Coastal Bend Chronicle: Castilian Law Found in Modern Texas Code

We are governed by a surprising amount of law from the Province of Castile in Spain as a part of our Mexican heritage. Texans adopted these provisions of Castilian law because they were viewed as an improvement to English common law and fit well with the frontier conditions in Texas. Texas was governed under the laws of Spain and Mexico until it gained its independence in 1836. The system of laws in the new Republic of Texas was mainly based on Anglo-American common law and was often modeled on the laws of the Southern states from which many Texans originated. One important element of that English system was trial by jury, although a person accused of a crime could not testify in their own defense until 1889.

All of the Spanish colonies in the Americas were governed by the legal system codified in Castile, Spain. This detailed set of laws was published in seven volumes in Seville in 1491, one of the most important judicial works of the Middle Ages. As such, it became the legal system for the entire Spanish empire. Many of the principles of Castilian Law can still be found in the laws of modern Latin American countries. The most significant areas of Spanish law that are found in modern Texas legal code deal with family relationships, property and protection from creditors.

The process of legal adoption, with rights as an heir, was unknown in English common law, but allowed in Spanish law. The State of Texas enacted a statute in 1850 establishing the right of adoption that had existed under Spanish and Mexican law. The principles of separate property and community property that we know today came from a Castilian tradition. Separate property is that owned by a spouse before marriage or received during marriage by gift or inheritance. Any income or gain on separate property during marriage is considered community property. Texas married women in the mid-1800s were under conjugal restraints in how they could manage their separate property, but these restraints were repealed over the years. Texas law also followed the Hispanic model in allowing a husband to kill his wife’s lover as a means to protect his home.

The homestead law was a result of a Stephen F. Austin initiative in 1829. As empresario of his colony, Austin recognized that many of his colonists had debts that they left in the United States. Austin recommended a moratorium on the collection of foreign debts to the Mexican Legislature of Coahuila and Texas and the Legislature agreed. The property exempted from debt collectors was called the homestead exemption and included the debtor’s land, home and tools of trade. The Republic of Texas enacted a homestead law in 1839 and this law is considered to be one of Texas’ contributions to jurisprudence. The law is still in effect, although what constitutes the homestead has been redefined by subsequent statutes. Variations of the homestead law have been adopted by other states.

Spanish law was also easier to implement that English law. For example, the courts were not divided into criminal and civil divisions. There were no Hispanic lawyers or legally trained judges in Mexican Texas. Spanish law in Texas was administered by reference to a few law books. Some Anglo lawyers among the colonists also became familiar with the principles of Castilian/Mexican law. This simpler set of circumstances did not persist past the Civil War. Lawyers trained at the Texas State law school established in 1883 became familiar with the intricate nuances of civil and criminal procedures under the old English system. And, as they say, “the rest is history.” The modern system is characterized by procedural formality, but the quality of the bar and thus the judiciary has probably been enhanced by formal training.

Texas, and even the United States, has benefited from those elements of Spanish law that have persisted in the modern code: adoption, separate property, community property and the homestead exemption. Families, women and debtors have been the main beneficiaries.

Herndon Williams is affiliated with the Bayside Historical Society and the Refugio
County Historical Commission. He can be reached at coastalbendchronicle@yahoo.com