The Courts, the Legal Profession, and the
Development of Law in Early California
Gordon Morris Bakken
The Gold Rush flooded California with people seeking riches and expecting the institutions of the law to protect their interests. To create those institutions, delegates went to Monterey in 1849 for the first state constitutional convention. The delegates assembling in Monterey in 1849 had a variety of concerns in writing a constitution for the new state. When considering the judiciary, delegates were anxious about the need for a fair and speedy trial, the costs of litigation, and the role of judges in making law. In discussing these issues, the delegates acknowledged both our national constitutional traditions and California's uniqueness in its Spanish and Mexican heritage. They also debated the nature of a constitution and the need to keep legislation out of fundamental law. The concepts of justice, industry, and economy in government were in contest in these debates. Justice was what courts dispensed, but the extent to which courts should have the authority to “legislate” for the state was at issue. Industry was what the delegates wanted to bring prosperity to the state, and the issue was how the lawgiving branches of government could facilitate that goal. Economy in government was what delegates thought taxpayers wanted. Good government at absolute minimum expense was a Jacksonian goal that obviously found voice in 1849 in California. But a broader political philosophy of popular sovereignty also clearly resonated at the 1849 convention. As historian Christian G. Fritz has so ably pointed out, the delegates knew that they had a charge as constitutionmakers to organize civil government and establish social institutions through fundamental law. Although the people were sovereign and the legislature was to do the will of the people in passing statutes, a constitution, when ratified by the people, became higher, fundamental law. 1 In the American mind, the judiciary was the institution that would have to interpret and apply that fundamental law.
The structure of the judiciary was not a serious question for the delegates, but the