Spanglish creole legal culture: Slave Law and Marriage Law in Anglo-Hispanic Texas

In the close of his chapter on antebellum Texas law, Campbell notes that race and slave law “drew its inspiration and precedents from practices in the southern United States, not from Hispanic America” (114). That might not seem like much of a surprise in Anglo governed antebellum Texas. If Texas lawmakers were predominantly Anglo white Southerners, then why wouldn’t the laws they made follow Anglo-American Southern models? But it wasn’t always the case in antebellum Texas, in areas of the law other than slavery. Texas laws often drew on Spanish colonial and Mexican precedents. In antebellum Texas, for example, community property marriage laws discarded Anglo-American traditions of coverture in favor of an existing Spanish model. Range law for livestock drew from English common law precedents, but innovated to adapt to open-range conditions. Anglo Texans preserved Mexican homestead exemptions in debt laws and Spanish law on water rights. Revolutionizing slave law according to the model of the Deep South U.S. was not a foregone conclusion but a political choice within the context of a Spanglish creole legal culture.

(As I wrote in a note to HOP # 5: “Republic of Texas lawmakers tended to be very emphatic about remaking Texas law along Anglo-American lines when it came to, for example, slave law, but Texas courts tended to be very flexible towards incorporating Spanish and Mexican precedent in the law of marriage; see for example Smith v. Smith, 1 Tex. 621 (1846), in which the judge’s opinion rejects an appeal based on Anglo-American law regarding bigamy and incorporates the Spanish Las siete partidas marriage code as binding.”)

 

Race and slave law “drew its inspiration and precedents from practices in the southern United States, not from Hispanic America” (Campbell)

Constitutional conventions, legislatures, and courts thus developed the body of law necessary to protect and regulate slavery in antebellum Texas. This slave code, written and interpreted largely by Anglo-Americans, drew its inspiration and precedents from practices in the southern United States, not from Hispanic America.

Randolph B. Campbell, An Empire for Slavery: The Peculiar Institution in Texas, 1821-1865. Baton Rouge: Louisiana State University Press., 114.

“what laws have been translated, and where do they exist? … the dearest rights of my constituents as Mexico-Texians are guaranteed by the Constitution and the Laws of the Republic of Texas” (Seguín)

{56}

Juan Seguín’s Address in Senate

[February 1840]

Mr. President: With the permission of the honorable Senate, I beg leave to make a few remarks in regard to the last estimate of the honorable Secretary of the Treasury, originated in the Second Auditor’s office. I wish, sir, to know upon what data the Second Auditor founded his estimate of the cost of translating and printing the Laws to be enacted by the present Congress, to the amount of $15,000. I wish to know, Mr. President, what the cost of translating the laws, encacted [sic] by the former Legislative bodies of Texas is, laws which in virtue of the existing laws upon that subject, ought to have been translated and printed; also, what laws have been translated, and where do they exist? My constituents have, as yet, not seen a single law translated and printed; neither do we know when we shall receive them: Mr. President, the dearest rights of my constituents as Mexico-Texians are guaranteed by the Constitution and the Laws of the Republic of Texas; and at the formation of the social compact between the Mexicans and the Texians, they had rights guaranteed to them; they also contracted certain legal obligations–of all of which they are ignorant, and in consequence of their ignorance of the language in which the Laws and the Constitution of the land are written. The Mexico-Texians were among the first who sacrificed their all in our glorious Revolution, and the disasters of war weighed heavy upon them, to achieve those blessings which, it appears, are destined to be the last to enjoy, and as a representative from Bexar, I never shall cease to raise my voice in effecting this object. But, in order not to detain this honorable body, at this time, any longer, I will conclude these cursory remarks, leaving my detailed observations upon the subject to a more proper occasion.

Juan N. Seguín, A Revolution Remembered: The Memoirs and Selected Correspondence of Juan N. Seguín, edited by Jesús F. de la Teja (Austin, Texas: State House Press, 1991), 174.

“The role of nonlegal actors in the legal construction of race can be understood as a question about whether people obey or acquiesce to the law.” (Haney Lopez)

Non-Whites

Judges and legislators continue to participate in the legal construction of race, if for some only through the internalization [147] of socially prevalent racist beliefs. But what of non-legal actors? The role of nonlegal actors in the legal construction of race can be understood as a question about whether people obey or acquiesce to the law. To obey suggests a rational, considered relation to law in which the law coerces through threats and rewards that are evaluated and form the basis for decisions about how to act. Acquiescence suggests a more complex relationship with law, one in which the actor accepts the norms and assumptions underlying law as legitimate or at least binding, leading to behavior conditioned, not just through a rational calculus of rsisk and rewards, but through subscription to the normative world of the legal regime.[67] This question of obedience or acquiescence among nonlegal actors is central to assessing the intractability of existing racial categories. If people merely obey the law, then altering laws might promise quick changes in racial construction; however, change might be more difficult if through a lifetime of acquiescence people have fully embraced the assumptions about races embedded in current laws. Questioning whether people obey or acquiesce to law takes on a significantly different character, however, when posed in a discussion about the role of people of color in the legal construction of race. In this context, the question becomes one of complicity: If rather than simply obeying the law we have acquiesced to it, are we complicitous in our own oppression?

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 146-147.

 

“In the 1920s courts refused to hear cases involving Mexican Americans attempting to sue whites.” (De Leon)

While the earlier generation of Tejanos had established societies and associations to protect members of the community from injustices, in the 1920s, a new generation of activists founded organizations designed to afford Tejanos a greater integration into national life. Such was the intent of the Orden Hijos de America (Order of Sons of America), founded in San Antonio in October 1921. Compared to precursor groups, the OSA consisted of members born in the United States, extolled loyalty to America, and sought citizen rights through institutional channels. Soon, Sons of America chapters appeared in South Texas from Corpus Christi to Brownsville to Pearsall, fighting for educational [93]  equality, the desegregation of public places, the right to serve on juries, and the right to bring suit against a white person (in the 1920s courts refused to hear cases involving Mexican Americans attempting to sue whites).[44]

Arnoldo de Leon, Mexican Americans in Texas, 93-94.

 

  1. [44]Christian, “Joining the American Mainstream,” p. 589, 590, Hernández, Mutual Aid for Survival, p. 73.

Partial Index To Race Laws and Race Language in Republic of Texas Laws

Ninth Congress laws [1845]: https://texashistory.unt.edu/ark:/67531/metapth91047/

Witness in Court: “Sec. 26. All negroes, mulattoes, Indians, and all other persons of mixed blood, descended from negro or Indian ancestors, to the third generation inclusive, though one ancestor of each generation may have been a white person, shall be incapable in law to be witnesses in any case whatsoever, except for and against each other.” [Dec. 22, 1836]

Slave Trade as Piracy: “Sec. 1. … That if any person or persons shall introduce any African negro or negroes, contrary to the true intent and meaning of the ninth section of the general provisions of the constitution, declaring the introduction of African negroes into this republic, to be piracy, except such as are from the United States of America, and had been held as slaves therein, be considered guilty of piracy; and upon conviction thereof, before any court having cognizance of the same, shall suffer death, without the benefit of clergy.

Sec. 2. … That if any person or persons shall introduce into the republic of Texas, any Africans or any slave or slaves, from the United States of America, except such slave or slaves as were previously introduced and held in slavery in that republic, in conformity with the laws of that government, shall be deemed guilty of piracy, and upon conviction therefore, before any court having cognizance of the same, shall suffer death.” [Dec. 21, 1836.]

Militia, Republic of Texas: “every able-bodied male citizen of this republic, resident therein, who is or shall be of the age of seventeen years, and under the age of fifty years, (except as hereinafter excepted,) shall severally and respectively be enrolled in the militia, by the captain or commanding officer of the company, within whose bounds such citizens shall reside….

 

Republic of Texas Session Laws [does not include Ninth Congress]: https://texashistory.unt.edu/explore/collections/RTXSL/

Texas History Collection: https://texashistory.unt.edu/explore/collections/THC/

https://texashistory.unt.edu/explore/collections/RTXSL/browse/?q=color&t=fulltext&sort=

https://texashistory.unt.edu/ark:/67531/metapth45353/hits/?q=white

https://texashistory.unt.edu/ark:/67531/metapth45348/hits/?q=white

postal service, “no other than a free white European, Anglo-American or Mexican”: https://texashistory.unt.edu/ark:/67531/metapth45353/m1/61/?q=European

Convention Resolution: “all free white males and Mexicans opposed to a Central Government”: https://texashistory.unt.edu/ark:/67531/metapth45353/m1/77/?q=white

marriage, “any person of European blood or their descendants,” “Africans, or the descendants of Africans”: https://texashistory.unt.edu/ark:/67531/metapth45356/m1/234/?q=European

militia, “every free white able-bodied male inhabitant, over sixteen and under fifty years of age”: https://texashistory.unt.edu/ark:/67531/metapth45353/m1/28/?q=white

“Mexican trader”: https://texashistory.unt.edu/ark:/67531/metapth45348/m1/50/?q=Mexican

“free white male inhabitant, who shall have attained the age of twenty-one years” [Galveston]: https://texashistory.unt.edu/ark:/67531/metapth45348/m1/88/?q=white

“one dollar for every free white passenger”: https://texashistory.unt.edu/ark:/67531/metapth45348/m1/92/?q=white

headright lands: https://texashistory.unt.edu/ark:/67531/metapth45351/m1/35/?q=white https://texashistory.unt.edu/ark:/67531/metapth45355/m1/72/?q=white

Crimes and misdeameanors committed by slaves and free persons of color / “free white female,” “free white person,” etc.: https://texashistory.unt.edu/ark:/67531/metapth45355/m1/43/?q=white https://texashistory.unt.edu/ark:/67531/metapth45355/m1/44/?q=white

https://texashistory.unt.edu/ark:/67531/metapth91047/m1/115/?q=white

Treaty between “the white and red men of Texas” (“Comanche, Keechie, Waco, Caddo, Ana-da-kah, Ionie, Delaware, Shawnee, Cherokee, Lipan [Apache], and Tah-wah-karro tribes of Indians”: https://texashistory.unt.edu/ark:/67531/metapth91047/m1/145/?q=white

“Poll Tax … on every white male of this Republic, between twenty-one and fifty years of age”: https://texashistory.unt.edu/ark:/67531/metapth91047/m1/95/?q=white

“to prevent the assembling of colored persons”: https://texashistory.unt.edu/ark:/67531/metapth91047/m1/75/?q=colored