Hers, His, and Theirs: Community Property Law in Spain and Early Texas (review)

The development of community property law in Texas has been a unique contribution to U.S. legal history. This point is admirably made by Jean Stuntz in her work, which traces the basis of community property to Castilian law. Further, she contrasts the role of women in English common law, which severely restricted the wife's role in management of property and her participation in legal and business affairs. Fully one-third of the book is devoted to these European roots that affected women, inheritance, and family security.

The author then discusses the application and development of these two European legal systems in the New World in effective and logical sequences. Finally, she discusses how these two different and divergent approaches collided in Texas in the Anglo settlements, especially those under empresario Stephen F. Austin. She succinctly captures the legal essence of the politics of the turbulent 1830s and 1840s in Texas, leading to statehood in 1845 and the eventual establishment of Texas state law. All this background to lay out how Texas got to the Texas Family Code of 1964 through which the "idea of community and separate property was finally clarified and codified" (p. 171).

The author is adept at presenting case law to illustrate how the two European traditions differed and amalgamated to suit the needs of people living on the Texas frontier. The social historian will be delighted with the adroit examination given to legal cases in San Antonio for the Hispanic community and to what was happening, by contrast, in the quickly emerging Anglo communities. But herein lies the principal problem with the book: too much reliance on the archival records within the Nacogdoches Archives and the Béxar Archives at the University of Texas at Austin. The author seems unaware that when the latter records were transferred to Austin in 1899, the Bexar County Commissioners Court retained almost all records related to land grants, deeds of sale, wills and estates, and some protocolos [notarial records]. Although most of these records related to San Fernando de Béxar, there are substantial numbers of files dealing with all of the five adjacent missions as well as cases referring to Nacogdoches and Goliad. These records were indexed by Carlos E. Castañeda in A Report on the Spanish Archives in San Antonio, Texas (San Antonio, 1937); they were transcribed and translated under Works Progress Administration programs; and they have been microfilmed and are therefore rather easily available (see Spanish and Mexican Archives in the Bexar County Courthouse: Land Titles, 13 reels; Genealogical Society of Utah, 1981). A cursory count of these records indicates that there are more than three dozen cases in which women were involved in legal matters beginning as early as 1736 and continuing through 1836. These cases would add substantial weight and nuance to the author's analysis of events in San Antonio and Nacogdoches while adding new light on developments in mission lands following their secularization in the 1790s and rounding out yet other events of what happened to Hispanic residents and Anglo settlers in La Bahía.

Stuntz provides a useful synthesis to understand the development of how legal systems help or hinder gender equality, family life, inheritance, and business practices. The social historian will find her work a useful companion to explain the divergence of English common law and Spanish legal practice on the Mexican frontier as it played out in Texas. More casual readers will find it an "easy read" of an altogether frequently complex topic.