The Southwestern Historical Quarterly, Volume 96, July 1992 - April, 1993 Page: 459
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Western American Livestock Law
previous studies on Western mining law,4 Western water law,5 and even
Western community property law,6 I found that Spain and Mexico had
been the principal sources of the legal rules adopted in the American
West, despite the commonplace belief, repeated again and again in cur-
rent histories, that these rules were invented by Westerners out of whole
cloth in response to the needs of their environment. Ironically, as to cat-
tle law-the one area where historians have long been eager to credit
Spain and Mexico with having a significant impact-I have come to be-
lieve that they had only a passing influence.
I believe that the facts will support the following thesis: law, in particu-
lar cattle law, is a product of what I call cultural continuity. That is, laws
are the creation of a culture, and as that culture expands geographically
or politically, its laws expand with it. Members of a culture are carriers;
they carry with them their cultural biases, beliefs, and dictates. Absent
some compelling reason, they are seldom inclined to abandon their old
and established ways."
Cattle law, in particular the cattle law that eventually appeared in the
American West, provides an excellent example of this process.
To begin, let me define my subject matter: cattle law. Cattle law is a set
of interdependent rules that regulate the raising and marketing of live-
stock. The main rules deal with fencing, branding, rustling, recording,
I will start with fencing laws. There are two basic fencing laws. The
older, traditional law requires landowners to fence out straying cattle.
The other, newer alternative requires livestock owners to fence in their
4 Ray August, "Law in the American West: A History of Its Origins and Its Dissemination"
(Ph.D. diss., University of Idaho, 1987), chapt. 3.
5 Ibid., chapt. 4.
6 Ray August, 'The Spread of Community-Property Law to the Far West," Western Legal History
7 The Spanish and Mexican influence on other aspects of cattle ranching in the West, espe-
cially in the language of the cowboys, is quite significant. In this paper, however, I am only look-
ing at the origins of cattle law.
8 This is the conclusion I drew m "Law in the American West: A History of Its Origins and Its
Dissemination," chapt. 6. With regard to mining law, the American pioneers were compelled to
adopt foreign (i.e., Spanish and Mexican) laws because they brought no suitable mining rules
with them to the West; and Western water rules came about as an inherent by-product of adopt-
ing Spanish and Mexican mining law. As for community property law, the women's movement
compelled frontiersmen to look to French, Spanish, and Mexican rules when the traditional An-
glo-American rules proved to be unsuitable.
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Texas State Historical Association. The Southwestern Historical Quarterly, Volume 96, July 1992 - April, 1993, periodical, 1993; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth101215/m1/529/: accessed October 19, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting Texas State Historical Association.