Several years ago I attended the TSHA (Texas State Historical Association) annual meeting, and I was waylaid by one Bill Pugsley, who was the Executive Director of the Texas Supreme Court Historical Society, which I had to confess I knew nothing about, nor had ever heard of. With offices in the Supreme Court building, they had been quietly chronicling the judicial history of Texas for many years.
The gleam in his eye was to commission a history of the Texas Court, which had not been done since 1917. They had tried producing one with volunteer writers, with a bad result, they were ready to hire an experienced Texas historian, and they wanted me.
When I left law school after two years to concentrate on a literary career, I little imagined that I would ever revisit Texas law. They offered very good money, but they needed a manuscript in a year, which was daunting. They also, however, included the services of the Society’s editor, Marilyn Duncan, who directed publications at the LBJ School of Public Affairs for many years. Working with Marilyn was a revelation. She not only edited and offered guidance on the text, she screened the boxes of original sources and suggested how each piece fit into the whole, she interacted for me with the Society’s Board. She deserved and was offered the credit of co-author, but she was too modest to accept.
Almost as wonderful to discover was that Texas’s legal history was neither dry nor boring. Finding itself suddenly an American state, with that U.S. heritage of English common law, after centuries of being governed under the Spanish civil law, Texas was free to choose what stripe of law best suited its people and conditions.
Debtors were given protection of their homesteads from seizure, at a time when other states still had debtor’s prisons. Women in Texas could own property, go into business, and otherwise look after themselves, when American women back East were wards of their husbands. These principles were derived from Spanish law, not U.S. law.
Moreover, there were some legal titans on that early Court, who gave Texas a colorful frontier legal history, upholding slaves who sued for their freedom, and won (which was unthinkable elsewhere in the South), to reversing a murderer’s conviction on the grounds that it was reversible error for the bailiff to have been giving whiskey to the jury while they deliberated. During the Progressive Era, it was the Texas Supreme Court that took the lead in legal reforms, such as establishing the doctrine of “attractive nuisance,” which required property owners to not maintain hazards to children even when they trespass, that was found nowhere in the law (talk about your runaway activist judges!)
It was published by the University of Texas Press, which sold out the first edition hardback almost instantly, and they are now collectible. Rather than authorize a second printing, UT Press took it into paperback “print on demand,” in which form it is still available.
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©2016 James L. Haley All rights reserved
