by Michael Ariens. Lubbock, Texas: Texas Tech University Press, 2011. 400 pp. Cloth $49.95. ISBN 9780896726956.
Reviewed by Jeffrey B. Robb, J.D., Department of History and Government, Texas Woman’s University.
Visitors to the “Lone Star State” quickly learn of its “Six Flags” history, as Texas was colonized by Spain and France, became a part of a Mexican state, then an independent republic, and finally part of the United States, with a brief interlude in the Confederacy during the Civil War. Michael Ariens’ masterful Lone Star Law: A Legal History of Texas artfully integrates the colorful history of the state with its complex legal evolution. From the significant roots of Texas law in the civil code law of Spain and France, through its efforts to combine the best features of Spanish law and English common law, its linkage to the southern legacy of slavery and racial discrimination (and its southwestern mistreatment of Mexican Americans), to the sometimes contentious relationship between the state and the federal government, Lone Star Law has it all. In a very readable style, it manages to meld solid legal scholarship with highly entertaining personal stories and events. Moreover, even for readers not interested primarily in Texas legal history, the work is an excellent illustration of the power of social forces upon the development of law.
Ariens introduces his history with an overview of the “Roots of Texas Law, 1718—1864,” and follows with “Law and Crises, 1866—1920.” The heart of the book continues with chapters devoted to natural resources law (land, oil, water, and the sea); railroads and corporations; family law and cultural change; the legal profession, legal education, and the courts; criminal law and civil rights; and civil procedure, civil remedies, and civil law. This organization is very helpful, because one can use the work as a reference for a broad overview of the foundation of Texas law, or as an in-depth examination of the people and events most important to a specific field of law. The entire narrative is supported thoroughly by the constitutional developments, statutes, and cases that document the twists and turns of the law.
Law students and teachers, as well as lawyers, will find interesting and satisfying context for familiar aspects of Texas law, and maybe some new perspectives on what we all think we already know. The protection of homesteads from creditors, and the segregation of a wife’s separate property from those creditors, helped make Texas “an enticing frontier destination for destitute Americans” (p.168) in the wake of recurring financial panics and the devastation of the Civil War. Common law marriage flowed from a misunderstanding of English common law, but had value in frontier Texas because it protected the legitimacy of children, and the inheritances of women who worked hard to build the property of the family community. The “unwritten law” that a husband justifiably could kill his adulterous wife [*298] (and sometimes her paramour as well) was codified in 1856. The courts wrestled with nuances of the law such as when the killing could legally take place (for example, it wasn’t essential to do it while the adulterous couple was actually in flagrante delicto). Although the defense was markedly less successful by the 1920s, as the frontier culture of Texas gave way to a more urbanized one, this law was not repealed until 1973.
Alimony, regarding which we have been told that Texas long stood alone in denying, was actually approved in an 1870 Texas Supreme Court decision, but that precedent was then inadvertently overlooked in the vagaries of case publication. The peculiar existence of dual “courts of last resort,” the Texas Supreme Court for civil cases and the Texas Court of Criminal Appeals for criminal ones, is explained as a result of stinginess. The legislature for many years approved only a few justices for the Supreme Court, and paid them very little, resulting in a huge backlog of cases. The Court of Criminal Appeals was the end result of an ongoing series of stopgap measures to relieve this backlog. It too was understaffed and its justices underpaid, so backlog problems persisted. Having two courts of last resort did create legal headaches, however, such as the dueling “Pool Hall Law” cases of 1915. The Supreme Court held that the law was unconstitutional, but the Court of Criminal Appeals disagreed in a separate case, resulting in supposedly equal but conflicting precedents. Talk about “trouble in River City”! Only after the composition of the Court of Criminal Appeals changed, two years later, was the impasse resolved.
Trends in Texas law, both positive and negative, are portrayed with interesting examples. Texas civil procedure, for example, was ahead of its time in adopting the simple Spanish petition and answer approach in lieu of the cumbersome and obtuse English writ system. Texans insisted on trial by jury (not used in the Spanish system) in not only criminal cases, but civil ones as well. Unfortunately, by the 1920s Texas civil procedure had “calcified” into a nightmare of “special issue” pleading in which confused jurors often gave conflicting answers to questions, frustrating justice. Moreover, the Court of Criminal Appeals became known for excessive formalism in its review of cases. In one notorious example, the conviction of a man for drowning his wife and young child was reversed because the indictment did not “allege whether the deceased was drown [sic] in water, coffee, tea, or what” (p.225).
The stories of the people and events that frame the evolution of the law make Ariens’ work of great value not only to students of law, but also to everyone interested in Texas history or politics generally. A cavalcade of unforgettable characters populates the book, including folks both famous and obscure. We learn, for example, that for much of Texas history, it didn’t take much to become a lawyer. Desperado John Wesley Hardin, for example, who had spent 15 years in prison for one of the several murders he committed, had his sentence commuted by Governor James Hogg in 1894. Being over 21, a citizen of Texas, and apparently having demonstrated “good character and a sufficient knowledge of law,” he was admitted to the bar. His practice was a brief one, however, as he was shot by a local constable the following year. [*299]
John Hemphill, who served as Chief Justice of the Supreme Court until 1858, was a student and strong proponent of the Spanish civil law, using it to ameliorate the harshness of the English common law, especially regarding disabilities associated with allegations of bigamy and bastardy. Hemphill also understood the Spanish and Mexican system of water law. When he retired from the Court to serve in the U.S. Senate, the “thread of Hispanic learning” was lost to Texas jurisprudence (p.104).
Charlie Goodnight, famous for his cattle driving exploits, is revealed as a wily participant in the “Grass Law and Fence Cutting” controversy of the 1880s. Goodnight, accused of illegally fencing the range, managed to get himself appointed as the foreman of the grand jury investigating the charges. He was found not guilty (as were 54 of 56 defendants tried).
Politics and law have always been inseparable, as illustrated by the examples of James Hogg in the 1880s and Price Daniels in the 1950s. Each used his role as a crusading Attorney General as a springboard to the Governor’s office. Hogg railed against the concentration of power in the hands of corporations, especially the railroads, and Daniels became embroiled in a controversy with the federal government over access to minerals off the Texas coast. Although their words generally exceeded their results, changing the law was secondary to attaining political goals.
Throughout Lone Star Law, Ariens demonstrates that the history of law is intertwined with “the messiness of life” (p.284). Events both obscure and familiar illustrate this point. The “Regulator—Moderator War” during the Republic involved vigilantes trying to prevent land fraud in the contested “Neutral Ground” along the East Texas/Louisiana border. The “Salt War of 1877” involved the attempted use of the forms of law to justify a naked power grab of salt deposits in West Texas. Lynching and other tools of political and social subordination made a mockery of much of the state’s treatment of African Americans and Mexican Americans. Modern scandals such as the Sharpstown banking fiasco, and the Tulia drug bust fraud, periodically shake up the legal world, and the pendulum of politics swings as debates over tort reform and public school funding continue. One thing is sure: “when the culture changes, law follows culture, not the other way around” (p. 164). Hats off to Michael Ariens for his terrific legal tour de force.
Copyright by the Author, Jeffrey B. Robb