The "chords of love": legalizing black marital and family rights in postwar Texas.
by Barry A. Crouch
In late 1862, concerned about her husband Norflet, Fannie, a slave woman, wrote to him from "Spring Hill" plantation in Harrison County, Texas. A personal servant to Theophilus Perry, Norflet accompanied his master when the latter joined the Confederate Army. Fannie worried whether they would ever be rejoined. Separated since mid-year, she touchingly wrote: "I haven't forgot you nor I never will forget you as long as the world stands, even if you forget me." Her love was now "just as great as it was the first night I married you, and I hope it will be so with you." Fannie's "heart and love" was "pinned" to Norflet's "breast, and I hope yours is to mine." If she never saw him again she hoped to "meet" him "in Heaven."
Fannie asserted that "there is no time night or day but what I am studying about you." It had been several months since she had received a letter from Norflet. Informed by her mistress that her husband had been ill, Fannie was gratified to learn that Norflet had recovered. Fannie missed her husband, particularly during the holiday season. She reminded him of the Christmas tradition (which both had previously shared), when the master gave the slaves three days off. At loose ends, she attended a "candy stew." Fannie passed on greetings from "Mother, Father, Grand-mama, Brother & Sisters." All hoped Norflet would "do well." Fannie, lonely and desirous of seeing her absent husband, wished that it would "not be long before you can come home."
She poignantly closed by writing, "If you love me like I love you no knife can cut our love into [sic]." Whether Fannie and Norflet ever resumed their marriage at some future date is unknown. He disappeared from around Pine Bluff, Arkansas, in March 1863. Perry was killed at the Battle of Pleasant Hill in 1864. Fannie and Norflet do not appear in the 1870 Harrison County census, but this does not mean they never reunited.(1) Evident in Fannie's letter is the deep and abiding feeling slaves felt about marriage and family although neither was legally recognized. If Fannie and Norflet had rejoined and lived in postwar Texas, they would have faced incredible obstacles in finding a legal official to sanction their union.
The Civil War resulted in the emancipation of the slaves, but as Reconstruction commenced, the civil rights of the freedpeople remained unclear. Although the former Confederate states would be required to establish basic freedom for blacks once they made constitutional changes to reflect the war's result, national sovereignty also superimposed itself onto the state legal structure. From county clerks to congressmen, confusion seemed to reign among everyone concerned with black rights. The legal evolution of their status varied across the South. In Texas, a perplexing situation existed. Through the combined efforts of the Freedmen's Bureau and the Texas black community, marital and parental rights were finally recognized in state law.
A Texas black newspaper, The Freedmen's Press, summarized the former slaves' antebellum dilemma in an 1868 editorial. During slavery, the newspaper stated, "lawful wedlock was unknown and relations of husband and wife, parent and child" were not protected by Southern law and but a "slight degree, in fact." Severely treated, slaves were "sold and resold, regardless of kindred ties," and "human affection" was an emotion alien to the "merciless slave dealer." Indeed, when "families were allowed to grow up with some semblance of respect for the decencies of humanity," numerous obstacles loomed on the horizon, not the least of which was the slave auctioneer.(2) Couples who survived these traumas faced a different situation once the war ended.
Many questions of a marital and parental nature emerged during the early years of Texas Reconstruction among the black community. This legal entanglement had begun during slavery and the Civil War. The disruptive nature of the conflict only exacerbated the problem, further postponing a solution. Texas blacks, in the meantime, would have to wait for official action. The changes which the war wrought in their status became significant for family relations because they now had to be legally incorporated into the body politic. They experienced every kind of marital and child difficulty, and although it was a halting process, these questions all became major issues once the war and Reconstruction impinged on the lives of the former slaves.
To supervise the transition of the Southern black population from slavery to freedom, Congress created the Bureau of Refugees, Freedmen, and Abandoned Lands (Freedmen's Bureau) in March 1865. Blacks' marital, parental, and familial relations came under an agent's purview. Most Bureau personnel believed, as did Northern abolitionists before the war, that slavery had been harmful to the establishment and maintenance of the black family. Agents wrongly assumed that blacks had learned little about morality and a monogamous family life, so they considered it their duty to observe and instruct them in these matters. They "brought to the South their own understandings of free labor and proper family organization." All agreed families should be legalized.(3)
The original law which established the Bureau gave it "control of all subjects relating to refugees and freedmen." It empowered the Secretary of War to direct such "issues of provisions, clothing, and fuel" for refugees and freedmen and "their wives and children." Congress was more forthright and specific in the Civil Rights Act of 1866. Southern blacks received the right to "make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property." Suits commenced in state courts might be removed to a district court on the defendant's motion.(4)
All this had to be translated onto the state and local level, where blacks were uncertain of their rights and where social relations were still in the process of being stabilized. It was the Bureau's task to fill this vacuum. Blacks across the South used the Bureau courts to determine the precise status of their legal protection now that they were free citizens. The Lone Star State was slow in recognizing black marital, parental, and child rights, but throughout the early years of Reconstruction black Texans insisted, through the use of Bureau courts, on a clarification of state laws and protection for themselves and their offspring. This demand was not surprising in the light of their past experience.
The Bureau arrived late in Texas and its network did not spread over the Lone Star State until 1867. Initially, Bureau officials, along with the army, made numerous efforts to assist black Texans in legalizing their marriages and sanctioning parental rights. Many former slaveowners repudiated the Bureau's legality, but blacks immediately approached the agency because they understood that its statewide organization and governmental imprimatur gave it a legitimacy that their former masters and state officials did not possess. National sovereignty and institutional directives made Texas blacks aware that a new and significant presence had appeared. They desired that the Bureau legalize marriage and legitimate children.
Texas blacks did not approach only Freedmen's Bureau agents about their marital and parental problems. They utilized a variety of mechanisms to assist in solving family difficulties, including kin, community leaders, and church congregations. These were important avenues of redress, but sustained evidence is difficult to locate. The work of the Bureau, its local agents, and the records which they left behind provide substantial evidence of how agents assisted blacks and the evolution of black marriage in the aftermath of war. As one Texas Reconstruction historian has written, the "legalization of marriages along with the actions of well intentioned bureau agents and preachers and teachers, both black and white, helped stabilize the black family."(5)
The Freedmen's Bureau, particularly through its local agents and the black community, acted together to promote the legalization of marital and parental rights. How the Bureau, black Texans, the law, and the state government interacted was a difficult and protracted process. The first postwar legislature conveniently neglected to enshrine black marriage in the law or legally recognize the legitimacy of black children. So black Texans approached Bureau agents with marital and parental questions because they now had an institution which recognized and sanctioned their unions and their parental rights. Even though the two groups differed in class and race, their desires for legalization and regularization of family life merged.(6)
The relationships between the former slaves and the new rules and bureaucracies as they related to family life also need exploration. Through black reaction to the Freedmen's Bureau, we can begin to assess the impact of the new institutional bureaucracies (federal, state, and local) on the appearance and character of black families. Examining the ambiguity of marriage law and black parental status, we find that the former bondspeople approached the Bureau as an institutional resource which could assist in the resolution of matters outside their control. The state government had largely abdicated any responsibility for promoting their rights. The law required an intermediary; its vagaries required an interpreter.
An anomalous situation existed in Texas throughout the early years of Reconstruction. The state legislature, alone among all those of the former Confederacy, refused to recognize black marriages. Not until 1869, when the Radicals assumed control of the legislative process, did black marital and parental rights receive legal justification. During this hiatus, the Freedmen's Bureau sanctioned black unions and formally promulgated announcements to this effect. Blacks, who appeared before agents, considered themselves bound in matrimony and attempted to integrate their status into the new social order. Black Texans quickly learned that the Bureau was the only institution to which they could turn. The state refused to recognize their humanity.
Although William S. McFeely generally criticized the Freedmen's Bureau for its myopic vision, he believed that the agency's predecessors and the bureau staff "stressed the regularizing of the informal family arrangements" among the recently emancipated "which were all that had been allowed in American slavery." He contended that "it would not be an overstatement to say that the bureau men in the field saw marriage and the formation of stable family groups as the most important thing they should accomplish for the freedmen in their charge." As they belonged "themselves to a culture in which families were of enormous importance, the encouragement of that institution among the freedmen was the natural thing to do."(7)
Partially through the Bureau, what is presented here is a legal, social, and cultural benchmark. The local agents, in listening to complaints and in their decisions, represented a wide spectrum of opinion about the prerogatives of black men and women within marriage. Bureau personnel were emphatically middle class and judgmental on black family concerns. Bureau officials addressed familial problems with a preconceived set of notions about normality and abnormality. New rules and laws regulated and imposed upon this process. Along with black efforts to establish family values after emancipation, the Bureau provided a forum where they could begin to legitimately sort out the readjustments necessary to achieve some harmony in their life.
Formal emancipation for Texas slaves occurred on June 19, 1865 ("Juneteenth"), by order of General Gordon Granger. The Bureau did not appear until September, and it was at least twelve months before it encompassed much of the eastern portion of the Lone Star State. Because it was to the Bureau which black Texans turned for assistance, it is important to provide a brief overview to understand how the agency interpreted and applied laws relating to marriage and family. In Texas, apparently as elsewhere, all blacks living together as man and wife on the date of the passage of the bill establishing the Freedmen's Bureau (March 3, 1865) were considered legally married. Thereafter, the bond could only be dissolved by formal legal procedures.(8)
Joseph B. Kiddoo, the Texas Bureau's second Assistant Commissioner, summarized the agency's attitude about black family and parental relationships. He wrote that slavery "blunted the moral and better instincts of negroes socially and intellectually." Although planters complained that blacks had "no family relation manifesting itself," their domestic unions, he wrote to Commissioner Oliver Otis Howard, "should be more carefully guarded" and their "ties of consanguinity made more affectionate." Education, Kiddoo declared, would influence blacks to attribute more "sacredness to marriage." The Bureau should protect consanguineous ties, reaffirm the sanctity of matrimony, and promote marital harmony.(9)
In Texas, after the agency's focus moved away from labor and toward the private lives of the former slaves, the recognition of marriage became a prime order of business. Along with the original Bureau legislation, the 1866 Civil Rights legislation and the law that extended the Bureau, all simultaneously hinted at the legality of marital and parental arrangements though the lawmakers never specifically clarified what constituted the recognition of marriage. These acts validated black contractual rights, which presumably included marital privileges (one can never be sure). If blacks desired a divorce, the Bureau would advise and assist, but only the civil courts could legally dissolve their unions.(10)
Southern blacks registered their marriages in states where the Bureau initially operated or where state legislatures enacted legislation.(11) The Texas Bureau did not record marriages, and the state did not officially formalize slave and postwar relationships until 1869. Uniformity did not characterize the South's legal process, regardless of what Congress intended. Black social behavior, American law, and state policy rarely followed a similar pattern and did not reinforce each other. National legislators could declare anyone a citizen and apply all existing laws, but the state reserved powers for itself regarding all
aspects of marriage and family regulation. This, quite naturally, included legalizing marital and parental rights.
"Legal provisions for all of these contingencies - as well as the actual solutions to them," contends Peter Kolchin, were "arrived at only over a period of several years." And it was several years in the Lone Star State. For all the Bureau's efforts in behalf of legalizing black marital and parental rights, and establishing an arena where these legal questions could begin to play themselves out, they left the scene because of national dictates before blacks fully realized their marital sanction under the law. But the legacy which they assisted to perpetuate, that of a legally recognizable family life, finally became a reality. But much remained to sort out on the individual, governmental, and national stage.(12)
The Texas Bureau believed that black family life required legalization, but not until March 1866 did state headquarters promulgate any marriage regulations. The agency's announcement conformed to Texas law for whites. Establishing proper marital ages at 21 for males and 18 for females (18 and 15, respectively, with parental consent), Bureau policy required a license and/or a ceremony conducted by a certified religious or civil official. Divorce became possible only through "due process of law." The circular encompassed all previous slave unions by declaring that "persons cohabiting together or associating as man and wife" according to "usage of the country in the past" were "recognized as such" by congressional establishment of the Bureau.(13)
Bureau orders did not guarantee immediate state legal recognition of marital and parental rights, and Texas blacks experienced difficulties in gaining lawful certification. These problems arose when former slaves attempted to sanction their marriages. Though Michael Grossberg has argued that white response to "most black demands for legal rights was negative," they "readily granted the matrimonial requests of their former charges." Texas did not follow this scenario. When freedpeople attempted to record their marriages, authorities rebuffed them. In Rusk County, freedmen quickly applied to the county clerk for issuance of marriage licenses, but the official "declined granting them" as he "did not wish to set the example."(14)
The Karnes County clerk requested clarification of the freedpeople's status from the governor. In the absence of any "Statutory Law," should he issue licenses if "called on"? He believed they "should be encouraged to live like civilized people and not like heathens or brutes." Provisional Governor Andrew J. Hamilton supported the Bureau's marriage policy as "wise and necessary to the moral improvement, social happiness and physical well being" of the freedpeople and urged its observance by county clerks, directing them to grant licenses and authorizing the solemnization of black marriages. Little changed. Clerks who recorded black marriages had been "complained of for so doing" by local citizens and ceased granting them.(15)
This situation existed throughout Presidential Reconstruction in Texas. In the 1866 Constitution, the conservatives generally ignored black marital and parental rights although they did pass a stringent black code. On the local level, county clerks who supported the Democrats continued to reject applications by blacks for marriage licenses. Thus, although many of the individuals who brought complaints before the Bureau may not have been "legally" married, they certainly considered their unions as such. Moreover, the Bureau's institutional status encouraged black Texans to believe that even if the state ignored their rights to permanently enjoin themselves to another person, the Bureau certainly recognized it.
The first official Texas state government after the war did not begin functioning until fall 1866, or as the governor, James W. Throckmorton, expressed it, the "people of Texas have once more a regular government of their own choosing." He realized that legal marriage for the former slaves needed to be instituted. Throckmorton suggested to the legislature that it establish "by law proper domestic relations among persons of color." The state assemblymen should recognize those unions in which blacks have lived "together and are so reputed as married, and future marriages should be in accordance with existing laws." Moreover, the adultery statutes that applied to whites should be the same for blacks.(16) The legislature ignored Throckmorton.
In order to overcome the obstinacy of county clerks and the legislature in issuing the freedpeople marriage licenses, the Huntsville Bureau agent in January 1867 gave a written permit to 88 persons to present to the county clerk, who would then supposedly provide them with the necessary legal document. "In no case," the agent wrote, "has the authority been given where any doubts existed as to the parties [sic] former relations, proof was always called for that the applicant had no wife or husband under the old regime." In February the same agent gave out 14 more marriage permits. He was the only Bureau agent in the Lone Star State to perform this function. His actions, however, had little impact on local or state policy.(17)
Once Congress assumed control of Reconstruction and delegated to the military all the duties which state and local officials would perform, chaos or, at least, consternation continued to reign at the local level. And what were former slaves to do when they approached a seemingly proper county official and he could report that the couple had "covenanted together in marriage, and being desirous to consummate their covenant," there was no officer present in the county to issue a marriage license? The politics of military Reconstruction, which included the appointment of county clerks, further delayed legalization when black couples who desired to obtain a marriage license could locate no official empowered to issue it.(18)
Even when local officials could be found, their outlook upon accepting the legality of black marriage varied. In Nueces County, clerks did record and sanction black marriages, but others refused. With the advent of military Reconstruction, a shifting of personnel on the local level began to occur, and Republicans slowly gained some control of local offices. Between 1867 and 1869, clerks began to grant marriage licenses to blacks but not on any standard or regular basis. Jesse McElroy wrote his South Carolina sister in 1869 from Henderson, Texas, in Rusk County (the scene of the black's initial rejection in attempting to legalize their unions), that he and his new bride had just been issued the "first license" in the area to "colored people."(19)
Although emphasizing legal marriage, many Texas agents lamented that the "sacredness of the marriage ties and relations are so little understood and observed" by the freedpeople. In Columbia, James Hutchison's duties encompassed "instructing the freedpeople in the sacredness of the marriage contract, and in trying to induce those who are living together as man and wife to obtain marriage licenses in accordance with the existing laws." Another agent stressed the "sanctity of the marriage relation," pressured those who had procrastinated to become legally married, and urged blacks "to live together in harmony and tell those who are legally married that if they cannot live together then they must seek a divorce in the manner prescribed by law."(20)
When describing freedpeople's domestic patterns in the postwar era, Texas agents often commented negatively. They declared that blacks did not "comprehend the solemnity and binding force of the marriage ceremony or understand the duties they owe to each other in marital relations." James P. Butler of Huntsville believed that one "great vice" existed among the freedpeople which only time could remedy: "They do not realize the solemnity of their marriage relations." On one plantation, a husband left his wife, obtained a marriage license under a false name, and married another woman. Part of this consisted of sorting out the tangled and unstable relationships which occurred during the antebellum years.(21)
The eminent Southern historian Willie Lee Rose wrote over a decade ago that the freedpeople "often had to determine which of several marriages contracted under slavery [they] ought to honor." Texas agents encountered such cases. William H. Rock wrote that the problem of men leaving their wives to live with other women became rather alarming. Women complained that husbands often had another mate on the side. An agent remarked that freedmen could not "divest themselves of the belief that a wife can be taken up and laid aside at will" for such "trivial reasons" as "family jars and altercations." One agent complained that few freedmen live "with their lawful wives" and even fewer "have but one wife."(22)
From Victoria, agent William J. Neely may have had the best perspective on dealing with conflicts between black spouses: "I have settled disputes between husbands and wives by advising to forbearance," he wrote headquarters. Agents had to learn to cultivate patience when hearing marital cases brought by black complainants.(23) Somewhat appalled by the behavior of the former slaves in the first years of freedom, they attempted to assess why these difficulties arose, compared them against their values and those of the black community, and then compromised beliefs and feelings into a workable solution. Whatever success they may have achieved (and assessment is difficult), agents served as an institutional base for mediating conflicts.