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.”)

 

“The insolence of a slave will justify a white man in inflicting moderate chastisement,” Slavery, Color and the Penal Code (Texas Penal Code Revisions 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:

“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), 156 (link).

[157/1029] TITLE 5.

CHAPTER 1.

Principals.

Article 218a. If the master of a slave instigates, aids, encourages, advises, or wilfully permits such slave to commit an offence, he may be considered and prosecuted, either as a principal or as an accomplice, and shall be punished in the manner prescribed in Article 223 of the Penal Code.

“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), 156 (link).

[177/1049]

CHAPTER 8.

Cruel treatment of Slaves

Article 670 shall hereafter read as follows:

If any person shall unreasonably abuse or cruelly treat a slave, whether his own property or the property of another, he shall be fined not less than one hundred nor more than two thousand dollars.

Article 672 shall hereafter read as follows:

It is cruel treatment of a slave to inflict an unusual degree of punishment without just provocation, or to torture or cause unusual pain and suffering to a slave by the use of any means, or to subject such slave to punishment so severe as to become injurious to his health, or calculated greatly to depreciate his value, or for the person having the charge of any slave to fail to supply him with comfortable clothing, or a sufficient quantity of wholesome food.

“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), 177 (link).

[186/1058] PART III.

Of offences committed by Slaves and Free persons of color.

TITLE 1.

General Provisions

Article 796 shall hereafter read as follows:

An offence committed by a slave or free person of color, is known as a felony. When the punishment therefor is death, all other offences committed by either of these classes of persons are called petty offences.

TITLE 2.

Rules applicable to offences against the person when committed by Slaves or Free Persons of color.

Article 802 shall hereafter read as follows:

The offences enumerated in Title 17 of the Second Part of this Code, when committed by slaves or free persons of color, against a free white person, are subject to different rules from such as are prescribed in defining guilt or innocence when committed by a free white person, and the guilt or innocence of the accussed is to be ascertained by a consideration of the following general principles:

1st. The right of the master to the obedience of and submission of his slave, in all lawful things, is perfect, and the power belongs to the master to inflict any punishment upon the slave not affecting life or limb, and not coming within the definition of cruel treatment, or unreasonable abuse, which he may consider necessary for the purpose of keeping him in such submission, and enforcing such submission to his commands; and if, in the exercise of this right, with or without cause, the slave resists and slays his master, it is murder.

[187/1059] 2d. The master has not the right to kill his slave, or to maim or dismember him, except in cases mentioned in article 564 of this Code.

3d. A master, in the exercise of his right to perfect obedience on the part of the slave, may correct in moderation, and is the exclusive judge of the necessity of such correction; and resistance by the slave, under such circumstances, if it results in homicide, renders him guilty of murder.

4th. The insolence of a slave will justify a white man in inflicting moderate chastisement, with an ordinary instrument of correction, if done at the time when the insolent language is used, or within a reasonable time after; but it will not authorize an excessive battery, as with a dangerous weapon.

5th. The rules respecting manslaughter, as given in the second part of this Code, apply only to equals, and not to the case of offences by slaves, or free persons of color, against free white persons.

6th. An assault and battery, not inflicting great injury, committed by a free white person upon a slave, will not be a sufficient provocation to mitigate a homicide of the former by the latter, from murder to manslaughter, although it be in a case where the law does not expressly justify assault and battery.

7th. That amount of personal injury is a legal provocation, of which it can be pronounced, having due regard to the relative condition of the white man and the slave, and the obligation of the latter to conform his passions to his condition of inferiority, that it would provoke well disposed slaves into a violent passion, and the existence of such provocation will reduce the homicide to manslaughter.

8th. If a slave, by insolence, provoke chastisement, and then slay the person chastising him, it will be murder.

9th. In the following cases it is lawful for a free white person to inflict chastisement upon a slave by a moderate whipping:

1st. If a slave, without the consent of the white person, be found upon his premises at night.

2d. If the slave, against the orders of the white person, be found upon his premises at any time.

3d. If a slave be found using improper language, or guilty of indecent or turbulent conduct in the presence of white persons.

[188/1060] 4th. If the slave be guilty of rude or unbecoming conduct in the presence of a free white female.

5th. If a slave use insulting language or gestures towards a white person.

6th. If a slave commit any wilfull act, injurious to the property or person of a free white person, or of any member of his family.

7th. If a slave be found drunk, and making a disturbance in any public place, or upon the premises of a free white person.

TITLE 3.

Of the punishment of slaves and free persons of color.

CHAPTER 1.

Of Slaves.

Article 812 shall hereafter read as follows:

Slaves are subject to the following punishment–

  1. Death
  2. Whipping

Article 816 shall hereafter read as follows:

Whipping is inflicted upon the bare back, and in all cases the number of lashes shall be fixed by the Jury, Justice, Mayor, or Recorder who try the case; provided the whipping allowed by this article shall not be such as to permanently injure or endanger the life of the slave.

Article 819 shall hereafter read as follows:

The following offences when committed by slaves, shall be punished by death: first, murder; second, insurrection; third, arson; fourth, rape upon a free white woman; fifth, robbery when committed upon a free white person; sixth, assault with intent to commit murder, rape or robbery upon a free white person; seventh, an attempt to commit a rape upon a free white woman; eighth, assault with a deadly weapon upon a free white person.

CHAPTER 2.

Of Free Persons of Color.

Article 822 shall hereafter read as follows:

Free persons of color are subject to the following punishments: [189/1061] 1. Death; 2d. Whipping; 3. Labor upon any public works of a county.

Article 823 shall hereafter read as follows:

All offences which by law may be capitally punished, in the case of a slave, shall be punished capitally, when committed by a free person of color.

Article 824 shall hereafter read as follows:

Aiding in an insurrection of slaves, and kidnapping a free white woman, when committed by a free person of color, shall be punished by death.

Article 829 shall hereafter read as follows:

For all other offences not herein provided for, a free person of color, may be punished by whipping, and by being forced to work upon the roads, or other public works of the county where he is convicted, under the direction of the County Court, for a term not exceeding twelve months.

“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), 186-189 (link).