Citation
Hispanic heritage and the law in the Southwest

Material Information

Title:
Hispanic heritage and the law in the Southwest
Series Title:
This week in history
Creator:
Castro, Richard T.
Place of Publication:
Denver, CO
Publisher:
Richard T. Castron
Publication Date:
Language:
English

Record Information

Source Institution:
Auraria Library
Holding Location:
Auraria Library
Rights Management:
Copyright [name of copyright holder or Creator or Publisher as appropriate]. Permission granted to University of Colorado Denver to digitize and display this item for non-profit research and educational purposes. Any reuse of this item in excess of fair use or other copyright exemptions requires permission of the copyright holder.

Downloads

This item has the following downloads:


Full Text
This Week In History
Hispanic Heritage And The Law In The Southwest
by
Richard Castro
The Southwest, Louisiana and Florida are the only parts of the present day United States that were not lawless wilderness when the first Anglo-American pioneers arrived. When the Anglos arrived they found a
fully developed legal structure in this region patterned after the
European model. This was the result of three centuries of Spanish
exploration, settlement and development.
From the time of Juan de Onate in 1598, to the turn of the 20th century, ranching,’' farming and mining were the principal pursuits of settlers in the Southwest.
When the United States took control of the Southwest following the Mexican War in 1848, they simply adopted the legislation already on record. For example, Teodoro de Croix, commendant-general of the Provincias Internas (as the Spaniards of the late eighteenth century designated the area), issued a decree in 1778 stating that a registry of brands would be kept in every province so that ranchers would know their property and be able to prove legal title to it.
In farming, the arid reaches of the area demanded stringent rules regarding water and its use. The Spanish settlers applied a rule known as "prior appropriation." This principle has been adopted by almost every Western state in the United States.


2
In mining, few large discoveries were made during the 16001s to the middle 1800's when the Spanish were settling the region. But with the gold rush to California in the late 1840‘s, among the first to arrive were miners from Sonora, who brought with them not only Spanish mining techniques but also Spanish practices regarding claims, their sizes, and their registration. The forty-niners found these rules useful and adopted them in the back country where neither federal nor state nor
territorial law enforcement officials ventured.
Beyond these economic aspects of life in the Southwest, the Spaniards also evolved a complicated criminal code. Although this part of their law did not have the impact on Anglo-American frontiersmen that their economic regulations did, it did influence subsequent legal codes and
provided a continuity between Mexican and American rule in Texas, New Mexico, Arizona, and California.
American pioneers first came into contact with the Spanish legal system in Texas, which was colonized in the early 18201s under the laws
-*N
of Mexico. That the Texans found this code acceptable is shown by the
fact that they lived in peace under its provisions for more than a decade. They rebelled only when Anotnio Lopez de Santa Anna unsurped the powers of a dictator and became a law unto himself. While the revolution was in progress, the Texans drafted a republican form of government similar
to that of the United States. That constitution stipulated that "Congress shall, as early as practicable, introduce, by statute, the common law of England, with such modifications as our circumstances, in their judge-


3
ment, may require." Accordingly, when the first Texas congress met in the fall of 1836 and enacted a legal code, it was mostly English and
American in origin. In the realm of water law, ranching regulations,
and mineral rights, however, it contained definite evidences of the Spanish-Mexican heritage.
Next to come under American jurisdiction was New Mexico. Shortly
after the outbreak of the Mexican War, Stephen Watts Kearny marched from Missouri with his "Army of the West," capturing Santa Fe without firing a shot. On September 22, 1846, Kearny issued governmental regulations
for the conquered area. This came to be known as the Kearny Code, although its true authors were William P. Hall and Colonel A. W. Doniphan. The system, according to Kearny's own statement, came partly from the existing laws of New Mexico, partly from the laws of Missouri, and to . a lesser extent from the laws of Texas and Coahuila. It guaranteed New Mexicans freedom of religion, recognized their land titles and gave them full rights of American citizenship. In addition, most local officials were left in office under its provisions. Later, after territorial status was achieved in New Mexico, the legislature authorized a compilation of the laws of the territory. This task was entrusted to Judge James J. Deavenport, an associate justice of the territorial supreme court. When his work was completed in 1856, it was adopted under the name "Revised Statutes of the Territory of New Mexico." As in Texas, the code carried forward many of the provisions of Spanish law.
In California, the first American military commander during the


4
Mexican War, Commodore J. D. Stoat, landed at Monterey on July 7, 1846, and promised quick civil government. Commodore , Robert F. Stockton, who replaced Sloat as commander of the American Navy's Pacific Squadron, reiterated this promise three weeks later and encouraged alcaldes and other local officials to stay at their posts. When Kearny arrived and assumed control of the province in March, 1847, he issued a "Proclamation to the People of California," which declared, "The laws now in existence and not in conflict with the Constitution of the U.S. will be continued.
. . ." This meant that the bulk of Spanish-Mexican law remained in force.
Military government continued in California until statehood in September, 1850. Because it did not provide the amount of self-government to which both the American frontiersman and the Mexican Californio were accustomed, this system resulted in bitter disillusionment. Had not the distractions of the gold rush intervened, the resentment might have burst into full revolt. The first California legislative session after statehood (known as the "Legislature of a Thousand Drinks" because it adjourned so frequently ror liquid refreshment) did manage to enact a code of laws based on the better parts of both Spanish and American legal heritages.
The last area of the Southwest to come under formal American organization was Arizona. For fifteen years after the Treaty of Guadalupe Hidalgo was signed in 1848, Arizona was part of New Mexico and governed loosely by its laws. It became a separate territory in 1863, and in the following year the territorial governor, John N. Goodwin, proclaimed American civil law. But the New Mexican code continued in force until


5
the first legislature convened in the fall and enacted a set of laws compiled by Associate Justice William T. Howell. Based largely on the laws of Michigan and California, the Howell code was extensively rewritten by the legislature to conform with conditions within the territory. This, of course, meant that the legisla-tors inserted many provisions stemming from Spanish law, including the same economic regulations that Texas, New Mexico, and California had adopted. The code also stressed the community property rights of women, which distinctively differentiate the Spanish heritage from the English.
Thus, almost immediately after coming under American jurisdiction, the states and territories of the Southwest had laws and codes that were patterned after Spanish and Mexican Law. When we reminisce of the many Hispanic contributions to our nation, let us also remember those in the area of law which also played a major role in the shaping of our country.

* * * *


Full Text

PAGE 1

This Week In History Hispanic Heritage And The Law In The Southwest by Richard Castro The Southwest, Louisiana and Florida are the only parts of the present day United States that were not lawless wilderness when the first Anglo-American pioneers arrived. When the Anglos arrived they found a fully developed legal structure in this region patterned after the European mode 1. This was the result of three centuries of Spanish exploration, settlement and development. From the time of Juan de Onate in 1598, to the turn of the 20th century, ranching, farming and mining were the principal pursuits of settlers in the Southwest. When the United States took control of the Southwest following the Mexican War in 1848, they simply adopted the legislation a l ready on record. For e xam.p 1 e, Teodoro de Croi x , commendant-genera 1 of the Provincias Internas (as the Spaniards of the late eighteenth century designated the area), issued a decree in 1778 stating that a registry of brands would be kept in every province so that ranchers would know their property and be able to prove legal title to it. In farming, the arid reaches of the area demanded stringent rules regarding water and its use. The Spanish settlers applied a rule known as 11prior appropriation.11 This principle has been adopted by almost every Western state in the United States.

PAGE 2

2 In mining, few large discoveries were made during the 1600's to the middle 1800's when the Spanish were settling the region. But with the gold rush to California in the late 1840's, among the first to arrive were miners from Sonora, who brought with them not only Spanish mining techniques but also Spanish practices regarding claims, their sizes, and their registration. The forty-n i ners found these ru 1 es usefu 1 and adopted them in the back country where neither federal nor state nor territorial law enforcement officials ventured. Beyond these economic aspects of life in the Southwest, the Spaniards also evolved a complicated criminal code. Although this part of their 1 aw did not have the impact on Anglo-American fronti that their economic did, it did influence subsequent legal codes and provided a continuity between Mexican and American rule in Texas, New Mexico, Arizona, and California. American rioneers firs+. came into contc .ct with the Spanish legal system in Texas, which was colonized in the early 1820's under the laws of Mexico. That the Texans found this code acceptable is shown by the fact that they lived in peace under its provisions for more than a decade. They rebelled only when Anotnio Lopez de Santa Anna unsurped the powers of a dictator and became a law unto himself. While the revolution was in progress, the Texans drafted a republican form of government simi 1 ar to that of the United States. That constitution stipulated that "Congress shall, as early as practicable, introduce, by statute, the common law of England, with such modifications as our circumstances, in their judge-

PAGE 3

3 ment, may require. 11 Accordingly, when the first Texas congress met in the fall of 1836 and enacted a legal code, it was mostly English and American in origin. In the realm of water law, ranching regulations, and mi nera 1 rights, however, it contained definite evidences of the Spanish-Mexican heritage. Next to come under American jurisdiction was New Mexico. Shortly after the outbreak of the Mexican War, Stephen Watts Kearny marched from Missouri with his 11Army of the West,11 capturing Santa Fe without firing a shot. On September 22, 1846, Kearny issued governmental regulations for the conquered area. This came to be known as the Kearny Code, although its true authors were William P. Hall and Colonel A. W. Doniphan. The system, accord . ing to Kearny1s own statement, came partly from the existing laws of New Mexico, partly from the laws of Missouri, and to a lesser extent from the laws of Texas and Coahuila. It guaranteed New Mexicans freedom of religion, recognized their land titles and gave them full rights of American citi?enship. In 'l.ddition, most local ')fficials were left in office under its provisions. Later, after territorial status was achieved in New Mexico, the legislature authorized a compilation of the 1 aws of the terri tory. This task was entrusted to Judge James J. Deavenport, an associate justice of the territorial supreme court. When his work was completed in 1856, it was adopted under the name 11Revised Statutes of the Territory of New Mexic0.11 As in Texas, the code carried forward many of the provisions of Spanish law. In California, the first American military commander during the

PAGE 4

4 Mexican War, Commodore J. D. Sloat, landed at Monterey on July 7, 1846, and promised quick civil government. Commodore .Robert F. Stockton, who replaced Sloat as commander of the American Navy's Pacific Squadron, reiterated this promise three weeks later and encouraged alcaldes and other local officials to stay at their posts. When Kearny arrived and assumed control of the province in March, 1847, he issued a "Pro c lamation to the People of California," which declared, "The laws now in existence and not in conflict with the Constitution of the U.S. will be continued. II This meant that the bulk of Spanish-Mexican law remained in force. Military government continued in California until statehood in September, 1850. Because it did not provide the amount of self-government to which both the American frontiersman and the Mexican Cal ifornio were accustomed, this system resulted in bitter disillusionment. Had not the distractions of the gold rush intervened, the resentment might have burst into full revolt. The first California legislative session after statehood (known as the "Legislature of a Thousand Drinks" because it ctdjc,urn-=d so ft equently r.or 1 i quid refreshment) did to enact a code of laws based on the better parts of both Spanish and American legal . _.., heritages. The last area of the Southwest to come under formal American organization was Arizona. For fifteen year? after the Treaty of Guadalupe Hidalgo was signed in 1848, Arizona was part of New Mexico and governed loosely by its laws. It became a separate territory in 1863, and in the following year the territorial governor, John N. Goodwin, proclaimed A me r i can c i v i 1 1 a w . But the New Mexican code continued in force until

PAGE 5

5 the first legislature convened in the fall and enacted a set of laws compiled by Associate Justice William T. Howell. Based largely on the laws of Michigan and California, the Howell code was extensively rewritten by the legislature to conform with conditions within the territory. This, of course, meant . that the legisla-tors inserted many provisions stemming from Spanish law, including the same economic that Texas, New Me xi co, and Ca 1 i forni a had adopted. The code a 1 so stressed the community property rights of women, which distinctively differentiate the Spanish heritage from the English. Thus, almost immediately after coming under American jurisdiction, the states and territories of the Southwest had laws and codes that were patterned after Spanish and Mexican Law. When we reminisce of the many Hispanic contributions to our nation, let us also remember those in the area of law which also played a major role in the shaping of our country. * * * *