Mixed Race Studies

Slavery and Freedom in Texas: Stories from the Courtroom, 1821–1871

University of Georgia Press
2017-11-01
258 pages
2 b&w photos, 8 maps
Trim size: 6 x 9
Hardcover ISBN: 978-0-8203-5133-9
Paper ISBN: 978-0-8203-5163-6

Jason A. Gillmer, John J. Hemmingson Chair in Civil Liberties and Professor of Law
Gonzaga University, Spokane, Washington

Riveting trials that exposed conflicting attitudes toward race and liberty

In these absorbing accounts of five court cases, Jason A. Gillmer offers intimate glimpses into Texas society in the time of slavery. Each story unfolds along boundaries—between men and women, slave and free, black and white, rich and poor, old and young—as rigid social orders are upset in ways that drive people into the courtroom.

One case involves a settler in a rural county along the Colorado River, his thirty-year relationship with an enslaved woman, and the claims of their children as heirs. A case in East Texas arose after an owner refused to pay an overseer who had shot one of her slaves. Another case details how a free family of color carved out a life in the sparsely populated marshland of Southeast Texas, only to lose it all as waves of new settlers “civilized” the county. An enslaved woman in Galveston who was set free in her owner’s will—and who got an uncommon level of support from her attorneys—is the subject of another case. In a Central Texas community, as another case recounts, citizens forced a Choctaw native into court in an effort to gain freedom for his slave, a woman who easily “passed” as white.

The cases considered here include Gaines v. Thomas, Clark v. Honey, Brady v. Price, State v. Ashworth, and Webster v. Heard. All of them pitted communal attitudes and values against the exigencies of daily life in an often harsh place. Here are real people in their own words, as gathered from trial records, various legal documents, and many other sources. People of many colors, from diverse backgrounds, weave their way in and out of the narratives. We come to know what mattered most to them—and where those personal concerns stood before the law.

Crimes of Passion: The Regulation of Interracial Sex in Washington, 1855-1950

Gonzaga Law Review
Volume 47, Issue 2 (Symposium: Race and Criminal Justice in the West) April, 2012
pages 393-428

Jason A. Gillmer, Professor of Law
Gonzaga University School of Law

Race had not mattered to Harvey Creasman and Caroline Paul. The two had lived together as husband and wife for seven years, beginning in 1939.  Harvey was black and Caroline was white, but like other couples, they found that they shared things in common and enjoyed each other’s company.  They met in church in Seattle, Washington.  Soon after, they started living together at Harvey’s rental unit in the working-class town of Bremerton, across Puget Sound from Seattle, before scraping together enough money to buy a home.  They sold Harvey’s 1931 Plymouth automobile to make their down payment and put the title in Caroline’s name, as Harvey had suffered some discrimination at the hands of a realtor and was too put off to deal with the situation.  Friends said the house was more of a “shack,” but over the years a combination of frugality and hard work allowed them to fix the place up nicely.  Harvey did a lot of the work himself, and Caroline helped take care of it, using Harvey’s paychecks from the Naval Yard to purchase furniture and pay the mortgage.  Unfortunately for Harvey, however, Caroline’s death in 1946 brought more than a loss in companionship, because Caroline’s daughter by her previous marriage believed that most everything Harvey and Caroline had built over the years, including the house, belonged to her, not Harvey. And she was right: in an opinion teeming with racial implications, the Washington State Supreme Court ruled that, because Harvey and Caroline had never formalized their marriage, all of the property purchased in Caroline’s name belonged to the white daughter rather than the black spouse.

Table of Contents

• INTRODUCTION
• I. “SOONER OR LATER THE TIDE OF FEMALE EMIGRATION WILL SET IN”
• II. “WE DO NOT . . . FAVOR[] AMALGAMATION”
• III. “DISTINCTIONS BASED UPON COLOR”
• IV. “THEY LIVE[D] TOGETHER AS HUSBAND AND WIFE”
• V. “SWAN ANDERSON AND THIS INDIAN WOMAN WERE NEVER MARRIED”
• CONCLUSION

Race had not mattered to Harvey Creasman and Caroline Paul. The two had lived together as husband and wife for seven years, beginning in 1939.  Harvey was black and Caroline was white, but like other couples, they found that they shared things in common and enjoyed each other’s company.  They met in church in Seattle, Washington.  Soon after, they started living together at Harvey’s rental unit in the working-class town of Bremerton, across Puget Sound from Seattle, before scraping together enough money to buy a home.  They sold Harvey’s 1931 Plymouth automobile to make their down payment and put the title in Caroline’s name, as Harvey had suffered some discrimination at the hands of a realtor and was too put off to deal with the situation.  Friends said the house was more of a “shack,” but over the years a combination of frugality and hard work allowed them to fix the place up nicely.  Harvey did a lot of the work himself, and Caroline helped take care of it, using Harvey’s paychecks from the Naval Yard to purchase furniture and pay the mortgage.  Unfortunately for Harvey, however, Caroline’s death in 1946 brought more than a loss in companionship, because Caroline’s daughter by her previous marriage believed that most everything Harvey and Caroline had built over the years, including the house, belonged to her, not Harvey. And she was right: in an opinion teeming with racial implications, the Washington State Supreme Court ruled that, because Harvey and Caroline had never formalized their marriage, all of the property purchased in Caroline’s name belonged to the white daughter rather than the black spouse.

Harvey and Caroline’s story, together with others like it, adds a crucial piece to our understanding of the regulation of interracial sex and marriage in this country’s past. Prior to Loving v. Virginia, virtually every state in the Union outlawed the practice at some point, with much of the South singling out whites and African Americans in their prohibitions, and the West adding other disfavored races to the list. Early scholarship picked up on the valuable insight these laws provided into whites’ ideologies, noting how they served the dual purpose of maintaining white racial purity while at the same time protecting white patriarchal privilege through lax enforcement. More recent scholarship has dug deeper, exploring the spaces where interracial fraternization took place and studying those involved to help better understand the significance of race and sex at various times and places. Out of the growing number, a handful have been especially good at looking beyond the rigid lines drawn in the statutes, as these laws were of a type destined to be broken.

Yet, as this impressive list of scholarship grows, the topic of interracial relationships in the State of Washington remains considerably understudied. The explanation is undoubtedly because, with the exception of the years between 1855 and 1868, there were no laws criminalizing interracial marriages. The state thus seems relatively unimportant precisely because it appeared more progressive. But such thinking is simplistic or, worse, dangerous. It mistakenly assumes that the topic was not controversial—it was—and, more importantly, it causes us to miss out on the nuances of race and race relations in the state and region.

This article strives to fill the gap in the literature by exploring the regulation of interracial sex and marriage in the State of Washington from its time as a territory through the first half of the twentieth century. In light of the area’s history and settlement patterns, the focus is not limited to blacks and whites, but instead takes into account relationships between whites and other racial groups. The article’s main thesis is that, although the criminal bans on the practice were short-lived, Washington elites and power-brokers used legal mechanisms to discourage and penalize interracial families in much the same way. The result of these efforts may not have been prison time; but, as Harvey Creasman’s case demonstrates, lawyers and judges regularly used the law to ensure that wealth and property remained in the hands of whites rather than racial minorities. In doing so, the legal system became an effective deterrent to interracial relationships, perpetuating existing notions of race that privileged whiteness over other racial groups.

Part I of this article introduces the narrative used to explore this thesis. The story involves Swan Anderson, and it begins by recreating the demographics and general environment Swan encountered when he arrived in the Washington Territory in the nineteenth century. This Part also introduces the relationship that Swan developed with Mary, a Native American woman. Part II follows up on this background by situating the passage of the area’s antimiscegenation laws within the larger desire of Euro-American settlers to create a white utopia. Part III then examines the repeal of these laws during the Reconstruction era, and contrasts these legal changes with the continuing desire to keep the races separate well into the twentieth century. Part IV refocuses the narrative back to Swan and Mary, exploring in detail the evidence and arguments raised in an inheritance dispute in which Swan and Mary’s daughter attempted to prove her parents were husband and wife. Finally, Part V examines the verdict and aftermath of the case, in which decision-makers ruled against the daughter and continued to privilege white ideals and discount the views of people of color. The article concludes by tying together Harvey Creasman’s case with this one, and notes that, far from being unique, these stories reflect strongly held assumptions that disadvantaged interracial couples and racial minorities in the state…

…The desire to maintain a white utopia similarly kept the Asian population in check. The Chinese began emigrating to the West in the 1840s during the California gold rush. In the ensuing decades, opportunities in mining, lumber, and the railroads brought them further north. Still, restrictive policies and discriminatory practices meant that their numbers were never very large. The Chinese Exclusion Act of 1882 was not limited to Washington; but it carried the unmistakable message that, like the laws banning free people of color forty years earlier, non-whites were not part of the community Washingtonians hoped to build. In 1880, the number of Chinese in Washington stood at a mere 3,260, or less than half a percent of the population, compared to 75,132 in California. The number of Japanese was even smaller. Despite growing numbers in the West, the census counted one Japanese person in Washington in 1880 and only 360 in 1890.

For those steeped in the ideologies of the time, even this was too many. While anti-Chinese sentiment was by no means limited to Washington, events indicate that it was just as strong there as elsewhere. “The civilization of the Pacific Coast cannot exist half Caucasian and half Mongolian,” warned the editor of the Seattle Post-Intelligencer in September 1885. “The sooner the people of the United States realize this and take measures to make certain that the Caucasian civilization will prevail, the sooner discontent will be allayed and the outbreaks will cease.” The editorial was prescient. The day it appeared, twenty miles southeast of Seattle, a group of whites chased Chinese coal miners from their homes and burned their property…

…Two years later, in the next legislative session, Senator Earl Maxwell picked up the cause. Like Representative Todd, Senator Maxwell also said a local event prompted his actions, yet his justification played off the same deep-seated racial fears that prompted earlier efforts. What brought the matter to his attention, he said, was a “14-year-old Seattle girl marrying a 38-year-old negro . . . .” As with Jack Johnson, the message was clear: black men were dangerous, and white women—particularly someone as young and innocent as this one—needed the State’s protection.

This bill would eventually fail, as would the other two bills introduced by Senator Maxwell in the subsequent sessions of 1939 and 1941. Men like Lieutenant Governor Victor Meyers, a champion of the liberal wing of the Democratic Party, helped muster the votes to defeat them. But credit also rests with racial progressives and civil rights activists. Horace Cayton, the African American editor of the Seattle Republican, was an early and strong voice of opposition. He regularly attacked whites pushing for anti-miscegenation laws as hypocritical, insisting in 1909 that “[i]f the white man desires to prevent race miscegenation let he himself put up the fence and then observe it.” The black community also organized against the 1935 bill, forming the Colored Citizens’ Committee in Opposition to the Anti-Intermarriage Bill. Churches and other organizations, including the NAACP, also spoke out against the efforts. An editorial published in the Northwest Enterprise, Seattle’s African American newspaper, perhaps summed it up best when it lambasted the 1937 law: “With love as old as the world, and marriage, love’s goal, a sacred institution upon which the nation is propagated, any law which denies legitimacy to childhood is demoralizing to the people of the State, and any law which is discriminatory in character, is dastardly and derogatory to true American principals [sic].”

It was messages like these that provided the necessary encouragements for couples of different races to remain together. Like elsewhere, getting a handle on the number who crossed the color line in Washington is a difficult task. George Bush, an early African American pioneer, had a white wife. They were a highly successful family, appearing in the 1860 census records together with five children and an estate worth over $8000. Ten years later, George and Elizabeth Oulst from King County appear in the census, together with Commons and Mary Nix from Pierce County, each one an interracial couple consisting of a white person and a person of African descent…

Read the entire article here.

Race, Blood, and What the Alligator Knows: A Review of What Blood Won’t Tell

Southern California Law Review
Volume 83, Number 3 (March 2010)
pages 425-440

Jason A. Gillmer, Associate Professor of Law
Texas Wesleyan School of Law

From the opening pages of Ariela J. Gross’s What Blood Won’t Tell: A History of Race on Trial in America, it is clear that the reader is about to embark on something special. The story begins in a Louisiana courthouse in 1857, with an enslaved woman named Alexina Morrison claiming that she is white. For her contemporaries, the assertion no doubt carried troubling implications. James White, the man who insisted Morrison was black, had papers to prove that he paid good money for her and that she was his property. But her “blue eyes and flaxen hair” told a different story, and her recent appearances at public balls in Jefferson Parish had convinced a number of residents that her graceful mannerisms and affectations were those of a white woman rather than slave. The courtroom was soon bombarded with a dizzying array of evidence for such a simple question—was she white or was she black?—with men eventually stripping her to the waist to examine her body for the tiniest signs of her true identity. Three trials later, the community still had not resolved the issue. But more importantly, from Gross‘s view, this case provides an unparalleled opportunity to examine the complex and constantly shifting ground of race and its import for this nation‘s history…

Read the entire essay here.

Base Wretches and Black Wenches: A Story of Sex and Race, Violence and Compassion, During Slavery

Alabama Law Review
Volume 59 (2008)
pages 1501-1555

Jason A. Gillmer, Associate Professor of Law
Texas Wesleyan School of Law

This Article examines in detail the local and trial records of a nineteenth-century Texas case to tell the story of a white slave master who had a thirty-year relationship with a female slave. This is a story of complexities and contradictions, and it is a story designed to add depth and detail to our current assumptions about the content of sex between the races during slavery times. Indeed, through these local records—a source traditionally underused by legal historians—the Article provides us with a pathway into the consciousness of ordinary people, and suggests a world with much more flexibility and fluidity along the lines of race and slavery than traditional accounts allow. The amount of sexual exploitation that took place under slavery will surprise no one; but, to hear the former slaves who lived on this plantation talk about it, this couple, at least, lived together as man and wife. It is this story—the story of the everyday life of slavery—that this Article seeks to tell, illuminating in the process a social order that was predicated on racial domination yet where men and women, white and black, often defied those ideologies. Ultimately, this Article concludes that the master narrative of rape so familiar to students of the subject is inadequate to account for a case like this, and urges us instead to focus on the fissures and blind spots created in the logic of slavery to further our understanding of the South and the relations between the races.

Introduction

In 1861, with the country in the midst of the Civil War, John C. Clark died at his home in Wharton County, Texas. He left a large estate, consisting of lands, slaves, and personal assets, valued at almost a half a million dollars. Ten years later, his three adult children filed suit to maintain what, they claimed, rightfully belonged to them. Their only problem: they were—under the law—black, and John Clark had been white.

What ensued was a lengthy trial, consisting of dozens of witnesses testifying about John Clark, his life, his holdings, and his relationship with a “dark mulatto” woman named Sobrina, Clark’s long-time slave and the mother of the three plaintiffs. For Clark died without a will, and since no heirs came forward in the immediate aftermath of his death, the local court ordered his property sold, and then had the proceeds deposited in the public trust. But with that much money at stake, it did not take long for forgotten relatives from as far away as Virginia to descend on the small community, many claiming that they were entitled to the vast estate despite never having met the man whom they now so eagerly embraced. But for the jury listening to testimony in the case of Clark v. Honey these other filings were of little importance. For them, the question of whether the three persons before them were entitled to take under the laws of intestacy was deceptively simple: were they John Clark’s legitimate children, or, stated differently, were John and Sobrina husband and wife?

The ensuing trial and its aftermath, however, proved to be far more complicated than anyone on that mild December day likely could have anticipated. Indeed, the question of whether Clark’s children were entitled to inherit his property took years to resolve—the case and its offshoots occupied the courts for the next several decades—and the issues it raised remain problematic for scholars interested in questions of race and slavery even today. No one doubted then and no one doubts now that white men were involved sexually with their female slaves. But the question of whether terms like “caring,” “devotion,” and “love” can be used to describe these relations remains controversial. Twenty years ago, in her landmark study, Deborah Gray White turned contemporary analysis of the sexual aspects of slavery on its head when she looked at the subject from the perspective of black women, not white men. Since that time, there has been an impressive outpouring of scholarship, reminding us that there was nothing romantic about planters taking advantage of their slave women. Sex in these circumstances was about power: it was brutal, it was ugly, and it was rape.

But to hear John Clark’s former slaves talk about the couple that occupied the small rustic cabin on the banks of the Colorado River, their relationship, at least, was anything but violent. “Clark and Sobrina lived together as man and wife until their deaths,” said one witness.10 Another agreed: “Sobrina had no other husband and Clark no other wife.” Such testimony throws the master narrative of rape into flux, suggesting the need to reexamine the broad generalizations about the nature of these relationships and the people involved. It is unlikely, in this case or in most others, that the relationship ever evolved into an entirely consensual one—Sobrina, after all, remained Clark’s slave until his death, inevitably tilting the relationship toward power and dominance. But if we listen to Clark’s former slaves—witnesses who arguably knew best—the relationship consisted of something more. How much more is the question, and it is the same question that a jury of twelve men were asked to answer in December of 1871, two years after Sobrina, now free, had passed away.

This Article, through the close examination of John Clark’s relationship with Sobrina, seeks to broaden our understanding of sex between the races by focusing on a case that seems both unusual yet strangely emblematic of the South in the years before the Civil War. This is a story of complexities and contradictions, and it is a story which illustrates the importance of taking into account not just the circumstances of brutal exploitation so familiar to students of the subject, but also the rare case of genuine affection. Indeed, the central argument here is that sex between the races was far more complicated than traditional accounts suggest, as blacks and whites, men and women, intermingled with each other in ways that defied both the legal rules and the social conventions of the time. Reducing these cases to simple descriptions of power and powerlessness misses out on the rich details they have to offer, and risks minimizing the impact they had on both the people around them and on the larger community in which the participants lived.

To that end, this Article seeks to take advantage of a recent trend in slavery scholarship, one that draws on local records—and particularly trial records—to make its essential points. These records, as others have stressed, have been a surprisingly underused source among legal historians, a group who has traditionally spent time mining published appellate decisions and statutory provisions for hints of Southern ideologies. Yet trial records open up doors that these traditional sources can never do, by providing us with a window into the consciousness of ordinary people. Through their lawsuits and their testimony, litigants and witnesses argued about nothing of national significance yet about everything that mattered most to them. They fought over property rights and slave sales, over contested wills and slave hires—and in doing so they reveal a world that involved far less adherence to the bright line rules of race and slavery than previous studies would have allowed. Indeed, when it came to such topics as interracial sex and its consequences, guardians of the Southern social order spoke with a uniform voice. “Hybridism is heinous,” Henry Hughes roared in 1854. “Impurity of races is against the law of nature. Mulattoes are monsters.” But at the local level, these seemingly rigid racial lines broke down with considerable frequency. Men left their entire estates to their former slaves; white women divorced their husbands after losing their affections to their black counterparts; and local prosecutors indicted interracial couples for living together as husband and wife. And the communities’ response—through testimony, through verdicts, through the filings of the cases themselves—tells us much about the substance of life of the ground, and about the complex interplay of slavery, race, sexuality, and power, in shaping people’s views of the world in which they lived.

In the end, then, this Article is about more than just John Clark and Sobrina; it is about a society struggling with its own identity. Far from the official ideologies of the South, men and women, blacks and whites, regularly met in the towns and on the streets—sometimes explosively and sometimes on more considerate terms. Yet, in either case, local communities had to reckon with a social order that never was how it was supposed to be. John Clark’s relationship with Sobrina, in other words, like so many others, forced a confrontation over the ideals white Southerners projected about themselves and the stuff of everyday life…

Read the entire article here.

Suing for Freedom: Interracial Sex, Slave Law, and Racial Identity in the Post-Revolutionary and Antebellum South

North Carolina Law Review
Volume 82, Issue 2 (January 2004)
pages 535-

Jason A. Gillmer, Associate Professor of Law
Texas Wesleyan School of Law

Introduction

A. Two Stories
 
In 1823 in Sumner County, Tennessee, Phebe, a “colored woman” transplanted from Virginia, brought suit against Abraham Vaughan for her freedom. Phebe alleged that she was being wrongly held in slavery because she descended in the maternal line from an American Indian woman named Murene, her great-grandmother.  Murene, Phebe alleged, was free, and since the rule in Tennessee, as in every Southern state, was that a person’s status as free or slave was determined by the status of the mother, Phebe claimed that she also was free. Phebe thus offered little in the way of her appearance (classed as she was as a woman of color), choosing instead to base her claim on evidence of her descent. Both the trial court and the Tennessee Supreme Court of Errors and Appeals proved solicitous of her efforts, allowing her to rely on hearsay testimony to trace herself back to Murene and, also, to establish that Murene was both an Indian and free.  The Tennessee Supreme Court of Errors and Appeals also upheld the decision to permit Phebe to rely on the record from a case involving her maternal aunt, Tab, against her owner. In that case, Tab successfully sued for her freedom based on the same claim at issue here: that she was free because she descended from Murene.  In the end, the jury awarded Phebe her freedom, with the bulk of the evidentiary rulings upheld on appeal…

Read or purchase the article here.

Couple finds a more than a century old gravestone

Beaumont Enterprise
2009-12-13

Kyle Peveto

Beneath a tool shed behind her house, Mallary Sanders and her fiance found a 118-year-old piece of history they are begging someone to take.

Last weekend, Sanders’ fiance, Justin Trusty, 24, was cleaning beneath the pier-and-beam shed when he came across the intact gravestone of a woman who died in 1891.

He told Sanders, 23, he found something that “will scare you.”

“I wasn’t at all scared,” Sanders said. “I didn’t think there was a grave under there. Now, if I had felt weird about the house….”

The couple had no idea what to do with the stone.

“I just wanted it to go back to where it belongs,” Trusty said.

The gravestone stands about 2-feet tall and is specked with mud from lying flat on the ground. Carved marble reads: in memory of DELIEDE, wife of Wm Ashworth. Deliede died June 27, 1891, at 85, according to the gravestone…

…The Ashworth family name has a well-recorded history in Jefferson and Orange counties. During the Republic of Texas and after statehood, the mixed-race Ashworth family owned thousands of acres of land and large cattle herds in an area that did not welcome free people of color.

“What I thought was interesting was their ability to prosper in a place like Texas that made it illegal to be a free black,” said Jason Gillmer, a professor of law at Texas Wesleyan University who has studied the family…

Read the entire article here.

Shades of Gray: The Life and Times of a Free Family of Color in Antebellum Texas

Jason A. Gillmer, Professor of Law
Texas Wesleyan University School of Law

2009-08-13
64 pages

The history of race and slavery is often told from the perspective of either the oppressors or the oppressed. This Article takes a different tact, unpacking the rich and textured story of the Ashworths, an obscure yet prosperous free family of color who came to Texas beginning in the early 1830s. It is undoubtedly an unusual story; indeed in the history of the time there are surely more prominent names and more famous events. Yet their story reveals a tantalizing world in which–despite legal rules and conventional thinking – life was not so black and white. Drawing on local records rather than canonical cases, and listening to the voices from the community rather than the legislatures, this Article emphasizes the importance of looking to the margins of society to demonstrate how racial relations and ideological notions in the antebellum South were far more intricate than we had previously imagined. The Ashworths never took a stand against slavery; to the contrary, they amassed a fortune on its back. But their racial identity also created complications and fissures in the social order, and their story ultimately tells us as much about them as it does about the times in which they lived.

Read the entire article here.