In accordance with his foolish determination, Stockton still refused to acknowledge Kearny's direct authority. He appointed Frémont Governor of California, which was one mistake; and Frémont accepted, which was another. Undoubtedly the latter thought that his pretensions would be supported by personal influence in Washington. From former experience he had every reason to believe so. In this case, however, he reckoned beyond the resources of even his powerful father-in-law. Kearny, who seems to have been a direct old war-dog, resolved at once to test his authority. He ordered Frémont to muster the California battalion into the regular service, under his (Kearny's) command; or, if the men did not wish to do this, to discharge them. This order did not in the least please Frémont. He attempted to open negotiations, but Kearny was in no manner disposed to talk. He said curtly that he had given his orders, and merely wished to know whether or not they would be obeyed. To this, and from one army officer to another, there could be but one answer, and that was in the affirmative.
Colonel Mason opportunely arrived from Washington with instructions to Frémont either to join his regiment or to resume the explorations on which he had originally been sent to this country. Frémont was still pretending to be Governor, but with nothing to govern. His game was losing at Washington. He could not know this, however, and for some time continued to persist in his absurd claims to governorship. Finally he begged permission of Kearny to form an expedition against Mexico. But it was rather late in the day for the spoiled child to ask for favors, and the permission was refused. Upon his return to Washington under further orders, Frémont was court-martialed, and was found guilty of mutiny, disobedience, and misconduct. He was ordered dismissed from the service, but was pardoned by President Polk in view of his past services. He refused this pardon and resigned.
Frémont was a picturesque figure with a great deal of personal magnetism and dash. The halo of romance has been fitted to his head. There is no doubt that he was a good wilderness traveler, a keen lover of adventure, and a likable personality. He was, however, over-ambitious; he advertised himself altogether too well; and he presumed on the undoubtedly great personal influence he possessed. He has been nicknamed the Pathfinder, but a better title would be the Pathfollower. He found no paths that had not already been traversed by men before him. Unless the silly sentiment that persistently glorifies such despicable characters as the English Stuarts continues to surround this interesting character with fallacious romance, Frémont will undoubtedly take his place in history below men now more obscure but more solid than he was. His services and his ability were both great. If he, his friends, and historians had been content to rest his fame on actualities, his position would be high and honorable. The presumption of so much more than the man actually did or was has the unfortunate effect of minimizing his real accomplishment.
CHAPTER III
LAW—MILITARY AND CIVIL
The military conquest of California was now an accomplished fact. As long as hostilities should continue in Mexico, California must remain under a military government, and such control was at once inaugurated. The questions to be dealt with, as may well be imagined, were delicate in the extreme. In general the military Governors handled such questions with tact and efficiency. This ability was especially true in the case of Colonel Mason, who succeeded General Kearny. The understanding displayed by this man in holding back the over-eager Americans on one side, and in mollifying the sensitive Californians on the other, is worthy of all admiration.
The Mexican laws were, in lack of any others, supposed to be enforced. Under this system all trials, except of course those having to do with military affairs, took place before officials called alcades, who acknowledged no higher authority than the Governor himself, and enforced the laws as autocrats. The new military Governors took over the old system bodily and appointed new alcaldes where it seemed necessary. The new alcaldes neither knew nor cared anything about the old Mexican law and its provisions. This disregard cannot be wondered at, for even a cursory examination of the legal forms convinces one that they were meant more for the enormous leisure of the old times than for the necessities of the new. In the place of Mexican law each alcalde attempted to substitute his own sense of justice and what recollection of common-law principles he might be able to summon. These common-law principles were not technical in the modern sense of the word, nor were there any printed or written statutes containing them. In this case they were simply what could be recalled by non-technical men of the way in which business had been conducted and disputes had been arranged back in their old homes. But their main reliance was on their individual sense of justice. As Hittell points out, even well-read lawyers who happened to be made alcaldes soon came to pay little attention to technicalities and to seek the merit of cases without regard to rules or forms. All the administration of the law was in the hands of these alcaldes. Mason, who once made the experiment of appointing a special court at Sutter's Fort to try a man known as Growling Smith for the murder of Indians, afterwards declared that he would not do it again except in the most extraordinary emergency, as the precedent was bad.
As may well be imagined, this uniquely individualistic view of the law made interesting legal history. Many of the incumbents were of the rough diamond type. Stories innumerable are related of them. They had little regard for the external dignity of the court, but they strongly insisted on its discipline. Many of them sat with their feet on the desk, chewing tobacco, and whittling a stick. During a trial one of the counsel referred to his opponent as an "oscillating Tarquin." The judge roared out "A what?"
"An oscillating Tarquin, your honor."
The judge's chair came down with a thump.