Jaremillo v. Romero

• Decision Date: 31 January 1857
• Parties: MARIANA JAREMILLOv.JOSE DE LA CRUZ ROMERO.
• Court: New Mexico Supreme Court

1 N.M. 190

MARIANA JAREMILLO

v.JOSE DE LA CRUZ ROMERO.

Supreme Court of the Territory of New Mexico.

Jan. 1857.

The presumption is that if summons had been served, the officer would have made the return required by statute.

*1 APPEAL from the first judicial district. The opinion states the case.

M. Ashurst, for the appellant.H. N. Smith, for the appellee. By Court, BENEDICT, J.:

This is an appeal from a justice of the peace to the district court in the first district, and from thence to this court. It has become our duty for the first time in this tribunal to examine and construe the laws of this territory, declaring the rights and defining the relations of masters and servants. Like all questions arising out of a domestic relation, the present involves interests important and delicate. It includes what is commonly called the peon system of this country. It is that system to which we so frequently see reference (and sometimes in high places in our republic) as maintaining here similar relations between masters and servants as are found to be established between the master and his slave in different states of the union. It will be expected, perhaps, that the action of this court in this cause will elucidate what this system really is, and we may be permitted to remark, that each member of this bench has heard and investigated this case with a deep solicitude not to lessen nor render insecure any law or remedy that by just authority exists amongst the inhabitants of this territory in behalf of either master or servant. This solicitude has been more keenly felt as we have reviewed the present condition of the laws, the courts, and the administration of justice in New Mexico, and called to mind a period under a former government in this country when no degree of tolerable certainty existed in judicial forms, proceedings, and decisions, and when the laws and their just benefits were so often set aside or crushed under foot by prejudice, corruption, or passion-by interest, power, and despotism. We are fully aware how naturally and easily in the minds of many then and now living, have come down from that period notions greatly rigorous as to the power of the master over his servant, and how quickly the former is alarmed as to the retention of his supposed power. These and other obvious considerations will, we doubt not, serve to suggest an explanation for the length of this opinion in this peculiar cause, and the endeavor to illustrate the matters brought within its scope.

This suit seems to have been commenced by summons in the ordinary form. Yet the justice describes Mariana as a servant who had abandoned the work or service of her master while owing the sum of fifty-one dollars and seventy-five cents, before advanced to her. The transcript shows that at the time of trial Mariana did not appear, and that, upon the motion of the plaintiff, the justice rendered judgment against Mariana for twenty-six months of work as a servant, o el equivalente, fifty-one dollars and seventy-five cents, in dinero (or for fifty-one dollars and seventy-five cents, the equivalent in money), as also for interest and all costs. In the district court the case was tried de novo, and the court adjudged “that the plaintiff recover of the said defendant, Mariana Jaremillo, and of Domingo Fernandez Luz Jaremillo and Juan Miguel Ortego, the securities on her appeal bond, the sum of fifty-six dollars and twenty-one cents; and also the costs of this suit to be taxed, and in default of payment hereof that she be held to serve her said master, Jose de la Cruz Romero, as a peon until said sum of money is paid.” The error assigned by the appellant is this judgment, to reverse which she has appealed to this court. Her counsel have insisted in argument that no service of process was made upon her in the suit before the justice, and that she was not brought within his jurisdiction. He states in his transcript that the summons was returned as served, but it does not appear that the serving officer made any return. The statute provides that “any constable or sheriff serving any process authorized by this act shall return thereon, in writing, the time and manner of service, and shall put his name to such return.” This was the positive duty of the officer in this case. No such thing seems to have been done, and the presumption of law is that he would have made such return had he served the process. His return would be better evidence of the facts than the justice's minutes. From the unscrupulous disregard which too often prevails in justices' courts in this country as to the legal rights of the unfortunate, the peon and the feeble, when contesting with the influential and more wealthy, as well as the circumstances which appear to have attended this cause before the justice, the painful but reluctant conviction is forced upon our minds that no service of process or notice was made upon Mariana; that the proceedings were wholly ex parte, an outrage upon law, and a premeditated injustice; and we derive gratification in marking from this high place, and in this authoritative manner, with the seal of judicial condemnation, such gross violations of the rights of those who are feeble in their own defense. But let the fact have been as it may, as to the service of process, it can avail the appellant nothing here in the determination of her cause. The record does not show that she availed herself of her first opportunity in the district court, to require its judgment upon this point. Had she done so, as the case stood, the court doubtless would have dismissed the suit. She appeared by counsel and contested the merits of the cause. No exhibition of exception to the rulings of the court appears in the record, and it is now too late for her to ask any favor at the hands of this court, growing out of the defective proceedings of the justice.

*2 Upon the entry of the power of the United States within this territory in 1846, and establishing their rule and government, there was found a large class of persons commonly designated in the language of the country by the name of peons. They were not of any particular color, race, or caste of the inhabitants. They appeared as servants, menials, or domestics, “bound” to some kind of “service” to their masters. Generally they had none or small amounts of property. The most wealthy and powerful families were flattered in their pride in displaying their retinues of these dependants. Many had been raised from childhood within the households of such families. One fact existed universally: all were indebted to their masters. This was the cord by which they seemed bound to their masters' service. It was an invariable rule, that the peon could discharge himself from this service by the payment of his indebtedness to his master, and the latter never supposed he had any right to refuse to receive his pay from his peon, and still hold him to service. It was common for persons desiring to engage in their employ as servants those owing, as peons, their masters, to advance to them the amounts due, and upon payment to the satisfaction of the old master, the peon left him and went to the service of the new; and these, as by voluntary contract, regarded the labor of him who had the peon's position as pledged for the payment of the money which had been advanced to pay his former master, as also for any other advancement. Upon entering the new service, or while continuing therein, the peon was held rigorously to fulfill his pledge and render his labor so long as his debts remained, or an additional one was incurred. He could not abandon the service; and if he did, his master pursued, reclaimed, and reduced him to obedience and labor again; and the alcaldes of the country, in the most summary manner, aided the master in bringing back his fugitive. Both male and female became peons, and the price of their labor was variously estimated at from one to six dollars per month.

We turn now to inquire for the legislative act which established these rules between peon and master. Vassals and vassalage had ceased to exist under the Spanish monarchy, and had not been restored by the Mexican government. The cortes of Spain, on the sixth of August, 1811, decreed that “the titles of vassals and vassalage are abolished, and also the grants, as well real as personal, which have taken their origin from this title of jurisdiction, except those proceeding from voluntary contracts, in the free exercise of the sacred use of property.” In the same manner all contracts, agreements, and conventions which may have been made in consideration of advantage, rents, or annuities of land, or others of this kind, entered into between the so-called lords and their vassals, ought in future to be considered as contracts made between private individuals. Upon careful examination of all the authorities within our present reach, we have been unable to find any law creating and defining the duties and rights, the civil and domestic relations, under the specific denomination of peon, while the Spanish and Mexican laws and authorities are replete with rules clearly marking out the legal rights and duties of masters and servants. If we turn to the lexicographers, we find Mr. Webster, in his dictionary, defines the word peon to mean, in Hindoostan, a foot soldier; in France, a common man; in chess, written and called pawn. From him we learn nothing as to its meaning in Spain or Mexico. In the Spanish and English dictionary by Velasquez, peon is defined variously; such as, pedestrian, day laborer, foot soldier, pawn in chess, anything that is whirled round in play, hive of bees, servant, menial, and groom. It also says that the word, as used in America, means an Indian hired to work by the day. From the last definition of “an Indian hired to work,” it is suggested that the condition of a peon originated in Mexico, in the workings of the system of repartimientos,...