Common Law

Civil Law

Sources of law

Britain had a constitution guaranteeing its people basic civil rights such as the right to a hearing and trial by jury on charges against them.  Constitutional rights were largely unwritten, although some were recited in Magna Charta (1215), which guaranteed that at least some power of the state would reside outside the crown.  Americans made a crucial modification to this system by introducing the idea that constitutions should be written so that anyone could easily know their constitutional rights. 

The heart of common law was rules that British courts had developed during centuries of decision-making to cover many aspects of business and private life.  British courts enjoyed some measure of independence from the king; in 1700, Parliament made that independence nearly absolute by providing that judges would serve for life and could not be removed from office except for egregious misbehavior.  Common law also comprised statutes  enacted by Parliament.

Spain, France and other continental European nations relied on written codes of laws issued by the crown, supplemented by codes of local “customs” or regulations adopted in major Spanish and French cities.  No constitutions existed to check royal power.  Many civil-law nations had parliaments, but parliaments and local customs provided only a mild check on royal authority. 

The leading civil law codes used in the Spanish North American colonies, including Louisiana and Florida when under Spanish control, included the Siete Partidas (Seven Parts), prepared mainly under  Alfonso X of Spain in the 13^th and 14^th centuries, and the Recopilacion de las Indias (1680). 

Courtroom procedures

Criminal defendants and most parties in non-criminal lawsuits had the right to trial by jury.  Trials were conducted by each side presenting its own position.  It was felt that this adversarial system was better suited to finding the truth than a more collaborative system. 

Jury trials were rare; most cases were heard and decided only by judges.  The parties were expected to collaborate with the judge in a joint search for the truth.

Rights of married women

Married women had no legal existence separate from their husbands, who completely controlled their property and their earnings.  However, the common law allowed women to preserve control over their property indirectly by placing it in trust before marriage.

Civil law featured a “community property” system.  Husbands and wives each retained the property they brought to the marriage, and each had an equal interest in property acquired during the marriage.  However, husbands had the sole right to manage marital property during the marriage.

Land and water law

Protection of property rights is a core principle of common law.  Prior to the Industrial Revolution, landowners had a nearly absolute right to use their property as they wished. 

Great Britain and its colonies had abundant rainfall, thus, riparian (water-related) common law gave riparian landowners (that is, owners of property with streams running across or next to it) the right to full use of all rivers running through their property.  The riparian doctrine did not make any allowance for non-riparian landowners’ water needs.

The civil law also respected property rights, but it placed more importance on using land so as not to injure neighbors than did the common law.

Southern European countries, including Spain, had arid climates which required water use rules very different from common-law rules.  Spain and its colonies adopted an acequia system, allocating water more or less equitably among communities served by a particular stream.