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January/February 2008

Reconstructing Reconstruction:
Stories from the Harris County Court Archives on
How the Rule of Law Was Restored After the Civil War

By Bill Kroger

When the Harris County district courts decided to preserve their historical court records from 1837 to 1920, they did so without a full understanding of what they were preserving. Thousands of court files have been saved, but their contents have not been fully studied; most have been unexamined since the underlying suits were closed. Because these records were previously hard to access, few historians have used them. These court files contain an incredible amount of information about early Texas, the development of Houston, many of Houston’s most famous citizens, and the early practice of law.

This article examines court archives from Houston’s era of Reconstruction (1865-1874), when much of the city was in disarray after the Civil War. In his History of the Peloponnesian War, Thucydides describes the general condition of civic unrest during that conflict, using as his example the city-state of Corcyra in 427 B.C.:

In the various cities these revolutions were the cause of many calamities – as happens and always will happen while human nature is what it is, though there may be different degrees of savagery, and, as different circumstances arise, the general rules will admit of some variety. In times of peace and prosperity cities and individuals alike follow higher standards, because they are not forced into a situation where they have to do what they do not want to do. But war is a stern teacher; in depriving them of the power of easily satisfying their daily wants, it brings most people’s minds down to the level of their actual circumstances.

Thucydides could have been writing about 1790 Paris or 2008 Baghdad. Such unrest could have occurred in 1865 Houston, yet Houston recovered from the traumas and dislocations caused by the Civil War without devastating loss of life and property.

The archives reveal that Houston lawyers played a critical role between 1865 and 1874 in helping reestablish the rule of law in a chaotic society. This stability fostered Houston’s economic development through fundamental economic advancements such as chartered banks (previously prohibited) and railroads (curtailed by the war).

Judges like Colbert Caldwell and James Masterson, lawyers like Peter Gray, and ordinary citizens who showed up for jury service worked to reestablish order, stability and economic growth in Houston. The archives show how those before us helped transform Houston into a vibrant, modern, and civilized city.


The End of the War

By the spring of 1865, the war was coming to an end. On April 9, 1865, Confederate General Robert E. Lee surrendered his Northern Virginian Army to Union General Ulysses S. Grant at the Appomattox courthouse. On April 14, 1865, President Abraham Lincoln was shot and killed by John Wilkes Booth, and subsequently succeeded by President Andrew Johnson. On May 29, 1865, President Johnson issued the first of a number of amnesty proclamations.

Although only 46 years old at the time, Houston lawyer Peter Gray had already lived a full and adventurous life when these events were unfolding. He had been a captain in the Army of the Republic of Texas. Sam Houston appointed Gray district attorney of Houston in 1841. In 1846, he was elected to the first Texas State Legislature, and authored the Practice Act of 1846, the first Texas rules of evidence, civil and appellate procedure.1  Gray served as judge of the Harris County District Court from 1854 until the outbreak of the Civil War. Justice Oran Milo Roberts, one of the first great jurists of Texas (and later Governor), considered Gray “the very best district judge that ever sat upon the Texas bench.” 2 Gray signed the Texas proclamation of succession and served in the first Confederate House of Representatives. He was a friend of Jefferson Davis, held various positions in the Confederacy, and even fought in the Battle of Galveston.3

By the summer of 1865, Gray had returned to Houston, and likely was eager to resume his law practice. He probably appreciated that with the end of the Civil War there would be plenty of work for Houston lawyers because civil and criminal trials had been effectively stayed since a resolution on May 4, 1861. As a result, no civil cases and few criminal cases were tried in Harris County from 1861 until 1865.4 Furthermore, the Texas Legislature had stayed the statute of limitations on all contracts for the payment of money until the “close of the present war.”5 Gray’s best client, William Marsh Rice, had extended many loans before and during the war that were now in default, accruing interest at 10 percent or 12 percent a year, and in need of collection. And Gray likely foresaw that the Civil War had interrupted the construction of railroads and canals, that modern banking institutions were needed, and that Houston was going to be an important commercial center for such activity.6

Before he could resume his practice, Gray had to restore his law license. Governor Hamilton had issued an order on September 8, 1865, requiring all persons “who claim the right to practice as Attorneys and Counselors of said Courts” to take President Johnson’s May 29 amnesty oath in open court. This order required that the applicant be examined by the presiding judge; if the applicant met various requirements, the court was to record in the minutes that the person was authorized to practice law and be issued a certificate. Gray pasted a copy of the amnesty proclamations into his 1866 volume of the General Session Laws of Texas, the first of many clippings that he would paste into this book.7

During the summer of 1865, Judge James Addison Baker was the presiding Harris County District Court judge. Judge Baker was admitted to the Alabama bar in May 1843 at the age of 21,8 married Caroline Hightower in 1849, and moved to Texas in 1852 after her death.9 Baker was then elected to the Harris County District Court in 1862,10 Harris County’s only court until 189111 (later renamed the 11th District Court).12

On June 1, 1865, in the court’s minute book (essentially a diary of court activity), Judge Baker announced that during the next term, there would be no restrictions on which cases would be called to trial:

At an early day of the present term it was announced that an order would be made to call for trial at the next term all civil cases filed since January 1862. But since then events in the history of the country have transpired which render it unnecessary to limit the call to any particular portion of the docket.

It is therefore ordered that at the next term of this Court, the Civil docket and the criminal will be called for trial and disposition in full, as in ordinary times.13

That was Judge Baker’s last court entry; he never returned to the bench.

The next day, Lt. Gen. Kirby Smith, commander of the Confederate Trans-Mississippi Department, surrendered his military forces, effectively ending the Civil War in the West.14 On June 14, 1865, President Andrew Johnson appointed Andrew Hamilton as Provisional Governor of Texas.

On June 19, 1865, Union Major General Grainger landed in Galveston, and issued General Order Three, which freed the slaves and forever changed Texas:

The people of Texas are informed that in accordance with a proclamation from the Executive of the United States “all slaves are free.” This involves an absolute equality of personal rights and rights of property between former masters and slaves, and the connection heretofore existing between them becomes that between employer and hired labor.

On June 20, the 34th Iowa Regiment and five companies of the 114th Ohio Regiment marched through Houston and occupied the courthouse.15 A cannon placed in front of the courthouse was fired every day, breaking the windows around the courthouse square.16

The Harris County District Court was closed between June and October 1865. There were no judges on the bench, no lawyers in the court, no juries in the box, and no cases being tried. It was a precarious and critical time for Houston.


Justice Returns to Houston

Slowly, beginning in October and November of 1865, and as reflected by the 1865 minute book, the Harris County Court came back to life. On November 27, 1865, Provisional Governor Hamilton appointed Judge Colbert Caldwell as the new presiding judge for the District Court of Harris County.17

Judge Caldwell was born in Bedford, Tennessee in 1822 and settled in Texas in 1859. He was a slave owner and moved to Navasota before the war.18 In a well-researched article, Judge Mark Davidson notes that Judge Caldwell had “little formal legal training or experience prior to taking the bench and issued some poorly reasoned decisions.”19 Yet, with historical hindsight, Judge Caldwell seems to have been a reasonable appointment. The court minutes from 1865 and 1866 reveal that Judge Caldwell was a hard?]working, practical judge intent on getting the court docket under control and the judicial system up and running.

Given the trauma, heartache, displacement, confusion, and anger that must have pervaded after the end of the war, the first term of the Harris County District Court was remarkably ordinary. The court issued summons for petit jurors on October 13, 1865; many appeared for service on the first day of court, November 27, 1865.20 Thomas Bagby, a leading citizen, was the foreman of that first jury.21 Jurors who did not report were fined $50.22

Finally, on this first day of court, the same day that he took office, Judge Caldwell “qualified as practicing lawyers” 14 lawyers, including three lawyers who would play important roles in Reconstruction: Walter Browne Botts, George Goldthwaite and James Masterson.23 Judge Caldwell seemed generous in applying President Johnson’s May 29th amnesty proclamation to this first group of lawyer applicants. There is no record in the minutes of Judge Caldwell denying admission to a lawyer based on his involvement in the war.

Because of his position in the government of the Confederacy, Peter Gray’s readmission was not as simple. He had to follow the complicated process to obtain a pardon from President Johnson. Gray had to sign a formal written “Amnesty Oath,” which he executed on June 28, 1865, literally the very month that the war in Texas ended. He also submitted a lengthy letter to President Johnson, and obtained strong letters of support from prominent Texas unionists, including Judge Caldwell and Governor Hamilton.24 Gray received his pardon on November 1, 1865.

Judge Caldwell also admitted new lawyers to the bar. On that first day of the fall term, Edgar Thompson presented himself to Judge Caldwell, who, in turn, “presented his application for the appointment of a Committee to examine into his qualifications for the exercise of the duties of an attorney and counselor at law.” Judge Caldwell appointed a committee consisting of several lawyers to make this examination and report the next day.25 On November 29, the Committee provided a favorable report, and Mr. Thompson became Houston’s first new lawyer to be sworn in after the end of the Civil War.

All court participants – judge, staff, lawyers – worked to re-establish the Harris County judicial system. Lawyers drafted and filed motions and other pleadings, served discovery, had hearings, and went to trial. The court continued many cases, entered judgments and orders, and tried cases. During this first term, Judge Caldwell did not sanction any lawyers in his court for civil disobedience or disorderly conduct.


Gray & Botts

On October 2, 1865, before Gray had received his pardon, he ran an advertisement in the Houston Tri-Weekly Telegraph promoting his law practice in anticipation of the imminent opening of the court. After receiving his pardon, Gray formed a partnership with his cousin, Walter Browne Botts, during that fall of 1865. On October 20, 1865, a similar advertisement appeared, but this time under the name “Gray & Botts, Attorneys and Counselors at Law, Houston, Texas, Office on Court House Square.”26

Volume F of the court “Execution Docket,” contains all judgments that were taken and executed upon between the years of 1861 and 1869. In 1861 and 1862, when Gray was engaged with wartime activities, Botts had started to represent William Marsh Rice, Gray’s best client.27 Volume F also confirms that no firm had more judgments executed upon in the 1860s than the firm of Gray & Botts. Francisco Heredia, team leader of Historical Documents with the Harris County District Clerk’s Office, found more than 90 judgments that Gray, Botts or “Gray & Botts” executed upon between the period May 1861 and July 1869. Many of these cases were filed in the early 1860s by Gray or Botts individually, but were resolved after the war when they were practicing together as partners.

Gray & Botts had mainly a commercial litigation practice. In one case, Gray represented The Highland Bank, a New York bank,28 in 1861 in a suit to enforce a New York judgment taken in 1860 against the Houston Tap and Brazoria Railroad Company, one of the early railroads in Houston.29 The file contains remarkable documents, such as a handwritten copy of the articles of incorporation for The Highland Bank and a certificate signed by Governor Edwin Morgan of New York, a supporter of Abraham Lincoln.


The Fall 1865/Spring 1866 Terms of the Harris County District Court

For the next several months, Judge Caldwell held court Monday through Saturday, working through the oldest cases pending on his docket.30 Some were dismissed because a party died or was missing, an occurrence that must have been common given the casualties or displacements caused by the war. Judge Caldwell also resolved a number of cases, many of which involved the payment of debts owed during the civil war.

By early December, the court’s docket became filled with a large number of new criminal cases involving freemen. The defendants were former slaves, many of whom likely left their plantations and, finding no work, were reduced to committing thefts and other crimes. Unfortunately, the first tastes of freedom experienced by some former slaves ended quickly in a Harris County jail cell.31

The court worked until Christmas Eve 1865. The court then adjourned sine die. The court would not resume until March 24, 1866. For all, a Christmas break was in order. Much seems to have been accomplished in two months.

The spring term of 1866 was similar to the prior fall term. Judge Caldwell and his staff continued to resolve older matters and to address new criminal and civil filings. Judge Caldwell’s last day on the court was June 2, 1866.32 No minutes reflect any appreciation by Houston lawyers for his service, such as are found for other judges of that court. To this day, Judge Caldwell’s portrait does not hang in the 11th Judicial District Court, among the portraits of Judge Gray, Judge Baker, Judge Masterson and others. He may have been too radical for Texas Democrats, and too conservative for radical Washington Republicans. He subsequently was appointed Associate Justice of the Texas Supreme Court by General Philip H. Sheridan, commander of the Fifth Military District. In 1867, he survived an assassination attempt by a white mob when he was speaking before a largely African-American audience, and was ultimately removed from the Texas Supreme Court by the Commander of the Texas Military District in 1869. He moved to and died in Fresno, California.33

Despite his removal, Judge Caldwell played a pivotal role in returning the Harris County Court to the business of hearing and deciding cases. Instead of anarchy, the rule of law was re-established under his leadership and guidance.


Stories from Historical Case Files

Reconstruction in Texas was complex,34 and between 1866 and 1872, five different judges presided over the Harris County District Court.35 This regular rotation of judges had to be difficult for attorneys and their clients. Despite this instability, the court continued to function: new cases were brought, handled and resolved. There were still many continuances and default judgments, no doubt reflecting turbulence from the Civil War.36 However, the court became more efficient in resolving cases.

The docket reveals serious social problems of post-war Houston. Much of the docket dealt with criminal cases involving murder, theft, drunkenness, disorderly conduct, and similar crimes and misdemeanors. But then again, Houston had always been plagued by such misdeeds.

The civil docket also became more complex as the Houston economy continued to grow after the war. Many of the cases reflect the important business and financial institutions that developed in post-war Houston. Many lawsuits were brought by or against railroads, banks and other commercial enterprises, such as the Buffalo Bayou, Brazos and Colorado Railway Company,37 the Houston Tap and Brazoria Railway Company,38 the Houston Car Company,39 the Houston Gas Light Company, the Houston Direct Navigation Company,40 the Houston City Mills Manufacturing Company,41 the Houston Academy,42 the Galveston, Harrisburg and San Antonio Railroad Company,43 the Western Narrow Gauge Railway Company,44 and First National Bank of Houston.45

These case files reveal much about the parties as well as Houston as a whole. One case file, McDonough v. First National Bank of Houston,46 contains a wealth of information on efforts to obtain the first national bank charter in Houston within months after the war ended. According to the discovery responses, famous Houstonians like Thomas Bagby, Peter Gray and Thomas William House, among other “moneyed men of Houston,” initially were involved in organizing the bank and subscribing to its stock. Gray represented the bank in this suit over whether a fee was owed to a developer on the bank’s creation. He sent discovery to H. R. Hubbard, the U.S. Comptroller of the Currency, about its evaluation of the bank’s federal charter application. The file also contains copies of correspondence relating to the formation of the bank. This file exemplifies how at least some members of the Houston business community were more focused on economic development than resisting Union occupation.

Other case files contain tangible evidence of life in Houston during the 1860s. Some files contain business invoices, such as ones relating to railcars purchased in 1861 and “ice cream freezers” and various tin wares from 1870.47 Case File 7200 contains financial statements, an audit report, and inventory from 1871 for the Houston City Mills Manufacturing Company, the largest textile company in the state.48 The audit report reveals that the original investors included T.W. House ($10,000), William Marsh Rice ($10,000), B.A. Shepherd ($5,000), W. R. Baker ($5,000), and T. M Bagby ($2,500). The file also contains beautiful $500 and $100 bond certificates issued by the company in 1868.

Some of the earliest invoices from 1868 and 1869 issued by the Houston Gas Light Company, the first public utility in Houston,49 appear in several files involving suits for collection of unpaid gas bills.50 One set of such invoices contains a useful warning to a community that had no prior experience with gas lines or a gas utility: “Should there be any escape of Gas, the consumer is cautioned not to go near the place with a light and also, if there is any derangement of the Fittings, Service or Meter, the Company must be at once notified.” Much like today, the bills reflect that gas consumption was measured by a meter, which was read monthly.  The price was $8 per 1000 cubic feet of gas in 1868. The gas bills had to be paid “on the first three days of the month” or “the flow of Gas will be stopped.”51

Beautiful stamps of various sorts from the 1860s are found in these files because envelopes containing pleadings and discovery were often placed in them. A beautiful blue “fifty-cent” process stamp, depicting George Washington, appears in a file52 involving a suit brought by Dick Dowling in 1867. In another Dowling file,53 eight red “five cent” “internal revenue certificate” stamps, also containing the image of George Washington, appear on a promissory note signed by Dowling, with the date November 12, 1866, inscribed on the stamps. Another file contains more such stamps, also on a Dowling note from 1866, in the denominations of 10 cents, 25 cents, and 30 cents.54 And yet another file contains a set of five dollar “charter stamps” from 1865.55 These files may contain one of the finest “stamp collections” in the city.

One chilling file, Davis v. Edmington, 56 concerns the sale of slaves before the Civil War. The evidence includes an 1857 contract providing for the sale of approximately 65 African-Americans from a “William David” to a “William Randle.” The contract provides the names and ages of the men, women and children being sold. They include “Easter, a girl aged 8,” “Caroline a girl 6,” “a girl child of Eliza about 5 months old not yet named,” and “Freeman, a boy 4 years.” It is a painful but important record of the brutal hardships endured by African-American slaves before the war.

Dick Dowling and William Marsh Rice are two historical characters who appear regularly in the court records of the 1860s. The Houston Telegraph considered Dowling to be Houston’s most important citizen of the time.57 He opened the first successful saloon in Houston, The Shades. He also fought in the Civil War and was the hero of the Battle at Sabine Pass.58 Dowling borrowed and loaned money during this era, and was a party to a number of collection suits during this time period. Several case files contain the actual promissory notes.59 Dowling died from yellow fever on April 1, 1868.

William Marsh Rice may have been the second richest man in Texas by 1860,60 and was one of the most active plaintiffs in the city, filing many cases both before and after the war in his own name or the name of his many businesses. Rice’s businesses included a large export/import business, the Houston and Galveston Navigation Company, large landholdings around what is now Bellaire, and the Houston Cotton Compress Company. He also was an incorporator and director of several railroads, including the Buffalo Bayou, Brazos, and Colorado, the Houston Tap and Brazoria, the Washington County, and the Houston and Texas Central. Later, he bought and owned the Rice Hotel.

Rice was typically represented by Gray.61 Many of the Rice lawsuits are collection suits that also contain the actual promissory notes. Rice v. Haynes and Rice v. Fleur62 are two typical collection suits whose files contain pre-Civil War promissory notes. In Rice v. Beauchaup, Rice sued the defendants for an unpaid promissory note dated after the war, August 12, 1862. With the Civil War underway, Rice used the same form of note as found in the Haynes case, but crossed out “10 percent” and wrote in “12 percent,” reflecting the change of risk in the country’s fortune. The Beauchaup case addressed whether a loan made during the Civil War, when Texas used Confederate currency, was still valid and payable in United States dollars after the war. While the note in that case was payable in “dollars,” the defendants argued “that the consideration for which said note was given was Confederate money so called then” and “that said consideration was unlawful and in law, was no consideration.” The court rejected this defense, and Rice recovered $1,825 from the defendants.63

The case file of Rice et al. v. Wilson64 may be the most historically significant file in the Reconstruction era archives. In that case, Rice and several other parties sued James Wilson to quiet title over a dispute concerning original tracts of land that were owned by Allen Brothers and became part of downtown Houston. Gray & Botts represented the defendant Wilson, while Rice and the other plaintiffs were represented by Goldthwaite. The case raised questions about the land’s original ownership, and how the land was initially sold by the Allen Brothers in the late 1830s. Because John and Augustus Allen were dead, the parties took depositions on written questions of their surviving brothers, Henry Allen and Samuel Allen, Charlotte Allen (the wife of Augustus Allen), and James B. Harris, the original Harris County clerk. Their testimony is in the file and contains information on their dealings with the Allen Brothers. Ultimately, Wilson prevailed.

Charlotte Allen was an important historical figure in the history of the city. Few people today realize she was just as much a founder of the City of Houston as her husband and brother-in-law. She was the first woman to arrive in Houston in 1837. When she arrived at the age of 27, only one log cabin had been built in the city, and the occupants moved out so she could move in.65 Charlotte Allen is given credit for naming the City of Houston. As stated by one historian, “Although John and Augustus have always been named the founders of Houston, there is no doubt that Charlotte Allen was an unacknowledged partner in the enterprise. This was an era when women were not credited with being city founders.”66 She died in 1895 at the age of 95.67

As a final side note, a key piece of evidence in this case was the Houston Town Lot Book, which Peter Gray kept after the case was resolved. This document was later donated to the city.68

This was not Gray’s only case that touched on Houston’s founding. In McCormick v. Patrick, et al., Case File 5677, Gray represented the defendant in a land dispute over the ownership of the land where the Battle of San Jacinto was fought. The file includes evidence on the original land grants from the Baron de Bastrop to Stephen F. Austin. It also includes Gray’s handwritten map of the area, including the battleground, Buffalo Bayou, and Galveston Bay.


The First Thanksgiving in Houston

The fall term of 1866 started with a new judge, Judge John Kennard.69 The Minute Book of 1866 references public recognition of Houston’s first Thanksgiving holiday, which had been created by Abraham Lincoln during the war to pray to “Almighty God” for the continued success of the Union Army and Navy.70 In his Second 1863 Thanksgiving Proclamation, Lincoln chose the last Thursday in November as the “day of thanksgiving.”71 Every year thereafter, this holiday was observed by presidential proclamation.

President Andrew Johnson’s 1866 Thanksgiving Proclamation centered on the “great national blessings” of the past two years, including that “the civil war that so recently closed among us has not been anywhere reopened.”72 On Thursday, November 29, 1866, in accordance with the Proclamation, Judge Kennard “ordered, in due observance of this day, it being set apart as a day of Thanksgiving by the President that court adjourn until tomorrow morning at 9 o’clock.”73 And, thus, Houston celebrated its first Thanksgiving.


Judge James R. Masterson, Yellow Fever, and the Rise of the Houston Bar

The judicial musical chairs ended on October 2, 1870, when James R. Masterson was appointed to the bench of the Harris County District Court. Judge Masterson was a remarkable lawyer. He at one time had sided with Sam Houston and opposed secession from the Union (a fact that probably helped assure his subsequent appointment to the bench), but ultimately he enlisted in the Confederate Army. He had been practicing in Houston for some time, at least since 1864 (because he had been sanctioned by Judge Baker for failing to represent an indigent defendant in a criminal case).74 He was a popular judge and served on the bench about 20 years, until 1891.

Masterson’s appointment is linked to another reconstruction-era organization created during this time period, the Houston Bar Association (the “HBA”). The HBA was formed on April 23, 1870, by Peter Gray, Walter Botts, George Goldthwaite, and several other Houston lawyers. Goldthwaite, the HBA’s second vice president, was “one of the best corporation lawyers in the county.”75 The men met at the newly remodeled courthouse, but no record of this event appears in the minute book because the court was not in session at that time. This meeting, however, was noted in an article by the local newspaper, the HoustonTelegraph, on April 24, 1870,76 and reflects that Peter Gray was elected the first president of the HBA.77

One of the HBA’s first acts was to lobby Texas governor Edmund J. Davis to appoint Masterson, a conservative democrat, to the bench. The HBA was successful, and Davis appointed Masterson. One of Judge Masterson’s first tasks was to deal with the ramifications of a public health crisis that summer—a yellow fever outbreak. Houston had a long history of yellow fever epidemics. In 1839, one such epidemic killed 240 of Houston’s 2,000 citizens,78 And an 1867 epidemic killed many, including Dick Dowling.

Yellow fever had struck again in 1870 in Galveston, and Houstonians were worried that it would soon spread to Houston. As reflected in the minutes, on October 3, 1870, the HBA made its first appearance before Judge Masterson by filing a motion to adjourn court because of the epidemic:

Now comes the undersigned members of the Houston Bar and suggests to the Court that owing to the appearance of yellow fever at Galveston and the Quarantine at Houston that a number of lawyers have left the City. There is great excitement among the people and we believe it will be impossible to obtain the attendance of witnesses in many cases and therefore move the Court to adjourn until the first Monday in November.

The motion was signed by Botts, Goldthwaite, and several other lawyers.79 The motion was granted, and the court did not resume until November 7, 1870.80

Given the many important community service causes that the HBA would undertake over the years, it is moving to see that such public service began at its inception.


Courtroom Sanctions

Although the Harris County courts were running fairly smoothly, the archives describe an incident illustrating that practicing law in the late 1800s was still rough and tumble.  Gray and Goldthwaite were on opposite sides of a civil case pending in 1872. Gray filed exceptions to a pleading filed by Goldthwaite that was heard on December 10, 1872.  According to Judge Masterson, “after the exception had been sustained,” Gray and Goldthwaite “became engaged in open Court in a personal difficulty with each other.” Masterson found them both in contempt, fined them each $100, and ordered the Harris County Sheriff to hold them in jail until the fines were paid.81

The dispute’s cause is unknown. However, Judge Masterson immediately opened up a new criminal matter, styled “The State of Texas vs. Peter W. Gray and Geo. Goldthwaite.82 On Wednesday, December 11, Goldthwaite appeared before Judge Masterson and “sought to purge himself of contempt,” which “after due consideration by the Court is deemed sufficient and the fine entered against the said Geo. Goldthwaite Esq. is hereby remitted.”83 Gray did not ask to be “purged” of his contempt. Rather, at the end of the next day, the sheriff gave the court documentation showing that Gray had paid the fine, and Gray was released.84

In this situation, Judge Masterson showed his independence and impartiality by sanctioning two lawyers who were actively involved in getting him appointed.


The End of the Reconstruction Era and the Death of Peter Gray

About 14 months after this incident, Gray was appointed to the Texas Supreme Court. Unfortunately, he served only two months, as he died from tuberculosis on October 3, 1874.  The Harris County District Court paid tribute to Gray on October 26, 1874, three weeks after he died. 85

The members of the HBA and the officers of the court resolved to wear a “Badge of Mourning for thirty days” in his honor. The court also adjourned “for the memory of the deceased.”86 Gray’s death coincides with the end of the Reconstruction in Houston.

Twelve years later, James Lynch, profiling the best lawyers in Texas history, reflected upon the valuable service Gray had provided to Houston during those turbulent days of reconstruction: “When hostilities ceased he returned to Houston and resumed his practice, endeavoring by his example and counsel to re-establish the order of peaceful pursuits and ameliorate the condition of his people.”87 But the same should be said of all of the lawyers, judges, and public servants who served Houston during those difficult years. Houston would not be a Corcyra, but continue to grow into one of the great cities of the United States. As beneficiaries of the community they helped stabilize, we are indebted to the members of the early Bar for their leadership and service.



The Historical Documents Records Center is a valuable, unique, informative, diverse, and abundant source of information about all aspects of life in early Houston. Because of its previous inaccessibility, it is a resource that has rarely been consulted in the published histories of the city or its institutions. Its recent preservation makes it available for historians, lawyers, and all citizens. It seems obvious that some of the most interesting and moving documents in the archives should be displayed and made more accessible to Houston citizens. Houston is overdue for a local history museum. These documents tell a wonderful story about Houston’s founding and development in a direct way that cannot be equaled. I cannot think of a better way to promote a sense of civic pride and respect for the rule of law, than to see and reflect upon the finest moments of the Harris County District Court.

Bill Kroger is a partner with Baker Botts L.L.P., past chair of the Houston Bar Foundation, and currently a director of the State Bar of Texas.


Author’s Note:

This article could not have been written without the hard work and generosity of Francisco Heredia, who helped find all of the case files discussed in this article. He is a very fine public servant.



1. Peter Gray’s copy of the 1846 Statutes of the State of Texas, including the Practice Act of 1846, with Gray’s own annotations, are in the archives of Baker Botts.  See Sandra Williams, “Civilized Procedure, The Practice Act of 1846,” Houston Lawyer (Jan.-Feb. 1999) for a discussion of the Act and Gray’s role in its development.    2.James D. Lynch, The Bench and Bar of Texas 114 (1885).   3.See entry on Peter W. Gray, The Handbook of Texas Online (2007).   4. Judge Mark Davidson, The Civil War and Reconstruction in Harris County’s Only District Court, Houston Lawyer (Nov./Dec., 1995).   5.Gammel, 5 Laws of Texas 485, Chapter LV, General Laws of the Ninth Legislature of the State of Texas,  (1898).   6. Gray was certainly involved in representing Texas railroads before the war.  The archives of Baker Botts contain Gray’s 1854 copy of the “Review of Railroad Charters Granted” by the Texas Legislature.   7. These books, along with many others owned by Gray from this era, would be found 142 years later in the archives of the firm he ultimately founded, Baker Botts L.L.P.   8. One of Judge Baker’s Alabama law books has been found in the archives of Baker Botts.  9. Her descendant, Judge Caroline Baker, contributed towards the preservation of Judge Baker’s court minutes as part of the preservation efforts.   10. For information on the 1862 election of Judge James Baker, see Judge Mark Davidson, The Making of a Judge:  1862.  The Houston Lawyer (Sept./Oct. 1998).   11.See entry of James Addison Baker, The Handbook of Texas Online (2007).   12. For a history of the origins of the first Harris County District Court, see Judge Mark Davidson, The District Court of Harris County, The Houston Lawyer (Sept./Oct. 1995).   13. District Court Minutes (11th District), Volume K (1863-1865) at 185-86.   14.Carl Moneyhon, Texas After the Civil War 6 (Texas A&M University Press 2004).   15.Marguerite Johnson, Houston, The Unknown City 72 (1992).   16.Id.   17. District Court Minutes (11th District), Volume K (1863-1865) at 185-86.   18. Entry on Colbert Caldwell, The Handbook of Texas Online.    19. Judge Mark Davidson, The Civil War and Reconstruction in Harris County’s Only District Court, The Houston Lawyer (Nov./Dec., 1995).    20. District Court Minutes (11th District), Volume K (1863-1865) at 182, 184.   21.Id. at 183.   22.Id. at 187.   23.Id. at 184.   24. The author has found these parts of Gray’s pardon files in both the Texas State Archives in Austin and the National Archives in Washington D.C.   25. District Court Minutes (11th District), Volume K (1863-1865) at 188.   26. A photograph of this advertisement is found on page 16 of The People of Baker Botts by J. H. Freeman.   27. Execution Docket, Volume F, at 108 (Case No. 4947), 223.   28. The Highland Bank was established in 1834, and through a series of mergers, ultimately became part of Fleet Bank  N. A., which was recently acquired by Bank of America, N.A. See http://www.scripophily.com/nybankhistoryh.htm.   29.See Highland Bank v. H. T.&B. R. R. Co., Case File 5695.   30.See, e.g.,  District Court Minutes (11th District), Volume K (1863-1865) at 284.   31. Unfortunately, these files appear to be missing from the record, possibly because in 1867, the Harris County District Court transferred all criminal cases to a new specialized criminal court that served both Houston and Galveston counties. These records may have transferred as part of that split.   32. District Court Minutes (11th District), Volume K (1863-1865) at 409.   33.See Entry on Colbert Caldwell, The Handbook of Texas Online.   34. For an excellent article on Texas courts during reconstruction, see James R. Norvell, Oran M. Roberts and the Semicolon Court, 37 Tex. L. Rev. 279 (1958-59).  The author is grateful to Judge Thomas Phillips for directing him to this fine article.   35. Judge Mark Davidson, The Civil War and Reconstruction in Harris County’s Only District Court, The Houston Lawyer (Nov./Dec., 1995).   36. District Court Minutes (11th District), Volume K (1863-1865) at 333, 338, 342   37.Id. at 329 (Cause Nos. 5982 and 5983).    38.See Hutchins v. Houston Tap and Brazoria Railway Co., Case File 6791.    39.SeeMorris v. Houston Car Co., Case File 7037.   40.SeeHouston Direct Navigation Co. v. Steine, Case File 7485.  A piece of correspondence from this company is found in Case File 7736.   41.Goldthwaite v. The Houston City Mills Mfg. Co., Case File 7200.   42. Case File 7185.  The Houston Academy was an early school in Houston incorporated before the war by William Marsh Rice, Peter Gray, Thomas W. House, and others.  See entry on Houston Academy at The Handbook of Texas Online.    43. Case File 7718.   44. Case File 7936.   45. District Court Minutes (11th District), Volume M (1868-1869) at 200 (Cause Nos. 6657 and 6607).   46. Case File 7133.   47. Case Files 7037 and 7904.   48. Entry on Textile industry in The Handbook of Texas Online.   49. Houston Gas Light Company was organized in 1866, and so these invoices were issued within two years of its formation.  See entry on Thomas William House in The Handbook of Texas Online.   50.Houston Gas Light Co. v. Howard, Case File 7230; Houston Gas Light Co. v. Howard, Case File 7250.   51.See Case File 7250.   52.Dowling v. Noble, Case File 6356.   53.McEulee v. Dowling, Case File 6526.   54.Wolf v. Dowling, Case File 6515.   55.Davis v. Edmington, Case File 6815-B.   56.Id.   57.Id. at 78.   58. Entry on Richard William Dowling at The Handbook of Texas Online.    59. Case Files 6409 and 6526.   60.See entry for William Marsh Rice in The Handbook of Texas Online (2007).   61. See, e.g., Rice v. Viser, Case File 5485, a collection case that took approximately 12 years to resolve.  The case was originally filed in the spring of 1861, and Rice was represented by “Peter W. Gray, attorney.”  When the case ended in 1871, Rice was represented by the firm of “Gray & Botts.”   62. Case File 5276.   63. District Court Minutes (11th District), Volume M (1868-1869) at 123.   64.Rice et al. v. Wilson, Case File 7022.   65.Marguerite Johnson, Houston, The Unknown City 11-12(1992)   66.Id. at 9 (1992)   67.Id. at 103.   68. A picture of the Town Lot Book appears in The People of Baker Botts, at 6.   69. District Court Minutes (11th District), Volume K (1863-1865) at 409.   70. See Abraham Lincoln’s 1863 Thanksgiving Proclamation.   71.See Abraham Lincoln’s Second 1863 Thanksgiving Proclamation.   72.See President Andrew Johnson’s 1866 Thanksgiving Proclamation.   73. District Court Minutes (11th District), Volume L (1866-1867) at 3.   74. Judge Mark Davidson, The Civil War and Reconstruction in Harris County’s Only District Court, The Houston Lawyer (Nov./Dec., 1995).   75.James D. Lynch, The Bench and Bar of Texas (1885) 504.   76. Eric L Fredrickson, A Commitment to Public Service, The History of the Houston Bar Association at 10 n.1.   77.Id. at 14.   78.Marguerite Johnson, Houston, The Unknown City (1992) 45.   79. District Court Minutes (11th District), Volume O (1870-1872) at 1-2.   80. Id. at 11.   81. District Court Minutes (11th District), Volume P at 48.   82.Id.   83.Id. at 56.   84.Id. at 58.   85. District Court Minutes (11th District), Volume Q at 1-2.   86.Id. at 2.   87.James D. Lynch, The Bench and Bar of Texas 115 (1885).