“To be a citizen of the United States in New Mexico, elevates the man to being virtually his own legislator This is a position not to be lightly esteemed. Those [native New Mexicans] who knowingly and willfully pushed it aside or trampled it under their own feet, … must place to their own charge their great loss. They should have estimated more justly the strength, progress, and justice of the government inviting their allegiance. [But] it is but truth and justice to say that many of those reputed to have made their election adverse to the US, are among the men of the highest standing, for intelligence, worth, and patriotism, in the territory.” - Justice Kirby Benedict, in Carter v. Territory (1859) (1 N.M. 317)
The Southwest is a showcase for the power of the common law. Hispanic civil law prevailed in the region throughout its time under Spanish rule (15__-1821) and Mexican rule (1821-46), but when Americans entered the region, Anglo-American common law quickly replaced civil law. The differences between the common law and civil law systems are extensive and complex, although the systems also have many points of similarity. Some of the most important differences are as follows:
| ![]() Las Siete Partidas (1555 ed.) - Courtesy Wikimedia Commons “To that system [common law] the world is indebted for whatever it enjoys of free government, of political and religious liberty, of untrammeled legislation, and unbought administration of justice … [Civil law is] based upon the crude laws of a rough, fierce people, whose passion was war, and whose lust, conquest. … We have conceded that the Civil Law has great merits, and displays great wisdom; but we have insisted that the Common Law is congenial with the Am character, and the character suited to the law.” - Report of the California Senate (1850)
“Be it enacted … that the Common Law of England (so far as it is not inconsistent with the Constitution or the acts of Congress now in force) shall, together with such acts be the rule of decision in this Republic, and shall continue in full force until altered or superseded by Congress.” - An Act to adopt the Common Law of England, to Repeal Certain Mexican Laws, and to Regulate the Marital Rights of Parties (Texas, 1840)
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EMPIRE OF LAWS - The Legal History of the 50 American States > 7. SOUTHWEST LEGAL HISTORY > 7.1 Southwest Legal History: The Frontier Era (1820-1875) >