The Laws of Slavery in Texas: Historical Documents and Essays

★

The Laws of Slavery in Texas

Texas Legal Studies Series Jason A. Gillmer and William S. Pugsley, Editors Texas’s rich legal heritage spans more than three centuries and has roots in both Spanish law and English common law, but this dimension of the state’s history is relatively unexplored. Books in the Texas Legal Studies Series, sponsored by the Texas Supreme Court Historical Society, will examine a range of topics, including state-specific studies and those with a regional or national focus.

★

The Laws of Slavery in Texas Historical Documents and Essays Edited by Randolph B. Campbell Compiled by William S. Pugsley and Marilyn P. Duncan ★

University of Texas Press

Austin

Publication of this book was supported by a generous contribution from Larry McNeill, President, Texas Supreme Court Historical Society. “The Law of Slavery in Texas” originally appeared as Chapter 5 of An Empire for Slavery: The Peculiar Institution in Texas, 1821–1865, by Randolph B. Campbell (Baton Rouge: Louisiana State University Press, 1989), 96–114. © 1989, Louisiana State University Press. Reprinted by permission of the publisher. “The Texas Supreme Court and Trial Rights of Blacks, 1845–1860,” by A. E. Keir Nash, originally appeared in the Journal of American History 48, no. 3 (Dec. 1971): 622–642. © 1971, Organization of American Historians. Reprinted by permission of the publisher. “One Woman’s Fight for Freedom: Gess v. Lubbock,” by Mark Davidson, originally appeared in Houston Lawyer, January–February 2008, 10–15. © 2008, Houston Bar Association. Reprinted by permission of the publisher. “The Free Negro in the Republic of Texas: The Extent of Discrimination and Its Effects,” by Harold Schoen, originally appeared in the Southwestern Historical Quarterly 41, no. 1 ( July 1937): 83–108. © 1937, Texas State Historical Association. Reprinted by permission of the publisher. “The End of Slavery in Texas: A Research Note,” by Randolph B. Campbell, originally appeared in the Southwestern Historical Quarterly 88, no. 1 ( July 1984): 71–80. © 1984, Texas State Historical Association. Reprinted by permission of the publisher. Copyright © 2010 by the University of Texas Press All rights reserved Printed in the United States of America First edition, 2010 Requests for permission to reproduce material from this work should be sent to: Permissions University of Texas Press P.O. Box 7819 Austin, TX 78713-7819 www.utexas.edu/utpress/about/bpermission.html ∞ The paper used in this book meets the minimum requirements of ANSI/NISO Z39.48-1992 (R1997) (Permanence of Paper).

Library of Congress Cataloging-in-Publication Data The laws of slavery in Texas : historical documents and essays / edited by Randolph B. Campbell ; compiled by William S. Pugsley and Marilyn P. Duncan. — 1st ed. p. cm. Includes bibliographical references and index. ISBN 978-0-292-72188-3 (cloth : alk. paper) 1. Slavery—Law and legislation—Texas—History. 2. African Americans—Legal status, laws, etc.—Texas—History. 3. Slaves—Emancipation—Texas. I. Campbell, Randolph B., 1940– II. Pugsley, William S. III. Duncan, Marilyn P. KFT1601.6.S55L39 2010 342.76408'7—dc22 2009041589

★

Contents

Foreword Joe R. Greenhill Project Director’s Foreword Joseph W. McKnight Acknowledgments A Note on Editorial Style

Introduction. Human Chattels: The Laws of Slavery in Texas

ix xi xiii xv 1

Randolph B. Campbell

1. Laws on Slavery in Mexican Texas, 1821–1836 Legal Documents Empire of Mexico, Colonisation Law of January 4, 1823 Stephen F. Austin’s Colony Criminal Regulations, 1824, Articles 10–14 Congress of the United Mexican States, Decree on the Slave Trade in Mexico, July 13, 1824 Constitution of Coahuila and Texas, March 11, 1827, Article 13 State of Coahuila and Texas, Decree No. 18, September 15, 1827 State of Coahuila and Texas, Decree No. 35, November 24, 1827 State of Coahuila and Texas, Decree No. 56, May 5, 1828 Republic of Mexico, Decree of April 6, 1830 State of Coahuila and Texas, Decree No. 190, April 28, 1832 Articles Slavery in Early Texas, I Lester G. Bugbee Slavery in Early Texas, II Lester G. Bugbee

2. Laws on Slavery in the Republic and Statehood Periods, 1836–1860 Legal Documents Constitution of the Republic of Texas, 1836, General Provisions, Sections 6, 9, 10 Constitution of the State of Texas, 1845, Article 8

7 8 10 12 14 15 17 18 19 20 21 37 51

52 54

Articles The Law of Slavery in Texas Randolph B. Campbell The Texas Supreme Court and Trial Rights of Blacks, 1845–1860 A. E. Keir Nash Cases Case Study: One Woman’s Fight for Freedom: Gess v. Lubbock, 1851 Mark Davidson Case Report: Henry B. Hedgepeth and Others v. Felix W. Robertson, 1857

3. Laws on Free Negroes in the Republic and Statehood Periods, 1836–1860 Legal Documents Republic of Texas Congress, Debate on the Emancipation of Peter Martin, December 1839, and An Act to Authorize Wylie Martin to Emancipate His Slave Peter, January 3, 1840 Republic of Texas, An Act Concerning Free Persons of Color, February 5, 1840 Republic of Texas, An Act for the Relief of Certain Free Persons of Color, December 12, 1840 Article The Free Negro in the Republic of Texas: The Extent of Discrimination and Its Effects Harold Schoen Case Case Report: Jesse Benton v. Eli Williams, 1843

4. Laws on Slavery and Freedom in Confederate and Reconstruction Texas, 1861–1874 Legal Document Secession Convention of Texas, A Declaration of the Causes Which Impel the State of Texas to Secede from the Federal Union, February 2, 1861 Article The End of Slavery in Texas: A Research Note Randolph B. Campbell

[ vi ]

The Laws of Slavery in Texas

56 70

87 94 106

107

112 115

117

134 136

137

139

Cases Case Report: Emancipation Proclamation Cases: W. M. Hall v. T. M. Keese and Dougherty v. Cartwright, 1868 Case Report: William Garrett v. John H. Brooks, 1874

151

Notes Selected Bibliography Index

155 177 181

contents

144

[ vii ]

THIS PAGE INTENTIONALLY LEFT BLANK

★

Foreword

I

t is with special pride that I introduce this volume of readings. When the Texas Supreme Court Historical Society was established in 1990, the board of trustees identified several tasks that needed immediate attention: revitalizing the dormant Judicial Portrait Collection, interviewing retired justices, and preparing a narrative history of the court. With this book, we have taken the first step toward fulfilling the last of those objectives, an achievement of which our members may be justifiably proud. Few states are favored with a history society dedicated solely to their state supreme court. This society is among about twenty such organizations in the country, and of those, it is one of the few that relies entirely on private donations. The society celebrates its twentieth anniversary on January 13, 2010, a date that links back to the morning in 1840 when the Supreme Court of the Republic of Texas heard its first case. Describing the work of that court and its successors, down to the present, is a responsibility the society has shouldered on behalf of the state. I believe you will discover that this book about antebellum laws regarding slaves and free blacks in Texas accomplishes that objective admirably. The articles reprinted here rank among the best examples of Texas legal history. Thoroughly researched, thoughtfully organized, and exceptionally well written, each article has retained its relevance and integrity across the decades. Alongside the articles are noteworthy Supreme Court cases, which offer rare glimpses into the life of the litigants, as well as fifty-four years of constitutional provisions, decrees, and laws. All together, they make up an exemplary source of primary materials and historical analyses on this issue. We could have filled another volume—on the same topic—with all the material uncovered in the course of our research, not to mention the other types of litigation that arose between 1820 and 1870, five of the most exhilarating decades in Texas history. It is no wonder this particular half century in the court’s history

remains a perennial favorite among the state’s legal historians. But these years constitute only a fraction of the state’s three centuries of legal history. Despite years of accumulated research, we still know relatively little about the court and its operation during the nineteenth century, especially in comparison with the more complete legal histories that have been written for some other states. And practically nothing has been written about the evolution of the court during the twentieth century. These more recent stories are, in my opinion, every bit as interesting and relevant as those covered in this book. Having enjoyed a long and privileged association with the Supreme Court of Texas, I have witnessed or participated in many of the changes the court has undergone in personnel, organization, and judicial philosophy over the past seven decades. It is a rich and important history, worthy of study. This book may be a first step down a very long road, but it is a journey that is much needed and long overdue. With the continued support of our members and contributors, the society will still be en route long after we are all gone. I am proud to have been there at the outset. Joe R. Greenhill Chief Justice (ret.) Supreme Court of Texas Chair, Board of Trustees Texas Supreme Court Historical Society

[ x ]

The Laws of Slavery in Texas

★

Project Director’s Foreword

T

he history of slavery in the United States has been the subject of hundreds of works over the years, but with the important exception of Randolph B. Campbell’s 1989 groundbreaking book, the literature on the history of slavery in Texas is sparse. The sparseness is particularly evident in the area of slave law. Most works on the legal dimensions of slavery focus heavily on the Old South, and Texas law is discussed either briefly or not at all. National scholars no doubt have paid scant attention to Texas slave laws because Texas was an atypical slave state. As the only slaveholding state with a national border—a long and rather porous border with the nonslaveholding nation of Mexico—and with prior incarnations as a Spanish colony, a Mexican state, and an independent republic, Texas enacted slave laws that were uniquely affected by geography and legal heritage. A second reason for the paucity of legal analysis on Texas slave laws is the shortage of legally trained historians. The state has never fielded more than half a dozen practitioners at one time, despite the combined output from seven law schools and a resident pool of 77,000 practicing attorneys. Those few legal scholars who write on Texas subjects tend to gravitate to the rich treasure of republicera papers housed in the Texas State Archives and to Spanish and Mexican documents found in the Bexar Archives. Efforts to arrange the Bexar Archives were first made during the Great Depression, when a great many Spanish-language legal documents were translated. Unfortunately, few of the historians who conducted that painstaking work had any professional legal training. Since then, the state’s legal historians have been busily digesting the Spanish antecedents of state law and the activities of the Texas court through early statehood, and given time, they could easily fill a dozen volumes without sounding the bottom. Over the past decade, it has been my privilege to serve as director of the Texas Supreme Court Historical Society’s History Book Project. Our focus has been on preparing a comprehensive history of the Texas Supreme Court, a multivolume work that will fill a major gap in the state’s legal history. The publication of this collection of Supreme Court case reports, legislative documents, and articles is

a major milestone for our project and an important addition to the literature on slave laws in Texas. Joseph W. McKnight Larry and Jane Harlan Faculty Fellow and Professor of Law Southern Methodist University Director, History Book Project Texas Supreme Court Historical Society

[ xii ]

The Laws of Slavery in Texas

★

Acknowledgments

T

he publication of this volume of documents results from the inspiration of Bill Pugsley and Marilyn Duncan of the Texas Supreme Court Historical Society. Bill and Marilyn developed the idea for such a volume, researched the subject, located the documents, suggested the organization of the volume, and handled all publication arrangements with the University of Texas Press. Bill and Marilyn made the part that I have played in creating this volume a pleasure. I thank both of them. Randolph B. Campbell

T

he impetus for compiling this book came from Judge Craig T. Enoch, who urged us to “find the book you have in hand.” Joseph W. McKnight, director of the society’s History Book Project, steered our focus toward slave laws. We also appreciate the support of our president, Stephen G. Tipps, who linked the publication with the society’s twentieth anniversary, and Larry P. McNeill, the president-elect, who assured us that our chances of publishing a book on slave laws would be greatly improved if Randolph B. Campbell wrote the introduction. They were all correct. And we thank them for their counsel. For the task of locating the source material for historical laws and decrees, journal articles, and court cases, we want to thank the reference librarians at the Legislative Reference Library, Margaret Schlankey at the Dolph Briscoe Center for American History at the University of Texas at Austin, and particularly Leslie Prather-Forbis and her associates at the underappreciated gem of a resource, the Texas State Law Library. Special thanks go to Susan Burneson, whose phenomenal sleuthing and persistence uncovered many lost details. We also want

to express our appreciation to Shannon B. Irion for quickly and accurately transcribing all the laws and cases and most of the articles into electronic format. In preparing the collection of readings, we sought to include new material written especially for this book. Unfortunately, the constraints of the publishing schedule and manuscript length prevented the inclusion of this type of material. Nevertheless, we are indebted to Professor Jason A. Gillmer of Texas Wesleyan School of Law in Fort Worth, Professor Juliet E. K. Walker of the University of Texas at Austin, and Professor Joel Dinerstein of Tulane University in New Orleans for agreeing to contribute commentaries—on very short notice. Concerns over manuscript size prevented the inclusion of both John E. Fisher’s excellent article on free black laws and an extensive case study on Westbrook v. Mitchell by William K. Kroger of Baker Botts in Houston. A special word of thanks also goes to Professor Emeritus A. E. Keir Nash of the University of California at Santa Barbara for providing written comments about his article for our use. We are fortunate to have had a talented team of professionals at the University of Texas Press guide the publication of our book: sponsoring editor Bill Bishel, manuscript editor Lynne Chapman, graphic designer Derek George, and assistant marketing manager Nancy Bryan. We also appreciate the contributions made by freelance copyeditor Kip Keller, who combed through the final manuscript and smoothed out the rough edges, and Linda Webster, who produced the index. And finally, we express our deep gratitude to Mike Campbell, who, despite a heavy teaching load at the University of North Texas and administrative responsibilities at the Texas State Historical Association, set aside time to guide two novices through the intricacies of Texas slave law, polish their rough outline until it illuminated the topic, and produce a magnificent introduction and set of commentaries that demonstrate, once again, why he remains the foremost scholar in the field. William S. Pugsley and Marilyn P. Duncan

[ xiv ]

The Laws of Slavery in Texas

★

A Note on Editorial Style

I

n weaving together material published over a span of two centuries, we chose to preserve as many features of the source documents as possible. As a result, we set aside standard editorial policies regarding spelling, grammar, and usage in the interests of making faithful transcriptions of the original texts. Stylistic variations are particularly striking in the eighteenth-century legal documents, since consistency of spelling and punctuation was not yet a convention in printed materials. Proper names and other words in these laws and cases are often spelled in various ways, even within a single document. For example, Wylie Martin’s first name appears alternately as “Wylie,” “Wiley,” “Wyly,” and “Wily” in the Republic of Texas Senate Journal entries related to the act passed in his name. Archaic spellings and grammatical constructions abound, and commas and dashes are used in ways that look odd to the modern eye. Similarly, the scholarly essays in this volume retain the institutional styles of the publications in which they originally appeared. Therefore, certain names and terms that appear frequently in the book, although consistent within a particular essay, are not consistent from essay to essay: “Texas Supreme Court” is alternately “Texas supreme court” and “Texas state supreme court,” for example, and the names of other judicial and legislative bodies appear in both upper and lower case. Designations for a black person living outside of slavery include “free black” (the modern term), “free Negro,” “free negro,” “free person of color,” and “freeman.” Grammar and punctuation styles also differ among the journal articles, reflecting the conventions of the original publishers as well as the eras in which the articles were written. With minor exceptions, we reproduced the body of the articles without making editorial changes, except to correct obvious typographical errors. The endnotes were edited more substantially in the interests of clarity and consistency. For example, Roman numerals were changed to Arabic in all journal citations, and consecutive references to the same source were changed to “Ibid.” In the book chapter from An Empire for Slavery, we removed references

to other chapters (in both the text and the endnotes) to avoid confusion with other chapters in this volume. Throughout the book, primarily in the legal documents, ellipses are used to indicate the omission of blocks of text unrelated to the topic of slavery. In the case study on Gess v. Lubbock, the two concluding paragraphs that appeared in the original version were removed because they were not directly related to the case study. Ellipses that appear in the text of the articles, mostly in quoted material, were part of the original works. In the material original to this volume—the front matter, general introduction, article introductions, and bibliography—we have followed the stylistic guidelines in The Chicago Manual of Style (fifteenth edition) and Merriam-Webster’s Collegiate Dictionary (eleventh edition).

[ xvi ]

The Laws of Slavery in Texas

★

The Laws of Slavery in Texas

★ INTRODUCTION

Human Chattels The Laws of Slavery in Texas Randolph B. Campbell ★

T

he institution of African slavery as practiced in the antebellum United States depended on the ownership of humans as chattels, pieces of movable personal property. As chattels, slaves remained property for life with no legally prescribed way to earn their freedom. They had no property rights themselves but could be bought, sold, mortgaged, hired, bequeathed to heirs, and distributed in estate settlements. Clearly, the status of slaves as property defined the institution in vital ways for both the enslaved person and the slave owner and is a key to any study of slavery and the law. Property rights in organized societies generally require the protection of law, and England, the progenitor of most American legal concepts and practices, had a long experience with the laws of property. Thomas Jefferson’s list of the natural rights of man—“life, liberty, and the pursuit of happiness”—came directly, most believe, from John Locke’s “life, liberty, and property.” Historians can only speculate on why Jefferson changed “property” to the “pursuit of happiness”—a cynic might say that the pursuit of property is the pursuit of happiness—but the change certainly did not lessen Americans’ belief in the sanctity of property and the need for laws to protect it. Property rights stood as natural rights protected by an enforceable code of statute and case law. Treating slaves as property, however, presented a serious difficulty to those who wrote and interpreted the law because, unlike any other form of property, slaves were human. A dramatic explanation of this paradox appears in The Confessions of Nat Turner, William Styron’s novelistic “meditation on history” based on the greatest slave rebellion in the history of the United States. Styron has T. R. Gray, Turner’s court-appointed lawyer, explain to the slave rebel a “few jurisprudential details” concerning the special nature of human chattels. Turner understood the point before Gray began, but the lawyer went forward with his lesson in what he called the “rights of property” anyhow. If a farmer stops his wagon on a hill and its brake fails, Gray said, and the wagon careens down the slope and crashes into a home, killing a child, responsibility lies with the owner: “Because a wagon is an in-an-i-mate chattel. A wagon can’t be held culpable for its acts. You can’t punish the old wagon.” Gray then turned to what he called “the heart of the matter—which is to say, an-i-mate chattel.” “There are both similarities and differences between animate chattel and a wagon,” he told Turner. “The major and manifest similarity is, of course, that animate chattel is property like a wagon and is regarded as such in the eyes of the law. . . . By the same token, the major and manifest difference is that animate chattel, unlike inanimate chattel such as a wagon, can commit and may be tried for a felony, the owner being absolved of responsibility in the eyes of the law.” “The point is,” Gray concluded, “that you are animate chattel and animate chattel is capable of craft and connivery and wily introduction

[ 1 ]

stealth. You ain’t a wagon, Reverend, but chattel that possesses moral choice and spiritual volition. Remember that well. Because that’s how come the law provides that animate chattel like you can be tried for a felony, and that’s how come you’re goin’ to be tried next Sattidy.”1 Holding slaves responsible for their crimes was only one of numerous ways that statute and case law dealing with slavery recognized the humanity of the enslaved. Some states, although Texas was not among them, outlawed teaching slaves to read and write, skills that no other form of property could acquire. Also, judges often allowed considerations of slaves’ humanity to affect their decisions. This was evident, for example, in a decision rendered by Justice Abner S. Lipscomb of the Texas Supreme Court in Hagerty v. Harwell (1856). Rebecca Hagerty accused her husband of giving a slave woman with whom he had had “adulterous intercourse” and her two children to his sister after she (the wife) had instituted divorce proceedings. The husband’s action, according to his soon-to-be ex-wife, denied her an equal share of the three slaves as community property. Judge Lipscomb found it only reasonable that the husband “should trust the mother and her children in such cases to the kindness of his own sister rather than leave them to the injured and infuriated wife, who would possibly, yea probably, inflict severity, cruelty and hardship on them when the offender [the ex-husband] was beyond the reach of her angry passions.” Lipscomb noted, however, that in the divorce settlement, Mrs. Hagerty could receive other slaves of equal value to those that she had failed to win in her legal action.2 The size of the Hagertys’ estate gave him the luxury of making a decision that recognized the humanity of the slaves without depriving their masters of any property value. We can only guess at what the decision would have been if the Hagertys had owned just the three slaves in question. Some historians downplay the legal issues created by the holding of humans as chattels by arguing that slaveholding society did not recognize the humanity of the enslaved. For example, Marxist scholars contend that the capitalist economic system required laws that treated slaves purely as wealth-generating instruments. However, in the words of Thomas D. Morris, the foremost scholar of southern slavery and the law, the Marxist model does not capture “the messy and often complex attempts of Southern judges to deal with the problems created by ‘thinking property.’”3 Nor, for that matter, does any other model, including the argument that the extreme racism of whites denied the humanity of blacks and reduced them to the level of inanimate property. There are simply too many cases in which southern whites, their deeply racist views notwithstanding, sought legal recognition that their slaves and the free blacks they knew personally were human. Thus, in spite of the effort by some historians to say that slave societies treated bondsmen as property pure and simple, the essential question about the [ 2 ]

The Laws of Slavery in Texas

laws of slavery remains: how did statutes and court decisions solve the paradoxical issues created by the holding of humans as chattels? An even deeper issue is to understand what those laws tell us today about the realities of what southerners called their “peculiar institution.” The Anglo-Americans who brought slaves to Texas during the 1820s did not have to engage in original thought or research to establish the laws of slavery in their new homeland of Mexico, which gained its independence from Spain in 1821. Most of the immigrants came from southern states and therefore brought with them a thorough familiarity with every aspect of the South’s peculiar institution, including its legal framework. As early as January 1824, when Stephen F. Austin, the first Anglo empresario in Texas and a slaveholder himself, promulgated a set of civil and criminal regulations for his colony, he devoted five articles to the protection and regulation of slavery. For example, Austin defined the stealing of a slave or the aiding of a runaway as crimes punishable by fines as high as $1,000 and payment of damages to the owner. If a slave committed a theft, he could be given ten to one hundred lashes unless his owner chose to spare him the punishment by paying a fine equal to three times the value of the property stolen.4 The first of these rules protected slave property, and the second recognized the humanity of that property. Thus immigrants from the United States began, almost immediately on their arrival in Mexican Texas, to establish laws of slavery. At the same time, however, the creation of a legal framework to protect their institution faced a serious challenge from their newly independent host nation, which organized as a federation of states under the Federal Constitution of 1824. Fired with revolutionary idealism, national and state leaders in Mexico generally took a negative view of slavery and on more than one occasion threatened constitutional or legal action to restrict or even abolish it. The greatest threat came in 1827 when the constitution of the State of Coahuila and Texas outlawed slavery. But the next year, as was typical throughout the 1820s, practical considerations tempered the idealism of Mexican leaders. Recognizing the need to settle and develop the new nation and knowing that immigrants required assurances about the security of their property, the state legislature of Coahuila and Texas in 1828 permitted slaveholders to bring in their bondsmen as indentured servants—indentured for life and treated legally in essentially the same way as were slaves in the United States. The central government in Mexico City and the state government in Saltillo, Coahuila, did not issue decrees or write laws protecting slave property, but settlers in Texas knew that they had implicit approval for the institution and continued the legal practices necessary to support slavery.5 The Texas Revolution of 1835–1836, although not caused primarily by issues relating to slavery, secured the peculiar institution in Texas. Article I, section 9 introduction

[ 3 ]

of the Constitution of the Republic of Texas provided that all “persons of color” who were slaves before their migration to Texas and had remained in bondage thereafter would continue in the state of servitude provided that they were the “bona fide property” of the person claiming ownership. The constitution also protected the right of immigrants to bring slaves into Texas and prohibited any act of emancipation by the Congress of the Republic. The constitutional provisions in section 9 seem clear enough in their intent, but fifteen years later, Justice Abner S. Lipscomb of the Texas Supreme Court gave a strong statement of their effect on the laws of slavery in Texas. “It was manifestly the intention of the convention in framing this provision,” he wrote, “to remove all doubt and uneasiness among the citizens of Texas in regard to the tenure by which they held dominion over their slaves.” Mexico’s “fluctuating and unsettled” legislation concerning the legality of slavery had raised questions as to the ownership of human property, Justice Lipscomb continued, so “the true object and meaning of the provision . . . was to fix and establish the title of the master, whatever may have been the legal effect of Mexican legislation to impair that right and to nullify all Mexican legislation on the subject.”6 During the years 1836 to 1845, the Congress of the Republic of Texas passed laws necessary to uphold the general provisions of the constitution concerning slavery. Some legislators thought property in slaves so sacrosanct that they wanted to include it with land and homes in a law in 1839 exempting homesteads from forced sale under execution to pay debts. This proposal failed, in part because creditor interests insisted that some form of property remain available for sale to pay debts, but the suggestion indicates the strength of the desire to protect slave property. When Texas became a state in 1845, its constitution repeated all the assurances concerning the right of immigrants to bring in slave property. All existing laws of slavery, including restrictions on emancipation, remained in effect. During the remaining antebellum years, the state legislature occasionally added laws to strengthen the system, and the state supreme court handed down decisions that gave necessary case-law support to the slave code.7 Implementing the system of laws necessary to support slavery in Texas also required, at least in the minds of most whites, special legal provisions concerning the presence and behavior of free blacks (“free Negroes” in the terminology of that day). The contention that Africans were inherently inferior served as a key defense of slavery, so blacks who lived successfully as free people undermined the argument that they constituted a race fit only to be property. Moreover, slaveholders feared that free blacks would encourage slaves to run away and otherwise work to undermine the institution. Relatively few free people of African descent lived in antebellum Texas—almost certainly no more than one thousand at any time—but the perceived need to protect slavery from their influence led to harsh [ 4 ]

The Laws of Slavery in Texas

constitutional and statutory restrictions. The Constitution of 1836 prohibited “any free person of African descent” from residing in the Republic of Texas without the consent of congress, and the attitude expressed in that restriction remained effective throughout the antebellum years. Free blacks did not enter the state, and the other possible source of free blacks—voluntary manumission—was restricted by the requirement that masters who wanted to manumit a slave could do so only if they provided for removing the slave from the state. Those free blacks who managed somehow to stay in Texas, either by consent of the legislature or by what might be called “falling through the cracks” of society, were not recognized as citizens of the state and faced unequal treatment before the law. For example, regardless of their status as free persons, crimes that they committed drew the same legal penalties that applied to slaves.8 Sectional conflict over slavery led Texas to secede from the United States in February 1861 and join the Confederate States of America. Although the desire to protect slavery led to secession, leaving the Union and joining what most whites hoped would be a new nation brought few changes to the laws of slavery. After all, the institution had had all the necessary legal protections while Texas remained in the Union, and disunion created no reason to change the law. Constitutional revisions in 1861 brought only one noteworthy change where slavery was concerned—a prohibition on voluntary emancipation by masters under any circumstances.9 Defeat of the Confederate armies in 1865 brought an end to slavery and therefore to the laws of slavery in Texas but not without one final legal complication. When did slavery actually end in Texas? Did Lincoln’s Emancipation Proclamation of January 1, 1863, destroy the institution immediately, or did its death come on June 19, 1865, when General Gordon Granger, commander of federal troops at Galveston, announced that Lincoln’s proclamation had taken effect in Texas, or did slavery continue until December 1865, when the Thirteenth Amendment became part of the U.S. Constitution? Interested parties argued for different dates, depending on how each date affected slave-related contracts entered into during the war. For example, a person who hired a slave on January 1, 1865, by signing a promissory note due at the end of that year could try later to avoid payment by arguing that slavery had actually ended on January 1, 1863, voiding all property arrangements in slaves after that date. In response, the owner who hired out the slave would insist that slavery existed legally in Texas at least until June 19, 1865, making the note binding at the time it was signed. Texas courts had to decide cases involving the laws of slavery for several years after the institution had ceased to exist.10 The laws and decrees, constitutional provisions, reports of court decisions, case studies, and reprints of scholarly articles presented in this collection are introduction

[ 5 ]

arranged into four sections. Three sections deal with the laws of Texas in an essentially chronological fashion, covering the Mexican period, the years of the Republic and early statehood, and the Civil War. A fourth section, placed third in the volume because of its place in the story, deals with the laws of free blacks, largely during the antebellum period. Each document has a brief introduction that places it in the context of the legal framework of slavery in Texas and offers some analysis of its significance. The bibliography offers suggestions for additional reading on the broader subject of the laws of slavery as well as the institution’s legal history in Texas. The documents in this collection offer especially valuable insights into the day-to-day realities of slavery because the laws were not written and the cases were not decided with the intention of commenting on the rightness or wrongness of the peculiar institution. Traditional sources such as newspapers and travelers’ accounts often reflected a strong emotional commitment either to attack or to defend slavery, and therefore told as much or more about the writer as about the institution. Laws and legal actions, however, were intended only to ensure the security of slave property and settle disputes. In general, legislators and judges agreed that slavery was right, and they had no reason to misrepresent its nature. Perhaps judges made decisions in some cases with an eye to how critics of slavery would read them, but even in those instances, the statements of the facts of the cases open highly revealing windows into the institution. The most reliable sources on any controversial subject are those not created deliberately as statements on that subject. This book offers exactly those kinds of sources.

[ 6 ]

The Laws of Slavery in Texas

★ CHAPTER ONE

Laws on Slavery in Mexican Texas, 1821–1836 ★

EMPIRE OF MEXICO COLONISATION LAW OF JANUARY 4, 1823 ★

Introduction Inspired by revolutionary idealism, the leaders of Mexico’s independence movement often expressed antislavery sentiments. José María Morelos, for example, announced in 1813 that “slavery is forbidden forever.” This sentiment influenced the new nation’s leaders when they drafted a colonization law that was promulgated by Emperor Agustín de Iturbide in January 1823. The imperial colonization law did not prohibit the bringing of slaves into Mexico, but it forbade treating enslaved persons as property and declared free at the age of fourteen all children born to such persons. When Iturbide fell from power in February 1823, the colonization law fell with him. Stephen F. Austin’s first colony was the only one settled under this law, and the colonists ignored its terms. Nevertheless, Mexico’s first colonization law indicated to immigrants from the United States that slavery faced an uncertain future in their new homeland.

Excerpt from the Colonisation Law ... The Junta Nacional Instituyente of the Mexican empire, being convinced by the urgent recommendations of the government, of the necessity and importance of giving to the empire a general law of colonisation, have thought proper to decree as follows: ... Art. 30. After publication of this law, there can be no sale or purchase of slaves which may be introduced into the empire. The children of slaves born in the empire, shall be free at fourteen years of age. ... Therefore, we order all tribunals, judges, chiefs, governors, and all other authorities, as well civil as military and ecclesiastical, whatever class or dignity they may be, to comply with this decree, and cause it to be complied with in all its parts. . . .

[ 8 ]

The Laws of Slavery in Texas

Given in Mexico, 4th January, 1823 Signed by the Emperor

Source: H. P. N. Gammel, “Laws, Orders and Contracts for Austin’s Colony,” in The Laws of Texas, 1822–1897, 1:27–28, 30.

Laws on Slavery in Mexican Texas

[ 9 ]

STEPHEN F. AUSTIN’S COLONY CRIMINAL REGULATIONS, 1824 ARTICLES 10–14 ★

Introduction Slavery could not exist without laws to protect slaveholders in the ownership of their property and to regulate the conduct of slaves. Stephen F. Austin, himself a slaveholder, established the first legal framework for slavery in Texas when he issued a set of civil and criminal regulations for his colony in January 1824. Articles 10 through 14 of Austin’s Criminal Regulations amounted to Texas’s first “slave code.”

Articles 10–14 To All Persons: Charged by the superior authorities of the Mexican nation with the government of this colony until its organization is completed, and observing that the public peace and safety of the settlers is jeopardized by the pilfering depredations of strolling parties of Indians and robbers, and also that the good order of the colony is endangered by the introduction and transit of men of bad character and its good morals scandalized by their irregular conduct, I have thought proper, in order more effectually to insure good government, security, and tranquillity, to decree as follows: ... Art. 10. No person within this colony shall harbor or protect any runaway slave belonging to any person within this colony, or out of it, but shall immediately give information or deliver said slave to his owner, or to an alcalde, if the slave belongs within this colony, and to the superior judge, if such slave is from a foreign country, or any part of the nation. Any person who violates this article shall, on conviction thereof, pay all the damages which the owner of such slave may sustain in consequence of the loss of his labor, and shall, moreover, be finable in any sum not exceeding five hundred dollars, and be condemned to hard labor on public works until the superior government decides on the case. Art. 11. Any person who shall be convicted of stealing any slave or slaves, or enticing, or inducing them to run away, shall be fined in a sum not exceeding one

[ 10 ]

The Laws of Slavery in Texas

thousand dollars, and be condemned to hard labor on the public works until the superior government decides on the case. Art. 12. Any slave who shall steal any money or property shall, on conviction thereof, be punished with any number of lashes not less than ten nor more than one hundred, and the property shall be returned; the owner or his agent shall be notified to attend at the trial. Should the owner or his agent not wish to have the slave whipped, he shall have the privilege of preventing it by paying three times the amount of the property stolen, one-third of which shall go to the owner of the property and the other two-thirds to public uses; the master to pay the costs. Art. 13. And it shall be the duty of every person who shall find any slave from his master’s premises without a pass from his master or overseer to tie him up and give him ten lashes; and should the appearance of such slave justify the belief that he had run away, it shall be the duty of the person who takes him up to deliver him to his owner or overseer or to the nearest alcalde, who shall immediately notify the master thereof, and the said owner or his agent shall in such cases pay to the person apprehending said negro, and to the alcalde, should said slave be delivered to him, all reasonable costs and expenses. Art. 14. No person shall trade or traffic with any slave without permission from the owner or his agent, under the penalty of paying a fine of not less than twenty-five nor more than one hundred dollars, and also of paying treble the amount of the property purchased from such slave, should it appear that it had been stolen. ... Given at the town of San Felipe de Austin, in the province of Texas, this 22d day of January, 1824, fourth year of the independence and third of the liberty of the Mexican nation. Stephen F. Austin

Source: Dudley G. Wooten, ed., A Comprehensive History of Texas, 1685 to 1897, 1:488, 489–490, 492.

Laws on Slavery in Mexican Texas

[ 11 ]

CONGRESS OF THE UNITED MEXICAN STATES DECREE ON THE SLAVE TRADE IN MEXICO

July 13, 1824 ★

Introduction Although the overthrow of Iturbide as emperor in February 1823 meant annulment of the imperial colonization law, promulgated the previous month, the antislavery view represented in that law remained strong in Mexico. A new constituent congress, which issued governing decrees while writing a fundamental law for the nation, prohibited the slave trade in Mexico on July 13, 1824. Mexican leaders who opposed slavery later claimed that this decree outlawed the importation of slaves in all cases, even when they came with their owners, but Anglo-American settlers insisted that it prohibited only the bringing in of slaves as merchandise. The latter claim won de facto, since owners brought in their human property during the mid-1820s, but the anti-slave-trade decree stood as another warning that Mexican leaders did not welcome slavery in Texas.

Text of the Statute The sovereign general Constituent Congress of the United Mexican States has been pleased to decree the following: 1. Commerce and traffic in slaves, proceeding from any country and under any flag whatsoever, is forever prohibited in the territory of the United Mexican States. 2. Slaves that are introduced contrary to the tenor of the above article are free in virtue of the mere act of treading Mexican territory. 3. Every ship, whether domestic or foreign, in which slaves are transported to or introduced into Mexican territory, shall be irremissibly confiscated, with the remainder of its cargo; and the owner, the purchaser, the captain, the master, and the pilot shall suffer the penalty of a year’s imprisonment. 4. This law shall take effect from the day of its publication, but the penalties prescribed in the above article shall be suspended for six months with reference to those colonists who, in virtue of the law of the fourteenth of October last

[ 12 ]

The Laws of Slavery in Texas

upon the colonization of the isthmus of Guazacoalco, may land slaves with the intention of introducing them into Mexican territory.

Source: Manuel Dublán and José Maria Lozano, eds., Legislación Mexicana ó Colección Completa de las Disposiciones Legislativas, 1:710, as cited in Lester G. Bugbee, “Slavery in Early Texas, I,” Political Science Quarterly 13 (September 1898): 398–399.

Laws on Slavery in Mexican Texas

[ 13 ]

CONSTITUTION OF COAHUILA AND TEXAS, MARCH 11, 1827 ARTICLE 13 ★

Introduction Slavery escaped mention in Mexico’s Federal Constitution of 1824, but the institution drew intensely negative attention from leaders in the state of Coahuila and Texas, which was created in 1825 as part of the federation. Leaders from Coahuila dominated the state’s constituent congress, and in 1827 they approved a fundamental law that provided, in Article 13, for the gradual elimination of slavery by prohibiting the further importation of slaves and by freeing at birth all children born to slaves. Stephen F. Austin and other Anglo settlers in Texas had feared even stronger action—the immediate emancipation of all slaves—so rather than despair totally and perhaps even leave the state, they awaited implementation of the constitutional provision.

Article 13 ... Art. 13. From and after the promulgation of the constitution in the capital of each district, no one shall be born a slave in the state, and after six months the introduction of slaves under any pretext shall not be permitted.

Source: H. P. N. Gammel, “Constitution of the State of Coahuila and Texas,” in The Laws of Texas, 1822–1897, 1:424.

[ 14 ]

The Laws of Slavery in Texas

STATE OF COAHUILA AND TEXAS, DECREE NO. 18

September 15, 1827 ★

Introduction Six months after announcing the Constitution of the State of Coahuila and Texas, the state legislature took action to make the antislavery provisions of Article 13 effective. The decree of September 15, 1827, made extensive provisions for enumerating slaves in the state, keeping records of births and deaths, and providing for the education of children emancipated by the constitution. Stephen F. Austin was so convinced that action by the state government had doomed slavery in Texas that he began to think of recruiting immigrants from outside the South.

Decree No. 18 The Congress of the State of Coahuila and Texas decrees as follows: Art. 1. At the expiration of six months from the publication of the Constitution in the capital of each district, a list of the slaves in the respective municipalities, their age, names and sex, being distinctly expressed, shall be made in all the towns of the State. Art. 2. Each Ayuntamiento [town council] shall keep a register, wherein they shall keep an account of children (Coahuiltexians) born of slave parents, from the publication of the Constitution, giving notice to government every three months. Art. 3. All deaths of slaves shall be noted down in said register, of which notice shall be given to government, as specified in the preceding article. Art. 4. Those who introduce slaves, after the expiration of the term specified in article 13 of the Constitution, shall be subject to the penalties established by the general law of the 13th of July, 1824. Art. 5. Slaves, whose owners have no heirs apparent according to the existing laws, shall be immediately free on the decease of their masters, and shall not pass to any other kind of succession whatever under any aspect. Art. 6. The manumission mentioned in the preceding article shall not take place when the master, or his heirs, are poisoned or assassinated by one of their slaves; in that case they shall be subject to the provision of the laws. Art. 7. In each change of owner of slaves, in the nearest succession, even of

Laws on Slavery in Mexican Texas

[ 15 ]

heirs apparent, the tenth part of those who are to pass to the new owner, shall be manumitted; the said portion to be determined by lot, before the Ayuntamiento of the municipal district. Art. 8. Children and parents by adoption shall not mutually inherit slave property. Art. 9. The Ayuntamientos, under their most rigid responsibility, shall take particular care that free children, born of slaves, receive the best education that can be given them: placing them, for that purpose, at the public schools and other places of instruction, wherein they may become useful to society. Art. 10. Ayuntamientos that shall not be faithful in the fulfilment of this law, shall suffer a fine of five hundred dollars, which the Executive shall order appropriated to the benefit of public schools. Art. 11. This law shall be first published in this town on the morrow, and in the other towns on the day following the receipt thereof. The same shall be republished annually on the 16th of September until the year 1840. For its fulfillment, the Governor of the State shall cause it to be printed, published, and circulated. Given in Saltillo on the 15th of September, 1827. Ramon Garcia Rojas, President Juan A. Gonzales, D.S. Miguel Arcineaga, D.S.

Source: H. P. N. Gammel, “Laws and Decrees of Coahuila and Texas,” in The Laws of Texas, 1822–1897, 1:188–189.

[ 16 ]

The Laws of Slavery in Texas

STATE OF COAHUILA AND TEXAS, DECREE NO. 35

November 24, 1827 ★

Introduction Only two months after issuing the decree intended to put the portions of the Constitution of the State of Coahuila and Texas into effect, the state legislature found it necessary to add two articles that took into account the special nature of human property. The first allowed slaves to change masters if they wished, provided that the original owner received compensation. The second amended the article that gave freedom to slaves in the event of the death of an owner who had no heirs. If the owner was murdered or died in any unnatural way, manumission would not occur. What other form of property could choose to change its owner? What other form of property would be suspected of murdering its owner in order to gain freedom?

Decree No. 35 The Congress of the State of Coahuila and Texas decrees the following as additional articles to Decree No. 18 of the 15th of September last. Art. 1. The slave who, for the sake of convenience, shall wish to change his master, shall be permitted to do so, provided the new master indemnify the former for what the slave cost him agreeably to the conveyance. Art. 2. The manumission mentioned in the decree aforesaid shall not take place should the owner of the slave be assasinated or poisoned by an unknown hand, or die in any other unnatural way. Given in Saltillo the 24th of November, 1827.

Source: H. P. N. Gammel, “Laws and Decrees of Coahuila and Texas,” in The Laws of Texas, 1822–1897, 1:202.

Laws on Slavery in Mexican Texas

[ 17 ]

STATE OF COAHUILA AND TEXAS, DECREE NO. 56

May 5, 1828 ★

Introduction Although a decree issued in September 1827 provided the means to gradually eliminate slavery, in accordance with the Constitution of Coahuila and Texas, American immigrants into the Mexican state continued to search for a way to keep their human property in bondage. They reminded the state legislature that immigrants would not bring in the labor so badly needed to develop Texas unless laws secured the right to control hirelings and servants. Political leaders responded by issuing a decree on May 5, 1828, that recognized the validity in Texas of contracts signed between masters and servants in other countries. This decree allowed slave owners to “free” their slaves before migrating to Texas and then sign contracts that bound them, and their children after them, to lifetimes of service in payment for their “freedom.” The state legislature thus undid virtually everything that the constitution and earlier decrees had done to rid Texas of slavery.

Decree No. 56 The Congress of the State of Coahuila and Texas, attending to the deficiency of working men to give activity to agriculture and the other arts, and desiring to facilitate their introduction into the State, as well as the growth and prosperity of the said branches, has thought proper to decree: All contracts, not in opposition to the laws of the State, that have been entered into in foreign countries, between emigrants who come to settle in this State, or between the inhabitants thereof, and the servants and day laborers or working men whom they introduce, are hereby guaranteed to be valid in said State. For its fulfillment, the Governor of the State shall cause it to be printed, published, and circulated. Given at the city of Leona Vicario on the 5th of May, 1828.

Source: H. P. N. Gammel, “Laws and Decrees of Coahuila and Texas,” in The Laws of Texas, 1822–1897, 1:213.

[ 18 ]

The Laws of Slavery in Texas

REPUBLIC OF MEXICO DECREE OF APRIL 6, 1830 ★

Introduction Immigrants from the United States poured into Texas during the 1820s, creating an overwhelming Anglo presence in the province and intensifying the fears of leaders in Mexico City that their nation would lose control of the region to foreigners. Manuel de Mier y Teran, a Mexican patriot who held a variety of positions in the government during the first decade after independence, toured Texas in 1828–1829 and concluded that only a suspension of immigration from the United States could save Texas for Mexico. In response, the Mexican Congress passed the Decree of April 6, 1830, which ended all immigration from the United States into Mexico and prohibited the bringing in of slaves under any guise. Although the 1828 contract system permitting the importation of slaves as servants remained in place, the Decree of April 6, 1830, cast new doubt on the future of the institution in Texas. “No one,” Stephen F. Austin wrote, “will be willing to risk a large capital in Negroes under contracts with them.”

Excerpt from the Decree ... Art. 9. The introduction of foreigners across the northern frontier is prohibited under any pretext whatever, unless the said foreigners are provided with a passport issued by the agents of this Republic at the point whence the said foreigners set out. Art. 10. No change shall be made with respect to the slaves now in the states, but the federal government and the government of each state shall most strictly enforce the colonization laws and prevent the further introduction of slaves. ...

Source: Manuel Dublán and José Maria Lozano, eds., Legislación Mexicana ó Colección Completa de las Disposiciones Legislativas, 2:239, as cited in Alleine Howren, “Causes and Origin of the Decree of April 6, 1830,” Southwestern Historical Quarterly 16, no. 4 (April 1913): 416.

Laws on Slavery in Mexican Texas

[ 19 ]

STATE OF COAHUILA AND TEXAS, DECREE NO. 190

April 28, 1832 ★

Introduction The Decree of April 6, 1830, outlawed the importation of slaves into Texas but allowed continuation of the subterfuge, begun in 1828, of holding bondsmen as contract laborers who were bound to servitude for life. However, in April 1832 the legislature of Coahuila and Texas passed a new colonization law that contained a clause restricting the term of service under any contract to a maximum of ten years. At that point, slavery appeared so hemmed in legally by national and state restrictions that it could not develop further as an institution of significance in Texas.

Excerpt from the Decree The Congress of the State of Coahuila and Texas has thought proper to decree as follows: ... Art. 35. The new settlers, in respect to the introduction of slaves, shall conform to the laws that are now, or shall be hereafter enacted on the subject. Art. 36. Servants and day laborers, hereafter introduced by foreign colonists, cannot be obligated by any contract to continue in the service of the latter longer than ten years. ... Given in the city of Leona Vicario on the 28th of April, 1832. José J. Grande, President. Manuel Muzquiz, D.S. Cesario Figueroa, D.S. ad interim.

Source: H. P. N. Gammel, “Laws and Decrees of Coahuila and Texas,” in The Laws of Texas, 1822–1897, 1:299, 303.

[ 20 ]

The Laws of Slavery in Texas

Slavery in Early Texas, I Lester G. Bugbee ★

Introduction Lester G. Bugbee was a native Texan, born in Woodbury, a small Hill County town, in 1869. He earned BLitt and MA degrees at the University of Texas and studied two years at Columbia University before returning to his alma mater in 1895 as a history tutor. Bugbee helped found the Texas State Historical Association in 1897 and the following year published his most important scholarly writing—a forty-page article on slavery in early Texas that appeared in two parts in the Political Science Quarterly. Unfortunately, Bugbee died of tuberculosis in 1902 at the age of thirty-three, depriving the emerging field of Texas history of a highly promising scholar. Bugbee’s study of slavery in Texas during the 1820s focused on a single interpretive point—the claim made by abolitionists in the antebellum North and echoed by important academic historians during the post–Civil War years that the Texas Revolution developed because the government of Mexico opposed slavery. “Slavery in Early Texas” demonstrated convincingly that the national government in Mexico City and the state government of Coahuila and Texas never acted decisively to prevent slavery in Texas. Bugbee’s title was somewhat misleading in that he did not write about vitally important aspects of slavery such as what it was like to live as a slave. But no one has done better research into the decrees, laws, and constitutional provisions related to slavery in Mexican Texas.

T

he history of slavery in Texas, so far as it is of interest to us, began with the year 1821, when Moses Austin received permission to plant an AngloAmerican colony on the banks of the Colorado and the Brazos. There may have been a few negroes in the little towns of Bexar and La Bahia at that time, but the number must have been insignificant and limited wholly to personal servants in the families of the well-to-do.1 The coming of the energetic pioneers from the United States and the development of the rich bottom lands of Texas marked the beginning of a new era, not only in the history of Mexico, but in that of America; and the question of slavery in this wilderness, at that time seemingly of interest only to a few thousand farmers, was soon to engage the attention and determine the policy of the great neighboring nation. Laws on Slavery in Mexican Texas

[ 21 ]

Under the Spanish rule in Mexico negro slavery was tolerated and protected. The conditions, however, were so unfavorable that the institution never obtained a secure foothold, and was almost unknown outside of Vera Cruz and the hot lands. Even in the most favorable localities and after the introduction of cane growing, the slaves formed no considerable element in the population of the country. As late as 1793, according to Humboldt, there were not more than nine or ten thousand in all New Spain.2 H. G. Ward, the British agent in Mexico in 1825–27, believed that the number did not exceed six thousand in 1793, and that it continued to decrease till 1827. So many were manumitted, and so many received their freedom during the long struggle for independence by joining the ranks of the patriot army, that Ward thought he was “justified in stating that there is now hardly a single slave in the central portion of the republic.”3 Not one could be found in the valley of Cuernavaca, or even in the Orizaba and Cordova regions, which are the great sugar and coffee districts of Mexico.4 About fifteen years later, Waddy Thompson, the representative of the United States government, did not see half a dozen negroes during his entire residence of two years in the Mexican capital.5 The petition of Moses Austin for permission to settle an Anglo-American colony in Texas was officially granted in January, 1821. No mention was made of slavery in either the petition or the grant. It was the intention of Austin, however, to draw most of his colonists from the southern United States; and there can be but little doubt that he would have favored the removal of slaves to Texas as part of the capital of his planters. But it was not for him to lead the migration for which he had prepared the way. The long journey to San Antonio de Bexar, with its hardships and exposure, resulted in his death,6 and the work of carrying forward the colonization of Texas fell to his son. Stephen Fuller Austin, then a young man of twenty-eight, at once made an exploring tour through Texas, was recognized as heir to his father’s grant, and received the governor’s approval of the plan which he had drawn up for the distribution of lands.7 This plan, after making provision for the head of the family and allowing a liberal portion for the wife and each child, further provided for a grant of eighty acres of land for each slave belonging to the family.8 In approving this plan, the government of Mexico, through its representative in Texas, acquiesced in and substantially encouraged the introduction of slaves into the new settlement.9 A great many immigrants found their way into Texas before the summer of 1822, most of them bearing contracts signed by Austin or his agents, in which they were promised land in accordance with the plan already mentioned. They were nearly all from the southern portion of the United States, and many of them were the owners of at least a small number of slaves. Thus it was that the institution was introduced into Texas. But difficulties arose: for some reason the governor of Texas declined to put [ 22 ]

The Laws of Slavery in Texas

the settlers in possession of the promised lands, and Austin felt that the situation demanded his presence in the City of Mexico, where Congress was in session. Apparently it is not generally understood how momentous were the consequences of that journey. He remained in Mexico for more than a year; he made himself familiar with the language and the life of the people; he became intimate with many of the leaders of the Mexican nation; and he inspired the government with a confidence in his character and purpose that greatly facilitated the growth of the infant settlement in the wilderness of Texas. Austin arrived at the Mexican capital in April, 1822—a little more than a year after the proclamation of the Plan of Iguala and about two months after the assembling of the first Congress. He witnessed in rapid succession the elevation of Iturbide to the imperial throne, the dissolution of Congress, the fall of the Emperor and the establishment of the provisional republican government. All this time he was urging, in memorial after memorial, the confirmation of the grant made to his father by the Spanish government. But his was not the only application before Congress for leave to bring settlers to Mexico;10 and to meet this demand for lands that body very early occupied itself with framing a general colonization law. The wheels of government, however, move slowly in Mexico, and particularly was this true during that year of exciting change. Austin believed that the law would never have been passed, had he not been present and constantly urging the matter upon the attention of the lawmakers.11 The question of slavery presented the greatest obstacle to the passage of the law. Austin believed that at least temporary toleration of slavery was necessary to the success of his colony. It was the slaveholding population of Missouri, Louisiana, Tennessee, Kentucky, Arkansas, and Mississippi that had shown the greatest interest in his settlement, and it was from the slave states of the American Union that he expected future support in his enterprise. On the other hand, the Mexican people were at that time passing through a period of fervent advocacy of liberty. Had they not just been freed from Spain? Should they not extend this great boon, liberty, to all people within the authority of their laws? Then, too,—and this was more important than all their theories of liberty and natural equality,—it was merely an abstract question with them, for they had few slaves to lose by a general emancipation. It was the opinion of some members of Congress that slavery should be made the subject of a separate law, in which other phases of the matter, as well as its relation to the colonization of the provinces, could be considered in detail;12 but it was of the highest importance to the interests of Austin that the matter should be settled at once. A colonization law, however liberal its terms might be in other respects, would be almost a dead letter so far as he was concerned until Congress announced its policy as to slavery. Laws on Slavery in Mexican Texas

[ 23 ]

Three colonization bills were offered in Congress. One was silent on the subject of slavery except as to cities, declaring that foreigners might be allowed the privilege of founding cities only on the condition of adopting the Spanish language and freeing their slaves.13 Another declared outright for immediate emancipation.14 But the bill reported by the committee on colonization contained a clause to the effect that slaves introduced into the Empire by colonists should remain so for life, and their children born in the Empire should gain their freedom at the age of fourteen. During the debate on this subject, no member announced himself as inclined to make any greater concession to slavery. After considerable delay, Congress finally reached the colonization bill, August 20, 1822. During the general discussion of the measure very little was said about slavery, and no objection was raised on the floor to the disposition of the matter made by the committee. The bill, however, proved unsatisfactory; and, after a discussion of only two of its thirty-one articles, it was recommitted with certain instructions, none of which concerned slavery.15 No further progress was made in the matter. The attention of Congress soon became wholly absorbed in the approaching struggle with the Emperor; and the crisis was reached on October 30, 1822, when Iturbide drove the members out of doors at the point of the bayonet. Austin was a close observer of these events, and, as they progressed, lost all hope of obtaining even as favorable a law as the committee on colonization had reported. He very probably regarded the dispersion of Congress as a stroke of good fortune; at all events, he was most emphatic a little later in his belief that no law permitting the introduction of slaves could possibly have been passed through Congress.16 Immediately after the dispersion of Congress, the Emperor organized a Junta of thirty-five members, which succeeded to the legislative powers of the former body. Its members were at once besieged by the indefatigable Austin. On November 14, the same bill which had been reported to Congress was taken up by the Junta. The article relative to slavery was reached on the 26th and provoked some discussion. All were anxious to secure total abolition as soon as possible, but all were inclined to pay due regard to the rights which masters had acquired under existing laws. Señor Parras alone presented the subject from the point of view of the colonists. He explained that there would necessarily be a great scarcity of labor in the new settlements; and said that the committee had been assured that colonists would be unwilling to remove to the Mexican provinces, unless some provision was made for protecting them in the ownership of their slaves. He thought that sufficient safeguards were thrown around the privilege extended to the colonists, in the prohibition of the slave trade and in the emancipation of all children of slaves, born in the Empire, at the age of fourteen.17 The article was finally passed in the following form: [ 24 ]

The Laws of Slavery in Texas

There shall not be permitted, after the promulgation of this law, either purchase or sale of slaves that may be introduced into the empire. The children of such slaves, who are born within the empire, shall be free at fourteen years of age.18

The passage of the colonization bill, and particularly of the article relating to slavery, was probably due to the tact and energy of Austin. In his letter of January 8, 1823, to Governor Trespalacios, he said: I talked to every member of the Junta upon the necessity which existed in Texas, Santander and all the other uninhabited provinces, that the new colonists should be permitted to bring their slaves, and in this manner I procured the article.19

This is a quiet way of saying that the clause referred to was probably carried through the Junta by Austin’s persistent lobbying. There must have been considerable opposition in the committee to this concession to slavery. Four days before the article came up for discussion by the Junta, Austin wrote to Josiah H. Bell as follows: As the law now is, all slaves are to be free in ten years, but I am trying to have it amended so as to make them slaves for life and their children free at twenty-one years,—but do not think I shall succeed in this point, and that the law will pass as it now is, that is, that the slaves introduced by the settlers shall be free after ten years. As regards all other matters there will be no difficulty.20

As there had been no discussion of the matter in the Junta prior to the writing of this letter, and as during the discussion the bill never received the form mentioned by the letter, the state of affairs referred to by Austin is most probably accounted for by the supposition that there was a warm debate in the committee before the subject came up in the Junta. At any rate, Austin seems to have been unduly despondent, for he gained almost as much as he hoped for—perhaps because of his never-ceasing representations “to every member of the Junta.” The completed colonization law was promulgated by the Emperor on January 4, 1823. It was annulled after the overthrow of Iturbide; but, by special decree of the new government, Austin’s grant was confirmed and he was allowed to go forward with its settlement under the provisions of the annulled law. Thus it was that the government of Mexico, while all buoyant with the hopes born of the Revolution and moved by theories of the equality and brotherhood of man, authorized the introduction of negro slavery into one of its fairest provinces, while Laws on Slavery in Mexican Texas

[ 25 ]

it deluded itself with the belief that it was providing for the almost immediate extermination of the abhorred institution. In the mean time the “Texas fever” had spread rapidly through most of the slave states of the American Union, and immigration to that province became everywhere the topic of common conversation. When Austin returned to the United States, in 1821, from his exploring tour through Texas, he found nearly one hundred letters from the neighborhood of his old home in Missouri awaiting him at Natchitoches. His partner wrote him from New Orleans that “you and your colony excite more interest than the assembled sages of the nation.” Many propositions reached him from men who desired to become sub-contractors and who offered to introduce bodies of settlers ranging in number from ten to three hundred. Austin was elated. He addressed a letter to the governor of Texas, asking that his grant be enlarged and that all restrictions as to the number of his colonists be removed.21 The great interest in the Texas colony, which was rapidly spreading throughout a large portion of the United States, also assumed a practical form. Several vessels sailed from New Orleans during the winter of 1821–22, bearing colonists and supplies; it is known that one of these vessels had on board sixty settlers, and another a few more than twenty. A great many immigrants came by land from Natchitoches. “Camps” sprang up along the Colorado and the Brazos, and the prospect seemed fair that a province would be peopled and civilized in a day. But Austin’s long absence in Mexico, together with a number of disastrous events in Texas, served to discourage the settlers; and when he came back from the capital in 1823, he found that a large number of his followers had returned home. Unfavorable reports as to the government of Mexico, and particularly as to adverse slavery legislation, had also become current in the United States, and immigration had almost wholly ceased. Austin’s return, however, brought revived hope; confidence was restored, and before the end of 1824 he had the satisfaction of seeing all but a very few of the three hundred families in possession of their land. The success of the colony was assured. The question of slavery, however, was by no means finally disposed of by the decree of Iturbide’s Junta, which allowed American immigrants to bring their slaves into Texas. The Mexican people had still to speak. The national constitution, which might dispose of the matter, was yet to be adopted; and, after the federal form of government was determined upon, the framing of the state constitution and of the state colonization law offered other opportunities for the destruction of the institution in Texas. The Congress which Iturbide had dispersed in October, 1822, reassembled the following March and remained in session till October 30, 1823.22 It made only one provision affecting slavery. By decree of October 14, the province of Itsmo [ 26 ]

The Laws of Slavery in Texas

was created and opened to foreigners. Immigrants were allowed to bring their slaves, but a distinct warning was probably intended in an otherwise unnecessary clause, which said that they should be subject to whatever laws might be made in future relative to such property.23 The Constituent Congress which framed the Mexican constitution met in November, 1823. A decree of July 13, 1824, left no room for doubt as to the attitude of that body towards at least one phase of the slavery question. It prohibited the slave trade, domestic and foreign, in the most positive terms. Infractions of the law were to be punished with the greatest severity; any vessel engaged in this traffic, which brought slaves to Mexico, was to be confiscated with its cargo; and the owner, purchaser, captain, master and pilot were to be condemned to a year’s imprisonment. Slaves brought into the country by such trade recovered their freedom the moment they touched Mexican soil. A suspension of penalties for six months was, however, declared in favor of those colonists who might wish to land slaves in the recently created province of Itsmo. This decree was directed essentially against the slave trade; it contained no express prohibition of the removal of slaves to Mexico by their owners, whether citizens or immigrants, for purposes other than trade. The exception made in favor of the colonists on the isthmus of Tehuantepec may possibly be construed as indicating the intention of Congress to exclude the slaves of all other colonists, and may thus be regarded as an implied prohibition of the further introduction of negroes into Texas. It will be noted, however, as we proceed, that the Congress of Coahuila and Texas, which was hostile to slavery, did not so construe it, but expressly gave the colonists permission to bring in their slaves for six months after the publication of the state constitution of 1827.24 Here the matter rested, so far as federal legislation is concerned. The Acta Constitutiva25 (adopted January 31, 1824) was silent on the subject, as was the national colonization law.26 The federal constitution, which was completed and promulgated on October 4, 1824, made no mention of the subject.27 When Congress adjourned in December, Mexico had no law prohibiting incoming settlers from bringing their slaves with them, unless, indeed, the decree of July 13, 1824, can be construed as implying such a prohibition. Some alarm had been created among the American settlers by the rumor that it was the intention of the Mexican leaders to introduce into the federal constitution a clause abolishing slavery. At the invitation of the acting political chief of Texas, the inhabitants of Austin’s colony held a mass meeting on June 5, 1824, to formulate instructions for the guidance of the representative of Coahuila and Texas in the Constituent Congress. At this meeting two subjects were considered—the tobacco monopoly of the government and slavery, and a memorial on each was addressed to Congress.28 The memorial on slavery asked Laws on Slavery in Mexican Texas

[ 27 ]

that the slaves of the three hundred families settled in Texas be exempted from any emancipation provision that might be made by Congress; it appealed to the guarantee made by the colonization law, under which most of the settlers had felt safe in bringing their slaves with them; it laid emphasis upon the fact that such labor was necessary in clearing and cultivating their farms; and assured the government that no slaves had been brought into the country for speculative purposes.29 Although the Congress passed no law prohibiting settlers from bringing their slaves into Texas, the attitude of the Mexican people soon became well known in the United States and materially injured the Texas settlements. People were slow to put in jeopardy such valuable property as their slaves. Exaggerated rumors became current everywhere, and from all quarters letters came to Austin asking for more definite information in regard to the matter. The following extract from a letter from J. A. E. Phelps, of Missouri, to Austin will serve to show how this decree against the slave trade became distorted by the United States newspapers: Nothing appears at present [he wrote], to prevent a portion of our wealthy planters from emigrating immediately to the province of Texas but the uncertainty now prevailing with regard to the subject of slavery. There has been a paragraph that has gone the round of nusepaper publication in the United States, perporting to be an extract from a Mexican paper; Which precludes the introduction of Negro property into the Mexican Republick, without exception; Subjecting the persons so offending to the severest penalties, and also an immediate emansipation of those slaves now belonging to the citizens of the province of Texas; and fredom to the slave that touches the soil of Mexico. If this be a fact, it will check the tide of emigrating spirits at once; and indeed it has had its influence already.30

Rumors even more adverse to the settlement had already become current in Alabama. A letter to Austin from George Nixon, of that state, dated November 14, 1823, had this to say: I think It my Dutey to say to you that the Genral [General Eugenio Cortez, on his way to Philadelphia, but forced to put into Mobile for repairs], Sayes to me that all Negrow in the Provances of Mexico are free, and that Slavery will not be Premited and that you have No author to Grant Lands Nor inVite Settlers to the Provance.31

The interests of the colony perhaps suffered more from partial or exaggerated reports in the two sections just mentioned than elsewhere in the United States. [ 28 ]

The Laws of Slavery in Texas

But from all quarters came inquiries as to the present status of slavery and the probable future legislation of the Mexican nation. It must not be understood, however, that these reports altogether stopped immigration; Texas was being peopled in spite of the uncertainty about slavery. The Mexican authorities in Texas were not ignorant of the fact that the incoming colonists were bringing slaves with them, and yet they continued to encourage immigration, not regarding the introduction of slaves by their owners removing to Mexico as a violation of the decree of July 13, 1824. It is now time to inquire into the attitude of the state government of Coahuila and Texas towards slavery, and to follow briefly the acts of the state Congress. By the Acta Constitutiva, January 31, 1824, the provinces of Coahuila, Texas and Nuevo Leon were united into one state under the title “Eastern Internal.”32 By decree of May 7, 1824, Nuevo Leon was made a separate state,33 Coahuila and Texas remaining united. The old name was dropped and the state was known as “Coahuila and Texas.” The federal constitution adopted five months later approved this arrangement,34 and Coahuila and Texas continued legally united until the Revolution. The Constituent Congress of the state met in August, 1824, and remained in session till June, 1827. The colonization law—under which all the contracts in Texas, except Austin’s first, were made—was approved March 24, 1825.35 This was one of the most liberal invitations ever issued by a nation to foreigners. Grants of land, to which the adjective “princely” may in truth be applied, were offered almost for the asking. As those who passed the law were well aware that it was directed chiefly to the Americans, it cannot be said with any semblance of support that the Mexicans had yet come to regard the Americans with jealousy or suspicion. Nor could they have felt much alarm at the introduction of the slaves, who they knew were every day being brought across the border. The slavery question, which was inseparably connected with the colonization of the provinces, was dismissed, so far as the state colonization law is concerned, as follows: Art. 46. In respect to the introduction of slaves, the new settlers shall subject themselves to the laws that are now, and shall hereafter be established on the subject.36

This was understood to amount practically to a declaration of at least temporary toleration, not only of slavery, but also of the further introduction of slaves by incoming settlers. It is true that this view is open to objection if we regard the national law of July 13, 1824, as does Professor von Holst, as excluding the introduction of slaves into all other colonies, by making a special exception of the isthmus of Tehuantepec. The matter need not, however, be discussed at this Laws on Slavery in Mexican Texas

[ 29 ]

point, since the interpretation put upon that law a little later by Austin and the state Congress will perhaps aid us in passing final judgment. The Congress made slow progress in the matter of framing the constitution of the state; but it soon became known that the body was hostile to slavery. The alarm was sounded through Texas; and, as usual, exaggerated rumors flew from settlement to settlement, until many of the slaveholders actually began to make preparations to return to the United States.37 Even Austin seems to have been much affected by the panic, as he faced the possibility of losing his most valuable colonists, and in consequence was plunged into one of those fits of gloom which sometimes settled heavily upon his heart. He drew up a strong memorial, which was pronounced by his Bexar friends to be algo duro,38 and forwarded it through the political chief to Congress. The Americans in Texas, of course, warmly supported Austin’s view. The Spanish leaders in Bexar were but little behind in endorsing the sentiments of the empresario. There has been, it appears, a general misapprehension as to the relations existing at that time between the Spanish and American elements in Texas. Instead of being hostile to the interests of the colony, the citizens of Bexar were willing to go almost as far as the American settlers in asking the government to grant toleration to slavery. When an adverse report on this subject was made to Congress in the form of the first draft of the thirteenth article of the constitution, the Bexar authorities at once interested themselves to have the objectionable article eliminated. Austin’s brother, then in Bexar, wrote as follows: The Ayuntamiento of this place presented a memorial to the Legislature as soon as the project arrived—praying that the discussion on that important point might be suspended untill they could have time to consider upon it, and inform the other Ayuntamientos of the Department that they might do the same. Since then they have given it the attention it merited—and by the last mail have sent up a representation couched in the strongest language they could express in favor of the admission in the New Colonies—they declare it to be indispensable for the prosperity of this Department; in fact they have said all they can say—as to the project of freeing the slaves of the 300 families they declare it to be an unjust abuse of the rights of the Colonists.39

In such language the brother of the empresario expressed his satisfaction as to the attitude of the Mexican officials in San Antonio. Austin felt that a crisis had been reached. Writing to one of his agents, who was making contracts for him in the United States while the matter was pending in Congress, he insisted that it be explained to the families who were then about to start to Texas, and said that he would in no manner be held accountable or [ 30 ]

The Laws of Slavery in Texas

censurable for embarrassments arising from the slow action of the government. The constitution, he explained, was under discussion and the slavery question was yet undecided; he believed that the unrestricted admission of slaves would not be permitted, though most probably those then in the colony would remain slaves for life.40 In addition to his exhortations addressed to the Texas representative and the memorial which he directed to Congress, Austin felt that a personal agent in the capital was necessary to the interests of Texas. His brother, James Brown Austin, was selected for this mission. After remaining for some time in Bexar, probably with good effect, Brown Austin reached the capital in September. He found Congress almost unanimous on the subject of slavery, and was at once convinced that “the most that can be obtained is permission for the three hundred families to hold their slaves.”41 The anti-slavery men were led by the deputy Carrillo, who seems to have been the controlling spirit in the body. It was believed by Brown Austin that all the members except Bastrop and one or two others had been bought42 by this aspiring leader. At all events, they were under his control. The only man in the body that defended the slave interest was the Baron de Bastrop, the Texas representative; and nobly did he work for what he believed to be the welfare of his adopted section. “The Viejo is very warm on the subject,” wrote Brown Austin from Bexar to his brother, after having seen a letter from Bastrop to Cavallos, which in some way had fallen into the hands of the political chief of Texas; “I know not what would have been our fate if he had not been a member of the legislature. Our situation would have been a deplorable one indeed.”43 It would be interesting to follow the debates on this topic, but the want of the printed journals leaves us to conjecture as best we may the various forms assumed by the thirteenth article of the constitution before it was finally incorporated in that instrument. Certainly a movement was on foot to abolish slavery altogether, even to the extent of emancipating the slaves of the first settlers. “At all events, if it comes to the worst,” were the words of Brown Austin, “and the slaves of the 300 families are freed, we have a right to appeal to Congress—where I am convinced all will go right.”44 Bastrop’s tireless exertions, the presence of Brown Austin in the capital, and the strong remonstrances which came from a united Texas, probably had considerable effect in moderating the demands of the extreme party. The Baron even went so far in his loyalty to Texas as to threaten that he would withhold his signature from the finished constitution, if it contained an article freeing the slaves of the Texas colonists.45 Brown Austin reported that the representation of his brother so clearly demonstrated the injustice of such an act “that the Author of the Article himself [Carrillo] asked permission to withdraw it.”46 The substance of the article thus withdrawn is not stated; but perhaps we should not fly wide of the mark if we should guess that it was a clause emancipatLaws on Slavery in Mexican Texas

[ 31 ]

ing all slaves in Texas. The withdrawal of the article, whatever it may have been, by Carrillo seems to have marked the crisis in the discussion of the matter. The slaves then in Texas were not to be freed. It remained to settle the status of the children born of slaves after their removal to the state, and to pass upon the question of the further introduction of slaves by incoming settlers. The leaders of the Texas party seemed to have realized, from the first, that it would be useless to contend for the continuation of their property rights in the generation born of slave parents in Texas after the publication of the constitution. They did try, however, to claim as much service from that generation as possible. Brown Austin urged Congress to consider the wisdom of retaining the children under the master’s supervision until they had acquired some “useful branch of industry whereby they might gain a livelihood instead of becoming vagabonds and rogues.” He believed that no such useful branch of industry could be acquired if they were freed at birth or fourteen, and suggested instead that they should be compelled to remain with their masters till they were twenty-one or even twenty-five. He laid emphasis, too, upon the injustice of compelling the master to maintain the children of the slaves during the period when their support could be little less than a total loss, without providing some means of compensation, as by extending their period of compulsory service till the owner had been remunerated. He found the members inclined to listen to his arguments, and he left Saltillo indulging the pleasing thought that he had probably been instrumental in preserving to the Texas settlers the labor of the next generation of negroes till they had reached the age of twenty-one or twenty-five. His hopes proved wholly unfounded; the thirteenth article provided that after the promulgation of the constitution the children of all slaves should be free at birth.47 Bastrop had early come to the conclusion that a further introduction of slaves into Texas would be strictly forbidden.48 We have as yet no knowledge of the considerations which moved Congress to postpone the effective operation of the thirteenth article for six months after the publication of the constitution, during which time slaves might be freely brought into the republic. Probably it was urged upon the notice of that body that many settlers were on their way to Texas, who might reach the border before hearing of the new constitution, and would then be compelled either to return or to lose their slaves. Simple justice required that ample notice be given to intending immigrants. The thirteenth article, as it was finally adopted and as it appeared in the constitution, which was published March 11, 1827, reads as follows: Art. 13. From and after the promulgation of the Constitution in the capital of each district, no one shall be born a slave in the state, and after six months the introduction of slaves under any pretext shall not be permitted.49 [ 32 ]

The Laws of Slavery in Texas

Six months later the Congress issued a decree for carrying into effect the provisions of the above article. The municipalities were ordered to make a list of all slaves within their limits, the deaths and births were to be reported to the state government every three months and a careful register of the same was to be kept by the ayuntamientos. In addition several provisions were incorporated in the law which were intended to ameliorate the condition of the blacks: a tenth of the slaves must be emancipated whenever ownership changed, which, of course, could be only by inheritance; the ayuntamientos were also required to provide for the “best education that can be given” the emancipated children.50 A little more than two months later an additional article to this decree was passed, which allowed the slave to change his master, provided the new master would indemnify the old.51 It will be seen from the above that the Congress of Coahuila and Texas did not even consider the proposition, advanced by Alaman and accepted by Professor von Holst, that the law of July 13, 1824, prohibited the further introduction of slaves into Mexico.52 Not once was it intimated by the younger Austin in his long letters to his brother that this view had been accepted by even the most radical opponent of slavery. Congress was not occupied with discussing the advisability of enforcing a law already in existence, but provided for the first time the proper regulations for introducing and holding negro slaves in Texas. It did not accuse the Texans of having trampled upon the federal law, but specifically granted them an extension of time during which the prohibitory clause in the newly made constitution should be suspended. The letters and documents above referred to establish beyond question, it seems to me, that the Congress of Coahuila and Texas, as well as the citizens of Texas, did not regard the bringing in of slaves by immigrants as contrary to either state or federal law. The prohibition in the constitution undoubtedly operated to the temporary disadvantage of the colonies. During the discussion of the matter by Congress, few men were willing to risk the possibility of losing their slaves by carrying them into Texas; and after the prohibition went into effect, it was some time before the ingenious plan of evading the law became well known in the United States. It was not long, however, before slaves were again crossing the border with their masters, in spite of the seemingly rigid prohibition contained in the constitution. The Texas settlers developed a method of evading the law which was more in accord with Mexican institutions; and while it just as effectively secured to the master the absolute control of the servant’s labor, it left unmentioned the obnoxious word “slave,” and thus did not outrage the Mexican’s theory of the equality of men. The system adopted by the Texans was the peonage common throughout Mexico. As has been said above, it is hard to believe that the thirteenth article was Laws on Slavery in Mexican Texas

[ 33 ]

inserted in the constitution out of any motives of jealousy or hostility towards Texas on the part of the leaders of Coahuila: too many exclusive privileges and temporary exceptions were granted to Texas by the same Congress to permit such a view. It was more than likely that the abstract theorizing of a non-slaveholding people who had just won their independence had aroused opposition to slavery. For a few years following the publication of the constitution the attitude of the successive state Congresses was favorable to Texas. Many grants of monopolies in trade were made to Americans, and special laws or exceptions to laws were passed from time to time in favor of the Texas settlements. So it happened that when the question of introducing and controlling negro labor was again laid before Congress without the mention of the word “slave,” the members did not feel that violence had been done to their principles, but proceeded to undo practically all that the constitution had done in favor of emancipating the slaves brought into the colonies. The harmless-looking decree of May 5, 1828, which again opened Texas to slavery, reads as follows: The Congress of Coahuila and Texas, attending to the deficiency of workingmen to give activity to agriculture and the other arts, and desiring to facilitate their introduction into the State, as well as the growth and prosperity of the said branches, has thought proper to decree: All contracts, not in opposition to the laws of the State, that have been entered into in foreign countries, between emigrants who come to settle in this State, or between the inhabitants thereof, and the servants and day laborers or workingmen whom they introduce, are hereby guaranteed to be valid in said State.53

If we would fully understand to what extent there was a “deficiency of workingmen,” and in what character it was desirable “to facilitate their introduction into the State,” we must consider a few other facts in connection with the decree just quoted. The laborers needed in Texas were for the opening and cultivation of the great plantations along the river bottoms, for the settlers of Texas at that time regarded the prairies and uplands as suitable only for cattle-raising. In these bottoms negro labor could be employed to far greater advantage than white labor, owing to that peculiar physical characteristic of the negro which renders him almost secure against attacks of the all-prevalent malaria. These plantations are worked to this day almost exclusively by black labor. It was negro laborers, then, that the decree regarded as especially desirable. Not quite a year after the passage of the decree under consideration, Austin, in a letter to Wharton, said emphatically that “the men now in power in this [ 34 ]

The Laws of Slavery in Texas

state wish to tolerate slavery,” and that settlers might bring their negroes without fear.54 Again, in a letter to Ellis, Sutherland, Winston, Royal and others, written at a time when Austin believed that enough slaves had been admitted to Texas, he stated that the object of the decree of May 5, 1828, was “to permit families to bring the necessary and indispensable house servants and laborers.”55 If any doubt yet remains as to the spirit of the decree, one more instance may serve to resolve it. Early in 1830 the legislature of Louisiana ordered the expulsion of all free negroes and mulattoes who had illegally entered that state since 1825. Here seemed to be a good opportunity to secure the needed workingmen for the Texas plantations. Instead, however, of offering inducements to these laborers to emigrate to Texas, we find the Mexican vice-consul in new Orleans publishing notices that such negroes are strictly forbidden to enter Texas, and that shipmasters will not be allowed to land them on the Texas coast.56 The free negro was not wanted in Texas. In the light of these facts, we are driven to the conclusion that the Congress of Coahuila and Texas, after a harmless salvo in honor of abstract principles, quietly solved the practical difficulty by a decree which was intended to reopen Texas to negro bondage, now disguised under the more pleasing name of contract labor. That the Texans evaded the law prohibiting the further introduction of slavery is an undoubted fact, but it must be added that they did so with the express consent and connivance of the state government. The form of contract under which the negroes were brought into Texas after the decree of May, 1828, was unique. I regret that the limits of this paper forbid my introducing it here in full. Prior to leaving the United States, the master and the slave appeared before a notary public, or some other official whose seal would give validity to such documents, and in the most formal manner gave their adhesion to the agreement, which was duly signed and witnessed. The document usually begins with the statement that the negro is held as a slave under the existing laws of the state in which the contract is drawn up; that he is worth so much; that he desires to accompany his master to Texas, where he will receive his freedom on entering the state; and by way of compensating his master he agrees to pay in labor the sum at which he is valued, plus the cost of removal to Texas. The necessary cost of clothing, etc., is to be deducted from his wages as a first charge. The wages named in a blank form found among Austin’s papers is twenty dollars per year. And furthermore [says the contract] the said E. F. [the slave], being desirous that his children (or children) should enjoy the benefits of the laws of said state of Coahuila and Texas, and that he (or they) should be removed to the same by said C. D. [the master], therefore, as parent and natural guardian, he, the said E. F., contracts and agrees with the said C. D. Laws on Slavery in Mexican Texas

[ 35 ]

that his child or children shall serve on the same terms as the father, wages to begin when the child reaches the age of eighteen. The contract even anticipates the birth of other children after removal to Texas, and provides that they shall serve the master till they are twenty-five without wages, this being in consideration of the benefits they receive from the laws of that state in consequence of the removal of their parent, E. F., by said C. D., and which they never could have enjoyed unless it had been secured to them by this contract, under which said C. D. was induced to remove said E. F. to said state of Coahuila and Texas.

After the expiration of the twenty-five years, the children born after removal are to continue serving on the same terms as the father, until all debts due the master are paid. The master is held bound to instruct said children in some useful branch of industry that will make them useful members of the community. . . . And said E. F. generally contracts and agrees with the said C. D. faithfully to serve him or his representatives as a servant and laborer as above stated, and to be obedient and submissive as a good and faithful servant should be, and faithfully to comply with this contract under the penalty of . . . dollars.

Such a contract, properly signed by the parties concerned and certified by the notary’s seal and the signature of two witnesses, made the negro thus brought to Texas as truly a slave as if his master had remained in the United States. It was of course a hopeless dream to think of ever paying the debt acknowledged in the agreement, or even that contracted from year to year for clothing and other necessaries. Under this legalized evasion of the law the Texas immigrants continued to bring in their slaves, and the agitation of the subject subsided for a year or two.

[ 36 ]

The Laws of Slavery in Texas

Slavery in Early Texas, II Lester G. Bugbee ★

A

new danger to the slave interest arose in 1829 in the form of a decree of general emancipation promulgated by the federal executive. In August of that year Vicente Guerrero, the president of the Republic, was invested by Congress with extraordinary powers for the purpose of driving out the Spanish army of invasion which had landed in Mexico.1 For two years previous to this event, a bill, introduced and ardently advocated by the deputy José M. Tornel, had been pending in Congress, providing for the complete and final emancipation of all slaves in the Republic. It had been received “with applause” by the Chamber of Deputies; but, for some reason not stated by Tornel, its final passage had been delayed by the Senate.2 Failing to get the measure through Congress, Tornel resorted to the more speedy method of winning over the now absolute Guerrero and carrying his point by means of an executive decree. He chose an opportune moment for pressing the matter. A very pretty custom had come to be observed by the Mexicans as a part of their elaborate celebration of their Independence Day. A portion of the money contributed to pay the cost of the celebration was usually spent in the purchase of a number of slaves; and in the midst of the festivities the president in person, publicly and with great solemnity, gave their freedom to these unfortunates. Slaves had, however, become so scarce in the region of the capital, that as early as 1826 there was difficulty in finding a number sufficient to make the ceremony impressive.3 Tornel, accordingly, urged the extension of the benefits of the annual custom to the slaves of the whole Republic. Guerrero yielded, and the decree was signed on September 15, 1829. Its three short paragraphs declared that slavery was abolished, that all negroes were henceforth free and that owners would receive compensation at some future time.4 This decree had its inception in Tornel’s hostility to the United States. In the abolition of slavery [he said] is involved the important political object of establishing a barrier between Mexico and the United States, where slavery is maintained in open contradiction to the principles solemnly proclaimed in their Act of Independence of 1776.5

Laws on Slavery in Mexican Texas

[ 37 ]

But it is not to be inferred that such hostility was general in Mexico; we must be careful not to refer events of that time to causes and motives that as yet had no widespread existence. A few far-seeing leaders may have appreciated the danger ahead, but it required the developments of several years more to arouse the nation at large. It will be remembered that, in spite of Tornel’s advocacy and the absence of an interested opposition, the Senate had declined to establish this barrier between the two countries by emancipating the slaves in Texas. All that can be said is that in 1829 the sentiment against the United States was growing, and that it was at least present in the mind of Tornel when he persuaded Guerrero to issue the emancipation decree. The decree at once produced the usual commotion in Texas. “We are ruined forever should this Measure be adopted,” wrote John Durst to Austin immediately after the news reached Nacogdoches.6 There seems to have been a spontaneous movement in different quarters to prevail upon the Mexican officials not to publish the decree. Durst presented the matter to the civil and military authorities of Nacogdoches—where, it should be kept in mind, Mexican influence was very strong—in such a manner that they agreed to suspend publication until a suitable memorial could be sent to the governor.7 Two weeks later, he wrote that the ayuntamiento still adhered to its former position, but that he knew not at what moment it would change front; for the Mexican commandant possessed much influence and might, if he chose, arouse a strong opposition.8 Austin, to whom in such difficulties all Texas looked for leadership, took a similar view of the situation. In reply he wrote to Durst: What the people of Texas have to do is to represent to the Government through the Ayuntamientos or some other channel, in a very respectful manner that agreeably to the constitution, and the colonization laws all their property is guaranteed to them without exceptions in the most solemn and sacred manner. That they brought their slave property into the country and have retained it here, under the faith of that guarantee, and in consequence of a special invitation publically given to emigrants by the government in the colonizacion law to do so. That they have taken an oath to defend the constitution, and are bound to do so. That the constitution of the state expressly recognizes the right of property in slaves by allowing six months after its publication for their introduction into the State. That they will defend it, and with it, their property. There ought to be no vociferous and visionary excitement or noise about this matter. Our course is a very plain one—calmn, deliberate, dispationate, inflexible, firmness; and not windy and ridiculous blowing and wild threats, and much less anything like opposition to the Mexican Constitution, nothing of this kind will do any good, it will in fact be unjustifiable, and will never [ 38 ]

The Laws of Slavery in Texas

be approved of by me but on the contrary opposed most decidedly. I will not violate my duty as a Mexican citizen. The constitution must be both our shield, and our arms; under it, and with it, we must constitutionally defend ourselves and our property. . . . If he [the political chief of Bexar] should finally be compelled to publish and circulate it, the Ayuntamientos must then take an unanimous, firm, and contitutional stand. The people will unanimously support them. I know nothing of the men who compose the Ayuntamiento of Nacogdoches, if they are true patriots and true friends to themselves and to Texas, they will not suffer that decree to be published or circulated in that Municipality and they will take the stand I have indicated or some other that will preserve the constitution and our constitutional rights from open, and direct violation. These are my ideas on the matter. I have said the same to my friends in Bexar, and when the decree arrives officially, (which it has not yet) I shall say the same to the Govt. What I do in this matter will be done openly. Mexico has not within its whole dominions a man who would defend its independence, the union of its territory, and all its constitutional rights sooner than I would, or be more ready and willing to discharge his duties as a Mexican citizen; one of the first and most sacred of those duties is to protect my constitutional rights, and I will do it, so far as I am able. I am the owner of one slave only, an old decriped woman, not worth much, but in this matter I should feel that my constitutional rights as a Mexican were just as much infringed, as they would be if I had a thousand, it is the principle and not the amount, the latter makes the violation more aggravated, but, not more illegal or unconstitutional.9

This lengthy quotation from Austin’s letter to Durst is here inserted, because it is believed in some quarters that the people of Texas on this occasion willfully defied the government of Mexico, relying for aid, in case of need, on the United States.10 The letter, however, shows that the Texans were fighting a battle of their own, and that their resistance to the decree was only an episode in the internal history of Mexico, without any connection whatever with the politics or visions of the slaveholding portion of the United States. The revolutionary spirit was not yet abroad in Texas. Stephen Austin, in the above extract, spoke the sentiments of the best and most influential element among the settlers. They believed that their constitutional rights as Mexican citizens had been trampled upon and, as Mexican citizens, they stood ready to defend those rights. These were not the men who led the revolution in Texas. When the inexorable logic of history hurried forward that event, the great majority of these men stood for a peaceable settlement of difficulties, if possible, and they were among the last reluctantly to consent to a complete severance of the political ties that bound them to Mexico. There was no Laws on Slavery in Mexican Texas

[ 39 ]

pretense about these sentiments of Austin: they were his real opinions, which were expressed in his addresses to the political chief as well as in his private correspondence with friends. There are threats in the letter quoted, but they were not born of a revolutionary spirit or prompted by the slave-owners of the Southern states of the American Union. They proceeded from a firm conviction that on his side were right and the constitution. There can be but little doubt that Austin looked forward to some kind of resistance to the execution of the decree, in case memorials and representations proved of no avail; but certainly there is no ground for the opinion that such resistance contemplated the dismemberment of the Republic. The central government was so weak at this time that every politician in Mexico knew that it could be resisted with very little danger of armed collision.11 That the views of Austin carried weight with them, even when addressed to the non-slave-holding Mexicans, is demonstrated by the attitude of the political chief of Bexar and the governor of the state, both of whom took up his cause and exerted themselves to secure a modification of the decree. Don Ramon Musquiz, the political chief of the department and a personal friend of Austin’s, suspended the publication of the decree until the matter could be laid before the chief executive. His representation to the governor is a dignified statement of the case, and concerns itself almost entirely with the guaranties offered the colonists by the laws of the Republic. It emphasizes the fact that in all of the colonization laws solemn promises of security and protection of property were held out to intending immigrants. Under these guarantees, so solemn, the foreigners, that now inhabit this department, entered it and established themselves; and if security for their persons and property, was so solemnly offered to them by the Mexican Nation; and if, what is still more, with the same formality they have been invited and called by the state, it seems very hard that they should be deprived, now that they are established, of a part of their property, by the supreme government, and perhaps of that part which most interests them for the purposes of agriculture, the raising of cattle, and other labors, to which they dedicate themselves, and which cannot be effectuated without the aid of the robust and almost indefatigable arms of that race of human species, that are called “negroes,” and which by their misfortune, are held in slavery.

He reminds the governor that these slaves were brought to Texas as such and for the purposes of agriculture, that to emancipate them would be to destroy so much of the public wealth, that sufficient restrictions have already been thrown around the institution by state laws and that provision has been made for the gradual extinction of the evil. The political chief realized the difficulty of applying the [ 40 ]

The Laws of Slavery in Texas

abstract theory of liberty to conditions then existing in Texas; for he saw there was a conflict between the right of liberty and the right of property. Philanthropy and the natural sentiments of humanity, cry out immediately, in favor of liberty, but the positive laws which regulate society array themselves in favor of property and declare it a sacred and inviolable right.

Once he mentioned the possibility of resistance on the part of the Texans: I believe the fatal consequences which must result to the colonial establishments of this department by the publication and circulation of the aforementioned decree, will be very apparent to your excellency, whether they arise from the slaves who claim the benefit of it, or whether from the owners who require the contrary, and without the respect of any authority being sufficient to restrain them.12

This memorial, according to the Mexican custom, could not be sent by the political chief to the president, but had to reach the executive through the medium of the governor of the state. It was forwarded by the governor, together with a long remonstrance of his own. After calling attention to the representation of Musquiz, the governor proceeded to say that he should have asked the chief executive especially to exempt Texas from the operation of the decree, even if he had not been urged to do so by the authorities of that department. The decree, if carried into execution in Texas, he continued, would at once destroy those pleasing hopes of its future progress which had been aroused by the colonies then being planted there. Perhaps even the very existence of Coahuila and Texas as a separate state would be endangered by such a crushing blow to its future prospects. Coahuila, he added, looked hopefully to the rapidly increasing settlements in Texas soon to raise the state to a place of consideration and even of great promise in the Mexican confederation; and these settlements, owing to peculiarities of soil and climate, were in great measure dependent for their prosperity upon slave labor. If the planters should lose this labor by the decree of the government, he believed it certain that “this state must separate from itself, for many years, all ideas of its advancement.” The object of the decree, he went on to say, was for a thousand reasons commendable; but political difficulties frequently put themselves in the way of carrying into effect the mandates of philanthropy. Even the most civilized nations had not been able to set aside these political difficulties and still tolerated slavery. In the United States of the North, in that classic country, cradle of liberty, and of practical philanthropy, so favorable to the independence and dignity of the Laws on Slavery in Mexican Texas

[ 41 ]

rational species, we see that it has not been permitted to its wise legislators to gratify the most pleasing wishes of their hearts, on the subject of which I am speaking.

Most of the remonstrance was thus occupied with economic and practical objections to the decree. The governor believed, too, that an enforcement of the decree might “draw upon the state some commotions,” which would require violent and costly measures to suppress. Not by this do I wish inferred, that those settlers are of a turbulent and insubordinate character, for up to this time I have received nothing but proof to the contrary—but would refer to the condition of man, and the inclinations of which he is capable, when, from one day to another, he is about to be ruined, as would result to many of them, whose whole fortune consists in their slaves.

In view of these considerations the governor said that he indulged the hope that Texas would be exempted from the operation of the decree, as “one of the greatest benefits which the state under my charge can receive.”13 These arguments were favorably received by the chief executive and the decree of December 2, 1829, was issued, which denied to the slaves in Texas the benefits of the general emancipation. The president was moved to this act, if we can trust the sincerity of his declaration in the decree, by a combination of the most prominent considerations presented in the remonstrances—namely, the practical inconvenience of carrying the decree into execution, the serious economic results and the possible resistance of the Texans. It would, of course, be difficult to say which of these considerations was the most weighty in the mind of the president. The economic difficulties had been most emphasized in the memorials which reached him, and it is not unlikely that these had at least as much weight with him as the fear of insurrection, particularly as the governor of Coahuila and Texas made such good report of the loyalty and orderly conduct of the Texans. Certainly it is going too far to ascribe the action of the president to his fear of conspiracy between Texas and the slave states of the United States.14 The representations of the chief of the department and of the governor of the state, together with the decree of the president issued in reply, appeared in the Texas Gazette of January 23 and January 30, 1830, then edited by R. M. Williamson. An editorial commends the action of the political officials, particularly as they and their Mexican friends were not personally interested in the matter. The editor believed that

[ 42 ]

The Laws of Slavery in Texas

nothing but the conviction on their part of the vital importance of the colonies to the prosperity of the state, and their determination to protect them, could ever have called forth their united exertions on the subject.

It has been denied that a decree was ever regularly issued excepting Texas from the provisions of the law in question; indeed, some historians intimate that no such exception was ever made in any manner.15 Rivera states that the president, out of necessity, ordered General Teran, then in command of the eastern states, not to interfere with the slaves of the Texans. This order, he says, was given in a private letter16 and not in the form of a decree addressed, as was customary, to the political authorities of the state. Lucas Alaman, the secretary of relations under the government that overthrew Guerrero, also says that the exception was made in a private letter to Teran.17 An unfortunate mistranslation of Alaman’s statement, together with that peculiar spirit which Professor Von Holst breathes into the history of early Texas, has led the latter afar astray. He says: And the government was so powerless against them [the settlers of Texas] that an attempt was made to prevent another revolution by spreading the rumor that it was intended to except Texas.18

It was a matter of small consequence, so far as the validity of the decree is concerned, whether it was issued in the customary manner or as private instructions to Teran; even Alaman admits, in the extract quoted by Professor Von Holst,19 as well as in another portion of the same document, that the exception was actually made by the government. No doubt the decree was sent to Teran as part of his instructions, and it is possible that it was never published in the Mexican capital. As Alaman was a bitter enemy of Guerrero’s and a supporter of the opposition to his government, he was not in a position to have personal knowledge of the acts of that administration. The decree is not found in the Dublan y Lozano collection of laws. Its publication in the Texas Gazette, however, with the letters of transmittal from the secretary of relations to the governor of the state, from the governor to the chief of department and from the latter to the alcalde of San Felipe, leaves no room for doubting that it was received through the usual channels by the government of Coahuila and Texas. Would Texas have resisted the execution of the decree, if the exception had not been made? The people earnestly believed that their rights had been wantonly invaded; and there is an undertone throughout Austin’s letter to Durst, quoted above, which sounds very determined. Guerrero’s administration was weak and vacillating, and marked throughout by more or less confusion and disorder. The

Laws on Slavery in Mexican Texas

[ 43 ]

extraordinary powers, in virtue of which both the decree of emancipation and the exception to it were issued, were regarded with great jealousy by the states, and aspiring leaders lost no opportunity to widen the breach between the executive and the nation. The government lost the confidence and the support of the people; and, in consequence, its authority was soon held in contempt by the states. It was no uncommon occurrence for the state governments to decline to enforce the decrees of the executive: at least one law was defied by every state in the Republic.20 It is not at all improbable, then, that the Texans would, on this occasion, have taken advantage of the weakness of the central government, and would have profited by the example of the other states in defying objectionable laws; but such action would have had no greater significance in the matter of negro slavery, and would have had no more connection with the United States, than could be attached to the refusal of the government of Coahuila and Texas to enforce Guerrero’s decree regarding taxation. In spite of this incident, the people of Texas were probably the most submissive and orderly body in all Mexico during this administration. The emancipation decree of 1829 was not generally obeyed elsewhere in Mexico. A new decree freeing the slaves was published on April 5, 1837, in which revolutionary Texas was by express mention excluded from the benefits of the compensation that was promised to all other sections.21 Such a decree and such an exception would obviously have been useless, if the negroes of all other sections had been living in the enjoyment of their liberty since 1829. In the meantime hostility to the United States was growing apace. The Mexican statesmen were learning to believe that their sister Republic was not overscrupulous as to means when once it had determined to plant its flag in the territory of a neighbor. Not by armies, battles and invasions does the United States extend its territory, says Bustamante’s newspaper,22 but it begins by advancing absurd claims founded on facts which no historian admits; and then follow constant reiteration of these claims, the intrusion of the American pioneer, negotiation and, finally, occupation. The far-seeing were, indeed, already beginning to fear that the United States was nourishing unhallowed schemes for the acquisition of Texas. The various offers made by the government for the purchase of all or any part of the coveted territory probably served to strengthen such fears in some and to arouse them in others. With this dread of the power of the United States, there were growing up also fears as to the loyalty of Texas. It was known to every Mexican that the ties which bound the colonists to their kinsmen in the neighboring Republic were of the strongest kind; but Alaman declares that before General Teran was sent to Texas in 1828 it was not known at the federal capital that the Texans had been persistently evading the laws as to religion and slavery.23 We are not here concerned with the history of religion in Texas, and we have already seen how [ 44 ]

The Laws of Slavery in Texas

the evasion of the slavery law was legalized. Alaman complained bitterly that the state government had neglected to report these facts.24 Probably the interested silence of the Coahuila officials only added support to the unfavorable attitude which the Mexican politicians were beginning to assume towards Texas. Teran also found that the colonization laws were not being strictly enforced in Texas in other respects; along the border whole settlements had been formed without any authorization whatever. These “squatters,” who had nothing to lose in civil dissension, were the class really dangerous to Mexico. It was men of this character in the Ayish settlement who made the first threats of resistance to Guerrero’s emancipation decree.25 Henceforward this class, to which the name “agitators” was applied by Austin and his party, grew steadily and became more and more threatening in its attitude towards Mexico. This was the class that constituted the backbone of the revolutionary movement. No one in all Mexico was more thoroughly alive to the dangers ahead than Lucas Alaman, Bustamante’s secretary of relations. He believed that dismemberment could be averted only by closing the gates against Americans; and on his recommendation the celebrated decree of April 6, 1830, was issued, which prohibited the further immigration of settlers from the United States, except under certain specified conditions.26 We are concerned here with that decree only in so far as it dealt with the slavery question. Alaman took the view that the slaves in the colonies had been legally freed the moment they entered Mexico, in virtue of the decree of July 13, 1824;27 but as that decree was not enforced in Texas, the slave interest had developed freely to an alarming extent. He believed that the state of affairs in 1830 was such that an attempt to emancipate the negroes would provoke insurrection “and the loss of Texas would be infallible.”28 Consequently he recommended, and it was decreed, that slaves already in Texas should remain slaves, but that in future the laws as to this matter should be strictly executed.29 In the meantime immigrants continued to bring their slaves into the country as indented servants, as was allowed and expressly provided for by state law; and a rapid succession of events hurried forward the inevitable conflict between Mexican and American. No further action in regard to slavery was taken by either state or federal government until the Revolution of 1835–36. No mention was made of it in the Texas Declaration of Independence. The constitution of March 17, 1836, took the matter under consideration, and by its sweeping provisions finally determined the destiny of the negro in Texas. Section nine of the “general provisions” of that constitution declared that all negroes still in bondage, who had been held in slavery prior to the removal of their masters to Texas, should remain in that state, provided they were the bona fide property of the persons holding them. Congress was prohibited from passing laws forbidding immigrants to bring their Laws on Slavery in Mexican Texas

[ 45 ]

slaves into the Republic; the power to emancipate was withheld from Congress; slaveholders were even denied the privilege of freeing their slaves (except with the consent of Congress), unless they sent the freemen thus created beyond the boundaries of the Republic; free negroes were not allowed residence in the country without the consent of Congress. Finally, the importation or admission of negroes into the Republic, except from the United States, was declared piracy and forever prohibited. So ends the first chapter of the history of this institution in Texas. It was settled beyond controversy, by the constitution of 1836, that Texas should remain open to slavery. There is little evidence of the existence in Texas of any form of the slave trade during the period covered by this paper. No complaint was made by Almonte of the violation of the law of July 13, 1824, and none was mentioned by Alaman as having been made by Teran. Austin’s private papers, so far as I know, reveal but one instance. On the occasion of his settlement with the heirs of Joseph H. Hawkins, his partner in the first colony, Austin presented a statement to their agent, in which he expressly disclaimed all responsibility for the loss of “a vast sum in the negro speculation of which John Botts had the management,” and definitely asserted that it had “nothing to do with the colony.”30 It seems that Botts had brought thirty or forty slaves to Texas in 1822 or 1823, at least some of whom were the property of Hawkins, and after disposing of them had declined to render an account to the heirs.31 These are the only references that I have seen to any kind of speculation or trade in negroes prior to 1830. The slaves brought into Texas seem to have been pretty evenly distributed among the settlers. There were many colonists, of course, who had none; but the majority of them possessed at least a few. Some even possessed a large number, and came to Texas with the intention of opening large plantations such as those in the Mississippi bottom. Col. Jared E. Groce received one of the largest grants of land made by Austin,—more than forth thousand acres,—because he owned “near one hundred slaves and may be useful, . . . on account of the property he has brought with him.”32 He seems to have lived in true baronial style, and on at least one occasion he joined Austin in an Indian campaign at the head of an armed and mounted retinue of some thirty of his negroes.33 This, however, was an exceptional case. The number held by most of the families was much smaller, varying from two or three to perhaps fifteen or twenty. Josiah H. Bell, who managed the affairs of the colony during Austin’s first trip to Mexico, brought only three negroes into the country.34 John A. Williams had “a few,” six of whom were fit for field hands.35 Henry and Micajah Munson each owned seventeen;36 Wyley Martin, three;37 M. Brenaugh, twelve.38 These settlers all came to Texas before 1825. Those who came later brought [ 46 ]

The Laws of Slavery in Texas

with them about the same number of slaves to the family as those who came prior to the agitation of the subject. A group of fourteen families who applied for land in 1832 may be taken as representative. Six owned no slaves at all; four of these, however, were evidently younger branches of other families mentioned in the same list. The remaining eight brought with them seventy-eight negroes, three being the smallest number held by any one family and seventeen the largest.39 The total number of slaves in Texas in 1829 was stated by Governor Viesca, in his remonstrance against Guerrero’s emancipation decree, at something more than a thousand. It is not positively known whether this estimate included all the negroes in Texas or only those that were brought into the country as slaves prior to September, 1827; since those who came later were technically known as indented servants. According to a report made in May, 1829, there were ninety-nine slaves in Nacogdoches,40 where the white population was 666;41 there were very few in Bexar and Goliad. By far the largest number belonged to the planters of Austin’s colony, where by 1831 the population had grown to 5665.42 Juan Almonte, who was sent to Texas in 1834 as special agent by the Mexican government, reported that in a total population of 9000 in Austin’s colony there were 1000 negroes who had been introduced “under certain conditions guaranteed by the state government.”43 In the department of Nacogdoches he found 9000 inhabitants, including about 1000 negroes brought in under “private contracts.”44 Francis Moore, nearly ten years later, thus contrasts the slave population of Texas with that of the United States: If he [a visitor from the United States] were from the non-slaveholding states, he would discover a few slaves, and if he were from a slaveholding state he would be surprised to find the proportion of slaves so small.45

Stephen F. Austin, who was the guiding spirit in the planting of the colonies in Texas, was not an advocate of slavery. He was the largest landholder in Texas and, had he wished, he could have opened plantation after plantation in the fertile bottoms of the Texas rivers; but he declined to take advantage of the opportunity and never owned more than two slaves at any time after entering Texas.46 From this the conclusion is not necessarily to be drawn that he refused to purchase negroes, on account of moral objections to holding them; but the fact may serve to emphasize, at least in a negative way, the sincerity of his expressed ideas on the subject. So long as the existence of the colony was problematical, he made every effort to have slavery at least temporarily legalized; he fully understood that his colonists must come from the slaveholding portion of the United States; he found that the soil, climate and products of the region which he intended Laws on Slavery in Mexican Texas

[ 47 ]

settling were such that negro labor was almost necessary to successful cultivation; and he believed that he could induce a better class of immigrants to come to the colony if slavery was permitted. He held the success of this enterprise first in mind; but he thought that slavery could be so restricted by legislation that it would be comparatively harmless and that it could ultimately be exterminated. In consequence of these views we find him, on all occasions when the federal or national government took the matter under consideration, favoring the admission of slaves. After the colony had been established on a firm basis, Austin thought that a sufficient number of slaves had been brought in; and so, from 1830, we find him in opposition to the further advance of the institution. His opposition, however, came too late; a new and more radical element was entering Texas and hurrying it forward to revolution. During and after 1830, Austin, on many occasions—public and private— made known his views on this subject; but for the purposes of this paper a few instances will suffice. In a long letter, dated June 16, 1830, to Richard Ellis, George Sutherland, Anthony Winston, R. R. Royall, and others, intending immigrants from Alabama, he stated his views, as they have been given in substance above; and continuing, he said: The reasons for a partial toleration of this evil have now ceased; and the true prosperity and happiness of Texas require that an everlasting bar should be interposed to the further introduction of slaves.

In another part of the same letter he said: I am of the opinion that Texas will never become a slave state or country. I will be candid with you on this point, and say I hope it never may.47

In 1831 he expressed himself as follows: After the slaves are dead who were introduced before the constitution was published, Texas will be entirely clear of that worst of reproaches against a free and enlightened people.48

There is evidence that many of the citizens of Texas were in accord with Austin in these opinions. It was quite possible for a planter in Texas to believe that the further introduction of slaves should be carefully guarded or wholly forbidden, provided his own property was left undisturbed. Almonte reported in 1834 that, while it was true that slaves were brought into the country in evasion of the law, the practice was condemned by the “honorable people.”49 If this statement could be [ 48 ]

The Laws of Slavery in Texas

accepted unreservedly, it would indicate that there had been a change in popular sentiment since Guerrero’s emancipation decree was issued. The fact probably is that in this instance Almonte’s report reflected the views of a few conservative leaders, like Austin, and not those of the mass of the “honorable people.” The attitude of S. Rhoads Fisher, who came from Pennsylvania to Texas, may be accepted as fairly representative of those planters who had entered the country prior to 1830; while those who came later brought with them more radical views. In a letter to Austin, under date of August 14, 1830, Fisher thus expressed himself: Like yourself I detest slavery, but conceive the general views I have there [in an article written by Fisher for the Texas Gazette] taken are correct, and am firmly persuaded that the free admission of Slaves into the State of Texas, authorized by an act of our legislature, would tend more to the rapid introduction of respectable emigrants than any other course which could be pursued. Our rice and sugar lands require that kind of labour,—and let the preamble to the bill set forth the advantages which would accrue to the State from a temporary introduction of Slaves, and therefore limit the period of admission to 5 years, or to any other number that you may deem expedient.50

In conclusion, the principal facts as to the history of slavery in Texas are as follows. Spanish law and the approval by the governor of Texas in 1821 of Austin’s scheme for the distribution of lands opened the way for the introduction of slaves. In 1823 Austin’s efforts in Mexico prevented Iturbide’s Junta from abolishing slavery and secured from that body permission for his colonists to bring in their slaves, though the children born of these slaves in Texas were to be free at fourteen. This law was abrogated by the succeeding government, but Austin’s first colony was settled under it. The federal law of July 13, 1824, prohibited the slave trade, and may possibly be construed to forbid the further introduction of slaves into Texas, though the authorities in Coahuila and Texas did not so construe it. The Acta Constitutiva and the federal constitution of 1824 were silent on the subject. The constituent Congress of Coahuila and Texas, under the leadership of Carrillo, was bitterly hostile to slavery; but the exertions of Bastrop and the Austins modified that hostility, and the state constitution, adopted by Congress in 1827, allowed immigrants to bring in their slaves for six months after the promulgation of the document. According to this instrument the children of slaves were free at birth. In September of the same year, Congress enacted a law to carry out the provisions of the constitution, and for the first time (if we leave out of consideration the ambiguous decree of July 13, 1824) it became illegal for settlers removing to Texas to bring their slaves with them. In 1828 the governLaws on Slavery in Mexican Texas

[ 49 ]

ment of Coahuila and Texas provided means for evading the law by legalizing contracts made in a foreign country, and the American settlers continued to come with their slaves, now called indented servants. Attempts by the United States to purchase Texas, together with Teran’s disclosures in 1828, then aroused the opposition of a few leaders. Tornel, after failing to get an emancipation decree through Congress, persuaded Guerrero to promulgate it from the executive chair in 1829. Discontent was thus aroused in Texas and sedition threatened; and on the recommendation of Governor Viesca, supported by the political chief of Bexar and the ayuntamientos of Texas, the president, moved by economic considerations as well as by fear of revolt, excepted Texas from the operation of the decree. The law of April 6, 1830, made no change in the status of slaves then in the country. The Texas Declaration of Independence did not mention the matter. The constitution of 1836 finally settled the question by stringent provisions which put slavery beyond the control of Congress.

[ 50 ]

The Laws of Slavery in Texas

★ CHAPTER TWO

Laws on Slavery in the Republic and Statehood Periods, 1836–1860 ★

CONSTITUTION OF THE REPUBLIC OF TEXAS, 1836 GENERAL PROVISIONS, SECTIONS 6, 9, 10 ★

Introduction Although constitutional and statutory restrictions created by Mexican governments, both national and state, threatened the future of slavery in Texas, conflict over the institution was not an immediate cause of the Texas Revolution in 1835–1836. The centralization of Mexico under the rule of Antonio López de Santa Anna, coupled with disputes over customs duties and the generally defiant attitude of settlers in Texas, created the train of events that led to war. However, attitudes toward slavery constituted a major cultural difference between the majority of Mexicans and most Anglo migrants and thereby contributed to the development of conflict. And one major result of the revolution, as indicated in the constitution written for the new republic in March 1836, was the protection of slavery. Article 9 of the constitution’s General Provisions guaranteed the ownership of human property by current residents of the republic and by future immigrants, placed restrictions on emancipation, and made it clear that free blacks were not welcome in Texas. Thus the Constitution of 1836 provided the fundamental law necessary to make Texas, in words used by Stephen F. Austin three years earlier, a “slave country.”

Sections 6, 9, and 10 ... Sec. 6. All free white persons who shall emigrate to this republic, and who shall, after a residence of six months, make oath, before some competent authority that he intends to reside permanently in the same, and shall swear to support this constitution, and that he will bear true allegiance to the republic of Texas, shall be entitled to all the privileges of citizenship. ... Sec. 9. All persons of color who were slaves for life previous to their emigration to Texas, and who are now held in bondage, shall remain in the like state of servitude: provided, the said slave shall be the bona fide property of the person so holding said slave as aforesaid. Congress shall pass no laws to prohibit emigrants from bringing their slaves into the republic with them, and holding them

[ 52 ]

The Laws of Slavery in Texas

by the same tenure by which such slaves were held in the United States; nor shall congress have power to emancipate slaves; nor shall any slave holder be allowed to emancipate his or her slave or slaves without the consent of congress, unless he or she shall send his or her slave or slaves without the limits of the republic. No free person of African descent, either in whole or in part, shall be permitted to reside permanently in the republic, without the consent of congress; and the importation or admission of Africans or negroes into this republic, excepting from the United States of America, is forever prohibited, and declared to be piracy. Sec. 10. All persons (Africans, the descendants of Africans, and Indians excepted,) who were residing in Texas on the day of the declaration of independence, shall be considered citizens of the republic, and entitled to all the privileges of such. . . .

Source: H. P. N. Gammel, “Constitution of the Republic of Texas,” in The Laws of Texas, 1822–1897, 1:1079.

Laws on Slavery in the Republic and Statehood Periods

[ 53 ]

CONSTITUTION OF THE STATE OF TEXAS, 1845 ARTICLE 8 ★

Introduction When Texas joined the United States in 1845, the men who wrote its first state constitution assumed that persons held in servitude would remain in that status, so they began the article on slaves by repeating the republic constitution’s restrictions on emancipation and its assurances to immigrants of the right to bring in slave property. However, the state constitution differed from that of the republic by including provisions that pointed to the special nature of slave property. For example, the state legislature was given the power to pass laws requiring owners to provide adequate food and clothing. And Section 3 gave constitutional protection to the lives and bodies of slaves except in cases of insurrection. The extent to which these rules were enforced is an open question, but their inclusion demonstrates that the laws of slavery did not treat the enslaved purely as property.

Article 8 ... Article Eighth Slaves Section 1. The Legislature shall have no power to pass laws for the emancipation of slaves, without the consent of their owners; nor without paying their owners, previous to such emancipation, a full equivalent in money, for the slaves so emancipated. They shall have no power to prevent emigrants to this State, from bringing with them such persons as are deemed slaves by the laws of any of the United States, so long as any person of the same age or description shall be continued in slavery, by the laws of this State: provided, that such slave be the bona fide property of such emigrants: provided, also, that laws shall be passed to inhibit the introduction, into this State, of slaves who have committed high crimes in other States or territories. They shall have the right to pass laws to permit the owners of slaves to emancipate them, saving the rights of creditors, and preventing them from becoming a public charge. They shall have full power

[ 54 ]

The Laws of Slavery in Texas

to pass laws, which will oblige the owners of slaves to treat them with humanity; to provide for them, necessary food and clothing; to abstain from all injuries to them, extending to life or limb; and in case of their neglect or refusal to comply with the directions of such laws, to have such slave or slaves taken from such owner, and sold for the benefit of such owner or owners. They may pass laws to prevent slaves from being brought into this State as merchandize only. Sec. 2. In the prosecution of slaves for crimes of a higher grade than petit larceny, the Legislature shall have no power to deprive them of an impartial trial by a petit jury. Sec. 3. Any person who shall maliciously dismember or deprive a slave of life, shall suffer such punishment as would be inflicted, in case the like offence had been committed upon a free white person, and on the like proof, except in case of insurrection of such slave.

Source: H. P. N. Gammel, “Constitution of the State of Texas,” in The Laws of Texas, 1822–1897, 1:1296.

Laws on Slavery in the Republic and Statehood Periods

[ 55 ]

The Law of Slavery in Texas Randolph B. Campbell ★

Introduction When I moved to Texas from Virginia in 1966 to teach at North Texas State University (now the University of North Texas), I discovered that slavery in Texas had received almost no scholarly study (the subject did not even have an entry in the 1952 edition of The Handbook of Texas). I began to build a background in research and writing on mid-nineteenth-century Texas and eventually published An Empire for Slavery in 1989. This book remains the only comprehensive study of human bondage in the Lone Star State. I devoted a chapter to an overview of the laws that protected and regulated slavery. Breaking the slave code into five related but distinct sets of constitutional provisions, laws, and court decisions—those guaranteeing slave ownership and offering civil protections for property rights in bondsmen, those defining criminal acts against slave property, those regulating the conduct of slaves, those dealing with runaways, and those restricting the presence and conduct of free blacks—this chapter sought to explain the legal framework that protected slavery in Texas. The law included notable recognitions of the slaves’ humanity, but in the final analysis it contained even more assurances for the property owned by masters.

T

exans always recognized that slavery could not exist without protection of the law. In January, 1824, only two years after settlement began in his colony, Stephen F. Austin issued his Criminal Regulations, containing five articles that constituted the province’s first “slave code.”1 More extensive rules to protect the institution and govern slave conduct could not be promulgated while Texas remained part of Mexico. But once the Constitution of 1836 provided the necessary fundamental guarantees, the law of slavery developed rapidly. Then, following statehood and the adoption of a new constitution in 1845, Texas’ legislators and judges brought to maturity an extensive system of statutory and case law dedicated to the maintenance and regulation of the Peculiar Institution. The law of slavery in Texas was a complex and sometimes curious matter because it dealt with a unique form of property—humans whom other humans owned as private possessions. If slaves had been simply items of personal

[ 56 ]

The Laws of Slavery in Texas

property like horses or wagons, without human intelligence or will, laws could have operated only on their owners rather than on the bondsmen themselves and masters would rarely have allowed considerations other than economic interest enter into the handling of their bondsmen. Slaves, however, because of their human capabilities, could not be treated as property pure and simple. The state held bondsmen legally responsible for their own actions—a practice that threatened owners’ property rights when slaves were punished or executed for particular criminal offenses.2 Masters at times recognized their servants’ humanity by granting them freedom—an action that was widely regarded as a threat to the entire institution. The law of slavery revealed how Texans wrestled with and resolved these and other conflicts arising from the paradoxical practice of holding humans as property. Texas’ slave code dealt with five related but distinct aspects of the institution. Each required particular constitutional provisions, laws, or legal rulings, so each must therefore be examined in turn. First, the code had to guarantee the right to own slaves and provide essential civil protections for property rights in bondsmen. Second, laws defining criminal acts against slave property, such as stealing a bondsman, had to be enacted. Third, the conduct of the slaves themselves had to be regulated. Fourth, the constant problem of runaways had to be addressed. And, finally, there was the matter of free blacks, whose presence alone was regarded by many as an intolerable threat to slavery.3 The first critical step toward development of a slave code for Texas came when the Constitution of 1836 swept away all questions created by Mexican authorities concerning the legality of slavery in the new republic. Negroes held in bondage at the time of the revolution were to remain in servitude, and immigrants could bring their bondsmen to Texas and hold them just as slaves were held in the United States. Congress could not deprive owners of their human property through emancipation. When the first state constitution was written in 1845, no need existed to clarify the status of blacks in bondage, but the assurances concerning slaveholding immigrants and the restrictions on forced emancipation were repeated.4 Such constitutional guarantees provided the most fundamental protection possible for the right to own slaves as property. Legislation was not necessary to permit or protect simple ownership. Some Texans, however, felt that property rights in slaves deserved special consideration. On January 27, 1841, two years after congress passed a law exempting homesteads in the republic from forced sale under execution to pay debts, slavery’s advocates secured the adoption of a measure extending similar protection to Negro property. This law was instantly controversial, primarily because it arrayed one type of property interest against another. Creditors lamented the denial of forced sales for debt collection. Other Laws on Slavery in the Republic and Statehood Periods

[ 57 ]

Texans applauded the measure because it encouraged immigration, especially during the depression that extended into the 1840s after the Panic of 1837. One editor, D. H. Fitch of the Houston Morning Star, defended the law with the argument that the master-slave relationship was akin to family ties. “Is it not only right that this ‘property’ not be sold?” he asked. Fitch’s resort to such an argument suggests the depth of feelings evoked by the law. Defense of property rights with concern for the property’s humanity was ironic and probably hypocritical as well, since many slaveholders were willing to sell their bondsmen so long as the sale was not forced under execution for debt. In any case, the law was repealed within less than twelve months. The idea appeared again in 1856 with a senate bill proposing to exempt up to five of a master’s slaves from “execution or forced sales.” This bill was tabled, however, and never came to a vote.5 Texans revered slave property, but the majority stopped short of placing it on a level with their homesteads. The business of buying and selling slaves, which obviously involved property rights, was carried on according to such long-established practices that it required no statutory framework. Sellers typically gave warranties that the bondsmen involved in a transaction were slaves for life and sound in body and mind. Buyers, once they accepted such a warranty, were obligated to pay for the property according to the agreed-upon terms. Numerous suits arose, however, from charges concerning the sale of unsound bondsmen, with the result that Texas courts established a great deal of case law protecting the rights of both parties in the sale of slaves. In cases where bondsmen were warranted sound by sellers but died shortly after the transaction from some proven long-standing defect, the courts ruled that the purchaser deserved compensation.6 In cases where considerations other than the physical and mental soundness of the slaves as property were involved in a transaction, however, the court tended to rule for the seller. For example, in 1846 a Bowie County slaveowner named McKinney, planning to move to Collin County and not wishing to separate one of his female slaves from her husband who belonged to a Dr. Fort, bought the man for 13,000 pounds of ginned cotton. The man, who was only twenty-two, died in 1847, and McKinney sued Fort for his value. He lost in district court and also on appeal to the Texas supreme court. Chief Justice John Hemphill commended McKinney for his benevolent sympathies but pointed out that Fort had not been asked for a warranty. McKinney, Hemphill said, determined to make the purchase from considerations other than the soundness of the property involved and therefore could not recover any damages. Even in cases where a warranty of soundness in mind and body had been given, the court was inclined to recognize evidence that considerations of the slave’s humanity, rather than his status as property pure and simple, had been involved. The case of James Nations v. John G. [ 58 ]

The Laws of Slavery in Texas

Jones provides an interesting example of this point. Jones sold a slave to Nations with the verbal warning that the “boy” was a “chuckle-headed fool” to which the latter replied “this was the kind of Negro he wanted.” Nations soon concluded that the slave was in fact an idiot and sued for a reduction in the purchase price. He lost in both the district court and, on appeal, the supreme court because, as Chief Justice Hemphill put it: “He desired to have a chuckle-headed fool, that had just sense enough to do what he was told.” Nations complained, Hemphill wrote seemingly with tongue-in-cheek, “that the slave had a little more of the valuable quality of mental weakness than he bargained for or intended to purchase,” but the evidence was that he had gotten just what he wanted.7 Texas courts thus appear to have balanced the rights of sellers and buyers of slaves so that both parties to such transactions, especially if they gave primary attention to the actual condition of the property involved, were legally protected. The courts afforded even more certain protection to slaveholders who suffered property losses due to the actions of others. This was especially true in the many cases that arose from the slave-hire system. In one of the earliest decisions rendered by the state supreme court, Henry Mims won damages from Isaac N. Mitchell because the latter had hired his slave girl and mistreated her so badly that she died. Justice Royal T. Wheeler, in rendering what became a landmark decision, wrote: “The hirer of a slave is bound to observe towards the slave the same care which a discreet, humane and prudent master would observe in the treatment of his own slaves.” This general concept was later extended to cases in which hired slaves were killed while performing duties not “normally” performed by bondsmen, cases in which an overseer or foreman rather than the actual hirer was responsible for the loss, and cases in which the hired slave died as a result of being moved to a less healthy climate. The court even ruled for the owner in a case that rose from a hirer mistreating a slave so badly that he ran away and was killed later while breaking into a house. Justice Wheeler concluded that the “wrongful” mistreatment led to the loss, so the hirer was responsible. In short, owners who hired out their slaves could be certain that their property interests were protected.8 Property rights in slaves were even protected by law against losses resulting from action by the state. An act of January 24, 1852, permitted masters to collect indemnities for any slave convicted and executed for committing a capital offense, provided that the owner did not try to “evade or defeat the execution of the law.” The jury that convicted the slave assessed his value, not to exceed $1,000, and the state treasury paid one-half of it to the owner. The legislature appropriated $5,000 to support this act, and the fund was used. Apparently no one appreciated the irony of treating slaves as human enough to be responsible for their crimes and property enough to be paid for when destroyed by execution for capital offenses. Laws on Slavery in the Republic and Statehood Periods

[ 59 ]

In fact, there was an attempt in 1857 to extend compensation to the owners of bondsmen “executed by the people without the authority of law”—i.e., those who fell victim to mob action. The Texas senate rejected this idea, however, because, as a committee report put it, such a law “would encourage our citizens to take the law into their own hands, whenever inclination, passion or prejudice may prompt them.” Owners who lost slaves to mob action were advised to turn to the courts for redress.9 In addition to guaranteeing the right to own slaves and protecting property rights in bondsmen, the law of slavery had to define and prohibit criminal interference with the institution. Stealing or enticing away slaves was one such offense that drew attention from the outset. In December, 1836, the first congress of the republic made it a felony punishable by death to steal a bondsman or entice him into leaving his master. This draconian penalty was reduced in 1840 to thirty-nine lashes and a prison sentence of one to five years. Further revisions of the penal code during the 1850s eliminated whipping as part of the punishment but broadened the offense to include attempts at stealing or enticing away slaves as well as the acts themselves. The penalty for this crime in 1860 was a prison sentence of five to fifteen years. In a similar vein, the law also provided that any boat captain who carried a slave away from his home country without his owner’s permission could be sent to the penitentiary for ten to thirty years.10 Harboring a runaway bondsman also became a crime very early in the development of Texas’ slave code. An act of January, 1839, provided punishments for this offense, ranging up to a $1,000 fine and a year in jail. Although these penalties were changed from time to time, the law remained in force and was broadened to include simply concealing fugitives and advising or aiding slaves to run away. In 1860 the offenses of harboring or concealing runaways drew only a $100 to $500 fine, but repeat offenders could be sentenced to three to ten years in the penitentiary. The first conviction for aiding or advising bondsmen to run away merited a similar sentence.11 Unauthorized trading with slaves was defined as a criminal offense in February, 1840. Throughout the remainder of the antebellum period, any person who bought valuable produce or articles from a slave without the written consent of his or her owner was liable to a fine of as much as $200. Liquor dealers who sold or gave their wares to bondsmen without written approval from their masters were subject to the same penalty.12 Aiding or inciting a slave insurrection was not defined specifically as a crime until surprisingly late in the development of Texas’ slave code. An act of December, 1837, provided the death penalty for free blacks found guilty of “insurrection, or any attempt to excite it,” but no law encompassing whites as well as blacks and specifying aiding, planning, or inciting a slave rebellion was passed until 1854. [ 60 ]

The Laws of Slavery in Texas

The crime was punishable by death until a revision of the state’s penal code in 1858 reduced the penalty to a prison sentence of ten years to life. “Insurrection of slaves” was defined as an “assemblage of three or more, with arms, with intent to obtain their liberty by force.” After 1858 the law also provided a penalty of five to fifteen years in prison for any person who tried to render a slave “discontented with his state of slavery.”13 A good many Texans ran afoul of one or the other of these laws against criminal interference with slaves. The Texas State Penitentiary in 1856–57, for example, had eighteen inmates serving sentences for “Negro Stealing” or “Enticing Away Negroes.” State supreme court reports indicate that others escaped prison only through technicalities. James Cain, “yeoman” of Fayette County, had his conviction for slave stealing reversed because the word “feloniously” was omitted from his indictment. Samuel Lovett of Upshur County was convicted of enticing away a slave on the testimony of individuals who overheard him talking to the bondsman in December, 1856, about the possibility of leaving the following spring. Justice Royal T. Wheeler reversed the district court on the grounds that such a discussion so far before the fact did not constitute an actual effort or an attempt by Lovett to commit the offense in question.14 Records of the various district courts across Texas also reveal case after case arising from violations of the laws against interfering with slaves, especially the offenses of selling liquor to bondsmen or buying from them without the consent of their owners. Thomas Kerchoff of Red River County, for example, was found guilty in 1860 on three counts of selling liquor to a slave and fined $20 on each charge. J. and N. Alexander of Smith County were each fined $25 for buying corn from one of D. R. Jeffries’ slaves without his written consent. Convictions of this sort were also appealed at times to the supreme court, which showed the same concern for procedures that it demanded in cases involving more serious offenses. When S. M. Kingston of Gonzales County appealed a conviction for buying five chickens from a slave, Justice James H. Bell, noting that the eighteenyear-old son of the bondsman’s owner was present at the transaction and that the indictment did not specify “written” permission, remanded the case to the lower court. John M. Allen won a similar reversal on a charge of selling liquor to a slave when Chief Justice Hemphill ruled that, since no money had changed hands, the whiskey was a gift, and gifts of liquor from whites to blacks were not illegal.15 Laws governing the conduct of bondsmen were also an essential part of Texas’ slave code. An act of December, 1837, made insurrection, poisoning, rape of a white female, assault on a white with intent to kill, maiming a white person, arson, murder, and burglary into capital offenses if committed by a slave. All other crimes and misdemeanors “known to the common law of England” committed by slaves could be punished at the discretion of county courts “so as not to extend to life Laws on Slavery in the Republic and Statehood Periods

[ 61 ]

or limb.” These lesser offenses did not require grand jury action, but a jury trial was mandatory. Any slave who used “insulting or abusive language” to a white person could be arrested by a justice of the peace and punished by twenty-five to one hundred lashes. In 1840 Congress provided that slaves could not carry a gun or deadly weapon without the written permission of their owners. Any white person could take such weapons away from a bondsman who did not have the proper authorization.16 After 1845 the Texas legislature simply built upon the republic’s laws defining criminal conduct by slaves and setting the penalties for those crimes. By 1860 the state’s penal code provided only two punishments for bondsmen: death and whipping. Death by hanging was the punishment for those who committed murder, insurrection, or arson; rape or attempted rape of a white woman; and robbery, assault with the intent to commit murder or robbery, or assault with a deadly weapon on a white person. Lesser offenses such as petty larceny, public drunkenness, and insolence to a white person were punishable by whipping. All capital offenses were tried in district courts, while lesser crimes went to justices of the peace. In any case involving an offense greater than the theft of property worth less than twenty dollars, slaves had the right to a jury trial. Slaves could not be held as accessories to crimes committed by their masters, and they were not responsible for offenses occurring while they were under their owner’s supervision or control. Anytime, however, that bondsmen acted outside the immediate custody of their masters they were legally responsible for their acts.17 Undoubtedly many slaves were punished by their masters without regard to the law, especially in cases of minor violations, but it was not uncommon for bondsmen to be tried in court. Justice of the peace courts heard cases involving lesser offenses and at times handed out severe penalties. A Polk County slave, for example, accused in 1856 of stealing a bell and rope worth two dollars and injuring a mare, was found guilty of the first charge and innocent of the second. His punishment, set by the justice, was thirty lashes by the county sheriff. A Hunt County jury in January, 1856, directed that a slave found guilty of larceny be given “76 stripes well laid on.” In one Smith County justice court, a slave named Charles received a jury trial because he was accused of stealing property valued at more than twenty dollars. He was found guilty and sentenced by the jury to be given “three hundred lashes on his bare back to be well laid on with a leather strap in such manner as not to inflict great bodily injury.” It is difficult to imagine just how the sheriff complied with this order. In a similar case in 1860, Governor Sam Houston intervened to abate the severity of punishment. E. V. Stanley’s slave, Abe, found guilty of burglary, was sentenced to 750 lashes to be administered at stated intervals over a period of time, but Houston pardoned him before the full penalty was exacted.18 [ 62 ]

The Laws of Slavery in Texas

Bondsmen who committed more serious offenses against whites often were dealt with by lynch law. The Austin Texas State Gazette expressed approval of this form of “justice” in October, 1860. “A negro has been arrested for a rape on a respectable white lady,” the editor wrote. “We expect he has been hung up a tree before this.” Lynchings were common enough that Texas newspapers reported at least three in 1859 alone. At Smithfield, Tarrant County, in May, one of James Roper’s slaves, angered because his master did not buy his wife in Alabama and bring her to Texas, killed Roper and burned his body. Local whites forced the slave to confess and then burned him on the same spot. A similar incident occurred in Polk County during May or June. In Hopkins County, after a slave was arrested for the attempted rape of a white woman, a mob broke into the jail and hanged him.19 Lynch law did not always prevail, however. Two slaves who murdered their owner, William Gaffeney, near Clarksville in April, 1853, were duly tried, sentenced, and executed according to the law. The two were valued at $1,879.16 by the jury that sentenced them to death. When three of Richard S. Bostick’s slaves killed him in January, 1858, they met the same fate as Gaffeney’s bondsmen. Following their execution in October, the administrator of Bostick’s Jackson County estate subtracted $3,100, the appraised value of the three males aged forty-six, thirty-five, and twenty-five, from the property under his control. Peter, a sixteenyear-old boy from Red River County, also received a procedurally correct, albeit very swift, application of the law in early 1859. Accused of killing his mistress, he was indicted on January 6, tried and found guilty on the twelfth, sentenced on the seventeenth, and hanged on the twenty-eighth. The jury that found Peter guilty fixed his value at $800.20 The case of Dave, a Smith County bondsman accused of assault with intent to commit murder, demonstrates a concern for procedures that was not uncommon when slaves committed serious offenses. A grand jury sitting at Tyler on June 4, 1861, indicted Dave for an April 15 assault on the son of his master, William C. Gober. Dave had stabbed Young Gober, who was “then and there a free white person,” three times “with a certain knife then and there being held in the hands of him the said . . . slave.” The attack with a deadly weapon had so injured its victim that “the life of him the said Gober was despaired of.” Dave had a court-appointed attorney and entered a plea of not guilty. District Judge R. A. Reeves conducted his trial and at the conclusion charged the jury as follows: If the jury believe from the evidence that the defendant assaulted Young Gober with a knife as charged in the indictment and that it would have been murder if death had been the result, the assault is deemed in law to have been made with intent to commit that offense and the punishment is death. And if you Laws on Slavery in the Republic and Statehood Periods

[ 63 ]

find the defendant guilty as charged in the same indictment, return a verdict accordingly. If you find him not guilty so say by your verdict. If you have a reasonable doubt of his guilt, he is entitled to the benefit of such doubt and to an acquittal. If you find him guilty of the assault to murder you will also assess his value and state whether his owner has attempted to evade the law against the negro.

The jury found Dave guilty and set his value at $1,000. Dave’s attorney appealed for a new trial, but Judge Reeves denied the motion and imposed the death sentence. Dave was hanged on July 11, 1861, on a gallows erected within Smith County jail. In April, 1862, William C. Gober collected $500 from the state comptroller.21 Although a strong presumption of guilt was apparent, slaves charged with offenses against whites were not always found guilty and punished. The case of Elizabeth, who belonged to James Threatt of Robertson County, provides a good example. When her owner’s young son disappeared in June, 1863, Elizabeth and another slave named Ned were beaten with a rope to extort information or confessions. Ned claimed that Elizabeth had put the child in a well, whereupon she said he was lying and took witnesses to the child’s badly bruised body in a pond of water near the master’s home. Ned and Elizabeth were indicted for murder. He, having met his death shortly thereafter (another lynching?), was not tried, but Elizabeth was convicted. Her court-appointed lawyer appealed to the Texas supreme court and won a new trial. Justice Moore ruled that the evidence obtained after coercion was admissible in court but concluded that it did not sustain a murder verdict. Elizabeth’s cognizance of the child’s murder and the body’s hiding place “does not prove that she willed it,” he wrote, “or was an accomplice in its being done.” Once the case was remanded to Robertson County and then moved to Falls County on a change of venue, she was found not guilty. Pompey, a slave in Wharton County, won an acquittal on charges of attempting to poison his master after telling the jury how harshly he had been treated. A Burleson County bondsman received a full pardon from Sam Houston in 1860 after “sundry Citizens” petitioned the governor to explain that the assault which led to a death sentence had taken place “under peculiar and aggravated Circumstances” and left “no permanent injury.”22 There were also cases in which slaves were prosecuted for capital offenses against their fellow bondsmen. When, for example, Jack was accused of killing his wife Nicey in Guadalupe County, a jury convicted him and imposed a death sentence. His case was appealed to the state supreme court in 1861 on several grounds, including the failure of the jury to set his value. Justice James H. Bell, however, denied the validity of the appeals and confirmed the district court’s [ 64 ]

The Laws of Slavery in Texas

decision. Nels and Calvin were more fortunate than Jack. Nels, convicted of murder in Red River County in 1846, won a reversal because the jury in his trial had not been sworn. Calvin, a Rusk County bondsman, was convicted in 1858 after his indictment was altered during the trial to clarify ownership of the victim and how she had died. Justice Bell found this procedure too improper to support a conviction. “The law of the case,” he wrote, “is precisely the same as if the accused were a free white man, and we cannot strain the law ‘in the estimation of a hair,’ because the defendant is a slave.”23 Many offenses by slaves against fellow blacks probably went without formal prosecution because owners feared the loss of valuable property to criminal punishment. This possibility is suggested in an interesting case that came to the supreme court in 1866, the year after emancipation in Texas. Mary and Maria, who belonged to B. D. Arnold of McLennan County, had quarreled in October, 1863, over the need to punish Maria’s child, who supposedly had told a lie on Mary. According to witnesses, Mary smacked the child, whereupon Maria screamed: “You whip my child, God drast your eyes! I will kill you!” and stabbed her with a butcher knife. Mary lived for a month after the attack but died on November 29, 1863. Maria was not indicted for any crime for two years, probably, in the words of the statement of facts presented when the case finally came to the supreme court in 1866, because her master “was unwilling to incur the additional loss of punishing the murderer by law.” A similar case apparently occurred in Washington County during 1857. The administrator of the Elisha D. Little Estate informed the probate court that a man named Anderson was unmanageable and had committed an offense “which if prosecuted would have forfeited his life.” This report did not specify that Anderson’s offense was against another black, but that was likely.24 Laws concerning runaways constituted a fourth aspect of Texas’ slave code. An act of February, 1841, gave all Texans the lawful right and responsibility to apprehend runaway slaves and take them before a local justice of the peace. The runaway was then returned to his owner, if known, or jailed. If, after six months, during which time notices were to be placed in local newspapers, the slave had not been claimed, he was to be sold at auction. However, if the original owner appeared and proved title to his property within the next three years, he was to receive the amount paid for the slave. By 1844, when the number of bondsmen escaping to Mexico had become troubling to slaveholders, the state congress made it legal for anyone capturing runaways west of the San Antonio River to demand a fifty-dollar reward for each plus two dollars for every thirty miles traveled to return them to the rightful owner.25 Laws established under the republic concerning the capture and disposal of runaways remained in effect through the statehood period, as did the system of special rewards for the capture of slaves west of the San Antonio River. In 1858 Laws on Slavery in the Republic and Statehood Periods

[ 65 ]

the state legislature, upset at the number of slaves escaping to Mexico and the Mexican government’s refusal to respond to the situation, passed a measure entitled “An Act to Encourage the Reclamation of Slaves Escaping Beyond the Limits of the Slave Territories of the United States.” This act entitled any person who captured a slave attempting such an escape and delivered his captive to the sheriff of Travis County at Austin to a payment from the state treasury amounting to one-third of the slave’s value. The state would recover its costs either from the slave’s master when the property was reclaimed or from the sale of the slave. The wording of this measure was such that it did not call for capturing slaves who had escaped to Mexico—only those who were “escaping.” But this was a nicety that might easily have been overlooked by zealous slave catchers.26 In May, 1846, the Texas Legislature took an important step toward stronger enforcement of the various laws protecting slavery—those dealing with criminal interference by free persons and with runaways as well as those regulating slave conduct—by creating a formal slave patrol system. The law directed county courts to appoint a patrol consisting of a captain and as many as five privates for each “district or division” in the county. One-half of the members of a patrol were to be slaveholders. Their period of service was three months, and they were required to patrol their district at least once a month “and as much oftener as the tranquility thereof may require.” Patrols were empowered to search suspected places for harbored or runaway slaves. If they captured a runaway, patrol members divided the fees that would have come to any individual “for similar services.” Any white person found associating with slaves without the permission of their owner was to be taken before a justice of the peace to be fined (five to fifty dollars) and imprisoned (up to thirty days). Slave patrols, “patterollers,” as slaves called them, became a feared part of life for bondsmen.27 One final protection for slavery involved the harsh constitutional and statutory restrictions on free Negroes in Texas.28 The Constitution of 1836 provided that free blacks could not reside in the republic without permission of congress. In June, 1837, a congressional joint resolution permitted all free blacks who were in Texas at the time of the declaration of independence to remain “as long as they choose.” The number was not large, probably no more than 150. However, another act on February 5, 1840, provided that after the passage of two years all “free persons of color” in Texas were to leave the republic. All who remained after that time, without the permission of congress, were to be sold as slaves. The law also prohibited immigration by free Negroes. Some free blacks received special exemption from the February, 1840, law, and in December, 1841, President Sam Houston granted a two-year extension of the “grace period” to all who requested the extra time. Nevertheless, the point was clear—free blacks were unwelcome in Texas. Those who were permitted to stay were often subjected to the same [ 66 ]

The Laws of Slavery in Texas

laws as slaves. For example, all the crimes such as insurrection, poisoning, or rape of a white female that were capital offenses if committed by slaves were to be punished in the same way if a free black was the offender. Free Negroes who stole or enticed away slaves or harbored runaways were to be fined an amount equal to the value of the slave or slaves in question. If the fine could not be paid, the offender would be sold as a slave for life.29 Discrimination against free Negroes would have been present, of course, on racist grounds alone; special regulations were common across the antebellum United States, North as well as South. But protection of slavery was the primary motive. Several members of the Texas senate made this quite clear during the debate in 1839 on a proposal to free Peter, a slave belonging to Wiley Martin, and allow him to remain in the republic. Peter had loyally aided the Texas revolution and accumulated a fortune of $16,000. Senator S. H. Everett, representing Jasper and Jefferson counties, opposed his manumission, calling it a bad precedent to allow a freed slave to stay in Texas. He would, he said, “take no hand in bringing destruction and bloodshed upon his country.” Senator George W. Barnett agreed. Yes, he said, Peter should be rewarded for his help during the revolution “when this boy gratuitously furnished supplies,” but not with freedom in Texas. With all his money, Barnett contended, Peter would cooperate with abolitionists, and “that would strike at the very root of our most useful domestic institutions, and at the peace and security of ourselves and our families.” Peter eventually gained his freedom in 1842 and lived in the town of Richmond in Fort Bend County. He made a living as a peddler and cook, hired his wife from her master so that his family could be together, and lived a responsible life until his death in April, 1863. Of course, Peter Martin’s example would hardly have reassured those who opposed his manumission. He had not cooperated with abolitionists or brought death and destruction to Texas, but he had demonstrated the validity of a slightly more subtle fear voiced by another of the senators who opposed his freedom. Manumission, he said, “sweeps from us our strongest ground, in refutation of the doctrine of the abolitionists, for we have always insisted that slaves and free negroes are incapable of self government.”30 Free blacks constituted a threat to one of slavery’s most basic assumptions, and the Republic of Texas generally treated them accordingly. Statehood brought no significant changes in attitudes or practices concerning free blacks. The Constitution of 1845 created some confusion about their status by permitting manumission without specifying what was to become of the slaves thus gaining their freedom. But the supreme court ruled in 1854 that, in light of other restrictions in the constitution and in the laws of the republic, manumission could occur legally only when the slave in question was “sent without the limits of the state.”31 The court was notably careful of the rights of owners to manumit Laws on Slavery in the Republic and Statehood Periods

[ 67 ]

their slaves and of the rights of legally freed Negroes to maintain their freedom. The basic view of antebellum Texas justice toward blacks, however, was stated succinctly by Justice Oran M. Roberts in 1859: “Negroes are, in this country, prima facie slaves. While held as such, they are slaves de facto, whether de jure or not. If they are dissatisfied with their condition, and have a right to be free, our courts are open to them . . . to assert their right. As long as they fail to do so, they recognize this status as slaves.” Any other doctrine, said Roberts, would confuse the “simplicity and certainty” necessary to both master and slave.32 The census of 1850 reported 394 free blacks (0.19 percent of the whole population) in Texas, and that of 1860 enumerated only 355 (0.06 percent of the total). An equal number of blacks, however, probably were not counted as free and perhaps not at all because they fell into a gray area between slavery and freedom. These were people such as a female slave who came to Texas with A. J. Hamilton in 1847, was set free by her master during the 1850s, then arrested for residing in the state as a free person without the legislature’s permission, and finally allowed to choose Aaron Burleson as a “guardian” and remain in Travis County. The case of Jim Brigham provides another example. He bought freedom for himself, his wife, and one of his children before the Civil War and lived as a free man in Hunt County. The commissioners’ court of that county even appointed him as one of those responsible for upkeep of the Greenville-Paris road in 1859. Following the war, he helped found a town for freedmen called Neylandville. Jim Brigham does not appear in the census of 1860, and there is no indication that his residence in Texas had been approved by the state legislature, yet it is clear that he lived for years as a free black. There were also instances in which slaves were manumitted in their masters’ wills but remained in Texas indefinitely after being emancipated. These former slaves could not own property and enjoy the other rights of free men so long as they lived in Texas, but they were not anyone’s property either. The Rusk Texas Enquirer claimed in 1860 that Texas had 1,000 free Negroes, an estimate suggesting that this group, probably because of a failure to count those who were quasi-free, was more than twice as large as the census indicated.33 Free blacks, although constituting only a tiny fraction of Texas’ total population even if all had been counted, still posed in the eyes of the Texas legislature a threat to slavery and to the belief that Negroes were fit only to be slaves. Accordingly, in January, 1858, the legislature passed a law permitting free persons of African descent to choose masters and voluntarily enslave themselves. Free Negroes over the age of fourteen could appear before a district court and, following an investigation by the district attorney to show that fraud or compulsion were not involved, become slaves for life. Children under the age of fourteen could become slaves with their mothers. Some free Negroes actually enslaved themselves under the terms of this act. Proslavery newspaper editors gleefully [ 68 ]

The Laws of Slavery in Texas

reported such cases as evidence that slavery was better than freedom for Negroes. District court records, however, give absolutely no hint as to the motivations of the blacks involved.34 In any case, the legislature had made its point of view clear: free Negroes constituted an unwelcome anomaly in Texas. Only a few would be allowed to remain in the state, and those would be encouraged to return to their “natural condition” as slaves. 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. The law of slavery was complex and sometimes curious primarily because bondsmen, as humans, could not be dealt with purely as private possessions. Slaves received some recognition of their humanity, but masters were assured even greater protection for their property.35

Laws on Slavery in the Republic and Statehood Periods

[ 69 ]

The Texas Supreme Court and Trial Rights of Blacks, 1845–1860 A. E. Keir Nash ★

Introduction A. E. Keir Nash’s doctoral dissertation, “Negro Rights and Judicial Behavior in the Old South,” which he completed at Harvard University in 1968, uncovered one of those wonderful ironies so common in southern history. He found that in spite of the oppressive atmosphere created by slavery, the supreme courts of states in the Old South gave essentially fair treatment to slaves and free blacks. Ironically, once slavery ended, white racism directed against the black population influenced southern judges frequently to permit total contempt for the concept of equality before the law. Nash’s findings supported the argument of the great southern historian C. Vann Woodward, who contended that segregation, the physical separation of the races, was uncommon during the era of slavery and developed only after emancipation led whites to seek a new means of showing their superiority. When, in the early 1970s, Nash sought to publish journal articles taken from his dissertation, he ran into an early version of what is now called “political correctness.” Law review editors worried that his conclusions, by showing that African Americans had ever received equal treatment before the law in southern states, would undermine the Second Reconstruction in race relations that had reached fruition in the 1960s after many hard-fought battles with contemporary southern judges. Nash told the Texas Supreme Court Historical Society in December 2008 that when the Virginia Law Review published his first overview article, in 1970, the editors noted that it would “prompt controversy in Black Studies classes” but expressed the hope that its analysis would “promote the understanding necessary to racial reconciliation.” A year later Nash, arguing that the Supreme Court of Texas was especially remarkable for its handling of blacks’ trial rights, published an article devoted exclusively to that state. He continued to write about slavery and the courts for many more years, culminating with the publication of an extensive article entitled “Reason of Slavery: Understanding the Judicial Role in the Peculiar Institution” in the Vanderbilt Law Review in 1979 and a piece called “In Re Radical Interpretations of American Law: The Relation of Law and History” in the Michigan Law

[ 70 ]

The Laws of Slavery in Texas

Review in 1983. Nash is now professor emeritus in history, black studies, and political science at the University of California at Santa Barbara.

The law of the case . . . is precisely the same as if the accused were a free white man, and we cannot strain the law even “in the estimation of a hair,” because the defendant is a slave.

—Calvin v. State, 25 Tex. 789 (1860), 796

With these words, penned less than a year before secession, Associate Judge James Bell capped a remarkable antebellum tradition of fair treatment of blacks in the Texas supreme court. Time, scholarship, and United States Supreme Court reversals of twentieth-century southern judicial decisions in trials concerning blacks have combined virtually to erase from contemporary national consciousness the facts of the essentially decent treatment of the black by the southern state supreme courts during an otherwise oppressive era of slavery.1 In reality it is scarcely an exaggeration to characterize contemporary assumptions about antebellum judicial treatment of the southern black as heavily colored by the federal government’s running battle to prod and cajole southern state judges into unwilling extension of Fourteenth Amendment theory into practice.2 Thus the late Mark DeWolfe Howe, after the firsthand experience of a “civil rights summer” in rural Mississippi, argued that the contemporary racist milieu of the Deep South permitted an ugly contempt for the rule of law to permeate the judicial arena. In Howe’s view, the charge of a long since departed federal district judge described the mores of the 1960s as well as it did those prevalent when originally penned in 1875: In no country but our own is the discreditable fact true that where . . . shocking outrages are perpetrated . . . there is no power of punishment save through the impractical instrument of those who have either committed or sympathized with the crime. . . . [C]onspiracies and combinations against the property, well-being, and life of classes of persons . . . include large portions of the constabulary, the magistracy, and the jurors. . . .3

That the Texas supreme court has generally received less bitter criticism for its decisions concerning blacks than have the supreme courts of other Gulf States is probably less the result of a considered historical judgment than of the absence

Laws on Slavery in the Republic and Statehood Periods

[ 71 ]

from national attention of “Lone Star horribles” equal to Brown v. Mississippi4 or Powell v. Alabama.5 Of course, the Texas court has not altogether escaped reversal by the United States Supreme Court in civil rights cases. Rather, its constitutional myopia (if such it was) historically has been considerably less shocking to the liberal conscience than the blindness manifested by certain other state supreme courts in the lower South. Thus, the failure in the 1930s of the Texas supreme court to perceive that a state law providing for “white primaries” for the Democratic party might constitute “state action” and so violate the “equal protection” clause of the Fourteenth Amendment6 was hardly an affront to the liberal sense of racial justice quite equal to the Mississippi court of appeal’s failure to perceive any fundamental unfairness in basing a capital conviction on a confession extracted by the deputy sheriff ’s whipping the defendant for three days.7 Without passing judgment on Mark Howe’s estimates of the general southern judicial climates of 1875 and 1965, the important but unexplored point here pertains to an anterior era. Before 1861, a pattern of Texas judicial behavior prevailed which was clearly not privy to conspiracies and combinations against classes of persons but rather was active in expanding protection of the black under the rule of law. The judges of the antebellum Texas supreme court8 appear to have been anxious to secure as much justice for the black man as was possible within a caste society. In this the Texas judges did not stand alone.9 With one exception,10 from 1830 to 1860 the supreme courts of the states which seceded in 1861 were generally concerned with fair trials for blacks. However, of all the deep southern judiciaries the Texas supreme court was the most consistently “libertarian”—to appropriate a present-day term with corrective caveats for time and culture. Indeed, only the Tennessee supreme court tended so frequently to find in favor of the black man. By the time Texas was admitted to the Union, earlier “Jeffersonian,” or “Enlightenment,” doubts about the peculiar institution had largely died out.11 When the Texas state supreme court began to function, the South had formed into a nearly monolithic concert defending slavery and had resolved its Enlightenment doubts about blacks as “humanity” versus blacks as “property” in favor of the latter. It is then extraordinary to find so influential a governmental branch as the Texas supreme court, in pre–Fourteenth Amendment days,12 exhibiting a strong strand of concern for the black man qua human. It is even more extraordinary to find this in a sector of the South that had settled into slavery after the invention of the cotton gin had enormously augmented slavery’s exploitative attraction to investments. The standards of the Texas bench from 1845 to the Civil War can be most efficiently seen by limiting this examination to four types of lawsuits. The first type embraces criminal prosecutions initiated by the state against whites who [ 72 ]

The Laws of Slavery in Texas

harmed blacks. The second category is that of felony trials of blacks themselves. The third type consists of civil suits brought by slaves seeking their freedom. The fourth type involves “subversion” against the slave-system—enticing slaves to abscond from their masters’ control or petty infractions such as selling liquor to blacks. The outcomes of these four kinds of suits—unlike the far more numerous instances of civil suits between whites (generally between masters and hirers) seeking monetary compensation for damage to slaves—cannot be explained as resulting simply from judicial desires to uphold property interests of white masters. The results point rather to the existence of at least three other attitudinal characteristics in the minds of the five judges who sat on the three-man Texas court from 1845 to 1860: a measured insistence on the rule of law as against hysterical protection of the institution of slavery; a demand that the “humanity” of blacks be recognized as a countervailing force to the exigencies of “property”; and a sympathy with the individual black seeking liberty. Only four cases of appeals for personal injuries to a black by a white reached the Texas court before the Civil War. Nonetheless, when allowances are made for the state’s relatively small population of blacks and for the brevity of her antebellum statehood, it is not substantially out of line with the more frequent adjudications in states with a larger slave population, such as South Carolina or Alabama.13 Moreover, the issues posed by the Texas cases were of an import out of proportion to their small numbers. Chandler v. State,14 which the Texas supreme court decided in 1847, posed perhaps the most important single question of slavery criminal jurisprudence. This issue had not only sharply divided the North Carolina bench as far back as 180015 but also tended more than any other to separate southern judges into two groups—one which saw the slave almost purely as “property,” and a second which insisted also upon an essential element of “humanity.” David Chandler had been tried for the murder of a slave, and the jury had returned a verdict of guilty of manslaughter. On appeal Chandler sought to exculpate himself by urging a line of logic about slavery which reached back into Roman law as far as Justinian’s Institutes, and which was first “imported” into American jurisprudence by Judge John Hall of North Carolina not quite half a century earlier. He argued that slavery originated from capture in battle and that capture gave the captor absolute power over the slave’s life. The power remained unexercised only as an act of grace by the captor, and the right to exercise it transferred with the bill of sale. Only positive legislative action protected the slave’s person, and the captive black could draw no protection from the general scope of Anglo-Saxon common law. Therefore, since no Texas statute specifically proscribed manslaughter of a slave, the lower court was attempting to sentence Chandler for an offense unknown to the law. While such an argument had never been accepted by the Laws on Slavery in the Republic and Statehood Periods

[ 73 ]

North Carolina court majority, two other influential courts, those of South Carolina and Virginia, had adopted it. The Texas judges, however, would have none of it. They preferred rather to ground their opinion upholding Chandler’s conviction in an 1829 Tennessee case which had adopted the alternate theory that the common law protected the slave of its own force—a theory first enunciated by two North Carolina judges, John Louis Taylor and Leonard Henderson, in opposition to Hall. This alternate line of logic depended on a dubious analogy between Norman villeinage and American slavery. Since the villein, who enjoyed the right of suit in common law courts against all but his immediate lord, received the protection of the common law, the American black in bondage must also receive the same protection. Thus ran the decision of the Tennessee judges in Fields v. State.16 Rebuffing Chandler, Judge Royall T. Wheeler asserted that the “learned Court” of Tennessee had attained a conclusion “so consonant to reason and principle as scarcely to require the support of argument or authority.”17 In fact, Wheeler thought that the “only matter of surprise is that it should ever have been doubted.”18 Four years later the most brilliant antebellum Georgia judge, Eugenius A. Nisbet, sought to show that Fields had resulted from “a fervid zeal in behalf of humanity to the slave”19 rather than from an easily tenable legal ground. But the Texas judges were seemingly more interested in humanity. Indeed, Wheeler went on to assert with considerable optimism that despite statutory distinctions between slaves and free men: it is not perceived that where not otherwise provided . . . the general laws providing for the punishment of crimes do not equally apply to both. It seems especially . . . the intention of our legislation . . . to throw around the life of the slave the same protection which is guaranteed to a freeman.20

This was generous, if not outright libertarian, jurisprudence. It is all the more surprising for it came not as it did in North Carolina or Tennessee before the rise of virulent northern attacks upon the peculiar institution during the early 1830s, but, rather, simultaneously with the Mexican War. Eight years later, Nix v. State21 gave the judges a chance either to back off from or to expand on the Chandler decision. Convicted for wounding a black with a knife, the defendant white man, J. D. Nix, argued a line similar to Chandler’s. The only applicable statute stated: “if any person shall unreasonably treat, or otherwise abuse any slave, he . . . on conviction”22 shall be fined not less than $250 and not more than $2500. However, Nix’s indictment had used general common law terminology rather than the specific statutory wording. Therefore, Nix urged [ 74 ]

The Laws of Slavery in Texas

that his conviction should be reversed. Surely, a court disposed to make light of assaults upon blacks could have agreed. Indeed it is plausible to suggest that the legislature’s wording of the statute was designed to disallow any possible common law protection against assaults by whites which blacks might have at law. Nonetheless, the judges showed distinctly that they were less concerned with legal formalism than they were with protecting human life, even that of a slave. Thus Wheeler’s opinion argued that, rather than displacing the common law, the statute simply augmented its protection—it was now extended to assault and battery. By contrast, the middle-of-the-road North Carolina court had taken twenty-three years to reach this end.23 Two years later the Texas judges made explicit the view of the black which seemingly underlay their earlier decision-making. In State v. Stephenson,24 the Texas supreme court reversed a trial court which had dismissed on a flimsy technicality a case involving the prosecution of a white man for whipping a black.25 Judge Oran Roberts’ opinion pointed out that the lower court’s position was “predicated on the idea, that a slave is property only, as a horse or any other domestic animal.”26 The correct view of the matter was the opposite: “we recognize in the slave personal rights, [and] an assault and battery, by one not the owner, is prima facie an invasion of them.”27 Accordingly, the supreme court, remanding the case to the lower court, ordered the defendant brought to trial. In the antebellum South blacks convicted of felonies generally fared better in the appeals courts than did white injurers of slaves and free blacks. Of 238 black plaintiffs, 136 or 57.6 percent secured reversals, while only seventeen of the fiftyfive white plaintiffs or 30.9 percent were successful.28 While this difference in rate of success held true in Texas, the number of blacks involved in felony trials was not large, so that caution makes necessary some analysis of the opinions delivered. Such analysis in fact discloses that the Texas court displayed reasonable fairness toward blacks.29 Two successful appeals to the court, Nels v. State30 and Calvin v. State,31 are worth examination, since the court’s disposition of the suits appears to be as suffused with judicial concern for the slave’s humanity as had been the case in Chandler, Nix, and Stephenson. The Nels case on its face involved no more than the reversal of a black man’s conviction for murder because the trial record did not prove that the jury had been properly sworn. Significantly, however, Wheeler’s opinion set forth two legal doctrines, apparently as guidelines for future lower court trials, which were of considerable libertarian import. First, Wheeler warned the lower court judge of his duty to charge the law properly and without bias. Second, he set forth what in fact was a persistent theme of those southern judges who were inclined to favor the black’s “rights to independence” when on trial. In Nels’ first trial, his counsel had admitted to certain facts prejudicial to Nels’ case. Wheeler was Laws on Slavery in the Republic and Statehood Periods

[ 75 ]

most emphatic in insisting that it was the trial judge’s duty to prevent the jury from accepting such statements. No “confession” of the defense counsel could be allowed to “bind or affect” the black on trial.32 In effect Wheeler insisted that a man’s right to a fair trial did not at all depend on his race, color, or condition of servitude. If Nels’ case was interesting for its suggestion that the black on trial had a right not merely to counsel but to competent counsel, Calvin v. State was extraordinary for three reasons. The first was the very reason for the original trial itself: the murder of one black by another. A historian might observe that in this instance at least criminal law in the antebellum era reached further into “intrablack” quarrels than was commonly the case after Reconstruction.33 Second, the state accepted the obligation to provide counsel—even at lower court levels— for a black man unable to secure a lawyer for himself. In the course of trial the district court appointed a total of four lawyers. Finally, the outcome of the case demonstrated dramatically the court’s concern for the black defendant’s right to “equal judicial attention to prejudicial detail.”34 The court seemed to insist just as much on a black as on a white defendant’s right to take advantage of any technical weaknesses in the prosecution’s presentation of its case. In this instance the state lost its case on appeal through a seemingly inconsequential legal flaw in the indictment. The original indictment had alleged first that the victim, Vina, “had been the property of the heirs of Robert Smith deceased” and second that she “had belonged to Robert Smith.” At the beginning of the first trial the two defense lawyers and the state prosecutor had mutually agreed to strike out the first description of ownership and leave only the second.35 In the middle of that trial Calvin’s lawyers withdrew for reasons not disclosed in the record, and the judge appointed two new, and apparently wilier, counsels, Richard S. Walker and John M. Dodson. Walker and Dodson objected to the indictment’s alteration and appealed forthwith to the supreme court. As the lower court judge had not yet rendered a final judgment, the appellate judge at first refused to hear the case. Once he had done so, however, a second appeal succeeded. Speaking for a unanimous court, Judge James H. Bell declared that even so slight a change in the indictment invalidated the grand jury’s work. Nor were the proceedings less fatally flawed because of the first counsel’s agreement to the procedure. It was in substantiating this reversal that Bell spoke the words, “The law of the case . . . is precisely the same as if the accused were a free white man, and we cannot strain the law even ‘in the estimation of a hair,’ because the defendant is a slave. . . .”36 During the thirty years before the Civil War, southern appellate judges differed greatly in their dispositions of suits brought by blacks claiming that they were being unlawfully held as slaves. These manumission suits, as they were called, divided the judges sharply into three groups. Thirty-six judges, or 33.9 percent of [ 76 ]

The Laws of Slavery in Texas

the total37—are best described as “libertarians.” Viewing freedom, in the words of Chief Justice Frederick Nash of the North Carolina court, as a “boon . . . most dear,”38 they perceived whites who attempted to frustrate bequests of liberty as “birds of prey . . . upon the wing.”39 Consequently, such judges frequently went to considerable lengths to create loopholes in anti-manumission laws in order to free plaintiffs who came before them in such suits.40 A second group of twenty-three judges, or 21.7 percent, were quite hostile to freedom for blacks. As South Carolina Judge Job Johnston put it, they considered bequests of freedom to result “from the superstitious weakness of dying men . . . from an astonishing ignorance of the solid moral and scriptural foundations upon which the institution of slavery rests, and from a total inattention to the shock which their conduct is calculated to give to the whole frame of our social polity. . . .”41 Not surprisingly, members of this group did their best to find for whites claiming blacks as their rightful inheritance. A third group of forty-seven “neutralists,” or 44.4 percent, attempted to put aside their personal convictions and follow legislative intent as best they could. Thus, Judge Hubert Fairchild42 of Arkansas who, though convinced that blacks were “an inferior race”43 and that freedom injured both “the community . . . and the emancipated negro,”44 insisted that “The question of freedom should be determined . . . solely upon its legal aspects, without partiality to an applicant for freedom, because he may be defenseless . . . and certainly without prejudice to his kind and color. . . .”45 Between 1845 and 1860, the Texas judges were asked to rule on six issues which afforded them ample room to determine either for or against liberty: whether a will seeking to free blacks and remove them from the state was valid, when Texas law forbade domestic liberation; whether slaves could make a legally cognizable choice between freedom and slavery; whether interstate comity required Texas to apply another jurisdiction’s “pro-freedom” laws; whether a slave could obtain not only freedom but also monetary damages for unlawful detention; whether a free black had the right to rescind an agreement selling himself into slavery; and whether oral, as distinct from written, gifts of freedom were valid. On all six issues, the Texas judges aligned themselves with the “libertarians.” In 1854 Purvis v. Sherrod46 raised the first two issues in a manner as inauspicious as possible for the blacks seeking their freedom. As attorney B. T. Wigfall, counsel for the would-be heirs and later a fire-eating secessionist senator,47 pointed out, there was a multitude of good reasons why the bequest of freedom should fail. First, the author of the will had granted his slave and her child freedom to take effect in Texas. This provision obviously was in violation of the constitution of the Republic of Texas which had stated, “nor shall any slaveholder be allowed to emancipate his or her slave . . . unless he shall send his or her slave or slaves without the limits of the Republic.”48 Although the 1845 Laws on Slavery in the Republic and Statehood Periods

[ 77 ]

state constitution had generally abrogated the republic’s constitution, the act of February 5, 1840, authorizing the sale of immigrating free blacks, continued in force and should, Wigfall argued, be read to imply continuation of the republic’s policy against domestic freedom. The Texas supreme court agreed with this reasoning, but nonetheless refused to follow through to what Wigfall thought was the logical conclusion that the bequest should fail. Wigfall also had argued that the will was defective in the instructions which its maker had left for his sister, who had been charged with executing its provisions: “And I wish the above three negroes to be left under the charge of my sister Lucinda Sherrod, to be settled near her . . . and if the State of Texas, or any of my relations, should object . . . I give my sister full power to send them to a free State, or to Liberia, as she and the negroes may agree.”49 Thus it appeared that the author of the will not only envisaged domestic freedom for his slaves but also, in the event of that failing, he was determined to set up an illegal “quasifreedom”50 for them. Then, should that fail too, he would have the Negroes “elect” their destination. To justify his conclusion that the will was invalid, Wigfall pointed to an Alabama decision, Trotter v. Blocker,51 which had found the order of liberation and removal of slaves to be crucial to the validity of the process.52 The relevant clause of the Texas constitution had been patterned after an equivalent one in the Alabama constitution. Therefore, Wigfall argued, the Alabama supreme court’s opinion in the Trotter case should be given more than the usual respect accorded to the decisions of other state courts. It should, indeed, determine the result in the case at hand. One might well have expected Judge Abner Lipscomb of the Texas supreme court to accept this line of argument because, before moving to Texas, he had been a member of the Alabama supreme court. Instead, however, he rejected it; and he adopted a position for which he now found support in the decisions of Mississippi, Georgia, South Carolina, and Tennessee. Lipscomb admitted that the first three states had “no constitutional provision regulating or controlling the right of emancipation.”53 Nonetheless they all had “legislative enactments, expressed in much stronger and more explicit terms, prohibiting the emancipation of slaves, or regulating the mode in which it must be done.” Yet, the courts of all three, he found, permitted foreign manumissions. This was true, but it was not the whole truth: the leading cases of these states which Lipscomb cited were already sharply “dated” in their own jurisdictions. His reliance on the 1835 South Carolina case, Frazier v. Frazier’s Executors,54 failed to note that it had been superseded by an 1845 decision, Blackman v. Gordon.55 Moreover, the South Carolina legislature had been sufficiently irked with the Frazier decision to pass an overriding act in 1841.56 Similarly, the Mississippi deci[ 78 ]

The Laws of Slavery in Texas

sion was the work of a court which had been chastened by the state legislature.57 Finally, the Georgia case58 was only a circuit decision handed down fourteen years before the supreme court in that state had even been created. Moreover, Georgia’s incumbent chief justice, though declining to overrule it, had indicated strong disapproval of its pro-freedom tenor.59 The fourth court on whose interpretation Lipscomb relied, that of Tennessee, was one whose adjudications usually received approval only from other liberally inclined benches. And the specific decision had been the work of John Haywood, a distinctly libertarian judge of whom Lipscomb now optimistically declared “it may well be said that, for learning and profound research into the principles of jurisprudence, no one had enjoyed a more enviable rank.”60 Lipscomb, in short, had laid his finger on the judicial handiwork of four of the most libertarian southern judges in antebellum history. Doubtless Lipscomb was aware that by so arguing he had still not dealt adequately with Wigfall’s crucial point—that the Alabama court, dealing with a parallel constitutional provision rather than with a statute, had reached a different conclusion. Turning to the Alabama case, Trotter v. Blocker, Lipscomb sought to undermine its reasoning and urged that the Alabama judges should have followed the Tennessee court’s “sound and clear exposition of the law on the question.”61 Whatever may be said of Lipscomb’s analysis, it is obvious that its logic was far from unassailable,62 and that the Texas court did not have to reach the conclusion which it did in Sherrod. Evidently the court opted to discount any extant policy of state hostility to emancipation and to uphold the wishes of the deceased slaveowner that his blacks be freed. That the Texas court should lean toward freedom as late as 1854 is, at any rate, suggestive. Further, it was a position to which the Texas judges continued to hold to the outbreak of the Civil War. In 1859, the Texas supreme court reaffirmed the position it had adopted in Sherrod.63 As long as a will contained any provision for removal of the freed black from the state,64 the Texas court was willing to uphold it. The precise phraseology of the will did not matter. The Texas court also continued to allow the maker of a will to permit slaves to elect whether they wished to remain in bondage or to become free. More conservative judges in other slave states fulminated against the notion that slaves, as chattels, could exercise a legally recognizable choice anymore than could a cow or a horse.65 On this issue, too, the Texas judges seemed more disposed to the position of the Tennessee court which, confronted in 1846 with a similarly property-grounded view of the Negro, had rejected in no uncertain terms the contention that as a chattel a slave could not sue in court. That court had declared that a black man held in bondage “is made after the image of the Creator. He has mental capacities . . . that constitute him equal to his owner but for the accidental Laws on Slavery in the Republic and Statehood Periods

[ 79 ]

position in which fortune has placed him. . . . [T]he laws under which he is held as a slave have not and cannot extinguish his high-born nature. . . .”66 In two other cases, the Texas judges followed Tennessee in refusing to allow a claim of “interstate comity” to interfere with an owner’s attempt to manumit his slaves. In Jones v. Laney,67 they refused to accept the argument that a Chickasaw Indian’s right to free a slave was invalid in Texas because it was contrary to the laws of the state within which the “Chickasaw Nation” dwelt. A federal treaty, the court pointed out, in fact recognized “the right of those Indian nations, residing within the limits of a State, to regulate their own civil polity.”68 In the present instance the court added, the “Civil Law, under which slavery, such as ours existed,”69 granted a master absolute dominion over his slaves as his chattels; from such dominion there followed the Indian’s right to free his slave.70 Neither the state where the will had been made nor the state where the suit for freedom was being heard, however hostile to manumission their policies might be, could abrogate the Indian’s right to bestow freedom on his slave.71 In 1856 Moore v. Minerva72 brought up once again the issue of interstate comity, and in addition, raised a further question: that of damages due to an allegedly freed slave for unlawful detention by a pretended master. Mary Minerva’s appeal sought both freedom for herself and her children and damages from the administrator of the master’s will. In defense, the administrator argued that Minerva’s right to freedom under a deed of manumission executed in Ohio was forfeited by her illegal entry into Texas and that the laws of Alabama—where her master had been a citizen and owned most of his property—barred freedom because he had died leaving large debts unpaid. Declaring Minerva and her children free, Lipscomb argued that the claims of Ohio law were superior in this case to those of Alabama and Texas. Texas’ statute prohibiting the entry of free Negroes into the state did not forfeit Minerva’s freedom. At most it rendered her liable to arrest by the sheriff and to public sale should she not be able to put up the $1000 bond required to guarantee her removal from Texas. This procedure had not been employed and, therefore, was not applicable here. In addition, Lipscomb said, creditors in Alabama could not be taken into consideration in Texas. The Texas court could not decide whether or not the Ohio deed would have been valid under Alabama law, that was for the Alabama court to determine. In any event, only the creditors, not the former owner’s administrator, could raise this issue.73 Finally, in regard to damages, Virginia and Kentucky might, as the administrator argued, deny payment for illegal detention. “But we cannot regard it as settled on principle.”74 Lipscomb did not agree with the Virginia bench or the Kentucky court—“notwithstanding the great respect to which the decisions of that court are justly entitled.”75 In his view, had damages been asked in the lower court for the period anterior to the commencement of the suit, they would have to be paid, [ 80 ]

The Laws of Slavery in Texas

and even “the ground of good faith in which the defendant held the possession cannot be sustained as a legal reason”76 for non-payment. Since Minerva had not raised the issue until she had filed her appeal, Lipscomb’s declaration was obiter dictum, but it was dictum which virtually aligned the Texas court with that of Tennessee. On January 27, 1858, the Texas legislature passed an act authorizing willing free blacks to choose masters and to re-enter slavery. In the following year the court heard a case brought by a white man, John Westbrook, who wished to recover possession of a formerly free black who had sold himself to Westbrook in 1855 for the sum of $2500 and then later absconded. Alternately, Westbrook wished the $2500 to be repaid.77 Rejecting his suit, Judge Bell insisted that prior to 1858 no man could legally sell himself, and that the court would not enforce any attempt at monetary recovery by a purchaser who thus had acted contrary to the then existing law. The fact that the legislature in the meanwhile had passed the 1858 law did not help Westbrook’s attempt at recovery. Nor did the law serve to abate the companion case,78 a criminal conviction of Thomas M. Westbrook for “imprisoning and kidnapping,”79 although Westbrook had offered substantial evidence that the Negro’s action had been voluntary and that he had “for a considerable . . . time . . . lived with him as his slave.” Judge Bell’s opinion thus contained a substantial hint that the Texas judges were less than warmly sympathetic to the new law. Finally, the Texas court’s method of handling oral gifts of freedom, an issue which arose in Hillard v. Frantz80 in 1858, amounted to yet another “option for freedom.” Here the Texas judges adopted a position which would have been surprising even for the Tennessee judiciary: they upheld the right to freedom of a black who had been sold as a minor with an oral condition attached that, when he came of age, he should be allowed to work for and support himself. The defense counsel argued that such partial freedom—or as the phrase went, “quasiemancipation”—was clearly contrary to law and pointed to North Carolina and Virginia cases prohibiting it. He urged further: We doubt if any slave state in the union permits a parol emancipation. So far as we have observed there is none. And . . . it would open the door to a degree of looseness . . . most hazardous . . . to permit acts of emancipation to be proved by parol “understandings . . . .”81

But the Court, without developing any convincing line of legal argument to support its position, simply rejected the defense counsel’s contention and, instead, merely cited the Sherrod case to support its conclusion that an oral promise of freedom could be binding. Thus, on all six issues, the Texas judges “went down the line” for liberty. Laws on Slavery in the Republic and Statehood Periods

[ 81 ]

One might well expect that the highest judicial officers of a community committed to defending its “peculiar institution” would look with an especially dubious eye upon appeals by slave-stealers. In a slave state of the deep South one might also expect the state’s appellate court to display something less than a studied insistence on the last iota of due process—at least if the appellant’s guilt appeared substantially proven. Yet, the state prosecutors did an exceedingly poor job in seeking to rebut the claims of both serious “subversives” (slave-stealers) and lesser offenders (persons who sold liquor to slaves, who bought goods from them without the master’s permission, or who allowed their slaves to possess firearms). Such persons were clearly contravening laws designed to guard against black “unrest” and insurrections. Five appeals by stealers and harborers of runaway slaves reached the Texas supreme court between 1854 and 1860. The state succeeded in sustaining only two convictions. Eight petty offenders brought their cases on appeal before the court during the same period. In each instance the state prosecution had no success. The two unsuccessful appeals rested on poor grounds. In Alexander v. State82 the appellant had been convicted in a lower court for larceny of a slave. Bringing his case before the supreme court, he had argued that more recent statutes, which had reduced the earlier statutory penalty for the offense in question from capital punishment to imprisonment, had in fact abolished the crime entirely.83 In Bruton v. State84 the appellant had asked for a delay during his lower court trial. As the supreme court noted, he had sought the delay only in order to produce a witness to attest to a fact that would not have seriously affected the state’s case anyhow. A defendant, the court said, could not legitimately expect a continuance on the basis of a desire to prove just anything—no matter how irrelevant to his trial’s outcome. Of more interest are two appeals granted from convictions for attempts to induce slaves to leave their masters, and three successful appeals from convictions for petty offenses. In all five, opposite outcomes would have been relatively easy to reach if the judges were determined to punish all possible offenses against the slave system. In Martin v. State85 the supreme court granted a new trial because of errors in the indictment. The surname of the master whose slave the defendant stood accused of harboring was misspelled. Yet, little doubt existed as to what the defendant was being indicted and tried for, and the court could have held that the defendant had waived his right to complain by his failure to file a timely plea of objection. Similarly, the defendant in Lovett v. State86 quite plainly had been engaged wholeheartedly in a plot to persuade a slave to abscond from his master. Yet his conviction was reversed because he had been apprehended too early—during a clandestine conversation with the black who had played the role of faithful informant to his master and consequent “decoy.” The defendant’s [ 82 ]

The Laws of Slavery in Texas

intent was clear, but he had not yet set a precise date for the intended escape when apprehended, and so the court quashed the conviction. Of the three successfully appealed convictions for petty offenses, State v. Wupperman87 and Greer v. State88 would have been the two most easy to uphold. In the former the defendant quite evidently had been guilty of purchasing goods from a slave without fulfilling the statutory requirement of obtaining written permission “from the master or overseer.” Yet his indictment had varied ever so slightly from the statutory language defining the offense. The indictment had averred that he had made his purchase without securing written permission from the person “having charge” of the slave. That error in the indictment, apparently so trivial, sufficed to nullify the conviction. The Greer case was at least equally noteworthy for the court’s scrupulous observance of legal niceties. There was no question that Greer had violated a statute by permitting his slave to carry a gun. However, between the time of his act and the date of his first trial, the legislature repealed the statute. The consequence, in the court’s view, was the nullification of all unfinished trials under the law. The fact that the statute itself had nothing in it to indicate that the legislature wished to kill trials already begun under the law did not avail the prosecutor one whit.89 Taken by themselves, or taken in the context of the other “subversion” cases,90 the outcomes of these suits might plausibly be ascribed to nothing more than an excessive concern by the Texas court with procedural niceties in criminal trials.91 Construed however in the broader light of trials of whites for harming blacks and convictions of felonious blacks, they warrant the inference that a major reason for the court’s stance was the judges’ interest in upholding a standard of fair criminal procedure, regardless of its impact on slavery or the status of black men. Who were these Texas judges who so consistently seemed bent upon extending as full a measure of “justice” to the black as the inequitable hierarchy of the slave system permitted? How can their extraordinary behavior be explained? In one sense it would be convenient should biographical research turn up an historical anomaly, such as that they were all Yankee immigrants who disguised qualms about the peculiar institution until they had reached the relative political safety of the bench; or alternately, that they all perchanced to be Quakers, whose religion impelled their behavior. But biographical data simply does not point in such a direction. Three of the five92 were born in South Carolina; and, throughout their careers in Texas they were annexationist Democrats. All but one of the four judges alive93 in the winter of 1860–1861 leaned toward secession. John Hemphill, who had left the bench in 1858 to become a United States senator, delivered a fiery departure speech on the floor of Congress supporting the right of secession, became a delegate to the Montgomery constitutional convention, and sat in the Confederate Laws on Slavery in the Republic and Statehood Periods

[ 83 ]

congress until his death in 1862. Oran Milo Roberts—who, like Lipscomb, had lived in Alabama for some years and been a member of the Alabama legislature— reacted to Lincoln’s election by delivering a speech at Austin in December 1860 advocating vigorous state action. Although he left open the vague possibility of remaining in the Union if new guarantees for the perpetuation of slavery were written into the United States Constitution, his primary emphasis was upon a “will theory” of representation—“let the people decide.” A few weeks later, his interpretation of the “people’s will” led him to accept the presidency of the Texas secession convention. And, his support for the Confederacy during the war was sufficient for the Republican-dominated Congress to refuse to seat him as senator in 1866. Not until the closing days of Reconstruction did he once more attain high office, being appointed chief justice of the state for the second time in 1874, and running successfully for governor in 1878 and 1880. In their secessionism these three South Carolina–born judges were fully joined by the court’s only northerner and Whig, Wheeler, who hailed from Vermont. Wheeler had been an annexationist since his removal to Texas in 1839. Though not so active a politician off the bench as his southern-born colleagues, Wheeler backed the dominant constitutional theories of his adopted state both as associate judge from 1846 to 1858, and as Hemphill’s successor to the chief justiceship until 1864 when, distressed both by the course of the war and by “family matters,” he committed suicide. Indeed, there was only one clear Unionist among the five judges, Bell; and he, a Democrat, was the only native born Texan! Thus, the political affiliations and the locales of upbringing of the Texas judges simply do not provide an explanation. The same may be said of other standard explanatory indices often used by social scientists and historians—religious affiliation, socio-economic background, and education. Only Lipscomb’s religious interests were sufficiently more than pro forma to warrant attention by the two principal biographers of the Texas bench;94 and he is described only as an ardent Christian and a biblical scholar. Hemphill and Bell both came from substantial backgrounds and attended northern colleges—Jefferson College, Pennsylvania, and Harvard Law School, respectively. Lipscomb, Wheeler, and Roberts were all born poor. Of the three, only Roberts received any college education; he was graduated from the University of Alabama. There is, in sum, nothing common to their backgrounds and general belief structures to warrant ascribing their behavior on the bench to such factors.95 One has, in short, to look elsewhere for what undeniably—when due allowances are made for the different meanings of “libertarian” and “fair procedure”— remains a remarkable judicial phenomenon. Antebellum Texas appellate jurisprudence concerning the black is sufficiently striking to warrant more than merely leaving its “curious facts” in uninterpreted thin air. The most plausible [ 84 ]

The Laws of Slavery in Texas

explanation lies in the peculiar nature of the judicial vocation in antebellum South. After a generation of “judicial realism,” historians are accustomed to hearing the judge’s position described as political.96 This is particularly so in respect to state judges. Their judicial performance has, indeed, at times led to suggestions that the better part of federal valor might be a merging of state and federal jurisdictions,97 so beholden are such men to popular whims—whether by virtue of having to seek reelection or by virtue of harboring designs on more prestigious political offices. But analysis of this kind, however valid it may be today, simply does not describe the functioning of state supreme court justices before the Civil War. It is some measure of that former era of the state courts’ “splendid prestige” that, when the late Roscoe Pound sought to list the ten most influential judges during the “formative era of American law,”98 he chose six men who had served throughout their careers on the benches of their respective states. Up to the Civil War, “Jacksonian Democracy’s” cry for popular control of judges had not taken too heavy a toll upon the older view of the court as a place far from the crowd, where august men deliberated rationally the proper shape of the law. Even in those southern states where Jacksonian influence was felt by establishing limited judicial terms,99 judges commonly did not fail of reelection or reappointment. As a consequence, the state appellate judge had far more room for insisting upon the rule of law, even when such insistence ran against the whims of popular desires, than did the state or congressional legislator who was subjected to a popular review of his performance every few years. As a rule, furthermore, while a judge could use his post as a podium for declamation against Yankee abolitionist wickedness, he did not have to do so. That suggests a first distinction between the state appellate judge of the antebellum era and his legislative colleagues. A second difference between the judge and his legislative colleague must have been no less significant. A prominent part of the political operations of southern congressmen and senators in Washington was their jousting against the onslaughts of antislavery northern congressmen. Thus, the southern representative’s job entailed his perceiving the institution of slavery primarily in general— both by the nature of the attacks made upon it, and by the resultant nature of his defenses. So too, in perhaps somewhat lesser measure, the state legislator saw that his primary vocational activity in relation to the peculiar institution was to legislate in general. In marked contrast, the typical appellate judge, though surely by no means wholly unaware of the potentially broad import of his specific case decisions, must have perceived far more strongly the “individualist” aspects of slavery—be it in the forms of a specific white defendant whose behavior toward a black victim had been particularly atrocious, of a single black seeking a just trial, or of a particular slave seeking freedom. Laws on Slavery in the Republic and Statehood Periods

[ 85 ]

The most plausible conclusion is an ironic one. In the antebellum judicial forum, four components of the southern ideological system struggled on unresolved: the supremacy of law, the supremacy of whites, the black man as human, and the black man as property. Before the war, southern judges often stretched proslavery laws in favor of the black. Quite possibly the Civil War effectively altered the nature of the gap between legal norm and state appellate judicial practice. After the Reconstruction constitutional amendments, the norm became too frequently more favorable to the black man than the practice. The “unfree” marketplace of the slave economy seemed to allow in the judicial marketplace of ideas greater freedom for the display of justice and humanity toward the black than did state courts after emancipation. Nowhere was this more true than on the Texas supreme court between 1845 and 1860. At the very least, it seems safe to assert that the judicial lot of the southern black in this century would have been measurably more secure had all twentieth-century southern judges been as insistent as Bell and his brethren that the law was to be applied precisely the same for a black claimant as for a white man, and that it could not, because of color, be strained “even in the estimation of a hair.”

[ 86 ]

The Laws of Slavery in Texas

Case study

One Woman’s Fight for Freedom: Gess v. Lubbock, 1851 Mark Davidson ★

Introduction Mark Davidson brings the education and perspective of a lawyer and a district judge to the subject of the laws of slavery in Texas. He presided over the Eleventh District Court in Harris County from 1988 through 2008 and currently serves as the multidistrict litigation judge for the state’s asbestos cases. Judge Davidson also brings a great deal of experience in research and writing concerning the court system of the Lone Star State. His articles on judicial elections and court cases have appeared in the Houston Lawyer and Texas Bar Journal. Judge Davidson’s case study of how Margaret Gess (or “Guess” or “Guest,” depending on the source) fought for her freedom is a model of historical detective work in legal records. His finding that Gess, although a slave, received legal treatment that was “consistent with basic human rights” is consistent with the argument by A. E. Keir Nash that the Supreme Court of Texas respected the trial rights of blacks during the antebellum years.

T

he Texas civil justice system, as it has evolved from its founding in 1836 to today, has had one constant—it seeks transfer of wealth from a defendant to a plaintiff. Poor people, or uninsured individuals with few non-exempt assets, are seldom sued in our courts. Plaintiffs usually need an attorney to redress grievances; attorneys and their families need to eat. Of course, the founding fathers1 of our state exacerbated this tendency by enshrining into our Constitutions protections for debtors far greater than those of any other state, perhaps because many of them had “gone to Texas” to escape creditors themselves. Homesteads, farm animals, vehicles, and wages were all exempt from forced execution for satisfaction of debts, leaving most assets owned by most Texans, then as now, safe from the clutches of judgment creditors.2 Sadly, in pre–Civil War Texas, the “property” at issue in lawsuits was often human beings—slaves brought to the Republic, and, later the State of Texas— from the Southern States. Many of the lawsuits brought during this era were

Laws on Slavery in the Republic and Statehood Periods

[ 87 ]

disputes over ownership of slaves, cases in which slaves were taken and sold in satisfaction of adjudicated debt or suits over the status of a person claimed to be a slave. One of the most interesting of these cases is Margaret Gess v. Francis Lubbock, a case filed in 1848 that would take almost five years and two trials to resolve.3 It is unique because it involves the laws of three different nations and truly reprehensible conduct by the Defendant. It is also a good case to study today because a more complete record was made of the proceedings than was usual at the time. The story of the case began 12 years before it was filed, on March 10, 1836. Texas was in turmoil. The revolution was in progress. A Texian army had been slaughtered at the Alamo, and another would be executed two weeks later at Goliad. Most of the Anglo population, led by the balance of the Army of the Republic, was in a swift retreat to the east—an event known as the “Runaway Scrape.” The Mexican Army, led by General Antonio Lopez de Santa Anna, was in hot pursuit. While Texas was still claimed by the Republic of Mexico, delegates from around the area had met in Washington and declared independence the week before. The Mexican Army had passed through Bastrop, Texas, on a march that would eventually lead to Washington-on-the-Brazos and the community now known as Deer Park.4 While the Runaway Scrape was in progress, Adam Smith purchased a piece of land that would lead to years of litigation after his death. He also may have purchased as a slave a woman of color named Margaret Gess. Smith was, by all accounts, in the “social hospitality” business. In 1831, he was living in St. Mark, Florida, and owned a pool table, around which he sold beverages to the public. He found his way to New Orleans in 1831, and came to Texas with James Morgan that same year. Finding the location promising, he returned to Florida to retrieve his billiard table and brought it to Anahuac in 1833. According to trial testimony, Smith built a structure in Anahuac “and left the table to public use, which was well positioned.” In 1835, he went to work for Morgan as a clerk, a job that lasted until the Mexican Army burned all of Morgan’s possessions on their way to San Jacinto. Morgan had been a leading merchant and land speculator in Southeast Texas since he had arrived in 1830. Serving as Morgan’s clerk could have been quite lucrative for Smith. It is unclear, however, whether the profits from a pool table combined with earnings as a clerk would have been sufficient to buy both land and a slave. The timing of the purchase was significant. In 1829, the President of the Republic of Mexico, Vicente Ramón Guerrero Saldaña, enacted a decree that purported to abolish slavery in the Republic. The next year, the Mexican Congress abrogated that law but prohibited the further importation of slaves and allowed the continuation of slavery for slaves already in the country. The following year, a law was passed officially and totally abrogating the presidential decree retro[ 88 ]

The Laws of Slavery in Texas

actively, although the authority of the Congress to pass such a law was hotly disputed. The legal status of persons of color was therefore unclear prior to Texas independence. That lack of clarity was addressed in the Constitution of the Republic of Texas. It prohibited any person of color who was in a state of servitude at the time of the adoption of the Constitution from living in Texas as a free person without consent of the Congress. The effective date of the constitution therefore became critical. Texas Independence Day—the day the delegates to a convention declared the creation of the Republic of Texas—was March 2, 1836. It was, however, apparently agreed at trial that the constitution ad interim of the Republic was not placed into effect until March 17, 1836. By all accounts, Smith and Margaret Gess shared a residence for at least ten years. It was disputed at the trial whether they held themselves out as husband and wife, but it is clear from testimony at the trial that he was very fond of her. It is clear that they had a child together, named “Puss.” It was clear as well that, anticipating the loss of her civil rights after Texas independence, that property was bought in Smith’s name using Gess’ money. In 1840, Smith and Gess apparently had a falling out, and he signed a document that said: “The bearer, Margaret, a negro woman, about 30 years of age, is free and at liberty to go and do the best she can to make an honest livelihood in the world.” The document was signed in the presence of a witness. It is not certain whether she was still living with him when he died in 1848, apparently without a will. What is certain is that immediately after his death, his nephew, Francis Lubbock, claimed Gess and her daughter as his slaves through inheritance. He also claimed the land held in Smith’s name bought with Gess’ money to be his own. Lubbock was clearly a man on the rise in the Harris County of the antebellum era. He had moved to Houston from New Orleans in 1836 and founded a general store shortly thereafter. The business apparently thrived, and he became a rancher in rural Harris County. He also became interested in politics. President Houston appointed him to be Comptroller of the Republic of Texas, and he served in that position from December of 1837 until January of 1839, when President-elect Mirabeau Lamar took office. In 1841, he was elected to serve as the District Clerk of Harris County. Shortly after Smith’s death, the case of Margaret Gess v. Francis Lubbock was filed in the District Court of Harris County.5 The petition was filed with, of all people, the elected District Clerk of Harris County—Francis Lubbock. The lawsuit alleged that Lubbock had, in the process of filing the inventory of the estate of his uncle, unilaterally and without notice, listed her, her child and her homestead as assets of the estate and had the estate approved by the County Judge. The attorney filing the suit was B. F. Tankersley. Laws on Slavery in the Republic and Statehood Periods

[ 89 ]

Although the lawsuit was filed directly with the District Clerk on December 22, 1848, Lubbock did not waive service of citation and acknowledge receipt of the petition in the case in his personal capacity until January 19, 1849. He did not file his answer in the case until May 19, 1849, apparently taking advantage of the fact that the District Court would not be in session in Houston until June of 1849. Lubbock filed his answer pro se, although he would be represented by J. W. Henderson during most of the life of the lawsuit. The case was set for trial both during the spring and fall terms of court in 1849. Both times, Lubbock’s attorney requested permission to amend his answer and sought a continuance in order to be able to do so. Judge C. W. Buckley,6 who undoubtedly knew District Clerk Lubbock, granted both requests.7 Lubbock’s pro se answer consisted solely of a general denial. The first amendment to the petition filed by his attorney added a general demurrer,8 a plea of limitations, and a pleading that Gess was a slave. Significantly, while raising the issue of her being a slave, Henderson did not claim that Gess lacked the capacity to bring a lawsuit. The case went to trial on May 24, 1850. The records of the court (maintained by Lubbock) reflect that a jury was selected and seated. We cannot know today how long the case lasted, but there were two other jury trials that day.9 The docket sheet of the Court reflects that the case was the last of three cases started and finished that day. The critical piece of evidence received was the document signed by Smith freeing Gess. This document was received into evidence only over Lubbock’s objection. The laws of the Republic of Texas (which were in effect in 1840 but not at the time of trial), mandated that a document freeing a slave be in writing (which the document was) and be witnessed by five citizens (which it was not). Responding to a question from the jury asking about the legal effect of the document, Judge Buckley said, “The paper referred to is evidence only of Smith’s admission that plaintiff is free. It amounts to nothing more.” Today, we are left wondering how the “admission” that Gess was free would not be binding on his estate, which Lubbock purported to be representing. The public policy behind a statute requiring five witnesses to a unilateral contract is also a mystery to our 21st century minds. Of course, we are also left wondering how Lubbock could morally claim to own his cousin as his property. Judge Buckley had no compunctions about such a mindset and called for the strict construction of the statute requested by Lubbock’s attorney. The jury instruction had the expected effect. The jury ruled that Gess was a slave at the time of Smith’s death, and, accordingly, the Court ruled that she and her daughter were Lubbock’s slaves for life. Oddly, the jury also found that the land Smith had bought on the same day he had “purchased” Gess had [ 90 ]

The Laws of Slavery in Texas

been bought in trust for her. This would appear to indicate that the jury gave some credence to Gess’ testimony that she had been free and lent Smith the money to buy both her and the land, since, under the law in effect both during the Republic era and during statehood, a slave could not own property. Judge Buckley entered a judgment that Lubbock, as heir to Smith’s estate, receive the land and ownership of Smith’s two slaves—Gess and her daughter. The docket sheet reflects that an oral Motion for Judgment Non Obstante Verdicto was filed, but no ruling is shown. After the judgment, Gess changed attorneys, hiring Benjamin Cromwell Franklin. Franklin was named after his great-uncle, Benjamin Franklin of the American Revolution, and had served as the first judge of the Harris County District Court.10 He also served on the Supreme Court of the Republic of Texas.11 Franklin appealed the case to the Supreme Court and proved that he was a very skilled appellate practitioner. His motivation for taking the case could not have been monetary—Gess obviously could not pay any money for an attorney. One is left to conclude that he inherited some of his great-uncle’s love of freedom and abhorrence of slavery.12 Nine months after the trial court judgment, the Supreme Court reversed the decision and remanded the case for a new trial. The opinion—written by Justice Abner Lipscomb—could not have been seen as much praise for Gess’ trial counsel (who missed some obvious points of law) or for Lubbock’s lawyer (who committed basic pleading errors).13 First, the court mentioned that, given two opportunities to amend pleadings, Lubbock’s attorney had failed to plead lack of capacity to sue. Because Lubbock failed to so plea, the court held, no evidence of Gess’ status as a slave was even admissible. The court then held that seven of the eight questions asked of the jury and answered by them were “repugnant, impertinent to the issues formed and standing, or irrelevant.” The one question they did uphold was the question concerning Smith’s ownership of the land. Moving on to the evidence, the Court discussed the correctness of Judge Buckley’s instruction that the document was merely a statement of intent. Relying on the doctrine of estoppel in pais, Lipscomb wrote that the estate was bound by the truth of statements made by Smith during his life. Those statements, of course, indicated a strong belief that Gess and her daughter were to be free. Finally, the Court addressed (almost certainly in dicta) the issue of which nation’s laws applied and concluded that the laws at the time of Gess’ purchase applied. Hence, both the substantive laws of the Republic of Texas and of the State of Texas relating to the status of persons of color were not germane. What was relevant, Lipscomb wrote, was the law of the Republic of Mexico, which he acknowledged to be utterly confusing. Laws on Slavery in the Republic and Statehood Periods

[ 91 ]

It is instructive that the Court chose to remand the case instead of rendering a judgment for the Plaintiff. In the opinion’s concluding paragraph, the Court noted that “it is doubtful that the relation of master and servant did ever exist between the plaintiff and the defendant’s intestate.” The opinion notes that “whether the presumptions created by the document of manumission are explained or rebutted was a question for the jury.” This indicates the level of respect afforded jury verdicts by the Supreme Court in this era, even where it clearly believed the evidence was insufficient to deny the plaintiff a judgment.14 Margaret Gess and her daughter had to wait 15 months for their trial—and their freedom. On May 20, 1852, Judge Buckley again called the case to trial. Given the working relationship between Buckley and Lubbock, both must have been surprised when Franklin, now acting as trial counsel, agreed to waive a jury trial and try the case to the bench. Lubbock must have been shocked when Judge Buckley, a slave owner himself, ruled that Gess was a free person and awarded her the property claimed by Lubbock. Given the hostility shown to Lubbock’s position by the Supreme Court, it does not come as a surprise that there was not a second appeal to that court. Despite this loss, Lubbock’s political rise continued. In 1857, he was elected Lieutenant Governor of Texas, running with Hardin Runnels, who defeated Sam Houston in a bitter election. After losing in the 1859 election in which Houston defeated Runnels, he came back to run for Governor in the 1861 election, and defeated Governor Edward Clark by 124 votes. He remains the only person ever elected to statewide office directly from the office of District Clerk of a county. He left the governorship when his term ended and fought in the Confederate Army. After the war he was imprisoned for treason but was paroled by President Andrew Johnson. He later served as Treasurer of the State of Texas from 1878 until 1891. When he died in 1905, he had held public office under the flags of three different nations. Margaret Gess sold her property shortly after the judgment, possibly to pay attorney’s fees, and then dropped out of the public record. No deed records, census data, or any other information about her can be found. Perhaps in the future, increased access and indexing of our 19th century public records will shed more light on the lives of the first generation of free persons of color who lived in Texas. The institution of slavery has been described as the American equivalent of the Holocaust. While there are differences, both were governmentally mandated dehumanization of a class of people based on their heritage. It is significant to note that Margaret Gess’ case was decided by a judiciary that acted contrary to the legal and popular standards of the day. The German Judges of the Nazi era did not. The Gess decision was both within the law and was consistent with basic [ 92 ]

The Laws of Slavery in Texas

human rights. This case, and other similar cases, speaks well of the judges of early Texas and the system they founded. ...

Author’s Note I wish to acknowledge the assistance of an intrepid army of legal interns without whom this article would not have been written. Rita “Coco” Thomas, Jeff Smith, Kate Sherman, Leslie Loring and Justin Jenson did wonderful work translating 19th century handwriting into usable historical material and finding dozens of other details for this article. Francisco Heredia, head of the Historical Documents Records Center in the Harris County District Clerk’s office, was continually asked to track down obscure records. He never failed to find any document, and probably never will.

Laws on Slavery in the Republic and Statehood Periods

[ 93 ]

Case Report

Henry B. Hedgepeth and Others v. Felix W. Robertson, 1857 ★

Introduction The case of Hedgepeth v. Robertson, decided by the Texas Supreme Court in 1857, demonstrates in unusual detail the legal paradox of treating humans as property. It also illustrates how legal documents can help tell the story of slavery. As the case unfolds through the testimony of various witnesses, the human circumstances surrounding the conflict over property issues become clear. First, the case resulted when Felix W. Robertson of Washington County entrusted his slave John to drive an ox wagon loaded with cotton to Houston. Did any other form of property have the intelligence and responsibility to be sent on such a mission? Second, John refused to take a whipping from another master’s overseer, Henry B. Hedgepeth, because he believed that he had done nothing wrong. Did any other form of property have the understanding of its actions and the self-respect to refuse to accept unjust punishment? Third, when Hedgepeth pursued John into the woods and apparently killed him, the court ordered a payment to his owner in excess of twelve hundred dollars. Thus, John’s master received compensation for the loss of his property, but the court made no mention of a penalty for the taking of John’s life. Justice Wheeler took note of John’s humanity when he wrote that “the negro had done nothing to incur blame, much less to give occasion for that hot haste and desperate resolve, which would listen to no explanation, apology or intercession, not stop at anything short of unlimited chastisement, or the death of the slave.” In the final analysis, however, John received legal recognition only as property.

Where the highway is impassable, or it is necessary in order to extricate a wagon and team from a bog in the highway, it is lawful to lay down a fence by the side of the highway, and pass through the field; this may be done by a slave, in his master’s service, his master being responsible for the proper exercise of the right. There can be nothing clearer or better settled, than that it is proper for the court to charge the jury directly upon the legal effect of the admitted or uncontroverted facts of the case. [ 94 ]

The Laws of Slavery in Texas

Where a slave is lost to his master by the wrongful act of another, it matters not whether he came to his death in one way or another, or whether he is dead or alive, the master is entitled to recover his value. Where the defendants had proved that the plaintiff, before bringing the suit, had expressed an opinion, formed from circumstances then within his knowledge, as to the existence of a fact, afterwards in issue in the suit, it was held that it would not have been proper for the court to charge the jury, “that the admissions of the plaintiff should be received by them as good evidence for the defendants.” In cases of wrongful trespass, resulting in the loss of the plaintiff ’s slave and other damage, the jury may allow exemplary damages.

Appeal from Austin. Tried below before the Hon. James H. Bell. Suit by Felix W. Robertson against H. B. Hedgepeth, Jared E. Kirby and Joseph H. White, to recover damages, commenced March 2d, 1853. Pleas of not guilty. Evidence of plaintiff, depositions of A. W. and R. L. Hood, as follows: The plaintiff ’s slave, named John, on or about the 17th of April, 1853, was driving the plaintiff ’s team of five yoke of oxen and wagon, laden with six bales of cotton, the property of the plaintiff, on the road from Washington to Houston. It was immediately after an overflow of the Brazos river; and during the night, in the Brazos bottom, on the east side, John got into a bog with his wagon and team, on the public road, where it ran by the side of, and parallel with the fencing of the defendant Kirby; and John, finding it impossible otherwise to extricate his team and wagon from the bog, there being a large pile of logs on the opposite of the road, pulled down a portion of the fence, stating that he did not believe Kirby would care. After failing to get his wagon out, John said he would put up the fencing again; but by this time it was too dark to put up the fence well, and John encamped there. Early next morning, defendant Hedgepeth, Kirby’s overseer, coming along, and seeing the fencing pulled down, made a great fuss about it, and attempted to chastise John. Witness told Hedgepeth that the pulling down of the fence was done innocently; that it should be put up, and that it was a small thing to make a fuss about. In the meantime John ran off a little piece, and stopped for a few moments. As he ran off, Hedgepeth said, You may go, God d—n you; but I will kill you or whip you before you get home. Hedgepeth then jumped off his horse, put a negro boy on him, and commanded him to go immediately after his double barrel gun and dogs. The negro boy obeyed, and returned in about fifteen minutes with the other two defendants, Kirby and White. Kirby as he rode Laws on Slavery in the Republic and Statehood Periods

[ 95 ]

up, asked Hedgepeth what was the difficulty. Hedgepeth informed him what had taken place. Kirby then asked who the boy John belonged to. Hedgepeth then asked Kirby what he should do. Kirby told him to pursue the boy John, handing him, Hedgepeth, his gun, and telling him to stop the boy, and not to let him go home. Hedgepeth and White, with the gun and dogs, immediately followed after John, who had fled back towards the river; after which witness, A. W. Hood, soon heard guns firing and dogs running in the direction they went. In an hour afterwards Hedgepeth returned, and said he had seen nothing of John. John was never heard of afterwards. He was an expert swimmer. Witness turned the team loose in the range; the cotton was left, three bales on the wagon, and three thrown off in the bog by the wagon. John was an unusually valuable boy; between twenty-five and thirty years of age; worth from twelve to thirteen hundred dollars; services worth $180 per year. A witness for plaintiff testified that the damage done to the cotton, the team and the wagon, and the trouble and expense of collecting the team, would amount to about one hundred and fifty dollars. The fence of Kirby’s field was being repaired, and was still unfenced a few hundred yards on the road in the direction of Houston, beyond where John took down the fence. At the place where John pulled down the fence, the road that had been traveled a few days before was on the inside of the new fence, and there was no cotton growing on it. John fastened his oxen by a log chain to a stump on the side of the road next the fence, so that few, if any, of the oxen could, in swinging around, reach across the road (where it had been a few days before), to where the cotton was growing. The cotton was just coming up; but a few stalks were touched or injured by the cattle. The defendants’ evidence was as follows: The defendants had not crossexamined the plaintiff ’s witnesses, and the depositions of the same witnesses, taken by the defendants, were as follows: Witness (A. W. Hood), Robert L. Hood, and the negro in question, crossed the Brazos river at Baldridge’s Ferry about the 15th or 20th of April, A.D. 1852. The negro boy started from the river, after we had crossed, ahead, and shortly afterwards I started and found him about one-third of the way out of the bottom, with his wagon upset. After aiding him to reload, it being then nearly dark, we started on again, the negro ahead as before, and when we were about half way up Kirby’s fence, outside of the field, I overtook him again, bogged down; about the time I stopped my wagon the negro commenced pulling down the fence; I told him not to pull down the fence, for we could not get out of the bottom that night; and that we had better tie up our oxen until morning, when I thought we could easily get along outside the fence, but he replied that he be d—d if he didn’t know Col. Kirby, and Kirby knew him, and that he would pull down the fence and go out of the bottom that night; after pulling down the fence he made [ 96 ]

The Laws of Slavery in Texas

several attempts to make his oxen pull the wagon into the field, but, failing to do so, he finally concluded to camp. I tied up my oxen on the outside of the fence and built my fire on the opposite side of the road from the fence; the negro however, carried his oxen on the inside of the fence and, leaving them all chained together, fastened them to a stump in the field, and then built his fire on the inside of the field, about twenty yards from where I was camped, and remained in the field with his oxen, about five yoke, and his horse, until morning. As soon as it became light I saw Kirby’s hands at work up ahead of us, some quarter of a mile, and I told the boy he had better go up where they were and get help, as I myself was unable to assist him, and also told him, if the overseer was there, he had better tell him what he had done. He went off and was gone but a short time when he returned with two stout negro men. As soon as he returned I told him to throw off some of the cotton, and I think they had about three bags off the wagon, when Hedgepeth, one of the defendants, rode up to me and asked me by what authority I pulled down his fence. I replied that I had not done so. He then turned his horse and asked the boy John if he had pulled down the fence, who replied that he had. Hedgepeth asked me then if John was under my charge. I told him that he was not, only so far as to see that the wagon and team were taken care of. Hedgepeth then said to John, “I’ll whip you, God d—n you.” Upon this Hedgepeth started to ride up to John, but he went round on the opposite side of the oxen. Hedgepeth then said to the boy, “pull out of your coat, I mean what I say, sir,” to which John replied, “I spects you does sir.” Upon this Hedgepeth spurred his horse around on the same side of the oxen with John, but John ran out of the field by the wagon; as he passed the two negroes who were aiding him to unload, Hedgepeth called to them to catch him, and one of them made a pass at him, but John told him not to lay his hands on him; John then ran about thirty yards down the road towards the ferry and stopped. As he was going off, however, Hedgepeth called out to him, “you can run, God d—n you, but I’ll whip you or kill you before you get home, you d—d son of a b—h. With that Hedgepeth leaped from his horse, and told one of the negroes above referred to, to go to Col. Kirby’s after his gun and dog; but at that time he did not follow John out of the field. I then observed to Mr. Hedgepeth that may-be we had better fix the matter up without any difficulty; but he did not reply; upon which I turned and went to John, who was still standing in the road, about thirty yards off, and when I got up to him, asked him if he intended to leave; he said that he did, and I then told him that he had better come back, for Col. Kirby would come down, and if they whipped him at all, they should not whip him much; but he refused to do so, and hallooed to my nephew to bring him his horse, but Hedgepeth took hold of the horse about the same time with my nephew and said that he would take care of the horse; about this time John ran off towards the river. About an half hour after this Col. Kirby Laws on Slavery in the Republic and Statehood Periods

[ 97 ]

and White, and another young man whom I did not know, came down where we were. Kirby, when he rode up, asked what the difficulty was; but I heard no one reply. Kirby then asked me whose wagon it was (referring to John’s wagon). I replied that it was Capt. Felix Robertson’s, of Independence. Kirby then said that Robertson was an old friend of his, and that he disliked to see his wagon left in that fix. Hedgepeth then said that he would overtake the boy and bring him back, but after getting about twenty yards off he turned around and said, “Col. Kirby if you will give me your gun I’ll make the d—d rascal come back;” Kirby handed him his gun and he went off towards the ferry. Hedgepeth was absent about a half an hour and returned without John; and as he rode up I asked him if he had seen the boy, he replied that he had not, but that John had been to the ferry, and the ferryman refused to put him across the river, and that he did not know what had become of him. After this Kirby assisted me out of the bottom with my wagon, and intended also to aid me in getting Robertson’s out, but I was taken sick after I got mine out, and could not assist him. The field was a cotton field, and the cotton was just getting up to be a good stand. The oxen were tied to a stump in the field and trampled down the cotton around the stump the full length of the team; they also trampled down cotton in coming into the field, and during the next morning they were turned loose and tramped down considerable cotton. The defendants Kirby and White did not see or speak to the boy, Hedgepeth being the only one of them present. I can recollect nothing more in relation to the matter, except that, while Hedgepeth was gone, as before stated, I heard a gun fire in the direction of the ferry, but don’t know who fired it. Witness R. L. Hood, testified to same, except that he did not recollect hearing a gun fire. Deposition of William J. White, as follows: I do not recollect the month, but I recollect that in the spring of 1852, I was in Col. Jared E. Kirby’s yard with him, when one of Col. Kirby’s negroes rode up, riding the overseer’s (Mr. Hedgepeth’s) horse, and said that Mr. Hedgepeth was down in the bottom in a difficulty with some wagoners, and that he wanted Col. Kirby’s gun. Col. Kirby mounted his horse and went down himself; Joseph H. White went also, and as there was no other horse ready, I went upon the horse which the negro rode. When we got down there we found Mr. Hedgepeth, who stated that a negro boy with a wagon and team had camped there the previous evening, and turned his oxen into the field upon the young cotton, after taking down the fence; that the boy had camped in the field. I examined the field in company with Col. Kirby, Mr. Hedgepeth, Mr. J. H. White and Mr. Hood (who was in company with the negro boy with another wagon and team), being all the parties present, and found the fence down, some of the oxen belonging to the negro boy’s team in the field. Mr.

[ 98 ]

The Laws of Slavery in Texas

Hedgepeth stated that he had threatened to whip the boy, when the boy run off. The first question Col. Kirby asked Hedgepeth was, whom the boy belonged to, to which Mr. Hedgepeth replied that he belonged to Capt. Robertson. “Is it Capt. Felix Robertson, of Independence?” asked Col. Kirby; to which Mr. Hood replied yes; when Col. Kirby remarked that Capt. Robertson was a friend of his, and he hated to see his wagon in such a fix, the wagon being bogged down and part of the load thrown off. Then Mr. Hedgepeth remarked that he could go and overtake the boy and bring him back before he got to the river, and Col. Kirby said he would be very glad if he would do so. Mr. Hedgepeth started to go, but turned round to Col. Kirby and said “hand me your gun, for if he sees me, he will be sure to run from me.” Col. Kirby handed Mr. Hedgepeth the gun which was loaded; then Joseph H. White asked Col. Kirby to allow him to go, and Col. Kirby said he might do so. Then I asked Col. Kirby if I might go, and he told me I could not as I had no horse to ride (having rode Mr. Hedgepeth’s horse down to the bottom, behind the negro). Mr. Hedgepeth and Joseph H. White then rode off together. They were gone probably half an hour, when they returned; when they came back they stated they had not seen the negro; that the ferryman at Rock Island ferry told them the boy had been there a few minutes before. We all then returned to Col. Kirby’s house together, and I found the gun still loaded, and believe that the gun had not been fired off during their absence, and neither of them, to my knowledge or belief, had any powder or lead with them, to reload, in case of necessity. What I have here stated occurred in Austin county. The defendant then introduced Thomas J. Wells, who testified that he heard the plaintiff, Robertson, say, about one or two days after the occurrence, in a conversation with Mr. Howth, that he, Robertson, had trailed the negro John from where said negro left the road at the ferry, down the river for half a mile or more, and that there were no signs of any persons pursuing said slave from the road, and that he did not believe that any one had shot the negro. The judge instructed the jury, without request, as follows: That, if they believed from the evidence that the boy John pulled down the fence of defendant Kirby, only for the purpose of extricating his wagon and team from the bog, and that no real damage was done to Kirby by the act, it was a trespass without injury, for which, at most, nominal damages could have been recovered, and for which neither Kirby nor his overseer had a right to inflict personal chastisement upon the slave. If, on the other hand, the jury believe from the evidence that there was no necessity for pulling down the fence, or that any unavoidable injury was done to Kirby’s property, in that case the defendant Kirby, or his overseer, would have the right to inflict moderate and reasonable personal chastisement upon the slave.

Laws on Slavery in the Republic and Statehood Periods

[ 99 ]

If the jury believe from the evidence, that Kirby consented to the pursuit of the slave John by White and Hedgepeth, or encouraged such pursuit to be made by White and Hedgepeth, with force and arms, such consent made Kirby a cotrespasser with White and Hedgepeth. Under the circumstances of this case the pursuit of the slave John, with dogs and arms, was a wrongful act and a trespass in contemplation of law, and the owner of the slave is entitled to recover from the defendants such losses as are the natural results of the wrongful acts of defendants. The mere absence of the slave, without having been heard from since the spring of 1852, is not sufficient of itself to raise a presumption of his death, but it is competent for the jury to infer his death from the circumstances of the pursuit. The jury cannot give damages for the value of the negro and for his hire too, down to this time; but any loss of property which resulted naturally and directly from the wrongful acts of defendants, and any expenses incurred in the protection of the cotton or team, necessarily incurred by plaintiff in consequence of the wrongful act of defendants, are proper to be considered in your estimate of the damages. The jury must judge of the evidence for themselves. The defendants excepted to the instructions so given, and requested the court to give the following instructions, which were refused: 1st. If a person in repelling the trespass of a slave, should frighten the slave, so that the slave should run off and be lost to his master, the person so repelling the trespass will not be liable to the owner of the slave for the hire or value of the slave. 2d. A person cannot recover damages unless he proves that he has sustained damages, and unless he proves the amount of the damages which he has sustained. 3d. The plaintiff cannot recover the value of the negro John, unless he has proved that the negro came to his death by the wrongful act of the defendants, or some one or more of them. 4th. The jury cannot presume the death of the negro from the mere proof of his not having been heard from since April, A.D. 1852. 5th. The plaintiff cannot recover the value of the oxen and wagon and cotton, unless he has proved the total loss of said property to him by the wrongful act of some one or more of the defendants. 6th. The plaintiff cannot recover the damages sustained to the cotton, wagon and team unless they have proved the amount of damages so sustained. 7th. The employee is not responsible for a trespass committed by his overseer, unless the same is done by his command and consent. 8th. If you believe that the defendants are not in fault, that they have not committed the trespass complained of, you will find for the defendants. [ 100 ]

The Laws of Slavery in Texas

9th. The declarations of the defendant, Hedgepeth, as introduced by plaintiff, are good evidence both for and against the defendants. 10th. The admissions of the plaintiff, Robertson, should be received by the jury as evidence for the defendants. Verdict and judgment for the plaintiff for $1,300. Motion for new trial overruled, etc. Ballinger & Jack, for appellant Kirby. The ground of complaint of the defendant Kirby is that he was not allowed the right of trial by jury in this case in the sense in which that right is guaranteed to every citizen of the state. The charge of the judge was “under the circumstances of this case, the pursuit of the slave John with arms and dogs was a wrongful act, and a trespass in contemplation of law; and the owner is entitled to recover from the defendants such losses as are the natural result of the wrongful acts of defendants.” This determines the whole case. It settles the character and circumstances of the pursuit, and pronounces that pursuit the trespass, for which all the defendants were to be held liable for the value of the slave. The jury were allowed no liberty but to assess damages. The facts of this case will not tolerate a peremptory charge, in effect, to the jury, that Col. Kirby should be held responsible for the value of the slave. 1st. It is clear that the negro committed a trespass in pulling down the fence, and turning his oxen in all night on the young cotton. 2d. The owner had a right properly to chastise him therefor. There was no civil remedy against his master. McManus v. Crickett, 1 East, 106; Lyons v. Martin, 8 Ad. & El. 512; Timothy v. Simpson, 6 C. & P. 499; Snee v. Trice, 2 Bay, 343. Even if there was a civil remedy against the master, there are “other salutary checks,” in the language of the case in 2 Bay, which are more efficacious—that is, the proper punishment of the slave. It would be perfectly absurd to say, that slaves could be sent from the interior parts of the state to Houston, to camp out along the road, and that for such trespasses as they are liable to commit, there should be no preventive or correction, but a suit against the master, or taking the slave before a civil magistrate. 3d. The overseer attempted to punish the slave, and the latter ran off towards the ferry. If the overseer had a right to punish him, so far, no wrong was done. If he had not, it was a wrong in which Kirby did not participate, of which he was ignorant, and for which he is not responsible. The negro was never afterwards seen. Robertson proves the statements of Hedgepeth and White that they had not seen the negro. Robertson himself said he had tracked the negro down the river, and was satisfied he had not been overtaken. Now what caused the loss of the negro? Was it his running away to avoid the whipping? Did he attempt, as he said he would, when he left, to go home to his master? Did he try to swim the Laws on Slavery in the Republic and Statehood Periods

[ 101 ]

river and was drowned? Did he run away, and has not since been heard from? Or, when subsequently pursued, was he overtaken and murdered, or devoured by the dogs, or run into the river and drowned? Who shall decide that question? Is it undisputed and clear from the record? We affirm, without hesitation, that no man can read the record and say candidly that the latter hypothesis is undisputed. Nor do we believe it at all probable. If the loss of the negro resulted from his leaving to avoid the whipping, there can be no pretense of liability on the part of Kirby, and that question should have been left to the jury. 4th. Kirby came up, expressed his regret at what had occurred, spoke of Robertson as his friend, and put his own negroes to work to rescue Robertson’s cotton and team from their condition. The overseer proposed to bring back the negro, and asked for Kirby’s gun, and Kirby’s brother-in-law went along. Riding off they were followed by the dogs which were around. Said his honor below, this pursuit was a trespass. Did not that depend on its design, or at least on its results? The object clearly was to bring back the negro—the gun was taken, not to shoot him down; but to control him, and make him stop. But it is useless to discuss the design. The negro must have been overtaken and injured, or his injury must have resulted from the pursuit, in order that the pursuit should have been a trespass. He may have been pursued with the spirit of fiends and with the force of an army: but unless they found him, and thereby forced the negro to do something to his injury, it was no trespass. What caused the loss of the negro was the practical necessary question for a jury to decide. To assume that this is clear and undisputed from the record and that there was any blameable connection therewith on the part of Col. Kirby is, we think, to do extreme violence to the testimony, and cause great injustice. It has been settled against him, not by the verdict of the jury, but by the fiat of the judge. F. Lipscomb and J. B. & G. A. Jones, for appellee.

Wheeler, J. The pulling down of the fence, under the circumstances, was a necessary and justifiable act, and no trespass. 2 Kent, Com. 338. But if it did amount to a trespass, it was not an unauthorized and wanton, wilful or malicious trespass; it was done by the slave necessarily, in the performance of his master’s service, in the pursuance and execution of the authority and duty confided to his slave; and if there was any injury occasioned by the act, the master was responsible for it. McManus v. Crickett, 1 East, 106; Story, Agency, sec. 456, n; id. 318. Night had overtaken the slave; he was unable to proceed on his way, or to see to put up the [ 102 ]

The Laws of Slavery in Texas

fence properly, and he had a right to camp upon the spot. If there really was any injury done to the cotton, it must have been very trifling; a small matter, as the witnesses thought, to make a fuss about; certainly a very small matter to make the occasion of a desperate resolve to whip or kill the slave of a neighbor, who had not delegated to them his power and authority over his slave, and who was himself responsible, and would doubtless readily have made reparation, if any injury had been done. It is very evident that no injury had been intended. The field was not inclosed; a little further on there was no fence; it is not probable, in the night as it was, and in the situation he was in, that the negro saw or knew there was cotton planted there; there is no reason to believe he intended anything wrong, or supposed he had done anything for which he would incur the displeasure of the defendants. The contrary is evident. There was no complaint of any injury to the cotton at the time; that appears to have been an after discovery. It was the pulling down of the fence, which appears to have given the offense; and in that the negro had done nothing to incur blame, much less to give occasion for that hot haste and desperate resolve, which would listen to no explanation, apology or intercession, nor stop at anything short of unlimited chastisement, or the death of the slave. Comment upon the evidence is unnecessary. It is indisputable that the defendants’ interference with the negro, in the manner of it and under the circumstances, was, to say the least of it, unauthorized and improper. They had no right to drive or frighten the slave away from his master’s employment, and the care of the property entrusted to him, by threats and violence; nor had they any right to go after and bring him back by force. The master had not delegated to them any such authority over his slave. If he left his master’s employment without cause, that was the master’s concern, not theirs. Their interference with the negro, under the circumstances and in the manner of it, was not a trespass merely, but an outrage upon a neighbor’s property and rights, for which all concerned are alike responsible, civilly, for the injury thereby occasioned. The charge of the court is not obnoxious to the objection that it is a charge upon the weight of evidence; nor, when rightly viewed in its connexion and according to its obvious sense and meaning, is it obnoxious to just criticism; much less to the grave imputation that its effect was to deny the defendants their constitutional right of trial by jury. There was no question to leave to the jury as to the sufficiency of the evidence to prove the fact and manner of the pursuit. These were not contested upon the trial, but were proved, as well by the defendants’ evidence as the plaintiff ’s. There was no question of evidence for the jury to weigh on that subject. There was and could be no question about the fact of the pursuit and the manner of it. It was entirely proper, therefore, for the court to proceed directly to instruct the jury Laws on Slavery in the Republic and Statehood Periods

[ 103 ]

as to the legal effect of such a pursuit, without submitting a hypothetical case, as though there was a question about the fact, when there was none. Such a course would, or might have had a tendency to mislead, by inducing the jury to suppose they were at liberty to find contrary to the plain and uncontroverted truth of the case, that there had not been such a pursuit. There can be nothing clearer, or better settled, than that it is proper for the court to charge the jury directly upon the legal effect of the admitted, or uncontroverted, facts of the case; as the court did in this instance. It manifestly was not a charge upon the weight of evidence; but upon the legal effect of facts, proved indisputably by the evidence on both sides, and not open to question or dispute. By the expression, “the circumstances of this case,” the judge evidently meant nothing more than simply to distinguish, in a word, between the present and a case where he supposed it might be lawful to pursue a negro with dogs and arms; as where he had committed a felony, or was a fugitive and runaway from the service of his master, and could not be otherwise apprehended. The obvious intention and effect of the language of the charge was, to instruct the jury that this was not that character of case. There could be no pretense that it was. Nor can there be a question that it was right and proper for the court to instruct the jury as to the legal effect of the pursuit under the circumstances of this case, as they were proved and admitted by the evidence on both sides. The error assigned in the refusal of instructions scarcely requires notice. The refusal of the tenth instruction asked is complained of. The question for the jury to decide was, whether the slave had been lost to the plaintiff by the wrongful acts of the defendants; and upon that issue the statement of the plaintiff relied on as an admission, really amounted to no evidence in favor of the defendants. What the plaintiff may have said about tracking the negro, and what he then thought about his having been shot, did not tend, in the remotest degree, either to prove or disprove the issue. It was not material whether the negro came to his death in one way or the other, or whether he was dead or alive, so that, by the wrongful acts of the defendants, he had been lost to the plaintiff. Robinson v. Varnell, 16 Tex. But if the statement of the plaintiff had been evidence, it had gone to the jury as such without objection; and to have given the instruction asked would have had a manifest tendency to give it undue importance in the minds of the jury. In any view of it the instruction was very properly refused. There manifestly was no error committed upon the trial, to the prejudice of the defendants. But there was error in the charge of the court to the evident prejudice and injury of the plaintiff. The court limited the jury in their award of damages to the rule of mere compensation. This was error. It was a clear case for the awarding of exemplary damages; and the jury ought to have been instructed that they were at liberty to give such damages. It was an unwarrantable interfer[ 104 ]

The Laws of Slavery in Texas

ence, on the part of the defendants, with the plaintiff ’s property, attended by circumstances of aggravation, which called for the imposition of damages, not for compensation merely, but also for punishment and prevention. There are scarcely any damages which an unprejudiced jury would give in such a case, which the law would deem excessive. But this was an error in favor of the appellants, one which doubtless operated in their favor; it was an error committed against the plaintiff; but of which he has not complained, and the defendants can not. There was not the slightest ground for prosecuting this appeal by the defendants; and we are of opinion that the judgment be affirmed with damages. Affirmed with damages.

Source: Reports of Cases Argued and Decided in the Supreme Court of the State of Texas, 18:768–782.

Laws on Slavery in the Republic and Statehood Periods

[ 105 ]

★ CHAPTER THREE

Laws on Free Negroes in the Republic and Statehood Periods, 1836–1860 ★

REPUBLIC OF TEXAS CONGRESS DEBATE ON THE EMANCIPATION OF PETER MARTIN

December 1839 AN ACT TO AUTHORIZE WYLIE MARTIN TO EMANCIPATE HIS SLAVE PETER

January 3, 1840 ★

Introduction Laws supporting slavery went hand in hand with laws restricting free blacks. The primary reason was simple—justifications for slavery depended heavily on a belief in the inherent inferiority of Africans. The presence of blacks living responsibly as free people undermined the argument of natural inferiority and thereby called slavery into question. Moreover, slave masters feared that free blacks would mingle with their fellow persons of color and encourage those held as property to run away or rebel. The Constitution of the Republic of Texas (1836) reflected these fears by providing that free blacks could not remain in the new nation without the approval of congress (see page 52). A few years later, when the Texas Senate debated a proposal that would free a slave named Peter—who belonged to Wylie Martin and had loyally aided the revolution—and allow him to remain in the republic, senators gave voice to all these objections to the presence of free blacks in the republic. Peter won his freedom and the right to remain in Texas, but the debate indicated that few others were likely to receive similar treatment.

[Editorial note: The evolution of this piece of legislation was documented somewhat piecemeal in several volumes of the Journals of the Fourth Congress of the Republic of Texas. We selected two excerpts of particular interest: the statement by the committee that submitted the act, and a newspaper summary of the senate debate (originally a journal footnote). They are included here along with the text of the final act.]

Laws on Free Negroes in the Republic and Statehood Periods

[ 107 ]

Committee Statement Mr. Jones of Austin of the special committee to which was referred the petition of Wyly Martin reported an act authorizing Wyly Martin to manumit & set free his slave Peter . . . The Committy to whom was referd, the petition of Wily Martin relative to emansipating his Slave Peter have carefully examined the subject,— Your Comitty have before them satisfactory testimony that the said slave has resided in texas about sixteen years, the most part of which time he has transacted business on his own account by Consent of his master, and during that period has universally sustained a good character, and his deportment at all times has been that of an Industrious, Humble & useful subject. That during our struggle for Independence he rendered material aid to govt by Hauling, (with his own team and at his own expense,) military stores and provisions for the use of the Army during the period they were stationed before Bexar in 1835—from the above facts Your Committy are of opinion the prayr of the petitioner ought to be Granted and would reccommend the passage of the following bill. Oliver Jones[,] Chairman

Senate Debate, December 1839 The debate appears in the Austin City Gazette, December 25, 1839. Mr. Everitt said he was willing to emancipate slaves to be transported, but not otherwise. Perhaps this was a meritorious case, and one that would, as much as any other, excite the sympathies of the Senate, and go very far towards justifying their infringing the law and the Constitution, which positively denies to free negroes the right to remain in the Republic. And although justice might claim for the petition a favorable reception in the Senate and some partial good might result to the individual in question, yet an evil of the deepest dye might be the result of his present action. He should oppose the bill. Mr. E. said he should take no hand in bringing destruction and bloodshed upon his country, and called the attention of members to the ruinous brink of dissolution, from which the United States had more than once been rescued; and beg of them to profit by experience and examples before they should give their votes to sustain a measure so baneful in its consequences, and that he regarded it a dangerous precedent. Mr. Jones of Austin, in reply, stated that the gentleman’s positions were erroneous and his apprehensions unfounded; he thought the Constitution undoubtedly [ 108 ]

The Laws of Slavery in Texas

contemplated such cases as the one under debate, and in emancipating slaves had made them subject to the will of Congress. For his part he was as much averse to free negroes as any man, and should except under very extraordinary circumstances, use his best efforts to keep Texas clear of them. But he had known this boy Peter for 16 years, during which period he had acted for himself, and accumulated a fortune of perhaps $16,000; that he had always been faithful, honest, and humble. That his master is a kind old man, and in gratitude for his fidelity, was desirous of setting him free so that he may not be the servant of another after his death. We should do justice alike to black, yellow and white, without regard to color; and as this slave had done much service to the State during her hours of danger and invasion, he hoped the Senate would act favorably on his case. He did not consider this Congress so much wiser than all others, as to believe their proceedings are to be regarded as an example for all future Senates; that this Senate is only answerable for its own laws, and therefore he could not see that the precedent is to be so very dangerous. Mr. Everitt moved an indefinite postponement of the bill. Mr. Barnett remarked that he should second the motion in order to give time for deliberation. He had already often expressed his opposition to free negroes, and should never vote to emancipate a slave, unless to be sent out of the country. This individual, Mr. B. said, he had long known, and knew his character to be as good as had been represented; that he was in the Army himself before Bexar, during the last war, when this boy gratuitously furnished supplies; for all of which he was willing to reward him doubly, but that he could never consent to his remaining here as a free citizen. The very fortune which he held, greatly increased his objections, as he could therewith, should he choose to interest himself, exert an influence in co-operation with the abolitionists, that would strike at the very root of our most useful domestic institutions, and at the peace and security of ourselves and families. Mr. Moore followed, by remarking that he perceived that the very laudable feeling of gratitude had gained an ascendancy over the better judgment of the gentleman from Austin. Knowing both the boy and his master, it is not remarkable that he should support the bill. He pleads here for the services and good character of the boy, and adduces as evidences of the claims of the petitioner, that he has acted for himself 16 years, and in that time, accumulated a fortune. By this position he sweeps from us our strongest ground, in refutation of the doctrine of the abolitionists, for we have always insisted that slaves and free negroes are incapable of self government. Should we set this slave free, with the privilege to remain, upon the ground of obedience and fidelity, others might claim and expect like accommodation, and the result would be dissatisfaction, insubordination, and finally insurrection. I say, emancipate this boy Peter and let him go with his Laws on Free Negroes in the Republic and Statehood Periods

[ 109 ]

fortune to Africa or some other country, but do not let us from sympathy or any other consideration, set an example so deleterious as is demanded by this act. The question to postpone, being called and the ayes and noes taken, resulted as follows: Ayes—Messrs. Barnett, Everitt, Greer, Moore and Stroud, 5. Noes—Messrs. Burton, Dunn, Elis, Jones of Austin, Lester, Kendrick and Seguin, 7. So the motion was lost. Mr. Burton remarked that the gentleman from Austin wished to emancipate, with the privilege of remaining in the country for services and good conduct. The Constitution and the law both permit owners to manumit their slaves, on condition that they be removed from the Republic, under those circumstances, the only course to be pursued is for Congress to pass a special law for the relief of this boy who is said to be so old, humble and faithful. Mr. Burton said he merely made these remarks hoping to terminate so much debate. When a motion was made that the bill lie on the table, on which question the ayes and noes being called, Messrs. Barnett, Ellis, Everitt, Greer, Lester, Moore and Stroud (7) voted in the affirmative; and Messrs. Burton, Dunn, Jones of Austin, Kendrick, Jones of Brazoria, and Seguin (6) voted in the negative. So the bill was laid upon the table.

An Act to Authorize Wylie Martin to Emancipate His Slave Peter , January 3, 1840 Section 1st. 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 that Wiley Martin is hereby authorized to Manumit and set free his Negro Slave Peter Section 2nd. Be it further Enacted[:] That the said Peter after his emancipation may be permitted to remain in this Republic with his property untill Congress shall direct otherwise Provided that the said Wiley Martin shall before emancipating, enter into bond with one good Security payable to the Chief Justice of the County Fort Bend and his successors in office in the sum of one thousand dollars conditioned that the said Peter shall never become a charge to the said County or Republic. David S. Kaufman[,] Speaker of the House of Representatives David G. Burnet[,] President of the Senate

[ 110 ]

The Laws of Slavery in Texas

Approved 3rd January 1840. Mirabeau B. Lamar. I certify that this act originated in the Senate. Algernon Thompson, Assistant Secretary of the Senate. Recd. Dec. 28, 1839[,] 12 oclk Wm. G. Lewis[,] Priv. Secy

Source: Harriet Smither, ed., Journals of the Fourth Congress of the Republic of Texas, 1839–1840, 1:58, 63–65; 3:231–232.

Laws on Free Negroes in the Republic and Statehood Periods

[ 111 ]

REPUBLIC OF TEXAS AN ACT CONCERNING FREE PERSONS OF COLOR

February 5, 1840 ★

Introduction The Constitution of the Republic of Texas (1836) required free blacks to gain the approval of congress if they wished to remain in the nation. A year later, congress passed a joint resolution allowing all free blacks resident in Texas at the time of the Texas Declaration of Independence to remain in the state as long as they wished. By February 1840, however, as slavery expanded, congress was taking a much less tolerant view of free persons of color. A law enacted that month ordered all free blacks to leave the republic within two years unless they had the approval of congress to remain. The act also strictly prohibited the immigration of free persons of color into Texas and provided for the sale into slavery of violators. Such tightening of legal restrictions on free blacks indicated the growing strength of slavery in the republic.

Text of the Statute Sec. 1. 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, it shall not be lawful for any free person of color to emigrate to this Republic. Sec. 2. Be it further enacted, That if any free persons of color shall emigrate to this Republic, it shall be the duty of the sheriff, or any one of the constables of the county to which such emigration shall be made, to arrest such free person of color, after giving him ten day’s notice, and bring him before the Chief Justice of the county, or Judge of the district; and it shall be the duty of the Chief Justice, or Judge of the district, before whom such free person of color may be brought, to receive the bond of such free person of color in the sum of one thousand dollars, with the security of a citizen, to be approved by him, conditioned for the removal of such free person of color out of the limits of the Republic. Sec. 3. Be it further enacted, That if any free person of color should be brought before any Chief Justice of any county, or District Judge, and shall not be able to give the bond as prescribed in the second section of this act, such Chief Justice, or District Judge, shall commit such free person of color to the public jail, with [ 112 ]

The Laws of Slavery in Texas

an order to the sheriff to expose him to public sale to the highest bidder, at the court-house door of his county, after giving four weeks’ notice of the same, in the nearest public journal, and at least four public places in his county; and the said purchaser shall and may exercise all the rights of ownership over said free person of color, for one year from such sale. Sec. 4. Be it further enacted, And if any such free person of color, shall during the year of such slavery, be able to give his bond as contemplated in the second section of this act, to take effect at the end of his slavery, he shall be permitted to do so; but if he shall fail to render the bond, until after the expiration of his slavery, it shall be the duty of the purchaser to return him into the hands of the sheriff. Sec. 5. Be it further enacted, It shall be the duty of the sheriff, upon the return of any such free person of color, upon giving six weeks’ notice in some public journal, and at least four public places in his county, to expose the free person of color so returned, at public sale, to the highest bidder; and such free person of color so sold shall remain a slave for life: Provided, That if any person of color so sold should be the property of any individual, he shall have his right of recovery by due course of law. Sec. 6. Be it further enacted, All monies arising from the sale of such free person of color, shall be paid into the county treasury, subject to appropriation by the District Court for public purposes. Sec. 7. Be it further enacted, Upon the forfeiture of the bond of any free people of color, the same shall be placed in the hands of the District Attorney for collection, who shall prosecute the same against the securities only; and the amount of sale, if such shall have been made, of the free person of color, shall, in all cases, be subtracted from the amount adjudged against the securities, and the remainder only shall be recovered of them. Sec. 8. Be it further enacted, That two years shall be allowed, from and after the passage of this act, to all free persons of color who are now in this Republic, to remove out of the same; and all those who shall be found here after that time, without the permission of Congress, shall be arrested and sold as provided in this act. Sec. 9. Be it further enacted, That it shall not be lawful for any master of a vessel, or owner thereof, nor for any other person or persons whatsoever, to bring, import, induce, or aid or assist in the bringing, importing, or inducing any free person of color within the limits of Texas, directly or indirectly; and any person so offending shall be deemed guilty of a misdemeanor, and on conviction shall be fined in a sum of not less than one nor more than ten thousand dollars: Provided, That cooks and other hands employed on board of vessels shall not be considered as coming within the provisions of this act. Laws on Free Negroes in the Republic and Statehood Periods

[ 113 ]

Sec. 10. Be it further enacted, That the President of the Republic do issue his proclamation, commanding all free persons of color who are now in the Republic, to remove from the same before the first of January, 1842, and the Secretary of State publish this act a number of times in all the journals of this Republic. Sec. 11. Be it further enacted, That all laws contrary to the meaning and spirit of this act, are hereby repealed. David S. Kaufman, Speaker of the House of Representatives. David G. Burnet, President of the Senate. Approved 5th February, 1840. Mirabeau B. Lamar.

Source: H. P. N. Gammel, “Laws of the Republic of Texas,” in The Laws of Texas, 1822–1897, 2:325–327.

[ 114 ]

The Laws of Slavery in Texas

REPUBLIC OF TEXAS AN ACT FOR THE RELIEF OF CERTAIN FREE PERSONS OF COLOR

December 12, 1840 ★

Introduction In response to the act of February 5, 1840, that ordered all free blacks residing in the Republic of Texas without the permission of congress to leave within two years or else be sold into slavery, white residents began to petition for the exemption of neighbors and friends who would be expelled under the law. The most notable of these petitions involved several families named Ashworth in Jefferson County. William Ashworth and his brother Aaron, both natives of South Carolina, came to Texas during the early 1830s, established families, and became productive citizens. When the act of February 1840 threatened to drive the brothers and several related families out of Texas, three petitions, each signed by sixty or more whites, urged the passage of an act allowing them to remain. Congress responded with the “Ashworth Act” on December 12, 1840, and the Ashworths remained respected members of their communities. According to the U.S. census of 1850, Jefferson County had sixty-three free blacks, thirty-eight of whom were named Ashworth. Interestingly, William and Aaron Ashworth both reported the ownership of slaves themselves.

Text of the Statute Be it enacted by the Senate and House of Representatives of the Republic of Texas, in Congress assembled, That William Ashworth, Abner Ashworth, David Ashworth, Aaron Ashworth, Elisha Thomas, and all free persons of color, together with their families, who were residing in Texas on the day of the declaration of independence, are, and shall be exempt from the operation and provisions of an act of Congress, entitled “An Act Concerning Free Persons of Color,” approved fifth of February, A.D. one thousand eight hundred and forty; and that the above named persons, with their families, are hereby granted permission to remain in this republic; anything in the laws of the country to the contrary notwithstanding.

Laws on Free Negroes in the Republic and Statehood Periods

[ 115 ]

David S. Kaufman, Speaker of the House of Representatives. David G. Burnet, President of the Senate. Approved December 12th, 1840. Mirabeau B. Lamar.

Source: H. P. N. Gammel, “Laws of the Republic of Texas,” in The Laws of Texas, 1822–1897, 2:549–550.

[ 116 ]

The Laws of Slavery in Texas

The Free Negro in the Republic of Texas: The Extent of Discrimination and Its Effects Harold Schoen ★

Introduction During the years from the end of Reconstruction until 1900, white southerners developed a system of race relations that relegated African Americans to second-class citizenship at best. Segregated, disfranchised, and often terrorized, blacks received little attention from historians in the South except to be portrayed as inferior beings fit only to be slaves or a submerged working class. However, a “Second Reconstruction” in race relations began to stir ever so slightly during the 1930s, and then swept over the nation during the 1960s. Part of that change was reflected in the work of historians such as Kenneth Stampp, who, in The Peculiar Institution (1956), revised the story of slavery and its underlying racial assumptions. Harold Schoen, a young graduate student at the University of Texas, made a small but important early contribution to this revisionism in the mid-1930s by completing a doctoral dissertation on the free Negro in Texas. A native of New York who grew up in California, Schoen earned a degree from Santa Barbara State Teachers College and worked at a variety of jobs before entering graduate school at the University of Texas. Why he chose to study free blacks is not clear, but it seems that he identified with the underdog, of whom there were many during the 1930s. (Later, he was denied a teaching position on the grounds that he held “radical” views.) The Southwestern Historical Quarterly published his dissertation in six installments, the last of which is reprinted here because he used it to summarize the impact of discrimination on African Americans in Texas. Schoen recognized that at times whites protected particular free persons of color, but he concluded that the inability “to draw a more intelligent distinction between master and servant than one based on color alone” meant inconsistent and generally unfair treatment of free blacks in early Texas. Harold Schoen taught briefly at Amarillo College, but when he sought a position at Santa Barbara, the provost found him too radical. During the 1950s, he opened a specialty store selling silver and coins in Santa Barbara, where he died in 2000 at the age of ninety-six.

Laws on Free Negroes in the Republic and Statehood Periods

[ 117 ]

T

he Mexican government in Texas offered to free Negroes liberty, equality and the full rights of citizenship. It engaged to encourage their immigration by offering them land and tools for cultivation, and protection in order that they might pursue their work peacefully. Arrived in Texas, they were accepted as colonists by the leading empresarios side by side with white men. Some of them emigrated to Texas for the purpose of enjoying this greater liberty; others who found themselves in Texas for diverse causes readily accepted the boon and became easily accustomed to it. In the revolution against the Mexican government, free Negroes contributed of their property and their personal services to retain their rights, only to find that in victory they had lost them. As an ironic reward for their patriotism, the constitution permanently excluded them from citizenship and reserved the right to pass individually upon their continued residence, seriously circumscribing their rights in the state without in any way limiting their obligation to it.1 In setting up the machinery of government the free Negro population was not counted in the apportionment of representation.2 Since their numbers were always small,3 their omission had no practical effect in determining election districts. Aside from the moral effect of branding them as unfit to participate in government, this loss of the franchise was not serious. All the practical value of representation was retained through the right of petition.4 The privilege of free Negroes to petition Congress, at least in matters pertaining to residence, was tacitly recognized in the provision giving Congress the power to grant them the right of permanent residence in the Republic.5 Most Negro petitions were endorsed by white men whose intercessions, doubtless, added strength to the pleas, but were not at all a legal necessity.6 Two unsuccessful attempts were made to interfere with the petition process. At the beginning of the fourth Congress which convened close upon the failure of the city of Houston to rid itself of free Negroes by judicial procedure and adjourned with the passage of the law of February 5, 1840, which made such procedure effective, Beden Stroud introduced a bill, part of which prevented the Senate from receiving or entertaining petitions from free Negroes.7 The bill was at first tabled, later referred to the judiciary committee8 and finally emerged as the law of February 5, 1840, which denied them the right to remain in the country but did not disturb the privilege of petition for exemption from the law. The second attempt was made by Francis Moore, Jr., in the sixth Congress by moving to reject the petition of Henry Lynch. This motion was not for a denial of the prayer but for an expulsion of the petition itself as an intruder into the Senate. The proposal was defeated by a seven to three vote and the petition referred to the judiciary committee for consideration, thus affirming the right of the free Negro to be heard.9 In addition to the formal procedure of petition, free Negroes presented their

[ 118 ]

The Laws of Slavery in Texas

grievances personally or by private letter to members of Congress.10 They had come to know some of these public men as their frontier neighbors and others as their officers in the Revolutionary army. These Congressmen needed no prompting to protect the rights of their black friends. Although the Congressional Journals show that they were not always familiar with the privileges already granted to particular Negroes, they were sure to add the names of their own favorites to bills which granted any Negro special privileges. Certainly every petition and as far as we know every grievance presented was brought to the attention of Congress and received parliamentary consideration. A frequent complaint of free Negroes continually brought to the attention of Congress was the exclusion from citizenship. Because the term citizen was commonly used loosely as a synonym for resident, it is not always easy to know whether a Negro was asking solely for resident privileges or for all the rights of citizenship. Certainly many of them asked for more than the right to remain, most frequently joining resident rights with the privilege of holding real property the same as other citizens.11 Two petitions went still further. Memucan Hunt, James Reily, Robert Wilson and others believed that Nelson Kavanaugh “should be allowed most of the privileges of a white man, such as holding real estate, suing and being sued and the right to swear in court.”12 The traveling board of land commissioners, as one method of granting land to the Ashworths and Birds thought that they might “be received as Citizens under the Constitution,” despite their Negro blood.13 The eighth Congress overstepped its bounds by bringing the question of citizenship for Negroes to a vote when a constitutional amendment would have been required to settle the question. Other circumstances throw doubt upon the sincerity of the two members of the House who voted in favor of the measure.14 At no time was there the slightest possibility of Negro citizenship being seriously proposed. Apart from the question of the legal right of Negroes to retain real property granted to them by the Mexican government or secured by purchase,15 was their right to share in the undivided public domain. The constitution and a series of laws generously distributed headrights to white immigrants, adult residents and young men coming of age, but Negroes received nothing.16 This exclusion from land donations was logical since the well-established policy of the Republic at first discouraged and later prevented free Negro immigration. These disqualifying acts threw considerable doubt upon the right of Negroes to own land under any circumstances, even by purchase; increased their immediate difficulty of establishing themselves upon farms; and may have prevented some of them from laying the bases for family fortune. Despite insecurity of titles, Negroes continued to improve the land upon which they had settled and increased the acreage of their farms by purchase, while Laws on Free Negroes in the Republic and Statehood Periods

[ 119 ]

some landless ones entered the propertied class. Jean Baptiste Maturin made “valuable improvements” on his sitio which enabled him to support “himself, his family and his stock of cattle” for at least ten years, although his one-fourth Negro blood forced him to live in constant fear that he would lose both land and improvements.17 Tomas Morgan, an “industrious and useful” negress who was brought to Texas as a slave in 1832, “and purchased her freedom with the proceeds of her own labor sometime during the year 1834,” continued to display her industry after that date and “acquired a considerable amount of Real Estate in the Country.” She was married to an equally industrious Negro, Emanuel J. Hardin, who, starting with nothing “Acquired a considerable amount of property in the Country.”18 Samuel H. Hardin, possibly a relative, who had the original advantage of a grant of half a league in Waller county from Stephen F. Austin, in 1843 owned one hundred acres of improved land in Brazoria county valued at $500, and six town lots in Brazoria and Velasco worth $1,100.19 Allen Dimery sold two thousand acres to Major John Durst in the early ’forties, apparently to improve the remainder of his league.20 William Goyens “accumulated considerable property in land.”21 In 1839, he bought a “portion of a Mexican grant” adjacent to his own league and labor.22 By the terms of a complicated agreement two years later, typical of the time, and by the varying amounts of land which he owned from year to year,23 he appears to have made a business of buying, improving and then selling virgin land. For seven thousand dollars Henry Raguet was to choose one thousand acres of land in a certain tract owned by Goyens “including Mills, Dwellings and all the improvements on Said Land,” Raguet to pay Goyens fifty-five hundred dollars in land at the rate of one dollar an acre to be chosen by Goyens in three disjoined tracts out of Raguet’s five leagues, each tract “to be as near equal in quality of the whole league as possible.” For the balance of fifteen hundred dollars due Goyens, Raguet assumed a debt of twelve hundred dollars which Goyens owed David Towns, and agreed to pay him three hundred dollars in cash at a time to be determined by future events. If Goyens lost a Supreme Court appeal from a district court judgment against him, Raguet was to pay him the three hundred dollars at the time of the adverse decision, but if Goyens won the case Raguet was not to pay him until “such time as they can agree on.” Raguet was to take possession of the mills on December 15, 1841, and of the entire premises seven weeks later.24 The twelve hundred dollar debt, itself, was due to David Towns in payment of a quarter league of land which “goins and Debad” bought from Towns.25 Goyens was evidently a shrewd trader. In 1841, he owned 4,160 acres of improved land valued at $20,600, two town lots, fifty head of cattle and two work horses in addition to other property for which he was assessed $128.50 in taxes.26 In addition to securing land by purchase, it was also possible for Negroes [ 120 ]

The Laws of Slavery in Texas

to lease land for farming purposes. Abner Ashworth, in 1838, leased a league of land on Tailor’s Bayou for the term of one year for twenty dollars. According to the terms of the lease, Ashworth was not to “Cut any Wood or Timber on Sd Primescis Except Dead Timber. [He was] To Use Sd Land in Cultivation in a Husband like Manners, to render Piusful Possession [and] at the Expiration of Sd term . . . forwarn any person Against Trespassing on Sd Primiacis afore Sd.”27 The Ashworth brothers are perhaps the prime example of Negro frugality, industry and success in farming. In 1837, the first available report, they owned 1,113 acres of titled land, 934 head of cattle, 52 horses and five slaves. Eight years later they had increased their property to 14,296 acres, 2,240 head of cattle, 84 horses and ten slaves,28 which constituted a considerable investment and a large scale enterprise for the time. The ownership of slaves by colored freemen was not unique in the case of the Ashworths. Hendrick Arnold held his daughter as a slave, and later sold her with the provision that her new owner manumit her within five years.29 Aside from Negroes holding members of their families as slaves as a means of giving them actual freedom, other free Negroes like the Ashworths owned slaves for purely productive purposes. Among them were William Goyens, who engaged in lively slave trades under the Mexican regime30 and continued to own as many as nine slaves during the Republic;31 and Samuel H. Hardin, who in 1844, owned four Negroes.32 Apart from their legal right to hold personal property, which was never disputed, and real property, which was partially recognized in 1843, the distinction between slaves and colored freemen was slight. In all respects save that of the relationship between slave and master, the disposition of the Republic was to place free Negroes on a footing of equality with slaves. They were governed by the same criminal code, forbidden to bear witness except against other Negroes and confused with slaves in other legislation, proposed and accepted, designed primarily for the protection of the peculiar institution of slavery without consideration for the encroachment upon the free status of some Negroes.33 Unsuccessful attempts were made to include free Negroes in an act to prohibit the sale of spirituous liquors to slaves; to prohibit them from keeping arms without license; to make it a criminal offense for a Negro “to lift a hand” in opposition to any white person; and to bar them from exercising “the functions of a minister of the Gospel.”34 In addition, efforts were made to restrict their movements to the county in which they resided.35 Attempts were also made, beginning in 1842, to inaugurate a slave patrol to “visit in negro quarters and places suspected of containing unlawful assemblies of slaves and other disorderly persons.” The broad powers extended to the patrol authorized them to force open the doors of free Negroes when access was denied. The opposition to non-slaveholders to uncompensated service Laws on Free Negroes in the Republic and Statehood Periods

[ 121 ]

patrolling their rich neighbors’ slaves, and differences among the slaveholders themselves, made impossible the framing of a bill which would satisfy all factions and the several attempts met with no success until after annexation.36 The criminal code when completed discriminated against the free Negro by prescribing special offences and more severe punishment for common crimes.37 In accordance with the constitutional declaration against cruel and unusual punishment, the penalties for Negroes while more severe in degree did not vary in kind. Whipping, branding, imprisonment, fines and hanging were usual punishments for black and white alike. Additional offences and increased punishment did not actually work a hardship on Negroes, since they were peaceable residents, and their offences few.38 In social matters, legislation definitely impressed Negroes with their own inferior status. By arbitrary ethnological definition persons were prohibited from “obeying the divine precepts and laws of morality” since they could not legally marry those whom they took “in the fervour and integrity” of their desires if those persons happened to be on the opposite side of an unscientific color line.39 The principle was morally justified by the notion that amalgamation of the races would inevitably lead to disease, decline and death. The existence of the mulatto was living evidence that the ostensible design of the law to prevent miscegenation failed. By illegitimating offspring, persons with African blood were prevented from coming into inheritances. The white parents’ release from all responsibility prevented, in some cases, the formation of emotional ties and thus preserved the cleavage between the races. The same irresponsibility, doubtless, increased the mixture of white blood into the Negro race. Previous to the enactment of the statute penalizing mixed marriages, free Negroes of the highest social standing showed a preference for white wives. William Goyens, in 1832, was living “happily together with a white woman from Georgia.” The couple were “considered as very respectable,” and the marriage was approved by two brothers of Mrs. Goyens who “appeared well satisfied with their coloured brother-in-law.”40 Hendrick Arnold, immediately after the Revolution, married his captain’s daughter by his Mexican wife,41 and Arnold’s daughter by a previous Negro wife followed her father’s example in hybridizing by taking a Mexican husband.42 Although David L. Wood was indicted under the law for marrying a Negro woman,43 the passage of the statute did not result in rigid prosecution. Samuel McCullough, Jr., on August 11, 1837, two months after the law was enacted, married Mary Lorena Vess, the white daughter of “jonathan Vess, one of Austin’s old colonists,” and she remained married to him with impunity from the law long enough to bear him at least three children, and until her death in 1847.44 Other cases of white men marrying free Negro women are not lacking. Andrew Bell’s [ 122 ]

The Laws of Slavery in Texas

sister, Louiza, married David Towns;45 Eliza and Louisa Gowns, like their mother, married white men.46 These unions had the effect of diminishing the already inadequate supply of eligible free Negro women for men of the same status. Deprived of women of their own class, many free Negro men remained bachelors, but others contented themselves with slave wives. The obvious disadvantages of such an arrangement were somewhat offset by the fact that the husband was not only relieved of the responsibility of supporting his family, but also he might secure work or engage the protection of his wife’s master in time of need. Pleasant Bious, for example, “who had a wife and children who are slaves and therefore cannot go with me to any other Gover[n]ment,” made this his plea for permission to remain, and although his wife’s master is unknown, his name is doubtless among the endorsers of the petition.47 For the most part free Negro marriages to slaves were dictated by the paucity of free Negro women rather than by a desire to avoid responsibility, and such marriages did not preclude true affection. Richard R. Barkeson was a free Negro who on occasion worked for Mirabeau Lamar. When his wife and child were offered for sale for $1,400, he pleaded with the General to purchase them and offered to bind himself “by any papers to you you may think proper” because “in serving you I should be well aware to have a Master who would protect them under his care.”48 In addition to national legislation, Negroes were subject to special regulations by city ordinances which interfered with their freedom of person and may have hindered them in their business as well as in social life. A Galveston ordinance, for example, prohibited free Negroes as well as slaves from being “found abroad at unseasonable hours of the night.” No free Negro was allowed on the streets after the untimely hour of eight o’clock unless he had a permit from some responsible person, and in no case was he to be out-of-doors after ten o’clock.49 Many of the personal indignities which free Negroes suffered were the result of ingrained prejudice and could not have been remedied by law. When in appreciation of her many kindnesses white women visited “Puss,” the Negro wife of John Webber, they did not meet her as an equal. “At such times she flew around and set out the best meal which her larder afforded; but neither herself or her children offered to sit down and eat with her guests, and when she returned the visit she was set down in the kitchen to eat alone.”50 Pleasant Bious complained of more serious discrimination. He asked to be “protected by the Laws of the Country from the many wrongs and abuses which he has heretofore suffered, from those who is disposed to use the power of the Law or abuse your petitioner because he is Black and of the African race (though Free).”51 Even if the law were violated in the abuse of Negroes, the exclusion of Negro testimony made it necessary for ill treatment to be witnessed by white men willing to testify, an Laws on Free Negroes in the Republic and Statehood Periods

[ 123 ]

obvious difficulty, and even then it might be prudent for the Negro to suffer the abuse silently rather than attempt to prosecute a white man. The courts did protect free Negroes from flagrant abuses when given an opportunity. Jesse Benton committed assault and battery upon Eli Williams, a free Negro, and Williams sued Benton for damages in the district court of Harris county on January 15, 1840. In answer to Williams’ petition, Benton filed a plea, first of justification, and second, that Williams was of African descent and “not entitled by law to maintain his action, except by his guardian or next friend.” Williams demurred to the second plea and was sustained by the court, and the trial proceeded on the first plea of justification. The jury found Benton’s attack unwarranted and returned a judgment in favor of Williams. Benton appealed the case to the Supreme Court on the ground that the lower court erred in sustaining Williams’ demurrer to his plea that free Negroes could not sue in court. The Supreme Court, reviewing the case in 1843, was unable to find any authority to sustain the principle that free Negroes could not sue white men. The only possible ground, the Court decided, upon which such an argument could be based was their exclusion from citizenship. “But we cannot conclude that because they are not entitled to particular privileges, they are, while actually residing in our country, out of the pale of the protection of the law, and that injuries and aggressions may be wantonly committed on their persons and property, and that when they ask for a redress of such grievance, they are to be told that the courts of justice are closed against their complaints. We cannot, by sustaining the defendant’s plea, establish a principle which we regard against law, contrary to the spirit of institutions, and in violation of the dictates of common humanity.”52 The right of free Negroes to sue, affirmed by the Supreme Court in this case, was not brought to question again and seems to have been taken as a natural right in litigation previous and subsequent to Benton’s objection. In 1837, James and Sylvia, free people of color, sued for the freedom of their child held by Radford Berry and his wife as a slave. In the first trial the jury disagreed, in May, 1841, the case was continued by agreement, and a year later the jury decided that Sylvia’s child was a slave. The right of a Negro to sue, however, was never questioned.53 Similarly, in 1839, William Goyens sued Patricio De Torres for debt, and two years later he sued the board of land commissioners for title. The government raised no objection to the suit of a Negro against its white officers.54 The aid which white men offered free Negroes was by no means confined to modification of the law. The large segment of this population which depended upon employment for their livelihood relied upon the good will and satisfaction of their white employers. These employers in turn showed themselves well disposed toward free Negro workers and often were helpful in finding use for them. Samuel A. Roberts of Mobile, Alabama, advised Thomas McAllister, a [ 124 ]

The Laws of Slavery in Texas

free man of color, to go to Texas “to better his fortune,” sending him with a letter of introduction to Mirabeau Lamar. In this letter McAllister was described as “remarkable for his intelligence industry & strict honesty.” “I have particularly advised him to go first to you,” wrote Roberts to Lamar, “thinking you might need some one to take charge of your household affairs—one who could get up and attend to your dinners (particularly when you have company) and keep everything about in order. If you need such a man I am confident you can find no one more competent to the task—He has been head waiter in several large Hotels in mobile & for the last four years Steward on board of the best packet Steam boats on the Alabama at a salary of $75 per month—and in any situation given entire satisfaction—Should you not want him you may safely recommend him to any of your friends . . .” Roberts intended to follow McAllister to Texas, and requested of Lamar that “Should Thomas want any pecuniary aid before my arrival if not inconvenient to you I hope you will assist him. I will repay any sum not more than four or five hundred dollars you may advance him. I shall take out with me means of his to something like this amount.”55 Although Negroes, doubtless, gained employment because they worked for less than their white competitors, continued service is ample evidence that they performed their work well. Menial workers like washerwomen were kept busy if not prosperous and were able to acquire “a little property,”56 while skilled workers like Andrew Bell, a brick mason, found his services were valuable for the improvement of the country, and had no difficulty in securing work.57 Likewise, Mary Madison, although she illegally entered the Republic, was permitted to remain unmolested and without formal exception from the law because she was a good nurse and the “services she has rendered . . . to the sick” were of “immense value to the community.”58 Free Negro orphans seemed to have little difficulty in securing homes and parental care during their minorities. Albert Mitchell was taken into the home of John M. Clifton with a legislative order to regain full freedom when he reached the age of twenty-one,59 and Marthan Moore, a fourteen-year-old orphan daughter of Violet Hamblet, a free woman of color, by her own consent and court decree was placed in the home of Mrs. Jane Harris to remain until she was twenty-one, meanwhile compensating Mrs. Harris with her labor.60 Adolphus Sterne hired white and Negro draymen without distinction for which he paid them “One fourth the Produce (Corn, Potatoes, etc.) the Hawl,” and in the process of hiring William Smith, a free Negro, gained enough confidence in him to sell him a house and a piece of land “for $400 payable half in 12 months and the other half in 24 months,” putting him in immediate possession of the place.61 Sometimes Negroes were aided by white men in establishing enterprises in Laws on Free Negroes in the Republic and Statehood Periods

[ 125 ]

direct competition with other white men. Joseph Hutchinson complained that William Ashworth “is trying to Establish a ferry at Beaumont whair my Wifes ferry is and Frederick W. byden & others are assisting him But Ogden is the principal & A part of my Gardon was on them Lotts But Ogden stated the other day that He ogden had Bought them Lotts from the Grigsbays, and ordered A Man to Teare Down the fence and Erect a Cowpen for the purpose of Swimming cattle and which pen by Ogden Said Wm Ashworth should have the use of from him.” Hutchinson wanted to buy the lots on reasonable terms if they were not already sold to Ogden for the use of Ashworth. “Theire reason for wanting the Lotts on the bank of the river in Beaumont is to own Land on Both sides of the River and by that Means Breakup my Wifs Ferry.”62 The success of the free Negro in business depended upon white patronage and from the number and variety of enterprises in which they engaged neither seemed to show any aversion to dealing with the other. Carey, after buying his freedom from Thomas F. McKinney, engaged in the livery business in Galveston, renting out horses and buggies.63 James Richardson in his inn midway between Velasco and San Luis was patronized sufficiently to make a satisfactory living and at the same time enjoy a Negro bent for oystering and boating which he no doubt learned in Philadelphia. He was guaranteed a monopoly of the business since his inn was located at a place where a white man equally serviceable could not be expected to survive.64 Several Negroes showed remarkable business acumen. Peter, the manumitted slave of Wyly Martin, with his horse and wagon and by trading in farm products “accumulated a fortune of perhaps $16,000.”65 William Goyens’s wealth was based upon his blacksmith shop, the actual labor in which he relegated to slaves and hired white men while he himself engaged in land deals, amateur detective work, racing horses, and litigation in connection with his variegated business and social activities.66 As might be expected, not all Negro businesses were continually successful. Greenbury Logan previous to the Revolution was a blacksmith. In storming Bexar he received a wound in his shoulder through which he “almost entirely lost the use of his right arm,” incapacitating him for his trade. He and his wife, Caroline, in the following years displayed considerable versatility without achieving permanent success. They opened a boarding house, tavern and retail store in Brazoria sometime in 1836 or 1837, and apparently got along well for a time. In 1839, they owned four lots in Brazoria valued at $3,100, a year later they owned but three, and in 1841, Logan, impoverished and in debt, was forced to ask the government for a pension in the form of a remission of taxes in order that he might not lose the little property he had left. Two years later he tried his hand at farming, at the

[ 126 ]

The Laws of Slavery in Texas

time owning nine work horses and twenty-eight cattle, but apparently had little success, as in 1845, he owned no taxable property.67 Throughout the South, Negroes showed a great proclivity for the barber trade, and in Texas more were engaged in that business than in any single occupation except farming. Nelson Kavanaugh dignified his agility with the razor as a profession;68 Thomas Cevallos was “by trade a barber, but by inclination a soldier, and between expeditions found time to practice his trade in Bexar.69 Henry Tucker acted “in the capacity of a Barber, and as such gives entire satisfaction to a respectable and numerous patronage” including George W. Hockley, sometime acting secretary of war; Ashbel Smith, George Fisher, Henry Foote, J. B. Ransom, and A. C. Allen, founder of Houston.70 Ingles Oliver to gain a livelihood made a rare combination of following “his vocation of Baking and Barbering.”71 In the first capacity he competed with John Bird’s wife, Charity, who supported herself “by baking cakes and vending them.” She sold her cakes in quantities sufficient to defray the expense of a vacation spent with old friends in the United States.72 The inability of Negroes to collect debts in the courts at a time when most business was done on credit constituted a considerable deterrent to increased business activity. Although they had the right to sue, they could not bear witness against their white debtors but were forced to hire the services of a white man. Oftentimes, doubtless, it was more advisable to suffer the loss than attempt a lawsuit, and the general tendency was to delay action in the hope that debts would be amiably settled. Andrew Bell delayed until 1848 his attempts to collect two old debts contracted during the Republic. One was a six months’ note for twenty-eight dollars for a rifle gun sold to Stephen Richards, overdue since October, 1845; the other a revolutionary war claim of seventy-five dollars “against the government of Texas for a horse, saddle and bridle for which I took a Receit from John S. Roberts, acting quartermaster . . . that I have lost.” Bell sent his claims with his instructions to Dr. James H. Starr, who apparently was in the habit of accepting such business. “If you can possible collect . . . you will plas after paying your self out of it gave the balance to my sister—Louiza Towns—.” Bell complained, “I have nothing to say in state business being a poor black man therefore I am compelled to get some person to act for me and my choice is you above all other in that place.”73 Starr evidently informed Bell that Richards had died, and that he had little chance of collecting his claim against the State, probably because he had lost his receipt. Bell took his losses philosophically. “As far as regards my claim against the State of Texas I have no idea that I shall be able to get eny thing for it and that has always bin my opinion . . . you will pleas to commit the note [of Stephen Richards] to flames if [you] cant collect it and that ends the matter.”74 Henry Lynch, a barber, evidently ran accounts for his customers. In petitioning Laws on Free Negroes in the Republic and Statehood Periods

[ 127 ]

Congress he prayed that if he could not remain permanently he might be given time “to collect money due him for his labor,” as he could not otherwise “raise the means now of returning” to Alabama. The full effect of the unequal rights in the courts might best be judged by the use of them made by one free Negro in the course of his business. In the ten-year period previous to the establishment of the Republic, William Goyens had been a party to some thirty suits, in half of them as plaintiff; appeared as a witness in two others; and at least on one occasion acted as attorney.75 In addition he was accustomed to serving as arbitrator in the courts according to Mexican usage.76 Under the Texas Republic he was not even permitted to present his own testimony. In the way of intellectual attainment, William Goyens was perhaps the outstanding character. His frequent legal disputes had made him familiar with Mexican law, and he seemed to be in his element bearing witness, making depositions, filing pleas and coming to ponderous judicial decisions in the capacity of arbitrator. He wrote reasonably well and with equal fluency in English and Spanish, and could speak several Indian languages including Cherokee, a fact which frequently caused him to be called upon by his country to negotiate Indian treaties. Other Negroes were described as remarkable for their intelligence, and a number of them, as we have seen, were able to write letters. The Republic maintained no schools, precluding official discrimination against the Negro. Apparently no objection to the formal education of Negroes was raised, perhaps because it was not attempted. The difficulty attending an investigation of intelligence in a group for the most part inarticulate is equally great in discovering religious qualities. Early church records contain the names of numerous slave members, but no free Negroes. Services for white persons and Negroes were generally held separately, and often the slaves of a single plantation constituted a congregation.77 That they were welcomed in neither group and were nowhere numerous enough to have their own services probably explains the absence of any record of their attendance or membership. Edmund J. Carter, who came to Texas in 1837, held to “the doctrine of Election and the final perseverince of all Saintes through grace to glory and Baptism by immersion and that believers are the only subjects,” brought with him an honorable dismissal from the “Baptist Church of Christ at new hope,” Arkansas, which was to become effective as soon as he was “Joined to another Church of the Same faith and order” in Texas.78 Brother Carter, doubtless, could find no organization in Texas willing to accept a free Negro communicant. Occasionally Texans expressed fear of a slave revolt led by free Negroes and abetted by abolitionists, designed to overthrow the government and destroy slavery.79 In order to allay this want of confidence in his patriotism and to demonstrate his unqualified adherence to the government, Nelson Kavanaugh in [ 128 ]

The Laws of Slavery in Texas

his plea to remain in Texas declared that he was “no friend of the abolitionists who he is well aware more than even the ill conduct of some of his colour and condition have drawn down upon us the ban of the Republic.”80 At no time did the Republic officially doubt the loyalty and courage of Negro soldiers and sailors who were regularly enlisted and fully armed and equipped. Immediately after San Jacinto a number of them remained in the standing army and when danger of Mexican invasions or Indian raids threatened the country free Negroes were generally among the volunteers.81 At all times free Negroes were in more or less obvious danger of losing their liberty. Those who gained their freedom by flight, protected by no statute of limitations, were subject to recovery by their owners after long periods of enjoying freedom. In 1841, A. Briscoe inquired of E. L. R. Wheelock about “a reputed free negro ‘Jarret Young’ . . . [who] obtained land as a colonist in the Nashville Colony in 1834 or ’35.” Briscoe had reason to believe Jarret belonged to his father and was intent upon recovering him despite his six years of emancipation and obvious success as a freeman.82 Runaway Negroes, doubtless, lived their whole lives fearing they might meet their former masters at every turn. Not only were escaped slaves liable to recapture but those legally free might be seized on fraudulent claims and enslaved by law. Free papers were by no means conclusive evidence that Negroes were entitled to their freedom. Henry Forbes admitted on the gallows that his had been forged by a white man,83 and runaway slaves able to write were in no need of white men’s collusion. When Ben, a dark mulatto slave, ran away his master gave notice that “He will no doubt pass for a free man,”84 and James Doswell advertised that two Negroes who ran away from his plantation in Mississippi might be heading for Texas and “passing as Free men.”85 In the process of recovering slaves alleging themselves to be free, Negroes actually free might have been enslaved. An advertisement in 1838, illustrates a situation where a fraudulent claim to ownership could easily have been recognized and enforced. Robert Stevenson, the sheriff of Washington county, arrested Palmer Jackson, who “says . . . he was brought out to Texas in September last in a small whale boat by Mr. Robert Bushare [of Attakapas, Louisiana], that he has been living in Houston ever since he arrived in Texas and that he is a free man.” The distrust in which the sheriff held this Negro and the ease with which Palmer Jackson might be fraudulently claimed as a slave, is indicated by the fact that the sheriff added to his notice, “The owner can have him by applying to me and paying expenses.”86 In addition to the possibility of being reduced to slavery by law, free Negroes faced the danger of being seized without legal pretence and sold into slavery. “There lived in Yocum’s neighborhood an old Frenchman who had a negro woman for a wife, by whom he had a large family of mulatto children, among Laws on Free Negroes in the Republic and Statehood Periods

[ 129 ]

them several grown daughters. The Yocum’s, associated with Earpe Wingate and Col. Gravenor—who had at one time been a soldier at Fort Jessup, planned the killing of the old man, and taking his wife and children to western Texas, and selling them into slavery. Accordingly they approached the old man one night and murdered him, and burnt him in a log heap. Then they drove his family across the Sabine into Texas, and secreted them in the Palogacho bottom, about half a mile north of the main road leading from San Augustine to the Sabine, and placed them under a strong guard, while the others secured horses to carry them to West Texas where they were to be sold into slavery. But a few nights before they were ready to go they got drunk and one of the young women effected her escape, and made her way to the neighboring house and made known their dreadful situation. I think it was the house of David Renfro, as brave and honest a man as ever trod the soil of Texas. This brave man at once rallied his friends, and drove these villains out of the country, and helped the women and children to return to their homes in Louisiana.”87 Generally, abductions were done so furtively that they seldom attained record unless they failed. One successful attempt between 1835 and 1840 was uncovered by Joseph Hamilton, special British agent, who collected satisfactory evidence that Edward Hicks, a free Negro residing in Texas, was kidnaped and carried into the United States to be sold into slavery.88 The wealth and position of a free Negro did not deter seizures but on the contrary acted as an incentive. Bele (probably Bailey), an American, threatened to enslave William Goyens unless he paid him one thousand pesos. In order to raise the money, Goyens bought a negress from a Mr. Llorca (probably York), giving in exchange a note for five hundred pesos payable in property. He then turned the negress over to Bailey for his ransom and began to look up Santiago Leone to purchase on credit a piece of land to pay off the note. While thus engaged Goyens was recaptured and further ransom forced from him upon threat of taking him to New Orleans and selling him into slavery.89 Free Negroes were also deprived of their liberty by the old device of indenture which continued to be used during the Republic to enslave them. Again, we can only know of the efforts which failed, as complete success would necessarily leave no historical trace. In the latter part of January, 1840, the British sloop of war, Pilot, arrived at Velasco bringing Commander Joseph Hamilton of the Royal Navy to demand the recovery of eight British Negro citizens of the Windward Islands said to have been inveigled into Texas by John Taylor of the Barbadoes and sold for slaves.90 Lacking diplomatic channels, letters addressed to the “President or Officer Administrating the Government of Texas” were handed to the collector of the port for delivery to Mirabeau Lamar. Upon receipt of the communication of [ 130 ]

The Laws of Slavery in Texas

E. Murray McGregor, Governor of the Windward Islands, explaining Hamilton’s mission, David G. Burnet, acting Secretary of State, replied to Hamilton that the government “has no knowledge of any person of the character described being within its jurisdiction,” but admitted that the extensive seacoast and the imperfect organization of government conspired to expose some remote points to access by illicit traders. Burnet indicated the willingness of the Texas government to surrender any Negroes that Hamilton could positively identify as free men, and invited him to confer with President Lamar in Austin.91 Early in February, Hamilton conferred with Abner S. Lipscomb, Secretary of State,92 and Lamar issued a proclamation calling upon Texas citizens to aid Hamilton in his search for the free Negroes allegedly held as slaves.93 Two months later Hamilton actually recovered five of the Negroes, accounted for the other three and collected evidence which was to convict John Taylor for selling free Negroes into slavery.94 Three of the Negroes, Samuel Kedman, Henry Small and William Thomas, were found in the possession of Joseph Grigsby; April Sashly and Edward Whittaker were recovered from Judge A. B. Hardin and William Moore, respectively. Edward Hicks, who was originally in the possession of Moore, had been kidnapped and carried into the United States; William Gunsil had been accidentally drowned, and another Negro, unnamed, who was originally left with David Garner, had been sold in Louisiana.95 Although most free Negroes were never actually disturbed in their residence, the fear of summary banishment hung heavily over their heads. The rights of even the most favored group were fixed by statute rather than by the constitution. Their status, therefore, was subject to change according to the capricious action of a single Congress. Until June 5, 1837, these Negroes lived upon the sufferance of the white population. On that day they were given the right to remain permanently, only to see themselves deprived of all their rights on February 5, 1840, when they received two years notice to quit the country. On December 12, of the same year, their residence rights were restored, to be retained for the duration of the Republic. These Negroes, nevertheless, were at the mercy of some incident which might move Congress again to deprive them of the right to live in Texas. On February 5, 1840, Negroes who had immigrated between the declaration of independence and that day were given two years to leave the country. At the expiration of that time by presidential proclamation they were permitted to remain an additional year, and during that year by the same process they were allowed an additional two years. After February 5, 1845, they were at all times subject to ten days notice to leave the State. Negroes who came to Texas after February 5, 1840, as illegal residents were always subject to the same ten days notice to take themselves out of the Republic upon penalty of sale into slavery. Until January Laws on Free Negroes in the Republic and Statehood Periods

[ 131 ]

10, 1843, no Negro had any guarantee that his property rights would be respected, and after that date by private act only a few were given security in their holdings. That so many of them were able to achieve social respectability and economic independence becomes more remarkable in the light of this continual uncertainty which permeated their whole life and constituted perhaps their chief handicap. The study of the free Negro in the Republic of Texas leaves us with two opposing pictures. One is drawn from generalizations of contemporaries depicting a theoretical attitude toward the group in which the Negro is described as irresponsible, disreputable and worse than useless because vicious and dangerous. The other sketch is inductively drawn from particularizations of contemporaries describing practical attitudes toward individual Negroes in which they are uniformly portrayed as responsible, reputable and useful because industrious and peaceful. These anomalous attitudes reflect the two current opinions on free Negroes which Texans were never able to reconcile. Their interest and inclination as private citizens was invariably to look with favor upon those whose labor they might use to advantage. As public citizens, however, these same men were apprehensive lest the contact of free Negroes would lead slaves to dissatisfaction, insubordination and finally to insurrection. The attitude toward the class resulted from impersonal encounters and was embodied in the general laws; that toward the individuals grew out of personal contacts and was enacted in numerous private laws or more often, expressed itself in an unwillingness to enforce the general laws. In whatever connection the problem of the free Negro was brought under consideration, these two diverging views were certain to be presented. To defend restrictions on manumissions we are told that freedom was a greater curse to the slaves themselves than the bondage in which they were held. In utter dispite of this assertion we are assured that the slaves were rendered discontent by witnessing the freedom of their colored brethren. At one time we are made certain that prejudice against color is implanted in our nature, at another that laws to prevent frequent mixed marriages are necessary to preserve that prejudice. On the one hand the white man censured the indolence and viciousness of the free Negro class, on the other he praised the thrift and sobriety of the individuals. At once the Negro is accused of ignorance and at the same time of possessing talents to execute the most complicated and deep-laid plots. While he is suspected of attempts to subvert the peculiar institution of slavery and destroy the State, he is honored for his courage and patriotism in defence of it. The class is charged with addiction to vice and petty crimes, the individuals esteemed for their virtuous and orderly lives. In a general condition described as one of poverty, degradation and misery brought upon themselves by an aversion to labor, [ 132 ]

The Laws of Slavery in Texas

we find the Negroes engaged in productive work and often achieving economic independence. To be at the same time disloyal and patriotic, indolent and thrifty, ignorant and talented, vicious and virtuous, obnoxious and harmless, wicked and worthy, destitute and prosperous is a paradoxical situation not infrequently met in human relationships because of the seeming necessity of men to be consistent with their principles. In the South and in Texas this necessity arose largely in defence of slavery. Every free Negro practically seemed to deny the principle that slavery was a boon for the Negroes, and every thriving one seemed to disprove the argument that if the Negro were set free he would starve rather than support himself. As one Texas Senator expressed himself, these facts swept away the strongest ground of slaveholders used in refuting the abolitionists. The disparaging generalities, doubtless, were designed to sweep away the facts and preserve the argument. The inability of the Republic to draw a more intelligent distinction between master and servant than one based on color alone precluded disinterested consideration of the question. As a sovereign slave-holding State, Texas demonstrated an inability to solve a problem confined to an insignificant portion of her population, never exceeding three hundred persons. Aid and protection based upon the whims and interests of white persons to particular Negroes in a class barred from equality was the solution offered by the Republic and bequeathed to the State.

Laws on Free Negroes in the Republic and Statehood Periods

[ 133 ]

Case Report

Jesse Benton v. Eli Williams, 1843 ★

Introduction Discrimination against free blacks following the independence of Texas extended to the denial of citizenship for the relatively few free persons of color who legally remained in the republic during the 1840s. However, when a white man argued that he could not be sued for damages in compensation for his assault and battery on a free black man because the latter was not a citizen, the Supreme Court of the Republic disagreed. The fact that free blacks are not citizens, Justice P. C. Jack ruled, does not place them “out of the pale of the protection of the law.” Such a ruling, the justice continued, would violate the “dictates of common humanity.” This 1843 decision, although it dealt with a free black, stated principles concerning the treatment of humans that case law related to slavery would reflect as well.

1. Negroes—could sue for injuries.—Persons of African descent under the republic, though not entitled to the rights of citizenship, were entitled to the protection of the laws; and such a person might sue for damages for an injury without the intervention of a next friend.

Eli Williams sued Jesse Benton in the district court of Harris county, to recover damages for an assault and battery alleged to have been committed by Benton on Williams. The defendant filed two pleas by way of answer to the plaintiff ’s petition. First, justification; and secondly, that the defendant ought not to be held to answer the complaint of the plaintiff in this cause, because “Eli Williams is of African descent, and not entitled by law to maintain his action, except by his guardian or next friend.” To this last plea the plaintiff demurred. The demurrer was sustained by the judge who tried the case below. The parties then went to trial on the other plea. There was a verdict and judgment for the plaintiff, from which the defendant appealed. He now seeks to reverse the judgment of the district court on the ground of error in sustaining the plaintiff ’s demurrer to his plea. This is the only question that we are required to decide. The case has been [ 134 ]

The Laws of Slavery in Texas

submitted to us without argument or brief, and we have been unable from the books in our reach to find any authority to sustain the principle of law, as contended for in defendant’s plea. The only grounds upon which we suppose the counsel of the defendant could have based an argument are to be found in the constitution, in which is to be found the following: “The descendants of Africans shall not be permitted to remain permanently in the republic without the consent of congress;” nor are such persons entitled to the rights of citizenship. But we cannot conclude that because they are not entitled to some particular privilege, they are, while actually residing in our country, out of the pale of the protection of the law, and that injuries and aggressions may be wantonly committed on their persons and property, and that when they ask for a redress of such grievances, they are to be told that the courts of justice are closed against their complaints. We cannot, by sustaining the defendant’s plea, establish a principle which we regard against law, contrary to the spirit of our institutions, and in violation of the dictates of the common humanity. The judge below correctly sustained the demurrer to the defendant’s plea. The judgment of the district court must be affirmed. We have declined giving an opinion on the appellee’s motion to dismiss, because we thought the ends of justice would be as well obtained by a decision on the merits, which was also submitted. Opinion delivered by Judge P. C. Jack, and concurred in.

Source: James Wilmer Dallam, comp., Opinions of the Supreme Court of Texas (St. Paul, Minn.: West, 1883), 223–224.

Laws on Free Negroes in the Republic and Statehood Periods

[ 135 ]

★ CHAPTER FOUR

Laws on Slavery and Freedom in Confederate and Reconstruction Texas, 1861–1874 ★

SECESSION CONVENTION OF TEXAS A DECLARATION OF THE CAUSES WHICH IMPEL THE STATE OF TEXAS TO SECEDE FROM THE FEDERAL UNION

February 2, 1861 ★

Introduction The election of Abraham Lincoln to the presidency in November 1860 led quickly to Texas’s secession from the United States in February 1861. Over the years, many have insisted that the issue of states rights brought on secession and the war that followed. However, a reading of the explanation of disunion provided by the secession convention gives compelling evidence that the immediate and underlying cause was slavery. Although not literally a part of the law of slavery in Texas, the declaration of causes is a clear indication that the majority of Texans believed that a national government led by an antislavery president would attempt to deny their institution the legal protections necessary for its survival. For that reason, they attempted to leave the United States.

Excerpt from the Declaration ... Texas abandoned her separate national existence and consented to become one of the Confederated States to promote her welfare, insure domestic tranquility and secure more substantially the blessings of peace and liberty to her people. . . . She was received as a commonwealth holding, maintaining and protecting the institution known as negro slavery—the servitude of the African to the white race within her limits—a relation that had existed from the first settlement of her wilderness by the white race, and which her people intended should exist in all future time. . . . We hold as undeniable truths that the governments of the various States, and of the confederacy itself, were established exclusively by the white race, for themselves and their posterity; that the African race had no agency in their establishment; that they were rightfully held and regarded as an inferior and

Laws on Slavery and Freedom in Confederate and Reconstruction Texas

[ 137 ]

dependent race, and in that condition only could their existence in this country be rendered beneficial or tolerable. That in this free government all white men are and of right ought to be entitled to equal civil and political rights; that the servitude of the African race, as existing in these States, is mutually beneficial to both bond and free, and is abundantly authorized and justified by the experience of mankind, and the revealed will of the Almighty Creator as recognized by all Christian nations; while the destruction of the existing relations between the two races, as advocated by our sectional enemies, would bring inevitable calamities upon both and desolation upon the fifteen slave-holding States. By the secession of six of the slave-holding States, and the certainty that others will speedily do likewise, Texas has no alternative but to remain in an isolated connection with the North, or unite her destinies with the South.

Source: E. W. Winkler, ed., Journal of the Secession Convention of Texas, 1861 (Austin: Texas Library and Historical Commission, 1912), 61–62, 64–65.

[ 138 ]

The Laws of Slavery in Texas

The End of Slavery in Texas: A Research Note Randolph B. Campbell ★

Introduction In researching An Empire for Slavery, I learned that although by the end of 1865 virtually everyone in Texas knew that slavery and its attendant laws had come to an end across the state, the legal death date of the institution remained a subject of contention for nearly a decade after the ownership of human property ended. Did slavery end legally on January 1, 1863, when President Abraham Lincoln announced the Emancipation Proclamation; or on June 19, 1865, when federal troops occupied Texas; or on December 18, 1865, when the Thirteenth Amendment was ratified? Each date could work to the financial advantage or disadvantage of persons who had signed contracts involving slaves as property after 1863, and therefore the courts ultimately had to settle the question. I wanted to close An Empire for Slavery with the story of emancipation on Juneteenth, the date that quite properly won out as the legal death date of slavery. However, I wanted to point out that what might be called the “long arm of the law of slavery” reached into the mid-1870s, and used this research note in the Southwestern Historical Quarterly for that purpose.

B

lack Texans celebrate the end of slavery on June 19, or Juneteenth as it is popularly called, because Major General Gordon Granger arrived at Galveston on that day in 1865 and proclaimed the freedom of all slaves in the Lone Star State.1 His General Order Number 3 reads as follows: The people of Texas are informed that, in accordance with a proclamation from the Executive of the United States, all slaves are free. This involves an absolute equality of personal rights and rights of property between former masters and slaves, and the connection heretofore existing between them becomes that between employer and hired labor. The freedmen are advised to remain quietly at their present homes and work for wages. They are informed that they will

Laws on Slavery and Freedom in Confederate and Reconstruction Texas

[ 139 ]

not be allowed to collect at military posts and that they will not be supported in idleness either there or elsewhere.2

Granger’s order was not immediately effective, of course, but most slaveholders became aware of it and freed their bondsmen during the summer of 1865.3 Thus June 19 quite properly became the symbolic day of jubilee for slaves in Texas. For many slaveholders, however, the great majority of whom saw nothing to celebrate anyhow, the date was more important in another way. Was June 19, 1865, they asked, the proper legal as well as symbolic death date of slavery in Texas? Perhaps, as Granger’s proclamation could seem to suggest, slavery had been illegal since the Emancipation Proclamation of January 1, 1863. On the other hand, was it possible that slavery was legal until the Thirteenth Amendment became part of the United States Constitution on December 18, 1865? This question was important to slaveholders because of its bearing on contracts involving slave property that had been signed during the Civil War. In spite of the Confederacy’s waning fortunes as the conflict progressed, Texans continued to deal in slaves as personal chattels until the bitter end. As late as August 4, 1864, for example, David Black of Red River County used land to purchase a slave from M. S. Algier. And, difficult as it may be to believe, John H. Brooks of San Augustine County signed a note on July 5, 1865, promising to pay William Garrett $400 in gold for a Negro man named Miles. Slave-hiring agreements were also common during the war’s last stages. For example, P. Williams and H. J. Meadow executed a promissory note on January 1, 1865, agreeing to pay Henrietta Arnis of Cherokee County $700 in “current funds” on January 1, 1866, for the hire of three Negroes, two men and a woman, for twelve months.4 The end of slavery in Texas obviously destroyed the property interests of those who had recently bought or hired Negro bondsmen. Some sought the return of the money or property they had used to buy or hire, and others refused to honor contracts calling for payment in the future. In both situations, the matter soon wound up in state district courts with the question of slavery’s legal death date as a central issue. By the spring of 1867, appeals on these legal actions began to reach the Supreme Court of Texas for a final decision. Williams v. Arnis was the first case involving the legal end of slavery to be decided by the Texas Supreme Court. As mentioned above, P. Williams and H. J. Meadow had promised on January 1, 1865, to pay Henrietta Arnis $700 twelve months later for the hire of three slaves. They refused to pay, whereupon Arnis instituted a suit for the hire money. Williams’s defense began with the argument that the “note was fraudulently procured” because the slaves “were not her property” to hire “but were freed by the proclamation of the President of the United States on the 1st of January, 1863, and which proclamation has since been con[ 140 ]

The Laws of Slavery in Texas

firmed by the amendment to the Constitution of the United States.” The District Court of Cherokee County ruled in favor of Arnis, a decision that was affirmed by the Texas Supreme Court in a decision written by Justice George W. Smith. The higher court did not, however, find it necessary to rule on the contention that the slaves were free because of the Emancipation Proclamation. Whether they were free or not, Smith wrote, they went into Williams’s employment in 1865, and he had not proven that he had been deprived of their labor under the terms of the contract. The court’s decision suggested that slavery had continued in effect in Texas after January 1, 1863, but, more than two years after Juneteenth, there was still no definitive statement of slavery’s legal death date.5 Two cases, Hall v. Keese and Dougherty v. Cartwright, that came before the court in its October 1868 session in Austin finally forced Chief Justice Amos Morrill and his colleagues to face the question squarely. Known collectively as the Emancipation Proclamation Cases, one suit arose from a promissory note given to purchase a slave in January, 1865, and the other from a note given to pay for the hire of a bondsman for 1865. Chief Justice Morrill, joined by justices Livingston Lindsay and Albert H. Latimer, ruled that Lincoln’s proclamation was a “war measure” that “did not operate presently upon the slaves.” The Negroes in question were slaves in January, 1865, when the notes were executed, Morrill wrote, and there was nothing illegal in the transactions. As to the fact that freedom came later that year, he was of the opinion that “each party had the same means of knowing the future condition of the slave, and acted upon his own ideas as to the result of the war.” Pecuniary losses fell upon the owners of slaves at the time of their emancipation. In one case, the purchaser was the loser, and in the other, while the owner lost his slave, the hirer was obligated to pay the note he had signed.6 Morrill’s majority opinion thus stated that the Emancipation Proclamation did not end slavery in Texas, but it referred only generally to a time of emancipation. The use of Juneteenth as the specific date appears first in the concurring opinion of Justice Lindsay. His statement, as summarized in the Texas Reports, cut to the heart of the matter: The proclamation could not, proprio vigore, manumit the slaves. It required the power of the conquering forces. The liberation in Texas took effect from the date of the surrender of the insurgent forces, and the proclamation of that fact by the commanding general, dated 19th June, 1865. By general understanding, that was the day of jubilee of the freedom of the slaves in Texas. Until this final surrender in Texas, the traffic in slaves was lawful.7

Lindsay added the opinion that the Thirteenth Amendment was not necessary to Laws on Slavery and Freedom in Confederate and Reconstruction Texas

[ 141 ]

destroy slavery in Texas. As George W. Paschal wrote in summing up Lindsay’s words, it merely “finished the work throughout the entire nation.”8 Justices Andrew Jackson Hamilton and Colbert Caldwell disagreed with the majority and presented a lengthy dissenting opinion written by Hamilton. Lincoln’s proclamation, he wrote, was “warranted by the laws of war,” and it expressed the will of the United States government that all slaves in the rebel states be freed on January 1, 1863. “The proclamation depended upon the success of the arms of the United States,” according to Hamilton. “But they did succeed,” as Paschal wrote in his summary of Hamilton’s remarks, “and that gave it effect from its date.” In Hamilton’s opinion, then, any traffic in slaves after January 1, 1863, was illegal and neither party to contracts involving bondsmen was entitled to any relief. He did agree with the majority that the Thirteenth Amendment applied to areas not embraced by Lincoln’s proclamation.9 The majority opinion in the Emancipation Proclamation Cases of 1868 largely settled the matter of slavery’s legal death date in Texas. In 1869, the state supreme court reversed the decision of a district court in Red River County that had set aside a contract dated August 4, 1869, that traded land for a slave. The lower court had held that slavery had ended on January 1, 1863; but slavery still existed in 1864, said Chief Justice Morrill, so “the credulity of the purchaser of the slaves, that they would continue such, however baseless to others, who had different views and notions, furnishes no cause for action.” Put more directly, the higher court would not deliver a purchaser from his own bad judgment. During the following year, 1870, Justice Lindsay used his own opinion from Hall v. Keese (1868) to reverse a lower court decision from Grimes County that a slave bill of sale dated January 5, 1860, could be set aside because the bondsmen were warranted “slaves for life.” Such a warranty was a proper guarantee of their legal status until June 19, 1865, Lindsay ruled, and never was a surety against future emancipation.10 During the Edmund J. Davis administration in Texas, from early 1870 to January, 1874, the state supreme court appeared somewhat reluctant to follow the precedents of the Emancipation Proclamation Cases. In Morris v. Ranney (1872), another case arising from a promissory note made for the hire of a slave, Associate Justice Moses B. Walker, a former Union army officer, praised the “consummate ability” of Justice Hamilton’s dissenting opinion in the landmark cases and found a way to rule without using the majority opinion as a precedent. The slaves, whether free or not, performed the services for which they were hired, he said, so the note had to be paid. “We will not,” he continued, “at this time disturb the previous rulings of the court, divided as it was, hoping that these difficult and troublesome matters shall soon cease to trouble the tribunals of the country.” The next year, Justice Wesley Ogden, a unionist born in New York, ruled in Dowell v. Russell that a promissory note for the purchase of a slave dated [ 142 ]

The Laws of Slavery in Texas

June 15, 1865, could be voided. “Without entering again into the discussion of the question when emancipation took effect in Texas,” he wrote, “or attempting to fix the precise date when that important measure went into operation, this court is unanimously of the opinion, that on the fifteenth day of June, 1865, African slavery had been abolished in the United States, and that negroes were no longer the subject of legal traffic.”11 The decision in Dowell v. Russell appears to have been essentially at variance with the majority opinion in the Emancipation Proclamation Cases and, in refusing to accept a specific date for the death of slavery, might well have opened the way for even further dispute over contracts involving slave property that were made late in the war. In January, 1874, however, Texas came under the control of a Redeemer governor, Richard Coke, and one of his appointees, Justice Thomas J. Devine, an ex-Confederate state judge, soon had an opportunity in Garrett v. Brooks to reaffirm Juneteenth as the legal end of slavery. The case involved a promissory note executed July 5, 1865, for the purchase of a slave. John H. Brooks, the purchaser, argued that slavery had ceased to exist on June 19, but William Garrett, the seller, claimed that only the Thirteenth Amendment had ended slavery in Texas. Justice Devine ruled in favor of Brooks, saying: “The date of General Granger’s order or declaration of the proclamation of Abraham Lincoln has been considered as the definite period from which the destruction of the right to hold slaves in Texas is to be dated.”12 In summary, then, Juneteenth is the proper legal as well as symbolic end of slavery in Texas. The state supreme court’s decisions establishing June 19, 1865, as the death date of negro bondage were based on a realistic, if legally arguable, position. Perhaps, as Justice Hamilton argued in 1868, the Emancipation Proclamation technically was effective from January 1, 1863, onward, but such reasoning would have ignored the de facto existence of slavery until the late spring of 1865. Moreover, a decision in favor of the earlier date would not in any case have had the effect that Hamilton appeared to want. He had insisted, as the report of his statement said, that neither party to “illegal” traffic in slaves after January 1, 1863, should “receive relief.” A decision to enforce the Emancipation Proclamation as the legal death date, however, would have given relief to one party just as surely as the use of June 19, 1865, gave relief to the other.13 Slaves as human chattels had been given all the protections that the laws of the United States typically extend to private property, and the legal implications of that situation could not be escaped immediately. Thus disputes over contracts constituted one of the ways, albeit a relatively minor one compared to racial and social questions, that the heritage of slavery maintained a hold on Texas after Juneteenth.

Laws on Slavery and Freedom in Confederate and Reconstruction Texas

[ 143 ]

Case Report

Emancipation Proclamation Cases W. M. Hall v. T. M. Keese, 1868 Dougherty v. Cartwright, 1868 ★

Introduction When did slavery, and therefore the making of contracts involving human property, come to an end legally in Texas? Justices on the state’s supreme court wrestled with that seemingly simple question for years after the close of the Civil War, and at times disagreed significantly among themselves in the process. Two cases decided in 1868 and known collectively as the Emancipation Proclamation Cases provide a good example. One involved a note signed in January 1865 for the purchase of a slave, and one arose over a note to pay for the hire of a slave for 1865. Once the slaves were freed, the men who signed the notes refused to pay on the grounds that Lincoln’s proclamation of January 1, 1863, had made such contracts illegal. Three justices agreed that slavery still existed in Texas in January 1865, thus making contracts entered into at that time legal. Chief Justice Amos Morrill’s opinion did not give a date for the legal end of slavery, but Justice Livingston Lindsay’s succinct concurring opinion did. The Emancipation Proclamation required the power of conquering armies to make it effective, he wrote; so the true “day of jubilee” in Texas came on June 19, 1865, when General Gordon Granger, commanding United States troops at Galveston, issued an order applying Lincoln’s proclamation to the state. Justice Albert H. Latimer concurred with Justices Morrill and Lindsay to create a majority, but two justices, Andrew J. Hamilton and Colbert Caldwell, dissented. Hamilton, a noted Unionist during the war, wrote at length to argue that all slaves in Texas were indeed freed by Lincoln’s proclamation and that all dealings in slave property after January 1, 1863, were illegal. The argument that June 19, 1865, marked the legal end of slavery would eventually prevail, but the Emancipation Proclamation Cases indicated that the issue remained strongly contested three years after the close of the war.

M [ 144 ]

orrill, C. J.: The constitution of the United States provides that “no person shall be deprived of . . . property without due process of law”; that

The Laws of Slavery in Texas

“congress shall have power to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;” “to raise and support armies;” and “make rules for the government of the land and naval forces.” So that if the people of Texas were citizens of the United States during the rebellion they could not be deprived of their property without due process of law. If they were a part of another state or a de facto government, and they and their property were captured by the forces of the United States, it belonged to congress and not the commander-in-chief of the army to make rules concerning those captures. In either case the proclamations, military orders, or whatever else they may be called, can have no force or effect upon any other than the men subject to the commander, unless such proclamations and orders are based upon an act of congress. The powers of government are distributed into three co-ordinate branches. There is no majesty except the majesty of the law. The right to condemn or confiscate the property of enemies rests not upon the declaration of war or upon modern usage, but legislative will, to be found in acts of congress; and if there be no such legislation, the power of condemnation does not exist. Livingston v. Moon, 7 Pet. 546; Brown v. The United States, 8 Cranch, 110. The power to declare war includes the exercise of all the ordinary rights of belligerents, and congress may therefore pass suitable laws to embrace them. But until laws of condemnation have been passed, no private citizen can enforce any such rights, and the judiciary is incapable of giving them any legitimate operation. But the congress of the United States have declared their will as to the disposition of slaves. As early as the 6th of August, 1861, and the 17th day of July, 1862, the congress of the United States passed “An act to confiscate property used for insurrectionary purposes,” and “An act entitled an act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes.” 11 Stats. 589. The 9th section of this last act provided, that, “All slaves of persons who shall hereafter be engaged in rebellion against the government of the United States, etc., escaping from such persons and taking refuge within the lines of the army, and all slaves captured from such persons or deserted by them and coming under the control of the government of the United States, shall be deemed captives of war, and shall be forever free of their servitude, and not again held as slaves.” This, as well as all the other sections of the act, was prospective, and the fourteen different sections of the act contain full and ample “rules concerning captures on land and water.” The congress, by this act, virtually negatives the power of any other branch of the government to do what the constitution authorizes that body alone to do. The act specially declares the slaves captives of war, and bases their freedom on the fact that their owners “were engaged in rebellion against the Laws on Slavery and Freedom in Confederate and Reconstruction Texas

[ 145 ]

government of the United States,” and it does not free any others. This same act, in the 7th and 8th sections, contemplated “due course of law” against the owners of the property, and of course the freedom of the slave was dependent upon the disloyalty of the owner, as found by the court. As the proposed XIIIth amendment to the constitution was passed by congress on the 1st day of February, 1865, and as it is to be presumed that the congress supposed that the requisite number of states would ratify it, which was really done previous to the 18th December, 1865, hence there was no necessity to convict their owners of treason to free the slaves. By this amendment not only the slaves of the disloyal, but of the loyal also, were free, and on the 18th of December, 1865, slavery ceased to exist, and freedom was established coextensive with the United States. This proclamation was a war measure, and did not operate presently upon the slaves. It was not founded in the constitution, and it was duly claimed for the commander-in-chief of the armies. In the case before the court, the vendor, in January, 1865, sold and delivered a slave to the vendee, who in consideration thereof executed a promissory note for the payment. In the other case, a slave at the same time was hired for a year, and a promissory note given in consideration of the hire. As there was nothing illegal in the transaction, the notes were not void for illegality. The consideration is represented as having failed. It is not pretended that at the time of the contract there was no consideration. Each party had the same means of knowing the future condition of the slave, and acted upon his own ideas as to the result of the war. That the cause which proved mortal to slavery would soon sweep over the land, was apparent to some and disbelieved by others. There was, however, no breach in the contract on the part of the vendor at the time of the sale. And though the vendor guarantied the subject of a sale, a slave for life, and the slave in the same year was made free by the superior power, inasmuch as at the time the sale was made he was a slave for life, yet, if his freedom was occasioned afterwards, not by the vendor, but by the sovereign power of the nation, the vendor did not violate his contract. The question is, who was the owner at the time the slave became free? “Res perit suo domino.” The pecuniary loss must be borne by those who were the owners of such slaves at the time of their emancipation; for the emancipation of the slaves during the year was the artificial death of the slaves, and operated as would their natural death; therefore the defendant is liable for the hire during the whole year. The loss in the other case was a vis major, and it fell upon the vendee, who was in possession, and not upon the vendor, to whom the note for the price was due. Lindsay, J., concurred. Slavery did exist in fact and in law until its overthrow [ 146 ]

The Laws of Slavery in Texas

by the actual force of the national arms. It originated in force; it was destroyed by force. The effect of the president’s proclamation was to liberate the slaves under the national control, and to pledge the faith of the government as to the remainder. The liberation was the effect of capture. The proclamation could not, proprio vigore, manumit the slaves. It required the power of the conquering forces. The liberation in Texas took effect from the day of the surrender of the insurgent forces, and the proclamation of that fact by the commanding general, dated 19th June, 1865. By general understanding, that was the day of jubilee of the freedom of the slaves in Texas. Until this final surrender in Texas, the traffic in slaves was lawful. The destruction of slavery was a vis major, and those in possession at the final application of the power had to sustain the loss. It is not conceded that the XIIIth amendment was necessary to destroy slavery in the revolted states. This was settled by the surrender. This amendment finished the work throughout the entire nation. The notes being given after the proclamation in 1863, but before the 19th June, 1865, were recoverable. Latimer, J., concurred. [The clerk informs the reporter that Latimer’s opinion had unfortunately been lost.] Hamilton, J., dissented. The real question is, was a sale of negroes in Texas after the 1st of January, 1863, opposed to the solemnly declared will and policy of the United States government, and had they the right, under existing circumstances, to declare such policy? If these questions are to be answered in the affirmative, then it is unnecessary to do more than add, that they should receive no aid from loyal courts to carry them into execution. By the terms of president Lincoln’s proclamation of January 1, 1863, the high purpose of the government was, in solemn form, made known to the citizens of the government and to the nations of the earth, that slavery should cease in the states and districts which it embraced, provided effect could be given to it by force of arms; and that this declaration of purpose was authoritative and warranted by the constitution as a measure of war, and was carried into full effect by the success of the national arms. From the fact of a civil war and a de facto government here in Texas, I deduce the right of the national government to declare and effect the emancipation of the slaves. War is that state in which a nation prosecutes its right by force. Civil war includes every war between one and the same political society. In such a war, the parties are forced to accord to each other the rights of belligerents; and to such wars the public laws of nations are in many respects applicable. Laws on Slavery and Freedom in Confederate and Reconstruction Texas

[ 147 ]

After the recognition of the Confederate States by the proclamation of the queen of England, of the 13th of May, 1861, as belligerents, a citizen of a foreign power is estopped to deny the existence of a war, with all its consequences, as regards neutrals. They cannot ask a court to affect a technical ignorance of the existence of a war which all the world acknowledges to be the greatest civil war known in the history of the human race, and thus cripple the arm of the government and paralyze its power by subtle definitions and ingenious sophisms. The Prize cases, 2 Black, 669. After quoting largely from the prize cases, the judge says: From these authorities, which I have so freely quoted, and from my knowledge of the character, magnitude, and duration of the war, the manner in which it was conducted by the parties engaged in the contest, with all the prominent incidents connected with it to its close—of which, as a matter of public history, I must take judicial knowledge—I am at no trouble to determine that it was a “civil war” of vast proportions, in which the contesting parties respectively were entitled to and were accorded all the rights of belligerents, according to the established law of nations; and, as resulting from this necessarily, that the successful belligerent may rightfully claim and exercise all the powers accorded to a conqueror under the laws of war. A government in fact was erected, complete in the organization of all its parts, with sufficient resources of men and money to carry on a civil war of unexampled dimensions. . . . The so-called Confederate States were in the possession of many of the highest attributes of government. The revolting states did practically, not legally, withdraw from the union by severing their political connection with it; they did expel from their limits the flag of the United States, her courts and officers, civil and military, and erected a new government in its stead, with a constitution, a president, a congress, a judiciary, and officers, state and confederate; organized vast armies, equipped and put them in the field, and for four years contested the palm of final victory with the United States on more than three hundred bloody fields, in a war which is admitted to have been the most gigantic of modern times. It is too late for those who were engaged on the Confederate side to insist now that they have always been in the union, and that, therefore, the condition of the revolting states has not been changed. It is too late for the United States to dispute the fact of secession, or a partial disruption of the government in the revolting states during the period of the war. In the meantime it must be remembered that the United States government lost none of her rights, authority, or jurisdiction over the territory and people of the insurgent states by reason of their withdrawal; she was only prevented by force for a time from exercising them. [ 148 ]

The Laws of Slavery in Texas

The rebellion was carried on in the interest of slavery. It was in fact a contest between freedom and slavery, and which demanded every energy and resource, which the executive possessed or could command to sustain even the existence of the government; and after long deliberation and advice it was determined to make war upon slavery. After reciting the preliminary proclamation of the 22d of September, the proclamation of the 1st of January, 1863, he proceeds: “Now, therefore, I, Abraham Lincoln, president of the United States, by virtue of the power in me vested, as commander-in-chief of the army and navy of the United States, in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion, do, on this 1st day of January, 1863, and in accordance with my purpose so to do, publicly proclaimed for the full period of one hundred days from the day first above mentioned, order and designate, as the states and parts of states wherein the people thereof respectively are this day in rebellion against the United States, the following, to wit” (then mentioning the states and parts of states, including Texas), proceeds: “And by virtue of the power and for the purpose aforesaid I do order and declare, that all persons held as slaves within said designated states and parts of states are, and henceforward shall be, free;” and then this noblest paper since the declaration of independence by our forefathers, and which, like that, was to be sustained and enforced at the cost of blood and treasure, concludes with this solemn assertion and invocation, “and upon this act, sincerely believed to be an act of justice, warranted by the constitution upon military necessity, I invoke the considerate judgment of mankind and the gracious favor of Almighty God.” The war powers in the constitution cited. It is a well-established rule of the public law of nations that “from the moment one state is at war with another, it has, on general principles, a right to seize on all the enemy’s property, of whatever kind and wheresoever found, and to appropriate the property thus taken to its own use or to that of the captors.” Lawrence’s Wheat. Int. Law. This proclamation of emancipation, thus warranted by the laws of war, fully expressed the will of the United States government, as a belligerent, upon the subject embraced in it. It was, that from and after that date the former slaves in the insurrectionary states and districts (including Texas) should thenceforth be forever free. The proclamation depended upon the success of the arms of the United States. But they did succeed, and that gave it effect from its date. After the proclamation, to engage in the traffic of slaves was to violate the public policy of the United States. It was an illegal dealing, about which neither party will receive relief. Laws on Slavery and Freedom in Confederate and Reconstruction Texas

[ 149 ]

The question here is, not as to the moment of time when the former slaves in Texas actually obtained their freedom by the events of the war, but it is whether now the courts will aid in carrying out and enforcing contracts against the public policy of the government, pronounced in the most solemn form, as both sovereign and belligerent, in a great civil war. The XIIIth amendment applied to those states and parts of states not embraced in the president’s proclamation. Caldwell, J., concurred in the dissent of Hamilton, J. ... Judgments affirmed.

Source: George W. Paschal, comp., Reports of Cases Argued and Decided in the Supreme Court of the State of Texas, during Part of Galveston Session, 1868, All of Tyler and Austin Sessions, 1868, and Galveston Session, 1869 (St. Louis: Gilbert, 1882), 31:482–487, 530.

[ 150 ]

The Laws of Slavery in Texas

Case Report

William Garrett v. John H. Brooks, 1874 ★

Introduction John H. Brooks of San Augustine County probably set the record for bitter-end believers in slavery when he signed a promissory note that was executed on July 5, 1865, to pay William Garrett $400 in gold for a man named Miles. How Brooks did not know that slavery had ended in Texas by that date is unclear, but when he learned of General Gordon Granger’s order of June 19, 1865, he used emancipation as a reason to refuse to pay the note. In response, Garrett argued that the true end of slavery in Texas did not come until ratification of the Thirteenth Amendment in December 1865. The case finally made its way to the Texas Supreme Court in 1874, and Justice Thomas J. Devine, a supporter of the Confederate States of America who had been appointed to the bench by Richard Coke, the conservative “Redeemer” governor of Texas, emphatically upheld June 19 as the day slavery ended. Juneteenth is quite properly celebrated now as a state holiday marking official emancipation in Texas.

1. Slavery, when abolished in Texas.—No written law abolished slavery in Texas until the 18th of December, A.D. 1865; but before that time the military forces of the United States had silenced and struck down the laws of the State; and the proclamation of General Granger, dated June 19, 1865, declaring Abraham Lincoln’s emancipation proclamation, may be regarded as the definite period from which the destruction of the right to hold slaves in Texas may be dated. 2. Slavery.—A note executed April 1, 1865, for the purchase money of a negro then sold as a slave in Texas, would be binding on the maker.

Error from San Augustine. Tried below before the Hon. M. Priest. Suit on promissory note brought by William Garrett against John H. Brooks. The note was for $400 gold, signed by Brooks, and bore date April 1, 1865. Brooks pleaded a failure of consideration, and alleged that there was an error in the date Laws on Slavery and Freedom in Confederate and Reconstruction Texas

[ 151 ]

of the note; that it was executed on the 5th July, 1865, for the transfer on that day by Garrett of his right, title, and interest in a negro man named Mills, then sold as a slave, and that when said note was executed, property in slaves had ceased to exist in Texas. To this answer exceptions were filed, which were overruled. The court instructed the jury that slavery had ceased to exist in Texas on the 19th day of June, 1865, and that if they found that the note was signed on the 5th day of July, 1865, they would find for defendant, but if it was signed on the 1st of April, they would find for plaintiff. Verdict for defendant. Peyton F. Edwards and Rufus Price, for plaintiff in error. W. W. Wallace, for defendant in error. Devine, Associate Justice.—The plaintiff in error brought suit on a note for $400, executed about the 5th of July, 1965, but dated as of April 1, 1865. The defendant denied all indebtedness; alleged that the consideration of the note was the transfer to him by plaintiff of a negro man named Miles, as a slave for life; that the true date of the note and of the sale was not April, but in truth was about the 5th of July, 1865; and that there was a total failure of consideration, as slavery had ceased to exist in Texas before the sale of the negro Miles and the execution of the note sued on. The exceptions of plaintiff to the answer of defendant were overruled, and the jury returned a verdict for defendant. The plaintiff sued out a writ of error, and assigns as grounds for a reversal of the judgment, the overruling of plaintiff ’s objection to defendant’s answer, the exclusion of evidence, the charge of the court, the verdict of the jury, and the refusal to grant a new trial. The answer presented facts which, if shown on the trial, would have constituted a full defense to the suit; and the court did not err in overruling plaintiff ’s exceptions to the answer. The exception to the exclusion of evidence on the sustaining of defendant’s objection to the admission of the freedman Miles’ statement that he left appellee in the spring of 1866 because appellee shot at him, presents no ground for a reversal. The negro Miles, under the existing condition of affairs, had a right to remain with or leave the service of appellee, and the cause of his leaving was wholly irrelevant; it had not and could not have any bearing on the issue before the court and jury. There was no error in the charge of the court that was prejudicial to the rights of appellant or tending to mislead the jury. The court charged the jury that slavery had ceased to exist on the 19th day of June, 1865, and that it was the duty of the jury to inquire what was the true date of the signing of the note, whether the 1st of April or the 5th of July, 1865; and [ 152 ]

The Laws of Slavery in Texas

if they found the former, then to render a verdict for plaintiff without further inquiry. The court further instructed the jury that if they found that the true date of signing the note, and the transaction was the 5th day of July, 1865, as set forth in the bill of sale of the negro Miles of that date, and that the note was given or the contract contemplated a conveyance of his person and labor, and that the note was antedated by the consent of plaintiff and defendant for the purpose of evading and defeating the authorities of the united States in their emancipation policy, that such an agreement could not be enforced, and the verdict should be for the defendant. It is contended, on behalf of appellant, that the charge was erroneous, and misled the jury, in this, that slavery was not legally abolished in Texas until the adoption of the 13th amendment to the Constitution of the United States, on the 18th of December, 1865. This view is correct if we limit our consideration to what was the written law. The existence at the time of the contract of the law of force is, however, to be considered in our inquiry into what was received by Brooks, or what valuable consideration passed from Garrett to him for the execution and delivery of the note sued on. The President of the United States, by proclamation dated January 1, 1863, had declared all slaves within the limits of the Confederate States from that date free, with the exception of several counties in Virginia and some parishes in Louisiana, and had pledged the power of the Federal Government to the carrying out of the same. This proclamation was not entitled to, nor did it receive, the slightest respect or consideration from the Government or people of Texas. Throughout the Confederate States it had neither respect nor force, only so far as the success of the federal forces and their occupation of the territory of the Confederate States gave it vitality. The surrender of the trans-Mississippi department, on the 27th of May, 1865; the proclamation of President Johnson, May 29, 1865, and the publication of what is known as “General Granger’s Order No. 3,” dated June 19, 1865, (see Pas. Dig., arts. 222 and 223,) may be considered as so many evidences that property in slaves had been abolished, and no longer existed in Texas. The date of General Granger’s order or declaration of the proclamation of Abraham Lincoln has been considered as the definite period from which the destruction of the right to hold slaves in Texas is to be dated. The appellant’s brief contends that, as slavery was not legally abolished in Texas until the adoption of the 13th amendment to the Constitution of the United States, in December, 1865, this must be considered a valid contract. Ordinarily this would be so, but the military power of the Federal Government had silenced or struck down (before the date of this contract) the laws of the State and the rights of its citizens; and appellant’s title to the ownership of “Miles” was as Laws on Slavery and Freedom in Confederate and Reconstruction Texas

[ 153 ]

valueless as it would have been had “Miles” ceased to exist. Slavery was in fact completely abolished in Texas. Miles was de facto free, and has remained so. The appellant had, therefore, no interest to convey at the time, and consequently no consideration for the note was given by appellant. The bill of sale from plaintiff to defendant of the negro Miles, and the evidence of the witnesses, shows the character of the contract, the nature of the assumed consideration, and the true date of the note. The charge of the court was so framed as to direct the mind of the jury to the real questions in issue. There was no error in the refusal of the court to give the instructions presented on the part of the plaintiff. All that should have been given were presented in the general charge of the court; those not given were not applicable to the present case. Under the charge of the court, if any evidence existed of a consideration for the note having passed from plaintiff to defendant, it is believed the jury would have found in favor of appellant. That evidence was not introduced, and the finding of the jury is supported by the evidence. The court did not err in overruling the motion for a new trial. The judgment is affirmed. Affirmed. [Chief Justice Roberts and Associate Justice Moore did not sit in this case.]

Source: A. W. Terrell and A. S. Walker, comps., Cases Argued and Decided in the Supreme Court of the State of Texas, during the Latter Part of the Austin Term and First Part of the Tyler Term, 1874 (St. Louis: Gilbert, 1883), 41:479–483.

[ 154 ]

The Laws of Slavery in Texas

★

Notes

Introduction 1. Styron, The Confessions of Nat Turner, 32–34. 2. Hagerty v. Harwell, 16 Tex. 663 (1856). 3. Morris, Southern Slavery and the Law, 1619–1860, 13. 4. Campbell, An Empire for Slavery, 1821-1865, 18–19. 5. Ibid., 15–34. 6. Guess v. Lubbock, 5 Tex. 535 (1851). 7. Campbell, Empire for Slavery, 96–98. 8. Ibid., 110–114. 9. Ibid., 207. 10. Campbell, “The End of Slavery in Texas: A Research Note,” 71–80.

Chapter 1 Slavery in Early Texas, I 1. In a total population of 3005, December 31, 1792, there were 34 negroes and 415 mulattoes; no mention is made of slaves. Census of Texas, Texas Archives, No. 345. 2. Humboldt, Ensayo político sobre la Nueva España, I, 252. 3. Ward, Mexico in 1827, I, 27. 4. Ibid., 29. 5. Thompson, Recollections of Mexico, 5. 6. He died in Missouri, June 10, 1821. 7. H. H. Bancroft, North Mexican States and Texas, II, 60. 8. Form of contract, in Austin Papers (collection of Hon. Guy M. Bryan, Quintana, Texas), C5; also contract with David Marple, Austin Papers, A14. Not an acre of land was ever distributed according to this plan. The colonization law, which was passed soon afterwards, offered far more liberal terms. 9. The governor of Texas was acting as an official of the revolutionary and independent government of Mexico when he approved Austin’s plan for the distribution of lands. It is incorrectly stated by H. H. Bancroft (North Mexican States and Texas, II, 62) and John Henry Brown (History of Texas, I, 94, note) that the news of the success of the revolution in Mexico did not reach San Antonio de Bexar till after Austin’s departure from that place. Austin’s journal, however, under date of August 12,

1821, a few hours before arriving at San Antonio, has the following record: “This morning at daylight three men who had been dispatched from the Gae [Guadaloupe] by Erasmo to St. Ao returned with others and brought the Glorious news of the Independence of Mexico. The Spaniards hailed this news with acclamations of ‘Viva Independencia,’ and every other demonstration of joy.” The Plan of Iguala had been proclaimed February 24, 1821; and the treaty of Cordova was signed August 24 of the same year. 10. Benjamin Mailan and three companions, Jacob Ferrier, and Christopher Nagel are mentioned in the journals of the Congress. Edwards, Leftwich, DeWitt, Wilkinson, and others are mentioned by various authorities. 11. Austin to Governor Trespalacios, January 8, 1823. Austin Papers, unclassified. 12. Actas del Congreso Constituyente Mexicano, III, 57. 13. Ibid., 32, 33. 14. Ibid., 52. 15. Ibid., 15–88. 16. “Nunca hubiera pasado ningun artículo permetiendo esclavitud en el Imperio por un momento de ningun modo cualquiera, por el Congreso.” Austin to Governor Trespalacios, January 8, 1823. Austin Papers, unclassified. 17. Diario de las sesiones de la Soberana Junta, 65, 66. 18. “No podrá hacerse, despues de la promulgacion de esta ley, venta ni compra de los esclavos que sean conducidos al imperio. Los hijos de éstos que nazcan en él, serán libres á los catorce años de edad.” Ibid., 66. 19. “Hablé á cada individual de la Junta sobre la necesidad que havia en Texas, Santander y todas las otras Provincias dispobladas, que los nuevos Colonos traxerian sus Esclavos y de este modo procuré el artículo.” 20. Austin to J. H. Bell, November 22, 1822. Austin Papers, B19. 21. Austin to Antonio Martínez, October 13, 1821. Austin Papers, A16. 22. Dublan y Lozano, Legislación Mexicana, I, 632 (note) and 686 (note). 23. Ibid., 682–684. 24. Lucas Alaman (“Iniciativa de ley, etc.,” a message to Congress, printed in Filisola’s Guerra de Tejas, II, 595) takes the view that all slaves brought to Texas after this decree was published should have gained their freedom in virtue of the provision of section 2 of the decree. Professor von Holst (History of the United States, II, 553) says this decree prohibited the further importation of slaves. “But Texas was a great way off,” he continues, “and the arm of the Mexican government was not long. Now, as before, settlers came with their slaves from the slave states to Texas.” But he says nothing of the express permission of the constitution of Texas and Coahuila, as late as 1827, to continue this importation for six months after its publication. The importance of this decree, involving as it does the question as to whether the Texans willfully violated the federal law of Mexico, warrants the quoting of it entire: El soberano congreso general constituyente de los Estados Unidos Mexicanos, ha tenido á bien lo siguiente: 1. Queda para siempre prohibido en el territorio de los Estados Unidos Mexicanos el comercio y tráfico de esclavos, procedentes de cualquiera potencia, y bajo cualquiera bandera. 2. Los esclavos que se introdujeren contra el tenor del artículo anterior, quedan libres con solo el hecho de pisar el territorio Mexicano. 3. Todo buque, ya sea nacional ó extrangero, en que se transporten ó introduzcan esclavos al territorio Mexicano, será irremisiblemente confiscado, con el resto de su cargamento;

[ 156 ]

Notes to pages 23–27

y el dueño, el comprador, el capitan, el maestre y el piloto sufrirán la pena de un año de presidio. 4. Esta ley tendrá su efecto desde el mismo dia de su publicacion; pero en cuanto á las penas prescritas en el artículo anterior no lo tendrá hasta seis meses despues, respecto de los colonos que en virtud de la ley de 14 de Octubre último, sobre colonizacion del istmo de Guazacoalco, desembarquen esclavos con el fin de introducirlos en el territorio Mexicano. [The sovereign general Constituent Congress of the United Mexican States has been pleased to decree the following: 1. Commerce and traffic in slaves, proceeding from any country and under any flag whatsoever, is forever prohibited in the territory of the United Mexican States. 2. Slaves that are introduced contrary to the tenor of the above article are free in virtue of the mere act of treading Mexican territory. 3. Every ship, whether domestic or foreign, in which slaves are transported to or introduced into Mexican territory, shall be irremissibly confiscated, with the remainder of its cargo; and the owner, the purchaser, the captain, the master, and the pilot shall suffer the penalty of a year’s imprisonment. 4. This law shall take effect from the day of its publication, but the penalties prescribed in the above article shall be suspended for six months with reference to those colonists who, in virtue of the law of the fourteenth of October last upon the colonization of the isthmus of Guazacoalco, may land slaves with the intention of introducing them into Mexican territory.] (Dublan y Lozano, Legislación Mexicana, I, 710) 25. Dublan y Lozano, Legislación Mexicana, I, 693–697. The first draft of this act, which became the basis of the constitution of 1824, was probably drawn up by Austin. He tells us that Arispe, who was the leader of the federal party and the chairman of the committee on the constitution, asked him for such a document. There is in Hon. Guy M. Bryan’s collection a copy with annotations in the handwriting of Arispe, and it is known that copies of the document were made for Arispe’s friends in various parts of Mexico. 26. Adopted August 18, 1824. Ibid., 712. 27. Ibid., 719–737. Translated in Edward’s History of Texas, Appendix, 323–336. The statement of Professor von Holst (Constitutional and Political History of the United States, II, 553) and others that the constitution “declared all children thereafter born of slaves free” is, of course, wholly at variance with the facts. 28. Instructions were drawn up for the representative of Texas in the provincial deputation, for it was through that body that the memorials were to reach the national Congress. 29. Proceedings of meeting. Austin Papers. 30. J. A. E. Phelps, Pinckneyville, Mo., to Austin, June 16, 1825. Austin Papers, A21. 31. George Nixon, Mobile, Ala., to Austin, November 14, 1823. Ibid., A32. 32. Dublan y Lozano, Legislación Mexicana, I, 693. 33. Ibid., 706. 34. Ibid., 720. Rhodes (History of the United States from the Compromise of 1850, I, 76) makes the mistake of saying that Texas and Coahuila were constituted one state by the Mexican constitution of 1827. 35. Laws and Decrees of Coahuila and Texas, 15–23. 36. “Los nuevos pobladores, en quanto á la introduccion de esclavos, se sugetarán á las leyes establecidas, y que en adelante se establecieren sobre la materia.” Ibid., 22. 37. Jesse Thompson, San Felipe, to John Spoul, Ayish (Austin Papers, D25), says he has acquired

Notes to pages 27–30

[ 157 ]

information as to the prohibition of slavery which leaves no doubt on the subject, that he feels entirely ruined, and that he thinks he will make immediate preparation to remove to the United States. 38. J. E. B. Austin, Bexar, August 22, 1826, to S. F. Austin. Austin Papers, Q59. 39. Ibid. 40. Austin to Gen. Humphrey Fullerton, October 2, 1826. Ibid., A32. 41. J. E. B. Austin, Saltillo, to S. F. Austin, September 23, 1826. Ibid., unclassified. 42. J. E. B. Austin, Saltillo, to S. F. Austin, October 10, 1826. Ibid., D36. 43. J. E. B. Austin, Bexar, to S. F. Austin, August 22, 1826. Ibid., Q59. 44. Ibid. 45. J. E. B. Austin, Saltillo, to S. F. Austin, September 23, 1826. Ibid., unclassified. 46. J. E. B. Austin, Saltillo, to S. F. Austin, October 10, 1826. Ibid., D36. 47. Laws and Decrees of Coahuila and Texas, 314. 48. J. E. B. Austin, Saltillo, to S. F. Austin, September 23, 1826. Austin Papers, unclassified. 49. “Art. 13. En el estado nadie nace esclavo desde que se publique esta constitucion en la cabecera de cada partido, y despues de seis meses tampoco se permite su introduccion bajo ningun pretesto.” Laws and Decrees of Coahuila and Texas, 314. 50. Ibid., 78, 79. 51. Ibid., 92. 52. See above, 27. 53. Laws and Decrees of Coahuila and Texas, 103. 54. Austin to Wharton, April 24, 1829. Austin Papers, A32. 55. Austin to Ellis et al., June 16, 1830. Ibid., D94. 56. James W. Breedlove, Mexican vice-consul, New Orleans, to Austin, August 11, 1830. Ibid., D49.

Slavery in Early Texas, II 1. Dublan y Lozano, Legislación Mexicana, II, 151. 2. Tornel, Breve Reseña Histórica, 85. 3. Ward, Mexico in 1827, I, 36. 4. Dublan y Lozano, Legislación Mexicana, II, 163. Translated from Tornel’s Breve Reseña Histórica, 85. 5. Translated from ibid. 6. Durst to Austin, November 10, 1829. Austin Papers, E15. 7. Ibid. 8. Durst to Austin, November 24, 1829. Austin Papers, E183. 9. Austin to Durst, November 17, 1829. Austin Papers, E15. 10. One cannot read such works as Von Holst’s and Schouler’s on this subject without necessarily connecting the introduction of slaves into Texas with a kind of tacit understanding between the United States and Texas that the latter should be wrested from Mexico. Yet Von Holst, referring to the immigration of the slave-owning colonists into Texas, naïvely remarks: “In this, the heads of individual persons may have been haunted by far-reaching projects; but I can find no support for the assertion, that back of it there was a definite plan of the ‘south.’” (History of the United States, II, 553) The heads of the colonists of that time were no more haunted by such “far-reaching projects” than were those of the Mexican leaders who framed the colonization laws. 11. In dealing with this question our historians are perhaps too ready to project American ideas into Mexican politics. We of the United States almost necessarily connect resistance to the government

[ 158 ]

Notes to pages 30–40

with dismemberment of the Republic. It was not so in Mexico. It was not uncommon, particularly during the period under consideration, for states to decline to enforce the decrees of the central government. 12. Texas Gazette, January 23, 1830. 13. Texas Gazette, January 30, 1830. 14. The decree was transmitted by the secretary of relations to the governor of the state, by the governor of the state to the political chief of Bexar and by the latter to the alcalde of San Felipe. The letters of transmittal are given in full in the Texas Gazette. I quote in full the Gazette’s translation of that of the secretary to the governor, which contains the decree: Most Excellent Sir, his Excellency the President having been informed of the note of your Excellency, No. 126, of the 14th of last month, manifesting, conformably with the exposition of the Chief of Texas, which you forwarded, the serious inconveniences apprehended by the execution of the Decree of 15th September last, on the subject of the abolition of slavery in that Department, and the fatal results to be expected, prejudicial to the tranquility and even to the political existence of the State; and having considered how necessary it is to protect, in an efficacious manner, the colonization of these immense lands of the Republic, has been pleased to accede to the solicitation of your Excellency and DECLARE THE DEPARTMENT OF TEXAS EXCEPTED [the capitals are probably the Gazette’s] from the general disposition, comprehended in said Decree. Therefore his Excellency declares that no change must be made as respects the Slaves that legally exist in that part of your State governed by your Excellency, expecting from your patriotism and philanthropy, that you will cause the most vigorous vigilance to be used, in order that the general laws and those of the State which prohibits the introduction of new slaves and establishes the liberty of the progeny that are born in your territory, be complied with, so that by this means the time may not be long before the melancholy and repugnant spectacle, may disappear from the Mexican soil, which is presented to the eyes of philosophy, in the slavery of part of the human species, born with equal rights of liberty, with the rest, and which could only have been so abused and vilified, but by right of force, which is without dispute the most barbarous of any known. I have the honor to communicate to your Excellency in reply to your before mentioned communication, offering to you my considerations and respect. God and Liberty. Mexico, 2 Dec. 1829. To his Excellency the Governor of the State of Coahuila and Texas. (Texas Gazette, January 30, 1830) 15. Schouler (History of the United States, IV, 250) says that Texas ignored the decree and makes no mention of the decree of exception. As to Von Holst, see below. 16. “No abstante la ley sobre libertad absoluta de esclavos, dada por la administracion de Guerrero, siguió la esclavitud en Tejas, con escándolo de la moral y del buen nombre del gobierno, teniendo necesidad el presidente de ordenar al general Teran, por una carta particular, que dejara en aquel territorio lo que en los demas se consideraba immoral.” Rivera, Historia Antiqua y Moderna de Jalapa, III, 28. 17. “Iniciativa de ley proponiendo el gobierno las medidas que se debian tomar para la seguridad del Estado de Tejas, etc.”: a report laid before Congress by Alaman, February 8, 1830, printed in Appendix to Filisola’s Guerra de Tejas, II, 596. 18. Von Holst, Constitutional and Political History of the United States, II, 556 and note. Alaman’s language is as follows [all italics in this note are mine]: “Esta resistencia ha traido las cosas á tal punto, que se creia esta fuese la occasion del rompimiento, y para evitarlo se dió por eceptuado aquel

Notes to pages 41–43

[ 159 ]

Departmento del cumplimiento de esta disposicion, derogándola no por una providencia ostensible, sino, lo que es muy estraño, por medio de una carta particular escrita por el Sr. Guerrero al general Terán.” (“Iniciativa de ley propiendo,” in Filisola’s Guerra de Tejas, II, 596, 597.) The portion in italics was translated in Exec. Doc., 25th Congress, 2nd Session, Vol. XII, No. 351, p. 315, quoted by Von Holst, as follows: “And in order to avoid this [insurrection], it was given out that this department was excepted from the operation of the decree.” A more nearly literal translation is: “And avoiding it [insurrection] was accomplished [or simply it was avoided] by excepting that department from the operation of the decree.” 19. In the Spanish original, not in the translation. 20. Bancroft, History of Mexico, V, 81. 21. Dublan y Lozano, Legislación Mexicana, III, 352. 22. Voz de la Patria, February 8, 1830. 23. “Iniciativa de ley proponiendo,” in Filisola’s Guerra de Tejas, II, 607. 24. Ibid., II, 597. 25. Ibid., II, 599, 600. 26. Dublan y Lozano, Legislación Mexicana, II, 238–240. 27. The decree had not been so interpreted by the authorities in Coahuila and Texas. See Political Science Quarterly, September, 1898, 398–401, 408, 409. 28. “En el hecho de pisar el territorio de la República debieron ser manumitidos en virtud de la ley de 13 de Julio de 1824; pero no habiéndose esto verificado, el ententar hacerlo ahora seria escitar una sedicion entre los colonos, y la pérdida de Tejas seria infalible.” “Iniciativa de ley proponiendo, etc.,” printed in Appendix to Filisola’s Guerra de Tejas, II, 607. 29. “No se hará variacion respecto de las colonias ya establecidas, ni respecto de los esclavos que halla en ellas; pero el gobierno general, ó el particular de cada Estado, cuidarán bajo su más estrecha responsibilidad, del cumplimiento de las leyes de colonizacion, y de que no se introduzcan de nuevo esclavos.” Art. 10 of decree of April 6, 1830, Dublan y Lozano, Legislación Mexicana, II, 239. 30. Statement presented to Martin, relative to the settlement of the business between S. F. Austin and the late J. H. Hawkins, September 14, 1832. Austin Papers, A30. 31. Nathaniel Cox, New Orleans, to Austin, October 20, 1836. Austin Papers, A30. 32. Register of Land Titles, General Land Office, Austin, Texas, Translation, I, 264, 265. 33. Recollections of Gibson Kuykendall, Bryan Collection, Q2. 34. Permit to settle in the colony from Austin to Bell, October 6, 1821. Austin Papers, A14. 35. Williams to Austin, September 8, 1824. Ibid., A32. 36. Williams to Austin, January 29, 1825. Ibid. 37. Martin to Austin, July 31, 1824. Ibid. 38. Brenaugh to Austin, March 19, 1825. Ibid. 39. Ibid. 40. Archives, Texas State Library, No. 328. 41. Ibid., No. 326. 42. Ibid., No. 335. 43. Almonte, “Noticia estadistica sobre Tejas,” printed in part in Appendix to Filisola’s Guerra de Tejas, II, 553. 44. Ibid., 560. 45. Moore, Description of Texas, 27. 46. Austin wrote to his sister, December 12, 1825 (Austin Papers, D86), that he and his brother owned no slaves. In the letter to Durst, quoted above, he said that he was the owner of one. “Personal Recollections of Stephen F. Austin” (Texas Magazine, September, 1897) states that in 1831 he owned two and gives their names.

[ 160 ]

Notes to pages 43–47

47. Austin to Richard Ellis, George Sutherland, Anthony Winston, R. R. Royall, and others, June 16, 1830. Austin Papers, D94. 48. “Emigration to Texas from Europe” (manuscript pamphlet), 15. Ibid., A11. 49. “Noticia Estadistica sobre Tejas,” printed in part in Appendix to Filisola’s Guerra de Tejas, II, 553. 50. Fisher to Austin, August 14, 1830. Austin Papers, E202.

Chapter 2 The Law of Slavery of Texas 1. Texas never had a slave code in the sense of a systematic collection of all the constitutional provisions, statutes, and case law dealing with slaves and slavery. Codifications of civil and criminal law and criminal procedure, however, did contain sections summarizing rules and regulations pertaining to the Peculiar Institution. See, for example, Oldham and White (comps.), Digest of the General Statute Laws, 407–409, 539–543, 559–562, 670–673. In general, the laws of slavery in Texas were patterned on practices elsewhere in the South. Mark Tushnet, The American Law of Slavery, 1810–1860: Considerations of Humanity and Interest (Princeton, 1981), does not deal with Texas and does not make a state-by-state comparison, but it is clear that Texans generally copied the legislative practices of older slave states. Also, Texas judges regularly cited decisions made in other states when deciding cases involving slavery. 2. The Texas Supreme Court ruled in Grinder v. The State, 2 Tex. 338 (1847) that a master was not responsible for court costs in a case involving a capital offense by one of his slaves. “Public justice was satisfied,” Justice Abner S. Lipscomb wrote, “in the person of the slave.” 3. Texas’s slave code also had provisions concerning the “rights” and protections due bondsmen. 4. The relevant portions of the constitutions of 1836 and 1845 are found in Gammel (comp.), Laws of Texas, I, 1079; II, 1296. 5. Webb, Carroll, and Branda (eds.), Handbook of Texas, I, 830; Gammel (comp.), Laws of Texas, II, 515, 697; Houston Morning Star, quoted in Henson, “Development of Slave Codes in Texas,” 75; Archie P. McDonald (ed.), Hurrah for Texas! The Diary of Adolphus Sterne, 1838–1851 (Waco, 1969), 27; Journal of the Senate of the State of Texas [6th Legislature], (Austin, 1856), 19. 6. Scranton v. Tilley, 16 Tex. 183 (1856); Wade v. DeWitt, 20 Tex. 398 (1857); Blythe v. Speake, 23 Tex. 429 (1859); Rogers v. Crain, 30 Tex. 284 (1867). There had to be clear evidence that the defect existed prior to the sale. See Murphy v. Crain, 12 Tex. 297 (1854). 7. McKinney v. Fort, 10 Tex. 220 (1853); Nations v. Jones, 20 Tex. 300 (1857). A general warranty of soundness did not cover defects that were plain and obvious to the purchaser. See Williams v. Ingram, 21 Tex. 300 (1858). 8. When a man named Philips captured a runaway belonging to O. M. Wheeler and then used the slave to clean out a well during which the bondsman was accidentally killed, the owner successfully sued for damages (Philips v. Wheeler, 10 Tex. 536 [1853]). Mims v. Mitchell, 1 Tex. 443 (1846); Clark v. Southern Pacific Railroad, 27 Tex. 100 (1863); Sims and Smith v. Chance, 7 Tex. 561 (1852); Mills v. Ashe, 16 Tex. 295 (1856); Echols v. Dodd, 20 Tex. 191 (1857); Pridgen v. Buchannon & Others, 24 Tex. 655 (1859); Robinson v. Varnell, 16 Tex. 382 (1856). 9. Gammel (comp.), Laws of Texas, III, 911–912, 1454; Journal of the Senate of Texas; Seventh Biennial Session (Austin, 1857), 255–257. 10. Gammel (comp.), Laws of Texas, I, 1247; II, 240; III, 1511; Oldham and White (comps.), Digest of the General Statute Laws, 540.

Notes to pages 48–60

[ 161 ]

11. Gammel (comp.), Laws of Texas, II, 46–47, 650; Oldham and White (comps.), Digest of the General Statute Laws, 541. 12. Gammel (comp.), Laws of Texas, II, 345–346; Oldham and White (comps.), Digest of the General Statute Laws, 542. 13. Gammel (comp.), Laws of Texas, III, 1511; Oldham and White (comps.), Digest of the General Statute Laws, 539. Oliver C. Hartley (comp.), A Digest of the Laws of Texas (Philadelphia, 1850), the most recent digest made before a general revision began in the mid-1850s, had no law specifying penalties for inciting slave insurrection. 14. Report of the Directors, Superintendent and Agent of the Texas Penitentiary for the Years 1856 and 1857 (Austin, 1857), 44; Cain v. The State, 18 Tex. 387 (1857); Lovett v. The State, 19 Tex. 174 (1857). 15. Red River County District Court Minutes, Book F; Smith County District Court Papers, Case #706; Kingston v. The State, 25 Supp. Tex. 166 (1860); Allen v. The State, 14 Tex. 663 (1855). 16. Gammel (comp.), Laws of Texas, I, 1385–1386; II, 346. 17. Oldham and White (comps.), Digest of the General Statute Laws, 482, 559, 562; Guffey v. Moseley, 21 Tex. 408 (1858); Ingram & Wife v. Atkinson & Wife, 4 Tex. 270 (1849). It must be remembered that laws concerning offenses by slaves gave masters a great deal of latitude in punishing their slaves without going to any other authority. 18. Polk County Justice of the Peace Records, JP Book, Precinct 4; Hunt County Commissioners’ Court Minutes, Book A-1, 96–97; Smith County Justice of the Peace Papers, Case #25; Amelia W. Williams and Eugene C. Barker (eds.), The Writings of Sam Houston (8 vols.; Austin, 1938–1943), VIII, 3. 19. Austin Texas State Gazette, October 20, 1860; Enda Junkins, “Slave Plots, Insurrections, and Acts of Violence in the State of Texas, 1828–1865” (MA thesis, Baylor University, 1969), 50–51; Matagorda Gazette, July 23, 1859. 20. Clarksville Northern Standard, April 9, June 4, 11, 1853, January 29, 1859; San Antonio Herald, October 20, 1858; Estate of Richard S. Bostick, Jackson County Probate Records (Final Estate Record); Red River County District Court Minutes, Book F. 21. Smith County District Court Papers, Case #754. The voucher for $500 paid to Gober is in the Papers of the Comptroller of Public Accounts, Texas State Library and Archives, Austin. Young Gober was twenty years old in 1860. He survived the attack and still lived in Smith County at the census of 1870. Eighth Census, 1860, Schedule 1 (Free Inhabitants); Ninth Census of the United States, 1870, Schedule 1 (Inhabitants), National Archives, Washington, D.C. 22. Elizabeth, A Slave v. The State, 27 Tex. 329 (1863); Falls County District Court Minutes, Book B, Case #288; Annie Lee Williams, A History of Wharton County, 1846–1961 (Austin, 1964), 106; Williams and Barker (eds.), Writings of Houston, VIII, 86–87. 23. Nels, A Slave v. The State, 2 Tex. 280 (1847); Calvin, A Slave v. The State, 25 Tex. 789 (1860); Jack, A Slave v. The State, 26 Tex. 1 (1861). 24. Maria, A Freedwoman v. The State, 28 Tex. 698 (1866); Estate of Elisha D. Little, Washington County Probate Records (Final Record, Book G). The law providing compensation for owners who lost their property due to capital punishment by the state also indicated an awareness that masters might attempt to evade such punishment and losses. As noted above, compensation depended on the owner’s having made no attempt to evade the law. 25. Gammel (comp.), Laws of Texas, II, 345–346, 950–951. 26. Ibid., IV, 1074–1075; Oldham and White (comps.), Digest of the General Statute Laws, 407–409. 27. Gammel (comp.), Laws of Texas, II, 1497–1501. 28. For most of the antebellum period, any free person descended from Negroes, with one-fourth or more Negro blood, was considered a free black or “free person of color.” Oldham and White

[ 162 ]

Notes to pages 60–66

(comps.), Digest of the General Statute Laws, 462. Early in 1858, however, the legislature amended the rule to define free persons of color as anyone with at least one-eighth African blood. Gammel (comp.), Laws of Texas, IV, 1115. No degree of diminution of Negro blood could result in freedom for a child born of a slave mother. Gaines v. Ann, 17 Tex. 211 (1856). 29. Gammel (comp.), Laws of Texas, I, 1292, 1385–1386; II, 325–326, 468–469, 549–550, 789. The most thorough study of free blacks in Texas prior to 1845 is Harold Schoen, “The Free Negro in the Republic of Texas,” Southwestern Historical Quarterly 39 (1936), 292–308; 40 (1936), 26–34, 85–113; 40 (1937), 169–199, 267–289; 41 (1937), 83–108. For the entire antebellum period, see Andrew Forest Muir, “The Free Negro in Jefferson and Orange Counties, Texas,” Journal of Negro History 35 (1950), 183–206; and Andrew Forest Muir, “The Free Negro in Harris County, Texas,” Southwestern Historical Quarterly 46 (1943), 214–238. For studies of one notable Texas free black, see Diane Elizabeth Prince, “William Goyens, Free Negro on the Texas Frontier” (MA thesis, Stephen F. Austin State College, 1967); and Victor H. Treat, “William Goyens,” in Alwyn Barr and Robert A. Calvert (eds.), Black Leaders: Texans for Their Times (Austin, 1981), 19–47. 30. Harriet Smither (ed.), Journals of the Fourth Congress of the Republic of Texas, 1839–1840 (3 vols.; Austin, 1929), I [Senate Journal], 63–64; Estate of Wiley Martin, Fort Bend County Probate Records (Probate Record, Book A); Seventh Census of the United States, 1850, Schedule I (Free Inhabitants), National Archives, Washington, D.C.; Eighth Census, 1860, Schedule I (Free Inhabitants); Becht v. Martin, 37 Tex. 719 (1872–1873). 31. Purvis v. Sherrod, 12 Tex. 140 (1854). This ruling was confirmed in Armstrong v. Jowell, 24 Tex. 58 (1859). Bequests of freedom were void, however, if they did not provide for the removal of the freed blacks from Texas. Philleo v. Holliday, 24 Tex. 38 (1859). In the years after statehood, the legislature did occasionally permit free blacks to remain in Texas. See Gammel (comp.), Laws of Texas, III, 1042, 1045, for the cases of Mary Madison and Thomas Cevallos. 32. Boulware v. Hendricks, 23 Tex. 667 (1859). For evidence of the court’s respect for the rights of freed blacks, see Moore v. Minerva, 17 Tex. 20 (1856); and A. E. Keir Nash, “The Texas Supreme Court and the Trial Rights of Blacks, 1845–1860,” Journal of American History 58 (1971), 622–642. 33. DeBow (comp.), Statistical View of the United States, 308–319; U.S. Bureau of the Census, Population of the United States in 1860, 486; Am. Slave, Supp., Ser. 2, V, 1614–1620 ( James Grumbles); Cecil Harper, Jr., “Slavery Without Cotton: Hunt County, Texas, 1846–1864,” Southwestern Historical Quarterly 88 (1985), 399; Hunt County Commissioners’ Court Minutes (Book A); Webb, Carroll, and Branda (eds.), Handbook of Texas, II, 278; Webster v. Heard, 32 Tex. 685 (1870); Rusk Texas Enquirer, quoted in Marshall Texas Republican, March 10, 1860. Ira Berlin, Slaves Without Masters: The Free Negro in the Antebellum South (New York, 1974), a very thorough recent study of the subject, does not mention free blacks in Texas, perhaps because so few were there. 34. Gammel (comp.), Laws of Texas, IV, 947–949. Free blacks could not voluntarily enslave themselves before this act in 1858. See Westbrook v. Mitchell, 24 Tex. 560 (1859). For examples of voluntary enslavement under the 1858 law, see Austin Texas State Gazette, December 11, 1858; June 4, 1859; Dallas Herald, February 2, October 26, 1859; La Grange True Issue, October 29, 1859; Smith County District Court Civil Minutes, Book D; Hunt County District Court Minutes, Book A; Barbara A. Ledbetter, “Black and Mexican Slaves in Young County, Texas, 1856–1865,” West Texas Historical Association Yearbook 56 (1980), 102. Berlin, Slaves Without Masters, 370–379, points out that there was an enslavement movement across the South during the late 1850s aimed at forcing free blacks either to accept bondage or leave the state. 35. Henson, “Development of Slave Codes in Texas,” 91. Tushnet, The American Law of Slavery, analyzes the law of slavery from a Marxist perspective with the intent of determining if it was “slave” (precapitalist) or “bourgeois” (capitalist). He concludes that it does not fit perfectly into either category.

Notes to pages 67–69

[ 163 ]

The Texas Supreme Court and Trial Rights of Blacks, 1845–1860 1. For a general comparative treatment of southern appellate trials of blacks accused of felonies, see A. E. Keir Nash, “Fairness and Formalism in the Trials of Blacks in the State Supreme Courts of the Old South,” Virginia Law Review 56 (Feb. 1970), 64–100. For a similar treatment of trials of whites for injuring slaves and free blacks, see A. E. Keir Nash, “A More Equitable Past? Southern Supreme Courts and the Protection of the Antebellum Negro,” North Carolina Law Review 48 (1970), 197–242. The more detailed history of the Texas supreme court’s adjudications in these and in civil law suits is offered here because of that court’s unusually strong insistence on as much equity as statutory law would permit. “Fairness,” “decency,” and “equity” must be understood with respect both to prevailing nineteenth-century racial mores and in light of the undeniable inequities of the statutory double standard of American law in the antebellum era. 2. See Michael Meltsner, “Southern Appellate Courts: A Dead End,” in Southern Justice, ed. Leon Friedman (New York, 1965), 136–154. See also Alexander M. Bickel, Politics and the Warren Court (New York, 1965); J. W. Peltason, Fifty-eight Lonely Men: Southern Federal Judges and School Desegregation (New York, 1961). 3. Quoted in Mark DeWolfe Howe, “Foreword: Our Splendid Bauble,” in Friedman, Southern Justice, v. 4. Brown v. Mississippi, 297 U.S. 278 (1936). 5. Powell v. Alabama, 287 U.S. 45 (1932). 6. See Bell v. Hill, 123 Tex. 531 (1934); Smith v. Allwright, 321 U.S. 649 (1944). 7. However, it should be noted that two members of the Mississippi court in Brown v. Mississippi did so perceive matters. 8. It is important to note here that, unless otherwise expressly indicated, all generalizations pertain only to the state supreme court and not to the lower-level judicial structure about which no assessment is implied. 9. A. E. Keir Nash, “Negro Rights and Judicial Behavior in the Old South” (PhD diss., Harvard University, 1968). 10. The Georgia supreme court, from its creation in 1845, had the solitary distinction of being the only continuously proslavery, “fire-eating” state supreme court. Nash, “Negro Rights and Judicial Behavior,” 185–202. 11. Rollin G. Osterweis, Romanticism and Nationalism in the Old South (New Haven, 1949); Clement Eaton, Freedom of Thought in the Old South (Durham, 1940); Stanley Elkins, Slavery: A Problem in American Institutional and Intellectual Life (Chicago, 1959). 12. State supreme courts were vastly more influential than they are today because they were the final arbiters in most matters pertaining to civil and procedural rights. It is through the equal protection and due process clauses of the Fourteenth Amendment that since 1868 the United States Supreme Court has been able to exert most of its authority over civil rights issues other than voting (covered by the Fifteenth Amendment). 13. The South Carolina court heard sixteen such appeals between 1830 and 1860; the Alabama court heard twelve. 14. Chandler v. State, 2 Tex. 305 (1847). 15. See Nash, “Negro Rights and Judicial Behavior,” 88–100; Nash, “A More Equitable Past?” 203–211. 16. Fields v. State, 1 Yerger 156 (Tenn. 1829). 17. Chandler v. State, 2 Tex. 309. 18. Ibid.

[ 164 ]

Notes to pages 71–74

19. See Eugenius A. Nisbet’s opinion in Neal v. Farmer, 9 Ga. 583 (1851). For a discussion of the weaknesses of the common law position, see Nash, “A More Equitable Past?” 208–211. 20. Chandler v. State, 2 Tex. 310. 21. Nix v. State, 13 Tex. 575 (1855). 22. Quoted in ibid., 577. 23. State v. Tackett, 1 Hawks 210 (N.C. 1820); State v. Reed, 2 Hawks 454 (N.C. 1832); State v. Hale, 2 Hawks 82 (N.C. 1823). 24. State v. Stephenson, 20 Tex. 151 (1857). 25. It is intriguing that the state bothered to pursue the matter to the higher court following a lower court finding for the white defendant. 26. State v. Stephenson, 20 Tex. 152. 27. Ibid. See also the fourth unsuccessful white appeal, Westbrook v. State, 24 Tex. 563 (1859), a prosecution for unlawful enslavement. 28. These figures are for nine states between 1830 and 1860—all the states which seceded in 1860–1861 except Virginia, whose court of appeals handled only civil suits until 1851, and Louisiana, which was excluded from study because of the difficulty of comparing her code law with common law jurisdictions. For a state by state breakdown, see the table in Nash, “Fairness and Formalism in the Trials of Blacks,” 79. 29. Two appeals by blacks were dismissed on neutral grounds. Thus, Peter v. State, 11 Tex. 762 (1854), testified to nothing more than judicial refusal to countenance an erroneous plea, while the grounds for appeal in Ashworth v. State, 9 Tex. 490 (1853), were not convincing. Its interest is largely historical—residing in the fact that in antebellum days the state found it necessary to convict a free black for fornication with a white female. 30. Nels v. State, 2 Tex. 280 (1847). 31. Calvin v. State, 25 Tex. 789. 32. Compare the North Carolina holding that, when on trial, a slave could “overrule” his master’s will in respect to a change of venue. State v. Poll, 1 Hawks 442 (N.C. 1821). 33. For example, W. J. Cash notes that a 1937 North Carolina execution of a black for murder of another black was sufficiently rare to cause a local newspaper editor to search back issues of his publication for a similar event because he was unable to remember one. W. J. Cash, The Mind of the South (New York, 1941), 415. 34. Calvin v. State, 25 Tex. 795. 35. This was done presumably because Robert Smith later turned up alive. 36. Calvin v. State, 25 Tex. 796. 37. This percentage is derived from a total of 106 judges who served the bulk of their tenure during the “abolitionist decades” of the 1830s, 1840s, and 1850s and who sat on such cases in sufficient number to make analytic characterization feasible. See Nash, “Negro Rights and Judicial Behavior,” 471–506. 38. Mayo v. Whitson, 2 Jones 239 (N.C. 1855). 39. Ibid. 40. For an extended biographical study of one such judge, see A. E. Keir Nash, “Negro Rights, Unionism, and Greatness on the South Carolina Court of Appeals: The Extraordinary Chief Justice John Belton O’Neall,” South Carolina Law Review 21 (1969), 141–190. 41. Gordon v. Blackman, 1 Richardson’s Equity 61 (S.C. 1844). 42. He served on the Arkansas supreme court from 1860 to 1864. 43. Phebe v. Quillin, 21 Ark. 500 (1860). 44. Ibid.

Notes to pages 74–77

[ 165 ]

45. Ibid. 46. Purvis v. Sherrod, 12 Tex. 140 (1854). 47. Ibid. 48. Quoted in ibid., 166. 49. Ibid., 141. 50. For decisions by a neutralist court voiding such quasi-emancipations, see Stevens v. Ely, 1 Devereux’s Equity 493 (N.C. 1830); Lemmond v. Peoples, 6 Iredell’s Equity 137 (N.C. 1848). 51. Trotter v. Blocker, 6 Porter 269 (Ala. 1838). 52. Thus, a trust to “liberate-and-remove” would be invalid; but it would be valid if it stated “remove-and-liberate.” 53. Purvis v. Sherrod, 12 Tex. 167. 54. Frazier v. Frazier’s Executors, 2 Hill’s Equity 304 (S.C. 1835). 55. Blackman v. Gordon, 2 Richardson’s Equity 44 (S.C. 1845). 56. For a discussion of this chain of events, see Nash, “Negro Rights, Unionism, and Greatness,” 156–166. 57. Ross v. Vertner, 5 Howard 305 (Miss. 1840), was overridden by a legislative act passed February 26, 1842. 58. Jordan v. Bradley, Dudley 170 (Ga. 1830). 59. Chief Justice Joseph H. Lumpkin in Cleland v. Waters, 16 Ga. 496 (1845). See also Vance v. Crawford, 4 Ga. 445 (1848), and Cooper v. Blakey, 10 Ga. 263 (1851), where Lumpkin’s anti-manumission attitudes were already manifest. 60. Purvis v. Sherrod, 12 Tex. 163–164. For an example of John Haywood’s “justice of the heart,” see his conflict with John Catron, who hardly enjoyed a less “enviable rank” as a redoubtable member of the Taney Court from 1837 to 1865. See Bob v. State, 2 Yerger 173 (1826). Catron agreed that the procedure under which the defendant slave was tried was “as highly criminal as any society can institute.” Yet he was almost certainly technically correct in refusing to grant a reversal. Discretion to grant lay, under a Tennessee statute of 1811, in the circuit judge, who had refused to do so. Haywood reached for supreme court jurisdiction by castigating the circuit judge and declaring: Shall it be said that a human being shall be condemned to death by a wrongful sentence, and that there is no power residing in the law to rescue him from it? . . . Will it give no power to avoid the unjust sentence? Then where is the justice of the law, and where is its boasted humanity? And for what good end and purpose is it, that the arm of the law should be lengthened to strike the fatal blow, but made too short to save an unfortunate victim who is unjustly doomed to suffer? It is enough to ask the question, and every heart will respond that it should not be so. Ibid., 177, 191. 61. Ibid., 164. Trotter v. Blocker, 6 Porter 269 (Ala. 1838). 62. Besides urging that the Alabama court should not have used the absence of a constitutional provision in Tennessee as a ground for refusing to follow the Tennessee holding, Abner Lipscomb argued that the Alabama judges had gone further than they needed to in deciding the case. Having determined on common law grounds that Trotter’s trust was invalid, they did not need to reach the constitutional question. He also attacked their application of the common law rule in question, pertaining to the voidance of gifts which the recipient was legally incapable of accepting. Lipscomb insisted that it applied only “where the gift is to be completed in presenti, and not in futuro.” Hence, he said, it should not apply to a gift of freedom to be completed in future. “The time and the place,

[ 166 ]

Notes to pages 77–79

when and where the trust is to be executed, must be looked at, and not the place where it was created; if not repugnant to law where it is to be executed, it is a valid trust.” Ibid., 171, 172. 63. Armstrong v. Jowell, 24 Tex. 58 (1859). 64. If not, however, the will failed. Philleo v. Holliday, 24 Tex. 38 (1859). 65. Curry v. Curry, 30 Ga. 253 (1860). 66. Judge Nathan Green in Ford v. Ford, 7 Humphreys 95–96 (Tenn. 1846). 67. Jones v. Laney, 2 Tex. 342 (1847). 68. Ibid., 348. 69. Ibid., 346–347. 70. Contrast the rejection of civil in favor of common law protection in Nix and Chandler. 71. Contrast the Mississippi court which, after veering between neutrality and libertarianism until the late 1850s refused to recognize the claims of comity even to the extent of allowing a former Mississippi slave duly freed in Ohio to collect a bequest of money left by her former master in Mississippi. Judge William L. Harris insisted that not his state, but Ohio, was denying comity in freeing blacks at all. He went on to observe: “Suppose that Ohio, still further afflicted with her peculiar philanthropy, should . . . claim to confer citizenship on the chimpanzee . . . are we to be told that ‘comity’ will require of the States not thus demented, to . . . meet the necessities of the mongrel race thus attempted to be introduced into . . . this confederacy?” In fairness, it should be noted that Judge Alex Handy, though also an ardent secessionist, delivered a passionate twenty-four-page dissent, arguing that Harris was adopting “barbarian rules which prevailed in the dark ages.” Mitchell v. Wells, 37 Miss. 264, 282 (1859). See also Lumpkin’s refusal to enforce a Maryland will freeing a slave at the age of thirty because the slave had been taken to Georgia before reaching that age. Knight v. Hardeman, 17 Ga. 253 (1855). The tone is almost, but not quite, as extreme. 72. Moore v. Minerva, 17 Tex. 20 (1856). 73. Contrast Lumpkin’s voiding of a “remove-then-free” bequest when a Georgia estate was saddled with debts. Pinckard v. McCoy, 22 Ga. 28 (1857). A more reasonable alternative—hiring slaves out until the debts were paid—was rejected by Lumpkin on the grounds that while working the blacks would be “enjoying” a state of “illegal quasi-freedom.” The “more reasonable alternative” was taken by the Virginia court in Jincey v. Winfield, 9 Grattan 708 (Va. 1853). 74. Moore v. Minerva, 17 Tex. 26. 75. Ibid., 25. See also Paup v. Mingo, 4 Leigh 163 (Va. 1833); Matilda v. Crenshaw, 4 Yerger 299 (Tenn. 1833). 76. Moore v. Minerva, 17 Tex. 26. 77. Westbrook v. Mitchell, Jr., 24 Tex. 560 (1859). 78. See also Greer v. State, 22 Tex. 588 (1858). 79. Westbrook v. State, 24 Tex. 563 (1859). 80. Hillard v. Frantz, 21 Tex. 192 (1858). 81. Ibid., 194. 82. Alexander v. State, 12 Tex. 540 (1854). 83. It is worth noting in passing that the direction of the penalties prescribed hardly coheres with the notion of a South increasingly desperate of defense. An 1840 statute reduced the 1836 punishment from death to thirty-nine lashes and imprisonment, and an 1848 statute reduced it further to imprisonment alone. 84. Bruton v. State, 21 Tex. 337 (1858). 85. Martin v. State, 16 Tex. 240 (1856). 86. Lovett v. State, 19 Tex. 174 (1857). 87. State v. Wupperman, 13 Tex. 33 (1854).

Notes to pages 79–83

[ 167 ]

88. Greer v. State, 22 Tex. 588. 89. See also Hamm v. City of Rockhill, 85 U.S. 384 (1964), which held that the Civil Rights Act of 1964 abated state trespass prosecutions for “sit-ins.” 90. See also the reversals in Cain v. State, 18 Tex. 387 (1857); Allen v. State, 14 Tex. 633 (1855); Rawles v. State, 15 Tex. 581 (1855); Anderson v. State, 20 Tex. 5 (1857); Carter v. State, 20 Tex. 339 (1857); Smith v. State, 24 Tex. 547 (1859); Kingston v. State, 25 Tex. Supp. 166 (1860). 91. See Nash, “Negro Rights and Judicial Behavior.” 92. John Hemphill, chief justice from 1846 to 1858; Lipscomb, associate judge from 1846 to 1856; and Oran Milo Roberts, associate judge from 1857 to 1864, and chief justice from 1864 to 1865 and from 1874 to 1878. 93. Lipscomb died in 1856. 94. James D. Lynch, The Bench and Bar of Texas (St. Louis, 1885). See also Jewette Harbert Davenport, The History of the State of Texas (Austin, 1917). 95. See also Nash, “Negro Rights and Judicial Behavior,” 471–506. 96. Jack W. Peltason, Federal Courts in the Political Process (New York, 1955). 97. Leslie L. Anderson, “The Line between Federal and State Court Jurisdiction,” Michigan Law Review 63 (May 1965), 1203–1217. 98. Roscoe Pound, The Formative Era of American Law (Boston, 1938), 3–4. 99. For example, the Virginia constitution of 1852 replaced life tenure and legislative selection of judges with twelve-year terms and popular election.

One Woman’s Fight for Freedom 1. If Founding Fathers are defined as those that authored our state’s organic law, there were no Founding Mothers of Texas. None of the individuals who signed the Texas Declaration of Independence or who attended the first six Constitutional Conventions of Texas were women. Jane Long, of course, was an important person in the founding of Texas. 2. In Cause No. 20, Sam Houston v. Mirabeau Lamar, after a Harris County Jury awarded the Plaintiff a judgment for $1,101.73, it took an appeal to the Supreme Court of Texas, almost 11 years, and a lot of work for the first President of the Republic to find any non-exempt assets of the second President of the Republic. See Lamar v. Houston (Tex. 1845, 65 Tex. L. Rev. 382) (Paulsen rep. 1986). 3. Throughout this article, the Plaintiff is referred to with the surname of “Gess.” This is how she was consistently referred to in the trial proceedings. The Supreme Court’s opinion referred to her as “Guess.” The Supreme Court’s reporter referred to her as “Guest” in the running head at the top of several, but not all, of the pages of the Texas Reports. In probate proceedings before the Harris County Judge filed by Lubbock, she was referred to as “Less.” In Austin v. Ritz, 72 Tex. 391 (1888), an attorney using the case as a precedent in a brief to the Texas Supreme Court referred to it as “Grenn v. Lubbock.” 4. To anyone who is unfamiliar with both Texas history and Harris County geography, I am referring to the San Jacinto Battleground. 5. The case was assigned Cause No. 1995. 6. Judge Buckley had served as trial counsel for Sam Houston in the case of Houston v. Lamar, referred to in note 2. 7. Out of fairness to Judge Buckley, it should be noted that he undoubtedly knew both attorneys in the case, since the practicing bar was very small—no more than ten or 15 attorneys filed papers in these terms of court. Given that Harris County had a population of 4,500 at the time, it

[ 168 ]

Notes to pages 83–90

is likely that Buckley had known Adam Smith and may have been acquainted with Margaret Gess as well. 8. . . . A general demurrer was a pleading that denied globally that there was any legal basis upon which a cause of action had been pled. They were outlawed when the Rules of Civil Procedure were first adopted. 9. Voir dire was apparently not allowed by the Texas courts in this era—the case was tried before 12 citizens picked by the judge. Had the case gone to trial in the 1849 autumn term, one of the jurors could have been Lubbock’s brother, Thomas. 10. The county was named Harrisburg County at the time of his service. 11. Under the constitution of the Republic, the Supreme Court of Texas consisted of a chief justice and all of the district judges of the state. If this were still the case, we would have a 449 member Supreme Court. The mind boggles at the number of concurring opinions that would be generated by such a court. 12. Near the end of his life, Franklin was offered a seat on the Supreme Court by Reconstruction governor Edmund J. Davis, indicating that he might not have been a totally loyal Confederate. 13. Guess v. Lubbock, 5 Tex. 535 (1851). 14. Notwithstanding his opinion in Gess, Justice Lipscomb was almost certainly not against the institution of slavery. He had studied law in the law offices of U.S. Senator John C. Calhoun of South Carolina, a leader of the southern senators who fought “free-soilers” at every step. After becoming a lawyer, Lipscomb served as Chief Justice of the Alabama Supreme Court before moving to Texas in 1839.

Chapter 3 The Free Negro in the Republic of Texas 1. General Provisions, Section 10. Gammel, The Laws of Texas, I, 1079. 2. Article 1, Section 7. Gammel, The Laws of Texas, I, 1069. 3. No census was ever taken in the Republic. The first state census of 1847 counted 304 free persons of color (Texas State Gazette, August 25, 1849), and it is reasonable to suppose that their number never exceeded 300 during the days of the Republic. 4. The bill of rights did not mention the right of petition, but the constitution provided that Congress should introduce by statute the common law of England. Section 13, Article 4. Gammel, The Laws of Texas, I, 1073. The statute was adopted on December 20, 1836. Gammel, The Laws of Texas, I, 1217. 5. General Provisions, Section 9. Gammel, The Laws of Texas, I, 1079. 6. Pleasant Bious, Henry Lynch and John Hemphill presented unendorsed petitions which were received and considered. Memorials No. 45, File 5, November 5, 1841; No. 54, File 17, December 15, 1840; No. 28, File 54, no date. 7. Austin City Gazette, November 27, 1839. A later issue reported that such a “gag” resolution was adopted by the Senate on November 29, 1839 (Austin City Gazette, January 8, 1840), but this report was erroneous. No mention of it was made in the journal and the Senate received and considered numerous Negro petitions subsequent to that date. 8. Senate Journal, Fourth Congress, 37. 9. Senate Journal, Sixth Congress, 76. 10. Greenbury Logan to R. M. Forbes, November 22, 1841. Document No. 2582, File 28, Sixth Congress. Logan’s letter gives a rare glimpse into some of the grievances, presently to be discussed, as they appeared to a Negro. He wrote,

Notes to pages 90–119

[ 169 ]

I hope you will excuse me for taking the liberty of riting to you. I knew not of you being in the county until the night before you left for Austin. it was my wish to see you from the time you was elected but in consiquence of your absence I co[u]ld not. I presume it is unecessary to give you eny informasion abought my coming to Texas. I cam[e] here in 1831 invited by Col. Austin. it was not my intention to stay until I had saw Col. Austin who was then in Mexico. after se[e]ing him on his return and conversing with him relitive to my situation I got letters of sittizen ship. having no famoly with me I got one quarter League of land insted of a third. but I love the country and did stay because I felt myself mower a freeman then in the states. it is well known that Logan was the man that lifted his rifle in behalf of Texas as of fremans righted. it is also known that Logan was in everry fite with the Maxacans during the camppain of 35 until Bexhar was taken in which event I was the 3rd man that fell. my discharge will show the man[n]er in which I discharged my duty as a free man and a sol[d]ier but now look at my situation. every previleg dear to a freman is taken a way and logan liable to be imposed upon by eny that chose to doo it. no chance to collect a debt with out witness, no vote or say in eny way, yet liable for Taxes [as] eny other [person]. the government has giv[e] me a Donation and Premium [land] and now in short I must loose it for its taxes is well known. it is out of my pour to either settle on my land or to sell them or to labour for money to pay expenses on them. I am on examination found perment injurd and can nom[o]re than support by myself now as everry thing that is deare to a freman is taken from me. the congress will not refuse to exempt my lands from tax or otherwise restoure what it has taken from me in the constitution. to leave I am two poor and imbarrased and cannot leav honerable as I came. I am tow old and cr[i]ppled to go on the world with my famaly recked. if my debts was payd I wo[u]ld be willing to leav the land though my blood has nearly all been shed for its rights—now my dear friend you are the first man I hav ever spoken to for eny assistance. I hombely hope you as a gentleman whose eze is single towards individuel is well noted al good will look into this errur and try if you cannot effect—something for my relief. I know I have friends in the house if a thing of the kind was brought up wo[u]ld be willing to git me sum relife. as to my caracter it is well known and if anything is wanted of that kind I am prepared—please euse your best exertions and what ever obligations it may leav me unde[r], I am yours to acer the same. yours with respe[c]t, G. Logan. In accordance with Logan’s wish, Forbes introduced a bill to release Logan’s lands “from State and County Tax now due or hereafter falling due,” but the bill was lost. Bill No. 2349, File 25, Sixth Congress. 11. Memorials No. 33, File 80, January 3, 1841; No. 101, File 67, no date; No. 15, File 5, September 20, 1836; No. 52, File 1, April 25, 1838. 12. Memorial No. 1, File 52, April 25, 1838. The “right to swear in court” was deleted, probably by the committee considering the petition. Free Negroes always had the right to sue and the liability of being sued which will be discussed presently. 13. Memorial No. 11, File A, no date. 14. House Journal, Eighth Congress, 266, 268. See Schoen, “The Free Negro in the Republic of Texas: V. The Law in Practice,” Southwestern Historical Quarterly 40, no. 4 (April 1937), 278–279. 15. See Schoen, “The Free Negro in the Republic of Texas: IV. Legal Status,” Southwestern Historical Quarterly 40, no. 3, 169–199; and “The Free Negro in the Republic of Texas: V,” 267–289. 16. Gammel, The Laws of Texas, I, 1079–1080, 1324; II, 35, 554–555, 777–778. 17. Memorial No. 13, File M, April 21, 1838. Maturin was granted a league of land by Governor Viesca in 1828, at the place he selected, subject to the regulations of the colony in which he located.

[ 170 ]

Notes to pages 119–120

Spanish Titles, Vol. 68. Maturin never perfected title under Mexican laws and was barred from receiving title by the laws of Texas. 18. Memorial No. 18, File H, no date. 19. Brazoria County Tax Roll, 1843. State Controller’s Office, Austin. 20. W. D. Wood, “History of Leon County,” in Southwestern Historical Quarterly 4, 211–212. Allen Dimery was accepted as a colonist by David G. Burnet on February 11, 1835, and was granted a league of land on April 23, 1835. Spanish Titles, Vol. 18, 219–220. 21. Memorial No. 13, File 32, September, 1840. 22. Deed from James Smith to William Goyens, May 30, 1839. Henry Raguet Papers, University of Texas Archives. 23. Nacogdoches County Tax Rolls, 1837–1845. 24. Agreement between William Go[y]ens and Henry Raguet, December 13, 1841. Henry Raguet Papers. 25. Bennenow Towns to Colonel Casneau, no date. Starr Papers. 26. Nacogdoches County Tax Roll, 1841. 27. [William B.] Burton’s Lease to Ashworth, November 12, 1838. Benjamin C. Franklin Papers. University of Texas Archives. 28. Jefferson County Tax Rolls, 1837, 1845. 29. See Schoen, “The Free Negro in the Republic of Texas: III. Manumissions,” Southwestern Historical Quarterly 40, 95–98. 30. Sale of the Negro Jerry, John Durst to William Goyen[s], January 3, 1829. Nacogdoches County Court Records, D, 39. University of Texas transcripts. Indenture, October 25, 1826, Nacogdoches Archives, 30, 256. Sale of the Negro Peter, William English to William Goyens, January 20, 1826. Nacogdoches Archives, 28, 219. 31. Nacogdoches County Tax Roll, 1841. 32. Brazoria County Tax Roll, 1844. 33. Texans generally had no qualms over the violation of democratic principles so far as they applied to Negroes, but were rather touchy when the same violations seemed to threaten any class of white men. When opposition developed in the constitutional convention of 1845 to the provision making clergymen ineligible for seats in the legislature, Mr. J. S. Mayfield drew the analogy. He declared: I shall first notice the argument that this provision is an infringement of the declaration that all men are free and equal, and entitled to equal rights. Now, sir, we have made no such declaration, and if we had made it, it would not be true in fact. We have simply declared that all freemen when they form a social compact, have equal rights, and shall be entitled to equal privileges. Now I will ask, gentlemen, if a free black in this country, declared so by the laws of Texas, and a party to the compact, is not as much a freeman, as any who occupies a place upon this floor, or any minister of the gospel? And yet in sections long anterior to this, these gentlemen voted without any compunction of conscience, and without fears that in what they were doing, they were violating republican principles, or the rights of the dear people, to exclude the African and the man of mixed blood from any participation whatever in the legislation of the country. Their fears and alarms were not raised then, though the free black is as much a freeman according to that declaration as any man here. If gentlemen would be consistent with themselves, why not come forward and vindicate the rights of the free blacks, and admit him to a seat and companionship with themselves in our deliberative assemblies? They may show that the political situation of the country may render it necessary that such a qualification should be introduced into the Constitution itself to limit all

Notes to pages 120–121

[ 171 ]

these general principles. If then from the peculiar nature of the case and the circumstances by which we are surrounded, they see proper in that case to adopt a qualification seemingly incompatable with a declaration formerly made, is there anything inconsistent in this? . . . In what respect is a restriction of this kind an injury to the people? If it is the intention to give them unlimited power and control, if no restriction whatever of a political character is to be placed upon the exercise of their judgment and their will, why not throw the subject broad cast, and allow them to elect representatives from freemen of African blood? Wm. F. Weeks (Reporter), Debates of the Texas Convention, 192–193. 34. Bill No. 2497, File 27, Fifth Congress. 35. House Journal, Ninth Congress, 109, 112. 36. Bills No. 2497, File 27, Sixth Congress; No. 2668, File 29, Seventh Congress; No. 2632, File 29, Seventh Congress; Senate Journal, Ninth Congress, 129, 139; House Journals, Eighth Congress, 171; Ninth Congress, 194. The slave patrol was finally created on May 9, 1846. Gammel, The Laws of Texas, II, 345. 37. See Schoen, “The Free Negro in the Republic of Texas: IV. Legal Status,” Southwestern Historical Quarterly 40, 187, note. 38. For the character of offences previous to February 5, 1840, see ibid., 188–189. In the remaining five years, offences were few and continued to be reported in a humorous vein, indicating that they were not a serious menace. Henry Tucker was arrested for assault and battery upon another barber, Price, “a mongrel, a cross of the Chinese and Maltee.” Tucker endeavored to “lather” Price, who, he accused, “had shaved him out of . . . [some] pictures.” Tucker employed a lawyer who frequently honored his client by referring to him as Mr. Tucker. “But the Marshall and Recorder were determined that if there was any shaving done, they would handle the brush and razor, so the Recorder fined Tucker $10 and costs.” The barbers of Houston “put shaving up to four bitts,” which the editor considered “barber-ous.” The Weekly Times (Houston), April 9, 1840. One Negro claiming to be free was sentenced at Galveston on October 21, 1840, to be hung on November 13, for burglary. He confessed on the gallows that he was a slave in the United States and that a white man in Texas forged free papers for him. Daily Picayune, October 28; November 18, 1840. Perry, a free man of color, was indicted for larceny but given a verdict of not guilty, indicating that an accusation against a free Negro was not tantamount to conviction. Harrisburg County District Court Records, D, 351. Harris County Court House, Houston. 39. Memorial No. 33, File 94, November 11, 1841. Gammel, The Laws of Texas, I, 1294–1295. 40. Life of Lundy, 116. 41. Memorial No. 4, File 1, January 4, 1836; Proceedings of the General Council, Gammel, The Laws of Texas, I, 750–751; Arnold v. Martin. 42. George M. Martin to Col. Thomas W. Chambers, September 10, 1851. Chambers Papers. 43. See Schoen, “The Free Negro in the Republic of Texas: IV. Legal Status,” Southwestern Historical Quarterly 40, 170. 44. W. P. Zuber to Z. T. Fulmore, November 10, 1899. Fulmore Papers, University of Texas Archives. 45. Andrew Bell to Dr. James H. Starr, May 8, 1848. Starr Papers, University of Texas Archives. 46. Memorial No. 13, File 32, October 18, 1840. 47. Memorial No. 45, File 5, November 5, 1841. 48. Richard R. Barkeson to Gen[era]l Lamar, August 5, 1838. Lamar Papers, II, 190. 49. Civilian and Galveston City Gazette, September 14, 1842. 50. Smithwick, Evolution of a State, 225–226. 51. Memorial No. 45, File 5, November 5, 1841.

[ 172 ]

Notes to pages 121–123

52. Benton v. Williams. J. W. Dallam (compiler), A Digest of the Laws of Texas: containing a full and complete compilation of the land laws: together with the opinions of the Supreme Court, 496–497; Supreme Court Docket, Austin Sessions, 1842–1845, Cause No. 17. 53. Nacogdoches District Court Minute Book, A, 17; B, 199; C, 189; Complete Records, 25–26. University of Texas photostats. 54. Nacogdoches District Court Minute Book, A, 22, 98; B, 14, 183; C, 10. 55. Samuel A. Roberts to Mirabeau Lamar, February 8, 1838. Lamar Papers, V, 172–173. 56. Memorials No. 380, File 45, December 14, 1840; No. 18, File 54, December 14, 1840; No. 16, File 65, October 30, 1840. 57. Memorial No. 46, File 5, December 4, 1840; Andrew Bell to Dr. James H. Starr, May 8, 1848. Starr Papers. 58. Bill No. 39, File 53, Fourth Legislature; Gammel, The Laws of Texas, III, 1042. 59. Reports and Relief Laws, 249. 60. Harrisburg County Probate Court Records, A, 332. Harris County Court House, Houston. 61. Harriet Smither (editor), “Diary of Adolphus Sterne,” in Southwestern Historical Quarterly 32, 255; 34, 347; 36, 315. 62. John Hutchinson to G. T. Smith, March 30, 1845. G. W. Smyth Papers, University of Texas Archives. 63. Mrs. [M. C.] Houstoun, Texas and the Gulf Coast or Yachting in the New World, I, 291–295. 64. Memorial No. 23, File 75, October 19, 1840. 65. Senate Journal, Fourth Congress, 63. 66. This statement is based upon more documents that can be conveniently cited. Materials for an extended biographical sketch of William Goyens may be found in the Nacogdoches Archives (State Library), the Congressional Papers and Journals, the Nacogdoches County Tax Rolls, and in the records in the Nacogdoches County Court House. 67. Brazoria County Tax Rolls, 1837–1845; Logan to Forbes, November 22, 1841, Document No. 2582, File 28, Sixth Congress. 68. Memorial No. 1, File 52, April 25, 1838. 69. Cevallos came to Texas in a company of Mississippi volunteers to participate in the Revolution but arrived after the battle of San Jacinto. He took part in several expeditions against the Indians and Mexicans and was severely wounded at Salado in 1842. He later fought with the Kentucky volunteers in the Mexican War under General Taylor. Memorials No. 7, File S, December 15 [1840], No. 91, File 81, November 7, 1851; Daily Picayune, August 8, 1852. 70. Memorial No. 16, File T, November 15, 1839. 71. Memorial No. 5, File 71, no date. 72. Memorial No. 33, File 80, September 25, 1839. 73. Andrew Bell to Dr. James H. Starr, May 8, 1848. Starr Papers. 74. Andrew Bell to Dr. James H. Starr, July 29, 1848. Starr Papers. 75. Nacogdoches District Court Records; Nacogdoches Archives. Demanda de Henry Linley contra Juan Walker, January 11, 1831. Records in the Nacogdoches County Court House, University of Texas transcripts. Goyens acted as attorney for John Walker. 76. Ciprian de el toro v. Juan Jose y barba, no date; T. S. Pierson v. Wille Tomas, July 30, 1829; Marcogne Indians v. Guero Gueg, April 3, 1833; Plummer v. Mensack; Nacogdoches Archives, Vol. 28, 119; Vol. 40, 184, 344–345; Vol. 32, 202. 77. “The Records of an Early Texas Baptist Church,” Quarterly of the Texas State Historical Association 11, 92; Numerical Statistics for the Methodist Episcopal Church in Texas, December 28, 1841; Class Paper for 1844. O. M. Addison Papers, University of Texas Archives. 78. Memorial No. 6, File C, March 17, 1838.

Notes to pages 124–128

[ 173 ]

79. See, for example, the speech of Senator Barnett. Senate Journal, Fourth Congress, 64. 80. Memorial No. 1, File 52, April 25, 1838. 81. Joseph Tate served in the army from March 26 to July 26, 1836, Memorial No. 1, File T, November 15, 1839; Elijah Thomas from July to October, 1836; Gibson Perkins from July 7 to October 7, 1836; Edward Smith from July 4 to September 4, 1837; Henry Bird from June 4 to September 4, 1838; Controllers Military Service Records. Pleasant Bious had “Service in the army in defence of the Republic” some time between 1838 and 1841, Memorial No. 45, File 5, November 5, 1841; Joseph Taylor was permanently disabled in an engagement with the Indians before 1846, House Bill No. 100, File 45, Third Legislature; Thomas Cevallos was severely wounded in the battle of Salado in 1842, Daily Picayune, August 8, 1852. Thomas Beale, a seaman on the Brutus, had the only dishonorable record among Negroes, but under extenuating circumstances. Two weeks previous to his desertion, S. Rhoads Fisher, secretary of the navy, described conditions aboard the Brutus as “miserable” and reported that rations would not last more than two weeks. Beale’s disappearance with the exhaustion of the food supply may have been more than a coincidence. At any rate, desertions were frequent. In the one available payroll report of the Brutus, nine desertions are recorded between August 30 and October 16, 1837. Telegraph and Texas Register, May 2, 1837; S. Rhoads Fisher to Colonel A. S. Thuston, Commissary General, April 15, 1837, Schooner Brutus, Payroll No. 3, Navy Papers, Texas State Library. 82. A. Briscoe to E. L. R. Wheelock, February 4, 1841. Wheelock Papers, University of Texas Archives. Jarret Young was accepted as a colonist by Robert Leftwich and as a married man received a league of land on February 25, 1835. Spanish Titles, Vol. 14, 137–139. 83. Daily Picayune, November 18, 1840. 84. Telegraph and Texas Register, September 9, 1837. 85. Nacogdoches Archives, Vol. 89, 1. 86. Telegraph and Texas Register, March 24, 1838. The law provided that a notice of runaway slaves held in jail should be published weekly for one month, and if not claimed in six months, upon thirty days’ notice the Negroes were to be sold to the highest bidder at public auction. Gammel, The Laws of Texas, II, 649. 87. [A. Horton], “History of San Augustine, Reminiscences of an Old Time Resident,” 20–21. University of Texas transcripts. 88. Joseph Hamilton to Abner S. Lipscomb, April 21, 1840. House Journal Appendix, Fifth Congress, 23. 89. Nacogdoches Archives, Vol. 30, 59–62. 90. The Morning Star, January 28, 1840. 91. David G. Burnet to Commander Hamilton, January 29, 1840. House Journal Appendix, Fifth Congress. 92. Abner S. Lipscomb to Commander Hamilton, March 31, 1840. House Journal Appendix, Fifth Congress, 24–25. 93. Abner S. Lipscomb to Commander Hamilton, February 14, 1840. House Journal Appendix, Fifth Congress, 23–24. 94. Joseph Hamilton to Abner S. Lipscomb, April 21, 1840. House Journal Appendix, Fifth Congress, 23. The chief evidence upon which Taylor was convicted, in addition to the testimony of the Negroes themselves, was the deposition of Joseph Grigsby that since the adoption of the constitution he had regarded the Negroes in his care as slaves. Before the trial Taylor asked Lamar to conduct an investigation to determine if any of these Negroes had been held de jure or de facto as slaves. On the grounds that an inquiry would be attended with some trouble and expense and that it was not essential to Taylor’s vindication, Lamar contented himself with a declaration that no person who was not a slave previous to his immigration could be subjected to “absolute” slavery. A month after

[ 174 ]

Notes to pages 128–131

Taylor’s conviction, Lamar complied with Taylor’s four month old request for an inquiry which was confined to depositions made by those involved in the transactions. In these depositions, Grigsby, for one, contradicted the testimony first given to Hamilton. Apparently the new evidence did not, in the eyes of British justice, warrant a new trial, and here the matter was dropped. George P. Garrison (editor), Diplomatic Correspondence of the Republic of Texas, II, 901–905, 911–914; House Journal Appendix, Fifth Congress, 19–25; The Morning Star, January 28, 1840; Telegraph and Texas Register, October 21, 1840, February 24, 1841. 95. Hamilton to Lipscomb, April 21, 1840, House Journal Appendix, Fifth Congress, 23; Taylor to Lamar, July 28, 1840; depositions of Joseph Grigsby and A. B. Hardin; contract between William Moore and John Taylor, May 28, 1836, George P. Garrison (editor), Diplomatic Correspondence of the Republic of Texas, 911–914. Daniel O’Donnell, the British abolitionist, claimed that an additional twelve British subjects were detained in slavery in Texas, and he proposed that a British legion of twelve hundred men be sent to ally with Mexico and wage war, but nothing seems to have come of the charge. Telegraph and Texas Register, February 24, 1841.

Chapter 4 The End of Slavery in Texas 1. The celebration of June 19, 1865, by Texas blacks is well known, but documentation is provided by Joe B. Frantz, Texas: A Bicentennial History (New York, 1976), 115, and Rupert Norval Richardson, Ernest Wallace, and Adrian N. Anderson, Texas, the Lone Star State (3rd ed.; Englewood Cliffs, N.J., 1970), 206. 2. Granger’s order is in Daniel S. Lamont (comp.), The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies (Washington, D.C., 1896), series I, vol. 48, part 2, 929. 3. Alwyn Barr, Black Texans: A History of Negroes in Texas, 1528–1971 (Austin, 1973), 39–40. 4. The facts of these three slave transactions are found in Algier v. Black, 32 Tex. 168–170; Garrett v. Brooks, 41 Tex. 479–483; Williams v. Arnis, 30 Tex. 37–38, 39 (quotation), 40–51. Supreme Court decisions involving slavery are an excellent source on the institution in general, regardless of the legal issues at stake, because of the factual information presented. E. M. Wheelock wrote the reports for 32 Tex. (St. Louis, 1882) and George W. Paschal those for 30 Tex. (Washington, D.C., 1870). 5. Williams v. Arnis, 30 Tex. 37–38, 39 (quotations), 40–51. In this case as well as in the others cited below, much of the material on the court’s decision is taken from the introductory synopsis of that decision; these synopses were generally written by the reporter of the volume. George W. Smith became a Texas Supreme Court justice on June 25, 1866, during presidential Reconstruction, and was removed on September 10, 1867, after Congress took over. It might be expected, then, that his views would be essentially conservative and would tend to uphold property rights in slaves. Walter Prescott Webb, H. Bailey Carroll, and Eldon Stephen Branda (eds.), The Handbook of Texas (3 vols.; Austin, 1952, 1976), II, 446–447, 623; III, 892. 6. The Emancipation Proclamation Cases (Hall v. Keese and Dougherty v. Cartwright), 31 Tex. 504, 505 (quotations), 506–556. Morrill, Lindsay, and Latimer all came to the supreme court during congressional Reconstruction and were, therefore, presumably satisfactory to Republican leaders. Lindsay (born in Virginia) and Latimer (born in Tennessee) were Southerners, while Morrill (born in Massachusetts) was not, but there does not appear to be a great difference in background or politics between these three justices and the two dissenters, Webb, Carroll, and Branda (eds.), Handbook of Texas, II, 34, 59, 237. (For information on the dissenting justices, see below, note 9.) George W. Paschal also reported 31 Tex. (Washington, D.C., 1870).

Notes to pages 131–141

[ 175 ]

7. Emancipation Proclamation Cases, 31 Tex. 504, 506 (quotation), 507–556. 8. Ibid., 506. 9. Ibid., 508 (3rd and 4th quotations), 534–550, 551 (1st quotation), 552 (2nd quotation), 553–556. Hamilton and Caldwell, much like Lindsay and Latimer, were southern-born unionists who had come to Texas before the Civil War. Webb, Carroll, and Branda (eds.), Handbook of Texas, I, 759–760; III, 134. 10. Algier v. Black, 32 Tex. 168–169, 170 (1st quotation); McDaniel v. White, 32 Tex. 489 (2nd quotation), 490–491. 11. Morris v. Ranney, 37 Tex. 124 (1st quotation), 125 (2nd and 3rd quotations); Dowell v. Russell, 39 Tex. 401–402 (4th and 5th quotations); Webb, Carroll, and Branda (eds.), Handbook of Texas, III, 346. For biographical information on Walker and Ogden, the two justices who seemed reluctant to rule that property rights in slaves existed after January 1, 1865, see ibid., II, 303, 853. E. M. Wheelock reported 37 Tex. (Houston, 1874). 12. Garrett v. Brooks, 41 Tex. 479–481, 482 (quotation), 483; Webb, Carroll, and Branda (eds.), Handbook of Texas, I, 495. Terrell L. Walker was the reporter of 41 Tex. (St. Paul, Minn., 1875). 13. Emancipation Proclamation Cases, 31 Tex. 509. It might be noted too that a decision in favor of January 1, 1863, probably would have opened the way for a flood of litigation as hundreds of Texans sued to recover the property or cash they had paid to purchase or hire slaves after that date.

[ 176 ]

Notes to pages 141–143

★

Selected Bibliography

Addington, Wendell G. “Slave Insurrections in Texas.” Journal of Negro History 34 (1950): 408– 434. Barker, Eugene C., ed. The Austin Papers. 3 vols. Washington, D.C.: U.S. Government Printing Office, 1924–1928. [The repository for the Austin Papers is the Dolph Briscoe Center for American History, University of Texas at Austin.] ———. “The Influence of Slavery in the Colonization of Texas.” Southwestern Historical Quarterly 28, no. 1 ( July 1924): 1–33. Barr, Alwyn. Black Texans: A History of African Americans in Texas, 1528–1995. 2nd ed. Norman: Univ. of Oklahoma Press, 1996. Berlin, Ira. Slaves without Masters: The Free Negro in the Antebellum South. New York: New Press, 1974. Bugbee, Lester G. “Slavery in Early Texas, I.” Political Science Quarterly 13 (September 1898): 389–412. ———. “Slavery in Early Texas, II.” Political Science Quarterly 13 (December 1898): 648–668. Campbell, Randolph B. An Empire for Slavery: The Peculiar Institution in Texas, 1821–1865. Baton Rouge: Louisiana State Univ. Press, 1989. ———. “The End of Slavery in Texas: A Research Note.” Southwestern Historical Quarterly 88 ( July 1984): 71–80. Catterall, Helen, ed. Judicial Cases Concerning American Slavery and the Negro. 5 vols. Washington, D.C.: Carnegie Institution, 1926–1937. Cobb, Thomas R. R. An Inquiry into the Law of Negro Slavery in the United States of America: To Which Is Prefixed, an Historical Sketch of Slavery. Philadelphia: Johnson; Savannah, Ga.: Thorne Williams, 1858. Reprints, New York: Negro Universities Press, 1968; Athens: Univ. of Georgia Press, 1999. Cover, Robert M. Justice Accused: Antislavery and the Judicial Process. New Haven, Conn.: Yale Univ. Press, 1975. Craton, Michael. Roots and Branches: Current Directions in Slave Studies. New York: Pergamon, 1979. Crouch, Barry A. “‘All the Vile Passions’: The Texas Black Code of 1866.” Southwestern Historical Quarterly 97, no. 1 ( July 1993): 13–34. Davidson, Mark. “One Woman’s Fight for Freedom: Gess v. Lubbock, 1851.” Houston Lawyer, January– February 2008, 10–15. Dublán, Manuel, and José María Lozano, eds. Legislación Mexicana ó Colección Completa de las

Disposiciones Legislativas. Edición Oficial. 42 vols. México: Imprenta del Comercio, á Cargo de Dublan y Lozano, Hijos, 1876–1904. Fede, Andrew. People without Rights: An Interpretation of the Fundamentals of the Law of Slavery in the U.S. South. New York: Garland, 1992. Finkelman, Paul, ed. Articles on American Slavery. 18 vols. New York: Garland, 1989. ———. Defending Slavery: Proslavery Thought in the Old South. Bedford, UK: Bedford/St. Martin’s, 2003. ———. The Law of Freedom and Bondage: A Casebook. New York: Oceana, 1986. ———. “The Peculiar Laws of the Peculiar Institution.” Reviews in American History 10 (1982): 358–363. ———, ed. Slavery and the Law. Lanham, Md.: Madison House, 1997. ———, ed. Slavery in the Courtroom: An Annotated Bibliography of American Cases. Washington, D.C.: Library of Congress, 1985. ———, ed. Slavery, Race, and the American Legal System, 1700-1872. New York: Garland, 1988. ———, ed. State Slavery Statutes. Frederick, Md.: Univ. Publications of America, 1989. ———. “Thomas R. R. Cobb and the Law of Negro Slavery.” Roger Williams Law Review 5 (1999): 75–115. Fisher, John E. “The Legal Status of Free Blacks in Texas, 1836–1861.” Texas Southern Law Review 3, no. 1 (Spring 1973): 342–362. Flanigan, Daniel J. “The Criminal Law of Slavery and Freedom.” PhD diss., Rice University, 1973. ———. “Criminal Procedure in Slave Trials in the Antebellum South.” Journal of Southern History 40 (1974): 537–564. Fogel, Robert W. Without Consent or Contract: The Rise and Fall of American Slavery. New York: Norton, 1989. Fredrickson, George M. The Arrogance of Race: Historical Perspectives on Slavery, Racism, and Social Inequality. Middletown, Conn.: Wesleyan Univ. Press, 1988. Friedman, Leon, ed., Southern Justice. New York: Pantheon, 1965. Fuller, Lon L. Legal Fictions. Stanford, Calif.: Stanford Univ. Press, 1967. Gammel, H. P. N., comp. The Laws of Texas, 1822–1897. Austin: Gammel, 1898. Available online at http://texinfo.library.unt.edu/lawsoftexas/. Gates, E. Nathaniel. “Bondage, Freedom and the Constitution: The New Slavery Scholarship and Its Impact on Law and Legal Historiography.” Cardozo Law Review 17 (May 1996): 1685–1694. Goodell, William. The American Slave Code in Theory and Practice. New York: American and Foreign Antislavery Society, 1853. Hartley, Oliver C. A Digest of the Laws of Texas. Philadelphia: Thomas, Cowperthwait, 1850. Hollander, Barnett. Slavery in America: Its Legal History. London: Bowes and Bowes, 1962. Howren, Alleine. “Causes and Origin of the Decree of April 6, 1830.” Southwestern Historical Quarterly 16, no. 4 (April 1913): 378–422. Hurd, John Codman. The Law of Freedom and Bondage in the United States. 2 vols. New York: Little, Brown, 1880. Reprint, New York: Negro Universities Press, 1968. Johnson, Walter. “Inconsistency, Contradiction, and Complete Confusion: The Everyday Life of the Law of Slavery.” Law and Society 22 (Spring 1997): 405–433. Kolchin, Peter. American Slavery, 1619–1877. New York: Hill and Wang, 1993, 2003. Lack, Paul D. “Slavery and the Texas Revolution.” Southwestern Historical Quarterly 89 (1985): 181–202. Levinson, Sanford. “Slavery in the Canon of Constitutional Law.” Chicago-Kent Law Review 68 (1993): 1087–1111. Lynch, James D. The Bench and Bar of Texas. St. Louis: Nixon-Jones, 1885.

[ 178 ]

The Laws of Slavery in Texas

McGhee, Fred Lee. “The Black Crop: Slavery and Slave Trading in Nineteenth Century Texas.” PhD diss., University of Texas at Austin, 2000. Miller, Joseph C. Slavery: A Worldwide Bibliography, 1900–1982. White Plains, N.Y.: Kraus International, 1985. Miller, Randall M., and John David Smith, eds. Dictionary of Afro-American Slavery. New York: Greenwood, 1988. Morris, Thomas D. Free Men All: The Personal Liberty Laws of the North, 1780–1861. Baltimore: Johns Hopkins Univ. Press, 1973. ———. “Slaves and the Rules of Evidence in Criminal Trials.” Chicago-Kent Law Review 68 (1993): 1209–1240. ———. Southern Slavery and the Law, 1619–1860. Chapel Hill: Univ. of North Carolina Press, 1996. Muir, Andrew Forest. “The Free Negro in Harris County, Texas.” Southwestern Historical Quarterly 46, no. 3 ( January 1943): 214–238. Nash, A. E. Keir. “Fairness and Formalism in the Trials of Blacks in the State Supreme Courts of the Old South.” Virginia Law Review 56 (February 1970): 64–100. ———. “In Re Radical Interpretations of American Law: The Relation of Law and History.” Michigan Law Review 82 (1981): 274–344. ———. “A More Equitable Past? Southern Supreme Courts and the Protection of the Antebellum Negro.” North Carolina Law Review 48 (1970): 197–242. ———. “Negro Rights and Judicial Behavior in the Old South.” PhD diss., Harvard University, 1968. ———. “Reason of Slavery: Understanding the Judicial Role in the Peculiar Institution.” Vanderbilt Law Review 32 (1979): 7–218. [Entire issue.] ———. “The Texas Supreme Court and Trial Rights of Blacks, 1845–1860.” Journal of American History 48, no. 3 (December 1971): 622–642. Oakes, James. Slavery and Freedom: An Interpretation of the Old South. New York: Knopf, 1990. Oldham, Williamson S., and George W. White. A Digest of the General Statute Laws of the State of Texas. Austin: Marshall, 1859. Olson, James Stuart. Slave Life in America: A Historiography and Selected Bibliography. Lanham, Md.: Univ. Press of America, 1983. Owens, Leslie Howard. This Species of Property: Slave Life and Culture in the Old South. New York: Oxford Univ. Press, 1976. Phillips, Ulrich B. American Negro Slavery: A Survey of the Supply, Employment and Control of Negro Labor as Determined by the Plantation Régime. New York: Appleton, 1918. Reprint, Baton Rouge: Louisiana State Univ. Press, 1966. Reports of Cases Argued and Decided in the Supreme Court of the State of Texas. Vols. 1–30, covering the period 1845 to 1874. St. Louis: Gilbert, 1881–1883. Available online at www .library.unt.edu/digitalprojects/news-events/texas-reports/. Rose, Willie Lee. Slavery and Freedom. Oxford: Oxford Univ. Press, 1982. Russell, Marion J. “American Slave Discontent in the Records of the High Courts.” Journal of Negro History 31 (1946): 411–434. Schoen, Harold. “The Free Negro in the Republic of Texas: I. Origin of the Free Negro in the Republic of Texas.” Southwestern Historical Quarterly 39, no. 4 (April 1936): 292–308. ———. “The Free Negro in the Republic of Texas: II. The Free Negro and the Texas Revolution.” Southwestern Historical Quarterly 40, no. 1 ( July 1936): 26–34. ———. “The Free Negro in the Republic of Texas: III. Manumissions.” Southwestern Historical Quarterly 40, no. 2 (October 1936): 85–113.

Selected Bibliography

[ 179 ]

———. “The Free Negro in the Republic of Texas: IV. Legal Status.” Southwestern Historical Quarterly 40, no. 3 ( January 1937): 169–199. ———. “The Free Negro in the Republic of Texas: V. The Law in Practice.” Southwestern Historical Quarterly 40, no. 4 (April 1937): 267–289. ———. “The Free Negro in the Republic of Texas: VI. The Extent of Discrimination and Its Effects.” Southwestern Historical Quarterly 41, no. 1 ( July 1937): 83–108. Shaw, Robert B. A Legal History of Slavery in the United States. Potsdam, N.Y.: Northern Press, 1991. Smith, John David, comp. Black Slavery in the Americas: An Interdisciplinary Bibliography, 1865–1980. Westport, Conn.: Greenwood, 1982. Smither, Harriet, ed. Journals of the Fourth Congress of the Republic of Texas, 1839–1840. 3 vols. Austin: Von Boeckmann–Jones, 1929–1931. Stampp, Kenneth. The Peculiar Institution: Slavery in the Ante-Bellum South. New York: Vintage, 1965. Stroud, George McDowell. A Sketch of the Laws Relating to Slavery in the Several States of the United States of America. Philadelphia: Kimber and Sharpless, 1827. Styron, William. The Confessions of Nat Turner. New York: Random House, 1966. Tushnet, Mark V. “The American Law of Slavery, 1810–1860: A Study in the Persistence of Legal Autonomy.” Law and Society Review 10 (1975): 119–184. ———. The American Law of Slavery, 1810–1860: Considerations of Humanity and Interest. Princeton, N.J.: Princeton Univ. Press, 1981. ———. “Slave Law as Contract and Hierarchy.” Reviews in American History 24, no. 4 (December 1996): 590–595. Tyler, Ronnie C., Douglas E. Barnett, and Roy R. Barkley, eds. The New Handbook of Texas. 6 vols. Austin: Texas State Historical Association, 1996. Available online at www.tshaonline.org/ handbook/online/. Watson, Alan. Slave Law in the Americas. Athens: Univ. of Georgia Press, 1989. Wheeler, Jacob D. A Practical Treatise of the Law of Slavery. N.p., 1837. Reprint, New York: Negro Universities Press, 1968. Wiethoff, William E. A Peculiar Humanism: The Judicial Advocacy of Slavery in High Courts of the Old South, 1820–1850. Athens: Univ. of Georgia Press, 1996. Woolfolk, George R. The Free Negro in Texas, 1800–1860: A Study in Cultural Compromise. Ann Arbor, Mich.: Univ. Microfilms International, 1976. ———. “Sources of the History of the Negro in Texas, with Special Reference to Their Implications for Research in Slavery.” Journal of Negro History 42, no. 1 ( January 1957): 38–47. Wooten, Dudley G., ed. A Comprehensive History of Texas, 1685 to 1897. 2 vols. Dallas: Scarff, 1898.

[ 180 ]

The Laws of Slavery in Texas

★

Index

Abe (slave), 62 abolitionists, 128–129 African Americans. See free blacks; slaves and slavery Alabama, 72, 78, 79, 80, 84, 164n13, 166–167n62 Alaman, Lucas, 33, 43–46, 156n24, 159–160n18 Alexander, J. and N., 61 Alexander v. State, 82 Algier, M. S., 140 Algier v. Black, 175n4, 176n10 Allen, A. C., 127 Allen, John M., 61 Allen v. The State, 162n15 Almonte, Juan, 46, 47, 48–49 Anderson (slave), 65 Anderson v. State, 168n90 antebellum period. See Republic of Texas; Texas (state) Arcineaga, Miguel, 15–16 Arispe, 157n25 Arkansas, 77, 165n41 Armstrong v. Jowell, 163n31, 167n63 Arnis, Henrietta, 140–141 Arnold, B. D., 65 Arnold, Hendrick, 121, 122 Ashworth, Abner, 115–116, 121 Ashworth, William, 126 Ashworth Act, 115–116 Ashworth family, 115–116, 119, 121 Ashworth v. State, 165n29 Austin, James Brown, 30–33, 160n46 Austin, Moses, 21–22, 155n6 Austin, Stephen F.: on agitators in Mexican Texas, 45; attitude of, toward slavery,

47–49, 160n46; and colonization law of Mexico (1823), 8, 23–26, 29; colonization of Texas by, 3, 8, 10–11, 22–26, 47–49, 120; Colony Criminal Regulations (1824) of, 3, 10–11, 56; and emancipation decree (1829), 38–40, 42; and Indian campaign, 46; and Mexican Constitution (1824), 157n25; on Mexico’s independence from Spain, 155–156n9; as slaveholder, 47, 160n46; and slave laws, 10–11, 14, 15, 19, 24–25, 28–36, 38–42, 47–49, 52; slaves owned by, 47; on slave trade, 46 Austin v. Ritz, 168n3 Bancroft, H. H., 155–156n9 Barkeson, Richard R., 123 Barnett, George W., 67 Barnett, Mr., 109 Bastrop, Baron de, 31, 32, 49 Beale, Thomas, 174n81 Bele (Bailey), Mr., 130 Bell, Andrew, 122–123, 125, 127 Bell, James H., 61, 64–65, 71, 76, 81, 84, 94–105 Bell, Josiah H., 25, 46 Bell, Louiza, 123, 127 Bell v. Hill, 164n6 Ben (slave), 129 Benton, Jesse, 124, 134–135 Benton v. Williams, 134–135 Berry, Radford, 124 Bious, Pleasant, 123, 169n6 Bird, Charity, 127 Bird, John, 127 Bird family, 119, 127

Black, David, 140 Blackman v. Gordon, 78 blacks. See free blacks; slaves and slavery Blythe v. Speake, 161n6 Bob v. State, 166n60 Bostick, Richard S., 63 Botts, John, 46 Boulware v. Hendricks, 163n32 Brenaugh, M., 46 Brigham, Jim, 68 Briscoe, A., 129 Brooks, John H., 140, 143, 151–154 Brown, John Henry, 155–156n9 Brown v. Mississippi, 72, 164n7 Brown v. The United States, 145 Bruton v. State, 82 Bryan, Guy M., 157n25 Buckley, C. W., 90–92, 168n6, 168–169n7 Bugbee, Lester G., 21–50 Burleson, Aaron, 68 Burnet, David G., 110, 114, 131 Burton, Mr., 110 Bushare, Robert, 129 businesses of free blacks, 126–128 Bustamante, 44, 45 Byden, Frederick W., 126 Cain, James, 61 Cain v. State, 162n14, 168n90 Caldwell, Colbert, 142, 144, 150, 176n9 Calhoun, John C., 169n14 Calvin (slave), 65 Calvin v. State, 71, 75, 76 Campbell, Randolph B., xi, 1–6, 56–69, 139–143 Carey (free black), 126 Carrillo, Deputy, 31–32, 49 Carter, Edmund J., 128 Carter v. State, 168n90 Cash, W. J., 165n33 Catron, John, 166n60 Cavallos, 31 Cevallos, Thomas, 127, 173n69, 174n81 Chandler, David, 73–74 Chandler v. State, 73–74 Chickasaw Indian, 80 Ciprian de el toro v. Juan Jose y barba, 173n76 Civil Rights Act (1964), 168n89 Civil War, 84, 145–150

[ 182 ]

The Laws of Slavery in Texas

Clark, Edward, 92 Clark v. Southern Pacific Railroad, 161n8 Cleland v. Waters, 166n59 Clifton, John M., 125 Coahuila and Texas. See Mexican Texas Coke, Richard, 143, 151 colonization laws, 8–9, 23–27, 29, 45, 155n8. See also Mexican Texas Confederate States of America, 5, 83–84, 148, 151, 153. See also Confederate Texas Confederate Texas: end of slavery in, 139–143, 151; sale of slaves in, 130–144, 151–154; secession by, 5, 83, 137–138, 148 Confessions of Nat Turner, The (Styron), 1–2 Cooper v. Blakey, 166n59 crimes: by blacks against fellow blacks, 64–65, 76, 165n33; capital offenses, 59–65, 67, 161n2, 162n24; executions of slaves, 59–60, 62–64, 165n33, 172n38; felony trials of blacks, 73, 75–76; by free blacks, 5, 67, 121–122, 172n38; jury trial of slaves for, 62, 63–64; and lynch law, 63–64; murder of child, 64; murder of slaveholders by slaves, 17, 63, 64; murder of slaves, 55, 73–74, 94– 105; personal injuries to blacks by whites, 72–75, 124, 134–135; by slaves, 3, 11, 55, 57, 61–65; stealing of slaves, 3, 10–11, 57, 60–61, 73, 82–83; whipping as punishment for, 62, 94, 95, 97, 101–102, 122 Curry v. Curry, 167n65 Dave (slave), 63–64 Davidson, Mark, 87–93 Davis, Edmund J., 142, 170n12 De Torres, Patricio, 124 Devine, Thomas J., 143, 151–154 DeWitt, 156n10 Dimery, Allen, 120 discrimination against free blacks, 107–133 Dodson, John M., 76 Doswell, James, 129 Dougherty v. Cartwright, 141–142, 144–150, 175n6 Dowell v. Russell, 142–143, 176n11 Dublán y Lozano, Manuel, 43 Durst, John, 38–39, 43, 120 Echols v. Dodd, 161n8

education of free blacks, 16, 33, 128 Edwards, 156n10 Edwards, Peyton F., 152 Elizabeth, A Slave v. The State, 64, 162n22 Ellis, Richard, 35, 48 emancipation: emancipation decree (1829) by Mexico, 38–45, 50; emancipation decree (1837) by Mexico, 44; Juneteenth and end of slavery in Texas, 5, 139–154, 175n1; Lincoln’s Emancipation Proclamation, 5, 139, 140–141, 144, 147, 149, 151, 153, 176n13; Mexican decree (September 15, 1829) of, 37–44; Mexican Texas exempted from emancipation decree (December 2, 1829), 42–44, 50, 159n14; in Republic of Texas, 4, 5, 46, 67, 107–111; and Texas Constitution (1845), 54–55. See also manumission Emancipation Proclamation, 5, 139–141, 144, 147, 149, 151, 153, 176n13 Emancipation Proclamation Cases, 141–142, 144–150, 175n6, 176n13 employment of free blacks, 124–128 Everett, S. H., 67 Everitt, Mr., 108, 109 Fairchild, Hubert, 77 Ferrier, Jacob, 156n10 Fields v. State, 74 Fifteenth Amendment, 164n12 Figueroa, Cesario, 20 Fisher, George, 127 Fisher, S. Rhoads, 49, 174n81 Fitch, D. H., 58 Foote, Henry, 127 Forbes, Henry, 129 Forbes, R. M., 169–170n10 Ford v. Ford, 167n66 Fort, Dr., 58 Fourteenth Amendment, 71, 72, 164n12 Franklin, Benjamin Cromwell, 91, 92, 170n12 Frazier v. Frazier’s Executors, 78 free blacks: in antebellum period (1836–1860), 4–5, 46, 57, 60, 66–69, 107–135, 163n31; and Ashworth Act, 115–116; assault of, by white man, 124, 134–135; attitudes of whites toward, 132–133; Benton v. Williams, 134–135; businesses of, 126–128; city ordinances on, 123; crimes by and criminal code on,

5, 67, 121–122, 172n38; debt collection by, 127–128; discrimination against, 66–67, 107–133; education of, 16, 33, 128; employment of, 124–128; exclusion of, from citizenship, 119, 124, 171–172n33; exclusion of court testimony by, 119, 123–124, 127, 128; exemptions for expulsion of, from Republic of Texas, 115–116; expulsion of, from Louisiana, 35; and fear of banishment from Texas, 131–132; grievances of, to Congressmen, 119, 169–170n10; intelligence of, 128; land ownership and leasing by, 119–121, 170–171n17; law against insurrections by, 60, 67; legal definition of, 162–163n28; legal restrictions on, 112–115, 118, 121–122, 131; legal treatment of, like slaves, 121–122; marriage of, 122–123; and Mexican Texas, 35, 118, 128; military service by, 129, 173n69; as orphans, 125; patriotism of, 128–129; population statistics of, 4, 68, 169n3; and property rights, 119–121, 131–132, 170–171n17; and religion, 128; and right of petition to Republic of Texas Congress, 118; and right to sue, 124, 127, 128, 134–135, 170n12; seizure and enslavement or indenture of, 129–131; as slaveholders, 115, 121; as threat to slavery, 57, 67, 68, 107–110, 132; voluntary slavery for, 68–69, 77, 163n34 Gaffeney, William, 63 Gaines v. Ann, 162–163n28 Garcia Rojas, Ramon, 15–16 Garner, David, 131 Garrett, William, 140, 151–154 Garrett v. Brooks, 143, 151–154, 175n4, 176n12 Georgia, 74, 78, 79, 164n10, 167n73 Gess, Margaret, 87–93 Gess v. Lubbock, 87–93, 155n6, 170n13 Gober, William C., 63–64 Gober’s son, 63–64, 162n21 Gonzales, Juan A., 15–16 Gordon v. Blackman, 165n41 Gowns, Eliza and Louisa, 123 Goyens, William, 120–122, 124, 126, 128, 130 Grande, José J., 20 Granger, Gordon, 5, 139–140, 143, 144, 151, 153 Gravenor, Col., 130 Green, Nathan, 167n66

index

[ 183 ]

Greer v. State, 83 Grigsby, Joseph, 131, 174–175n94 Grinder v. The State, 161n2 Groce, Jared E., 46 Guerrero Saldaña, Vicente Ramón, 37, 38, 43–45, 47, 49, 50, 88 Guess v. Lubbock. See Gess v. Lubbock Guffey v. Moseley, 162n17 Gunsil, William, 131 Hagerty, Rebecca, 2 Hagerty v. Harwell, 2, 155n2 Hall, John, 73 Hall v. Keese, 141–142, 144–150, 175n6 Hamblet, Violet, 125 Hamilton, Andrew Jackson, 68, 142, 143, 144, 147–150, 176n9 Hamilton, Joseph, 130–131 Hamm v. City of Rockhill, 168n89 Handy, Alex, 167n71 Hardin, A. B., 131 Hardin, Emanuel J., 120 Hardin, Samuel H., 120, 121 Harris, Jane, 125 Harris, William L., 167n71 Hawkins, Joseph H., 46 Haywood, John, 79, 166n60 Hedgepeth, Henry B., 94–105 Hedgepeth and Others v. Robertson, 94–105 Hemphill, John, 58, 59, 61, 83–84, 168n92, 169n6 Henderson, J. W., 90 Henderson, Leonard, 74 Hendrick, Arnold, 121 Hicks, Edward, 130, 131 Hillard v. Frantz, 81 Hockley, George W., 127 homestead exemption, 4, 57–58, 87 Hood, A. W. and R. L., 95–98 Houston, Sam, 62, 64, 66, 89, 92, 168n2 Houston v. Lamar, 168nn2,6 Howe, Mark DeWolfe, 71, 72 Howth, Mr., 99 Humboldt, 22 Hunt, Memucan, 119 Hutchinson, Joseph, 126 Ingram & Wife v. Atkinson & Wife, 162n17

[ 184 ]

The Laws of Slavery in Texas

inheritance of slaves, 15–16, 33 insurrection of slaves, 55, 60–61, 62, 82, 132 interstate comity, 77, 80–81 Iturbide, Emperor Agustín de, 8–9, 12, 23–26, 49 Jack (slave), 64–65 Jack, P. C., 134 Jackson, Palmer, 129 James (free black), 124 Jefferson, Thomas, 1 Jeffries, D. R., 61 Jincey v. Winfield, 167n73 John (slave), 94–105 Johnson, Andrew, 92, 153 Johnston, Job, 77 Jones, J. B. and G. A., 95–102 Jones, Oliver, 107–109 Jones v. Laney, 80 Jordan v. Bradley, 166n58 Juneteenth, 5, 139–154, 175n1 justice of the peace courts, 62 Kaufman, David S., 110, 114 Kavanaugh, Nelson, 119, 127, 128–129 Kedman, Samuel, 131 Kentucky, 80 Kerchoff, Thomas, 61 Kingston, S. M., 61 Kingston v. State, 162n15, 168n90 Kirby, Jared E., 95–101 Knight v. Hardeman, 167n71 Lamar, Mirabeau: court cases involving, 168nn2,6; free blacks employed by, 123, 125; and indentured blacks, 130–131, 174–175n94; and laws on free blacks, 111, 114; as president of Republic of Texas, 89, 111, 114, 130–131 Lamar v. Houston, 168n2 Latimer, Albert H., 144, 147, 176n6 laws of slavery. See slave laws Leftwich, Robert, 156n10, 174n82 Lemmond v. Peoples, 166n50 Lewis, William G., 111 Lincoln, Abraham, 5, 84, 137, 139–144, 151, 153 Lindsay, Livingston, 141–142, 144, 146–147, 175n6

Lipscomb, Abner S.: as Alabama Supreme Court judge, 78, 84, 170n14; and Calhoun, 170n14; on capital punishment of slaves, 161n2; death of, 168n93; and Gess v. Lubbock, 91, 170n14; and Grinder v. The State, 161n2; and Hagerty v. Harwell, 2; and manumission, 78–81, 91, 166–167n62; and Moore v. Minerva, 80–81; on property rights and slave laws, 2; as Secretary of State, 131; on slave laws, 2, 4; term of, on Texas Supreme Court, 168n92; and Trotter v. Blocker, 78–79, 166–167n62 Lipscomb, F., 95–102 liquor sales, 60, 61, 73, 82, 121 Little, Elisha D., 65 Livingston v. Moon, 145 Llorca (York), Mr., 130 Locke, John, 1 Logan, Greenbury and Caroline, 126–127, 169–170n10 Long, Jane, 168n1 Louisiana, 35, 165n28 Lovett, Samuel, 61 Lovett v. State, 82–83, 162n14 Lubbock, Francis, 89–92, 168n3 Lumpkin, Joseph H., 166n59, 167n71, 168n73 Lynch, Henry, 118, 127–128, 169n6 lynch law, 63–64 Lyons v. Martin, 101 Madison, Mary, 125 Mailan, Benjamin, 156n10 manumission: and interstate comity, 77, 80– 81; in Mexican Texas, 15–17; and monetary damages for unlawful detention, 77; oral promises of, 77, 81; in Republic of Texas, 5, 107–111; and Republic of Texas Congress, 107–111; and rescinding free blacks’ agreement on voluntary slavery, 77, 81; and slaves’ right to make a legally cognizable choice on, 77–80; in state of Texas, 67–68, 76–81; Texas Supreme Court cases on, 67–68, 73, 76–81, 87–93; voluntary manumission, 5, 17, 77, 81; and wills, 77–80. See also emancipation Marcogne Indians v. Guero Gueg, 173n76 Maria, A Freedwoman v. The State, 65, 162n24 marriage of free blacks, 122–123

Martin, Peter, 67, 107–111, 126 Martin, Wylie, 46, 67, 107–111, 126 Martin v. State, 82 Marxist perspective on slave laws, 2, 163n35 Mary (former slave), 65 Matilda v. Crenshaw, 167n75 Maturin, Jean Baptiste, 120, 170–171n17 Mayfield, J. S., 171–172n33 Mayo v. Whitson, 165n38 McAllister, Thomas, 124 McCullough, Samuel, Jr., 122 McDaniel v. White, 176n10 McGregor, E. Murray, 131 McKinney, Thomas F., 126 McKinney v. Fort, 58, 161n7 McManus v. Crickett, 101, 102 Meadow, H. J., 140–141 Mexican Texas: agitators in, 45; agriculture and plantations in, 34, 40, 41, 46, 47–48; and antislavery attitude of Mexico, 3, 4, 8–9, 12–13, 19, 21–36; antislavery attitudes in, 47–49; Austin’s Colony Criminal Regulations (1824), 10–11, 56; colonization laws on, 8–9, 23–27, 29, 45, 155n8; Constitution Coahuila and Texas of (March 11, 1827), outlawing slavery, 3, 14, 27, 29–34, 49; contract system in, permitting importation of slaves as indentured servants (Decree No. 56), 3, 18, 20, 33–36, 49–50; creation of state of Coahuila and Texas, 29; and emancipation decree (1829), 37–45, 38–45, 50; and emancipation decree (1837), 44; end of immigration from U.S. into, 19, 45; enumeration of slaves and education of free children of slaves in (Decree No. 18), 15–16, 33; exemption for, from emancipation decree (December 2, 1829), 42–44, 50, 159n14; and free blacks, 35, 118, 128; Indian campaign in, 46; inheritance of slaves in, 15–16, 33; land grants in, 29, 46, 120, 155n8, 170–171n17; loyalty of, to Mexico, 44–45; manumission of slaves in, 15–17; Moses Austin and colonization of, 21–22; outlawing importation of slaves into (Decree No. 190), 20; population of Austin’s colony in, 47; population of blacks and mulattoes in, 155n1; slave laws in (1821–1836), 3, 8–45, 49–50, 56, 88–89, 91; slave population

index

[ 185 ]

in, 46–47; slaves changing masters in, 17, 33; and slave trade, 12–13, 27, 28, 46, 49, 156–157n24; Stephen F. Austin and colonization of, 3, 8, 10–11, 22–26; U.S. interest in expansion into, 44, 50 Mexican War, 173n69 Mexico: colonization laws of, 8–9, 23–27, 29, 45, 155n8; and colonization of Texas by Moses and Stephen F. Austin, 3, 8, 10–11, 22–26; Constitution (1824) of, 3, 14, 27, 29, 38–39, 49, 157n25, 157n27; emancipation decree (1829) of, 37–44; emancipation decree (April 5, 1837) of, 44; end of immigration from U.S. into (Decree of April 6, 1830), 19, 45; Independence Day celebration in, 37; independence of, from Spain, 3, 25, 155–156n9; runaway slaves in, 65–66; slave laws and antislavery attitude of, 3, 4, 8–9, 12–13, 19, 21–36, 49–50, 56, 88–89, 91; slave trade outlawed in, 12–13, 27, 28, 49, 156–157n24; Spanish rule of, 22. See also Mexican Texas Mier y Teran, Manuel de, 19 Miles (slave), 140, 152–154 Mills v. Ashe, 161n8 Mims, Henry, 59 Mims v. Mitchell, 161n8 Minerva, Mary, 80–81 miscegenation, 122 Mississippi, 72, 78–79, 164n7, 167n71 Mitchell, Albert, 125 Mitchell, Isaac N., 59 Moore, Francis, Jr., 47, 109–110, 118 Moore, Justice, 64 Moore, Marthan, 125 Moore, William, 131 Moore v. Minerva, 80–81, 163n32 Morelos, José María, 8 Morgan, James, 88 Morgan, Tomas, 120 Morrill, Amos, 141, 142, 144–146, 175n6 Morris, Thomas, 2 Morris v. Ramney, 142, 176n11 Munson, Henry and Micajah, 46 murder. See crimes Musquiz, Don Ramon, 40–41 Muzquiz, Manuel, 20

[ 186 ]

The Laws of Slavery in Texas

Nagel, Christopher, 156n10 Nash, A. E. Keir, 70–87 Nash, Frederick, 77 Nations v. Jones, 58–59, 161n7 Neal v. Farmer, 165n19 Ned (slave), 64 Nels v. State, 65, 75–76 Neylandville, 68 Nicey (slave), 64–65 Nisbet, Eugenius A., 74, 165n19 Nix, J. D., 74–75 Nixon, George, 28 Nix v. State, 74–75 North Carolina, 73–74, 75, 77, 81, 165nn32–33 O’Donnell, Daniel, 175n95 Ogden, Wesley, 142–143, 176n11 Oliver, Ingles, 127 orphans, 125 Panic of 1837, 58 Parras, Señor, 24 Paschal, George W., 142 Paup v. Mingo, 167n75 Perry, Mr., 172n38 Peter v. State, 63, 165n29 Phebe v. Quillin, 165n43 Phelps, J. A. E., 28 Philips v. Wheeler, 161n8 Philleo v. Holliday, 163n31, 167n64 Pierson v. Tomas, 173n76 Pinckard v. McCoy, 167n73 Plan of Iguala, 23, 155–156n9 Plummer v. Mensack, 173n76 Pompey (slave), 64 Pound, Roscoe, 85 Powell v. Alabama, 72, 164n5 Price (barber), 172n38 Price, Rufus, 152 Pridgen v. Buchannon & Others, 161n8 Priest, M., 151 property rights: and free blacks, 119–121, 131– 132; and legal right to own slaves, 57–60; and slave laws, 1–2, 4, 41, 56–60, 69, 73 Purvis v. Sherrod, 77–79, 81, 163n31 Raguet, Henry, 120 Ransom, J. B., 127

rape, 61, 62, 63 Reconstruction Texas: Emancipation Proclamation Cases, 141–142, 144–150, 175n6, 176n13; Garrett v. Brooks, 151–154; and Roberts, 84; Supreme Court during, 170n12, 175n6 Reeves, R. A., 63–64 Reily, James, 119 religion, 128 Renfro, David, 130 Republic of Texas: Act Concerning Free Persons of Color (February 5, 1840), 112–114; Act for the Relief of Certain Free Persons of Color (December 12, 1840), 115–116; Benton v. Williams, 134–135; Constitution of (1836), 3–4, 5, 45–46, 50, 52–57, 66, 89, 112, 169n4; creation of, 89; criminal law in, 60–61, 67; emancipation/manumission in, 4, 5, 46, 67, 107–111; free blacks in, 4–5, 46, 66–67, 107–135; homestead exemption in, 4, 57–58; Jesse Benton v. Eli Williams in, 134–135; and manumission, 107–111; property rights in, 4, 56–60; and property rights in slaves, 57–60; runaway slaves in, 65; sale of slaves in, 58–60; slave laws in, 4, 45–50, 52–53, 56–58, 61–62, 65, 89; Supreme Court of, 169n11 Rhodes, James Ford, 157n34 Richards, Stephen, 127 Richardson, James, 126 Rivera, 43 Roberts, John S., 127 Roberts, Oran M., 68, 75, 84, 168n92 Roberts, Samuel A., 124 Robertson, Felix W., 94–105 Robinson v. Yarnell, 161n8 Rogers v. Crain, 161n6 Roper, James, 63 Ross v. Vertner, 166n57 Royall, R. R., 35, 48 Runaway Scrape, 88 runaway slaves: Austin’s slave code prohibiting aid to, 10–11; court cases on, 161n8; court cases on stealers and harborers of, 82–83; fear of recapture of, 129; fears of slaveholders regarding, 4; laws on, 3, 10–11, 57, 60, 65–66, 174n86; in Mexican Texas, 10–11; penalties for aid to, 3, 10–11, 60, 67; punish-

ment of, 11; slave patrol system for capture of, 66. See also slaves and slavery Runnels, Hardin, 92 sale of slaves, 58–60, 140–144, 151–154, 161nn6–7. See also slave trade Santa Anna, Antonio López de, 52, 88 Sashly, April, 131 Schoen, Harold, 117–133 Schouler, James, 158n10, 159n15 Scranton v. Tilley, 161n6 secession, 5, 83–84, 137–138, 148 Secession Declaration (February 2, 1861), 137–138 segregation, 70, 117. See also discrimination against free blacks Sherrod, Lucinda, 78 Sims and Smith v. Chance, 161n8 slave-hire system, 59, 140, 142, 144–150 slaveholders: Austin as, 47, 160n46; compensation for murder of slave in Hedgepeth and Others v. Robertson, 94–105; compensation of, for slaves’ execution due to capital punishment, 59–60, 62–64, 63–64, 162n24; fears of, about runaway slaves, 4; free blacks as, 115, 121; manumission of slaves at death of, 15, 17; murder of, by slaves, 17, 63, 64; number of slaves owned by, in Mexican Texas, 46–47; punishment of slaves by, 62, 162n17; and sale of slaves, 58–60, 140–144, 151–154, 161nn6–7; sexual relations by, with slave women, 2; and slavehire system, 59, 140, 142, 144–150 slave insurrections, 55, 60–61, 62, 82, 132 slave laws: in antebellum period (1836–1860), 3–4, 52–105; and criminal acts against slave property, 3, 10–11, 57, 60–61; Marxist perspective on, 2, 163n35; in Mexican Texas (1821–1836), 3, 8–45, 49–50, 56, 88–89, 91; and Mexico, 3, 4, 8–9, 12–13, 19, 21–29, 49– 50, 56, 88–89, 91; overview of, 1–6; paucity of legal analysis on, xi; and property rights, 1–2, 4, 41, 56–60, 69, 73; and recognition of humanity of slaves, 2–3, 54–55, 57, 59–60, 69, 72–74, 94, 161n3; regulation of slave conduct, 57, 61–65; in Republic of Texas, 4, 45–50, 52–53, 56–58, 61–62, 65, 89; and right to own slaves and property rights,

index

[ 187 ]

57–60; on runaway slaves, 3, 10–11, 57, 65–66, 174n86; in state of Texas, 4, 54–69, 161n1. See also slaves and slavery slave patrol system, 66, 121–122 slaves and slavery: in antebellum period (1836–1860), 3–4, 52–105; Coahuila and Texas Constitution (1827) outlawing slavery, 3, 14; contract system in Mexican Texas permitting importation of slaves as indentured servants, 3, 18, 20, 33–36, 49–50; crimes committed by slaves, 3, 11, 55, 57, 61–65; defense of slavery, 4, 68–69, 72; end of slavery in Texas on Juneteenth, 5, 139–154, 175n1; free blacks’ marriages to slaves, 123; inheritance of slaves, 15–16, 33; in Mexican Texas (1821–1836), 3, 8–45; murder of slaves, 55; in New Spain, 22; population statistics of, 22, 46–47; protection of, in Republic of Texas Constitution (1836), 3–4, 52–55; recognition of humanity of slaves, 2–3, 54–55, 57, 59–60, 69, 72–74, 94, 161n3; and religion, 128; in Republic of Texas, 45–50, 52–105; sale of slaves, 58–60, 140–144, 151–154, 161nn6–7; slaveholder’s sexual relations with slave woman, 2; stealing of slaves, 3, 10–11, 57, 60, 61, 73, 82–83. See also emancipation; manumission; runaway slaves; slave laws slave trade, 12–13, 27, 28, 46, 49, 156–157n24. See also sale of slaves Small, Henry, 131 Smith, Adam, 88–90, 168–169n7 Smith, Ashbel, 127 Smith, George W., 141, 175n5 Smith, Robert, 76, 165n35 Smith, William, 125 Smith v. Allwright, 164n6 Smith v. State, 168n90 Snee v. Trice, 101 South Carolina, 74, 77, 78, 83, 84, 164n13 Stampp, Kenneth, 117 Stanley, E. V., 62 Starr, James H., 127 state supreme courts, 164n12. See also Texas Supreme Court; and other specific states State v. Hale, 165n23 State v. Poll, 165n32 State v. Reed, 165n23

[ 188 ]

The Laws of Slavery in Texas

State v. Stephenson, 75 State v. Tackett, 165n23 State v. Wupperman, 83 stealing of slaves, 3, 10–11, 57, 60, 61, 73, 82–83 Sterne, Adolphus, 125 Stevenson, Robert, 129 Stevens v. Ely, 166n50 Stroud, Beden, 118 Styron, William, 1–2 Supreme Court. See Texas Supreme Court; U.S. Supreme Court Sutherland, George, 35, 48 Sylvia (free black), 124 Taney Court, 166n60 Tankersley, B. F., 89 Taylor, John, 130–131, 174–175n94 Taylor, John Louis, 74 Taylor, Joseph, 174n81 Tennessee, 74, 78–81, 166n60, 166–167n62 Teran, General, 43, 45, 46, 50 Texas. See Confederate Texas; Mexican Texas; Reconstruction Texas; Republic of Texas; Texas (state) Texas (state): Constitution (1845) of, 4, 54–57, 67; criminal law in, 62–65; free blacks in, 4, 60, 64–69, 163n31; manumission in, 67–68, 76–81; runaway slaves in, 65–66; secession by, 5, 83–84, 137–138, 148; slave laws in, 4, 54–69, 161n1; slave patrol system in, 66; trial rights of blacks in, 70–93. See also Texas Supreme Court Texas Declaration of Independence, 45, 50, 112, 131, 168n1 Texas Revolution (1835–1836), 3–4, 21, 39, 45, 48, 52, 67, 88, 129 Texas slave laws. See slave laws Texas State Historical Association, 21 Texas Supreme Court: attitudes of judges of, during antebellum period, 73; biographical backgrounds of judges on, 83–84, 175n6, 176n9; on capital cases involving slaves, 75–76, 161n2, 162n24; on crimes against slave property, 61; on criminal prosecutions of whites who harmed blacks, 72–75, 94–105; Emancipation Proclamation Cases, 141–142, 143, 144–150, 175n6, 176n13; on felony trials of blacks, 73, 75–76; and

free blacks’ rights, 120, 163n32; on free blacks’ right to sue, 124, 134–135; Lipscomb on slave laws, 4; on liquor sale to slave, 61; and manumission suits, 67–68, 73, 76–81, 87–93; membership of, during Republic of Texas, 169–170n11; on murder cases, 64–65, 94–105; on runaway slaves, 161n8; on sale of slaves, 58–59, 140–144, 151–154, 161nn6–7; and slave code generally, 4; on slave-hire system, 59, 142, 144–150; and southern ideological system in antebellum period, 86; on subversion of slave-system and slave-stealers, 73, 82–83, 167n83; and trial rights of blacks, 70–93; on white primaries, 72. See also specific cases and judges Texas Supreme Court Historical Society, ix–x, 70 Thirteenth Amendment, 5, 139–142, 146, 150, 151, 153 Thomas, William, 131 Thompson, Algernon, 111 Thompson, Jesse, 157–158n37 Thompson, Waddy, 22 Threatt, James, 64 Timothy v. Simpson, 101 Tornel, José M., 37–38, 50 Towns, David, 120, 123 Towns, Louiza, 123, 127 Treaty of Cordova, 155–156n9 Trespalacios, Governor, 25 trial rights of blacks, 70–93 Trotter v. Blocker, 78, 79, 166–167n62 Tucker, Henry, 127, 172n38 U.S. Constitution, 144–146 U.S. Supreme Court, 71, 72, 164n12 Vance v. Crawford, 166n59 Vess, Jonathan, 122 Vess, Mary Lorena, 122 Viesca, Governor, 47, 50, 170–171n17

Vina (slave), 76 Virginia, 74, 80, 81, 165n28, 167n73, 168n99 Von Holst, Professor, 29, 33, 43, 156–157n24, 157n27, 158n10, 159–160n18 Walker, Moses B., 142, 176n11 Walker, Richard S., 76 Wallace, W. W., 152 Ward, H. G., 22 Webber, John and “Puss,” 123 Wells, Thomas J., 99 Westbrook, John, 81 Westbrook, Thomas M., 81 Westbrook v. Mitchell, 163n34, 167n77 Westbrook v. State, 165n27, 167n79 Wharton, 34–35 Wheeler, O. M., 161n8 Wheeler, Royal T., 59, 61, 74–76, 84, 94, 102–105 Wheelock, E. L. R., 129 Wheelock, E. M., 175n4 White, Joseph, 95–100 White, William J., 98–99 white primaries, 72 Whittaker, Edward, 131 Wigfall, B. T., 77–79 Wilkinson, 156n10 Williams, Eli, 124, 134–135 Williams, John A., 46 Williams, P., 140–141 Williamson, R. M., 42 Williams v. Arnis, 10–41, 175nn4–5 Williams v. Ingram, 161n7 Wilson, Robert, 119 Wingate, Earpe, 130 Winston, Anthony, 35, 48 Wood, David L., 122 Woodward, C. Vann, 70 Yocum family, 129–130 Young, Jarret, 129, 174n82

index

[ 189 ]

THIS PAGE INTENTIONALLY LEFT BLANK