The Journal of San Diego History
SAN DIEGO HISTORICAL SOCIETY QUARTERLY
Spring 1978, Volume 24, Number 2
Thomas L. Scharf, Managing Editor
Douglas H. Strong, Book Review Editor
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.