“The great majority of immigrants to antebellum Texas came from the older southern states (77 percent of household heads in Texas were southern born), and many brought with them their slaves and all aspects of slavery as it had matured in their native states.” (Campbell)

Slaveholding South orientation: 77% of heads of household from the South, ~1/4 of [white?] families own slaves:

The limited nature of Texas’s historical experience with slavery, however, belies the vast importance of the institution to the Lone Star state. The great majority of immigrants to antebellum Texas came from the older southern states (77 percent of household heads in Texas were southern born), and many brought with them their slaves and all aspects of slavery as it had matured in their native states. More than one-quarter of Texas families owned slaves during the 1850s, and bondsmen constituted approximately 30 percent of the state’s total population. Proportions of slaveholders and slaves in the populations of Texas and Virginia during the last antebellum decade were closely comparable.[4] In this sense, then, slavery was as strongly established in Texas, the newest slave state, as it was in the oldest slave state in the Union.

Randolph B. Campbell, An Empire for Slavery: The Peculiar Institution in Texas, 1821-1865. Baton Rouge: Louisiana State University Press., 2.
  1. [4]Randolph B. Campbell and Richard G. Lowe, Wealth and Power in Antebellum Texas (College Station, 1977), 27-30. James D.B. DeBow (comp.), Statistical View of the United States . . . Being a Compendium of the Seventh Census (Washington, D.C., 1854), 86, shows that slaves were 27.3 percent of the population of Texas in 1850 and 33.2 percent of the population of Virginia. In 1860, the comparable statistics were 30.3 for Texas and 30.8 for Virginia; see U.S. Bureau of the Census, Population of the United States in 1860, 483, 515. Approximately one-quarter of all families in Texas and Virginia owned slaves. Kenneth M. Stampp, The Peculiar Institution: Slavery in the Ante-Bellum South (New York, 1956), 30.

“In the name of racially regulating behavior, laws CREATED racial identities” — Tennessee use of “mulattoes, mestizos, and their descendants” (Haney Lopez)

Second, positive law has created the racial meanings that attach to physical features. In a sense, this is the heart of the prerequisite cases, which at root embody the efforts of the courts to inscribe on the bodies of individual applicants the term “White” or “non-White.” These cases established as legal precedent the racial identities of the various faces and nationalities entering the United States at the turn of the century. Again, however, the racial prerequisites to naturalization are not the only laws that explicitly defined racial identities. Almost every state with racially discriminatory legislation also established legal definitions of race. It is no accident that the first legal ban on interracial marriage, a 1705 Virginia act, also constituted the first statutory effort to define who was Black.[6] Regulating or criminalizing behavior in racial terms required legal definitions of race.[7] Thus, in the years leading up to Brown, most states that made racial distinctions in their laws provided statutory racial definitions, almost always focusing on the boundaries of Black identity. Alabama and Arkansas defined anyone with one drop of “Negro” blood as Black; Florida had a one-eighth rule; Georgia referred to “ascertainable” non-White blood; Indiana used a one-eighth rule; Kentucky relied on a combination of any “appreciable admixture” of Black ancestry and a one-sixteenth rule; Louisiana did not statutorily define Blackness but did adopt via its Supreme Court an “appreciable mixture of negro blood” standard; Maryland used a “person of negro descent to the third generation” test; Mississippi combined an “appreciable amount of Negro blood” and a one-eighth rule; Missouri used a one-eighth test, as did Nebraska, North Carolina, and North Dakota; Oklahoma referred to “all persons of African descent,” [119] adding that the “term ‘white race’ shall include all other persons”; Oregon promulgated a one-fourth rule; South Carolina had a one-eighth standard; Tennessee defined Blacks in terms of “mulattoes, mestizos, and their descendants, having any blood of the African race in their veins”; Texas used an “all persons of mixed blood descended from negro ancestry” standard; Utah law referred to mulattos, quadroons, or octoroons; and Virginia defined Blacks as those in whom there was “ascertainable any Negro blood” with not more than one-sixteenth Native American ancestry.[8]

The very practice of legally defining Black identity demonstrates the social, rather than the natural basis of race. Moreover, these competing definitions demonstrate that the many laws that discriminated on the basis of race more often than not defined, and thus helped to create, the categories they claimed only to elucidate. In defining Black and White, statutory and case law assisted in fashioning the racial significance that by themselves drops of blood, ascertainable amounts, and fractions never could have. In the name of racially regulating behavior, they created racial identities.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 118-119.
  1. [6]Finkelman, supra, at 2088. According to Finkelman, “This act also made the first stab at defining who was actually black. The law declared that anyone who was a child, grandchild, or great grandchild of a black was a mulatto under the statute. this meant that persons who were of one-eighth African ancestry were black for purposes of Virginia law.” See generally A. Leon Higginbotham, Jr., and Barbara K. Kopytoff, Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia, 77 GEO. L. J. 1967 (1989).
  2. [7]See Raymond T. Diamond and Robert J. Cottrol, Codifying Caste: Louisiana’s Racial Classification Scheme and the Fourteenth Amendment, 29 LOY. L. REV. 255, 265 (1983) They argue that “[s]tate supported or initiated discrimination required racial definitions. The law could not separate what it failed to categorize.”
  3. [8]Paul Finkelman, The Color of Law, 87 NW. U. L. REV. 937, 955 n. 96 (citing PAUL MURRAY, STATES’ LAWS ON RACE AND COLOR [1950]).

“The first case in North America to turn on race” (Haney López)

First British North America case to turn on race — Re Davis — a miscegenation / interracial sex case.

The inability of judges to articulate who was White is a product of the transparency phenomenon. Within the logic of transparency, the race of non-Whites is readily apparent and regularly noted, while the race of Whites is consistently overlooked and scarcely ever mentioned. The first case in North America to turn on race exhibits this tendency. The full report of Re Davis, a Virginia case decided in 1630, reads as follows: “Hugh Davis to be soundly whipt before an assembly of negroes & others for abusing himself to the dishonor of God and shame of Christianity [24] by defiling his body in lying with a negro which fault he is to act Next sabbath day.”[54] As Leon Higginbotham notes, “Although the full picture can never be reconstructed, some of its elements can reasonably be assumed. … [B]ecause Davis’s mate was described as a ‘negro,’ but no corresponding racial identification was made of Davis, it can be inferred that Davis was white.”[55] Transparency is a legal tradition of long standing, not something new to the law today or to the prerequisite cases. As a threshold matter, then, defining “whites” taxed the prerequisite courts’ abilities not because the question was inherently abstruse, but because through the operation of transparency the judges had never really thought about it.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 23-24.


  1. [54]McIlwaine 479 (Sept. 1630), reprinted in HIGGINBOTHAM, supra, at 23.
  2. [55]HIGGINBOTHAM, supra, at 23.