The "chords of love": legalizing black marital and family rights in postwar Texas



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4 Statutes at Large (Boston, 1866, 1868), 13:507-09; 14:27-30.
5 James M. Smallwood, "Emancipation and the Black Family: A Case Study in Texas," Social Science Quarterly, 57 (March 1977), 856. See also Crouch and Larry Madaras, "Reconstructing Black Families: Perspectives from the Texas Freedmen's Bureau Records," Prologue, 18 (Summer 1986), 109-22; Randolph B. Campbell, "The Slave Family in Antebellum Texas," Victoria College Social Sciences Symposium, 1988, "The American Family" (Victoria, Tex., 1988), 20; An Empire for Slavery: The Peculiar Institution in Texas (Baton Rouge, 1989), 168, 246.
6 Other types of evidence that can be used in the study of the black family are court records, wills, inventories, indentures, labor records, especially contracts, church papers, correspondence, and the census. For the first two or three years after emancipation, the Bureau records are an indispensable starting point.
7 Wiliam S. McFeely, Yankee Stepfather: General O. O. Howard and the Freedmen (New Haven, 1968), 131. See also Harry August Volz, III, "The Administration of Justice by the Freedmen's Bureau in Kentucky, South Carolina, and Virginia" (Master's thesis, University of Virginia, 1975), 40-41; James Oakes, "A Failure of Vision: The Collapse of the Freedmen's Bureau Courts," Civil War History, 25 (March 1979), 66-76.
8 The legalities surrounding emancipation are discussed in Campbell, "The End of Slavery in Texas: A Research Note," Southwestern Historical Quarterly, 88 (July 1984), 71-80; Nancy Cohen-Lack, "A Struggle for Sovereignty: National Consolidation, Emancipation, and Free Labor in Texas, 1865," Journal of Southern History, 58 (February 1992), 57-98; Seal v. State, 28, Tex. 491 (December 1866); Williams v. Arnis, 30 Tex. 37 (April 1867); Hall v. Keese and Doughterty v. Cartwright, 31 Tex. 504 (October 1868); Dowell v. Russell, 39 Tex. 400 (1873); Garrett v. Brooks, 41 Tex. 479 (1874), all in Helen Honor (Tunicliff) Catterall, ed., Judicial Cases Concerning American Slavery and the Negro, 5 vols. (Washington, D.C., 1926-1937), 5:313, 315, 317-18, 323.
9 Joseph B. Kiddoo (Assistant Commissioner [AC], Texas) to Oliver Otis Howard (Commissioner), 23 July 1866, AC, Letters Sent (LS), Vol. 4, p. 294, Texas, Records of the Bureau of Refugees, Freedmen, and Abandoned Lands, Record Group 105 (National Archives). Unless otherwise indicated all references are to the Texas Freedmen's Bureau records in RG 105.
10 Statutes at Large, XIII, 507-09; XIV, 27-30, 173-77. For the Texas Bureau and state law see W. G. Kirkman (Agent, Boston) to J. P. Richardson (Acting Assistant Adjutant General [AAAG]), 31 January 1868, Vol. 68, pp. 20-24; L. H. Warren (Agent, Houston) to Henry Norton (Sub-agent, Galveston), 16 June 1867, Vol. 102, p. 30; Donald G. Nieman, "Andrew Johnson, the Freedmen's Bureau, and the Problem of Equal Rights, 1865-1866," Journal of Southern History, 44 (August 1978), 399-420; To Set the Law in Motion: The Freedmen's Bureau and the Legal Rights of Blacks, 1865-1868 (Millwood, N. Y., 1979). My perceptions were influenced by Michael Grossberg, "Crossing the Boundaries: Nineteenth-Century Domestic Relations Law and the Merger of Family and Legal History," American Bar Foundation Research Journal, No. 4 (Fall 1985), 799-847; Norma Basch, "The Emerging Legal History of Women in the United States: Property, Divorce, and the Constitution," Signs, 12 (Autumn 1986), 97-117, both of whom rely mostly on white examples.
11 The states included Maryland, Florida, Georgia, Virginia, Tennessee, Mississippi, Louisiana, and the two Carolinas; Grossberg, Governing the Hearth: Law and Family in Nineteenth-Century America (Chapel Hill, 1985), 133; Senate Executive Documents, 39th Cong., 2nd Sess., 1866-67 [Serial 1276!, 2 vols. (Washington, D. C., 1867), I, No. 6; John W. Blassingame, The Slave Community: Plantation Life in the Antebellum South, 2nd ed. (New York, 1979 [1972]), 175-77; Herbert G. Gutman, The Black Family in Slavery and Freedom, 1750-1925 (New York, 1976), 145-51. It seems to me that if the Bureau records can be used for the purpose of demonstrating the marriage record of the freedpeople, they can certainly be cited to represent the marital and parental difficulties of the former slaves.
12 Peter Kolchin, First Freedom: The Responses of Alabama's Blacks to Emancipation and Reconstruction (Westport, Conn., 1972), 59.
13 AC, Texas, Circular No. 9, March 23, 1866, Vol. 9, p. 313. An older useful summary of Texas marital law is George Elliott Howard, A History of Matrimonial Institutions, 3 vols. (Chicago, 1904), 2:421-23, 429; 3:71. For Texas marriage laws see Laws of the Republic of Texas, 2 vols. (Houston, 1841), 2:176; H. P. N. Gammel (comp. and arr.), The Laws of Texas, 1822-1897 (Austin, 1898), 2:640; Bennett Smith, Marriage By Bond In Colonial Texas (Fort Worth, 1972), 1-7. For background on the Texas slave family, see Ocie Speer, A Treatise on the Law of Married Women in Texas (Rochester, N. Y., 1901); Campbell, "The Slave Family in Antebellum Texas," 1-28; An Empire for Slavery, 153-69.
14 Grossberg, Governing the Hearth, 133; "Guarding the Altar: Physiological Restrictions and the Rise of State Intervention in Matrimony," American Journal of Legal History, 26 (July 1982), 197-226; B. F. McFarland (County Clerk, Rusk County) to A. J. Hamilton, 1 December 1865, Governor's Papers (Hamilton), Texas State Library [TSL], Austin.
15 James D. Campbell (County Clerk, Karnes County) to Hamilton, 5 February 1866, Governor's Papers (Hamilton), TSL; Hamilton to E. M. Gregory (AC, Texas), 29 March 1866, Vol. 9, p. 314.
16 James W. Throckmorton to Gentlemen of the House of Representatives, 14 August 1866; "Throckmorton Recommendations to the Legislature, 1866," both in James W. Throckmorton Papers, Eugene C. Barker for Texas History Center (now the Center for American History), University of Texas, Austin.
17 James C. Devine (Agent, Huntsville) to William H. Sinclair (Agent, Galveston), 12 January 1867, D-151, Operations Reports (OR); Devine to J. T. Kirkman (AAAG), 1 March 1867, D-154, OR.
18 David Ford (Minister, M. E. C., South, Burkeville) to Commanding General, 13 June 1869, Fifth Military District, District of Texas, Office of Civil Affairs, Letters Received, Box 9, RG 393, National Archives.
19 George P. Rawick, ed., The American Slave: A Composite Biography, Supplement, Series 2, 10 Vols. (Westport, Conn., 1979), Vol. 9, Pt. 8, 3858 (Thompson); Jesse McElroy to "Dear Sister," 29 March 1869, Bonds Conway Correspondence (South Caroliniana Library, University of South Carolina, Columbia); Kirkman (Agent, Boston) to Kirkman (AAAG), 17 August 1867, Vol. 67, p. 28. See also, Laws of the Republic of Texas, 2 vols. (Houston, 1838), 1:233-35; Gammel, comp. and arr., The Laws of Texas, 1:1293-95; 5:990; General Laws of the State of Texas Passed By the Eleventh Legislature (Austin, 1866), 72. Required to "record all licenses so issued by him, in a well bound book" with confirmation from the minister "solemnizing" the union, a county clerk had to check the legal status of the union.
20 James Hutchison (Agent, Columbia) to J. T. Kirkman (AAAG), 1 April 1867, H-202, OR; Ira H. Evans (Agent, Wharton) to Kirkman (AAAG), 31 July 1867, E-70, OR.
21 James P. Butler (Agent, Huntsville) to AAAG, 31 May 1867, B-191, OR; David S. Beath (Agent, Cotton Gin) to Charles A. Vernou (AAAG), 26 September 1868, Vol. 86, p. 90; William H. Rock (Agent, Richmond) to J. T. Kirkman (AAAG), 6 March 1867, R-114, OR.
22 Willie Lee Rose, "Blacks without Masters: Protagonists and Issue," Slavery and Freedom, ed. William W. Freehling (New York, 1982), 101; William H. Rock (Agent, Richmond) to J. T. Kirkman (AAAG), 6 March 1867, OR, R-114; James Hutchison (Agent, Columbia) to Kirkman (AAAG), 1 April 1867, OR, H-202; W. H. Horton (Agent, Wharton) to Kirkman (AAAG), 3 April 1867, OR, H-201; Edward Miller (Agent, Millican) to Kirkman (AAAG), 31 May 1867, OR, M-423; Rawick, ed., The American Slave, Supplement, Ser. 2, Vol. 8, Pt. 7, 3214 (Quarls).
23 William J. Neely (Agent, Victoria) to C. S. Roberts (AAAG), 31 October 1868, AC, OR, N-22.
24 Rawick, ed., The American Slave, Supplement, Series 2, Vol. 2, Pt. 1, 285-86 (Beverly); Vol. 10, Pt. 9, 4034 (White).
25 Rawick, ed., The American Slave, Supplement, Series 2, Vol. 7, Pt. 6, 2849 (Moye); Vol. 4, Pt. 3, 1413 (Franklin).
26 W. G. Kirkman (Agent, Boston) to Anthony M. Bryant (Agent, Sherman), 3 August 1867, Vol. 67, pp. 22-23; Kirkman to J. P. Richardson (AAAG), 23 March 1868, p. 68; March 31, 1868, pp. 62-68; Kirkman to Joseph Welch (Superintendent of Education), 30 June 1868, p. 97; Kirkman to (Agent, Sherman), 18 January 1868, p. 17; Kirkman to Charles A. Vernou (AAAG), 30 May 1868, pp. 92-93, all in Vol. 68; Kirkman to Judge A. G. Haskins, 3 March 1868, Vol. 69, p. 36; Squire Belle v. Crecy Belle and Others, 26 July 1867, Vol. 70, p. 5.
27 On Brooks and Curtis, see Crouch, "Self-Determination and Local Black Leaders in Texas," Phylon, 39 (December 1978), 349-52; The Freedmen's Bureau and Black Texans, 118-19, 121; "Hesitant Recognition: Texas Black Politicians, 1865-1900," East Texas Historical Journal, 31 (Spring 1993), 54. Stephen Curtis was later elected as a delegate to the 1868 Texas constitutional convention. Brooks was killed in July 1868 in the events surrounding the Millican riot.
28 Davis S. Beath (Agent, Cotton Gin) to Charles A. Vernou (AAAG), 28 August 1868, p. 80; 5 September 1868, p. 87, both in Vol. 86.
29 Mary v. Frank, 28 June 1867, Vol. 58, pp. 24-25; Jane Morris v. Cornelius Campbell, 19 August 1867, Vol. 96, n. p.; Celia Horn v. Reese Horn, 13-17 December 1867, Vol. 169, pp. 51-52.
30 Mary Ann Smith v. Armstead Clark, 13 July 1867, Vol. 96, n. p.; Amanda Moore v. Henry Goaldsby [October 1867], Vol. 138, pp. 88-89; Ann Marshall v. Mr. Simmons, 10 February 1867, Vol. 96, n. p..
31 Amelia Turner v. Bob White, 28 April 18[67], Vol. 131, n. p.; Lottie Banks v. George Jones, 9 March 1867, Vol. 96, n. p..
32 Complaints and Memo of Business, 4 June 1867, Vol. 52, p. 5. The agent, who kept the book, had one final comment, writing that it was "pretty dear pay for one years _____" (Crouch, "Black Dreams and White Justice," Prologue, 6 [Winter 1974], 263). Whatever may be said about Hartsfield's foresight in obtaining the Austin property, she certainly did not conduct herself well publicly. In April 1873, she was arrested because of a complaint filed by Annie Seel, another freedwoman, for using abusive language. After a jury trial, Hartsfield was found guilty and fined $3.00. The next day, the two women again confronted each other; this time Bell was fined $3.00 and costs. Hartsfield and Bell had been "quareling about one man for some time," wrote Austin Mayor T. B. Wheeler to Governor E. J. Davis, April 22, 1873, Governor's Papers (Davis), Record Group 301, Box 84, Folder 294, TSL.
33 Kirkman to J. T. Kirkman, 17 August 1867, Vol. 67, p. 28. Recently, Catherine Clinton declared that "most freedwomen resisted bringing [Freedmen's Bureau] agents into domestic matters." They "recognized the limited role the Bureau could play in their lives and the temporary nature of federal force - indeed, perhaps former slaves more than Union troops knew how short-lived this experiment of northern intervention might be." Bureau agents, "allied in color with their former masters," could not be relied upon. Women faced danger "in the short term" that "might result in retaliation over the long haul." Paternalism's "long arm," she emphasizes, "clothed in blue uniform or tattered grey - was grasped only under duress" ("Reconstruction Freedwomen," in Divided Houses: Gender and the Civil War, ed. Clinton and Nina Silber [New York, 1992], 309). This piece was adapted from her "Bloody Terrain: Freedwomen, Sexuality and Violence During Reconstruction," Georgia Historical Quarterly, 76 (Summer 1992), 313-32, where she extensively used Bureau manuscripts which conclusively refute her statement about black women approaching the Bureau.
34 Henry Young (clerk, Austin) to C. S. Roberts (AAAG), 11 September 1868, Vol. 49, pp. 210-11.
35 Ibid. The question of bastardy and bastardy suits concerned the black community and the Bureau. Although part of the legalization controversy, it is a separate issue. See, in particular, The Freedman's Press, 18 July 1868, p. 2; 1 August 1868, p. 2.
36 The Freedman's Press, 18 July 1868, p. 2.
37 Ibid.
38 Ibid.
39 Ibid.
40 Constitution of the State of Texas, Adopted by the Constitutional Convention [1869] (Austin, 1871), Article 12; Sec. 27, p. 40; The Freedman's Press, 18 July 1868, p. 2.
41 Later, the state supreme court determined to whom the law specifically applied. The justices noted that the 1869 law referred only to "those persons who were both precluded, not from intermarriage with each other merely, but from marriage with any one else." The object was clearly to "legitimate the offspring of those whose bondage had disabled them from legal marriage, but who had lived together recognizing each other as husband and wife, until the death of one or the other partner" or the adoption of the 1869 Constitution. Apparently, what it did not do was to legalize the status of children born to a mixed union. This loophole in the marital and parental legalization process had to be addressed in later years; Honey, Treasurer v. Clark et. al., 37 Tex. 686, 1872-73; Clements v. Crawford, 42 Tex. 601, 1875, in Catterall, ed., Judicial Cases Concerning American Slavery, V, 321-22, 324, 269 notes 5 and 6.
42 Gutman, The Black Family, 365. A similar view is Jacqueline Jones, Labor of Love, Labor of Sorrow: Black Women, Work, and the Family from Slavery to the Present (New York, 1985), 44-78. Nathan I. Huggins, in "Herbert Gutman and Afro-American History," Labor History, 29 (Summer 1988), discusses Gutman's use of the Bureau records to "show both how these family and kinship linkages extended over time and lengthy separations of slave families. At the end of the Civil War, slaves were insisting on being married properly and legally. They were traveling hundreds of miles to rediscover their families, which they had been separated from by sale. Husbands sought wives and children; wives and children sought husbands and fathers. Here was no picture of a people reduced to primitive values of sex and family," 334. On the Texas codes see Crouch, "'All the Vile Passions': The Texas Black Code of 1866," Southwestern Historical Quarterly, 97 (July 1993), 13-34.
43 Smallwood, "Emancipation and the Black Family," 852-53, 855-56; "From Slavery to Freedom: Smith County's Black Community in 1870; a Statistical Overview," Chronicles of Smith County, Texas, 18 (Summer 1979), 58-61; A Century of Achievement: Blacks in Cooke County, Texas (Gainesville, Tex., 1975), 42-48; Time of Hope, Time of Despair: Black Texans During Reconstruction (Port Washington, N. Y., 1981), 111-17. Smallwood's three county sample of Smith, Matagorda, and Grayson included 1,194 black and white households, comprising a population of 6,306. (He does not indicate what percentage of the black or white population this included). Although the 1870 census does not separate households into families, it is possible to determine family arrangements to some extent, but the resulting figures are imprecise. In precinct 2 of Galveston, Smallwood found that white males headed 96.95 percent of households whereas black men accounted for only 80 percent (Smallwood, Time of Hope, Time of Despair, 115). The Cooke County black family had "achieved a degree of stability by 1870" and blacks "continued to escape white control by establishing their own households." In 1870, according to Smallwood, 222 blacks lived in white homes, but this had dropped to 86 by 1880 (A Century of Achievement, 46-47). Possibly postwar rural black families were more stable than those living in urban areas. A major difference was that more black women and children worked than did their white counterparts. For a brief comparison of whites and blacks in Harrison County for 1870 see Campbell, A Southern Community in Crisis, 300-03.
Barry A. Crouch is a Professor of History at Gallaudet University, Washington, D.C.
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Publication Information: Article Title: The "Chords of Love": Legalizing Black Marital and Family Rights in Postwar Texas. Contributors: Barry A. Crouch - author. Journal Title: The Journal of Negro History. Volume: 79. Issue: 4. Publication Year: 1994. Page Number: 334+. COPYRIGHT 1994 Association for the Study of Afro-American Life and History, Inc.; COPYRIGHT 2002 Gale Group
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