The Southwestern Historical Quarterly, Volume 96, July 1992 - April, 1993 Page: 462
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Southwestern Historical Quarterly
As the map on the previous page shows, the "fencing out" laws came
to the English colonies immediately after their settlement. Virginia en-
acted what historian Lewis Cecil Gray has called the "parent of the fence
laws" in 1632.'6 It provided that "Every man shall enclose his ground with
sufficient fence or else to plant [crops] uppon theire own perill. "17 The
same rule showed up in Massachusetts in laws enacted in 1637,18 1639,19
and 1647.20 The 1632 Virginia rule and the Massachusetts law of 1647
served as the basic model for all later American fencing law legislation
until the end of the nineteenth century.
Massachusetts attempted an experiment in 1638, when it required
farmers to secure their fields during daylight hours so that stock growers
could let their animals roam free during the day. At night, however, live-
stock owners had to keep their animals corralled.21
The experiment was a flop. Bending to pressure from animal owners,
Massachusetts repealed the experiment in 1639, and went back to the
old "fencing out" rule.22
The first fencing laws in the Spanish colony of New Spain (modern
Mexico) were adopted soon after the conquest of the Aztecs by Cortez.
Decrees adopted by the town councils in Mexico City in 152423 and
153724 and in Pueblo in 1556 and 156025 were essentially of the "fencing
16 Lewis Cecil Gray, History of Agnculture in the Southern United States to z86o (2 vols.; Washing-
ton, D.C.: Carnegie Institution, 1933), I, 145.
17 William W. Hening (ed.), Statutes at Large, a Collection of all the Laws of Virginza, 1619-1792
(13 vols.; Richmond: Samuel Pleasants,Jr., 18o09-1823), I, 199.
18 Decree No. 362 provided: "No man shall recover any satisfaction for any damage done by
greate cattle, except their fences bee sufficient, & so the damage come by the vnruliness of the
cattle." Additionally, if several people joined in constructing a common fence, each "shall make
good his parte of the fence, & shall not put in any cattle so long as any corne shalbee vpon any
parte of it .. ." Records of the Governor and Company of the Massachusetts Bay in New England (5 vols.;
Boston: William White, 1853-1854) I, 215.
19 Decree No. 432, Sept. 9, 1639, in ibid., I, 272. In 1642 the Massachusetts General Court
modified its trespass statute slightly, adding a provision that common owners of a fence would
share equally for damages caused by trespassing animals if there was no way to determine who
was responsible for a breach in the fence. Decree No. 503,June 14, 1642, in ibid., II, 14.
20 Decree No. 668, May 26, 1647, in ibid., II, 190.
41 The decree provided: "If the cattle do hurt corne in the night the owners of the cattle shall
make good the damages." Decree No. 372, Mar. 12, 1638, in Ibid., I, 221.
22 Decree No 432, Sept. 9, 1639, in ibid., I, 272.
28 Actas de cabildo del ayuntamzento de la gran cibdad de Tenuxtztlan Mxzaco de la Nueba Espaia (27
vols.; Mexico City: Ignacio Bejarno, 1889-1908), II, 3.
24 The king's letter approving the ordinances contains their full text. It is m Actas de cabildo de
la ciudad de Mexico (28 vols.; Mexico: Ignacio Bejarano, 1889-1911), IV, 313-315. The ordi-
nances alone are in William H. Dusenberry, The Mexican Mesta: The Administration of Ranching in
Colonial Mexico (Urbana: University of Illinois Press, 1963), 211-214.
" Mesta Ordinances, 1556-z619, Archivo Historico Nacional, Madrid, Cartas de Indias, Caja 2,
numero 52. English translations of both ordinances are in Keith W. Algier, 'The Puebla Mesta
Ordinances of 1556 and 1560," New Mexico Historincal Review, XLIV (Jan., 1969), 8-22.
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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/m1/532/: accessed June 25, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting Texas State Historical Association.