Emeline’s Story

By JUDGE MARK DAVIDSON

Much of Texas History as presented in our schools is limited to the memorization of facts about the colonization of the state and the fight to obtain independence from Mexico. Very little attention is given to post-1836 Texas History. Virtually nothing is taught about the lives of the first African-Americans that came to Texas. Few records exist to tell their stories, partially because they came here involuntarily and were considered to be “property.”
The story of one early African-American resident of Texas can be found by reading a court file that, until recently, was forgotten in a musty warehouse in downtown Houston. The case of Emeline, a free woman of color vs. Jesse P. Bolls1 displays both the cruelty of slavery and the majesty of our judicial system. It is a story that shows the exceptional courage of a twenty-six year old black woman as well as the dedication and professionalism of an attorney. It also proves the timeless nature of our system of justice. There are some gaps in the story. A few documents may have been lost or have decomposed, and, of course, no eyewitness to the case is available. Nonetheless, we are left with a captivating mosaic of courage, perseverance, and justice.
Emeline was born in Tennessee in 1821. Her mother, named Rhoda, was, according to all witnesses, the “property” of a gentleman by the name of Mr. Donelson McCaffery. Mr. James Kirkman, a resident of Philadelphia, testified that Rhoda had given birth to a few children by McCaffery. Although we cannot account for the integrity or character of the slave owner McCaffery, he seemed troubled by the peculiarity of owning his children and their mother. He sent Rhoda and his children to Philadelphia with the intention that they would become free. Rhoda resided in Philadelphia for approximately eight months about 1816. Under the laws of both Pennsylvania and Tennessee, she was emancipated by virtue of residence outside Tennessee for a time period greater than six months.
The first disputed fact in this narrative involves the timing and circumstances of Rhoda’s departure from Pennsylvania and her subsequent migration back to the South. We do not know the details of this travel, but it is certain that Rhoda returned to Tennessee. While no exact date can be ascribed to either Rhoda’s departure from Philadelphia or her arrival in Tennessee, the deposition of a Mr. Henry Ray affirms her presence in Nashville by 1822. Rhoda worked for and resided with Mr. Thomas Martin and Mrs. Patsey Martin. The legal basis of her employment with the Martins was unclear and highly disputed. It was at the Martin’s farm outside of Nashville, Tennessee that Rhoda would give birth to a daughter, Emeline.
Emeline presumably spent her childhood under the care of her mother on the Martins’ land. In 1839, she moved to Rapides Parish, Louisiana to work for Mr. John Seip and Mrs. Eliza Seip. Eliza was the daughter of the Martins. Again, it was unclear whether the nature of her relationship with the Seips was as a slave or as an employee. While in Louisiana, Emeline began a family of her own. She gave birth to two boys named John and William. Mr. S.H. Johnson of Alexandria, Louisiana was the father of at least one of these two boys. A slave of the Seip’s was reputed to be the father of the other.
Emeline’s journey from Rapides, Louisiana to Harris County has been entirely lost to history. There is no documentation or testimony regarding the timing of or reasons for her trek to Texas. What is clear, however, is that once Emeline reached Texas, there were attempts to end her freedom and enslave her against her will.
At some point after moving to Houston, Mr. Jesse P. Bolls claimed ownership of Emeline.2 Emeline then filed the lawsuit titled Emeline, a free person of color v. Jesse P. Bolls. It was highly improbable that an African-American would file a lawsuit in Texas in the 1840s. Slaves had no legal rights under the law. The courage it took to make public a claim for freedom against someone that had life and death control over her is striking. She was quite fortunate in finding one of the future lions of the Harris County bar to represent her – a 28-year-old attorney by the name of Peter W. Gray.
Born on December 12, 1819, Gray was only 19 years of age when his family followed his father to Houston in 1838. Peter Gray immersed himself into the study of law under his father’s tutelage. When his father died in 1841, President Sam Houston appointed Gray as the District Attorney for Harris County at the ripe age of twenty-two. He would hold this position until Texas entered the Union in 1846,3 when he founded the law offices of Peter W. Gray.4
By 1847, the 28-year-old Gray had accomplished enough to justify numerous “Lifetime Achievement” awards. He was clearly a person who was contributing mightily to the development of the small, but growing town of Houston. In addition to his service as District Attorney, he was a city alderman, a member of the board of health, and a state representative from Harris County in the first session of the Texas Legislature. He was the author of the Practice Act, which set out the first rules of procedure governing Texas courts.
What led a politically ambitious and socially prominent man to take a case on behalf of a freed slave? The case could not have been financially tempting. Emeline almost certainly had no money. Nor could it have been his opposition to slavery. Gray was a member of the 1861 Secession Convention, where he voted in favor of taking the state out of the union. He may have known something of the case from having seen Emeline around the streets of the small town that Houston was at the time. It is possible that he knew and disliked Bolls. More likely, he saw this as a case in which someone was being denied freedom and justice, and saw the court system he had help create as a way to right a wrong.
The lawsuit was filed on May 24, 1847 with Francis Lubbock, the Harris County District Clerk.5 Gray and his associate, Abner Cooke, Jr., signed the petition, asserting that Emeline was a free woman of color and a citizen of Tennessee and, therefore, Mr. Bolls’s claims to her were unfounded. Together with the original petition in the case, Gray asked for a temporary restraining order, which would prohibit the Defendant from selling the Plaintiff or her children, or from removing them from Harris County during the pendency of the lawsuit. Then, as now, applications for injunctive relief are required to be signed under oath by an applicant having personal knowledge of the allegations in the petition. Emeline made a mark on the petition, indicating that, like most African-Americans and many women of her time, she was illiterate.
Unlike today, Gray did not have the luxury of waiting for the judge of his choice to be the ancillary judge that decides applications for temporary restraining orders. The one and only district judge serving Harris County6 was Judge C.W. Buckley of the 7th District Court.7 Buckley had only lived in Texas for nine years, and had just been sworn in as a judge before the 1847 term of court. According to the 1850 census, Judge Buckley was an owner of at least two slaves, and therefore may not have been temperamentally inclined to rule for the Plaintiff. Nonetheless, Gray persuaded him to grant the ex parte relief, provided that a bond in the amount of two hundred dollars was posted. Emeline was obviously unable to post a bond, but Gray, relying on his savings, posted the required bond with the District Clerk, putting the Court’s order into effect.8
“Docket management” was an unknown science in the 19th century. A judge simply came to a county twice a year for up to a month, tried all of the cases that had been filed to date, and went on to the next county in his circuit to do the same. Any continuance granted by a judge meant an automatic six-month delay in going to trial. The first time the case could have come up was in the May, 1847 term of court. Bolls had either not been served or had not filed an answer at the time, and the docket sheet of the court reflects that Gray requested a continuance “to amend his complaint.” The second time the case came up for trial, in November of 1847, the record reflects that a joint motion for continuance was filed and granted. In March 1848, Bolls requested a continuance. Gray opposed the motion, but Judge Buckley granted the motion. As it turned out, this last continuance turned out to be very much in Emeline’s best interest. It enabled her attorney to obtain the testimony of out of state witnesses by a rare use of the rules of civil procedure that allowed discovery.
Pretrial discovery was, in most cases, unknown. Very few cases of the era contain anything other than a petition, an answer, and a final judgment. Emeline v. Bolls was an exception. Gray undertook to propound interrogatories to witnesses in Tennessee and Louisiana. While this may not impress lawyers who live in an era of word processors and video conferencing, it was a much more difficult task in 1847. “Interrogatories” of third-party witnesses in that era were similar to depositions on written questions today. In Gray’s case, he was required to write out by hand (using a quill pen) at least two copies of each question he was asking. The original was filed with the clerk of the court, and a copy was served on opposing counsel.9 Cross-questions were then allowed to be propounded on the witness by the other side. The Clerk of the Court then wrote out, using a quill pen, at least two copies of the questions, along with a commission to a judge in the area to summon the witness and ask the questions. The United States mail system was then entrusted to send the commission and the questions to the magistrate. The attorneys and parties then waited, hoping that the mail, the witness and the local magistrate all performed as was hoped and that answers would be forthcoming. The local magistrate then sent a bill to the clerk for an amount ranging from one dollar to five dollars as his fee for having asked the questions and reduced the answers to written form, again with a quill pen.10
As the author of the recently enacted legislation setting out Texas civil procedure, Gray had an advantage over his adversaries. He used the continuance his opponent had received to obtain the testimony of out of state witnesses. Gray sent interrogatories to Davidson County, Tennessee, to Rapides Parish, Louisiana, and to New Orleans. Bolls’s attorneys, the firm of Portis and Waller, sent a set of questions to a gentleman named Robert Chappell in Washington County, Texas. The file reflects that most, but not all, of the interrogatories were answered, with varying degrees of responsiveness. In asking the questions of the witnesses, Gray took a remarkable leap of faith both that his client’s version of the facts was accurate and that the witnesses would tell the truth in support of a black person’s claims of freedom from a white person. Since telephones and telegraphs had yet to be invented, he was asking people questions that were to be used for trial purposes having no idea what they would say. With the exception of Chappell, the witness from Brenham, most of the people whose depositions were taken corroborated Emeline’s version of the facts.
In November of 1848, 18 months after the case was filed and after Emeline had remained in Bolls’s involuntary service for the same period of time, Judge Buckley called the case to trial. Bolls’s attorney began the proceedings by requesting another continuance. Bolls had hired a new attorney for the trial, the firm of Tankersley and Harrison. The substitution of counsel could have been the grounds for a continuance, as might have been the need to undertake additional discovery.11 Gray apparently opposed further delay, since the motion was denied. Gray undoubtedly argued that each continuance meant another six months of involuntary servitude by his client.
A jury had been requested and the trial began with a jury consisting of 12 men.12 The identity of the jurors is most unusual. The minutes of the court set out the names of 35 people that had been ordered to appear for jury duty for the November, 1848 term of court. While all other cases tried that term, before and after this case, consisted solely of those jurors, the jurors in this case contained none of them. It appears to have been a group of men handpicked for this case. Among the jurors were Andrew Briscoe, the former county judge of Harris County13 and Joseph A. Harris, the nephew of the man for whom the county was named. Significantly, none of the members of the jury who were listed in the 1850 census were shown as being slave owners.14
It is a mystery why the list of regularly summoned jurors was not used. It could be, due to the issues in the case, that it was believed a special panel would be necessary. The regularly called jurors may have been deliberating in other cases while this case was tried. Another, more conspiracy-oriented possibility is that either Judge Buckley or District Clerk Lubbock, out of friendship to Gray or out of a belief that Emeline had been wronged, brought in a carefully selected jury of people inclined to find for the Plaintiff. The file contains no record of a voir dire, and apparently the 12 people summoned to hear the case was the jury that decided it.
Judge Buckley’s docket sheet reflects only that the Plaintiff and Defendant presented their evidence, and no further description of the facts is on file. It is likely that all of the interrogatories were read.15 Robert Chappell, the witness from Brenham who had testified that Emeline was Bolls’s slave, was successfully found in Harris County and subpoenaed to appear at trial, and presumably testified. The Defendant’s attorney also subpoenaed five other witnesses: John Dickinson,16 William J. Hutchins,17 E.B. Noble, J.J. Cain and James F. Crawford. Gray, on behalf of the Plaintiff, subpoenaed two witnesses: William Reeves and James F. Crawford, who had also been subpoenaed by the Defendant. Undoubtedly the critical, and most emotional, testimony came from the Plaintiff and the Defendant.
A charge was prepared, and the Judge apparently submitted the charge to the jury prepared by Gray. The file contains a proposed charge in Gray’s handwriting that varies only slightly from the one submitted to the jury. Judge Buckley noted in the docket sheet that the Defendant objected to the charge. No mention is made of final arguments, but the rules of procedure (drafted by Gray two years before) called for them at the election of the parties.
The emotions in the courtroom while the jury deliberated must have been intense. From Emeline’s perspective, the difference between winning and losing was the difference between freedom and slavery for her children and herself. Furthermore, since she had filed a lawsuit against the man that claimed to be her master, she undoubtedly knew that, if she lost, she would be punished for her attempt to be free. At the very least, Bolls could have been expected to punish her by separating her from her children by sale in one of the weekly slave auctions. Jesse Bolls, on the other hand, probably knew that if a jury of 12 white men found against him, the shame of being found less credible than a black woman would be with him forever. In the town of 5,400 inhabitants that Houston was at the time, the social stigma would have been great.
The tension was short-lived. Shortly after the jury began deliberations, they reached a verdict. The written verdict of the foreman of the jury, Andrew Briscoe, was both clear and succinct – “We, the Jury, find that the Plaintiff and her children are and are to remain free, and we find damages in the amount of one dollar.” Bolls immediately objected to the verdict, and, when his objection was overruled, gave notice of appeal.18 While the amount of damages was shockingly low, given the length of time she was held in slavery, Emeline got what she wanted – freedom for herself and her children.
After the trial, Emeline disappears from history. She apparently took the last name of Thompson, but the 1850 Harris County Census does not contain any listing for her, or for any woman named Emeline with children named John and William. It is possible that she moved to a northern state, so that no further attempt would be made to interfere with her hard-won freedom, and so that her sons could be raised in a world that did not recognize slavery.
Judge C.W. Buckley served as judge until 1854, when he resigned the bench to resume private practice and moved to Richmond in Fort Bend County. In 1857 he was elected to the Texas House of Representatives, and eventually rose to be the chair of the Judicial Committee. He died in 1865 at the age of 50.
Peter Gray continued to be a leading citizen of his state and community. In 1854, he was elected to the Texas Senate for Harris County. Shortly thereafter, he was appointed to succeed Buckley as the Judge of the District Court. During the Civil War, he served in the Congress of the Confederacy from 1861-1863. Defeated for reelection in 1863, he returned to Houston and organized the attack on Galveston that retook that city after the Union had captured it the previous year. After the war, he continued in the practice of law, taking in Thomas Botts and James A. Baker into the firm that was known as Gray, Botts and Baker. In 1874, he left the firm to serve on the Texas Supreme Court, serving only a few months before his death at the age of 55.
Emeline v. Bolls is a story that has an obvious villain, and a number of heroes. Jesse Bolls is clearly the bad guy. Demeaning human life by treating individuals as property is a mindset that we cannot comprehend today. Even trying to judge Bolls by the standards of his time, taking “property” in the form of a human life was wrong. Threatening to sell children to remove them from the jurisdiction of the court is abhorrent.
Peter Gray, by any measure, deserves the highest degree of praise for his role in the case. His life was dedicated to public service. Our city, state and county are much the better today for his life. He has a county named after him, and West Gray Street bears his name as well. There have been several articles written on his life, and all have been laudatory. No mention is made of this case in any of those biographies. In the context of the public accomplishments of his life, perhaps the writers of his time did not consider a one-day trial he conducted in his youth as significant. Later biographers apparently did not know of the case, since it was one that he did not write about in his memoirs.
Viewed through the prism of history, Emeline v. Bolls is a case that deserves to be remembered. By any standard, slavery was evil. Judge Buckley and every member of the jury behaved contrary to the mores of the time to make a small statement against an evil system, even if that was not their intent. Gray invested time and risked a part of his personal wealth on behalf of a client who was not a member of Houston’s elite. His work in the case speaks volumes about his character that no biographer of his has ever been able to express.
The greatest praise, of course, belongs to Emeline. She risked her physical well being and her ability to see her children for the sake of freedom. She could have tried to escape, although that path carried significant risks as well.19 She chose to trust the law and the men who administered it. Why she did so is a mystery. We do know that she chose wisely.
Prominent author James Baldwin wrote that, “History is not a procession of illustrious people. It’s about what happens to a people. Millions of anonymous people is what history is about.” The intersection of the lives of Emeline, C. W. Buckley, Peter Gray, Jesse Bolls and 12 citizens called to jury duty in November of 1848 is a story that should be remembered in Texas History both for the evil that started the case and the nobility of the people that led to its resolution. For one day in the antebellum period, a black woman, her lawyer, a judge and 12 jurors made a statement that our justice system can preserve freedom. We all hope that 150 years from now, the same can be said of what we do today.

Author’s Note:
This story would have been irretrievably forgotten were it not for the efforts of Charles Bacarisse, District Clerk of Harris County. His efforts to save, restore and index the judicial records of Harris County after 160 years of neglect have made it possible for us to know Emeline’s story. In the future, his work will make it possible for us to know of thousands of additional stories from the early days of our state. We owe future generations of Texans the right to know of that history, and should do what we can now to preserve the records of our past. If we fail, Emeline’s story will be the only one of its kind that we will have, and the rest will be irretrievably lost.
In addition, Michael Pipkin, a senior history major at Dartmouth University, assisted greatly in the research and writing of this article. His ability to decipher Peter Gray’s handwriting (regardless of his attributes as an attorney, his handwriting was abysmal) as well as that of the 1850 census taker made a lot of the detail possible.

Endnotes
1. The case was assigned cause number 1686. The Harris County District Clerk’s office numbered all civil cases in sequential order until 1978, when they began the count anew with each calendar year. 2. There was apparently great confusion over the spelling of Mr. Bolls’s last name. It also appeared as Bolls, Bolles, Bols and Bowles. His counsel was not even consistent in his spelling of Mr. Bolls’s name. 3. Thomas W. Cutrer, Peter W. Gray, The Handbook of Texas Online, at http://www.tsha.utexas.edu/handbook/online/articles/view/GG/fgr25.html. 4. Hugh R. Kelly, Peter Gray, Hous. Lawyer, Jan. 1976. 5. Lubbock served as Harris County District Clerk from 1844 until 1857. In 1861, he was elected Governor of Texas by 121 votes. 6. And four others – Galveston, Montgomery, Grimes, and Walker. 7. The number was changed to the 1st District Court in 1861 and to the 11th District Court in 1884. 8. According to the 1850 census, Gray had a net worth of $5000.00. He probably risked about five percent of his net worth on behalf of his client. 9. In all likelihood, he wrote out a third copy for his own files. 10. Payment was expected to be paid in gold, the currency of choice in the era. 11. Both are timeless grounds for delay of clients’ rights to be heard. 12. Women, of course, were not allowed on juries. The first trial in Harris County with a woman juror would not come until September of 1954. 13. Briscoe County in the Panhandle is named after Judge Briscoe. In 1972, his great-grandson Dolph, was elected Governor of Texas. 14. By the time of the 1850 census, it should be noted that several of the jurors had left Harris County, including Briscoe, who moved to New Orleans shortly after the trial and died there in 1849. 15. Whether or not the jury paid any attention to the testimony of absent witnesses whose statements was read to them is unknown. It seldom works today. 16. Dickinson was one of Stephen F. Austin’s original colonists. In 1824 he wisely purchased a strip of land a mile wide between Galveston Bay and League City for twenty pesos. 17. Hutchins would become one of the wealthiest men in Houston. He was an owner of the Houston Navigation Company, and was an organizer of the Star Telegraph Company, which wired Texas in the 1860’s. He also owned six slaves. 18. No appeal was undertaken. 19. Runaway slaves were often mutilated.

Judge Mark Davidson has been the Judge of the 11th District Court since 1989. Since 2002, he has also served as the Administrative Judge of Harris County.

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