The Southwestern Historical Quarterly, Volume 86, July 1982 - April, 1983 Page: 369
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Protection of the Family Home
from Seizure by Creditors:
The Sources and Evolution
of a Legal Principle
JOSEPH W. McKNIGHT*
IN POPULAR AS WELL AS LEGAL PARLANCE, HOMESTEAD MEANS NOT
only family home but property that is accorded particular protec-
tion because it is the family home. From one American state to another,
and elsewhere as well, the most significant protection of the home is
that which is accorded it against seizure by the owner's creditors for
payment of general, private debts. The term homestead was also once
used to refer to a sovereign grant of western lands where the frontiers-
man and his family made their home. But it is in the sense of a home
protected from creditors that the concept of homestead is one of the
most significant later contributions to family jurisprudence.
Legal tradition has long acknowledged that this notion of homestead
emerged on the Mexican-Texan frontier. But the sources and develop-
ment of the concept have never been clearly demonstrated. Simply
stated, the tradition is that an 1829 act of the Mexican state of Coahuila
y Texas recodified Castilian exemption principles and extended them
to sovereign grants of land. Carrying this development forward, a
Texas act of 1839 defined exempt lands in terms of the family home,
and from this model the principle of homestead exemption from the
claims of creditors spread throughout the United States and beyond.
Although much has been written about the origin of the Texas
homestead law and its Hispano-Mexican antecedents, there are several
crucial points in its development that require reexamination.' If the
*Joseph W. McKnight is professor of law at Southern Methodist University. He is
grateful to his assistants, Robert C. White and Kathleen LaValle, for the aid they have
given him in preparing his manuscript for publication.
1C. W. Raines, "Enduring Laws of the Republic of Texas," Qua terly of the Texas
State Historical Association, I (Oct., 1897), 96, lo0-lo7; A. E. Wilkinson, "The Author of
the Texas Homestead Exemption Law," Southwestern Historical Quarterly, XX (July,
1916), 35; Eugene C. Barker, The Life of Stephen F. Austin, Founder of Texas, 1793-
1836: A Chapter an the Westward Movement of the Anglo-American People (Nashville,
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Texas State Historical Association. The Southwestern Historical Quarterly, Volume 86, July 1982 - April, 1983, periodical, 1982/1983; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth101209/m1/417/?rotate=90: accessed December 14, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting Texas State Historical Association.