THE FREE NEGRO IN HARRIS COUNTY
TEXAS
1
Viewed as competition by white labor, patronized by white
benefactors, and forbidden to associate with their kinspeople,
still slaves, free negroes in the South dragged out a miserable
existence. So unsatisfactory was their freedom that they often
voluntarily chose masters and placed themselves in servitude, in
accordance with the legal provisions of most if not all southern
states. Despite their social and economic privation, they never-
theless enjoyed a relative security. To be sure, their legal position
was humble, resembling that of metics in a Greek city, resident
strangers. They could neither hold office, vote, sit on juries, nor
give testimony against any except slaves and other free negroes.
Their offenses against property and persons were penalized
as though committed by slaves, more severely than the same
offenses committed by whites. Despite these restrictions, they
were able to live undisturbed by legal agencies, to receive jus-
tice at the criminal bar, and to assert their freedom against
illegal seizure. Cases drawn from the records of Harris County,
doubtless typical of the South despite its late settlement, fur-
nish proof of these conditions.
Even when it permitted free negroes, Texas strictly regulated
their position. A negro, it first ruled, was one who had as
much as one-fourth negro blood,
2 but later he became one with
as little as one-eighth.
3 Negroes were punished alike, whether
slave or free. While whites were punished with death, impris-
onment in the penitentiary and county jail, forfeiture and sus-
pension of civil and political rights, and pecuniary fines,
4
negroes were punished with death, branding, imprisonment in
the penitentiary, whipping, standing in the pillory, and labor
upon public works.
5 "Insurrection or any attempt to excite
it," by free negroes, "poisoning or attempting to poison, commit-
ting a rape or attempting it on any free white female, assault-
ing a free white person, with intent to kill, or with a weapon
likely to produce death, or maiming a free white person, arson,
murder, burglary" all were punished with death.
6 A free negro
who was convicted of using insulting, abusive, or threatening
language to a white person should receive between twenty-five
and one hundred lashes.
7 He could not play cards or other
games of chance with whites, for the law provided punishment
for whites who so played with their inferiors.
8 A free negro
could not "preach the gospel or ... exhort at any religious
or other meeting" unless at least two slaveholders were present.
9
An act approved on May 11, 1846, forbade a free negro to hire
slaves,
10 though no statute prevented his owning them.
On the other hand, the State insured against the sale of free
persons into slavery, although the intention of the law was
more likely the protection of whites than of negroes.
Every person who shall unlawfully sell any free
person for a slave, or hold any free person as a slave
against his will, knowing the person so sold or held
to be free, shall be punished by confinement to hard
labor in the Penitentiary not less than one year nor
more than ten years, or by fine not exceeding one
thousand dollars, and imprisonment in the county
jail not exceeding one year.
11
While it is doubtful that any convictions were had under this
law, weakened by the clause "knowing the person so sold or
held to be free," it nevertheless provided a theoretical safe-
guard against illegal seizure.
Numerically, free negroes were scarce, though there are no
satisfactory figures giving the exact number in Harris County
at any time. The Houston Morning
Star,
in 1839, guessed that
there were twenty or thirty in Houston, perhaps an over-
estimate.
12 The only official statements are those of the cen-
suses of 1850 and 1860, but the accuracy of these is doubtful.
13
The 1850 census, the first taken by the United States in Texas,
named seven free negroes in Harris County: Dick Ellett, aged
50 years;
14 Emily Routh, 23, Mary J. Routh, 3 months;
15 Abby
Townsend, 14, Stama Townsend, 40, William Townsend, 1;
16
and Charlotte Vince, 38.
17 By 1860, the number had increased
imperceptibly to eight: Fanny McFarland, 58 ;18;
18 Emily Mimms,
30, Ida Mimms, 6, Rose Mimms, 3, Sam Mimms, 4 months;
19
G. Phillips, 60 ;
20 Fanny Sneed, 90 ;
21 and Sally Vince, 50.
22
What became of those listed in 1850 but not in 1860? Perhaps
they died, or moved away, or were not counted, or were counted
as slaves. Whence came those enumerated in 1860 but not in
1850? Perhaps they moved in, or were emancipated during
the decade, or were not counted in 1850, or were counted as
slaves.
All free negroes in the South were either manumitted slaves
or descendants of manumitted slaves. There were, then, but
two ways for free negroes to get to Harris County or to any
other American locality. Either as free negroes they moved there
or they were there emancipated. Legislation in the Republic
and State of Texas, as elsewhere, was concerned first with free
negroes within its jurisdiction at its passage and secondly with
further immigration and emancipation, both by deed and will.
As shall be seen, with but rare exceptions, free negroes were
legislatively forbidden to remain in Texas. Law, however, does
not enforce itself, and for the social historian it is not the
statute that is the more significant but the manner in and
the degree to which the machinery of administration and adju-
dication applied the statutory law in specific instances.
Quite logically the status of free negroes already resident
in Texas was handled legislatively first. Though not returned
by Governor Henry Smith, the ordinance of the General Coun-
cil of the Provisional Government, passed January 5, 1836,
seems, to have had the force of law.
23 It recognized as citizens
those free negroes then in Texas. The Constitution of 1836
altered this by requiring free negroes to secure Congress' per-
mission to remain.
24 President Houston, never a racial bigot,
on June 5, 1837, eased this constitutional prohibition by grant-
ing to those free negroes living in Texas on March 2, 1836, "the
privilege of remaining in any part of the republic so long as
they choose; on the condition of performing all the duties re-
quired of them by law."
25 On February 5, 1840, President
Lamar, more race-conscious than Houston, approved an act,
which repealed all laws contrary to its meaning and spirit and
commanded all free negroes to remove from the Republic be-
fore January 1, 1842.
26 In May he issued a proclamation, in
pursuance of the act, instructing sheriffs and constables to
carry it into effect.
27 Considering that a number of free
negroes had fought in the Texas Army during the Revolution,
President Houston, who succeeded Lamar, on December 21,
1842, remitted for a time the penalty of the act of February
5, 1840, "provided those who wish to obtain the benefit of this
proclamation, apply to the Chief Justice of the County in which
they reside, and make satisfactory proof of their good charac-
ter, and also enter into bond and security, in the penal sum
of five hundred dollars, payable to the President during the
term specified in this proclamation."
28 This remission remained
in effect until February 5, 1845. After that date, it would
appear illegal for any free negro to remain within Texas, unless
the Legislature provided specific relief. No Harris County negro
was so relieved.
Despite all this legislative thundering and executive evasion,
those free negroes already in Texas quietly went their way and
disregarded both Congress and President. Some few, no doubt,
found other places more inviting than Texas. Emily D. West,
who had come out from New York with Colonel James Morgan,
in September, 1835, requested a passport that she might return
to her native state,
29 but she was exceptional. For the most
part, free negroes remained despite the disapproval of the law.
Local executives and magistrates, generally, were not only too
busy with more pressing problems, but they were positively
disinclined to interfere. Chief Justice Isaac N. Moreland signed
every one of the five petitions submitted to Congress by Harris
County free negroes.
30 Some bear the signatures of practically
every man who held political office in Harris County during the
Republic, as well as of several members of the cabinet and the
highest ranking officers of the Army.
31 Occasionally, however,
some attempt was made to enforce the law. On February 28,
1842, the Houston City Council resolved "That the City Marshall
and all other City and County officers be and are hereby re-
quested and required forthwith to enforce the laws of the
Republic against Free Negroes upon all Free Negroes now living
within this corporation."
32 Considering this as the rank im-
pertinence of a body who had no control over them, the Harris
County constabulary certainly disregarded it, and there is no
evidence that the city marshal did otherwise. But one free
negro took advantage of President Houston's remission of pen-
alty. On March 3, 1843, Ann Tucker went before Chief Justice
Moreland, fulfilled all of the provisions of the proclamation,
and was discharged until February 5, 1845.
33 Ann, who had
been in Houston as early as March 5, 1840, when she purchased
a lot from the notorious Pamelia Mann,
34 remained in Houston
until her death, January 1, 1846.
35 Four other free negroes
remained without hindrance, though they apparently did not
comply with the law. Fanny McFarland, who was emancipated
by William McFarland in Texas in 1835,
36 lived in Houston at
least from 1838 to 1866,
37 although she was in Brownsville at
the taking of the 1850 census.
38 She engaged in a number of
real estate transfers and managed to make a profit on her in-
vestment. Despite the refusal of Congress to grant her per-
mission to remain, she stayed until the United States Govern-
ment made her and all negroes citizens. Dick Ellett first came
to Texas in about 1820, but he left before the Revolution. On
March 17, 1836, he returned on the schooner William
Francis
which landed at Copano. When he misplaced his emancipation
papers, William B. Reeves and George Hunter Bringhurst, both
of whom held public offices, made affidavits to his good charac-
ter, but there is no evidence that he entered into bond.
39 Sally
Vince, who maintained her freedom at law, as will be later
pointed out, remained undisturbed, getting into no public records
other than the decennial censuses. Diana Leonard, a washer-
woman in Houston, had come to Texas in 1835, possibly with
Emily D. West, and had spent one year in Colonel James Mor-
gan's service.
40 Congress refused to act on her petition to re-
main, and it is possible that after some time she returned to
the United States.
The numerous legislative bodies of Texas also took precau-
tions against an increase in the free negro population by making
provisions against immigration and emancipation. The General
Council's ordinance of January 5, 1836, which recognized as
citizens free negroes then in Texas, prohibited the immigra-
tion of additional free negroes.
41 The congressional act of Feb-
ruary 5, 1840, also made illegal their immigration and provided
for the selling into slavery those who violated it.
42 These laws
were likewise disregarded, and free negroes not only came to
Texas, but, fearing the loss of their credentials more than the
operation of the law, they boldly filed their emancipation papers
with the county clerk.
Nelson Kavanaugh, who had been emancipated in Richmond,
Kentucky, and had lived as a free man for some time in Clinton,
Mississippi, moved to Texas in the spring of 1837 and plied his
trade as barber in Houston.
43 Congress declined acting on his
petition to remain, and he soon dropped from sight, probably
returning to the United States.
In September, 1837, Robert Bushare, of Attakapas, Louisiana,
brought an ex-slave of his, Palmer Jackson, to Texas in a whale
boat. Jackson lived unmolested in Houston for several months,
and it was not until March, 1838, that he found his freedom
hampered, and that due only to his leaving Houston and going
to Washington County.
44 So long as a free negro remained in a
place in which he was known by whites he was secure, but when
he went beyond the limits of his acquaintance, he was more
than likely to find himself jailed as a runaway slave.
In the spring of 1838, Thomas McAllister presented to Mira-
beau B. Lamar, in Houston, a letter from Samuel A. Roberts,
of Mobile, in which Roberts stated McAllister had been head
waiter in Mobile hotels and steward on the best packet steam-
boats on the Alabama River. Roberts heartily recommended
that Lamar hire McAllister as his factotum.
45 While Lamar did
not do this, neither did he turn McAllister over to the sheriff.
In July of the same year, Henry Tucker immigrated to
Houston and established a barber shop.
46 If the men who signed
his petition to Congress patronized his service, his clientele was
most distinguished, for the names on the petition read as a
register of the cabinet and the military command. Tucker dis-
appeared, but it is possible that Ann Tucker, who made bond,
was his widow.
One master accompanied his manumitted slaves to Texas and
personally appeared before the county clerk to declare on oath
that he had set them free. Eldred Barker, of Natchitoches,
Louisiana, on March 6, 1839, acknowledged before County Clerk
DeWitt Clinton Harris that on November 8, 1837, Rose and her
four children, Henry, Edmon, Clisaan, and Mary had made the
last payment on their freedom; whereupon he had emancipated
them.
47
In 1839, Zilpha Husk, a native of Richmond County, Georgia,
48
who had established her freedom in the circuit court of Autauga
County, Alabama, in November, 1837, was in Houston, receiving
from George B. McLeskey, of Washington County, the revoca-
tion of the apprenticeship of her daughter, Emily, made in
Montgomery, Alabama, November 13, 1837.
49 Emily probably
was as well fitted to take care of herself as the majority of
white women, for there is no reason to assume that McLeskey
had not lived up to his contract and taught Emily to read and
to write and instructed her in "the art of carding spinning weav-
ing and sewing."
50 Zilpha's three petitions to Congress failed to
secure for her permission to remain in Texas,
51 but she re-
mained nevertheless.
But one prosecution clouded this disregard and contempt for
the law. In April, 1839, a number of free negroes, variously
estimated from eight to twenty, was haled before the city
recorder. According to the editor of the Morning
Star,
these
arrests were the first attempts to enforce the ordinance of
January 5, 1836.
52 If we may trust the lack of evidence to
the contrary, they were also the last. Counsel for the defense
denied the competency of the court and argued "that so far
from the free Negroes being prohibited from residing in the
Republic, or the 9th Art. of the Constitution in the slightest
degree strengthening the previous acts of the Convention in
this particular, it was susceptible of being construed into
an
invitation
held
out
to
free
Negroes
to
emigrate
to
the
Republic!
--For," he asked, "how can they petition Congress for permis-
sion to remain, unless they first emigrate to the country?"
53 The
recorder, humbly viewed the jurisdiction of his office and dis-
missed the defendants. On the following day, the city council
enacted an ordinance under which the marshal should arrest,
at the end of thirty days, all free negroes and carry them be-
fore the district judge.
54 Two months later the grand jury ad-
dressed the district judge on the evils of having free negroes
at large.
As a population, they are much worse than useless:
in general, they neither perform any productive labor,
nor exercise reputable callings. With scarcely an ex-
ception, they are addicted to vice and the commission
of petty crime. They are often irresponsible instru-
ments in the hands of white men. But it is chiefly the
mischievous influence which the free Negroes exert
over our slaves, to which the Grand Jurors would in-
vite especial attention. ... A family of free Negroes
commonly presents the impersonation of indolence, ig-
norance and dishonesty. Such a family, unless strictly
and perpetually watched, and kept at a distance, will
render the slaves of the plantations near which they
are situated, dissatisfied, disobedient, restless, thievish
and corrupt. In the towns where the facilities for dis-
honesty by slaves are much greater than in the coun-
try, the presence of free negroes is felt as a very great
evil. In addition to their other vices and petty crimes,
the free Negroes being addicted to Gambling, initiate
the slaves, who supply the means of pursuing it by
stealing from their masters. The Grand Jurors . . .
would likewise mention, that they have been informed
on undoubted authority, that one free Negro at least is
in correspondence with the abolitionists of the north,
if not an emissary of theirs.
55
All of this was a serious charge, but it appears to have been
not entirely true. The law continued to be inoperative, but no
one seems to have suffered unduly, as one would expect if the
accusations were correct.
In 1846, Peter Allen, a barber, moved to Houston. He did
not petition for permission to remain in Texas until 1863, after
he had served as a body servant to an officer of Terry's Regi-
ment during the battles of Woodsonville and Shiloh.
56 The
Legislature refused his request.
As late as 1847, free negroes continued to immigrate. On
March 31st, of that year, George William, vaguely described
as "aged about twenty years height five feet five 1/2 inches, com-
plexion Black, Hair Black & wooley scars none by profession a
Mariner Born in Boston Massachusetts," filed with the county
clerk an instrument signed on May 7, 1845, by Adam P. Pentz,
a notary public in New York City, stating William was "a free-
man and citizen of the United States of America and entitled
to be respected accordingly in person & property at all times
and places both by sea and land in the due prosecution of his
lawful concerns."
57 This was unmitigated abolitionist senti-
ment, but it seems to have passed unnoticed.
The Constitution of 1836 provided that no slaveholder should
emancipate slaves without the consent of Congress, unless he
sent them out of the Republic.
58 This was laid open for modi-
fication but not modified by the Constitution of 1845, which
granted to the Legislature the power to pass laws by which
masters could emancipate their negroes;
59 the Legislature did
not provide any such laws. The 1861 or Confederate Consti-
tution of Texas absolutely forbade emancipation.
No citizen, or other person residing in this State
shall have power by deed or will, to take effect in this
state or out of it, in any manner whatsoever, directly
or indirectly, to emancipate his slave or slaves.
60
Two slaveholders emancipated their negroes by deed, but both
before secession. On January 4, 1847, the writer's great-grand-
mother, Cynthia Annie (Meriwether) Ewing, sold to William
Gammell, Thomas M. Bagby, and Archibald Wynns, for $400,
a negro woman named Lyle. Gammell, Bagby, and Wynns were
to use their efforts to induce the Legislature to authorize them
to emancipate Lyle; in addition to which they agreed "to permit
Said negro Lyle to go hence free and to use her time as her
own on condition of her proper behaviour."
61 Bagby filed the
deed in the county clerk's office at Austin and petitioned the
Legislature for permission to emancipate the negro woman.
62
This the Legislature refused to grant.
On January 24, 1859, Nathaniel Bailey sold freedom to his
forty-year-old female slave, Keziah, and appointed the same
Thomas M. Bagby "to have and take charge of said Negro
woman and to allow her to enjoy the fruits and revenues of
her labor & to exercise just so much control over her as will
be for her own good & in accordance with the laws of the
State."
63 Here we have a clearer statement of what Bagby
was doing. Since the Legislature only reluctantly gave its per-
mission for manumission, so far as official curiosity was con-
cerned, Lyle and Keziah were Bagby's slaves, but in actuality
they were free negroes.
Four Harris County residents emancipated their negroes in
their wills. On January 25, 1837, James Routh, an old and
well-to-do settler on Galveston Bay, made his will, which is
remarkable for its great length if for nothing else. The first
intimation of a philanthropic impulse is a bequest of three
hundred and twenty acres "to my negro woman Sylvia & her
six children, to wit: Sally Ann, Mary Jane, Emily, Jackson,
Isabella and Margaret."
64 Since chattel could not hold title to
property, one is mystified until somewhat later in the lengthy
document, at which point Mr. Routh got to the nub of his
intentions.
I hereby will and bequeath full freedom to my negro
woman, Sylvia & her six children and her further in-
crease . . . nevertheless upon the following condi-
tions: Sally Ann and Mary Jane to be bound to live,
as servents with Ophelia [Mrs. James] Morgan untill
they arrive at the age of twenty one years—the balance
of the children to live with their Mother, Sylvia, to be
supported and protected by her, untill their Guardian
may think proper to bind them out, which is to be
done, untill they shall arrive at the age of twenty one
years, to have their freedom to all intents and purposes,
as far forth as the laws of the country will allow
To Sylvia, I will her full freedom at my death pro-
vided she takes care & protects her children as here-
tofore stated . . . and I wish my executors to en-
devor to have Sylvias children before named, edu-
cated, so far as to read and write, & to pay for the same
out of my Estate and hereby authorize them to appro-
priate three hundred Dollars for that purpose.
I will and bequeath to negro man Jim, at my death
full freedom for his meritorous services, & requeast my
executors to see that he obtain it. ...
And I hereby constitute & appoint my friends Dr.
George M. Patrick and Col. James Morgan my only
executors to this my last Will and testament and con-
stitute them Guardians to Sylvia & her six children,
before named as well as to Jim, whom I have set free
by these presents.
65
Routh died on July 19, 1837.
66 Unfortunately the record does
not reveal what happened between his death and April 14, 1838.
On that date, Colonel Morgan applied to Andrew Briscoe, Chief
Justice of the county, "for commitment of negro slave Silvie
belonging to the estate of said Routh, who he alleged has be-
come unruly and refused to submit to his authority."
67 Well
might Sylvia have become insubordinate, if Morgan viewed her
as a slave. Briscoe, a slaveholder himself, committed Sylvia to
the county jail "subject to the order and at the expense" of
Morgan.
68 Two days later, Morgan applied for the commit-
ment of Jim who likewise had become unruly; he too was
packed off to jail.
69 At this point Jim disappears forever from
the record, but five years later Sylvia reappears. On November
27, 1843, she petitioned the probate court for letters of guard-
ianship of Sally Ann, Mary Jane, Emily, Jackson, Isabella,
and Margaret.
70 Her request was granted, and title to the three
hundred and twenty acres on Clear Creek passed to her and
her children.
On August 24, 1844, William Smallwood, in his will, emanci-
pated his slave, June, and bequeathed her his entire estate. He
directed his executor to give June "all aid in asserting her rights
under this will."
71 Some years later, on September 27, 1852,
Sarah Noble willed her slave, Becky, to her son, Edwin B., on
condition that he emancipate her at the testator's death.
72
There was no want of justice meted to free negroes
charged with criminal offenses. In fact, it appears that not
one of them was convicted in the Harris County District Court
and but few in the City Recorder's Court. In 1838 the grand
jury indicted Richard Green for retailing goods without a li-
cense
73 but was unable to find a true bill against William White
for the more serious offense of petit larceny.
74 On December
28, 1838, the District Attorney dismissed the charge against
Green.
75 As indicated previously, the free negroes arraigned
before the City Recorder in April, 1839, were discharged for
want of jurisdiction. City Recorder D. W. Babcock, on April 3,
1840, fined Henry Tucker ten dollars and costs for fighting
with a Chinese barber named Price over ownership of some
pictures.
76 On May 18, 1849, the grand jury indicted Edmund
Mitchell, a white man, and Zilpha Husk for fornication.
77 When
a petit jury found Mitchell not guilty,
78 the district attorney
dismissed the case against the negro woman.
79
No evidence of the just treatment of the free negro is more
compelling than his ability to maintain, before slaveholding
judges and juries, cases against whites for illegally holding
him in slavery. The Harris County District Court heard two
civil suits in which negroes charged whites with holding them
in illegal servitude, and in both the negroes were victorious.
At the fall term of court, 1838, Sally Vince filed suit against
Allen Vince (who, with Wilson Strickland, was the chief char-
acter in the recent prodigious litigation in the Montgomery
County District Court and the United States District Court at
Houston over title to the Conroe oil field), charging him with
holding her, a free woman, in slavery. She based her freedom
on a deed executed by William Vince, September 7, 1834, grant-
ing her freedom at his death. Allen Vince's ownership of Sally
was devious. On April 3, 1838, Allen, administrator of William,
in his inventory of the estate, contended that William had
owned but a third interest in Sally.
Allen Vince Administrator of the estate of William
Vince, deceased being duly sworn upon his oath de-
poseth and says, that the Bill of Sale of the above
named negro Sally has by time & accident been lost
or estrayed, but that he is impressed with the belief
that the Bill of Sale was made to his (Allen's) son to
wit, William Vince, Junior but he is now informed
that the said negro belongs jointly to William Vince,
deceased, to himself and to Susan Vince, Now Susan
Summer. . . .
80
When William Vince's property was sold, Allen himself pur-
chased Sally for five hundred dollars; whether two-thirds or
all of her, it is impossible to determine.
81 There is no indication
that Susan Summer was defendant, for the cause is styled
"Sally Vince versus
Allen Vince." On January 7, 1839, the
case went to the jury. Allen Vince's attorneys, Archibald
Wynns and Henry W. Fontaine, moved the court to instruct
the jury "that admitting the deed of manumation for William
Vince to Sally Vince to be true that under the constitution it
affords to the plaintiff no right of freedom."
82 Judge Benjamin
C. Franklin reserved the question for deliberation, and the jury
returned an alternative verdict: if the court gave the instruc-
tion prayed for by the defendant, they found for the defend-
ant; if not, they found for the plaintiff. Whereupon, Judge
Franklin delivered his opinion.
The only question presented for the consideration of
the Court is as to the effect of a deed of manumation
did the deed become operative from the moment of its
execution and delivery, so as to vest any right in Sally?
—the words of the Deed are "have this seventh day
of September Anno Domini eighteen hundred and
thirty four Liberated Manumited and after my death
set free a certain female slave named Sally, at this
time aged about twenty three years—I the said William
Vince having the entire order control, management and
command over the services
of the said female slave
for certain considerations me hereunto moving do
hereby bind myself my heirs executors administrators
& assigns that after my death for faithful services and
obedient and submissive conduct have
her the afore-
said Negro slave named Sally free from all obligation
to any . . . other person whomsoever"--This same rule
of construction must be applied to the deed of manuma-
tion,--that would be applied to any other Deed, by
these rule we find that the freedom
of the negro Sally
--is a remainder limited to a person in being & apper-
tained upon a particular estate (the life estate reserved
by Wm Vince) the termination of which is absolute
and certain, and which does not depend upon any con-
tingency
So that the execution of the Deed of Manumation,
vested the right of liberty in the negro Sally but post-
poned only the enjoyment and not the right Suppose
that ten days after the execution of the deed of manu-
mation when the master was at liberty to manumit his
slave, William Vince had died, would not the negro
girl to all intents and purposes [be] free? Certainly
and she would have derived her right
to
liberty
from
the deed, and taken possession of [and] entered upon
the enjoyment of the previously acquired right
as the
necessary effect of the deed upon the death of Vince.
What a man has once conveyed by deed he cannot
affect by any subsequent conveyance and in the present
case had Vince sold the negroe Sally after executing
the deed of manumation the sale would have had no
force for he could not divest by any act of his a vested
right to freedom.
The manumation having taken effect before the adop-
tion of this constitution, the plaintiff was not at that
time holden as a slave bona fide the property of William
Vince
Wm. Vince having departed this life the only obsta-
cle entervining between the right of Liberty & the en-
joyment has been removed and the court is of opinion
that she is free . . . and that Allen Vince the defendant
has no right or property to the said Negro Sally--
and it is ordered that she go hence free and liberated
from all custody or control by the said Allen Vince
and recover of him all costs in this behalf ex-
pended. . . .
83
Some years later a similar case with identical results was
tried in the same court. On May 4, 1847, the law firm of Peter
W. Gray and Abner Cooke, Jr., filed a petition in which Emeline
stated that she was a free woman of color and a citizen of
Tennessee. She represented to the court that her mother, Rhoda,
was free at the time of her (Emeline's) birth and was yet free,
but that on or about December 20, 1846, in Houston, Jesse P.
Bowles "with force and arms assaulted your petition [er] and
then and there took, imposed and restrained her and her children
[James and William] of their liberty, and held her & them in
servitude from said day to the commencement of this suit
against the laws of the land and the will of petitioner."
84 Five
weeks later Emeline amended her petition. "And your peti-
tioner further shows that living under the charge & custody
of the said Bolls she is very much restricted in her movements
and has not an opportunity to consult with her Lawyers &
take their advice as to the means necessary to protect her
rights and has therefore left that matter to her Sister Lucy
Thompson [of New Orleans] who is aiding her to establish
her freedom and came to Texas for that purpose." Judge C. W.
Buckley, on the same day, enjoined Bowles and those acting
under his direction, counsel, or authority from removing the
plaintiffs outside the jurisdiction of the court, upon Emeline's
making bond of two hundred dollars. In his answer to the
petition, Bowles stated that his late mother, Elizabeth, whose
administrator he was, had bought Emeline and held her as a
slave until her (his mother's) death.
In July both parties became active in gathering evidence.
Bowles' attorney applied to the court for a commission to take
the testimony of Philip M. Cuney, of Austin County. The in-
terrogatories inquired whether Cuney had seen Emeline in
James B. Beckham's possession and whether she had acquiesced
in this possession. Gray and Cooke propounded a series of
cross-interrogatories, asking whether Emeline were in the pos-
session of a Mrs. Seip, of Rapides Parish, Louisiana, and
whether Mrs. Seip sent her off with Beckham when Rhoda
established her freedom in Tennessee.
Have you not been a negroe proprietor for many
years? Are you not well acquainted with the way
negroes are managed by their masters & overseers?--
And have they not the means to make their negroes
acquiesce
in being sold whether they will or not? . . .
Was it not just such conduct as might have been
looked for from a negroe woman like Emmeline, under
the power of an overseer, without friends at hand and
ignorant of her rights [?]
The record contains neither a commission for the interroga-
tories nor Cuney's answers, but this is not conclusive that the
one was not granted nor the other returned.
Toward the latter part of the next month, Gray and Cooke
propounded interrogatories to a number of people in Alexandria,
seat of Rapides Parish. Of James T. Flint, husband of Mrs.
Seip's sister, Susan, John Curtis, and Coleman W. Calvit, they
asked about Mrs. Seip's parents, about Emeline's age, color,
and husband, and about the circumstances of Emeline's leaving
the Seips. The last question Mr. Flint refused to answer,
stating that he was the Seips' attorney who had been con-
sulted professionally in the matter. He stated, however, that
Mrs. Seip was the daughter of Thomas and Martha Martin,
of Nashville, Tennessee. Emeline, he added, was a "likely"
mulattress. She had two children, and he had heard that a
slave belonging to Mrs. S. K. Johnston passed for her husband.
Curtis affirmed Flint's evidence and stated that Emeline was
about twenty-two years old. To the third question he replied
that Beckham took Emeline to Texas in the fall or winter.
Calvit did not make a deposition, or if he did the record has
not survived.
Of Mrs. Flint, attorneys Gray and Cooke inquired in what
manner Mrs. Seip got Emeline and the name of Emeline's
mother. Mrs. Flint answered that Emeline belonged to her
father, and that from his estate Mrs, Seip received Emeline,
whom she took to Louisiana in 1839. She added that Emeline
was the daughter of Rhoda who belonged to her father from
her earliest recollection to her father's death.
Gray and Cooke also interrogated Dr. and Mrs. Seip, asking
especially whether they sent Emeline off with Beckham, whether
they gave him a bill of sale, whether he sold her, and whether
he gave them any of the money he received for her. Either the
Seips did not answer or the record has been misplaced.
In December the case was continued to the spring term of
court.
85 Bowles' attorneys propounded interrogatories to Rob-
ert Chappell, of Washington County, after whom the town of
Chapel Hill was named. He answered that he had seen
Emeline in Houston in November and December, 1846, and
that she had told him "she was willing to be sold" and "that
Beckham had come honestly by her."
Bowles' attorneys requested the plaintiff to produce the orig-
inal bill of sale for Rhoda executed by Donelson Caffery to
Thomas Martin subsequent to her return from Pennsylvania,
or they would prove its content by parol. In May the case
was continued until fall.
86
On November 24, 1848, the case at last went to trial. J. J.
Cain, John F. Crawford, John Dickinson, William J. Hutchins,
and E. B. Noble were summoned as witnesses. Since there is
no transcript of the oral evidence, one cannot even surmise to
what they testified. In addition to this verbal testimony and
the answers to the interrogatories, there were depositions from
Washington Jackson and Mrs. Ellen Kirkman, but these are
not now with the papers of the case. One knows they were
offered as evidence, for the defense attorneys objected to their
introduction on the technical point that Jackson and Mrs. Kirk
man "were sworn by the Commissioner who took their deposi-
tion to testify in a cause pending between Emeline a free
woman of color Plff and Isaac P. Bowles defendant--and that
said witnesses were not sworn to testify in the aforesaid suit
in which Emeline a free woman of color is Plff and Jesse P.
Bowles defendant." Judge Buckley overruled the objection and
permitted the testimony to go to the jury. The next day, Gray
and Cooke prayed the court
to charge the Jury that if they believe from the testi-
money that Rhoda the mother of plff was sent by her
master to the state of Pennsylvania after the year 1788
with
the
intent
&
purpose
that
she
should
thereby
be-
come
free,
and was so carried with the consent of her
master to that State, that the said Rhoda by that act
became free.
That if they believe from the evidence that Rhoda
the mother of plff was carried voluntarily & with her
master's consent to Pennsylvania after the year 1788
and remained in that state six months or more, that
the said Rhoda became free
That if the Jury believe from the evidence that the
plaintiff is the daughter of a woman who was free at
the time of her birth then the plaintiff was born free:
and can assert her claim to freedom in the Courts of
this state
The defense excepted to this charge.
The jury, many of them slaveholders, among whom was An-
drew Briscoe, retired and returned the same day with the ver-
dict: "We the Jury find for the Plaintiff Emeline that she and
her children are free as claimed by her, and assess her dam-
ages at one dollar." Whereupon, the Court adjudged Emeline
and her children free persons of color and charged them to
"go hence free from the service of defendant & all others."
Emeline went forth free and so disappears from the record.
From the depositions that are available, one is at a loss to
determine precisely on what grounds the jury found for Eme-
line, when the evidence seems more to indicate that she was a
slave. If there were additional evidence, now lost, it must have
been potent to have counteracted in the minds of the slave-
holding jury the testimony of the Flints and others. That the
jurors could objectively consider this unknown evidence is a
refutation of the abolitionist's insistence that a negro could not
secure justice in a Southern court. In this case, certainly, a
negro received not only justice but also what appears to be
mercy as well.
Though Washington Jackson's deposition is not available in
the present papers of the case, it is extant in the attic of the
Davidson County Courthouse at Nashville, Tennessee (in which
the writer, innocent of daylight-saving-time, was locked one
September afternoon in 1940), one of the papers in the case of
Rhoda, George, Margaret, and Matilda versus
Mrs. Patsy Mar-
tin.
87 Jackson deposed:
I owned her [Rhoda] several years; I lived in Phila-
delphia & Natchez during that period; the said woman
was employed on a plantation in Attakapas Louisiana,
owned by me and in which Mr Donelson Caffrey
[Caffery] had a nominal interest; Caffrey had several
children by this woman Rhoda and [Caffery] being
about to marry, I relinquished my interest in her and
her children to him for the sole purpose and distinct
understanding of having her and them emancipated:
and according to said agreement, I took Rhoda and her
children three in number, named according to the best
of my recollection William, James, &
Lucy to Phila-
delphia Pennsylvania, with me by sea, from New Or-
leans, Louisiana, for the purpose of their emanci-
pation. With a view to this emancipation I took for
the woman and her said three children a nominal price;
perhaps one third of their value. I arrived in Philadel-
phia from two to three weeks after leaving New Or-
leans. I think that this was early in the year 1816.
I
have little doubt that we reached Philadelphia before
the 1st of May of that year. Afterwards in that year I
often saw the woman at the house
of my sister Mrs.
Ellen Kirkman in Philadelphia. After Rhoda had been
in Philadelphia, sometime, not being able to support
herself, free of expense, she was sent by Caffrey's re-
quest, to his friend Thomas Martin who lived near
Nashville Tennessee for the purpose of having the boys
bound to trades, and that the mother should live with
him [Martin] and work for her own and their support.
Martin was a particular friend of Caffrey and knew the
relation which had existed between him and Rhoda, and
Caffrey relied upon his taking care of her and her chil-
dren and doing justice to them. They had lived neigh-
bors in Attakapas on adjoining plantations.
This evidence, buttressed by Mrs. Kirkman's, probably to the
same effect, was conclusive enough to cause two Southern juries,
in widely separated Nashville and Houston, to return freedom to
seven free negroes held in duress. One may speculate whether
Mrs. Kirkman was an abolitionist, but Washington Jackson was
certainly not one. He had been a slaveholder in two large planta-
tion areas, Natchez and Attakapas. In the latter place he
raised sugar; seven years' work on such a plantation, accord-
ing to abolitionists, killed even the stoutest negroes. At the
time of the deposition, he was living in New Orleans, in which
there were more than enough free negroes to prove one way
or another the quality of this anomalous class. In the light of
Jackson's deposition, the decision of the court seems no more
than just.
Shortly before the outbreak of the Civil War the Texas
Legislature, following those of other Southern States, reversed
the tradition of English law and provided means for free ne-
groes voluntarily to enter permanent and irrevocable slavery.
On January 28, 1858, Governor Hardin Richard Runnels signed
an act allowing free negroes over fourteen years of age to peti-
tion the district courts for permission to be bound in slavery
to masters of their own choosing. The district court was in-
structed to examine separately the free negro applicant, the
master whom he had chosen, and the two who had witnessed
the free negro's petition. The district attorney should repre-
sent the petitioner at the court hearing. Upon finding no evi-
dence of coercion or fraud and determining the good character
of the selected master, the court should adjudge the petitioner
a slave. The person thus enslaved should not be subject to any
liens made or judgments rendered prior to his enslavement, thus
making more secure the relation between voluntary slave and
selected master.
88 Free negroes all over Texas took the oppor-
tunity of exchanging the dubious and unsatisfactory liberty of
free people of color for the restriction and security of slavery.
On May 3, 1861, the Harris County District Court heard the
petition of Bob Allen, who had selected as master William
Thomas Neil. Upon examination of Allen, Neil, and the two
witnesses, Robert Page Boyce and William Ferguson, the Court
adjudged Allen a slave.
89
The Civil War brought another class of free negroes, negroes
in the United States Army and Navy captured by the Confed-
erates. A number of such prisoners of war, who had been cap-
tured at the Confederates' taking of Galveston, January 1, 1863,
were brought to Houston, together with other prisoners.
90 These
negroes were the source of some trepidation on the part of the
city fathers. On June 8, 1864, Mayor William Anders com-
plained to General J. B. Magruder, commanding the District
of Texas:
The board of aldermen of city of Houston, by resolu-
tions passed at their last regular meeting, have in-
structed me to communicate to you the fact that the
negroes and persons of color, some thirty in number,
captured by the forces under your command from the
enemy and considered as prisoners of war are now go-
ing at large within the city of Houston, mixing and
associating with our slave population, contrary to the
laws of the State of Texas and to the laws of the Con-
federate States; and they further instructed me to re-
quest you that these persons be ordered by you to be
removed from our midst to work on the fortifications,
or that they be turned over to the civil authorities
and to be sent to the penitentiary under the State
law. In complying with the wishes of the board of
aldermen, I beg leave to remark that the same mat-
ter was laid before you by me in the beginning of this
year, that an order was promptly issued from your
headquarters ordering the negroes spoken of to be
confined. Subsequently, however, that order was modi-
fied and partially revoked, and the "Yankee negroes"
are now freely ambulating within our city. Numerous
complaints of our best citizens have been made to the
authorities, and it seems that the whole community is
alarmed. The most evil influence is exerted by those
negroes, who, most of them, are intelligent, shrewd,
and capable to read and write, and try to obtain a mas-
tery over our slave population. It is true a portion
of those negroes are employed by the city and are
guarded, but they are not under the exclusive control
of the city. They are frequently sent for by officers
to do special work, and so the city cannot be responsi-
ble for their conduct. Most of them, however, are em-
ployed as body servants to different officers, and thus
enjoy the very best opportunity to obtain information
and communicating the same to our negroes.
General, the matter laid before you is of the greatest
importance to the welfare not only of this city, but to
the country at large, and I deem it my solemn duty
to request you to give it your immediate attention.
The board of aldermen do not desire anything else but
that the negroes alluded to be restrained from associ-
ating with our home negroes. Whether they are made
to work on the fortifications or be sent to the peniten-
tiary does not concern them. They desire them placed
in such position as the law provides and where they
can exert no influence injurious to the best interests of
this community.
91
Busily engaged in the prosecution of a war, General Magruder
did not personally answer, but on June 10th, his Assistant Ad-
jutant-General, E. P. Turner, replied tartly to the city's in-
terference.
I have the honor to reply to your communication of
8th instant in reference to the captured negroes now
in Houston, and by direction of Maj. Gen. J. B.
Magruder, commanding, &c., to say that they are pris-
oners of war. Some, whose conduct has not been con-
spicuously correct, are under strict guard, others are
in charge of officers under surveillance, but of these
latter none are to have any privileges except those who
have behaved well. Some have been confined closely
by the commanding general within a few days. He will
give the subject his early attention and make such
arrangements as will prevent any injury to the slaves
of this city. It is entirely beyond the power of the city
and State authorities to say how, where, or on what
work these negroes shall be employed, or in what man-
ner the commanding general may treat prisoners of
war so long as he does not violate the laws of the city
or State. It is, in the estimation of the commanding
general, gratuitous on the part of the city authorities
to request him to put prisoners of war to work on the
fortifications, and whether they do anything for offi-
cers or not, since there is no State or municipal law
on the subject, and does not come properly within the
province of the city authorities to comment upon, he
is the sole judge of such service.
92
A year and nine days later, General Gordon Granger, U. S. A., in
command of the army of occupation, arrived in Galveston and
issued his famous General Order No. 3, which emancipated all
negroes in Texas.
93
The mass of evidence here adduced indicates that though
legislative enactments relative to the free negroes and emanci-
pation were harsh, judges and administrative officials were lib-
eral to the point of dereliction. Free negroes immigrated and
were emancipated, sued and were sued, and went about in their
subservient and humble condition without jeopardizing their
own freedom or inciting slaves to rebellion.
FOOTNOTES:
see Harold Schoen's "The Free Negro in the Republic of Texas," in the
Southwestern Historical Quarterly, XXXIX, 292-308; XL, 26-34, 85-113,
169-199, 267-289; XLI, 83-108. The principal defects of this work are its
limitation to the Republic and its failure to utilize county archives. It is
undoubtedly a mistake to view admission of Texas into the United States
as a legitimate terminus for any other than purely political and diplomatic
studies. County archives, collections of prosaic legal documents, portray
the free negro in a more normal and domestic light than that indicated in
the proceedings of Congress.
(Galveston: Printed at the News Office, 1857), p. 7.
Book Co., 1898), IV, 1115. A supplement to the penal code prohibited the
marriage of a white with one descended from negro ancestry to the third
generation, that is one-eighth negro. Ibid., pp. 1036-37.
and free negroes to assemble for "balls," unless the mayor specifically
granted his permission. Morning Star (Houston), March 4, 1841, p. 3,
col. 1.
could be multiplied, but one will do. According to the printed summaries
of the 1850 census, there were nine free negroes in Calhoun County. J. D.
B. DeBow, Statistical View of the United States . . . (Washington:
Beverley Tucker, Senate Printer, 1854), p. 308. When one examines the orig-
inal schedules, one finds that though the nine were listed as free negroes,
they actually were Mexicans. 1850 Census, Texas, Schedule 1, Calhoun
County (Microfilm in Archives, University of Texas Library), Families
43, 167, 176, 181, 182. While some free negroes were no doubt born in
Mexico, when one finds a situation in which every person born in Mexico
is regarded and listed as a free negro, the fallacy is apparent.
University of Texas Library), Family 641.
Archives, Texas State Library, Austin), II, 47-48.
Petitions of Zilpha Husk, Nelson Kavanaugh, Diana Leonard, Fanny Mc-
Farland, and Henry Tucker.
tions. Some few were of the first importance in the Republic: Augustus
Chapman Allen, Robert Barr, Hamilton P. Bee, Asa Brigham, William G.
Cooke, Lorenzo de Zavala, Jr., Alexander Ewing, George Washington
Hockley, Memucan Hunt, Felix Huston, Albert Sidney Johnston, William
Miller Shepherd, and Ashbel Smith. Seventy-three of the remaining 227
signers held, without counting reelection and reappointment, 142 offices in
Harris County, Houston, and Harrisburg, during the period of the Republic
that is within two or three years of the dates of the petitions.
tary's Office, Houston), A, 148.
ton), I (letter of alphabet), 60. The dates given are correct, although the
original transcription contains two obvious errors. As a rule, county clerks
numbered their volumes from A through Z, inclusive, and then numerically
beginning at one. The chief justice heard testimony relative to another free
negro, but the negro did not make bond. On August 4, 1842, District Judge
Benjamin C. Franklin made an affidavit before Chief Justice Algernon P.
Thompson that Richard Robertson, a free man, came to Texas on the brig
Henry, in April, 1835, under the protection of David B. Macomb. Thompson
added to the affidavit the statement that Robertson plied "his trade of
Engineer" in Houston. Ibid., H, 197-98.
Pamelia Mann, was charged with stabbing Ann Tucker, but as all of the
witnesses were negroes, the Recorder discharged Brown. Weekly Times
(Houston), April 9, 1840, p. 2, col. 4.
Houston), G, 290.
1840.
621; Q, 151; I (numeral), 132; II, 68, 337.
Family 207.
25, 1838, and two without dates.
(Austin: Texas State Library, 1927), V, 172.
and two without dates. On September 13, 1842, Tucker announced that he
had "again opened a BARBER-SHOP." Morning Star (Houston), January
3, 1843, p. 1, col. 1.
common. On January 19, 1839, Nelly Norris bound her son, Thomas, about
nine years old, to Stephen S. Tomkins. Ibid., E, 43. Again on July 29, 1840,
Nelly bound Thomas to Benjamin F. Tankersley. Ibid., F, 393-94.
and two undated.
Houston), B, 172-73. The punctuation and capitalization follow the copy in
the Morning Star, June 3, 1839, p. 2, cols. 2-3.
someone interested in a free woman named Martha, daughter of Violet
Hamlet, filed the will of Merrit M. Coates, dated October 2, 1823, in which
Coates emancipated Violet and her son Carter. Samuel May Williams stated
that Coates had kept Violet as his wife. Ibid., H, 515. On January 3, 1838,
Chief Justice Briscoe appointed his mother-in-law, Mrs. Jane Harris,
guardian of Martha, the fourteen-year-old daughter of the deceased Violet.
Probate Records of Harris County, A, 332. On January 10, 1844, John W.
Moore made an affidavit that Martha, then the wife of Peter Towns, had
been considered a free negro since 1827, when Coates apparently died. Deed
Records, I (letter of the alphabet), 204. Lucille, a free woman, on May 6,
1851, filed a deed of emancipation from R. C. Ballard, of Natchez, Mississippi,
dated March 3, 1847. Ibid., O, 586. On February 4, 1854, Maria filed the
emancipation deed from Isaac D. Hamilton, of Crawford County, Arkansas,
dated February 26, 1841. Ibid., R, 44-45.
type, the writer has found another case of manumission by deed. On August
6, 1847, James Cocke emancipated his slave Tom Jefferson, who was born
in Washington County, Mississippi, in about 1838. Ibid., M (letter of
alphabet), 217-18.
E, 144-45. Petition of Citizens of Houston, undated. Memorials and Petitions.
County Clerk's Office, Houston), p. 92.
will occurred on December 24, 1855, when John Sowell signed a will which
granted freedom to Anderson or Henderson who served "in sickness and in
health all of his life." The will was filed January 18, 1856. Deed Records,
S, 237-38.
or Tamer and Abby, her daughter, "to be released from the illegal detention
by one Robert Walker." Judge A. B. Shelby adjudged them free people of
color. Tamer, who came from New Orleans, was born in about 1792 and her
daughter in about 1825. Deed Records of Harris County, N, 564. On Febru-
ary 11, 1850, Charles Shearn returned freedom to a free negro held in
duress, without the formality of a judicial hearing. He purchased Dick on
March 2, 1847, at a sale of the effects of Samuel Childs, deceased. When
he learned that Dick had been born free in Alexandria, Virginia, and had
merely accompanied Childs to Texas, Shearn released his claim on Dick
and started him on his way back to Virginia. Ibid., p. 338.
Clerk's Office, Houston), File 1674. Unless otherwise indicated, the infor-
mation presented and the documents quoted are from original documents
in this file.
Office, Nashville), unnumbered file. In April, 1844, Rhoda and three of her
children charged that on January 1, 1844, Mrs. Martin "with force and
arms, assaulted the plaintiffs, and them then and there took and imprisoned,
and restrained them of their liberty, and held them in servitude from said
day to the commencement of this suit, against the law of the land, and the
will of the plaintiffs." On September 21, 1846, a jury found that Rhoda and
her three children were not slaves but free persons of color. See also
Minutes of the Davidson County Circuit Court (MSS. in Circuit Clerk's
Office, Nashville), 0, 363; P, 40, 137, 307, 471, 476, 478, 483.
Union and Confederate Armies (Washington: Government Printing Office,
1899), Series II, Volume VII, 214-15.
this period obscures the board's reaction to this letter.
How to cite:
Andrew Forest Muir, "Free Negro in Harris County Texas", Volume 46, Number 3, Southwestern Historical Quarterly Online, http://www.tsha.utexas.edu/publications/journals/shq/online/v046/n3/contrib_DIVL2944.html
[Accessed Tue Feb 9 23:22:25 CST 2010]
