THE AUTHOR OF THE TEXAS HOMESTEAD EXEMP-
TION LAW
The law books, in discussing the homestead exemption, prop-
erly credit the origin of this beneficent enactment to the Third
Congress of the Republic of Texas.
1 Several recent inquiries as
to the author of the Act by which it was created led the writer
to look into the matter, with this result. It appears that the bill
was introduced in the House of Representatives by Mr. Louis P.
Cooke,
2 of Brazoria County. The journals of the House and Sen-
ate give the following information in regard to the progress and
enactment of the measure:
December 29, 1838. "Mr. Cook introduced a bill entitled 'An
Act exempting certain property from execution,'--was read a first
time. Mr. Cook moved to suspend the rules, which was lost."
3
January 2, 1839. "A bill entitled an act to exempt certain
property therein named from, execution was read a 2d time and
referred to Judiciary Committee."
4
January 22, 1839. " 'An Act to exempt certain property named
therein from execution' was taken up on second reading. Rules
suspended, read a 3d time and passed."
5
January 24, 1839. "A message from the Senate reported to
the House its concurrence in 'An Act to exempt certain property
named therein from execution.' "
6
from execution' duly enrolled and on that day presented to the
President for his approbation." 7
The Senate Journal shows the following action:
January 24, 1839. "A bill to exempt certain property from
execution read a 2d time; rule suspended, read a 3d time, and
passed."
8
There was also introduced in the Senate a bill on the subject
of exemptions, as to which the following entries appear on its
journal:
December 14, 1838. "Mr. Stroud introduced a joint resolution
exempting certain articles from execution and seizure, which
was read a 1st time and laid on the table for one day."
9
December 18, 1838. "A bill to exempt certain articles from
execution and seizure was read a 2d time and on motion of Mr.
Barnett referred to the Judiciary Committee."
10
No further action on Mr. Stroud's measure is recorded. There
is nothing to indicate that it included any exemption of real
estate. It was probably abandoned through preference for the
bill passed by the House. That enactment received the Presi-
dent's approval on January 26, 1839. It appears in the session
laws passed by the Third Congress in the following form:
Be it enacted by the Senate and House of Representatives of
the Republic of Texas in Congress assembled, That from and
after the passage of this Act there shall be reserved to every citi-
zen or head of a family in this Republic, free and independent
of the power of the writ of fire facias or other exectuion issuing
from any court of competent jurisdiction whatever, fifty acres of
land or one town lot, including his or her homestead, and im-
provements not exceeding five hundred dollars in value, all house-
hold and kitchen furniture (provided it does not exceed in value
two hundred ollars) all implements of husbandry (provided they
shall not exceed fifty dollars in value) all tools, apparatus and
books belonging to the trade or profession of any citizen, five
milch cows, one yoke of work oxen or one horse, twenty hogs,
and one year's provisions; and that all laws and parts of laws
contravening the provisions of this act shall be and the same are
hereby repealed: Provided, The passage of this act shall not
interfere with contracts between parties heretofore made.
11
The bill as introduced by Mr. Cooke seems to have suffered no
amendment or change, to have met little discussion and no oppo-
sition, and to have been hurried through its final passage on the
last day of the session. It apparently excited less heat and con-
troversy than the bill to grant a divorce to Sophia Aginbaugh, or
that to permit Edward Teal to emancipate his slave Fanny.
Probably not even its author had any idea of the far reaching
effect that it was to have. In the Texas Constitution of 1845,
the exemption was carried into the fundamental law,--the first
instance of the kind. It has been expanded in all subsequent
legislation on the subject in Texas; and the principle has been
adopted since in nearly all the States and in many foreign coun-
tries. Ponderous volumes of adjudged cases on Homestead Ex-
emption are now to be found in all law libraries.
It may be well to add such information as the present writer
has been able to collect in regard to Mr. Louis P. Cooke, the
author of this law. He was not present at the organization of
the Congress on November 5,
12 nor does his name appear on the
committees then announced by the speaker;
13 but he presented
his credentials and took the oath of office on the following day.
14
He was placed on the standing Committee on Military Affairs on
November 8.
15 And later was put on the Judiciary Committee
in place of his colleague from Brazoria, Hon. John A. Wharton,
who died during the session.
16 He appears to have been an active
member of the Congress, and, on the whole, an able and judici-
ous legislator, commanding the confidence of his associates. He
was selected, along with Campbell and Menifee, as member from
the House upon the commission appointed to select the site of
the new state capitol,
17 and, with his associates on that commis-
sion, had sufficient vision of the future to join in the judicious
choice for its location of the then perilous ground upon which
now stands the city of Austin. Soon after he became a resident
of that frontier village, as Secretary of the Navy in the cabinet
of President Lamar. The following brief references to him in
Texas historical works may be found of interest:
Louis P. Cook. Came to Texas with the New York Battallion
in 1836. Was Secretary of the Navy in 1839. Having been
accused of killing young Peyton in Washington, he went to the
Rio Grande: was a sutler in Taylor's army in 1846. He and his
wife died of cholera in 1849.
18
Cooke, Louis P., born in Tennessee, entered West Point Mili-
tary Academy--expelled before graduation--came to Texas from
Few York in the Morehouse Expedition, arriving just in time to
miss the battle of San Jacinto; lieutenant colonel in the army
of 1836-37, member of congress from Brazoria in 1838-39, sec-
retary of the navy under President Lamar from 1839 to 1841,
a wild courageous and somewhat reckless man, had an eye shot
out by an Indian arrow near Corpus Christi, in 1845, and died
of cholera at Brownsville in 1849. His brother, Dr. Wilds K.
Cooke, was senator from the Robertson district in the first Leg-
islature after annexation; and another brother, H. W. Cooke, of
Coryell, was a captain on the frontier in 1849. Louis P. Cooke
was an extraordinary man. His history, life and death abound
in romance, a romance of courageous recklessness, clouded by
actions in contrast with his otherwise admirable character.
19
One night John Wahrenberger, a Switzer and gardener for
Louis P. Cook, Secretary of the Navy, returning home with a
bag of meal on his shoulder, fell in with a party of Indians at
the head of the Avenue, near the Alhambra. He fled and gained
the residence of Col. Cook, who then lived where Col. A. H. Cook
now resides, but received three arrows in his meal sack and one
in his arm.
As the poor fellow gained the door he fell exhausted, and
fainted, while Col. Cook fired on his pursuers and wounded one
so badly that their trail was easily traced the next day by the
blood on the ground.
After recovering his senses, John Wahrenberger felt his wound,
then looking round he exclaimed: "Mine Got! What a Texas!"
Then casting his eyes around without any more ado, he earnestly
inquired: "Where ish mine meal?" It was shown to him, under
his head, and taking it up he retired to his apartments.
20
Wahrenberger, familiarly known to early citizens of Austin as
"Dutch John," whose simple Swiss fidelity to his meal sack pos-
sibly saved his life, became reconciled to life in Texas. He pros-
pered here, and his family became a leading one in the develop-
ment of the city. But for his employer and rescuer evil days
were to darken over a future which then seemed filled with
promise. Something of his history may be traced from the land
records of Travis County. In 1843, he appears to have con-
veyed a tract of land on the Colorado to James S. Mayfield, a
lawyer, to defend him against two indictments for murder in that
country,—one for killing Mark B. Lewis, and the other for kill-
ing Alex. Payton.
21 The records do not show that any such in-
dictments were returned against him, and their mention in the
deed may have been as something anticipated.
The deed records also give some information as to his family.
His wife's name was Mary A., and they left four children sur-
viving: Cora K.
(Cooke) Rice, wife of Horatio H. Rice, of
White Pigeon, Michigan; Louis P. Cooke, Jr., of Robertson
County; Mary A. (Cooke) Hardy; and Virginia B. (Cooke)
(Phelps) Talbot, of Travis County, all of whom were still liv-
ing in 1871. Descendants or relatives probably still live in
Texas.
22
Louis P. Cooke thus appears as a picturesque figure in the stir-
ring times of the Republic. His name deserves to be rescued
from oblivion; it may be hard to find another who, by such a
brief career as a legislator, ever left so broad and deepening a
mark upon jurisprudence.
The distinction of having been the father of the homestead
law has been claimed on behalf of others than Louis P. Cooke.
The writer has heard it attributed to Isaac Van Zandt, a bril-
liant figure, for all too brief a time, in the early history of
Texas. But Van Zandt was not a member of the Third Con-
gress; in fact, came to the Republic as an immigrant about the
time that Congress commenced its session. He was, however, a
member of the convention that framed the constitution of 1845,
under which Texas was admitted as a State, and may have been
instrumental in having such exemption then made a part of the
fundamental law, as stated in Judge Fulmore's History
and
Geography
of
Texas,
p. 192.
A more serious claim is that made for Judge Emory Rains,
whose name, like that of Van Zandt, has been given to one of
the counties of the state. An article by C. W. Raines
23 at least
establishes the fact that Judge Rains did represent himself as
the one responsible for its enactment. But the conversation to
which the author there refers took place some forty years later.
The clouded life of Cooke had closed nearly thirty years before.
Rains was a meber of the Senate in the Third Congress, and
Chairman of its Judiciary Committee. The history of the Act
here given from the journals seems to leave little doubt that, as
passed, it was identical with the bill introduced by Cooke in the
House. Judge Eains may have been the moving spirit in having
it put through the Senate, on the verge of adjournment, in pref-
erence to the Senate bill. That he drew the bill and had it in-
troduced by another in the House does not seem probable. The
Act is fairly well drawn, on the whole, but some of its phrase-
ology sounds like an amateur's. A lawyer, for instance, would
not have been likely to describe the writ of execution as a fire
[sic] facias.
FOOTNOTES:
5. The homestead right is purely a creature of statute. Blum v.
Gaines, 57 Texas, 121. And few legislative ventures have ever been so
promptly copied or followed. Barney v. Leeds, 51 N. H., 261.
records, is spelled, about impartially, "Cook" and "Cooke." His original
letters as Secretary of the Navy show that he used the latter form of
the name.
been found. The published journal is imperfect; but the bill was,
doubtless, favorably reported.
in Wilbarger's Indian Depredations in Texas, 271.
96-107.
How to cite:
A. E. Wilkinson, "Author of the Texas Homestead Exemption Law", Volume 20, Number 1, Southwestern Historical Quarterly Online, http://www.tsha.utexas.edu/publications/journals/shq/online/v020/n1/contrib_DIVL624.html
[Accessed Sun Nov 23 3:21:51 CST 2008]
