7.1.2 Southwest Legal History (1820-1875): The Clash Between Common Law and Civil Law

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)


  • Unlike Louisiana, which had a substantial population and a well-established civil law system when it was acquired by the United States, California and Texas were thinly settled and had a history of resistance to Spanish and Mexican authority.  Accordingly, the common law displaced the more shallow-rooted civil law systems of the Southwest with relative ease. 
  • The Republic of Texas’s 1836 constitution directed the legislature to adopt a common law system “with such modifications as our circumstances … may require,” and in 1840, the legislature did so.  At statehood in 1850, California’s legislature followed suit after a legislative committee issued a report portraying civil law as an emblem of Spanish and Mexican decay and portraying the common law as part of America’s mission to show the world that democracy could work on a continental scale.  California’s supreme court echoed this sentiment in Von Schmidt:  it rejected Mexican California’s practice of requiring people to try to resolve disputes through “conciliacion” (informal mediation) before going to court.  Even though “conciliacion” had worked well in the past, it played no role in American legal systems, and in the court’s eyes that was enough to kill it.  

  • New Mexico, which had been settled longest, was most protective of civil law. Its territorial supreme court gave civil law an important boost by holding in the Webb case  (by a 2-1 vote) that unlike other parts of the Southwest, New Mexico would retain civil law unless the territorial legislature or Congress explicitly replaced it with common law.  
    • The Southwest also retained the Mexican community property system governing spouses’ property rights.  California adopted the system with virtually no change; Texas applied community property principles to all property except land and slaves.  Texas Chief Justice John Hemphill, who admired many aspects of civil law, interpreted it to benefit Texas women.  In Christmas, he held that unlike the common law, which allowed a husband’s creditors to take property the wife brought to the marriage, such property was exempt from creditors’ clutches under Texas law.  New Mexico’s court also praised the advantages of civil law for married women in Chavez. 
    • New Mexico retained most components of Hispanic water-rights law, which was profoundly different from its common-law counterpart (see below).  This was largely a matter of necessity:  most of the Southwest was arid, thus use of the acequia system principles of prior appropriation sharing rather than common-law principles of limiting water rights unfettered ownership was a simple matter of survival. 
    • Texas, whose early settlers located in areas with ample rainfall, adopted riparian rights, but as the drier western part of the state filled up, lawmakers gradually moved toward a hybrid riparian and acequia system.  California miners adopted a practice of “prior appropriation,” allowing early users of a stream to take as much of the water as they wanted, whether or not they were owners, provided they returned to the stream any water they did not consume.  This system benefited large mining companies at the expense of individual miners and farmers; thus, California, like Texas, moved after much struggle to a hybrid system.
     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


     Philip Kearny, 1814-1862
    General Philip Kearny - courtesy Library of Congress
    File:1862 Johnson Map of California, Nevada, Utah, Colorado, New Mexico and Arizona - Geographicus - CANMUT-johnson-1862.jpg

    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