The Texas civil justice system, as it has evolved from its founding in 1836 to today, has had one constant – it seeks transfer of wealth from a defendant to a plaintiff. Poor people, or uninsured individuals with few non-exempt assets, are seldom sued in our courts. Plaintiffs usually need an attorney to redress grievances; attorneys and their families need to eat. Of course, the founding fathers1 of our state exacerbated this tendency by enshrining into our Constitutions protections for debtors far greater than those of any other state, perhaps because many of them had “gone to Texas” to escape creditors themselves. Homesteads, farm animals, vehicles, and wages were all exempt from forced execution for satisfaction of debts, leaving most assets owned by most Texans, then as now, safe from the clutches of judgment creditors.2

Sadly, in pre-Civil War Texas, the “property” at issue in lawsuits was often human beings – slaves brought to the Republic, and, later the State of Texas – from the Southern States. Many of the lawsuits brought during this era were disputes over ownership of slaves, cases in which slaves were taken and sold in satisfaction of adjudicated debt or suits over the status of a person claimed to be a slave. One of the most interesting of these cases is Margaret Gess v. Francis Lubbock, a case filed in 1848 that would take almost five years and two trials to resolve.3 It is unique because it involves the laws of three different nations and truly reprehensible conduct by the Defendant. It is also a good case to study today because a more complete record was made of the proceedings than was usual at the time.

The story of the case began 12 years before it was filed, on March 10, 1836. Texas was in turmoil. The revolution was in progress. A Texian army had been slaughtered at the Alamo, and another would be executed two weeks later at Goliad. Most of the Anglo population, lead by the balance of the Army of the Republic, was in a swift retreat to the east an event known as the “Runaway Scrape.” The Mexican Army, led by General Antonio Lopez de Santa Anna, was in hot pursuit. While Texas was still claimed by the Republic of Mexico, delegates from around the area had met in Washington and declared independence the week before. The Mexican Army had passed through Bastrop, Texas, on a march that would eventually lead to Washington-on-the-Brazos and the community now known as Deer Park.4

While the Runaway Scrape was in progress, Adam Smith purchased a piece of land that would lead to years of litigation after his death. He also may have purchased as a slave a woman of color named Margaret Gess. Smith was, by all accounts, in the “social hospitality” business. In 1831, he was living in St. Mark, Florida, and owned a pool table, around which he sold beverages to the public. He found his way to New Orleans in 1831, and came to Texas with James Morgan that same year. Finding the location promising, he returned to Florida to retrieve his billiard table and brought it to Anahuac in 1833. According to trial testimony, Smith built a structure in Anahuac “and left the table to public use, which was well positioned.” In 1835, he went to work for Morgan as a clerk, a job that lasted until the Mexican Army burned all of Morgan’s possessions on their way to San Jacinto. Morgan had been a leading merchant and land speculator in Southeast Texas since he had arrived in 1830. Serving as Morgan’s clerk could have been quite lucrative for Smith. It is unclear, however, whether the profits from a pool table combined with earnings as a clerk would have been sufficient to buy both land and a slave.

The timing of the purchase was significant. In 1829, the President of the Republic of Mexico, Vicente Ramón Guerrero Saldaña, enacted a decree that purported to abolish slavery in the Republic. The next year, the Mexican Congress abrogated that law but prohibited the further importation of slaves and allowed the continuation of slavery for slaves already in the country. The following year, a law was passed officially and totally abrogating the presidential decree retroactively, although the authority of the Congress to pass such a law was hotly disputed. The legal status of persons of color was therefore unclear prior to Texas independence.

That lack of clarity was addressed in the Constitution of the Republic of Texas. It prohibited any person of color who was in a state of servitude at the time of the adoption of the Constitution from living in Texas as a free person without consent of the Congress. The effective date of the constitution therefore became critical. Texas Independence Day – the day the delegates to a convention declared the creation of the Republic of Texas – was March 2, 1836. It was, however, apparently agreed at trial that the constitution ad interim of the Republic was not placed into effect until March 17, 1836.

By all accounts, Smith and Margaret Gess shared a residence for at least ten years. It was disputed at the trial whether they held themselves out as husband and wife, but it is clear from testimony at the trial that he was very fond of her  It is clear that they had a child together, named “Puss.” It was clear as well that, anticipating the loss of her civil rights after Texas independence, that property was bought in Smith’s name using Gess’ money. In 1840, Smith and Gess apparently had a falling out, and he signed a document that said “The bearer, Margaret, a negro woman, about 30 years of age, is free and at liberty to go and do the best she can to make an honest livelihood in the world.” The document was signed in the presence of a witness. It is not certain whether she was still living with him when he died in 1848, apparently without a will. What is certain is that immediately after his death, his nephew, Francis Lubbock, claimed Gess and her daughter as his slaves through inheritance. He also claimed the land held in Smith’s name bought with Gess’ money to be his own

Lubbock was clearly a man on the rise in the Harris County of the antebellum era. He had moved to Houston from New Orleans in 1836 and founded a general store shortly thereafter. The business apparently thrived, and he became a rancher in rural Harris County. He also became interested in politics.  President Houston appointed him to be Comptroller of the Republic of Texas, and he served in that position from December of 1837 until January of 1839, when President-elect Mirabeau Lamar took office. In 1841, he was elected to serve as the District Clerk of Harris County.

Shortly after Smith’s death, the case of Margaret Gess v. Francis Lubbock was filed in the District Court of Harris County.5 The petition was filed with, of all people, the elected District Clerk of Harris County – Francis Lubbock. The lawsuit alleged that Lubbock had, in the process of filing the inventory of the estate of his uncle, unilaterally and without notice, listed her, her child and her homestead as assets of the estate and had the estate approved by the County Judge. The attorney filing the suit was B. F. Tankersley.

Although the lawsuit was filed directly with the District Clerk on December 22, 1848, Lubbock did not waive service of citation and acknowledge receipt of the petition in the case in his personal capacity until January 19, 1849. He did not file his answer in the case until May 19, 1849, apparently taking advantage of the fact that the District Court would not be in session in Houston until June of 1849. Lubbock filed his answer pro se, although he would be represented by J. W. Henderson during most of the life of the lawsuit.

The case was set for trial both during the spring and fall terms of court in 1849. Both times, Lubbock’s attorney requested permission to amend his answer and sought a continuance in order to be able to do so. Judge C. W. Buckley,6 who undoubtedly knew District Clerk Lubbock, granted both requests.7 Lubbock’s pro se answer consisted solely of a general denial. The first amendment to the petition filed by his attorney added a general demurrer,8 a plea of limitations, and a pleading that Gess was a slave. Significantly, while raising the issue of her being a slave, Henderson did not claim that Gess lacked the capacity to bring a lawsuit.

The case went to trial on May 24, 1850. The records of the court (maintained by Lubbock) reflect that a jury was selected and seated. We cannot know today how long the case lasted, but there were two other jury trials that day.9 The docket sheet of the Court reflects that the case was the last of three cases started and finished that day.

 The critical piece of evidence received was the document signed by Smith freeing Gess. This document was received into evidence only over Lubbock’s objection. The laws of the Republic of Texas (which were in effect in 1840 but not at the time of trial), mandated that a document freeing a slave be in writing (which the document was) and be witnessed by five citizens (which it was not). Responding to a question from the jury asking about the legal effect of the document, Judge Buckley said, “The paper referred to is evidence only of Smith’s admission that plaintiff is free. It amounts to nothing more.”

Today, we are left wondering how the “admission” that Gess was free would not be binding on his estate, which Lubbock purported to be representing. The public policy behind a statute requiring five witnesses to a unilateral contract is also a mystery to our 21st century minds. Of course, we are also left wondering how Lubbock could morally claim to own his cousin as his property. Judge Buckley had no compunctions about such a mindset and called for the strict construction of the statute requested by Lubbock’s attorney.

The jury instruction had the expected effect. The jury ruled that Gess was a slave at the time of Smith’s death, and, accordingly, the Court ruled that she and her daughter were Lubbock’s slaves for life. Oddly, the jury also found that the land Smith had bought on the same day he had “purchased” Gess had been bought in trust for her. This would appear to indicate that the jury gave some credence to Gess’s testimony that she had been free and lent Smith the money to buy both her and the land, since, under the law in effect both during the Republic Era and during statehood, a slave could not own property, Judge Buckley entered a judgment that Lubbock, as heir to Smith’s estate, receive the land and ownership of Smith’s two slaves – Gess and her daughter The docket sheet reflects that an oral Motion for Judgment Non Obstante Verdicto was filed, but no ruling is shown.

After the judgment, Gess changed attorneys, hiring Benjamin Cromwell Franklin. Franklin was named after his great-uncle, Benjamin Franklin of the American Revolution, and had served as the first judge of the Harris County District Court.10 He also served on the Supreme Court of the Republic of Texas.11 Franklin appealed the case to the Supreme Court and proved that he was a very skilled appellate practitioner. His motivation for taking the case could not have been monetary – Gess obviously could not pay any money for an attorney. One is left to conclude that he inherited some of his great-uncle’s love of freedom and abhorrence of slavery.12

Nine months after the trial court judgment, the Supreme Court reversed the decision and remanded the case for a new trial. The opinion – written by Justice Abner Lipscomb – could not have been seen as much praise for Gess’ trial counsel (who missed some obvious points of law) or for Lubbock’s lawyer (who committed basic pleading errors).13

First, the court mentioned that, given two opportunities to amend pleadings, Lubbock’s attorney had failed to plead lack of capacity to sue. Because Lubbock failed to so plea, the court held, no evidence of Gess’ status as a slave was even admissible.14 The court then held that seven of the eight questions asked of the jury and answered by them were “repugnant, impertinent to the issues formed and standing, or irrelevant.” The one question they did uphold was the question concerning Smith’s ownership of the land.

Moving on to the evidence, the Court discussed the correctness of Judge Buckley’s instruction that the document was merely a statement of intent. Relying on the doctrine of estoppel in pais, Lipscomb wrote that the estate was bound by the truth of statements made by Smith during his life. Those statements, of course, indicated a strong belief that Gess and her daughter were to be free.

Finally, the Court addressed (almost certainly in dicta) the issue of which nation’s laws applied and concluded that the laws at the time of Gess’ purchase applied. Hence, both the substantive laws of the Republic of Texas and of the State of Texas relating to the status of persons of color were not germane. What was relevant, Lipscomb wrote, was the law of the Republic of Mexico, which he acknowledged to be utterly confusing.

It is instructive that the Court chose to remand the case instead of rendering a judgment for the Plaintiff. In the opinion’s concluding paragraph, the Court noted that “it is doubtful that the relation of master and servant did ever exist between the plaintiff and the defendant’s intestate.” The opinion notes that “whether the presumptions created by the document of manumission are explained or rebutted was a question for the jury.” This indicates the level of respect afforded jury verdicts by the Supreme Court in this era, even where it clearly believed the evidence was insufficient to deny the plaintiff a judgment.15

Margaret Gess and her daughter had to wait 15 months for their trial - and their freedom. On May 20, 1852, Judge Buckley again called the case to trial. Given the working relationship between Buckley and Lubbock, both must have been surprised when Franklin, now acting as trial counsel, agreed to waive a jury trial and try the case to the bench. Lubbock must have been shocked when Judge Buckley, a slave owner himself, ruled that Gess was a free person and awarded her the property claimed by Lubbock. Given the hostility shown to Lubbock’s position by the Supreme Court, it does not come as a surprise that there was not a second appeal to that court.

Despite this loss, Lubbock’s political rise continued. In 1857, he was elected Lieutenant Governor of Texas, running with Hardin Runnels, who defeated Sam Houston in a bitter election. After losing in the 1859 election in which Houston defeated Runnels, he came back to run for Governor in the 1861 election, and defeated Governor Edward Clark by 124 votes. He remains the only person ever elected to statewide office directly from the office of District Clerk of a county. He left the governorship when his term ended and fought in the Confederate Army. After the war he was imprisoned for treason but was paroled by President Andrew Johnson. He later served as Treasurer of the State of Texas from 1878 until 1891. When he died in 1905, he had held public office under the flags of three different nations.

Margaret Gess sold her property shortly after the judgment, possibly to pay attorney’s fees, and then dropped out of the public record. No deed records, census data, or any other information about her can be found. Perhaps in the future, increased access and indexing of our 19th century public records will shed more light on the lives of the first generation of free persons of color who lived in Texas.

The institution of slavery has been described as the American equivalent of the Holocaust. While there are differences, both were governmentally mandated dehumanization of a class of people based on their heritage. It is significant to note that Margaret Gess’ case was decided by a judiciary that acted contrary to the legal and popular standards of the day. The German Judges of the Nazi era did notThe Gess decision was both within the law and was consistent with basic human rights. This case, and other similar cases, speaks well of the judges of early Texas and the system they founded.

The story of Margaret Gess’ fight for freedom is but one of thousands of cases that can be found in our new Historic Documents Room. These files display a rich mosaic portrait of the foundations of early Texas Justice. The records show that the first generation of judges and attorneys who served the people of Texas performed extraordinary work, given the fact that the law at the time was uncertain, their research tools were few, and the facilities they worked in were primitive at best. They wrote the first laws of our state, many of which are with us still and have been copied by other states.

The records in District Clerks’ offices around the state are our best link to our history – legal and otherwise. Margaret Gess’ case, and thousands more like it, must not be allowed to disappear from our courthouses. By preserving these records, lawyers of future generations will have a great example to show how our courts were used by our profession to preserve the most precious thing we have as Americans and Texans – freedom.

Judge Mark Davidson has presided over the 11th District Court since his election in 1988. He served as Administrative Judge of Harris County from 2002 through 2007.

 

Author’s Note:

I wish to acknowledge the assistance of an intrepid army of legal interns without whom this article would not have been written.  Rita “Coco” Thomas, Jeff Smith, Kate Sherman, Leslie Loring and Justin Jenson did wonderful work translating 19th Century handwriting into usable historical material and finding dozens of other details for this article.  Francisco Heredia, head of the Historical Documents Records Center in the Harris County District Clerk’s office, was continually asked to track down obscure records.  He never failed to find any document, and probably never will.

 

Endnotes

1. If Founding Fathers are defined as those that authored our state’s organic law, there were no Founding Mothers of Texas.  None of the individuals that signed the Texas Declaration of Independence or who attended the first six Constitutional Conventions of Texas were women.  Jane Long, of course, was an important person in the founding of Texas.   2. In Cause No. 20, Sam Houston v. Mirabeau Lamar, after a Harris County Jury awarded the Plaintiff a judgment for $1,101.73, it took an appeal to the Supreme Court of Texas, almost 11 years and a lot of work for the first President of the Republic to find any non-exempt assets of the second President of the Republic.  See Lamar v. Houston (Tex. 1845, 65 Tex. L. Rev. 382 (Paulsen rep. 1986).   3. Throughout this article, the Plaintiff is referred to with the surname of “Gess.” This is how she was consistently referred to in the trial proceedings. The Supreme Court’s opinion referred to her as “Guess.”  The Supreme Court’s reporter referred to her as “Guest” in the running head at the top of several, but not all, of the pages of the Texas Reports.  In probate proceedings before the Harris County Judge filed by Lubbock, she was referred to as “Less.”  In Austin v. Ritz, 72 Tex. 391 (1888), an attorney using the case as a precedent in a brief to the Texas Supreme Court referred to it as “Grenn v. Lubbock.”   4. To anyone who is unfamiliar with both Texas history and Harris County geography, I am referring to the San Jacinto Battleground.   5. The case was assigned Cause No. 1995.   6. Judge Buckley had served as trial counsel for Sam Houston in the case of Houston v. Lamar, referred to in Footnote 2.   7. Out of fairness to Judge Buckley, it should be noted that he undoubtedly knew both attorneys in the case, since the practicing bar was very small – no more than ten or 15 attorneys filed papers in these terms of court.  Given that Harris County had a population of 4,500 at the time, it is likely that Buckley had known Adam Smith and may have been acquainted with Margaret Gess as well.   8. Just in case any reader of this article was not practicing law in 1938, a general demurrer was a pleading that denied globally that there was any legal basis upon which a cause of action had been pled.  They were outlawed when the Rules of Civil Procedure were first adopted.   9. Voir dire was apparently not allowed by the Texas Courts in this era – the case was tried before 12 citizens picked by the judge.  Had the case gone to trial in the 1849 autumn term, one of the jurors could have been Lubbock’s brother, Thomas.   10. The county was named Harrisburg County at the time of his service.   11. Under the Constitution of the Republic, the Supreme Court of Texas consisted of a chief justice and all of the district judges of the state.  If this were still the case, we would have a 449 member Supreme Court.  The mind boggles at the number of concurring opinions that would be generated by such a court.   12. Near the end of his life, Franklin was offered a seat on the Supreme Court by Reconstruction Governor Edmond J. Davis, indicating that he might not have been a totally loyal Confederate.   13. Guess v. Lubbock; 5 Tex. 535 (1851).   14. Think about this case the next time you tell your secretary to “Just prepare a general denial.”   15. Notwithstanding his opinion in Gess, Justice Lipscomb was almost certainly not against the institution of slavery.  He had studied law in the law offices of U.S. Senator John C. Calhoun of South Carolina, a leader of the southern senators who fought “free-soilers” at every step.  After becoming a lawyer, Lipscomb served as Chief Justice of the Alabama Supreme Court, before moving to Texas in 1839.