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

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Bureau agents observed the transition of the slave family from bondage to freedom, but underlying their occasional negative comments about black Texans' lack of respect for the institution of marriage, there existed a concern for the legalities surrounding family life. Far into the future, Lone Star State freedpeople remembered what the recognition of marital and parental rights meant to them, even as their memories began to dim. Legal marriage assumed an importance in their lives that cannot be denied. A simple piece of paper, even considering the physical and monetary sacrifices it took to obtain it, engendered an individual pride. The fact that marriage was recognizable under the law (no matter whose) elicited various responses.
Black Texans later recalled the significance of legalized marriage. When Charlotte Beverly's grandmother suggested to her husband that they become legally married like the whites, he said he did not see any sense in doing it over again as "dey done been marry." Because of his refusal to properly certify the union the grandmother "done up 'n' quit him." Once freed, Jack White, who lived near Jasper, served as a nurse to his former master. After working for one year, for what he thought would be six dollars a week, White received but forty-nine dollars. He spent some of the money on himself, gave a few dollars to his mother, brothers, and sisters, but saved ten dollars so he could "git my license an' git marry on dat ten dollar'."(24)
Calvin Moye stated that his master had a preacher marry the slaves on "his" plantation, but with the arrival of freedom "de law makes dem all gits married like people ought to." Obviously Mr. Moye understood the necessity of the legal sanctification for marriage. That simple ceremony connected a person to society. Chris Franklin, a former slave who later lived in Beaumont, expressed a similar sentiment but demonstrated his belief in his new status when he proudly announced to an interviewer that he "didn't get marry like dey did in slavery time." He boldly proclaimed that "I's got a great big marriage certificate hanging on de wall of my room at home." Written certification through the acceptance of a legal official made marriage "proper."(25)
A related issue concerned black ministers who performed marriage ceremonies but did not have ordination papers. To officiate at a legally sanctioned marriage, the preacher had to be part of a regular ordination. Even though Bureau agents apprised these "earnest and sound" individuals that this requirement was expressly spelled out (for whites) in state law and made efforts to assist black preachers to obtain the proper papers, the state continued to postpone any action on black marital rights and the status of black ministers. The freedpeople "disliked very much" being married by a white person, so Bureau personnel encouraged those ministers capable of being ordained to do so. But all remained in legal limbo until 1869.(26)
Even though the ordination status of black ministers remained in doubt, they encouraged county clerks to issue marriage licenses to the freedpeople and officiated at matrimonial ceremonies. The advent of congressional Reconstruction in early 1867 validated their efforts, and they proceeded to perform official functions. For example, a marriage license was issued in Brazos County on June 19, 1867, and filed on July 16, 1867, by Stephen and Adaline Curtis, whom the black minister, George E. Brooks, married on July 8. Brooks, a prominent leader of the Millican black community (Brazos County), may have been attempting to force the state's hand in regard to legal marriage and ministers' rights.(27)
Even as late as the fall of 1868, just shortly before the demise of the Texas Bureau, blacks in remote areas still actively sought the Bureau's legal expertise. The questions involved the twin facets of marriage and children. The agent from Cotton Gin had to query headquarters regarding a freedman and a freedwoman living together for over a decade. "Were they considered to be married?" the official asked. He had over thirty applications from his vicinity on record in his office. Later, he needed to be instructed about blacks living together as man and wife in slavery, had children, but then agreed to part to marry other individuals. To whom, he wondered, "should the children look for support?"(28)
The evidence suggests that even if a man and a woman had never legally married, Texas black women considered themselves as common law wives with all attendant rights. They turned, at times, to the Bureau because they had no idea about what to do and faced a quandary about their status. Through that agency, they filed complaints for breach of promise for intent to marry and/or paternity suits. Cases of this nature generally concerned a woman who had been induced to live with a man, become pregnant, and then the man decided to abandon the woman. Mary, an Owensville black woman, claimed that Frank agreed to marry her and to live in Millican. Mary also contended that she was pregnant. To all this Frank pleaded not guilty.
Because the evidence was not "sufficient" (nor "were appearances") to warrant a belief that Mary was with child, it was decided that Frank would have to support the baby in the event it was born by the time Mary asserted it was due. Although the case was dismissed for no specific reason, Jane Morris, a Galveston freedwoman, stated that she had "cohabited" with Cornelius Campbell and become pregnant, and now he wished to leave. The evidence suggests that the case was amicably settled. When Reese Horn refused to provide assistance for the child whom Celia Horn claimed was his, she slapped him with a paternity suit. Reese was ordered to pay twelve dollars down and two dollars per month for two years in child support.(29)
Cohabitation similarly implied a promise of marriage. Mary Ann Smith complained that after Armstead Clark lived with her as a husband, she become pregnant and that now he desired to leave. The Bureau ordered Clark to support Smith. Clark indicated that he was going to take Smith to Houston and legally marry her. If a woman charged a man with "simple" cohabitation, he was generally assessed a fine. Henry Goaldsby was fined $150 in specie for breach of promise to Amanda Moore. When a man named Simmons promised to marry Ann Marshall, she gave him money and clothes and lived with him. Marshall had accumulated three or four hundred dollars, all of which she turned over to Simmons, who then refused to legally consummate the living arrangement. He was heavily fined.(30)
Lottie Banks, a Galveston black woman, had a slightly different story. A man by the name of George Jones, according to her, had been "paying her attention" for some time and promised marriage. Banks gave Jones twenty-four dollars to pay for the rent of a house where they would live immediately after marrying. She also loaned him a ring and a set of store buttons (total value five dollars), which he took and boarded the steamship "Matagorda" for New Orleans. Banks wished him caught and she described him as being "very light complected" for a freedman, rather small, with a scar under his right eye. The Bureau told Banks that because Jones was beyond the reach of the Galveston Bureau office, no action would be taken.(31)
In a classic case of cohabitation/pregnancy, Emma Hartsfield demonstrated that legal rights under the new order could be effectively used if the Bureau were engaged. Hartsfield stated to an agent that she had been induced to live with Lacy McKenzie, a white man, as he had promised her a house and a lot. She became pregnant and was about to deliver. McKenzie proposed an abortion; Hartsfield refused. He decided to sell the house and leave. Through the Bureau, Hartsfield secured a lawyer and attached the land and house. Later, the two individuals appeared before the Bureau and McKenzie executed a deed to Hartsfield giving her lot no. 8 in Austin upon which stood two houses. In turn, she signed an agreement releasing him from all claims.(32)
Women who believed that they had been wronged presented their cases in a straightforward manner with only the essentials. They may not have been sure of their precise rights, but they understood that something was seriously amiss, especially when they found themselves in an undesirable predicament. They may have been somewhat hesitant about approaching an agent with such a personal and private problem (there is no evidence of this in the records), but it is not surprising that when the Freedmen's Bureau did exist in Texas, one of the agents could remark that blacks "have not yet the confidence in the Southern white people that would prompt them to apply to them, for redress for grievances," even if it involved intimate legal rights.(33)
Complaints about a spouse's behavior, and thus the revealing of intimate difficulties, was the substance of the matters recorded in the Bureau's files. Evidence that spouses did not perform satisfactorily abounds. But the fact that those blacks who appeared before the Bureau were concerned and responsible demonstrates that enough blacks cared about their community to promote and maintain certain standards for others. A discovery to the contrary would be a surprise. Two facts are significant. First, those blacks who understood how the Bureau could assist them began to implement legal and institutional groundings for family life. Second, all aspects of family readjustment problems were brought to the Bureau.
Legalizing marriage and dealing with broken relationships formed a major concern of Southern blacks, especially women, in the aftermath of war. In addition, the legal status of parenthood and children, along with how the latter would be supported if a relationship were sundered, was another vacuum which needed to be filled. The state legislature would have to specifically mend the law relating to children because in its eyes all offspring of the former slaves would technically be considered "bastards" if previous unions were not recognized. Blacks, in the final analysis, made certain that they were legally covered in both areas and that their legal foundations became ensconced in the American system.
How children fared in this equation is also important because marital and parental recognition legally reinforced each other. In 1868, before a law governing "bastardy" had been instituted, Eliza Morgan filed a "bastardy" suit with the Bureau. Morgan, described as a woman of "indif[f]erent character," had several children, all by different fathers. Since 1866 she had lived with a white man, who attended billiard tables in a local saloon, and she had become pregnant again. She constantly fought with her lover in public and confessed to a Bureau official that she became intoxicated just so she could goad him into "rows." Engaged to marry another, he had cohabited with Morgan until two weeks before the commencement of the suit.(34)
Texas had no bastardy law, but a Bureau official believed that if the precedent of other states were followed in the Morgan case, there could be no legal claim on the father until the birth of the baby. Giving anything to Morgan at this early juncture, according to a Bureau individual, would be of "no service to the child as the mother won't work and is very extravagant." The Bureau wavered on how to resolve this delicate situation because they were afraid of its ramifications and what it would mean for families and local institutions in general. In the Austin and Anderson subdistrict there were "hundreds of bastard children," and if a policy were established in this case, "many of the mothers would bring actions against fathers. . . ."(35)
The Bureau had neither the technical resources nor the manpower to resolve the intricate and intimate problems that the concept of "bastardy" implied, especially when applied to a group that had only recently been emancipated and had as yet to be brought under the umbrella of marital and parental law. Agents could not rely upon guidance from the state in sorting out these complicated situations, and Bureau policy could only set a precedent if accepted by the Texas black community. Children of "regular" unions also had to be legitimized, or they could be legally labelled as "bastards." By assisting the freedpeople in their pursuit of legalizing their marital and parental rights, the Freedmen's Bureau performed a significant obligation.
Although national laws such as the one which created the Bureau and, by extension, encompassed black marital and parental rights attempted a stopgap solution, state law ultimately resolved this situation. Southern blacks understood this and agitated for a state enactment which would remove their marital and parental rights from what could only be described as being in limbo. And Texas' only black newspaper during this era entered the fray. Concerned about the concept of "bastardy," the paper wrote, "We claim that a provision putting all children born in the State, on an equal footing in the eye of the law, will not only be an act of justice, but put an end to a great wrong, to society and humanity."(36)
The paper's argument is worth noting as it asserted that all men had certain inherent and "indefeasible" rights such as life, liberty, and "acquiring, possessing and protecting property, and reputation, and yet you will refuse to legitimize the unfortunate people for whom this Constitution [1869] is made, to allow them to properly inherit property, and you keep up the stain of bastardy on their reputation." Moreover, it was "imperatively right and necessary that these people be declared in the eye of the law at least, legitimate, and capable of inheriting the property of their parents, and enforcing the obligations of parent to child." Without this legal protection children would have no rights whatsoever.(37)
The Freedmen's Press continued to hammer this point home. The legitimization of parental and child rights should be extended to all citizens. "All men were born free and equal," the newspaper contended, "and yet you will let a whole race of people whom the Constitution would govern, labor under the shame and outrage and inequality of what is known in law as bastardy - it is one of the enormous sins of slavery which it is the duty of a Republican Convention to rectify as far as it can be done." The very idea of "excluding children born, without their fault, out of wedlock, from the right of support from their parents, and the right to inherit property," the editor reasoned, "is one of the oldest and worst wrongs of society."(38)
Bondage stripped the slaves of any rights, and its legacy persisted. Since the "universal rule of slavery" was "illegitimacy," and until freed, blacks "had no choice in this matter," there were "thousands of children who are to-day the legal heirs of men who enforced concubinage as their right as masters, and who should be compelled by law to acknowledge their progeny." The newspaper doubted this would happen as any law of this nature would exclude the white population from its provisions. They believed it was the "most important measure which has been introduced into the Convention." It affected the "most vital and social interests of the freed people, who number at least two hundred and fifty thousand souls in this State."(39)
Throughout the first half-decade after the end of the Civil War, black Texans continually advocated the legitimization of their marital and parental prerogatives. Through their own efforts and by marshalling institutional resources, including those of the Freedmen's Bureau, the black community finally obtained legislative resolution of the marital and parental issues which had been so troubling and ambiguous since 1865. The 1869 state constitution, enacted by a Republican-dominated convention, established for blacks what the Freedman's Press had repeatedly supported in the editorials, the legal sanctification of black marital and family life. The law integrated marriage, parental rights, and child rights into a single section.
In the 1869 Constitution, the "chords of love, parental, conjugal, and filial," in the eyes of The Freedman's Press, became law. The statute declared that "all persons who, at any time heretofore, lived together as husband and wife, and both of whom, by the law of bondage, were precluded from the rites of matrimony, and continued to live together until the death of one of the parties," would be "considered as having been legally married; and the issue of such cohabitation shall be deemed legitimate." Those now living together "shall be considered as" legally married; "and the children, heretofore or hereafter, born of such cohabitations shall be deemed legitimate."(40) A long and significant legal battle had ended successfully.
The Texas black community through the Bureau, their newspaper, and community effort finally resolved the legitimization issue. The twelfth article, section twenty-seven, of the 1869 Texas Constitution, stated that "all persons who, at any time heretofore, lived together as husband and wife, and both of whom, by the law of bondage, were precluded from the rights of matrimony and continued to live together until the death of one of the parties, shall be considered as having been legally married, and the issue . . . shall be deemed legitimate." This legal encompassment of two vitally interconnected rights, those of parent and of the child, assured future generations a legal family foundation.
The article linked marital and parental rights. It recognized slave marriages as binding if the partners lived together at the time of emancipation. The familial rights of the freedpeople received protection after a hiatus of four years. They could now legitimately practice marital and parental rights with legal status accorded to previous or newly established relationships, as these unions had finally been sanctioned by an essential act of the state legislature, as Congress had no authority in the realm. This statute thus assured black Texans that if whites honored the law in the future, later generations would have their legal family foundation secured upon a permanent basis, and their children need not worry about legitimacy.(41)
Neither Bureau recognition nor the legalization of marriage by the state legislature automatically conferred stability or permanence upon marriages between black Texans. It did, however, through the Bureau and the state and local bureaucracies, connect blacks in a significant way to the larger society and the body politic. It recognized their sovereignty as individuals and certified their unions in ways that had never before been possible. This sanction also meant that black marital behavior had to follow societal rules with all the burdens which that imposed. Marital recognition was the first step in a cultural resonance of freedom that came through the interaction of the Bureau, blacks, the Republican Party, and the state bureaucracy.
The evidence, particularly that of the Freedmen's Bureau, suggests that although the Texas black community was not devastated by upheaval in the aftermath of war, it was also not as peaceful in black domestic affairs as some of the recent literature seems to suggest. Herbert G. Gutman writes that in the interregnum between the Civil War and the advent of Radical Reconstruction, the "Union Army and later the Freedmen's Bureau constrained [blacks] in severe ways, as did southern state legislatures in the laws commonly called 'Black Codes.'"(42) But the Bureau also provided a bureaucratic entry into society for black Texans to integrate themselves into the body politic. It unquestionably aided them in family matters.
In the early years of Texas Reconstruction, blacks faced a quandary in their marital and parental affairs. The state did not legalize marriage or divorce until 1869 for its black citizens, although various national laws and the Freedmen's Bureau did sanction marital unions. In order to begin to institutionalize their legal rights and their complaints, Texas blacks frequently called upon a Bureau agent to assist them in sorting out particularly difficult marital and family legal rights. It was through these individuals stationed within local communities that blacks were introduced to the bureaucratic network that would have to become part of their lives. They were instrumental in the transition of blacks from slaves to citizens.
The struggle for family regularization was an evolutionary process. Statistically, the evidence suggests that by 1870 the Texas black family had begun to normalize, but, in the five years immediately following the war, confusion and some disorganization existed.(43) Through the Bureau's bureaucratic and institutional status, black Texans discovered an agency that would assist them in solving some of their family problems and marital discord. For the former slaves, the Freedmen's Bureau served as a vital link - whether in Texas or elsewhere in the South - to the dictates of a free society and the laws that applied to its citizens. With the Bureau's aid, Texas blacks reinforced the family values and attitudes that they brought with them from slavery.
1 Fannie to Norflet [Perry], 28 December 1862, Pressly Carter Person Papers, Manuscript Department, William R. Perkins Library, Duke University, Durham. The letter was probably dictated to and written by a Perry daughter; see Randolph B. Campbell and Donald K. Pickens, eds., "'My Dear Husband': A Texas Slave's Love Letter, 1862," Journal of Negro History, 65 (Fall 1980), 361-64; Campbell, A Southern Community in Crisis: Harrison County, Texas, 1850-1880 (Austin, 1983), 233.
2 The Freedman's Press (Austin), 18 July 1868, p. 2; Margaret A. Burnham, "An Impossible Marriage: Slave Law and Family Law," Law and Equality, 5 (July 1987), 187-225. Slaves, according to Sally G. McMillen, "probably had little opportunity to forge an ideal union." Exhausted and powerless, partners "must have taken out some of their frustration on a spouse or child." McMillen contends that they could "dissolve their marriages easily" and that slave communities "condoned marital dissolution." Easy disbandment empowered black women, "for they did not have to endure a difficult relationship." Legal nonexistence, the possibility of sale, and the "emasculating authority of the owner," all additionally threatened familial destruction (Southern Women: Black and White in the Old South [Arlington Heights, Ill., 1992!, 34; John B. Boles, Black Southerners, 1619-1869 [Lexington, Ky., 1983], 90). For confirmation see Deborah Gray White, Ar'n't I A Women?: Female Slaves in the Plantation South (New York, 1985), 142-60; Thelma Jennings, "'Us Colored Women Had to Go Through a Plenty': Sexual Exploitation of African-American Slave Women," Journal of Women's History, 1 (Winter 1990), 45-74.
3 Ira Berlin, Steven F. Miller, and Leslie S. Rowland, "Afro-American Families in the Transition from Slavery to Freedom," Radical History Review, 42 (Fall 1988), 91-92. The Bureau's status in Reconstruction historiography and its role in the postwar South need not detain us here. Suffice it to say that controversy surrounds almost every aspect of its mandate and functions. For background on the type of material the Texas Bureau records contain, see Barry A. Crouch, "Hidden Sources of Black History: The Texas Freedmen's Bureau Records as a Case Study," Southwestern Historical Quarterly, 83 (January 1980), 211-26; "Freedmen's Bureau Records: Texas, a Case Study," Afro-American History: Sources for Research, ed. Robert L. Clarke (Washington, D. C., 1981), 74-94. The status of blacks and the Bureau in Texas Reconstruction historiography is discussed in Crouch, "'Unmanacling' Texas Reconstruction: A Twenty-Year Perspective," Southwestern Historical Quarterly, 93 (January 1990), 277-82, 293-96, and Alwyn Barr, "African Americans in Texas: From Stereotypes to Diverse Roles," Texas Through Time: Evolving Interpretations, ed. Walter L. Buenger and Robert A. Calvert (College Station, 1991), 50-80. For a detailed analysis of the Texas Bureau from two divergent perspectives, see Crouch, The Freedmen's Bureau and Black Texans (Austin, 1992); William L. Richter, Overreached on All Sides: The Freedmen's Bureau Administrators in Texas, 1865-1868 (College Station, 1991).

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