7.1.1. Southwest Legal History (1820-1875): The Civil Law Tradition

“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:



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 13th and 14th 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.  




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)