IV - California from Early Settlement to Statehood

In other southwestern states that were once part of the Spanish Empire, such as Texas and New Mexico, colonial exploration and settlement began in the early 1500s, within a decade or two of the Spanish arrival on the American mainland. At the remotest northern edge of Spanish America, however, California remained largely unexplored for two more centuries, until well into the 1700s. The establishment of missions and presidios began in Baja California in the 1680s and slowly moved north, with interest in this last frontier spurred in the mid-eighteenth century by Russian exploration and territorial interest in North America. Exploration was largely coastal until the Anza expedition, the first extensive overland journey through upper California, brought the first Spanish settlers as far as the Bay Area to settle in 1775–6. With the settlers arrived civilian government and the establishment of colonial administrative and judicial institutions on this northern frontier.

Land case map: Diseño del pueblo de San José y Rancho de los Tularcitos. Santa Clara & Alameda counties, CA (Courtesy of the Bancroft Library)
Land case map: Diseño del pueblo de San José y Rancho de los Tularcitos. Santa Clara & Alameda counties, CA (Courtesy of the Bancroft Library)

From the earliest days of non-native settlement, the vast territory and natural resources of California were a focus of interest for government and settlers alike. It is little surprise, therefore, that many of the most notable legal issues and controversies to shape California’s history, through its transition from Spanish to Mexican to U.S. territory and into statehood, have revolved around property rights. Within decades of their arrival in Alta California, many of the original Spanish settlers received large land grants from the crown. The Mexican government granted many more ranchos after independence from Spain in 1821. A relatively small number of Spanish and Mexican families whose names are recognizable in the Bay Area today—such as Vallejo, Castro, Bernal, and Peralta—formed the nucleus of a small Californio population that forged its own community and enjoyed in relative isolation the territory’s natural wealth and splendor. This all changed almost overnight. The end of the Mexican-American war and the Gold Rush in 1848 brought a sudden and tremendous influx of American and international fortune-seekers across its mountains and to its shores. These events had dramatically transformed California’s population and its political and economic landscape by the time statehood was granted in 1850. The great opportunities of wealth that California presented to newcomers brought with them continuous legal challenges in the form of ever-evolving and competing claims to ownership.

Noticia de la California

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A Natural and Civil History of California

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Noticia de la CaliforniaJesuit administrator Miguel Venegas was born in Puebla, Mexico, and never set foot in California. Yet in the 1730s he was charged with writing a treatise on the history, geography and ethnography of Baja California. Using existing accounts and letters and soliciting additional reports from Jesuits active in the California missions, Venegas submitted a manuscript of nearly 700 pages to his order in 1739. The manuscript languished for over a decade before another Jesuit scholar, Andrés Marcos Burriel, was assigned to edit and publish it as the Noticia de la California in 1757. English, French, German and Dutch editions appeared by 1770, attesting to the growing interest in this last frontier of Spanish America during the eighteenth century.

Though not a legal text, Noticia de la California reflects the efforts of California missionaries to comprehend and chronicle the systems of governance and social mores of the native peoples they were sent to convert. The work thus offers insight into the establishment of early colonial law and order in a territorial outpost and the intersection of secular and religious authority. This balancing act between the two, which characterized colonial administration throughout Latin America, is evident in the description of the chain of authority established among the missionaries and soldiers, taken here from the 1759 English edition:

A Natural and Civil History of California

“The viceroy granted to the father [Salvatierra, founder of the Baja missions], a licence for carrying soldiers to California, and…the captain or soldiers were to be under his orders in progresses, escortes, and other occasions, which are not immediately military, these being under the captain’s direction [...] the captain of the garrison, was appointed judge and chief justiciary of all the country of California; of the soldiers in every case, whether military or civil; of the seamen, servants, and settler, and of the Indians” (441-2)

Leyes de California, aprobadas durante la primera [desde la vigésima-segunda] sesión de la legislatura (Session laws: 1850-1878)

(Berkeley Law Library collection)

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Leyes de California, aprobadas durante la primera [desde la vigésima-segunda] sesión de la legislatura (Session laws: 1850-1878)The Treaty of Guadalupe Hidalgo, signed in February 1848, formalized the end of the Mexican-American War and Mexico’s cession of Upper California and other Southwestern territories to the United States. One month later, gold was discovered in the Sierra, causing a mass arrival of people and wealth to the territory. California’s rapid transformation—from a territory populated by a small group of Mexican Californios and a greatly diminished native population to a Western boom state quickly filling with Americans seeking land and fortune—made statehood highly desirable both to the United States and to local residents in need of stable civil government.

California became a state in September 1850, and in the months leading up to statehood a great debate on the laws that were to be adopted in the state constitution was waged, with some of the fiercest arguments surrounding the question of community property in marriage. Several U.S. and Californio delegates supported the inclusion of existing Mexican civil law statutes that upheld a wife’s vested interest in community property and separate property rights. They faced fierce opposition from those who wished to strictly impose American common law, which gave sole ownership of property to the husband. In the end, the civil law proponents carried their point, and Article XI, Section 14 of the constitution adopted in November 1849 established that “All property, both real and personal, of the wife owned or claimed by her before marriage, and that acquired afterward by gift, devise, or descent, shall be her separate property, and laws shall be passed more clearly defining the rights of the wife in relation as well to her separate property as to that held in common with her husband.”

Report of the Secretary of the Interior, communicating a copy of the report of William Carey Jones, special agent to examine the subject of land titles in California

(Berkeley Law Library collection)

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El Fuero Viejo de CastillaArticles VII and IX of the Treaty of Guadalupe Hidalgo guaranteed the property rights of California’s Mexican citizens. Hundreds of land grants, many of them quite extensive, had been made first by Spain and then Mexico to California settlers, and the United States government was eager to establish exactly which lands in California were legally titled to private owners and which lands could be declared public domain. The California Land Act passed by Congress in 1851 put the burden of proof of land titles on the holders of Spanish and Mexican grants. The lengthy legal process to prove title claims, often taking well over a decade, meant that most of the original Californio ranchos were lost or sold bit by bit as their owners faced prolonged legal fees and other hardships.

Even before California was formally admitted to the Union, the U.S. government pursued its own investigation of California land claims. William Carey Jones, father of Berkeley Law’s first dean by the same name, was appointed by the Secretary of the Interior in July 1849 to make a confidential investigation of existing land titles. Consulting archives in California and Mexico City, Jones compiled a report listing nearly 600 existing land titles and appended translations of government decrees and correspondence between Spanish and Mexican officials and California governors from as early as 1773. Jones himself predicted the fate of the ranchos: “The titles not called in question, (as they certainly, for any reason which I could discover, do not deserve to be,) the pressure of population, and the force of circumstances, will soon operate to break up the existing large tracts…”

Newspaper article: “California Wife can Thank the Ancient Visigoths”

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Newspaper article: “California Wife can Thank the Ancient Visigoths”The decision to write a definition of property rights based on Spanish civil law into the state law would prove to have important ramifications for California in the twentieth century. The origins of the Robbins Collection at Boalt Hall are closely tied to this unique aspect of California’s legal heritage. Founder Lloyd M. Robbins’s parents, Reuel and Saditha Robbins, were wealthy Bay Area ranchers and bankers with sizeable property. In 1918, the couple attempted to file separate federal tax returns, each for half of the income of their jointly accumulated property, which would have saved them a considerable sum. The government rejected the returns, however, and they were forced to pay the tax assessed upon the husband as sole owner of the income. Shortly thereafter, Reuel Robbins died. His widow, with the assistance of her son Lloyd, sued to recover the tax difference by disputing the historical definition of community property in California. Lloyd Robbins’s argument, which he took to the United States Supreme Court, asserted that community income should be taxable in equal halves to husband and wife, based upon the community property principles that California inherited from Mexican and Spanish civil law, which established that a wife has a vested interest in the marital property.

The Supreme Court ultimately decided against the Robbins family in 1926, on the grounds that the state law was not explicit enough in declaring the vested property interest of the wife. But the case set other wheels in motion, and in 1927 the California code was amended specifically to recognize that a wife had a “present, existing and equal interest in community property,” establishing the rights that remain in effect in California today.

Community Property Laws, with Translations of the Commentaries Thereon of Matienzo, Azevedo & Guttierez [sic]

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Community Property Laws, with Translations of the Commentaries Thereon of Matienzo, Azevedo & Guttierez [sic]Lloyd Robbins’s research for Robbins v United States inspired an interest in legal history that he would retain for the rest of his life. In 1929, he published a translated edition of laws and commentary related to bienes gananciales, or community property, from the 1505 Leyes de Toro. In 1940, at the request of the California State Bar, Robbins produced another translated volume of Spanish community property law and commentaries from early modern jurists Matienzo, Azevedo, and Gutierrez. The commentaries centered upon the specific provisions of the Visigothic law that granted wives vested rights in the community property, rather than merely an expectancy of future inheritance. These ancient provisions had been carried forward from the Fuero juzgo and reaffirmed in book five, title nine of the 1567 Nueva recopilación, and again in book ten, title eleven of the 1805 Novísima recopilación, the final legal code to govern Spanish California.

Commentaria Ioannis Matienzo… in librum quintum recollectionis legum Hispaniæ

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Commentaria Ioannis Matienzo… in librum quintum recollectionis legum HispaniæJuan de Matienzo was a renowned Spanish jurist who distinguished himself practicing law in Spain before a royal appointment took him to South America in 1559. He served for two decades as an oidor (judge) in the newly formed royal Audiencia (appellate court) of Charcas, in the northern part of colonial Peru that is now Bolivia. During the last ten years of his service as a royal judge, Matienzo worked under the viceroy Francisco de Toledo, known for extensive legislative and administrative reforms that shaped colonial policy for centuries. Matienzo’s principle works are his treatise on public administration, Gobierno de Perú, and his Commentaria on Book Five of the Nueva Recopilación.

Commentariorum iuris civilis in Hispaniae regias constitutiones

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Practicarum quaestionum circa leges regias Hispaniae primae partis Nouae Collectionis Regiae libri duo

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Commentariorum iuris civilis in Hispaniae regias constitutionesPracticarum quaestionum civilium super quinque prioribus libris primae partis legum novae collectionis Regiae HispaniaeA prolific legal scholar, Alfonso de Azevedo is best known for his final work, his commentaries on the Nueva Recopilación. Of the early commentaries produced by Spanish jurists on the subject, Azevedo’s work is also one of the most extensive. Juan Gutierrez was born in Plasencia, Spain, like his contemporary Azevedo, and educated at Salamanca. In addition to his writing on the Nueva Recopilación, Gutierrez was also well known for a commentary on the care and protection of minors and the obligations of guardians.