From TSHA: SPANISH LAW

Despite adopting the common law in 1840, Spanish law was retained in a few areas in Texas' legal code. This is useful for 2306's look at criminal justice.

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As an outpost of the kingdom of New Spain, the province of Texas shared with Mexico the basic law of the parent sovereign, that of Castile. This law went essentially unchanged during the tumultuous fifteen years of Mexican Texas (1821–36), but after the Texas Revolution, the Republic of Texas adopted the law of England in preference to that of Spain. Three areas of law were excepted from the wholesale adoption of English law in Texas: certain procedural rules affecting trials, the law affecting land titles and certain water rights, and a large body of rules affecting family relationships.

. . . The Castilian principle of venue of lawsuits was also favored. Whereas the English rule was that a person was sued in the court of the locality where the facts giving rise to the dispute occurred, the Spanish rule required that a person be sued where he lived, for the convenience of the defendant.

. . . The Castilian tradition also provided a model for a system of probate administration that is much simpler than the English system. The Texas institution of an independent executor, seemingly modeled on the Castilian albacea universal, provides for great flexibility and reduced cost in probate practice.

. . . It is a basic rule of international law that when sovereignty changes, general law does not change until specifically altered by the new sovereign, and titles to land already acquired will not be interfered with. Hence, land-title law was not varied by the change from Mexican to Texan sovereignty except insofar as the previous holders of land who had espoused the Mexican cause had their lands declared forfeited. An anomalous result of continued application of the Spanish doctrine to land grants made before the act of January 20, 1840, and those made thereafter is that different rules may apply to adjacent tracts depending on the origin of the grant.

. . . The most significant residuum of Spanish law is in the area of family relationships. Adoption was unknown in English common law. Its comparatively early institution by statute in Texas (1850) is generally attributed to the Spanish legal tradition. The law of matrimonial property is also heavily influenced by the Spanish tradition. The Anglo-American frontiersman found the idea of common ownership of the gains of marriage between husband and wife much more agreeable to his society than common-law principles. Protection of certain land and tools of husbandry and trade from creditors' claims was also appealing to him, as opposed to the creditor-oriented rule of common law. This adoption of Hispano-Mexican principle has spread from Texas with varying degrees of liberality to other states. Texas law also followed the Hispanic model of allowing the husband to protect the home by giving him the right to kill his wife's paramour without punishment.

Texas adopts the English common law in 1840

From the Texas Slavery project

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"Untitled," Telegraph and Texas Register, April 8, 1840

An act to adopt the common law of England, to repeal certain Mexican laws, and to regulate the marital rights of parties.

SEC. 1. Be it enacted by the Senate and House of Representatives of the Republic of Texas, in Congress assembled, 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 repealed by congress.

SEC. 2 Be it further enacted, That all laws in force in this republic, prior to the first of September, one thousand eight hundred and thirty six (except the laws of the consultation and provisional government, now in force, and except such laws as relate exclusively to grants and the colonization of lands in the state of Coahuila and Texas, and also such laws as relate to the reservation of islands and lands, and also of salt lakes, licks and salt springs, mines and minerals of every description, made by the general and state governments) be, and the same are hereby repealed.

It goes on ....

Jamestown and the Common Law

I had a great spring break trip to Colonial Williamsburg, Virginia and popped over to Yorktown and Jamestown. Among the ruins in Jamestown -- the town was largely abandoned after the capitol moved to Williamsburg in the late 1600's -- is an old church where a variety of commemorative panels have been hung including this one that stated that the founding of Jamestown marked the introduction of the common law to America.

My 2302's will soon cover the judiciary and with it an overview of common law.