Ericson, J E

Winston, Mary P

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East Texas Historical JournalVolume 2 | Issue 1 Article 72-1964Civil Law and Common Law in Early TexasJ E. EricsonMary P. WinstonFollow this and additional works at: http://scholarworks.sfasu.edu/ethjPart of the United States History CommonsTell us how this article helped you.This Article is brought to you for free and open access by SFA ScholarWorks. It has been accepted for inclusion in East Texas Historical Journal by anauthorized administrator of SFA ScholarWorks. For more information, please contact cdsscholarworks@sfasu.edu.Recommended CitationEricson, J E. and Winston, Mary P. (1964) "Civil Law and Common Law in Early Texas," East Texas Historical Journal: Vol. 2: Iss. 1,Article 7.Available at: http://scholarworks.sfasu.edu/ethj/vol2/iss1/726 East Texas Historical JournalCIVIL LAW AND COMMON LAW IN EARLY TEXASJ. E. ERICSON and MARY P. WINSTONSome of the most significant development.s in Texas legal history oc-curred during the period of the Republic of Texas. One of them, theblending of the civil law systems of Spain and France with the commonlaw system of Anglo-America, produced a unique legal system peculiart.o Texas. The Spanish civil law evolved from the grafting of Roman law,principally the Justinian Code, upon the customs and usages of the Visi-goths as codified in the Codex Eurici. This draft, the Visigothic Code(Fuero Juzgo), issued in Castilian form in 693, withstood seven centuriesof Moorish rule and six revisions, the latest in 1805 (the Novisima Recopi-lacion). It remained the law of the Spanish world through the middleages and, in large measure, to the time of Spanish colonization of Texasin the Seventeenth Century.1 It was transmitted to Texas during morethan a century of Spanish colonial government and administration underthe general direction of the Leyes de los Reino!; de las Indias,2 and morethan a decade of Mexican rule.The French civil law also evolved from the Roman codes, principallythe Institutes of Gaius and Justinian; from the glosses of such Frenchcommentators as Domat, Pothier, and D'Aquesseau; from Frankish cus-toms and usages, especially those of the north of France; and from deci-sions of the parle1'nent of Paris. From those sources a Napoleonic com-mission promulgated the Code Civil in 1814; and from those same sourcesFrench settlers in Louisiana evolved their civil codes.3 After the LouisianaPurchase the United States generously allowed the people of Louisiana toretain their codes, and as a result many Texans, immigrants from theLouisiana territory, were thoroughly familiar with their contents.The English common law developed from custom and usage throughthe work of the common law courts of Exchequer, Common Pleas, andKing's Bench. Though influenced slightly by Roman law from time totime, it was never codified; but in later times it was supplemented by leg-islation enacted by the British Parliament. The common law was broughtto the United States by British settlers, primarily in the form of Black-stone's Commentaries. It was transmitted to Texas after 1820 throughthe agency of lawyers trained in its precepts in the American states of theOld Southwest.'Since it is almost universally conceded that private rights of individualst:nder the law of a previous sovereignty remain unchanged and unaffectedunless they are abrogated or altered by positive action of the ncw sov-Eereignty,5 the preservation of the civil law in Texas did not depend upona positive statement to that effect by the new governments created afterthe Revolution. The Consultation of 1835, however, resolved all doubtson November 7 by a vote to retain the existing legal system.6 Moreover,the Ordinance Establishing a Provisional Government provided that judgesof Texas had jurisdiction over all crimes and misdemeanors recognized andknown to the common law of England, that they could issue writs of habeasEast Texas Historical Journal 27corpus under the common law of England, that they could issue writs ofsequestrations, attachment, or arrest in all cases established by the CivilCode and the Code of Practice of the State of Louisiana, and that theyshould follow the proceedings of the common law in criminal cases.7 Thus,as early as 1835, Texans began the arduous attempt to blend the two basiclegal systems into a coherent whole suited to Texas circumstances.The Constitutional Convention of 1836, although composed almost ex-clusively of Anglo-Americans, recognized the necessity of continuing someelements of the old system; for the Constitution of 1836 provided that allelements of the civil law were to be retained except those in conflict withthe constitution, but the English common law should be introduced by stat-ute as early as practicable.8 As a former President of the State Bar ofTexas has shrewdly observed:It is significant that the idea of ultimately adopting the commonlaw of England was qualified as to time and as to extent. It wasto be introduced when practicable and with modifications appro-priate to the conditions of the people of Texas.9After the formation of the government of the Republic of Texas, therecontinued to be two parties in the controversy, one composed of recent im-migrants from the common law states of the United States who favoredthat system, and the other composed of native Texans (those born inTexas), earlier immigrants from the United States, persons of Europeanextraction, and immigrants from Louisiana who favored the civil law sys-tem. The First Congress of the Republic essayed a beginning to thesettlement of the controversy on December 20, 1836, by providing thatthe common law of England as it applied to juries and evidence should befollowed by the courts of the Republic. The comm0n law used in thosecourts, however, could not be inconsistent with any of the laws of Con-gress.l° This 1836 statute obviously did not completely exclude the civillaw, for all previous Texas law was based on the statutes of the State ofCoahuila and Texas, which were colored by the Spanish civil law and manyof which were still in force. The complete exclusion of the civil law atthis point would have caused conflicts and inconveniences in such mattersas descent and inheritance, land tenures, and marital rights. Consequently,tile Texas Supreme Court ruled in a case involving title to the San JoseMission lands that the former system of laws and rights survived wholesubject only to later constitutional or statutory changes.HConflicting legal provisions that applied to Texans, drawn from bothcivil and common law systems, continued to plague the courts, and on De-cember 18, 1837, the Congress attempted further clarification. It pro-vided that nothing in the several acts establishing courts of justice shouldbe interpreted so as to take away the rights of either party to propose in-terrogations to his adversary to be answered on oath according to law andpractice heretofore existing.l2 At the same time President M. B. Lamaradmonished Congress that:Unfortunately for the country, we have now in force many por-tions of two systems different in their origin, discordant i:l theirprovisions, and calculated to lead to the most conflicting decisions.Of the cases that presented themselves before the courts, many are28 East Texas Historical Journalincluded in neither code, many are differently provided for by both,leaving the parties without remedy in the first instance, and oftenwholly uncertain as to the proper remedy in the second.13As a solution President Lamar urged Congress to enact a strong code oflaws for the entire Republic.Congress responded to Lamar's plea by appointing a committee com-posed of William H. Jack and D. S. Kaufman to compile a code of lawsfor the Republic.14 Edward L. Holmes, Chairman of the House JudiciaryCommittee, counterproposed that a committee of ten be appointed to ex-amine as many codes of the several states as could be procured and thatthose codes be used as the basis for the Texas code. Holmes' proposal,however, was defeated largely as a result of the determined opposition ofD. S. Kaufman.1sKaufman, in a report to the House on January 11, 1839, stated that hiscommittee was not able to compile a code of laws as instructed for twofundamental reasons. First, it was necessary to have a translation of alllegislation enacted by the State of Coahuila and Texas from its inceptiondown to May, 1835. He alleged that such a translation was not available.Second, the committee had not been instructed by the House whether thenew code should be based upon the civil law or the common law. Withoutinstructions the committee hesitated to embark upon the codification be-cause of the strong diffprcnces of opinion regarding the two systems,16Finally, on January 20, 1840, Congress enacted a statute that had beenintroduced on November 23, 1839, which was destined to provide a basisfor settlement of the controversy. It provided that the common law ofEngland, so far as it was not inconsistent with the Constitution of theRepublic and acts of Congress then in force, should be the rule of decisionin all courts of the Republic. The statute further provided:... that all laws in force in this Republic, prior to the first ofSeptember, 1836 (except the laws of the Consultation and Provi-sional Government now in force, and except such laws as relateexclusive [sic] to grants and the colonization of lands in the stateof Coahuila and Texas, and also such laws as relate to the reserva-tion of Islands and lands, and also of salt-lakes, licks, and saltsprings, mines and minerals of every description; made by the Gen-eral and State government) be and the same are hereby repealed,17This act was prospective and applied only to cases arising after its ef-fective date. Therefore, the Texas courts had to apply civil law doctrinesso far as they were able in cases which arose or in which rights accruedprior to January 20, 1840.18 Furthermore, the act, sweeping as its pro-visions were, did not abolish every vestige of civil law in Texas, for civillaw principles still governed prior land grants and many other civil lawc'lncepts were already incorporated into Texas statutory law. In fact, thesame statute enacted the essential fpatures of the Spanish communityproperty system,19 by which upon mar:i-iage, unless otherwise agreed, thehusband and wife became partners as to subsequent gains, with the profitsof the partnership equally divided upon its dissolution and with the husbandEast Texa.s Historical Journal 29as temporary manager of the partnership. Each spouse could maintainseparate property, and as a general rule property owned at marriage andproperty acquired after marriage by inheritance or by gift remained sep-arate property.A supplementary statute of February 5, 1840, declared that the adop-tion of the common law would not be interpreted to require that systemof pleading. The proceedings in all civil suits must continue the civil lawmethod of petition and answer involving as many issues of law and factas the parties might choose to rely upon.20 Texas courts continued to becombined courts of law and equity as civil law had never developed thatdistinction. Thus a mixed system in which the civil law governs thepleadings while the common law furnishes the rule of decision was intro-duced in Texas.A complete list of civil law doctrines that have been incorporated inthe Texas legal system is probably not possible at this time nor is it perti-nent to this study. But in addition to community property, pleadings bypetition and answer, and combined courts of law and equity, already al-luded to, it is· possible to delineate some other important civil law contri-butions. It is generally conceded that the greatest Spanish influence inthe Texas laws of today is in the field of property rights. One of these,the hom'estead exemption, based on a policy of the Mexican state of Coa-huila and Texas,21 was specifically established after the Revolution by astatute of Congress on January 26, 1839.22 It provided that a married manwas entitled to have his homestead exempt from debts except repairs onhis home and taxes. It further safeguarded his livestock and some ruralacreage so that he might continue to earn a livelihood for his family.23A recent study of the Spanish influence on the law of water rights dem-<>nstrated that the civil law doctrines concerning riparian rights has beenof tremendous importance in making irrigation an important source ofwealth in Texas.24 The Spanish system was one whereby water was di-vided by a process of taking turns as the supply afforded from a ditchwhich was owned by the community.Spanish and Mexican grants created property ownership rights oversome twenty-seven million acres of Texas land. According to the expressstatutory terms of 1840 every land transaction made prior to that timemust be measured by the laws of the prior sovereigns.25 Those prior sov-ereigns followed the Royal Mining Ordinance promulgated in 1783 byCharles III of Spain which vested in the sovereign title to all minerals.'l'exas succeeded to the title to those rights from Mexico as the prior sov-ereign, and it was not until 1866 hy specific constitutional authorizationthat the state relinquished title to all minerals beneath the surface ofTexas land.26Another significant area of civil law influence on the Texas legal systemcentered on paternal-filial relations. The English common law recognizeda system of guardian and ward for those children whose parents were de-ceased, but it did not permit legal adoption. No direct action of the Repub-lic of Texas voided the contrary child adoption system in effect in Spanish-Mexican Texas under the civil law, so under the terms of the Constitutionof 1836 it carried forward. 21 The common law likewise permitted the30 East Texas Historical Jou'malparent to will his estate to one of his heirs, usually the first-born son,leaving all others without any inheritance from his estate. Long beforethe Texas Revolution, Spanish law had abolished the practice, and Texaslaw retained the civil law view by specific provision in the Constitutionof 1836.28The approach of early Texans to the development of a system of lawappears in retrospect as a pragmatic one. They were aware of the prin-ciples of at least three legal systems: the civil law of Spain and Mexico,the civil law of France and Louisiana, and the common law of Englandand the rest of the United States. From those sources the virile Texasfrontiersmen of the Republic of Texas fashioned a legal system that dis-carded whenever possible intricate technical procedures and retained thoseelements that appealed most to their sense of justice.FOOTNOTESlJohn H. Bickett, Jr.• "Origin of Some Distinctive Features of TexasCivilization," Proceedings of the Annual ]I,feeting of the Philosophical So-ctety of Texas (Dallas, 1945), 10-13.20. G. Jones, "Local Government in the Spanish Colonies as Providedby the Recopilacion de Leyes de los Reynos de las Indias," SouthwesternHistorical Quarterly, XIX (July, 1915) 65-90.3C. S. Lobingier, "Civil Law," Encyclopaedia of the Social Sciences, III,604-605.4C. H. Kinnane, Anglo-American Law (Indianapolis, 1932), 193-219.5Chief Justice John Marshall in United States 't'. Juan Percheman, 7 Pe-ters 151 (1833).6H. P. N. Gammel, Laws of Texas, I, 522-523.7Ibid., I, 1074.8Art. IV, Sees. 13,16; General Provisions, Sees. 7,10; Schedule, Sec. 1.9Bickett, "Origin of Some Distinctive Features," 29.lOGammel, Laws of Texas, I, 1216.llMcMullen v. Hodge, 5 Texas 34 (1841).12Gammel, Laws of Texas, I, 1437.13Telegraph and Texas Register (Houston, Texas), December 26, 1838.14Gammel, Laws of Texas, I, 1445.15Telegraph and Texas Register (Houston, Texas), January 12, 1839.16Ibid., January 16, 1839.17Gammel, Laws of Texas, II, 177-178.18Ford Hall, "An Account of the Adoption of the Common Law ofTexas," Texas Law Review, XXVIII (1950), 801.19Will Wilson, "Spanish Legacy of Texas Law," Speech before the Amer-ican Studies Association of Texas (San Antonio, 1960), 7.2°Gammel, Laws of Texas, II, 262-267.Easb Texas Historical Journal 3121[bid., 220-221.22[bid., 347.23Brady Cole, "The Homestead Provisions in the Texas Constitution,"Tf,xas Law Review, III (1925),217; J. E. Ericson, "Origins of the TexasBill of Rights," Southwestern Historical Quarterly. LXII (April, 1959),459-460; Gerald Ashford, "Jacksonian Liberalism and Spanish Law inEarly Texas," Southwestern Historical Quarterly, LVII (July, 1953), 1-37.24Betty E. Dobkins, The Spanish Element in Texas Water Law (Aus-tin, 1959).25Wilson, "Spanish Legacy," 14.26Wallace Hawkins, El Sal del Rey (Austin, 1947).21Wilson, "Spanish Legacy," 13.28Bufford v. Holliman, 10 Texas 560 (1853).

Civil Law and Common Law in Early Texas

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Civil Law and Common Law in Early Texas

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