7.1.5 Southwest (1820-1875): Texas - Southwestern Oupost of Slavery


  • Antebellum Texas was a thoroughgoing slave state.  But because it was also a southwestern state and did not join the Union until late in the slavery era, the state’s slave law, and the way in which Texas adjusted to emancipation and economic recovery after the Civil War, differed in important ways from the paths taken by other slave states.
  • Texas was too thinly settled to support a viable slave system during the Spanish colonial period, and in 1827 Mexico abolished slavery in the region.  The Americans who began to settle Texas in the 1820s came in roughly equal numbers from the Mountain South and Deep South; they promptly reinstituted slavery when they formed the Republic of Texas, but slavery did not become firmly entrenched until the 1840s when cotton-growing become an important part of Texas’s economy. 
  • Texas’s slave code was relatively mild in some ways.  Unlike many Deep South states, Texas did not limit slaveowners’ right to free their slaves; the state also limited owners’ rights to inflict abusive punishment and gave slaves accused of crimes the right to a hearing and a jury trial.  But Texans did not take kindly to the changes the Civil War and emancipation forced them to make, as Texas’s history during Reconstruction shows.
 

Slave law:  How far can a master go in disciplining a slave?

Nix v. State – Texas, 1855 (13 Tex. 575); Callihan v. Johnson – Texas, 1858 (22 Tex. 596)

 

  • Slave states differed as to whether masters should have an unlimited right to punish their slaves or should be subject to punishment for abusive treatment (see §§ _____).  Were slaves merely property (in which case no restrictions should be imposed), fully human (in which case they should have full protection under the law), or somewhere in between? 
  • Southern judges struggled to reconcile the clash between the need to preserve a slave-based economy and considerations of humanity to slaves.  Texas leaned toward the side of humanity.  The new state’s 1845 constitution provided that slaveowners who killed or maimed their slaves would be liable to criminal penalties just as if their victims were white, and in Nix and Callihan the court indicated this provision would be strictly enforced. 


 



Slave law:  Manumission cases

Jones v. Laney – Texas, 1847 (2 Tex. 342); Purvis v. Sherrod – Texas, 1854 (12 Tex. 140)

  • During the early 19th century many Deep South states restricted owners’ freedom to emancipate their slaves, typically requiring advance approval by the legislature (which was rarely granted) or the courts.  Some judges embraced the new laws; others, more reluctant to interfere with slaveowners’ property rights in any way, interpreted the laws as narrowly as possible.
  • As the Civil War approached, many Southern lawmakers, reacting to the perceived threat posed by abolitionism and increasing antislavery sentiment in the North, abandoned ambivalence, defended slavery as a “positive good” for both blacks and whites and increased restrictions on manumission.
  • Texas, however, moved in the opposite direction:  the founders of the Republic, fearing that freed slaves who remained in Texas might foment slave rebellions, required owners to send freed slaves out of the state, but the new state imposed no such restrictions in its 1845 constitution.  In Jones and Purvis, Texas’s supreme court made clear that slaveowners had the power to do as they wished with their property, including emancipating slaves without legislative or judicial consent; but it also reinstated the requirement that freed slaves leave the state.    

 
 
 File:A former slave displaying a horn used to call slaves.jpg
 Former slave with field horn, Marshall, Texas (1939) - courtesy Farm Security Administration and Wikimedia Commons
 
 
“The laws of this state interfere as little as possible with the delicate and responsible relation of master and slave.  Much is left to the master’s judgment, discretion, and humanity.   But … it is the recognized policy of … this state, to give to the lives and persons of slaves the utmost protection that may be consistent with the proper restrain to which slaves must, of necessity, be subject … [The criminal code] treats the slave as a human being, though in a servile condition.  It recognizes his right to live, until an overwhelming necessity shall deprive him of life.” – Justice James Bell, in Callihan
 
 
"Constitutions, as well as Acts of the Legislature, restraining the natural right of the owner to dispose of his property as he pleased, should be clearly expressed, the intention to do so should never be presumed ... Although a State by its laws may absolutely prohibit emancipation, or direct the particular mode in which it can only be done, yet a bequest of freedom, not to take effect until the slave is removed beyond the territorial limits of such State, is nevertheless a valid bequest." - Justice Abner Lipscomb, in Purvis