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

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

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

 

“Antimiscegenation laws… sought to maintain social dominance along specifically racial lines, and at the same time, sought to maintain racial lines through social dominance” (Haney Lopez)

Naturalization and immigration laws are not, however, the only or even the most important laws that have influenced the appearance of this country’s populace. More significant may be the antimiscegenation laws, which appeared in the statutes of almost every state in the union until they were struck down by the Supreme Court in 1967.[3] These laws purported merely to separate the races. In reality, they did much more than this: they acted to prevent intermixture between peoples of diverse origins so that morphological differences that code as race might be more neatly maintained.[4] Antimiscegenation laws, like lynch laws more generally, sought to maintain social dominance along specifically racial lines, and at the same time, sought to maintain racial lines through social domination. As Martha Hodes argues, “racial hierarchy could be maintained primarily through the development of a rigid color line: if blacks and whites did not have children together, then racial categories could be preserved.”[5] Cross-racial procreation erodes racial differences by producing people whose faces, skin, and hair blur presumed racial boundaries. Forestalling such intermixture is an exercise in racial domination and subordination. It is also, however, an effort to forestall racial blurring. Antimiscegenation laws [118] maintained the races they ostensibly merely separated by insuring the continuation of “pure” physical types on which notions of race are based in the United States.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 117ff.
  1. [3]The Supreme Court declared antimiscegenation laws unconstitutional in Loving v. Virginia, 388 U.S. 1 (1967). See generally ROBERT J. SICKELS, RACE, MARRIAGE, AND THE LAW (1972).
  2. [4]See VIRGINIA DOMINGUEZ, WHITE BY DEFINITION: SOCIAL CLASSIFICATION IN CREOLE LOUISIANA, 56-62 (1986); Paul Finkelman, The Crime of Color, 67 TUL. L. REV. 2063, 2081-87 (1993).
  3. [5]Martha Hodes, The Sexualization of Reconstruction Politics: White Women and Black Men in the South after the Civil War, 3 J. OF THE HIST. OF SEXUALITY 402, 415 (1993).

“it is not that women were unaffected by the racial bars, but that they were doubly bound by them, restricted both as individuals, and as less than individuals (that is, as wives)” (Haney López)

1855, 1868: only ‘white women’ can gain citizenship by marriage; loss of citizenship to white women married to barred men. / WBL p. 46

Notice the mention of gender in the statutory language ending racial restrictions in naturalization. The issue of women and citizenship can only be touched on here, but deserves significant study in its own right.[46] As the language of the 1952 Act implies, eligibility for naturalization once depended on a woman’s marital status. Congress in 1855 declared that a foreign woman automatically acquired citizenship upon marriage to a U.S. citizen, or upon the naturalization of her alien husband.[47] This provision built upon the supposition that a woman’s social and political status flowed from her husband. An 1895 treatise on naturalization put it, “A woman partakes of her husband’s nationality; her nationality is merged in that of her husband; her political status follows that of her husband.”[48] A wife’s acquisition of citizenship, however, remained subject to her individual qualification for naturalization–that is, on whether she was a “white person.”[49] Thus, the Supreme Court held in 1868 that only “white women” could gain citizenship by marrying a citizen.[50] Racial restrictions further complicated matters for noncitizen women in that naturalization was denied to those married to a man racially ineligible for citizenship, irrespective of the [47] woman’s own qualifications, racial or otherwise.[51] The automatic naturalization of a woman upon her marriage to a citizen or upon the naturalization of her husband ended in 1922.[52]

The citizenship of American-born women was also affected by the interplay of gender and racial restrictions. Even though under English common law a woman’s nationality was unaffected by marriage, many courts in this country stripped women who married noncitizens of their U.S. citizenship.[53] Congress recognized and mandated this practice in 1907, legislating that an American woman’s marriage to an alien terminated her citizenship.[54] Under considerable pressure, Congress partially repealed this act in 1922.[55] However, the 1922 act continued to require the expatriation of any woman who married a foreigner racially barred from citizenship, flatly declaring that “any woman citizen who marries an alien ineligible to citizenship shall cease to be a citizen.”[56] Until Congress repealed this provision in 1931,[57] marriage to a non-White alien by an American woman was akin to treason against this country: either of these acts justified stripping of citizenship from someone American by birth. Indeed, a woman’s marriage to a non-White foreigner was perhaps a worse crime, for while a traitor lost his citizenship only after trial, the woman lost hers automatically.[58] The laws governing the racial composition of this country’s citizenry came inseverably bound up with and exacerbated by sexism. It is in this context of combined racial and gender prejudice that we should understand the absence of any women among the petitioners named in the prerequisite cases: it is not that women were unaffected by the racial bars, but that they were doubly bound by them, restricted both as individuals, and as less than individuals (that is, as wives).

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 46-47.
  1. [46] See generally Ursula Vogel, Is Citizenship Gender-Specific? THE FRONTIERS OF CITIZENSHIP 58 (Ursula Vogel and Michael Moran eds., 1991).
  2. [47] Act of Feb. 10, 1855, ch. 71,§ 2, 10 Stat. 604. Because gender-based laws in the area of citizenship were motivated by the idea that a woman’s citizenship should follow that of her husband, no naturalization law has explicitly targeted unmarried women. GORDON AND MAILMAN, supra., at
    § 95.03[6] (“An unmarried woman has never been [statutorily] barred from naturalization.”).
  3. [48] PRENTISS WEBSTER, LAW OF NATURALIZATION IN THE UNITED STATES OF AMERICA AND OTHER COUNTRIES 80 (1895).
  4. [49] Act of Feb. 10, 1855, ch. 71, § 2, 10 Stat. 604.
  5. [50] Kelly v. Owen, 74 U.S. 496, 498 (1868).
  6. [51] GORDON AND MAILMAN, supra at § 95.03[6].
  7. [52] Act of Sept. 22, 1922, ch. 411, § 2, 42 Stat. 1021.
  8. [53] GORDON AND MAILMAN, supra at § 100.03[4][m].
  9. [54] Act of March 2, 1907, ch. 2534, § 3, 34 Stat. 1228. This act was upheld in MacKenzie v. Hare, 239 U.S. 299 (1915) (expatriating a U.S.-born woman upon her marriage to a British citizen).
  10. [55] Act of Sept. 22, 1922, ch. 411, § 3, 42 Stat. 1021.
  11. [56] Id. The Act also stated that “[n]o woman whose husband is not eligible to citizenship shall be naturalized during the continuance of the marriage.”
  12. [57] Act of March 3, 1931, ch. 442, § 4(a), 46 Stat. 1511.
  13. [58] The loss of birthright citizenship was especially harsh for those women whose race made them ineligible to regain citizenship through naturalization, especially after 1924, when the immigration laws of this country barred entry to any alien ineligible to citizenship. Immigration Act of 1924, ch. 190, § 13(c), 43 Stat. 162. See, e.g., Ex parte (Ng) Fung Sign, 6 F.2d 670 (W.D.Wash. 1925). In that case, a U.S. birthright citizen of Chinese descent was expatriated because of her marriage to a Chinese citizen, and was subsequently refused admittance to the United States as an alien ineligible to citizenship.

“If any white person shall, within this state, knowingly marry a negro, or a person of mixed blood, descended from negro ancestry …” (Texas Penal Code Revision of 1858)

[156/1028] An Act supplementary to and amendatory of an act entitled an act to adopt and establish a Penal Code for the State of Texas, approved 28th August, 1856.

Article 1. Be it enacted by the Legislature of the State of Texas, That the following Chapters and Articles of the act above recited, commonly known as the Penal Code, be, and they are hereby so amended as that the same shall hereafter respectively read as follows–that is to say:

[…]

[164/1036]

TITLE 12.

CHAPTER 1.

Unlawful Marriage.

Article 386 shall hereafter read as follows:

If any white person shall, within this state, knowingly marry a negro, or a person of mixed blood, descended from [165/1037] negro ancestry, to the third generation inclusive, though one ancestor of each generation may have been a white person, or having so married in or out of this State, shall continue within this State to cohabit with such negro, or such descendant of a negro, he or she shall be punished by confinement in the Penitentiary, not less than two nor more than five years.

[…]

CHAPTER 2.

Article 392 shall hereafter read as follows:

Every man and woman who shall live together in adultery, or fornication, shall be punished by fine, not less than one hundred, nor more than one thousand dollars.

Article 395a. Every white person who shall live in adultery or fornication with a negro, or a person of mixed blood, descended from negro ancestry, to the third generation inclusive, though one ancestor of each generation may have been a white person, shall be punished by fine, of not less than one hundred nor more than one thousand dollars.

“An Act supplementary to and amendatory of an act entitled an act to adopt and establish a Penal Code for the State of Texas, approved 28th August, 1856” (February 12, 1858). H. P. N. Gammel, The Laws of Texas, 1822-1897, Vol. 4 (Austin, Texas: Gammel's Book Store, 1898), 164-165 (link).

“an analysis of the persons with mixed Spanish-Anglo surnames shows that this group, taken as a component part of the Tejano population, declined in the years between 1850 and 1900” (de León and Stewart)

1850-1900: Intermarriage – decline in “persons with mixed Spanish-Anglo surnames” as an index of decline in intermarriages or “blending into white society” generally:

Indeed, other evidence suggests that the urban Tejanos resisted adopting an Anglo American way of life with equal or greater intensity than their compatriots in the countryside….

First, an analysis of the persons with mixed Spanish-Anglo surnames shows that this group, taken as a component part of the Tejano population, declined in the years between 1850 and 1900. The presence of persons with mixed surnames is indicative of a propensity toward structural assimilation since such surnames would result from a variety of Tejano behaviors aimed at blending into the white society. Such behaviors may have ranged from intermarriages or interethnic sexual relations to simply modifying one’s name to better fit the Anglo mold. What statistics show is that the extent of such assimilating behavior decreased. In 1850, for example, for every 100 persons in urban environments with Spanish surnames, there were 14 with mixed Spanish-Anglo surnames. By 1900, this number had dropped to just 3, and in rural areas the trend was the same.[15] Thus, to the extent [89] that mixed names resulted from conduct aimed at merging into white society, then resistance to such behavior increased both in cities and in rural settings during the nineteenth century.

Arnoldo de León and Kenneth L. Stewart, Tejanos and the Numbers Game: A Socio-Historical Interpretation from the Federal Censuses, 1850-1900 (Albuquerque: University of New Mexico Press, 1989), 88-89.

  1. [15]There were 11 persons with mixed Spanish-Anglo surnames for every 100 Spanish surnames in rural areas in 1850. By 1900, the number of mixed surnames dropped to 1 per 100 Spanish surnames. Admittedly, other factors such as the leveling out of the sex ratio among Anglos between 1850 and 1900 may have influenced this decline in the number of mixed surnames. Nonetheless, we take it also to be an indication of the increased degree of resistance to assimilation on the part of the Mexicans of Texas.

Conflicting Evidence on Intermarriage and Selective Enforcement (Neil Foley, Charles Frank Robinson, F. Flores v. The State)

From Neil Foley, “Partly Colored or Other White: Mexican Americans and Their Problem with the Color Line,” in Beyond Black and White. 127, 142

Although many Mexicans had lived in Texas long before Stephen Austin established the first Anglo settlement in 1822, Anglos still regarded Mexicans as alien culturally, linguistically, religiously, and racially. Their status as racially in-between, as partly colored, hybrid people of mixed Indian, Spanish, and African ancestry, made them suspect in the eyes of whites, who feared that Mexicans could breach the color line by marrying both blacks and whites. Although laws existed against race mixing for whites and blacks, no such laws prevented the mixing of Mexicans with both blacks and whites.5

5. Peggy Pascoe, “Miscegenation Law, Court Cases, and Ideologies of ‘Race’ in Twentieth-Century America,” Journal of American History 83 (June, 1996): 44-69. Mexicans, who were legally “white,”were rarely prosecuted for marrying blacks. For the only case in Texas of a Mexican brought to trial for marrying a black, see F. Flores v. The State, 60 Tex. Crim. 25 (1910); 129 S. W. 1111. I am indebted to Julie Dowling for bringing this case to my attention. See her paper, “Mexican Americans and the Modern Performance of Whiteness: LULAC and the Construction of the White Mexican,” presented at the American Sociological Association annual conference, Anaheim, Calif., August, 2001.

From F. Flores v. The State (1910), in The Texas Criminal Reports Volume 60.

The evidence shows that appellant was a Mexican, or of Spanish extraction. There is no evidence in the record that he had any negro blood in his veins, and his testimony, as far as it goes, excludes the idea that such was the case. The testimony of the woman appellant married, Ellen Dukes, goes to show that she had negro blood in her veins, but within what degree is not shown. She is variously described by the witnesses, and some of them go sufficiently far to say that she looks like a negro. These witnesses state that her physical makeup, and especially the fact that her face and hair, indicate that she was a negro. She testified that she was born and raised in San Antonio and was 31 years of age; that her mother’s name was Refugio Gonzales; that her father’s name was Garmo Dukes; that her mother was Mexican while her father had some negro blood, but she did not know how much negro blood or how much Mexican blood; but that he did have some negro blood in him; that her father’s color was very bright, a great deal brighter in color than herself; that his hair was not kinky or nappy like the ordinary negro–not as much so as was her hair–that it was straighter. Those witnesses who testified to the fact that the woman appellant married was of negro extraction were not aware of how near she was to purity of negro blood; they did not know whether she was within the specified degrees mentioned in article 347 of the Penal Code or not.

From Charles Frank Robinson II, Dangerous Liasons: Sex and Love in the Segregated South

[88] Other interracial couples remained relatively inconspicuous by hiding under the cover of color closeness. Individuals who could cloak their African ancestry could often marry across the color line without alerting state authorities. Even if the state discovered that one of the parties in the relationship had some racial mixture, the state would then have the very difficult task of proving that the individual in question had sufficient black ancestry. Such was the case in Flores v. State (1910). On June 9, 1909, F. Flores and Ellen Dukes married in Angelina County, Texas. Within months after their ceremony, state authorities arrested the couple and charged them with violating the state’s anti-miscegenation law. The state contended that Flores was of Mexican descent, thereby making him [89] a white person for purpose of the statute. Yet Dukes had both Mexican and African origins. In the Angelina County district court trial, Dukes never denied having African ancestry. However, she testified that she did not know how much African ancestry she possessed. According to Dukes, “her mother was Mexican while her father [Garmo Dukes] had some negro blood.”[15]

The state presented Ellen Dukes’s physical appearance as evidence of her guilt. She apparently had rather dark skin and somehwat “kinky hair.” The state also produced witnesses who gave testimony that they believed Dukes to be “a Negro.” These same witnesses further told of conversations that they had had with Flores in which he confirmed to them that he was “a Mexican and had no Negro blood in him.”[16]

The state convicted Flores and Dukes. The couple appealed to the Texas Court of Criminal Appeals. Although the court acknowledged that Dukes had black blood, the court held that the state had failed to prove the degree of it. Dukes did not know when questioned. Neither did any of the state witnesses. According to the high court, the Texas anti-miscegenation law obligated the state to show “that one of the parties had sufficient blood to prohibit the marriage.” Since there was a “reasonable doubt” about Dukes’s percentage of African mixture, the court reversed the lower court verdict.[36]

[92] The case of Marre v. Marre (1914) was another instance when color closeness protected the marital interests of a person involved in an interracial relationship. In 1911, Louis Marre sued for an annulment of his three-year marriage to Agnes E. Nash Marre. Louis claimed not only that he had married Agnes under “duress” but that Agnes was a person of color. A St. Louis Circuit Court found in Louis’s favor, and Agnes appealed. Upon reviewing the case, the Missouri high court could find [93] nothing to substantiate Louis’s claims. The court saw no duress. Although Agnes’s sixty-year-old mother had insisted that Louis marry her daughter, who was pregnant at the time, and allegedly threatened him with bodily harm if he failed to do so, the court did not consider this duress. According to the court, “Mere apprehension of physical or possible physical injury, is not sufficient” to constitute duress.[45]

With regard to the charge of Agnes’s African ancestry, the Missouri Supreme court did not believe that the evidence substantiated the conviction. Agnes and her mother unequivocally denied having any black heritage. They acknowledged that they had a few black friends but argued that their apparently tanned appearance was a result of the Mexican origin of one of their immediate ancestors. Agnes also used the fact of her two sisters having married white men as further evidence of her legal whiteness.[46]

[34] [35]

 

  1. [15]
  2. [16]
  3. [36] Flores v. State, 129 S.W. 1111 (1910).
  4. [45] Marre v. Marre, 168 S.W. 636 (1914).
  5. [46] Marre v. Marre, 168 S.W. 636 (1914).
  6. [34]Flores v. State, 129 S.W. 1111 (1910). Also see Marriage Licenses, Angelina County, 641.
  7. [35]Flores v. State, 129 S.W. 1111 (1910).

Intermarriage, Mexicanization of Anglo Elites, and Tenuous Legitimacy in the Lower Valley (Montejano)

From David Montejano, Anglos and Mexicans in the Making of Texas, 1836-1986, pp. 36-37.

As in San Antonio and Laredo, the acommodation between the old and incoming elites in the Lower Valley manifested itself in tactical marriages. It was customary among the Mexican elite, as Jovita González has noted, that daughters were married at an early age, and not for love, but for family connections and considerations.[42] [37] On the other hand, for the Anglo settler, marrying a Mexican with property interests made it possible to amass a good-sized stock ranch without considerable expense. The Americans and the European immigrants, most of whom were single men, married the daughters of the leading Spanish-Mexican families and made Rio Grande City a cosmopolitan little town. Among those who claimed the Spanish language was their own were families with such surnames as Lacaze, Laborde, Lafargue, Decker, Marx, Block, Monroe, Nix, Stuart, and Ellert. As one Texas Mexican from this upper class recalled: There were neither racial nor social distinctions between Americans and Mexicans, we were just one family. That was due to the fact that so many of us of that generation had a Mexican mother and an American or European father.[43]

[…] For the Anglo settlers, some degree of Mexicanization was necessary for the most basic communication in this region, given the overwhelming number of Mexicans. But such acculturation meant far more than the learning of a language and proper etiquette; it represented a way of acquiring influence and even a tenuous legitimacy in the annexed Mexican settlements. From participation in religious ritualis and other communal activities to becoming family through godparenthood or marriage–such a range of ties servedto create an effective everyday authority, a type that Ranger or army guns alone could not secure.

  1. [42] Jovita González, “Social Life in Cameron, Starr, and Zapata Counties” [M.A. thesis], pp. 27, 58; for intermarriages in Laredo, see R. O. García, Dolores, p. 39.
  2. [43] González, “Social Life,” p. 27.

Declining Social Acceptance of Anglo-Mexican intermarriage in 1850s Texas

From Martha Menchaca, “The Anti-Miscegenation History of the American Southwest, 1837 to 1970: Transforming Racial Ideology into Law,” Cultural Dynamics 20, no. 3 (2008), 287.

As the Mexicans’ social status declined so did intermarriage. Mexican women were no longer sought after as marriage partners by Anglo American men, a practice that had been common in San Antonio and Laredo, two cities with a majority Mexican population. In 1855, Texan land investor John Donelson Coffee noted in a letter to his cousin that Mexicans were no longer accepted in Anglo American social circles (Boom, 1966: 283). According to Donelson, in San Antonio Anglo Americans socialized with four or five Mexican families and only considered the single women of these families acceptable marriage partners. These women were described as light complexioned, unlike the rest of the Mexican women who Donelson derogatorily called “greaser” and characterized them to be dark like mulattas (Boom, 1966: 283). Corroborating Donelson’s observations are the marriage records from San Antonio. By the late 1840s, only a handful of Mexican women married Anglo American men and, in 1850, out of 60 Anglo American marriages only 4 involved Mexican brides, a pattern that continued into the 1860s (Bean and Bradshaw, 1970: 394; Dysart, 1976: 369).