain and Alcalde," California Historical Society Quarterly 35, no. 2 (1956), 97; Josiah Royce, California: From the Conquest in 1846 to the Second Vigilance Committee in San Francisco (Boston: Houghton, Mifflin, 1987), 186n2 (passing reference only); Nellie Van de Grift Sanchez, "The Spanish Period," in California and Californians, ed. Rockwell D. Hunt (Chicago: Lewis Publishing, 1926), 172; Woodrow J. Hansen, The Search for Authority in California (Oakland: Biobooks, 1960), 74. Some historians assert a jury trial in San Francisco involving Sam Brannan was the first. See, for example, Franklin Tuthill, The History of California (San Francisco: H. H. Bancroft & Company, 1866), 214. But that is clearly wrong. See Nunis, Trials of Isaac Graham, 47n4, and infra, 23.
(3) Thomas O. Larkin, "Notes on the Personal Character of the Principal Men" (n.d., probably April 20, 1846), in The Larkin Papers, ed. George P. Hammond (Berkeley: University of California Press, 1955), 4:325-29; Thomas O. Larkin, "Names of the British Subjects, and Citizens of the United States Who Resided in Alta California," repr. in First and Last Consul: Thomas Oliver Larkin and the Americanization of California, ed. John A. Hawgood (Palo Alto: Pacific Books, 1970), 109-18; David J. Langum Sr., Law and Community on the Mexican California Frontier (Los Californianos Antepasados, Vol. XIII) (San Diego: Banard Lithographers, 2006): 17-29.
(4) These were among the areas of law most important to a largely agricultural, sparsely populated area. See, for example, Miroslava Chavez-Garcia, Negotiating Conquest: Gender and Power in California, 1770s to 1880s (Tucson: University of Arizona Press, 2004); Lisbeth Haas, Conquest and Historical Identities in California, 1769-1936 (Berkeley: University of California Press, 1995); Langum, Law and Community, 232-42. But when Mexico permitted foreigners to trade along the Alta California coast, "this growth of trade made courts for the adjustments of controversies greatly desired ... [and created] increased needs for a law of merchants"; Richard R. Powell, Compromises of Conflicting Claims: A Century of California Law, 1760-1860 (Dobbs Ferry: Oceanea, 1977), 49.
(5) The Californios themselves were often dissatisfied with the lack of a proper judicial system. On Oct. 18, 1831, Carlos Antonio Carrillo, the Alta California representative to the Mexican Chamber of Deputies, addressed that body, decrying the absence of an effective judiciary in his province and proposing a law to establish an appropriate judicial branch there; "Speech by Carlos Antonio Carrillo, Deputy for Upper California to the Chamber of Deputies, Requesting the Establishment of Adequate Courts for the Administration of Justice" in The Coming of Justice to California: Three Documents, ed. John Galvin, trans. Adelaide Smithers (San Francisco: John Howell, 1963), 49-62. A law was passed in 1837, but it was not given effect in Alta California for years and even then was not fully implemented; Langum, Law and Community, 35-40.
(6) Michael Gonzalez, "War and the Making of History: The Case of Mexican California, 1821-1846," California History 86, no. 2 (2009), 10. The instability in Alta California reflected the problems of the Mexican central government, where, Gonzalez says (ibid., 23), "at least forty-nine individuals sat as president or interim political chief between 1821 and 1857."
(7) If there was a dispute, the alcalde sought to reconcile the parties. If initial efforts failed, then each party would appoint an hombre bueno. These representatives met with the alcalde to seek a negotiated resolution. Usually, they were successful in compromising the dispute. For a more complete description of the legal system, see Theodore Grivas, "Alcalde Rule, The Nature of Local Government in Spanish and Mexican California," California Historical Society Quarterly 40, no. 1 (Mar. 1961), 11; Powell, Compromises of Conflicting Claims, 29-30. For a contemporary (somewhat jaundiced) American view of the alcaldes, see R. A. Wilson, The Alcalde System of California (1851) 1 Cal. 559. For general descriptions of the hombre bueno procedure, see Langum, Law and Community, 97-104 and Chavez-Garcia, Negotiating Conquest, 29. For a specific example of conciliation, see Donald Munro Craig, ed., William Robert Garner, Letters from California 1846-1847 (Berkeley: University of California Press, 1970), 30. The parties also resorted to arbitration from time to time, particularly with regard to business disputes; Langum, Law and Community, 213-31.
(8) Langum, Law and Community, 138-52.
(9) Langum, Law and Community, 130; "The days of '46: ms: recollections of William Baldridge, 1877," 32, William Baldridge, dictated to Lovisa Thompson, MSS C-D 36, Bancroft Library, University of California, Berkeley.
(10) Bancroft, History of California, 5:60-63, 207-23; Harlan Hague and David J. Langum, Thomas O. Larkin: A Life of Patriotism and Profit in Old California (Norman: University of Oklahoma Press, 1990), 1-2, 8, 102, 113-15; Robert Glass Cleland, "The Early Sentiment for the Annexation of California: An Account of the Growth of American Interest in California, 1835-1846," The Southwestern Historical Quarterly 18, no. 3 (Jan. 1915): 231-47; Oscar Lewis, ed., California in 1846 (San Francisco: The Grabhorn Press, 1934), ix; Thomas O. Larkin to Faxon Dean Atherton, Oct. 20-21, 1842, in Doyce B. Nunis, Jr., ed., "Six New Larkin Letters," Southern California Quarterly 49, no. 1 (Mar. 1967), 69, 83; Thomas O. Larkin to "Journal of Commerce," July 1845, in Hammond, The Larkin Papers, 3:292-96; Reuben L. Underhill, From Cowhides to Golden Fleece: A Narrative of California, 1832-1858, Based upon Unpublished Correspondence of Thomas Oliver Larkin, Trader, Developer, Promoter, and only American Consul (Stanford: Stanford University Press, 1939), 96-99; Joseph de Rosamel, Upper California, in William F. Shepard, "California Prior to Conquest: A Frenchman's View," California Historical Society Quarterly 37, no.1 (1958), 71. See also the debate between either Pio Pico or Jose Antonio Carillo and Mariano Vallejo recounted in Joseph W. Revere, A Tour of Duty in California (New York: C. S. Francis, 1849), 24-30.
(11) "Operations of the Pacific Squadron. Despatches [sic] of Commodore Sloat, Containing an account of his proceedings on the west coast of Mexico," Executive Documents, 30th Congress, 2nd Session, 1848-49, Ex. Doc. No. 1, at 75-76.
(12) John D. Sloat to George Bancroft, at sea aboard the Flag Ship Levant, July 31, 1846, repr. in House Executive Documents, 29th Congress, 2nd Session, 1846-47, Vol. 3, No. 19, at 99-101 and in House Documents, Reports, 29th Congress, 2nd Session, 184647, Vol. 1, Document 4, at 640.
(13) Bancroft, History of California, 5:231. Information about Rodman's and Gilchrist's billets is taken from Edwin A. Sherman, The Life of the Late Rear Admiral John Sloat of the United States Navy (Oakland: Carruth & Carruth, 1902), addenda to the appendix.
(14) "Operations of the Pacific Squadron," 1008.
(16) House Documents, Reports, 29th Congress, 2nd Session, 1846-1847, Volume 1, Document 4, No. 3, at 669-70, repr. as "To the People of California," The Californian, Sept. 5, 1846, http://cdnc.ucr.edu/cdnc/cgibin/cdnc?a=d&d=08460905.2.3&cl=searc h&e=05-09-1846-13-09-1846-en-20-1-txtIN-The+Californian, and in Hammond, The Larkin Papers, 5:175.
(17) On July 13, 1846, five officials of the Mexican regime in Monterey met and agreed they would remain loyal to Mexico. They signed an oath and resigned their offices. Craig, William Robert Garner, Letters from California, 38; Bancroft, History of California, 5:235n29.
(18) Colton notes "the services of these officers were deemed indispensable to the efficiency of the ships to which they were attached. Colton, Three Years in California, 17. Bancroft reports Colton's appointment in two places. In one, Stockton "appointed Walter Colton ... in place of Price and Gilchrist." In the other, Colton "served ... with Rodman M. Price." Compare Bancroft, History of California, 5:254 and 5:288. The Aug. 29, 1846 edition of The Californian, the newspaper edited by Colton, contains an announcement that two justices are serving Monterey (p. 1) and the Aug. 22 and 29, 1846 editions contain an order signed "Walter Colton, Rodman M. Price, U.S. Justice" (p. 4). Thus, it is unclear whether Price stayed in Monterey or shipped out with Stockton at the end of July.
(19) Timothy J. Demy, "An Analysis of the Life and Ministry of Walter Colton (1797-1851): Congregational Minister and United States Navy Chaplain" (ThD thesis, Dallas Theological Seminary, 1990), 81. Biographical information on Colton is also found in Henry T. Cheever's memoir in Walter Colton, The Sea and the Sailor, Notes on France and Italy (New York: A. S. Barnes, 1856), 337-437, and Walter Larsen, "Walter Colton: Yankee Alcalde" (master's thesis, University of California Los Angeles, 1950).
(20) Demy, "Life and Ministry of Walter Colton," 85-98.
(21) Ibid., 99.
(22) Ibid., 109-11.
(23) Ibid., 112-13.
(24) Drury, "Walter Colton," 98-103.
(25) Walter Colton, Deck and Port; or Incidents of a Cruise in the United States Frigate Congress to California (New York: A. S. Barnes, 1850), 323 (June 7), 349 (June 21). The text of a sermon Stockton gave in Honolulu one month before landing in Monterey is reprinted in Samuel J. Bayard, A Sketch of the Life of Commodore Robert Stockton (New York: Derby & Jackson, 1856), 104-9.
(26) Bayard, Life of Commodore Robert Stockton, 107-8.
(27) Colton, Three Years in California, 19.
(28) Duncan Gleason, "James Henry Gleason: Pioneer Journal and Letters, 1841-1856," Historical Society of Southern California Quarterly 31, no. 1 (Mar. 1949), 32. Young James Henry Gleason first sailed from Boston to the Sandwich Islands in 1841 and became a Yankee trader. By 1846 he had settled in Monterey and was managing his commercial affairs from a store on shore; ibid., 21-22, 30-31. His uncle, John Paty, had preceded him, arriving on the Pacific Coast in 1836. Paty established himself as an important ship owner, captain, and trader; William Heath Davis, Seventy-five Years in California (San Francisco: John Howell, 1929), 188, 192.
(29) Colton, Three Years in California, 17. As to his inability to speak Spanish, see Florencio Serrano, "Apuntes para la Historia de la Alta California" (Berkeley: Bancroft Library, 1877), 118 (Colton had great difficulty because he did not know the "idioma Castellano").
(30) Larkin to Jacob Leese, July 29, 1846; Larkin to Abel Stearns, Aug. 6, 1846; Larkin to Archibald Gillespie, Sept. 16, 1846, in Hammond, The Larkin Papers, 5:178; 5:184 (departure); 5:238 (return).
(31) Craig, William Robert Garner, Letters from California, 38.
(32) A variation on the story holds that Garner deserted his ship when it anchored at Santa Barbara in Jan. 1826. "Biographical Sketches: Obituary of William R. Garner--A Pioneer of 1826--Sketch of His Life," San Jose Pioneer, Apr. 27, 1878.
(33) Craig, William Robert Garner, Letters from California, 5-37.
(34) Craig, William Robert Garner, Letters from California, 38-39. Serrano ("Apuntes," 118) concurs that Garner was a great help to Colton.
(35) The document is in volume 8, page 732 of the Mexican Archives maintained by the Monterey County Historical Society in Salinas, California (hereafter cited as Mexican Archives). Even today, new judges typically are eager to collect "scripts," i.e., models of statements and documents their job requires them to employ frequently.
(36) "Laws," The Californian, Aug. 29, 1846.
(37) Colton, Three Years in California, 41.
(38) Ibid., 36, 39. At least some had confessed.
(39) "Notice," The Californian, Aug. 15, 1846; rep. Aug. 22, 1846; Aug. 29, 1846; Sept. 5, 1846; Sept.12, 1846. The military authorities had previously issued similar orders. See the "Aviso" issued by Captain Mervine, July 15, 1846, Mexican Archives, 13:1257.
(40) "To The People of California," The Californian, Sept. 5, 1846.
(42) He certainly seems to have given them warning that he planned to have elections. See, for example, Larkin's letters to alcaldes in San Jose and Santa Cruz, written as early as mid-July: Larkin to James Stokes, July 17, 1846, Larkin to Jose Bolcoff, July 20, 1846 in Hammond, The Larkin Papers, 5:139, 5:147. In the former, Larkin wrote, "Should you wish to continue you can with all ease procure your own election." It seems probable that Stockton (who was close to Colton) warned Colton well in advance that he intended to order elections.
(43) Zoeth S. Eldredge, The Beginnings of San Francisco (New York: John C. Ranking, 1912), 545; Marius A. Duvall, A Navy Surgeon in California 1846-1847: The Journal of Marius Duvall, ed. Fred Blackburn Rogers (San Francisco: John Howell, 1957), 56; Bancroft, A History of California, 5:295.
(44) Joseph T. Downey, The Cruise of the Portsmouth: A Sailor's View of the Naval Conquest of California, 1845-1847, ed. Howard R. Lamar (New York: Yale University Press, 1958), 146.
(45) Duvall, Navy Surgeon in California, 56 ("Bartlett practiced 'pipe-laying' and was chosen Alcalde. Capt. M[ontgomery] disapproved of it, and says he will annul the election. Quite an omen of what will be done in future elections!!!"). Downey gives two descriptions of the fraud. In the first, he describes how he was kept up all night preparing blue ballots for Bartlett and white ballots for his opponent. When someone attempted to cast a white ballot, he was subject to various challenges that depressed the vote. In addition, Bartlett's supporters recruited the military men occupying San Francisco to cast ballots for their Lieutenant. Downey, Cruise of the Portsmouth, 146-47. In a later volume, Downey claims that as a drunken practical joke, he stuffed the ballot box so that he, Downey, won first election, which Bartlett promptly annulled. Fred Blackburn Rogers, ed., Filings from an Old Saw: Reminiscences of San Francisco and California's Conquest, by "Filings"--Joseph T. Downey (San Francisco: John Howell, 1956), 53-54.
(46) Nunis, Trials of Isaac Graham, 46.
(47) Starr P. Gurke, "Translations of Pre-Statehood Documents: Villa de Branciforte," 75, MS-8, Folder 2:2, McHenry Library, Special Collections, University of California at Santa Cruz (hereafter cited as UCSC).
(48) Nunis, Trials of Isaac Graham, 119. The California Supreme Court affirmed that the marriage was bigamous. Isaac Graham v. Tillatha C. Bennett (1852) 2 Cal. 503.
(49) Skip Littlefield, "Isaac Graham: The Rifle-Toting Firebrand of the Zayante," Santa Cruz Sentinel, Mar. 3, 1985.
(50) Skip Littlefield, "Isaac Graham: Mountain Man Becomes Ship Builder," Santa Cruz Sentinel, Mar. 10, 1985.
(52) Dorothy A. Hertzog, "Isaac Graham: California Pioneer" (master's thesis, University of California, Berkeley, 1941), 1-10; Nunis, Trials of Isaac Graham, 8-9.
(53) Hertzog, "Isaac Graham: California Pioneer," 10-15; Nunis, Trials of Isaac Graham, 6-9.
(54) Professor Nunis does a meticulous job of tracking Graham's movements between 1830 and 1832 and surveys the sources regarding the date of Graham's arrival in California; Nunis, Trials of Isaac Graham, 12-15. Ms. Hertzog, too, surveys his movements and the various sources on the date his arrival in California; Hertzog, "Isaac Graham: California Pioneer," 8-18.
(55) Hertzog, "Isaac Graham: California Pioneer," 17.
(56) J. Gregg Layne, "The First Census of the Los Angeles District," Historical Society of Southern California 18, no. 3 (1936), 84, 90. Note that Graham's birth date of 1800 does not match the census data that lists him as being 34 years old in 1836.
(57) The story of how Graham provided the arms (and fired the sole shot) that unseated Gutierrez is recorded in many places. See Susanna Bryant Dakin, The Lives of William Hartnell (Stanford: Stanford University Press: 1949), 210-11; Nunis, Trials of Isaac Graham, 21-22.
(58) See, for example, Nunis, Trials of Isaac Graham, 19; Irving B. Richman, California Under Spain and Mexico, 1535-1847 (Boston: Houghton, Mifflin, 1911), 266; Edward S. Harrison, History of Santa Cruz County, California (San Francisco: Pacific Press, 1892), 200.
(59) Bancroft (History of California, 4:2-35) sorts through the various versions of these events.
(60) Nunis, Trials of Isaac Graham, 34. The small town of Zayante still exists.
(61) Sherwood D. Burgess, "Lumbering in Hispanic California," California Historical Society Quarterly 41, no. 3 (1962), 244 (bought from Peter Lassen); Hertzog, "Isaac Graham: California Pioneer," 74-75 (built).
(62) Larkin, "A Report to the U.S. Government: California in 1846 and its Resources as Then Known," 2 and 15, repr. in Lewis, California in 1846, 1-16.
(63) Lewis, California in 1846, 1-16; Doyce B. Nunis, Jr., ed., Joseph Belden, 1841 California Overland Pioneer: His Memoir and Early Letters (Georgetown: Talisman Press, 1962), 59. Professor Nunis (59n48) says it is likely that Graham sold his lumber through middlemen, too.
(64) Bancroft is uncertain as to the date Roussillon came. He says he first appears in Los Angeles in 1843, "but is said to have come in '37 or even '33." Bancroft, History of California, 5:705. Another historian says Roussillon arrived in Los Angeles in 1842; Daniel Levy, Les frangais en Californie (San Francisco: Gregoire, Tauzy, 1884), 65.
(65) Annick Foucrier, La reve Californien: Migrants frangais sur la cote Pacifique, XVIIIe-Xxe siecles (Paris: Belin, 1999), 40, 52.
(66) Ibid., 52.
(67) Roussillon is listed in the census at Branciforte (Santa Cruz) in 1845; Robert H. Jackson, "The 1845 Villa de Branciforte Census," Antepasados 4 (1981), 45.
(68) Warren A. Beck and Ynez D. Haase, Historical Atlas of California (Norman: University of Oklahoma Press, 1974), Plate 30. Annick Foucrier, "Sailors, Carpenters, Vineyardists: The French Pioneers in Santa Cruz," Santa Cruz County History Journal 3 (1997), 138, 142. On Sept. 10, 1847, Sansevain filed a formal complaint against Graham for trespassing on his property to cut timber; Mexican Archives, 13:301.
(69) An early source says it was built in 1842; Santa Cruz Sentinel, Aug. 5, 1865. A local historian accepts that date; Leon Rowland, Santa Cruz: The Early Years (Santa Cruz: Paper Vision, 1980), 55. Professor Foucrier puts its construction in 1843; Foucrier, Lareve californien, 62. Bancroft says 1844; Bancroft, History of California, 5:708.
(70) The alignment of the road has changed over the years. The original route was described in "Circuit Rider," Santa Cruz Sentinel-News, Dec. 13, 1942.
(71) Langum, Law and Community, 226-31.
(72) Mexican Archives, 8:802. The dispute over the lumber arose in Santa Cruz, not Monterey. Thus, Graham should have brought his complaint to the alcalde in Santa Cruz, his old friend Joseph L. Majors. However, Graham and Majors had a serious falling-out. Graham must have decided to avoid Majors and bring the matter to another jurisdiction. Although one can conceive of several explanations, there is no writing to explain why Colton took the case rather than change venue back to Santa Cruz.
(73) On Aug. 25, Stockton ordered Francis Johnson to carry the proclamation calling for the election "with all possible speed" from Los Angeles to points north and authorized him to spare no expense in obtaining horses along the way. Stockton to Johnson, Aug. 25, 1846, in Robert Field Stockton, Letter Books and Miscellaneous Materials, 1846-47, 106. It is approximately 375 miles from the Los Angeles harbor at San Pedro to Monterey following the route connecting the Spanish missions. That means the proclamation should have reached Colton no later than the end of August. See Jonathan Boniface, The Cavalry Horse and His Pack (Kansas City: Hudson-Kimberly, 1903), 91 (60-75 miles per day without changing horses), 229-32 (significantly more on forced marches).
(74) Colton, Three Years in California, 47.
(75) Leon Rowland, "California's First Jury Trial," in Leon Rowland's Scrapbook, 252, Leon and Jeannette Rowland Collection, MS 051, UCSC.
(76) Mexican Archives, 8:802.
(77) Colton, Three Years in California, 47.
(78) To his credit, Colton did not set the case for trial after September 15. No record remains to explain why he set the trial for such an early date.
(79) The Californian, Sept. 19, 1846.
(80) Sherman, Life of Admiral Sloat, addenda to the appendix. Lamar reports that Chase had been in the Navy since 1814; see Downey, The Cruise of the Portsmouth, 23n7.
(81) Green had the most tangled story of any of the jurors. He came to California in 1841 as a member of the Bartleson-Bidwell party. When he settled in Monterey the following year, he got his start in business in the employ of Thomas O. Larkin. He became a well-respected merchant and was so trusted that he was made collector of the port after the American occupation. However, in 1851 (while running for mayor of San Fran cisco) he was revealed to be Paul Geddes, a Pennsylvanian who had stolen bank funds and fled West, deserting a wife and at least four children. John Adams Hussey, "New Light Upon Talbot H. Green," California Historical Society Quarterly 18, no.1 (1939): 39-63; Davis, Seventy-five Years in California, 226-27; Zoeth Skinner Eldredge, Beginnings of San Francisco, 580-81.
(82) Little was a member of the Chiles-Walker party of 1843. He settled in Monterey in 1844 and worked as a trader; Bancroft, History of California, 4:715.
(83) Thomes traced his ancestry to the Mayflower. When he came to California, he worked as a carpenter, builder, and cattle rancher. By 1846, he had a house in Monterey and land in what is now Tehama County. Doyce B. Nunis, Jr., The Bidwell-Bartleson Party (Santa Cruz: Western Tanager, 1991), 203.
(84) The classic definition of a Californio is one who was born in California, as opposed to one who emigrated from Mexico; Leonard Pitt, The Decline of the Californios: A Social History of the Spanish-Speaking Californians, 1846-1890 (Berkeley: University of California Press, 1998), xv, 7. In that sense, none of the jurors was a Californio. However, the contemporary view may have been more fluid. Indeed, Colton may have counted Abrego and Serrano as Californios, since they had emigrated with the Hfjar-Padres party in 1834. Bancroft records that Abrego complained to Pico that "he is tired of being denounced and insulted as a 'Mexican'"; Bancroft, History of California, 5:35n9.
(85) Dakin, Lives of William Hartnell, 33-35; Bancroft, History of California, 4:728. Although he had no legal training, Malarin was appointed Presiding Justice of the Tribunal Superior for Alta California in 1840. That was an appellate court that did relatively little business in the few years in which it functioned. Langum, Law and Community, 40-42.
(86) Abrego owned what is now Pacific Grove and later acquired more land near what became the Hotel Del Monte. Davis, Seventy-five Years in California, 391; Robert G. Cowan, Ranchos of California (Fresno: Academy Library Guild, 1956), 61. For Abrego's history, see, generally, Marie E. Northrop, Spanish-Mexican Families of Early California: 1769-1850 (Burbank: Southern California Genealogical Society, 1984), 2:1-2; Bancroft, History of California, 2:686, 4:97, 557-58.
(87) Rockwell D. Hunt, California Firsts (San Francisco: Fearon, 1957), 243-44.
(88) Florencio Serrano, Testimonios de Florencio Serrano, trans. William Wilkinson (n.p.: Booksurge, 2009), 12-14 (introduction by William Wilkinson), 105; Bancroft, History of California, 5:716-17; Edna E. Kimbro and Anthony Crosby, "Casa Serrano: Limited Historic Structure Report: Preliminary Review Copy, July 1, 1999, Monterey County Public Library History Room.
(89) Larkin described him as "merchant and alcalde for 1846.... Of some property, good general information, advice, note, and influence in Monterey. Quiet and retired." Larkin, "Notes on Personal Character of the Principal Men," in Hammond, The Larkin Papers, 4:326. See Bancroft, History of California, 2:780.
(90) Bancroft, History of California, 4:752. Narvaez was well respected and had served as an arbitrator in an 1845 dispute between a Spanish trader and the British consul in California; Langum, Law and Community, 217.
(91) Bancroft, History of California, 5:711; Cowan, Ranchos of California 83; Wallace Elliott & Moore, History of Monterey County with Biographical Sketches of Prominent Citizens (San Francisco: Pacific Press, 1881), 140.
(92) Stephan Landsman, "The Civil Jury in America: Scenes from an Unappreciated History," Hastings Law Journal 44 (Mar. 1993), 579, 582. See also Leonard W. Levy, The Palladium of Justice: Origins of Trial by Jury (Chicago: Ivan R. Dee, 1999), 53.
(93) Sir William Blackstone, quoted by Mr. Justice Strong in Strauder v. West Virginia, 100 U.S. 303, 308 (1880).
(94) Landsman, "The Civil Jury in America," 592.
(95) Harold M. Hyman and Catherine M. Tarrant, "Aspects of American Trial Jury History," in The Jury System in America: A Critical Overview, ed. Rita James Simon (Beverly Hills & London: Sage, 1975), 35.
(96) Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446 (1830). Justice Story noted that the right to trial by jury was believed to be written into every state constitution.
(97) Alexis de Tocqueville, Democracy in America, trans. Henry Reeve (New York: D. Appleton, 1904), 1:302. See, generally, Chapter XVI.
(98) Ibid., 307.
(99) See, generally, John Phillip Reid, Law for the Elephant: Property and Social Behavior on the Overland Trail (San Marino: Huntington Library, 1997).
(100) John Phillip Reid, Policing the Elephant: Crime, Punishment and Social Behavior on the Overland Trail (San Marino: Huntington Library, 1997), 117-32.
(101) See, generally, "Jury," in Encyclopaedia America, ed. Francis Lieber (Philadelphia, PAA: Lea and Blanchard, 1845), VII, 286-93 (written by Justice Joseph Story according to his son, William W. Story, in Life and Letters of Joseph Story [London: John Chapman, 1851], 27); Francis X. Busch, Law and Tactics in Jury Trials (Indianapolis: Bobbs-Merrill, 1949), 27-29, 36-37, 78-86; Joseph H. Choate, "Trial By Jury" (address to the American Bar Association, Aug. 18, 1898), repr. in Joseph Hodges Choate, American Addresses (New York: Century, 1911), 197. There were, to be sure, variations in the jury systems of the different states with regard to things such as the unanimity requirement for a verdict, the extent to which the judge's statement of the law bound the jurors, the kind of cases that were outside the purview of the jury system (e.g., minor offenses and cases within the jurisdiction of admiralty and equity), the number of peremptory challenges allowed, and the extent to which a civil verdict could be set aside or modified by a judge. But the fundamental principles outlined above had broad acceptance. Women did not begin to serve on juries until around the time of the Nineteenth Amendment (which gave them the vote). See People of the State of Michigan v. Harold Barltz, 180 N.W. 423 (1930) and "Annotation: Conferring Right of Suffrage Upon Women as Qualifying Them as Jurors," American Law Reports 12 (1921), 525 and American Law Reports 16 (1922), 1154, and "Eligibility of Women as Jurors," American Law Reports 157 (1945), 461. Utah was one of a handful of states that allowed women to serve before then, it being the first, starting in 1898. John H. Langbein, Renee Lettow Lerner, and Bruce P. Smith, History of the Common Law: The Development of Anglo-American Legal Institutions (Austin: Wolters Kluwer Law & Business, Aspen Publishers: 2009), 536.
(102) William Blackstone, Commentaries on the Laws of England (1768; repr., Buffalo: William S. Hein, 1992), Book Three, 352-54; Francis X. Busch, Law and Tactics in Jury Trials, 78-80; J. H. Baker, An Introduction to English Legal History, 4th ed. (London: Butterworths Tolley, 2002), 509 (criminal cases).
(103) Blackstone, Commentaries, Book Three, 360-61 (although when both parties were foreigners neither was entitled to such a jury) and Book Four, 346; Busch, Law and Tactics, 96-97; Hiroshi Fukurai, "Embracing Affirmative Jury Selection for Racial Fairness," Racial Issues in Criminal Justice: The Case of African Americans, ed. Marvin D. Free, Jr. (Westport: Praeger, 2003), 241-45. There are rare examples of the use of juries de medietate linguae in America. See, for example, Respublica v. Mesca, 1 Dall. 73, 1 US L.Ed. 42 (Pa. Supreme Court 1783); United States v. Carnot, 25 F. Cas. 297, 1834 U.S. App. Lexis 418, 2 Cranch C.C. 469 (D.C. Cir. 1824). After statehood California prohibited the use of such juries; People v. Chin Mook Sow (1877) 51 Cal. 597.
(104) See Hague and Langum, Thomas O. Larkin, 77-81.
(105) Busch, Law and Tactics, 101-31; Barry Goode, "Religion, Politics, Race, and Ethnicity: The Range and Limits of Voir Dire," Kentucky Law Journal 92 (2004), 601, 602-6; Baker, Introduction to English Legal History, 509 (criminal cases). The right to challenges for cause was unassailable in both civil and criminal cases. The right to peremptory challenges was embedded in criminal procedure. At common law, there were no peremptories in civil cases; however legislatures created those rights. Indeed, in California, the legislature created the right to peremptory challenges in civil cases as early as 1851; California Civil Practice Act of 1851, Section 161 (enacted Apr. 29, 1851).
(106) In the remote past in England, jurors were those who witnessed the events at issue. But even in England "the idea that the jurors themselves should be cognizant of the facts ... [was] finally disposed of [in 1816]." In the United States, "the practice of summoning as jurors persons familiar with the facts has, with rare exceptions, never prevailed"; Busch, Law and Tactics, 36, 171.
(107) Gonzalez, "War and the Making of History," 14.
(108) Hague and Langum, Thomas O. Larkin, 126; Langum, Law and Community, 136.
(109) Donald M. Howard, Cowpath to Main Drag: Monterey's Alvarado Street, A Business History 1830-1930 (Pacific Grove: Monterey Peninsula Historiography Chronicles, 1996). They are bound papers in the Monterey County Public Library History Room, 979.476. A lithograph, Monterey in 1842, hanging in Colton Hall, shows that Serrano and Abrego also had houses in town.
(110) See Hartnell's advertisement in the first edition of The Californian, Aug. 15, 1846, offering his services at his house in Monterey.
(111) Davis, Seventy-five Years in California, 16-17.
(112) Colton, The California Diary (Oakland: Biobooks, 1948), 235; Howard, Cowpath to Main Drag, 248.
(113) Northrop, Spanish Mexican Families, 1-2, 77-80, 156.
(114) Sanchez, California and Californios, 2:43; Bancroft, History of California, 4:266-68.
(115) Bancroft, History of California, 4:307.
(116) William F. Swasey, The Early Days and Men of California (Oakland: Pacific Press Publishing Co., 1891), 57-58.
(117) Bancroft, History of California, 5:41^1.
(118) Ibid., 5:224m.
(119) Florencio Serrano, "List of Families with Boys in the Monterey Public School," Sept. 17, 1846, in Hammond, The Larkin Papers, 5:239.
(120) Dakin, Lives of William Hartnell, 178.
(121) Ibid., 98.
(122) Ibid., 273-74.
(123) Dakin, Lives of William Hartnell, 273-74; Bancroft, A History of California, 5:292.
(124) The Californian, Aug. 15 and 29, 1846.
(125) "Florencio Serrano and Francisco Arias to Thomas Oliver Larkin," July 3, 1846, in Hammond, The Larkin Papers, 5:99.
(126) Colton, Three Years in California, 47.
(127) For a clue to Colton's attitude towards lawyers, see The Californian, Sept. 26, 1846. There, he used, as a bit of filler, the joke: "LAWYERS: There are nine hundred and fifty-five Lawyers in the city of New York. Heaven help the Gothomites [sic]."
(128) Colton, Three Years in California, 200. A modern judge with a busy calendar is very familiar with the tension between ensuring the due process rights of litigants and needing to complete the day's business. Most struggle to insure the former.
(129) Professor Nunis assumes the notes were made by Colton; Nunis, Trials of Isaac Graham, 49. But a careful comparison of known specimens of Colton's and Garner's handwriting shows Garner was the scribe. (That would be a reasonable thing for a court clerk to do.) For samples of Garner's handwriting, see Mexican Archives, 6:920, 13:1563, and 14:441. Many documents signed by Colton appear to be in Garner's handwriting as well. For example, an official document is signed by Colton and witnessed by Garner; Mexican Archives, 8:794 (it appears that Garner, not Colton, wrote the body of the document); see also 8:762, 13:275. Two letters written by Colton himself are found in the Mexican Archives at 14:433 and 13:287 and two draft proclamations in Colton's hand are at 8:1261 and 13:1753.
(130) It is not clear why Colton did not employ Hartnell simply as a translator. There was no reason to make him a juror as well, except perhaps, the impending election.
(131) There was no testimony about the month in which this was supposed to have happened. But Bancroft (History of California, 4:565) says that the Fama arrived from Honolulu in June 1845. The Fama was shipwrecked in Feb. or Mar. 1846; Gleason, "James Henry Gleason: Pioneer Journal and Letters," 21-22.
(132) Ware had been in the trapping company with Graham in the early 1830s and was Graham's partner in Rancho Zayante; see Nunis, Trials of Isaac Graham, 5n6, 7n11, 34. Ware also may have been imprisoned with Graham in 1840 during the Graham Affair; Bancroft, History of California, 4:17. In the 1845 census he is listed as a 45-year-old unmarried Irish laborer; Jackson, "The 1845 Villa de Branciforte Census," 53.
(133) All of the description of the trial testimony is taken from Garner's notes; Mexican Archives, 8:831-36.
(134) Swasey, Early Days and Men, 34-39.
(135) Mexican Archives, 8:819.
(136) Alviso is listed in the 1845 census as a 51-year-old laborer with a wife and five children; Jackson, "The 1845 Villa de Branciforte Census," 52.
(137) George Chapell was an Englishman who was well established in the lumber business. He had been seized during the Graham Affair in 1840 and shipped to Mexico with Graham. They returned together. Burgess, "Lumbering in Hispanic California," 239; Bancroft, A History of California, 4:33n58; Jackson, "The 1839 Villa de Branciforte Census," 53.
(138) Garner records him as "Francisco Poilor." But it appears that he was Francois Poile. Rowland describes him as "a probable deserter from a French vessel at Monterey the year before"; Rowland, "Santa Cruz Gave California Its First Jury Trial," Santa Cruz Evening News, Oct. 28, 1933.
(139) Garner records him as "Quin." Robert King was an Englishman who came to California in 1834 or 1835. (One account says his real name was Haverstock. He assumed the name "King" to avoid British authorities after he jumped ship in Monterey.) He worked as a lumberman and owned land in Santa Cruz. In 1840, he was arrested in the Graham Affair. He was not unfamiliar with alleged thefts of lumber. In 1842, Josiah Belden had him arrested for stealing more than 500 feet of sawn boards. Helen Collins, "Maria Susana del Carmen King y Juarez," Antepasados 7 (1986-87), 41; Sara A. Bunnett, Marion Pokriots, and W. Dean Reynolds, Record Books of the Alcaldes of Santa Cruz, California 1847-1850 and April Term 1851 (Santa Cruz: Genealogical Society of Santa Cruz County, 1992); Bancroft, History of California, 4:17; Josiah Belden to Thomas O. Larkin, Aug. 7, 1842, in Hammond, The Larkin Papers, 262-63.
(140) Bancroft, History of California, 4:751; Nunis, Trials of Isaac Graham, 33-35, 43-45.
(141) Mexican Archives, 8:827.
(143) Colton required Roussillon to present his account book to the Santa Cruz alcalde to verify the amount owed by Graham and Naile; Rowland, "Santa Cruz Gave California Its First Jury Trial," 12.
(144) Colton, Three Years in California, 48.
(145) Mexican Archives, 13:275.
(146) The Californian, Sept. 12, 1846.
(147) Nunis, The Trials of Isaac Graham, 55n20. That is likely so, especially since Graham was illiterate. Craig, William Robert Garner, Letters from California, 22. Such flowery language seems unlikely to have been drafted by the lumberman.
(148) The Californian, Sept. 12, 1846.
(149) The Californian, Sept. 19, 1846.
(150) House Executive Documents, 29th Congress, 2nd Session, 1846-1847, Volume 3, Document 19, No. 24.
(151) Ibid., 32.
(152) Ibid., 43.
(153) Juan Malarin was the foreman of that jury; Mexican Archives, 13:1395-1419. Craig gives a good summary of the case in his introduction to Letters from California, 47. Colton also handled a land dispute in May 1847 in which he used eleven "arbitrators"; Mexican Archives, 8:839, 13:1255. In 1935 a newspaper columnist wrote, "Alcalde Colton was so pleased with the decision of the jurors [in Graham v. Roussillon] he was frequently calling on them for other cases. In fact he had about 20 pet jurors equally divided among the Californians and Anglo-Saxons, who decided most of his cases for him"; Paul Parker, "The First Jury Trial in California," Salinas Independent, Oct. 25, 1935. However, Parker cites no source for his assertion.
(154) The American Insurance Company et al. v. 356 Bales of Cotton, 26 U.S. (1 Pet.) 511 (1828); Strother v. Lucas, 37 U.S. (12 Pet.) 410, 9 L. Ed. 1137 (1838); Rockwell D. Hunt, "Legal Status of California," Annals of the American Academy of Political and Social Sciences 12 (Nov. 1898), 65. The existing laws were overlain with military law (to govern the troops) and, at times and places, martial law. For a contemporary statement of this, see Samuel H. Willey, "Recollections of General Halleck, As Secretary of State in Monterey, 1847-9," The Overland Monthly 9, no. 1 (July 1872): 12. But see People v. Folsom (1855) 5 Cal. 373, 379-80: "any Mexican law inconsistent with the rights of the United States or its public policy, or with the rights of its citizens, were annulled by the conquest."
(155) House Documents, Reports, 29th Congress, 2nd Session, 1846-1847, Volume 1, Document 4, No. 3, 669-70, repr. as "To the People of California," The Californian, Sept. 5, 1846, and in Hammond, The Larkin Papers, 5:175.
(156) Secretary of War W. L. Marcy to General Stephen Kearny, "California and New Mexico, Message from the President of the United States," House Executive Documents, 31st Congress, 1st Session, No. 17, 245-47. To avoid offending Congress, Polk's Secretary of War ordered Kearny not to give effect to the detailed set of laws (including the right to trial by jury) that he had drafted for New Mexico; ibid., 244-45.
(157) See, for example, "Prospects of California," The Californian, Aug. 15, 1846; California Star, June 19 and 26, 1847; Woodrow James Hansen, Search for Authority in California (Oakland: Biobooks, 1960), 76-79.
(158) See, for example, House Executive Documents, 31st Congress, 1st Session, Serial 573, No. 17, "California and New Mexico: Message from the President of the United States," 384, 419-22 (Aug. 19, 1847: special court with twelve man jury convened to try three men for murder); 410 (Oct. 26, 1847: manslaughter in first degree tried to a jury of twelve); 447 (Dec. 22, 1847: if jury is hung, a new jury may be impaneled); 488 (Mar. 2, 1848: grave cases must be tried to a jury); 494 (Mar. 16, 1848: business dispute tried to jury of six).
(159) "California and New Mexico," 452; Mexican Archives, 13:1769.
(160) Larkin to the New York Herald, June 1, 1847, quoted in Bancroft, History of California, 5:608n26.
(161) Hittell, History of California, 590.
(162) Colton spoke admiringly of a fellow American alcalde who resorted to the Old Testament for a rule of decision; Colton, California Diary, 215-16.
(163) As is true of any public figure, Colton had his detractors. The California Star (June 19, 1847) criticized him for habitual leniency: "if a culprit is sent to Monterey for punishment to the Rev.-puissant-Coke-Alcalde of that renowned berg, he dismisses him to the field of his former crimes, with the godly admonition, 'Go, and sin no more.' The thief pays his fee, and re-enters upon the duties of his profession."
(164) Richard Henry Dana, Jr., Two Years Before the Mast (New York: Signet Classic, 1964), 161. Dana was in Los Angeles in both 1835 and 1836 and he is not precise in dating the event. An intriguing possibility is that Graham (a trapper) may have been in Los Angeles at the time of the trial, since there is evidence of him having spent time in the Los Angeles area in the early to mid-1830s and he is listed in the 1836 census of the Los Angeles area; Layne, "The First Census of the Los Angeles District," 84, 90.
(165) Colton cited Dana's book in his own. See the first edition of Three Years in California, 402, http://books.google.com/ books?id=XzsVAAAAYAAJ&printsec= frontcover&dq=three+years+in+California+ colton&source=bl&ots=osHoiRDrox&sig= _5Jn54ZbxDd-ZWxbjtGO_7bB2I&hl=en& sa=X&ei=PluDUInvG6_wiQLH8IG4Aw& ved=0CC8Q6AEwAA.
(166) William A. Leidesdorff to Thomas A. Larkin, June 19, 1846, in Hammond, The Larkin Papers, 5:56.
BARRY GOODE is the Presiding Judge of the Contra Costa County Superior Court. A graduate of Kenyon College and Harvard Law School, he serves on the board of directors of the California Supreme Court Historical Society and is a member of the American Law Institute. He has published two law review articles, served as an adjunct professor of law, and lectured widely.
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