An Excerpt from Slavery and Freedom in Texas Jason A. Gillmer, Professor of Law
The Civil War was long over when Lourinda, Nancy, and Bishop sat down in the county courthouse in Wharton County to hear opening testimony in their suit against George W. Honey, the state treasurer. It was December 1871, and spectators had come from miles around to witness the latest developments in the ongoing dispute over the estate of John Clark, one of the wealthiest men in Texas. Everyone present was familiar with the case. A decade ago, John had died, leaving behind thousands of acres of land, over a hundred slaves, and more cattle than just about anyone in the county. Executors estimated his estate to be worth close to a half million dollars, an amount that surpassed the imaginations of practically everyone in the area. The problem was that John Clark had led a solitary life, miles away from his closest neighbor and even farther away from the life he left behind when he first ventured into the Texas wild forty years ago. Having long lost touch with his family, when he died no one stepped forward to claim the property. The local court had it inventoried and sold, including the human beings who resided on the plantation, and deposited thousands of bills and promissory notes in the state treasury.
Word of the immense and unclaimed estate inevitably filtered out, and soon individuals from as far away as Virginia, Alabama, Indiana, and Iowa eagerly embraced the man they never knew. They spun different narratives of how they were John’s next of kin – long-lost siblings, a nephew, maybe a niece – with none admitting “to be of kin as between themselves,” lest they have to share in the estate of the “Texas Millionaire.” The tangled web of stories and legal documents brought on by their claims, however, mattered little when Lourinda and her younger sister and brother walked into court. They were John’s children, and by the laws of intestacy they said that the estate and all its proceeds belonged to them.
As simple as the assertion was, the children’s case shook the foundation of some of the state’s most deeply held convictions. A spectator casting a glance toward them could easily explain why. Lourinda, Nancy, and Bishop all possessed the light brown skin and soft wavy hair that labeled them as “mulattoes,” as their mother, Sobrina, had been one of John’s first slaves. The reason for not coming forward at the time of John’s death was therefore obvious. Under the laws of Texas, children followed the condition of the mother, meaning that all three were also John’s slaves in 1861. Ten years later, at the time of the trial, their task had not grown much easier. No longer enslaved, they still faced the difficult burden of proving they were their father’s lawful heirs. This required them to demonstrate something antithetical to the laws of slavery and ideals of the time. It required them to prove that John and Sobrina had been husband and wife.
Much like now, people back then were invariably drawn to scandals, particularly those that involve sex, money, and power. The children’s case involved all of that and more, pitting individuals who had known freedom for only six years against the powerful state treasurer. It was a first for Wharton County. In 1871, Wharton remained a small agricultural community a few days’ journey on horseback from Houston, with only a few ramshackle buildings making up the county seat, also called Wharton. Residents had not yet established a newspaper, public education was dismal, and the railroad was still years away. Yet, even as time seemingly stood still, courtroom observers were being treated to a world turned upside down. Blacks were sitting on juries, whites were struggling to be heard, and the old was fighting the new.
The trial of Clark v. Honey took place in the county courthouse, a two-story building that had been the pride of the town when it was constructed before the Civil War, but now stood, like everything else in town, in need of repair. Inside the cramped and musty room, jurors and spectators shifted in their seats, trying to stay comfortable on the hard-backed wooden chairs and benches. It was a tense trial, with conflicting testimony barely hiding simmering disagreements about the future of the county. About the only thing on which people sitting in the courtroom could agree was that John Clark was different. The question was whether he was different enough to discard the sexual taboos that many residents sought to weave into the fabric of Texas life, and whether Sobrina was a willing partner in the endeavor. Following John’s journey into the wide-open frontier, with boundaries made porous by the realities of daily life, the jury came to a unanimous conclusion. One side of the courtroom erupted in cheers.
“Slavery and Freedom in Texas: Stories from the Courtroom, 1821-1871” will be released in the fall of 2017 by the University of Georgia Press in its prestigious Southern Legal Studies series. As a narrative history, it chronicles stories about real people, using their own words salvaged from trial records and court documents. It also draws upon the occasional memoir, census records, tax returns, deeds, cattle brands, and newspapers. Centered around five discrete case studies of nineteenth century trials, Gillmer’s book enriches our understanding of race and slavery in Texas as it transitioned from a borderland society to a republic and finally to a state.
One story involves a young enslaved woman who looked white and a Choctaw Indian who claimed her as his property. Another details an early settler’s thirty-year relationship with an enslaved woman on a remote plantation, leading to an inheritance dispute following his death and the question of whether they were husband and wife. A third discusses a case that arose after an owner refused to pay an overseer who shot one of her slaves, pitting the dynamics of wealth against the dynamics of race. A fourth involves a pioneer family of color who carved out a space for themselves in the marshland of Southeast Texas, before eventually losing their status and their land as new residents moved in and “civilized” the county. The final one recalls the life of a resourceful woman of color, freed by her owner in his will, and details the relationship she fostered with her attorneys in an effort to secure her rights.
Gillmer selected these cases because they involve controversies that seem anomalous given our contemporary assumptions about race and slavery. As the stories unfold and build off one another, however, they slowly come to suggest broader implications for everyday life. The law was a crucial institution in Texas, as it was elsewhere, and it helped define the parameters of participation in community life. At the same time, the vast stretches of undeveloped and underpopulated land created room on the margins for negotiation. As Gillmer’s stories show, on the rough-and-tumble frontier, the formal law of slavery often gave way to individual exception, leaving room for people to shape their communities and their relationships with one another, even as the state marched steadily in the direction of a slave society.
Jason A. Gillmer
Jason Gillmer is the John J. Hemmingson Chair in Civil Liberties and Professor of Law at Gonzaga University. He holds an LL.M. from Harvard Law School, a J.D. from American University, Washington College of Law, and a B.A. from Carleton College. His research and writing areas include American legal history, race and the law, and civil rights and liberties.