by Peter L Reich^*

(2015) Oxford U Comparative L Forum 1 at ouclf.law.ox.ac.uk | How to cite this article

I. Introduction

Does regime change result in legal change? To answer that question, this study considers whether the Second Mexican Empire, the French-imposed reign of Emperor Maximilian von Habsburg from 1863 to 1867, left a lasting effect on the law of Mexico despite successor governments’ disparagement of the foreign intervention. Previous scholars have already examined various aspects of Imperial legal history, including the impact of the Código Imperial (the Imperial Code) on the 1870 Código Civil (Civil Code), legislation, judicial power, religion, attitudes regarding law and the state, popular concepts of good government, and court administration.¹ As well, there have been regional studies of Imperial justice in the states of Querétaro and Durango.² But so far no historian has focused specifically on case law to gauge whether jurisprudence following the Empire’s defeat upheld or rejected judicial decisions from Maximilian’s era. As this study will show, courts sometimes overruled and sometimes sustained the Empire’s decisions, depending on whether the prior cases were essentially political or merely dealt with quotidian matters of debt, contract, or public records. For purposes of comparison, a brief section will discuss regime change and its legal effects in other societies—ancient Roman provinces, formerly French Canada, and formerly Mexican California—which also reveal a range of responses influenced by local conditions.

II. Methodology

Legal historians who use case law to reconstruct the evolution of doctrine and its application in practice typically analyze a series of court decisions in a particular jurisdiction and period. For example, Richard Morris produced a pioneering study showing that local cases involving property, family law, and torts in England’s North American colonies diverged from traditional common law in the seventeenth and eighteenth centuries.³ For the nineteenth century, Morton Horwitz examined how US state courts promoted emergent entrepreneurial interests, while Linda Arnold traced the Mexican Supreme Court’s delineation of government, private sector, and individual prerogatives, influencing the constitutional reforms of the 1850s.⁴ In addition, this last work illustrates the value of case law analyses even for investigating a civil law system such as Mexico’s in which judicial decisions do not ordinarily serve as precedent but may still affect subsequent judgments and legislation.⁵

Fortunately, the legal periodicals of the Restored Republic (1867-1876) and the Porfiriato (1876-1910) provide sources for such an analysis of post-Imperial Mexico. A number of federal and state court judgments were printed in El Derecho, published from 1868 through 1902, and in El Foro, covering 1873 through 1895. The editors did not include every case in the country, but reproduced a sufficient sample, particularly for Mexico City and its environs, to give us an idea of how law developed through actual decisions and not just through formal codes.

The eight cases decided between 1868 and 1900 which I selected from these journals let me assess the extent to which Imperial court judgments influenced jurisprudence well beyond the period of their issuance. Decisions were chosen if the periodicals indexed them in the category “actos del Imperio” (acts of the Empire), indicating that institutional or judicial judgments from Maximilian’s regime were being reviewed.⁶ If the prior cases were allowed to stand, they became part of the legal context of the Restored Republic and Porfiriato. I read original copies of El Derecho and El Foro in the Los Angeles County Law Library’s International Collection, supplemented by the partial facsimile reproductions now in print.⁷

III. Legal Periodicals and their view of the Empire

Perusal of these two journals reveals the impressive breadth of late-nineteenth-century legal talent and judicial topics. The long-lived El Derecho, subtitled Periódico de Jurisprudencia y Legislación and published by the Academía Mexicana de Jurisprudencia y Legislación from 1868 to 1897, continued under other management through 1902. Its contributors included conservative and liberal legal figures—academics, lawyers, and judges—such as Manuel Dublán, Luis Méndez, Isidro Montiel y Duarte, Viviano Beltrán, José María Linares, Vicente Riva Palacio, and Ignacio Vallarta.⁸ The periodical El Foro carried the same subtitle as did El Derecho and ran from 1873 through 1895. El Foro was originally edited by Pablo Macedo, Justo Sierra, Emilio Pardo, and Miguel Macedo; later Jacinto Pallares, Francisco Segura, José Yves Limantour and others took over. As in El Derecho, individuals of all ideological tendencies participated, although Limantour seems to have encouraged El Foro’s notable francophilia.⁹

Beyond their functions as compilers and disseminators of judicial decisions, editors of both journals published personal memoirs emphasizing the debt that the Código Civil of 1870 owed to the Empire.¹⁰ In 1873 attorney Luis Méndez sent a letter to El Foro’s editors detailing how he and the other compilers of the Código Civil began daily meetings in Mexico City in 1862 and continued them uninterrupted after the Juárez government’s 1863 flight from the capital, despite several commission members’ accepting positions in Maximilian’s regime.¹¹ According to Méndez, the Emperor “took a positive interest in everything related to the codification, and particularly in civil law. He wanted to revise and elevate the legal status of the commission’s proposals, and so often presided over the sessions.”¹² Thus the first two volumes of the Código Civil were released in 1866, while Maximilian was still on the throne.¹³

Two decades later Méndez referred again, this time in El Derecho, to “the requests made to the Commission by the Regency of the Empire, created and sustained by the forces of the Intervention in this early period, to facilitate the production of the Code, and how its first two volumes came to be revised and promulgated by the Emperor Maximilian.”¹⁴ The question remains whether the judgments printed in these journals reflect an even more profound and lasting Imperial influence on Mexican legal evolution than do the provisions of the Código Civil itself.

1. El Derecho

In 1869 El Derecho published summaries of three cases regarding the application of the recurso de nulidad (recourse of nullity, or appeal based on a lower court’s procedural error) to official acts of the Empire. All the decisions were judgments promulgated by the Tribunal Superior del Distrito Federal (Appellate Court of the Federal District), and interpreted statutes, principles of equity, or procedure to decide whether prior rulings should be upheld. In the first of these, the mortgage creditors of Marcos Falcón had obtained permission from the Imperial Council of State (Maximilian’s appointed civilian cabinet) to foreclose on a property belonging to Falcón without obtaining a court order. From references in the case to the Leyes de Desamortización (disentailment laws, or forced nationalization and sale of Catholic Church lands under the 1850s reform legislation), the lower courts considered that Falcón had bought a nationalized house at auction and that his creditors were in fact ecclesiastical representatives attempting to recapture it for the Church.¹⁵ The court now (1869) held that, according to an 1865 law passed by Juarez’s government (from exile in Chihuahua) nullifying Imperial acts contrary to the Reform Laws, the foreclosure should be invalidated and the home restored to Falcón, although his creditors could file their action again in the current judicial system.¹⁶

A second decision, based on equitable principles rather than statute, involved the Juarista general Antonio Carbajal, who had fled Mexico City in 1863 before the conquering French army. In that year Sebastián López had obtained a judgment against the general for 21,000 pesos, collected by seizing Carbajal’s house. But in 1867, when the general returned to the capital, the Juzgado Quinto de lo Civil (Fifth District Trial Court) refused enforcement, nullifying López’s judgment and citing the Roman aphorism: Absentia ejus qui Reipublicae causa abest, neque ei neque alii damnosa esse debet (absence in the service of the State should not prejudice anyone’s rights). Carbajal’s property was restored, and two years later the Tribunal Superior upheld the ruling of the lower court.¹⁷

Yet when neither a specific law nor a special circumstance inclined them to the contrary, post-Imperial judges tended to affirm prior decisions. In the third examined case the Tribunal Superior refused to apply the recurso de nulidad against an 1867 judgment from the Departamento del Valle (Del Valle Department, then just outside of Mexico City) in favor of creditor Lorenzo Hidalga against Juan Temple. In 1869 the Tribunal held that “the recurso de nulidad cannot be sustained without a finding of procedural error,” and thus left in place the previous holding.¹⁸

2. El Foro

El Foro’s issues reveal case law trends similar to those in El Derecho, displaying judicial interpretations of statutory language, equity, or other legal principles. In 1876 the Juzgado Sexto de lo Civil applied a statute to a complicated case in which an 1866 decision favored Manuel Alcocer, the holder of two disentailment notes (promissory notes given by the government in exchange for nationalized Church property). In the prior action Alcocer (probably acting for the Church as were the creditors in the Falcón case, above) had filed a foreclosure complaint against Anastasio Polo, the debtor and owner of a house he had purchased after a series of sales and mortgages. The Juzgado Sexto revoked the previous ruling of “the so-called judge of the third civil branch” on the ground that since the notes had already been redeemed, the foreclosure was an invalid attempt to evade the Reform Laws. Citing Article 4 of the Restored Republic’s Law of August 20, 1867, which specifically negated holdings contrary to the Reform Laws, the reviewing judge now held that “the acts of the usurper government are null even when judicial,” and dismissed the complaint against Polo.¹⁹ The decision’s significance lies not in the precise manner in which the Reform was maintained but in the fact that a relevant law existed which the court had to apply.²⁰

But not all laws of the Restored Republic that the courts cited aimed at dismantling the previous regime. According to a fire insurance contract signed by entrepreneur Fernando Mangard in 1865, he had to pay a forty-one-peso annual premium for a five-year term. When his business dissolved, Mangard no longer wanted to compensate any of his creditors, including the insurance company. In 1875 the Juzgado Tercero de lo Civil decided that, despite Mangard’s argument that the contract was formed under the authority of the “so-called imperial government,” his creditors could still recover what he owed them. The court applied Article 23 of the 1867 Ley de Revalidación (Revalidation Law), which stated that, save a very limited number of exceptions (irrelevant here), contracts from the Imperial era maintained their validity. Further, rules of corporations, such as insurance concerns, were to be considered still fully in force—despite their having originated under the Intervention.²¹

In another set of situations recorded in El Foro the courts did not base decisions on statutory law at all but, as in the Carbajal case above, applied equitable principles. José Antonio Ortiz, the son of Ignacio Ortiz, a Juarista cavalry captain killed in combat with the French in 1866, was receiving a monthly pension from the Restored Republic. An anonymous denunciation claimed that José Antonio was not the captain’s legitimate son, arguing that birth registrations in localities under the jurisdiction of the “so-called Empire” (in this case the town of Omitlán, Hidalgo) were invalid. Disagreeing with this allegation, the Tribunal Federal de Circuito de México (a federal appellate court in the state of Mexico) found it sufficient that José Antonio was descended from Ignacio for the former to have a pension right, and that the birth registration had been executed in front of an authorized official. Thus the son could continue collecting his monthly payment.²²

A final category concerns cases in which a supposed act of the Empire was mentioned, but was not essential to the result. One of these, in the Juzgado Sexto de lo Civil in 1878, dealt with some land parcels claimed by the family of Emperor Agustín de Iturbide (in power 1822-23) which had been confiscated when he violated the terms of his exile and returned to Mexico. The judge confirmed that the land had been forfeited, and added as another reason the fact that Maximilian had named Iturbide’s grandson a prince of the new imperial regime in a symbolic adoption.²³

Another case of this type involved the mortgage of a house in favor of a Catholic brotherhood, whose rights the court held extinguished after a forty-year prescriptive period and also by the 1859 nationalization of Church property. One of the property’s heirs had made a declaration of title “before the so-called Imperial government,” and the Tribunal de Circuito de México observed that this act was ineffectual because it had not taken place “before an incontestably legitimate authority.” The Tribunal never resolved the question of whether the declaration was in fact an “act of the Empire” because it had sufficient other reasons for its ruling that the mortgage was invalid (prescription and nationalization).²⁴ These decisions exemplify the anti-Imperial policy of the Restored Republic and the Porfiriato—to deny legal rights to those who had served or expressly recognized Maximilian’s regime, whether an official act of Empire was involved or not.²⁵

This selection of judicial holdings in El Derecho and El Foro shows that the courts were certainly willing to overrule acts of the Second Mexican Empire when a specific statute nullified them or in cases of inequities related to the war with the French. However, in decisions reflecting the day-to-day application of jurisprudence under different regimes, especially in ordinary matters such as debts, contracts, and birth registration, they maintained the prior government’s acts. In still other cases, if an Imperial act were not crucial to the resolution of the matter at hand, judges would skip profound analysis and indulge in the post-Intervention rhetoric of condemnation.

IV. Comparative Perspectives

Comparative historical examples of regime change and its legal consequences in other societies reveal patterns that sometimes duplicate and sometimes diverge from those of Mexico’s Second Empire, depending on contextual influences. Ancient Rome conquered varied provinces throughout the Mediterranean world and Europe, and had to decide the extent to which it would impose its own legal system on each.²⁶ According to historian Theodor Mommsen, the Roman Republic allowed many subjugated towns to retain their own courts and local laws, but the Empire later vitiated this system by permitting appeals to the Emperor.²⁷ On occasion the Romans granted complete internal legal autonomy, as they did in 70 BCE to Termessus, a town in Asia Minor that had become an essential military ally, declaring that “these Termessians […] shall enjoy their own laws.”²⁸ On the other hand, the remote province of Arabia (parts of modern Israel, Jordan, and Saudi Arabia) was completely subjected to Roman procedural and substantive law, even when litigation involved family property disputes among locals.²⁹ Still other times a hybrid approach was employed, as in a complex three-party water arbitration in Spain in which the Roman pleading structure was combined with the customary law of the relevant community.³⁰ Such flexibility enabled the Romans to adapt their legal system to a world empire woven together through conquests of diverse peoples requiring different degrees of control.³¹

The British takeover of French Canada after the Seven Years’ War (1756–63) provided the victor with a similar range of choices, although its approach to legal policy was far less systematic than that of the Romans.³² Parliament’s 1774 passage of the Quebec Act restored French civil law in that province, while reserving the right to make future alterations via ordinance.³³ In a hybrid reminiscent of Rome’s, the largely British judiciary applied common law to commercial and evidence questions while it retained French law in family and property matters.³⁴ The decades following the invasion produced little clarifying legislation, and the courts were slow to develop a uniform jurisprudence, sometimes using French, Roman, or English law, and even the idiosyncratic notions of individual judges.³⁵ Ultimately, statutes and case law became more consistent, particularly after Canadian independence in 1867, although Quebec and English-language Upper Canada would maintain separate legal subsystems within the larger nation.³⁶

A final example of the legal results of regime change can be found in the U.S. seizure of Mexico’s province of California following the war of 1846–48, the consequent mass-migration of new settlers into the region, and the clash between Hispanic civil law and American common law.³⁷ The 1848 Treaty of Guadalupe Hidalgo, ceding what is now the Southwest to the United States, also guaranteed that in the newly-acquired territories “property of every kind” belonging to present owners and their successors-in-interest “shall be inviolably respected.”³⁸ At the conquest California still followed the Spanish tradition of entailing municipal town lots to descendants of European colonists settled in the province since the late eighteenth century—a custom independent Mexico had modified in 1834 only enough to permit rentals.³⁹ When American-ruled San Francisco attempted to sell off municipal common lands (referred to as “pueblo” lands) in the 1850s, the California Supreme Court at first upheld the limitation; it then relaxed it in response to pressure from land speculators; still later, it prohibited such sales to satisfy public debts; and finally, in 1903, opened the floodgates for all former Hispanic cities to alienate their property.⁴⁰ A parallel process of privatization took place with mining rights: Spanish and Mexican law considered minerals to be owned by the sovereign, so California judges initially allowed public access to the subsurface, but by 1861 reversed themselves and granted private surface owners everything below their land.⁴¹ Water rights had also been shared among users under the prior regime, and although the state supreme court upheld this communal system at first, it ultimately granted Los Angeles exclusive ownership of the local river, characterizing the city’s claim as an absolute “pueblo right” held by Spanish municipalities despite a complete lack of historical evidence that such a form of property had ever existed.⁴² Thus in California, regime change resulted in reversal or distortion of the prior legal system, in contrast to Roman flexibility and Canadian eclecticism (or confusion).

V. Conclusion

The decisions we have examined amply demonstrate that many jurisprudential aspects of the “so-called Empire” persisted during the Restored Republic and the Porfiriato with no dramatic break. This consistency parallels the stability in political ideology and judicial administration which previous historians have found characteristic of the Empire and its aftermath.⁴³ Thus in nineteenth-century Mexico, the imposition of a foreign political regime did not change the course of legal development. However, as in other societies subjected to regime change, the post-Imperial Mexican courts engaged in a range of responses to prior cases depending on the nature of the case as political or practical. More continuity seems to have been present following the Second Empire than in ancient Rome, where regime change resulted in flexible hybridization; in Canada, where it caused legal conundrums for decades; and in California, where civil law was supplanted. To follow the approach of Morton Horwitz and determine whether doctrinal tendencies in these Mexican cases favored particular economic classes or social groups, which clearly happened in post-conquest California, we would need a broader and deeper study than that presented here. Nonetheless, comparative law scholars researching past and contemporary interventions, like those of the United States in Iraq and Afghanistan, may find the methodology and results of the current investigation useful.⁴⁴

IV. Endnotes

* Professor of Law and Sumner Scholar, Whittier Law School. JD, UC Berkeley; PhD (Modern Latin American History), UCLA. This article is a translated and substantially revised version of a 2011 lecture in Spanish to the Senate of Mexico, published as ‘El legado del Segundo Imperio Mexicano en las revistas de jurisprudencia, 1868-1900’ in Patricia Galeana (ed), El Imperio napoleónico y la monarquía en México (Siglo XXI 2012). The revision was presented as a paper at the 2013 American Society for Legal History Annual Meeting in Miami, Florida, and the author is grateful for the comments of Timothy M James, Georgina López González, Alejandro Mayagoitia, Pablo Mijangos, Erika Pani, María del Refugio González, and William Suárez-Potts, and the Roman law expertise of Cynthia Bannon and Claudia Moatti.

1 Rodolfo Batiza, ‘Código Civil del Imperio Mexicano’ (1981) 14 Boletín Mexicano de Derecho Comparado 571; María del Refugio González, El Derecho Civil en México, 1821–1871 103–106 (UNAM 1988); Angel Barroso Díaz, ‘Maximiliano legislador: algunas reflexiones sobre el Segundo Imperio’ in Memoria del II Congreso de Historia del Derecho Mexicano (UNAM 1981); Andrés Lira, ‘El Contencioso Administrativo y el Poder Judicial en México a mediados del XIX. Notas sobre la obra de Teodosio Lares’ in ibid; Jack A Dabbs, The French Army in Mexico, 1861–1867 230–37 (Mouton 1963); Patricia Galeana de Valadés, Las Relaciones Iglesia-Estado durante el Segundo Imperio (UNAM 1991); Erika Pani, Para mexicanizar el Segundo Imperio: El imaginario politico de los imperialistas (El Colegio de México 2001); Claudia Ceja Andrade, Al amparo del imperio: ideas y creencias sobre la justicia y el buen gobierno durante el Segundo Imperio Mexicano (UA Cd Juárez 2007); Georgina López González, La organización para la administración de la justicia ordinaria en el Segundo Imperio (El Colegio de México 2014).

2 Manuel Suárez Muñoz & Juan Ricardo Jiménez Gómez, Constitución y sociedad en la formación del estado de Querétaro, 1825-1929 139–44 (FCE 2000) 139–144; Tania Celiset Raigosa Gómez, ‘La administración de justicia en Durango (1857–1867)’ (2008) 20 Anuario Mexicano de Historia del Derecho 213.

3 Richard B. Morris, Studies in the History of American Law (2d edn, JM Mitchell 1959).

4 Morton J. Horwitz, The Transformation of American Law, 1780-1860 (Harvard UP 1977); Linda Arnold, Política y justicia: la Suprema Corte Mexicana (1824–1955) (UNAM 1996). It should be noted that a similar methodology applied to the same evidence need not yield the same result: Comparative law scholar Alan Watson revisited one set of the cases Horwitz studied, and concluded that judges did not transform traditional property law as much as the latter asserts. Alan Watson, The Evolution of Western Private Law, Expanded Edition (Johns Hopkins UP 2001) 169–191.

5 John Henry Merryman & Rogelio Pérez-Perdomo, The Civil Law Tradition (3d edn, 2006) 47, 83.

6 Official post-Imperial language often contains the derogatory designation “so-called Empire.”

7 El Derecho. Periódico de Jurisprudencia y Legislación, 1868–1897 (facsimile edn, Suprema Corte de Justicia de la Nación 2002); El Foro. Periódico de Jurisprudencia y Legislación, 1873–1876 (facsimile edn, Suprema Corte de Justicia de la Nación 2005).

8 Lucio Cabrera Acevedo & Lourdes Celis Salgado, ‘El Derecho, antecedente del Semanario Judicial de la Federación y los primeros amparos’ in 1 El Derecho x-xi.

9 Salvador Cárdenas Gutiérrez, ‘La cultura jurídica mexicana en el periódico El Foro’ in 1 El Foro xiii–xiv.

10 Rodolfo Batiza concludes from his comparison of the Código Imperial with the 1870 Código Civil and later codes that the former’s provisions comprise three quarters of the latter’s, and approximately half of the Código Civil of 1928. Batiza (n 1) 571–72.

11 Luis Méndez, ‘La verdad histórica sobre la formación del Código Civil’ El Foro (Mexico City, 26 June 1873) 73-74.

12 Luis Méndez, ‘La verdad histórica sobre la formación del Código Civil’ El Foro (Mexico City, 27 June 1873) 77.

13 ibid 78.

14 Luis Méndez, ‘Carta importante, noviembre 16 de 1894’ El Derecho (Mexico City, 8 January 1895) 7.

15 In November, 1863, after the original foreclosure permission to Falcón’s creditors, French commander Marshal Bazaine convinced Maximilian’s government to submit all disputes over nationalized properties to court adjudication, despite the arguments of Archbishop of Mexico Labastida, who feared that the judiciary would not side with Church-related holders of mortgage notes. Jan Bazant, Los bienes de la Iglesia en México (1856–1875) (El Colegio de México 1971) 278-82.

16 ‘Tribunal Superior del Distrito Federal. Segunda Sala. Marzo 22 de 1869’ El Derecho (Mexico City, 15 May 1869) 366–67. Regarding the statute cited by the Tribunal, see Circular del Ministerio de Justicia, Mayo 11 de 1865, Manuel Dublan y José María Lozano, IX Legislación Mexicana (Imprenta del Comercio 1878) 713–15.

17 ‘Recurso de Nulidad por Actuaciones durante el Imperio’ El Derecho (Mexico City, 6 November 1869) 295-98.

18 ‘Tribunal Superior del Distrito Federal. Primera Sala. Julio 6 de 1869’ El Derecho (Mexico City, 4 Sept. 1869) 152–53.

19 ‘Juzgado Sexto de lo Civil’ El Foro (Mexico City, 7 Sept. 1876) 190–91. See Revalida los actos judiciales del tiempo de la intervención y del imperio, Agosto 20 de 1867, Manuel Dublan y José María Lozano, X Legislación Mexicana (Imprenta del Comercio 1878) 62–65.

20 For a discussion of Church opposition to the judicial adjudication of disentailment notes on the ground that the courts would interfere with its policy of recovering nationalized property, see Bazant (n 14).

21 ‘Juzgado Tercero de lo Civil. Abril 26 de 1875’ El Foro (Mexico City, 13 May 1875) 341–42.

22 ‘Tribunal de Circuito de México’ El Foro (Mexico City, 30 Sept. 1886) 255–56.

23 ‘Juzgado Sexto de lo Civil’ El Foro (Mexico City, 29 Nov. 1878) 413–14.

24 ‘Tribunal de Circuito de México’ El Foro (Mexico City, 12 Feb. 1886) 106–07.

25 For a discussion of official and popular antagonism to active supporters of the Intervention, see Charles A. Hale, The Transformation of Liberalism in Late Nineteenth-Century Mexico (Princeton UP 1989) 100.

26 For a general discussion of Roman legal administration policies, see Jill Harries, ‘Law’ in Alessandro Barchiesi and Walter Scheidel (eds), The Oxford Handbook of Roman Studies (OUP 2010).

27 Theodor Mommsen, The Provinces of the Roman Empire from Ceasar to Diocletian (Macmillan 1909) 352.

28 ‘Antonian Law on the Autonomy of Greater Termessus,’ in Allan Chester Johnson, et al., (trs), Ancient Roman Statutes (Lawbook Exchange 2003). For a detailed exposition of this document, see J.L. Ferrary, ‘La Lex Antonia de Termessibus’ (1985) 63 Athenaeum 419.

29 G.W. Bowerstock, Roman Arabia (Harvard UP 1983) 78–79, 88.

30 J.S. Richardson, ‘The Tabula Contrebiensis: Roman Law in Spain in the Early First Century B.C.’ (1983) 73 Journal of Roman Studies 33, 38–39.

31 See Harries (n 26).

32 For a discussion of the various British ordinances and statutes prescribing a legal system for formerly French Canada, see Hilda Neatby, Quebec: The Revolutionary Age, 1760–1791 (McClennand & Stewart 1966).

33 An Act for Making more Effectual Provision for the Government of Quebec in North America, 1774, 14 Geo. III c 83. For a useful reprint, with contemporary materials and modern commentary, see Hilda Neatby, The Quebec Act: Protest and Policy (Prentice-Hall 1972).

34 Frederick Parker Walton, The Scope and Interpretation of the Civil Code of Lower Canada (Wilson & Lafleur 1907) 19–23. Arguably, foreign merchants expected to be governed by English commercial law, while family and property primarily involved locals.

35 F. Murray Greenwood, Legacies of Fear: Law and Politics in Quebec in the Era of the French Revolution (U Toronto Press 1993) 8–12; Evelyn Kolish, ‘The Impact of the Change in Legal Metropolis on the Development of Lower Canada’s Legal System: Judicial Chaos and Legislative Paralysis in the Civil Law, 1791–1838 (1988) 3 Canadian J L & Soc’y 1.

36 Michael Dorland and Maurice Charland, Law, Rhetoric, and Irony in the Formation of Canadian Civil Culture (U Toronto Press 2002) 111. In an interesting parallel to formerly French Quebec, the regime change in metropolitan France brought about by the Revolution of 1789 also produced chaotic legal results, at least initially. For a comparison of the 1793 reform law requiring paternal recognition of illegitimate children in order for the latter to receive support with judicial decisions ignoring the statute and awarding benefits, see Rachel G Fuchs, Contested Paternity: Constructing Families in Modern France (Johns Hopkins UP 2008) 34–41.

37 For the classic study of this conquest and its effects on the local inhabitants, see Leonard Pitt, Decline of the Californios: A Social History of the Spanish-Speaking Californians, 1846–1890 (U California Press 1966). For a recent update emphasizing Hispanic women’s legal agency in the face of economic dislocation, see Miroslava Chávez-García, Negotiating Conquest: Gender and Power in California, 1770s to 1980s (U Arizona Press 2004).

38 Treaty of Peace, Friendship, Limits, and Settlement with the Republic of Mexico, 1848, art. 8, 9 Stat. 922, 929-30 (US). For an analysis of legislation and jurisprudence broadly interpreting this provision, see Federico M Cheever, ‘Comment, A New Approach to Spanish and Mexican Land Grants and the Public Trust Provision: Defining the Property Interest Protected by the Treaty of Guadalupe Hidalgo (1986) 33 UCLA L Rev 1364.

39 Felipe de Neve, Reglamento para el gobierno de la provincial de Californias, 1781, título 14, arts 6–7 (Spain); Decree of Governor Figueroa Respecting Town Property, Municipal Taxes, etc., 1834, art 2 (Mex), in John W Dwinelle (tr) The Colonial History of the City of San Francisco (Towne & Bacon, 1867). Spain governed California from 1769 to 1821, and Mexico then ruled it until the US conquest in 1846. For a discussion of the restrictions on property alienation in the context of Hispanic public administration, see Francis F Guest, OFM, ‘Municipal Government in Spanish California’ (1967) 66 Cal Hist Q 309.

40 See, respectively, Woodworth v Fulton 1 Cal 295 (1850); Cohas v Raisin 3 Cal 443 (1853); Hart v Burnett 15 Cal 530 (1860); Monterey v Jacks 139 Cal 542 (1903). For an analysis of these cases post-conquest role in facilitating cities’ divestment of the public domain and creating private land monopolies, see Peter L Reich, ‘Dismantling the Pueblo: Hispanic Municipal Land Rights in California Since 1850,’ (2001) 45 Am J L Hist 353.

41 See, respectively, Hicks v Bell 3 Cal 219 (1853); Moore v Smaw and Frémont v Flower 17 Cal 199 (1861). For a discussion of American California’s transition from public to private mineral ownership, see Peter L Reich, ‘Western Courts and the Privatization of Hispanic Mineral Rights Since 1850: An Alchemy of Title,’ (1998) 23 Columbia J Envt’l L 57.

42 See, respectively, City of Los Angeles v Baldwin 53 Cal 469 (1879); Vernon Irrigation Co v City of Los Angeles 106 Cal 237 (1895). For an exploration of the cultural and economic context favoring judicial concentration of water ownership in large cities, see Peter L Reich, ‘Mission Revival Jurisprudence: State Courts and Hispanic Water Law Since 1850,’ (1994) 69 Washington L Rev 869.

43 See Galeana de Valadés (n 1); López González (n 1); Pani, (n 1).

44 For a discussion of the legal aspects of the US occupation of Iraq in the 2000s, especially attempts to investigate war crimes, reform the judiciary, and alter domestic law to conform with international standards, see Raid Juhi al-Saedi, ‘Regime Change and the Restoration of the Rule of Law in Iraq’ in Raul A “Pete” Pedrozo (ed), The War in Iraq: A Legal Analysis (Naval War College 2010); Eyal Benvenisti and Guy Keinan, ‘The Occupation of Iraq: A Reassessment’ in ibid.

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