The Clash Between Common Law and Civil Law
Von Schmidt v. Huntington – California, 1850 (1 Cal. 55); Christmas v. Smith – Texas, 1853 (10 Tex. 123); Leitensdorfer v. Webb – New Mexico, 1853 (1 N.M. 34); Chavez v. McKnight – New Mexico, 1857 (1 N.M. 147)
To
drop all the common law rules of procedure and commence a pilgrimage
through the ancient civil law for our guidance, would seem to result in a
mongrel mode of practice, unfavorable to the administration of justice
either upon common law principles or civil law principles.” – Judge John S. Watts, in Webb
“The
civil law is commended to our highest admiration by the humane regard
which it so justly and carefully maintains on behalf of the rights of
woman. In pursuance of its wise and just policy towards
the sex, it throws its panoply around the married woman to protect her
against injustice, tyranny, and aggression upon her rights on the part
of her husband.” – Judge Perry Brocchus, in Chavez The Kearny Code and the Howell Code
| ![]() General Philip Kearny - courtesy Library of Congress
![]() Map of Southwest (1862) - courtesy Geographicus Fine Antique Maps and Wikimedia Commons “Notwithstanding the importance which seems to be attached to the trial of conciliacion by Spanish and Mexican writers …, and even conceding that it may operate beneficially in the nations for which it was originally designed, still, amongst the American people it can be looked upon in no other light than as a useless and dilatory formality, unattended by a single profitable result, and not affecting the substantial justice of any case.” – Justice Nathaniel Bennett, in von Schmidt
“Courts of [New Mexico] are bound to be governed in their adjudications upon rights and liabilities by the Mexican laws as modified by statute, and by no other.” – Judge Benjamin Baker, in Webb
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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) > 7.1.1. Southwest Legal History (1820-1875): The Civil Law Tradition >