A Public Service Message from the American Income Life Insurance Co.Waco, TexasBernard Rapoport, Chairman of the Board and Chief Executive Officer The Enduring Influence of Spanish and Mexican Law in the Southwest By Eugene R. Hill The American Income Life Insurance Company is pleased to present this revealing report by the Director of The National Hispanic Center for Advanced Studies and Policy Analysis, 255 East 14th St., Oakland, Calif. 94606. It is ironic that the Mexican-American population in the Southwest, having been guaranteed the protection of their rights and properties of the Spanish and Mexican Law by the Treaty of Guadalupe Hidalgo, have continually been victimized by the very laws that were supposed to protect them. Spanish and Mexican Law has endured to this day but seldom has it turned to the benefit of the descendents of the Spanish and Mexican settlers. There has been both conflict and accommodation in the Southwest United States because of the existence of two concurrent systems of law, Spanish Civil Law and English Common Law, merging into a third, our American Law. The historical roots of these systems are derived from Roman law first codified by Justinian in the Laws of The Twelve Tables in the 5th Century. Roman Law was incorporated into Spanish Law in the “Leyes de Las Siete Partidas” established in 1256-1263 and brought to the Americas by the Spanish in the “Leyes de Las Indias” which promulgated for the governance of the Spanish Colonies. Com munity property concepts were not a part of either English Common Law or Roman Law. This concept was brought to Spain by the Vis igoths. Today’s women’s liberation and Equal Rights Amendment proponents bitterly attack the feudal holdovers of English Common Law in our laws and constitution. Under the English Laws the wife was considered a mere chattel without a vested right in property, whereas Spanish Civil Law placed the wife more as an equal with the husband and as an equal in the accumulation of property. Law in the western states of Texas, New Mexico, Arizona, California, Nevada, and Idaho follows the community property system which was in effect in Mexico prior to their becoming part of the United States. Mexican Law continued to govern in the Southwest after the Mexican-American War and its use was upheld by the United States Supreme Court ruling that the Laws of the prior sovereign are the laws of the United States and the Courts must take judicial note of them until changed. Mexican Law was incorporated into American Law when Texas adopted its first Civil Code in 1871, thirty-one years after its separation from Mexico. The California Codes that went into effect in 1873, twenty-five years after the signing of the Treaty of Guadalupe Hidalgo in 1848, also substantially incorporated Mexican Law. Stephen J. Field, United States Supreme Court Justice, in a report to the Governor of California reported, “We found the Codes, as prepared by the Commissioners, and enacted by the Legislature, perfect in their analysis, admirable in their order and arrangement, and furnishing a complete Code of Laws; the first time we believe, that such a result has been achieved by any portion of the AngloSaxon or British races.” Of particular interest in the Southwest are the laws governing the use of water, because of the desert conditions necessitating extensive irriga tion. Mexican law was based on Spanish law which in turn had bene fited by the experience in irrigation that the Moors had brought to Spain during the 700 years of occupation. Irrigation and water distribution, riparian rights, surface waters, water courses, shore-line, and conservation were all within the experience and knowledge of the Moors and the Spanish and brought to the Southwest. Mining law in the United States is based on California mining laws. In 1783, a code of mining ordinances was proclaimed by the Viceroy of Mexico based on nearly 250 years of mining experience in Mexico. These codes were adopted by the California Legislature in 1851 and form the basis for all present federal law dealing with mining. Lea County in New Mexico has been known as the richest oil county in the United States, yet for years the refining and processing aspects of the industry have flourished more readily across the state line in Texas. The reason can be traced to the fact that there is no United States public ‘ domain in Texas. As part of the annexation agreement with the United States, Texas has its own land to the exclusion of the United States of America. More land in Texas came into private ownership, including oil lands, while in New Mexico the United States GovernMent declared millions of acres public domain, these now include oil lands on lease not in private ownership. Thus the oil interests in Texas were better able to fully develop their oil industry than those in New Mexico. The United States declared millions of acres of land in New Mexico and Colorado as public domain. ‘Manuel Ruiz, Jr., an internationally recognized attorney from Los Angeles, in his book, Mexican American Legal Heritage in the Southwest, states that: “In New Mexico, unlike California in 1851, there was no judicial commission created by our Federal Congress to settle private land claims of Mexicans. It was not until 1891, nearly forty years later that Congress enacted a bill similar to the California bill to establish a Court of Private Land Claims to settle real property titles in New Mexico, Arizona, Colorado, Nevada, Utah and Wyoming. During said interim of forty years, the United States Surveyor General was delegated the sole authority to adjudge which Mexican land titles should be recognized. Said presidential appointee made his recommendation as prosecutor, defender, judge and jury. If his recommendations upon a specific claim were adopted by the Federal Congress, a patent to land would be issued to the Mexican grantees or their assigns. There was no right of appeal. Of two hundred and two claims investigated and submitted to the Surveyor General, only forty-eight had been confirmed and patented by the 1885. No action was taken involving three hundred other claims. This left nearly thirty-five million acres of land privately claimed with consequent unsettled titles.” Thus in one way or another conflict and accommodation has continued to the present day in the application of the laws to every aspect of daily life in the west. Agribusiness dependent on water law brought by the Spanish; the mining industry based on Mexican Law; the oil industry in New Mexico and Texas and the issue of public domain; the community property settlements in divorce proceedings can trace this concept to the Visigoths that invaded Spain; and the loss of ancestral lands from the many descendents of the Spanish and Mexican settlers through the machinations of the courts, the Congress, State Legislatures and greedy politicians. One hundred and thirty-three years after the Treaty of Guadalupe Hidalgo guaranteed the rights and lands to the people of the Southwest, the only guarantees that endured were the laws. American Income Life Insurance Company EXECUTIVE OFFICES: P.O. BOX 208, WACO, TEXAS 76703, 817-772-3050 BERNARD RAPOPORT Chairman of the Board and Chief Executive Officer 14 DECEMBER 18, 1981
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