Before American territorial courts were established, what did law and justice look like in New Mexico under Spanish and later Mexican rule?

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Senior Justice Vigil: Before I answer, I want to give credit where it is due. Justice Charles Daniels used to give a lecture to incoming law clerks at the Supreme Court and the Court of Appeals on the territorial Supreme Court, and some of the stories I am sharing come from him. I owe him a great debt of gratitude. As one of his successors, I now occupy the same office he used in the Supreme Court.

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New Mexico began with Spanish colonization. In 1598, one of Spain’s northernmost provinces was established in Santa Fe, making it one of the oldest, if not the oldest, capital in the United States. Because of the great distance between Santa Fe and Mexico City, the administration of justice was largely local, with a community leader called the alcalde acting as judge. The idea of a local leader dispensing justice without formal legal training is therefore very old in New Mexico.

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In 1821, Mexico won independence from Spain and adopted its first constitution in 1824. That constitution was modeled on the United States Constitution. It embraced federalism, divided governmental power among executive, legislative, and judicial branches, and recognized equality before the law, the presumption of innocence, freedom of expression and of the press, and protection of private property. Even so, because of continuing conflicts between conservative and liberal factions in the new nation, the practice of local justice persisted despite constitutional provisions for a more elaborate court system and judicial review in distant Mexico City. 1

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Why was General Stephen W. Kearny’s arrival in Santa Fe in 1846 such a dramatic turning point?

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Senior Justice Vigil: It was very dramatic. Manifest Destiny cast its shadow over the territory, with President James K. Polk determined to take all of Mexico. He first annexed Texas into the United States in 1845, which led to war between Mexico and the United States. After declaring war, President Polk sent a strong military force led by Stephen W. Kearny from St. Louis to Santa Fe over the Santa Fe Trail.

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Justice Charles Daniels used to say the name was pronounced “Kearny,” although I still tend to say “Kearny” because that is what I am used to.

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Kearny took Las Vegas without firing a shot and then headed to Santa Fe. Governor Armijo sent a military force to stop him, but when Armijo saw the strength of the force coming against him, he told his men to disband and fled deep into Mexico. Kearny then took Santa Fe without a shot and raised the United States flag over the Palace of the Governors, which had been the seat of government for hundreds of years under Spain, Mexico, and now the United States.

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He set up quarters in the Palace of the Governors, but he needed a new government. He divided the territory into counties within a region that then included what is now New Mexico, Arizona, part of southern Colorado, and the southern tip of Nevada. Later territorial divisions would help produce the modern political geography of the Southwest. 1

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Why was the Kearny Code so foundational, and how did it reshape daily life and access to justice?

Senior Justice Vigil: Kearny needed laws. At the time, the old Mexican laws were being administered by the alcaldes, sometimes according to their own sense of justice and sometimes according to whim, but that system was very foreign to incoming American authorities. Two of the soldiers with Kearny’s army were lawyers from Missouri, and they had Missouri statutes in their saddlebags. With some changes, they copied key provisions from Missouri law and combined them with legal material from Mexico and Texas, and the Kearny Code was born.

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Even today, we can trace some of our statutes back to the Kearny Code and, through it, to Missouri law. In that sense, many modern New Mexico statutes were given their start there. A simple prohibition in an early code would evolve into later statutes and eventually into the more developed statutes we have now.

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This was an entirely new legal system, one that used the English language and American laws, forms, and procedures. There was no real place in that system for the old Hispanic legal order. That put Hispanic residents at a significant disadvantage, especially when it came to preserving land ownership, as later events would show.

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Kearny also needed courts. He established a three-person superior court to serve as the territory’s highest military tribunal, because the territory was then under military rule. Joab Houghton was the first chief judge, and Antonio José Otero and Charles Beaubien were the associate judges. Three judicial districts were set up: the First Judicial District in Santa Fe, where it remains today; the Second Judicial District in Bernalillo, which included Albuquerque and is still located there; and the Third Judicial District in Taos County, which was then a major settlement in the territory.

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Houghton, by the way, was not legally trained. In fact, none of them were. He was a dry goods merchant with a store on the Santa Fe Plaza. But merchants of that era were leading citizens. They brought goods across long distances, financed purchases, made loans, and occupied important civic roles.

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The territorial courts came to include the Supreme Court, district courts, probate courts, and justices of the peace. Each county had a probate court with jurisdiction over minor civil and criminal matters and exclusive jurisdiction over probate matters, while local justices of the peace sat in the towns and villages. “Justice of the peace” was indeed their official title. 1 2

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What do the larger-than-life stories about the early chief judges reveal about the early Territorial Supreme Court and the role judges played during that era?

 

Senior Justice Vigil: Let me begin with Chief Justice Houghton. A newspaper article in the Santa Fe Gazette criticized him for not knowing the law, because he was not a lawyer. Houghton considered the article slanderous and sent the reporter a note demanding either a full retraction or “satisfaction due from one gentleman to another.” In modern terms, that meant a duel.

The reporter refused to retract, and the two men met in an arroyo just outside Santa Fe. When the command to fire was given, Houghton did not hear it because he was hard of hearing. The reporter fired, and Houghton thought at first that he had merely been stung on the ear by a bee. Once he realized what had happened, he lifted his own gun to fire. He had one shot left; the reporter had none. The reporter then said, in effect, “Wait a minute—can we discuss this?” They did, and both men walked away alive and eventually died of natural causes.

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Those stories tell you something about the period. Judges had to ride circuit across a vast territory. They had no legal training. Precedent did not have the force it has today. In many ways, they were a rule of law unto themselves wherever they went.

After riding circuit during the year, the three judges would gather in Santa Fe and sit as the Supreme Court to hear appeals from the cases they had heard below. In other words, they reviewed their own decisions. Justice Daniels used to read from one of those opinions, in which a judge, using very florid language, carefully explained why the decision he had reached below was correct—and then affirmed it. No surprise there.

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That remained the basic structure through the territorial era until 1912. For roughly the first forty years, the same judges who tried the cases below sat together to decide the appeals. Later, when a fourth judicial district and a fourth justice were added, the system improved slightly: the judge who had tried the case would recuse, and the other three would decide their colleague’s case. Even then, the conflict-of-interest problem was obvious. 1

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Why is the Treaty of Guadalupe Hidalgo such an important legal turning point in New Mexico history?

 

Senior Justice Vigil: It is important for many reasons. The treaty officially ended the Mexican-American War. After Mexico fell in September 1847, Mexico surrendered to the United States and negotiations began. President Polk’s representative was Nicholas Trist, who had gone to Mexico City with General Winfield Scott. Polk recalled Trist in October 1847, but the message took weeks to arrive, and Mexico had already named its commission to negotiate peace. Trist therefore negotiated the treaty anyway, in defiance of Polk, because he did not want to lose the opportunity for peace.

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When the treaty was sent to Washington for Senate ratification, Polk strongly objected to Article 10, which clearly protected Mexican land grants. That article would have allowed people claiming land under Mexican grants to go back to the original grant, establish the validity of the claim under Mexican law and then American law, and have the land confirmed. But it was feared that such a provision would revive old Mexican grants and call into question land grants previously made by the Texas government.

The Senate ratified the treaty only after removing Article 10. Polk then told Trist to return to Mexico with the altered treaty and, if Mexico refused to accept it, the war could continue.

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The treaty was signed on February 2, 1848. The United States agreed to pay Mexico $15 million and assume up to $3.25 million in claims by United States citizens against the Mexican government. Mexico, in turn, ceded 55 percent of its territory to the United States, relinquished all claims to Texas, and recognized the Rio Grande as the boundary. The ceded territory included what is now New Mexico, California, Nevada, most of Arizona and Colorado, and parts of Oklahoma, Kansas, and Wyoming. With that cession, together with the Louisiana Purchase, Manifest Destiny was effectively realized from coast to coast.

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For the people of New Mexico, however, the greatest consequence was the disruption of land grants. Land titles were thrown into disarray, and many people suffered serious damage to long-held and rightful claims. The treaty also gave residents a choice: they could remain and become United States citizens or remain Mexican citizens. Most chose to become United States citizens, but not all did. 1

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When the three-person Superior Court created by Kearny came to an end, what replaced it, and how did the judiciary change?

 

Senior Justice Vigil: In 1851, New Mexico became an organized territory of the United States, and the Kearny government was replaced. The Superior Court became the Territorial Supreme Court, once again composed of three justices, but now appointed by the President of the United States. President Fillmore appointed Grafton Baker as the first chief justice, with Horace Maurer and John Watts as associate justices. These judges were every bit as colorful as their predecessors.

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Chief Justice Baker’s first case was a criminal case held in La Castrense Chapel on the south side of the Santa Fe Plaza, where the Overland Sheep Company stands today. The chapel had fallen into disuse, and the military was using it for storage and other purposes. Bishop Lamy, however, held title to the church and demanded that it be returned.

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One of the men summoned for jury duty was Donaciano Vigil, who asked to be excused because the building was sacred and because, as he put it, he would be treading on the ashes of his ancestors. In those days, families with means could pay to have loved ones buried beneath church floors. Many others objected as well.

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Baker was fond of drinking, and at one point he reportedly boasted to his drinking companions that the bishop ought to be hanged. That remark enraged people. An article appeared in the Santa Fe Gazette. More than 1,000 people signed a petition demanding that the chapel be returned immediately to the Catholic Church. A mob gathered outside the building, and later that night another mob gathered outside Baker’s home. The next day, the proceedings ended, the chapel was turned over to the bishop, and the court was moved to the Hall of the House of Representatives in the Palace of the Governors across the plaza. The chapel’s altar screen was later dismantled and, eventually, reinstalled at Cristo Rey Church on Canyon Road.

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Then there was Chief Justice Kirby Benedict, who was appointed chief justice in the 1850s by President James Buchanan. Before coming west, he had been a lawyer in Illinois riding circuit with Abraham Lincoln. They stayed in the same rooming houses, slept in the same beds, and traveled the circuit together trying cases. Benedict was extremely self-confident and thought of himself as a great gift to New Mexico. When he was criticized by a writer in the Santa Fe Gazette, he did not answer with a duel. Instead, he bought a rival newspaper, the Santa Fe New Mexican, which is still published today, and used it to publish editorials praising himself. The Gazette responded by mocking him relentlessly.

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Like many men of that era, Benedict had problems with both alcohol and guns, but alcohol was the larger problem. Stories circulated that he would become drunk and even pass out while presiding over trials. During the Civil War, a delegation from New Mexico went to Washington to urge President Lincoln to remove him because he was a drunk. Lincoln listened and reportedly replied that Benedict “may imbibe to excess,” but that Benedict drunk knew more law than all the other judges on the New Mexico bench sober. Lincoln left him in place. Only after Lincoln’s assassination and Andrew Johnson’s succession was Benedict removed. He then hung out his shingle and went back to work as a private lawyer in Santa Fe.

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He was followed by Chief Justice John Slough, who is better remembered as a Civil War general than as a judge. He was the commanding officer who helped defeat the Confederates at Glorieta Pass. Confederate Texans had already taken Mesilla, Socorro, Albuquerque, and Santa Fe and hoped to complete their takeover by moving to Las Vegas. Slough’s forces came down from Colorado. One of his officers had the idea of going over the mountains the night before battle and burning the Confederate supply wagons. Without supplies, the Confederates had to retreat and were eventually driven back toward El Paso. In that sense, Texas did not again try to take over New Mexico by military force.

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Slough also liked whiskey. One day, he went to the Exchange Hotel, now the La Fonda, for lunch and drinks and ran into a bitter rival, a lawyer and territorial legislator named William Rynerson. There was bad blood between them. They exchanged words, and Rynerson pulled a gun and shot Slough in the chest. Rynerson later said he thought Slough was reaching for the derringer he carried in his coat, though that never happened. Slough died there in the hotel lobby. Rynerson was indicted for murder, hired Kirby Benedict as his lawyer, and was acquitted on a claim of self-defense. Benedict then applied for Slough’s vacant seat on the Supreme Court, though he did not get it.

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Rynerson became famous for another reason as well: he later became the only district attorney to obtain a murder conviction against Billy the Kid. Billy the Kid had become notorious during the Lincoln County War. He was convicted for killing a sheriff, sentenced to hang, escaped from the Lincoln County Jail after getting a gun, killed two deputy sheriffs in the process, and went on the run. Sheriff Pat Garrett finally tracked him to Fort Sumner in eastern New Mexico and shot him there.

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As the territory and its population grew, Congress kept adding judicial districts and justices. Every time a district was added or split, another justice was brought onto the Supreme Court. By the early 1900s, New Mexico had seven judicial districts and seven justices, the largest Supreme Court the territory ever had or likely ever will have. 1 2

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When did the Court go from seven justices down to five?

 

Senior Justice Vigil: That came with the Constitution and statehood. New Mexico became a state in 1912, and that was a defining moment in the history of the state. The seven-member Territorial Supreme Court held its last session on January 10, 1912. A new State Supreme Court then came into being under the Constitution of 1912.

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There is a very interesting book called The Black Robe Justice, and it recounts the ceremonies marking the end of the territorial tribunal. Before the new justices took office, the judges-elect—Clarence J. Roberts, Frank Parker, and R. H. Hanna—drew lots to determine the lengths of their terms: four years, six years, and eight years. Roberts drew the shortest term and therefore became chief justice. A version of that seniority tradition has lingered even into modern times, even if it later took the form of coin flips rather than lots.

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The territorial court, by the way, left with no pending cases. It closed out its work and had published 1,007 cases in the New Mexico Reports during the territorial period. Clarence Roberts, Frank Parker, and Richard Hanna became the first three justices of the State Supreme Court. Roberts and Parker had also just come off the Territorial Supreme Court, and Roberts had helped write the judicial article of the state constitution. Later, when constitutional questions arose, he would sometimes say, in effect, “We wrote the constitution, and we knew what we meant.”

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Under Article VI, Section 10 of the 1912 Constitution, the legislature was given the authority, after the 1920 census, to increase the number of justices from three to five. It did so in 1929, adding Justices Charles C. Catron and John F. Sims. The New Mexico Supreme Court has remained a five-member court ever since, and changing that now would require a constitutional amendment.

One interesting institutional detail is that each seat on the Court has a kind of genealogy. A justice can trace the lineage of the seat now occupied back to the justice who first held it. I occupy the Hanna seat, so in that sense my seat goes back to one of the original three state justices from 1912. 1

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What is the history of the New Mexico Supreme Court building itself?

Senior Justice Vigil: You could give a talk on that building for an hour and a half, but I will keep it brief.

After La Castrense Chapel was returned to the bishop in 1851, the court moved into a room in the Palace of the Governors on the plaza, and it apparently stayed there until about 1885. It was cramped, shared space with other institutions, and was not well suited to judicial work.

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In 1885, a new capitol building was completed, and it included a Supreme Court courtroom. That capitol burned in May 1892. I have been told, though I have not independently verified it, that the court then moved into the federal courthouse near the Santa Fe Plaza, the building now known as the Santiago E. Campos Courthouse. The story is credible because those judges often occupied dual roles, and the courthouse had been constructed in stages over time. Nearby, what is now the post office was originally built as a prison.

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The capitol burned again in 1900, and the building now known as the Bataan Building was constructed. It also included a Supreme Court courtroom. But once again, the Court was cramped and forced to share space with the legislature and the governor. As the third branch of government, it was often pushed aside.

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In 1934, the Supreme Court Building Commission was created during the Roosevelt era as part of the Public Works Administration effort to stimulate the economy during the Depression. In 1937, the Supreme Court building was formally dedicated at a cost of $307,000. In addition to the Supreme Court, the building originally housed the law library, the Attorney General, and the State Treasurer. In the area now used by the Court of Appeals clerk’s office, there is still an enormous walk-in safe from the days when the State Treasurer occupied part of the building.

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The building remains, as I understand it, the only Public Works Administration project in New Mexico still being used for the purpose for which it was originally built. Artisans of that era created the unique chandeliers, the window leading in the courtroom, and the hand-carved woodwork. Even the door striker plates reflect that design program. Except for the carpeting and draperies, the courtroom looks much as it did in the 1930s.

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Unfortunately, we do not know the names of the artisans who made the chandeliers, the Zia symbols in the windows, or the carving above the bench that reads “Equal Justice for All.” The bench itself is very much at human scale. You do not have to crane your neck to look up at the justices. Lawyers and justices are close enough in that room to have a genuine conversation.

In 1942, a bronze tablet of Chief Justice Parker was installed on the second floor outside the law library, creating what is now called the Hall of Chief Justices. Today that hall contains portraits of the justices who have served as chief justice, and it is a very moving space. What had once been a long, empty corridor has become a place where the Court’s institutional memory is visibly present. 1

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Looking across the entire territorial period, from alcalde justice to the constitutional Supreme Court, what do you see as the most important legacy that period left to the judiciary we recognize today?

 

Senior Justice Vigil: I will answer that positively. I do not want to focus on the negatives.

What we learned is that the people of this vast, dry, difficult territory were in it together. By supporting each other and learning to live together, people from different cultures, backgrounds, and histories became a more cohesive people. The three major cultures—Anglo, Spanish, and Native American—coexisted. It was not easy, but they learned to survive together and eventually to live together under a rule of law.

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That, to me, is the major contribution of the territorial period. But it ultimately came not simply from law imposed from outside. It came from the people themselves choosing to embrace law as something that governed their lives. 1

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Would you share the story of Donaciano Vigil and his connection to this history?

 

Senior Justice Vigil: Donaciano Vigil was one of the soldiers Governor Armijo effectively told to disband and go home because the military force coming against them was overwhelming. He was also one of my ancestors. He was born in Santa Fe in 1802 and served in the Santa Fe militia, rising from private to captain and company commander. He fought against the Texas-Santa Fe Expedition of 1841, which was an unsuccessful attempt to annex the eastern half of New Mexico to Texas. He was also among the forces mobilized to resist General Kearny in 1846, though he was disbanded under protest after Armijo’s order.

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Kearny later offered him the position of secretary of the territorial civil government under Governor Charles Bent, the first governor of New Mexico under American rule. When a rebellion by Mexican loyalists was being planned in 1846, the plan became known to Vigil through Doña Tules, who owned Santa Fe’s largest gambling house in Burro Alley. She was a major local figure, and although she also ran a house of ill repute across the street, she was still a leading citizen in the life of the city and was involved in many activities that benefited poor people in Santa Fe.

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In January 1847, Governor Bent was killed by Hispanic and Taos rebels at the beginning of what we now call the Taos Revolt. One of the rebels, Antonio Maria Trujillo, was later tried before Judge Houghton. Houghton imposed what Vigil described as the only sentence of its kind in New Mexico history: a sentence for treason against the United States in the territory of New Mexico.

After Bent was killed, Vigil was asked to serve as acting governor, and he was formally appointed governor in December 1847. In 1848, Colonel John M. Washington arrived and took charge as both civil and military governor, after which Vigil returned to his former position as territorial secretary. He remained there until 1851, when the government of New Mexico was reorganized.

His house still stands in Santa Fe. Near the Guadalupe Church, on Alto Street, there is a house with an old Spanish gate and a plaque identifying it as Donaciano Vigil’s house. His portrait also hangs outside the governor’s office in Santa Fe.

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Doña Tules also connects to another legal lineage. One of her adopted daughters, Petra Gutierrez, married James M. Giddings, who had arrived in Santa Fe in the 1830s and became one of Doña Tules’s trusted associates. He handled shipments of her gold along the Santa Fe Trail and later became clerk of the probate court in Santa Fe. He also served as clerk of the New Mexico House of Representatives and clerk of the Supreme Court from 1852 to 1854. Judge Santiago Campos, for whom the federal courthouse is named, is the great-grandson of James Giddings. That is one example of how small and interconnected this world can be. 1

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After looking at the Court’s long history, what remains the Supreme Court’s most important responsibility in protecting the rule of law today?

 

Senior Justice Vigil: First and foremost, it is to enforce the rule of law without fear in the State of New Mexico. By that, I mean the Court should not contribute to the extreme partisanship and divisions that exist in the country and in New Mexico today. We should be a unifying court rather than one that divides the people of the state.

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You can do that only, I think, by enforcing the same rule of law for everyone—not one law for a privileged group and another for a disadvantaged group, but the same law for all people regardless of background, political belief, or wealth. 1

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How has your understanding of judicial independence evolved through your years on the bench?

 

Senior Justice Vigil: Let me go back to 1912, which was before my time. When the constitution was being written, the Republican Party dominated politics and government in New Mexico. But people were strongly opposed to appointed judges because, under the territorial system, the President appointed all the judges and the people of New Mexico had no say in who those judges were. As a result, the framers were determined to have elected judges.

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At first, the idea was to have nonpartisan elections. But the Republicans were so confident that they would stay in power that they chose contested partisan elections for all judges instead. That became the tradition.

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Our system has since been modified with nominating commissions, gubernatorial appointments, retention elections, and partisan elections in some circumstances. I myself was appointed to the Court of Appeals and then had to run in the next partisan election. I won, but the experience left me firmly convinced that partisan politics have no proper role in judging or in what judges and justices do.

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If it were up to me, I would streamline and improve the nominating commission process, improve the governor’s appointment process—perhaps with some role for the judiciary—and keep retention elections. I do think the people of New Mexico should have a voice in whether a judge remains on the bench. But as for partisan political elections, to me they are like water and oil. If I had my way, I would do away with electing judges in partisan elections at any level of the courts. 1

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What does it mean to maintain public trust while remaining faithful to the law, regardless of public pressure?

 

Senior Justice Vigil: One of the promises you make in the oath of office is to administer the rule of law impartially. But all of us are shaped by how we were raised and by the experiences that formed us. That means every judge carries biases and prejudices.

The way I have dealt with that dilemma is to try to put my own bias and prejudice on the table in front of me, look it in the eye, and ask whether it is trying to decide the case for me regardless of the merits. The moment I think that is happening, it is time either to recuse or to put that bias aside. Humanly speaking, that is the best we can do.

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On an appellate court, collegiality also matters. On the Court of Appeals, where panels of three hear cases, and on the Supreme Court, where all five justices participate, your colleagues’ views can serve as a check on your own. They can persuade you to change your mind. That has happened to me, and that process is extremely valuable.

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Whether a decision is popular or unpopular should make no difference except to the extent that public reaction may tempt a judge’s own bias. The law and the merits have to govern. 

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When you reflect on the legacy of the New Mexico Supreme Court, what do you hope endures for future generations of lawyers, judges, citizens, and other legal professionals?

 

Senior Justice Vigil: I go back to what I said earlier about the territorial era. People from different cultures and different ways of life became a people who could work together. That is what I hope endures.

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I hope the legacy of the New Mexico Supreme Court is that it helps bring people together—not necessarily to like each other, but to respect each other. By promoting the rule of law, and by promoting respect for the rule of law, the Court can help promote respect among people in their work, in their schools, on the street, and in their lives. That is what I hope lasts.