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Hist. of Texas, 252, 264, 269. Peonage, however, was not abolished. According to the same author, it rests mainly on two decrees of the Mexican government,-Nos. 67 and 86, of Sept. 30, 1828, and Apr. 4, 1829; see 1 Yoakum, 262, where the nature of that servile condition is described.

The Republic of Texas declared its independence March 2, 1836. In the Constitution, adopted March 17, 1836, it is declared that "all free, white persons, immigrating," &c., may become citizens; the elective franchise and capacity for office are attributed to "citizens" generally. In the declaration of rights, it is declared that "all men, when they form a social compact, have equal rights," &c. In other places, rights are attributed to all citizens.

Under General Provisions, it is declared, sec. 9, "All persons of color who were slaves for life previous to their immigration to Texas, and who are now held in bondage, shall remain in the like state of servitude, provided the said slaves 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 by the same tenure by which slaves were held in the United States, nor shall Congress have power to emancipate slaves, nor shall any slaveholder 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 this 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 descend

1 In Guess v. Lubbock, 5 Texas, 535, held, that whatever may have been the legal effect of the legislation of Mexico, previous to the Revolution, upon the relation of master and slave in Texas, which relation never ceased for a moment to exist de facto, if not de jure, there is no doubt the object and effect of this section was to recognize and continue that relation wherever it existed de facto in good faith. In McMullen v. Hodge, ib. 34, it is held that, a convention of the people has power to take away individual rights, though the exercise of that power is never to be presumed.

ants 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," &c. It also provided, Art. IV. sec. 13, "The Congress shall, as early as practicable, introduce by statute the common law of England, with such modifications as our circumstances in their judgment may require, and in all criminal cases the common law shall be the rule of decision."

1837.-An act declares enticing away or stealing slaves punishable with death. 1 T. L. p. 187. An act that "All negroes, Indians, and all other persons of mixed blood, descended from negro or Indian ancestors, to the third generation inclusive, though one ancestor of each generation may have been a white person, shall be incapable in law to be witnesses in any case whatsoever, except for and against each other. Ib. p. 205. Repealed as to descendants of Indians by 3 T. L. 51. An act to provide for the punishment of crimes and misdemeanors committed by slaves and free persons of color. 2 T. L. p. 43. Declares a number of crimes punishable with death; lesser offences punishable at discretion of the court. No grand jury presentment required: informal proceeding by petit jury allowed. Slaves or free persons of color, for abusive language to whites, to be punished with stripes.

1840. An act concerning free persons of color. 4 T. L. 149. Forbids their immigration, and provides for selling such as slaves who may remain. (Acts of 1841, 5 T. L. 85, 184, except from this free persons of color residing in Texas when declared independent.) An act of 1857, c. 119, forbids masters of vessels bringing in such persons.

An act concerning slaves. 4 T. L. 171. Sec. 1, 2.

1 An act of Dec. 20, 1836, sec. 41, declares that “the common law of England, as now practiced and understood, shall, in its application to evidence, be followed,” &c. Act of Dec. 21, 1836. That all offences known to the common law of England, not provided for by this act, are punishable as at common law. An act of Jan. 20, 1840. An act to adopt the common law of England, to repeal certain Mexican laws, and to regulate the marital rights of parties, seems to adopt the common law generally, where not otherwise provided by positive enactment. But an act to regulate civil suits provides that this shall not apply to rules of pleading, but proceedings in all civil suits shall be, as heretofore, conducted by petition and answer. Dallam's Digest, 56,

Against selling liquors to or buying produce of slaves. 3. Any person who shall cruelly treat or abuse a slave shall be prosecuted and fined. 4. Murder of slave declared felony. 6. Against their using guns (enlarged by 1850, c. 58, and 1856, c. 152).

1841, 1844.-Acts for the recovery of runaway slaves. 1845. Constitution of the State, declared by" the people of the Republic of Texas, in accordance with the provisions of the" resolution of Congress.' Art. I., the bill of rights, sec. 1, declares "all power is inherent in the people." 2. That "all freemen, when they form a social compact, are equal in rights," &c. In other clauses, "citizens," "every citizen," are spoken of as the subjects of guaranteed rights. There is no attribution of any rights to all men as inalienable. Art. III. sec. 1, 2. "All free, male persons, over the age of twenty-one years (Indians not taxed, Africans and the descendants of Africans excepted), who shall have resided, &c., shall be deemed qualified electors."

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Entitled Joint Resolution for annexing Texas to the United States. V. Stat. U. S. 797, 10 B. & D. 782, That Congress doth consent that the territory properly included within and rightfully belonging to the Republic of Texas may be erected into a new State, to be called the State of Texas, with a republican form of government, to be adopted by the people of the said Republic, by deputies in convention assembled, with the consent of the existing government, in order that the same may be admitted as one of the States of this Union."

"That the foregoing consent of Congress is given upon the following conditions, and with the following guarantees, to wit: First. Said State to be formed subject to the adjustment by this government of all questions of boundary that may arise with other governments, &c. Third. New States, of convenient size, not exceeding four in number, in addition to said State of Texas, and having sufficient population, may hereafter, by the consent of said State, be formed out of the territory thereof, which shall be entitled to admission under the provisions of the Federal Constitution. And such States as may be formed out of that portion of said territory lying south of thirty-six degrees thirty minutes north latitude, commonly known as the Missouri Compromise line, shall be admitted into the Union with or without slavery, as each State asking admission may desire; and in such State or States as shall be formed out of said territory north of the said Missouri Compromise line, slavery or involuntary servitude (except for crime) shall be prohibited. Sec. 3. The President may negotiate with Texas for admission, and Texas is to be admitted as soon as Texas and the United States agree upon the terms and the cession of the remaining Texan territory to the United States."

Dec. 29, 1845.--Joint resolution for the admission of the State of Texas into the Union. IX. Stat. U. S. 108. The act of Congress of Sept. 9, 1850, one of the compromise measures (ante, Vol. I. p. 563), determines the northern and western boundary of Texas. IX. Stat. U. S. 446.

The eighth article, titled Slaves, in terms similar to the sixth article in the Constitutions of Mississippi and Alabama (ante, pp. 145, 150), but "they may pass laws to prevent slaves from being brought into this State as merchandise only."

1846.—An act to prevent slaves from hiring their own time, or their owners from hiring them to other slaves, free negroes, or mulattoes. Sess. L. p. 195.

1852.-An act to indemnify the owners for the loss of slaves executed for capital offences. Annual Laws, p. 33.

1857.-A penal Code: repealing the older acts, contains their several provisions. Art. 386, penalty by imprisonment for a white marrying "a negro, or the descendant of a negro," or cohabiting, if married out of the State. Arts. 564, 566, under justifiable homicide, define cases when homicide of slave is justifiable; what shall be deemed insurrection, &c. Title XIX. Of offences affecting slaves and slave property, contains articles 650-678, classed under Chapters 1. Exciting insurrection or insubordination. 2. Illegal transportation of slaves. 3. Stealing or enticing a slave. 4. Offences respecting runaway slaves. 5. Importing slaves guilty of crime. 6. Harboring and concealing. 7. Trading with slaves.. 8. Cruel treatment of slaves.

In the same Code, Part III. Of offences committed by slaves and free persons of color. Title I. General Provisions, as to rules of trial and punishment. Title II. Rules applicable to offences against the person, when committed by slaves or free persons of color. (In these, a number of "general principles," (descriptive of the relation between the different races, and of the status of the colored, which are of great interest, as they may be taken to be applicable as common law in most of the slaveholding States.) Title III. Of the punishment of slaves and free persons of color.

In the Code of criminal procedure, Part IV. Title VII., is, Of proceedings before justices of the peace and mayors against slaves who hire their time, or are hired to other slaves or to free persons of color. See Texas Codes, ed. 1857; Oldham and White's Digest of the laws of Texas, ed. 1859.

1857-8, c. 63. An act to permit free persons of African descent to select their own master and become slaves. Dig. p. 225. Negroes above fourteen years, and children on petition of the mother, on a hearing before the court, may be decreed the slaves of a selected master. c. 133. An act to en

courage the reclamation of slaves escaping beyond the limits of the slave territories of the United States. Provides for payment by the State, in the first instance, of one third of the value, as a reward to any person recapturing such slaves.

$576. LEGISLATION OF THE STATE OF CALIFORNIA.

In the territory of the present State of California Mexican citizens were living under the civil law of Mexico at the time of its occupation by Americans, under the authority of the government of the United States, in 1846. Yet it does not appear that that law has, at any time thereafter, been recognized as having had that territorial extent which would have required its continuance as the law of the land until abrogated by the new sovereign. The Mexican law operated as a personal law in determining the individual rights of Mexicans, and was necessarily referred to as evidence of fact in the deterinination of the existing land titles.*

It may be doubted, therefore, whether the Mexican law prohibiting slavery' could, by continuing as the local law, have

1 Bartley's Digest, published 1850, does not contain any law authorizing the governor to deliver fugitives from justice. Oldham and White's Dig. of 1859, gives, in arts. 878-890, a law as of Aug. 26, 1856 (not found in annual laws), which contemplates the delivery of fugitives from justice without granting any special power to the governor.

2 Ante, Vol. I. p. 115.

3

Treaty of Guadaloupe Hidalgo, Feb. 2, 1848. IX. Stat. U. S. 108. Art. 8. Provides that Mexicans then established in the Territories previously belonging to Mexico shall have the choice of remaining or removing with their property, &c. "Those who shall prefer to remain in said Territories may either retain the title and rights of Mexican citizens, or acquire those of citizens of the United States." They were to make election within one year. Art. 9. "Mexicans who, in the Territories aforesaid, shall not preserve the character of citizens of the Mexican Republic, conformably to what is stipulated in the preceding article, shall be incorporated into the Union of the United States, and be admitted at the proper time (to be judged of by the Congress of the United States) to the enjoyment of all the rights of citizens of the United States, according to the principles of the Constitution; and in the meantime shall be maintained and protected in the free enjoyment of their liberty and property, and secured in the free exercise of their religion without restriction." There is no distinction of persons with respect to color or race.

See pp. 576, 577, 600, in Vol. I. California Rep. Appendix.

In the matter of Perkins (1852), 2 Cal. 424, where the question was of the validity of the State law of 1852, it was held, that slaves brought from Mississippi to California were lawfully held as such. The opinions delivered by Judges Murray and Anderson are remarkable for containing the same doctrines, or doctrines very similar to those which, as held by the Supreme Court of the United States,

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