From frontier paradigm to modern public policy: The development of homestead and property exemption law in Texas, Florida, and Alaska

This paper argues the creation and development of homestead and personal property exemptions in state constitutions and statutes exemplify change in public policy concerning the rights of debtors and creditors, economic development, preservation of families, and property rights in Texas, Florida, and Alaska. Reserving to a debtor some items of personal property by express exemption from the reach of general creditors has roots in the historical jurisprudence of both Spain and Great Britain, influencing the development of similar principles in Mexico and the United States. Excluding that portion of each debtor's real property comprised of the residence and additional land was a new doctrine originating in Mexico in the 1820s, fully articulated in the Republic of Texas by statute in 1839, and embedded as principle of organic law in the Texas Constitution of 1845.;Using a similar term in a different context, the federal Homestead Act of 1862 was the culmination of national discussion on the best manner to develop the vast public lands. Since the implementation of the Northwest Ordinance in 1787 the United States pursued a policy of offering tracts of land in new territories at low prices both to raise funds for the federal government and to encourage economic development through settlement. Occasionally, provision was made by law for donations of federal land to qualifying settlers, limited to a specific time and location. The Armed Occupation Act of 1842 was the first law adopted by Congress offering land grants to any settler who occupied and cultivated parcels of vacant public land, albeit limited to the Florida peninsula. This Act incorporated part of the emerging principle of homestead exemption by prohibiting creditors from seizing and selling a land claim to satisfy debts arising prior to the government issuing its patent conveying title to the parcel. I find this principle, modified and incorporated into the Homestead Act, had a significant effect on the development of property exemption laws in territories such as Alaska. Because Texas retained its vacant public land upon entering the Union, providing settlement land grants by pre-emption and donation was a matter of state law. Unlike the Homestead Act, because of the existing state constitutional homestead exemption the Texas law on settlement donations did not incorporate a prohibition against seizing claims for pre-existing debts.;The narrative develops the history of the homestead exemption and of the settlement land donation laws by analyzing the text of the original laws, statutes, and constitutions for each state. Because some early documents from Mexico were first written in Spanish, the text of original translations relied upon in Texas as these doctrines were developed is used. By examining the evolution of homestead and personal property exemptions in each state, together with the influence of the applicable settlement land donation laws, I argue the use of similar concepts represented different public policy developments.;The public policy of Texas historically was to prevent family impoverishment by preserving adequate means for shelter and support. This protection was so important that placement in the Constitution was necessary to avoid its curtailment without a prior general vote of the people. Over time, Texas maintained this consistent public policy by changing the language of the constitutional homestead and statutory personal property exemptions. Although no longer emphasizing the family farm, the modern, very lengthy homestead exemption continues to embody a concern to protect ordinary citizens from financial improvidence.;Florida chose a different method of adapting public policy to economic change. Adopting an early statutory form of property exemptions, Florida did not place homestead and personal property exemption principles in its Constitution until 1868. The language adopted proved sufficiently flexible to remain essentially unchanged since then. Expanding on Texas' example Florida constitutionally-designated not only the rural homestead but also an urban homestead without regard to value, both limited solely by area. Unlike Texas, Florida gave express constitutional protection to a specific value, ;Public policy in Alaska deemed statutory structures adequate to protect a debtor's interests. Having one of the longest territorial periods before achieving statehood, much of Alaska's doctrine on property exemptions developed from the federal laws, including the 1862 Homestead Act, used to administer the district. As I conclude, changes in Alaskan exemption policy were reflected in changed statutes.