Compromises of Conflicting Claims: A Century of California
Law, 1760-1860. By Richard R. Powell. Dobbs Ferry, New York: Oceana
Publications, Inc., 1977. Notes. Appendices. Index. 332 pages.
Reviewed by Dennis E. Berge, Professor of History at San Diego State University.
This is a book that is flawed in several ways, and which
falls short of the premise established in its sub-title, and yet it is a work of
some merit. Authored by a seasoned legal scholar, Compromises of Conflicting
Claims is presented as a history of California law from late in the
pre-Spanish period through the first ten years of California's statehood. The
author accomplished this, and with considerable skill, insofar as the American
period is concerned, but for the remainder of the study the performance is less than the promise.
Powell has organized his study around the four periods of
cultural dominance that fashioned California's legal heritage: first Indian,
then that of Spain, Mexico and the United States. His treatment of the first
three periods is disappointing for it amounts to little more than a brief
background to the Spanish colonization of California, and an almost equally
inadequate and very general history of Spanish settlement and Mexican rule in
the province. He devotes less than one page to the practices of California
Indians in arranging property rights and settling disputes, for example, after
which he concludes simply that "it is clear that the Indians in California,
prior to 1769, had law" (p. 10). His discussion of the Spanish and Mexican
period is only slightly more illuminating, and although Powell deals with such
subjects as the role of the alcalde and the impact of Spanish and Mexican
legislation his findings are drawn largely from secondary accounts, and will
already be familiar to most students of California history.
The serious part of this study begins as the author moves
into the Anglo-American period of California's history. Here Powell ranges
through California statutes, the records of the Constitutional Convention of
1849, and the actions of the state judiciary to reconstruct the pattern of law
and precedent developed by early Californians. He is particularly skilled in his
handling of case law, an important feature in a state which early committed
itself to common law doctrines, but he also deals effectively with statute law.
Powell's organization is helpful, for he has arranged his findings thematically
around such issues as property rights, business and labor practices, marital
relationships, inheritance rights, and crime and punishment. The pictures that
emerge in some of these areas are cloudy, and even contradictory, but this is
more a reflection of the complexities of the legal process than the effect of
Powell's labors. He finds, for instance, that California courts were
inconsistent in their recognition of Spanish and Mexican law in relation to
transactions that preceded the American takeover, and that these laws were
"sometimes respected, sometimes rejected, [and] sometimes circumvented" (p.
132). Land law was treacherously inconsistent, in part for a similar reason (pp.
168-169, 172), while water doctrines moved only haltingly toward a general
adoption of the doctrine of appropriations (pp. 179-83). Powell's handling of
these and most other questions of law is suitably judicious, but he
is notably condescending in his attitude toward the role of women in
California society (pp. 199, 206).
The value of Powell's study is marred in several unnecessary
ways. The book was regrettably printed in typescript, and it suffers from poor
editing. Printing and spelling errors are common, accents are missing from
Spanish names, and both text and notes are in poor format. Powell's writing
style, which is quite cumbersome, adapts reasonably well to analytical use, but
the narrative sections of the book are awkwardly written, with frequent
grammatical errors. Good editing and a shift in focus into the era in which
Powell is obviously most at home could have transformed this into a much more
valuable study.
