Nothing More than Freedom: The Failure of Abolition in American Law 1009219197, 9781009219198

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Nothing More than Freedom Nothing More than Freedom explores the long and complex legal ­history of Black freedom in the United States. From the ratification of the Thirteenth Amendment in 1865 until the end of Reconstruction in 1877, supreme courts in former slave states decided ­approximately 700 lawsuits associated with the struggle for Black freedom and equal citizenship. This litigation – the majority related to private law – prompted questions about American liberty and challenged the nation’s legal and political order following the Civil War. Judicial decisions set the terms of debates about racial identity, civil rights, and national belonging, and established that slavery, as a legal ­institution and social practice, remained actionable in American law well after its ostensible demise. The verdicts determined that unresolved f­acets of slavery would undercut ongoing efforts for abolition and the realization of equality. Insightful and compelling, this work makes an important intervention in the scholarship on post–Civil War law. Giuliana Perrone is Assistant Professor of History at the University of California, Santa Barbara.

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See the Studies in Legal History series website at http://studiesinlegalhistory.org/ Studies in Legal History Editors Lisa Ford, University of New South Wales Sarah Barringer Gordon, University of Pennsylvania Thomas McSweeney, William & Mary Law School Reuel Schiller, University of California, Hastings College of the Law Taisu Zhang, Yale Law School Other books in the series: Christian G. Fritz, Monitoring American Federalism: The History of State Legislative Resistance Ada Maria Kuskowski, Vernacular Law: Writing and the Reinvention of Customary Law in Medieval France E. Claire Cage, The Science of Proof: Forensic Medicine in Modern France Kristin A. Olbertson, The Dreadful Word: Speech Crime and Polite Gentlemen in Massachusetts, 1690–1776 Edgardo Pérez Morales, Unraveling Abolition: Legal Culture and Slave Emancipation in Colombia Lyndsay Campbell, Truth and Privilege: Libel Law in Massachusetts and Nova Scotia, 1820–1840 Sara M. Butler, Pain, Penance, and Protest: Peine Forte et Dure in Medieval England Michael Lobban, Imperial Incarceration: Detention without Trial in the Making of British Colonial Africa

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Stefan Jurasinski and Lisi Oliver, The Laws of Alfred: The Domboc and the Making of Anglo-Saxon Law Sascha Auerbach, Armed with Sword and Scales: Law, Culture, and Local Courtrooms in London, 1860–1913 Alejandro de La Fuente and Ariela J. Gross, Becoming Free, Becoming Black: Race, Freedom, and the Law in Cuba, Virginia, and Louisiana Elizabeth Papp Kamali, Felony and the Guilty Mind in Medieval England Jessica K. Lowe, Murder in the Shenandoah: Making Law Sovereign in Revolutionary Virginia Michael A. Schoeppner, Moral Contagion: Black Atlantic Sailors, Citizenship, and Diplomacy in Antebellum America Sam Erman, Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire Martha S. Jones, Birthright Citizens: A History of Race and Rights in Antebellum America Julia Moses, The First Modern Risk: Workplace Accidents and the Origins of European Social States Cynthia Nicoletti, Secession on Trial: The Treason Prosecution of Jefferson Davis Edward James Kolla, Sovereignty, International Law, and the French Revolution Assaf Likhovski, Tax Law and Social Norms in Mandatory Palestine and Israel Robert W. Gordon, Taming the Past: Essays on Law and History and History in Law Paul Garfinkel, Criminal Law in Liberal and Fascist Italy Michelle A. McKinley, Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600–1700 Karen M. Tani, States of Dependency: Welfare, Rights, and American Governance, 1935–1972 Stefan Jurasinski, The Old English Penitentials and Anglo-Saxon Law Felice Batlan, Women and Justice for the Poor: A History of Legal Aid, 1863–1945 Sophia Z. Lee, The Workplace Constitution from the New Deal to the New Right Mitra Sharafi, Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772–1947 Michael A. Livingston, The Fascists and the Jews of Italy: Mussolini’s Race Laws, 1938–1943

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Nothing More than Freedom The Failure of Abolition in American Law

GIULIANA PERRONE University of California, Santa Barbara

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Shaftesbury Road, Cambridge CB2 8EA, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 103 Penang Road, #05–06/07, Visioncrest Commercial, Singapore 238467 Cambridge University Press is part of Cambridge University Press & Assessment, a department of the University of Cambridge. We share the University’s mission to contribute to society through the pursuit of education, learning and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781009219198 DOI: 10.1017/9781009219181 © Giuliana Perrone 2023 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press & Assessment. First published 2023 A catalogue record for this publication is available from the British Library. A Cataloging-in-Publication data record for this book is available from the Library of Congress. ISBN 978-1-009-21919-8 Hardback Cambridge University Press & Assessment has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

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For my family

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Contents

List of Figures Acknowledgments

page x xi

Introduction: An Abolitionist Vision 1 The Contract Controversy 2 Wreck and Ruin 3 By Force It Was Destroyed 4 Confederate Reckonings 5 Life after the Death of Slavery 6 Back into the Days of Slavery 7 The Grave Question 8 Final Failure Epilogue: An Abolitionist Revision

1 11 38 73 112 147 175 203 237 276

Bibliography Index

285 307

ix

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Figures

2.1 A Schedule of Slaves with Their Names and Ages 3.1 Letter from George Robertson to Abraham Lincoln 3.2 Missouri Ordinance of Emancipation 3.3 Letter from Andrew Johnson to Abraham Lincoln 4.1 Confederate 100 Dollars 7.1 Miscegenation Cartoon

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page 57 85 88 89 137 222

Acknowledgments

Writing a book can feel like a terribly solitary process, but ­writing acknowledgments is a good reminder that it never is. This book was only possible with the support of teachers, friends, and ­colleagues. At the University of Texas, Judy Coffin and George Forgie inspired me to become a historian. At UC Berkeley, Robin Einhorn, Brian DeLay, Kerwin Klein, Rebecca McLennan, Waldo Martin, Mark Peterson, Harry Scheiber, Christopher Tomlins, David Lieberman, and Bryan Wagner taught me what it meant to be a scholar. I owe a special thanks to Robin for convincing me to write about the nineteenth century instead the twentieth. This project actually started with a conversation in her office. When I asked why there were so many cases about slavery decided after emancipation, she suggested I find the answer. I’ve been working on it ever since. Rebecca planted the seed about the distinction between emancipation and abolition, while Bryan helped me find structure out of a mess of sources. Chris let me crash the first class he taught at Berkeley – on slavery and the law – and use it to propel my work further. When he finally moved out of his office, Harry shipped me all of the books he thought I could use. This was classic Harry – always trying to nurture the next generation of academics. For years, he invited me to events and introduced me to preeminent visiting scholars. I look back on the working lunches at the Women’s Faculty Club with Harry and Jane with special fondness. Aaron Hall and Jacqui Shine have continued to engage deeply with my work and offer incisive comments and critiques as my dissertation transformed into a book manuscript. It has been a joy to assign their work in my classes. xi

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From our time at Berkeley, Alberto Garcia has become a lifelong friend. We supported one another through qualifying exams and dissertation writing, and now as we complete our first books. A tough writing day becomes something for us to celebrate with a ridiculous meme or just general whining. In this line of work, you learn quickly that your best friends are the ones you complain to at every step of a project. A postdoctoral fellowship at the Carter G. Woodson Institute at the University of Virginia allowed me to reimagine what this book could be. While there, I began grappling with the idea of dormant rights and teasing out the distinctions between emancipation and abolition. The community of fellows was rich and full of good humor, and I benefitted tremendously from the interdisciplinary approaches to studying Black and African life. Deborah McDowell encouraged me to look in new directions and to challenge convention. I am especially grateful to Dylan Penningroth, who came to Charlottesville for a workshop of a very early draft of Chapter 6. I had a transformative teaching experience while at UVa. The students of AAS 3500 – the very first course I taught, entitled “From Slavery to Citizenship” – may never read these words, but they still deserve special acknowledgment. Almost all of them grew up in the South and lived with daily reminders of the long reach of slavery, the Civil War and Reconstruction, and the Lost Cause. They went to high schools named after Stonewall Jackson and traveled down highways named after Robert E. Lee to get to them. They attended the university Thomas Jefferson founded, which, long sustained by enslaved labor, was in 2016 only beginning to fully reckon with its own history. They knew intuitively that the historical narrative they were taught was deeply flawed, and they were ready and eager to have it set straight. I remain deeply honored and inspired by their willingness to learn with me, and I think of them every time I give a lecture on the Lost Cause or explain why there is no such thing as a “good master.” The history department at the University of California Santa Barbara has provided me with a wonderful intellectual home. Every single one of my colleagues has offered unequivocal support and friendship. Randy Bergstrom, Utathya Chattopadyhaha, Juan Cobo, Manuel Covo, Lisa Jacobson, John Majewski, Sherene Seikaly, and Paul Spickard have read drafts and engaged in generative conversations that helped me improve the manuscript. Sherene and Utathya in particular offered interdisciplinary and theoretical insights that changed my approach to this book, enriched my teaching, and allowed me to fully grasp the power and potential of our discipline. I

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am especially grateful to Laura Kalman, who has been supporting me and my work since before I joined the department. With her guidance, I’ve found an intellectual community with legal historians and managed not to be too afraid of the lawyers. I also received crucial funding to support this project from several grants and fellowships. The UC President’s Faculty Fellowship in the Humanities funded a year of uninterrupted writing, while the Regents Junior Faculty Fellowship and UCSB’s Interdisciplinary Humanities Center defrayed research costs and provided a course release. The support for early career scholars is essential, and I’m grateful that UC values it – not all institutions do. I am also especially grateful for the William Nelson Cromwell Foundation Early Career Scholar Fellowship, which further funded the project at a critical moment. Members of UCSB’s interdisciplinary research focus group dedicated to the study of slavery, captivity, and meanings of freedom have helped me develop a deeper understanding of slavery and abolition across time and space. Workshops and conversations with James Brooks, Manuel Covo, Jeannine DeLombard, Rose MacLean, John Majewski, and Evelyne Laurent-Perrault made the book better. I am particularly indebted to Jeannine, who offered crucial support and suggestions along the way, especially as I conceptualized Chapter 5. I am sure that we will continue to discuss the meaning of “legal personhood” for years to come. Amanda Kleintop and I became fast friends after connecting over Zoom during the pandemic. Given the connection between our projects, it’s rather astounding we had not been in touch sooner. We quickly made up for lost time by reading each other’s work, encouraging each other’s progress, and discussing just about everything in between. I eagerly await the publication of her book. I have long believed that a good librarian can solve many of life’s problems. I am grateful to all the archivists and librarians who helped me secure the sources I needed, including those at Clemson University’s Special Collections; the state libraries of Kentucky, North Carolina, Maryland, Texas, and Tennessee; the University of New Orleans, and the Virginia Supreme Court Library. I finished this book in the midst of the unprecedented COVID-19 global ­pandemic, which was only possible because of the institutions that made sources available online and the librarians at UCSB who often went to ­ extraordinary lengths to help me (and everyone else on campus) get access to the materials we needed. They mailed books to our homes, scanned pages, and secured temporary online access to copyrighted material. And they did so with such astonishing alacrity! The world

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Acknowledgments

of scholarship would have ground to a halt without librarians around the globe sustaining us. I am grateful to the editors of Studies in Legal History and Cecelia Cancellaro and Victoria Phillips at Cambridge University Press for publishing this book. I owe special thanks to Pamela Haag. Pamela, a historian herself, is an incredible editor who brings out the very best from the authors she assists. Every author should seek out her services. I am also especially appreciative to have had anonymous reviewers who invested deeply in this book’s success. There is no way to thank Sally Gordon enough for all the time and effort she put in to helping me turn a dissertation into a book. I think guiding first-time authors is her super power. At critical moments, she always had just the right reading recommendation. She pushed me to make the book better at every turn, knowing that in the end, I wouldn’t be satisfied with anything less. She listened to my anxieties and helped me “speak to the lawyers” among the legal historians. Perhaps most of all, she could glean what I wanted to say out of what I had actually written, and offered comprehensive and incisive comments about how to center those ideas and make them powerful and compelling. My family has supported me throughout the ups and downs of writing this book. I am particularly lucky that so many live close by. Or, rather, I’m exceptionally lucky to have gotten a job near my family. My father, who immigrated from Italy as a child, has become a better department citizen than I am, going to all the talks, lectures, and roundtables he’s allowed to attend. His own graduate training in history was cut short when he was drafted during the Vietnam War, but he has not lost his appreciation for the discipline. My mother, a teacher by nature and profession, was my first writing instructor. She still helps me fix my grammar and also gives me expert classroom ­management tips. At the beginning of the pandemic, my brother-in-law drove down from San Francisco thinking he’d stay just until things calmed down. Lucky for us, he stayed most of the year and brought fun, laughter, and an insatiable appetite for delicious food that made cooking yet another meal enjoyable instead of burdensome. Luckier still, he loved the area so much he moved in just down the road. My own brother and I became adults together in the Bay Area, and now that he’s moved closer as well, we can once again eat dinner, watch Warriors games, and celebrate the big moments together. My grandmother did not live to see the completion of this book – or the dissertation on which it is based – but she has inspired me in so many ways. She was a social worker who ran a postwar maternity

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home in Los Angeles for decades, and in her later years was more than happy to share the stories about “her girls.” I did my first oral history with her, and in that sense, she became one of my teachers. Her stories did not match what I read in the secondary literature. But more than that, her love and support was and is limitless and eternal. The family that lives farther afield has been just as supportive. I feel like I have homes on the east coast whenever I need one – in Boston, New York, and Washington DC. Those in DC became family just as I began turning the dissertation into the book. But for as long as I’ve known them, they have been instrumental in making my work possible. They let me use their home as a launching pad for nearly all my research trips and talked through many of the writing challenges I faced. My father-in-law has read article proofs and chapter drafts with a keen eye, and pulled no punches when I’ve missed the argumentative mark. To have found that kind of intellectual camaraderie is a gift I cherish. The apple didn’t fall far from the tree. My partner Chris reads ­everything I write, usually multiple times. A historian himself (of ­medieval Japan), he reads with the most critical eye of ­anyone I know. He spends hours with drafts, looking for weaknesses that might ­undermine the central claims. He has no trouble telling me that I’ve buried the lede, need more evidence for something, or have held back too much. He pushes me to be bolder and stronger in my work, and then takes notes as we talk through how to make the ­argument ­stronger, the prose more precise, and the narrative arc more ­compelling. He makes sure the household duties are done while I return to the draft, reinvigorated by his comments. I can’t imagine a better or more caring partner. We have built a home full of humor, mutual respect, intellectual engagement, and love most of all. (And also cats, who now outnumber us.) The joy in our lives is because of him. Finally, writing about the failure of abolition as social movements like Black Lives Matter emerged and unrest grew (especially after the brutal murder of George Floyd) has been somewhat surreal. It became increasingly important – essential, really – for me to learn from those for whom abolitionist activism is a way of life. I hope that in some small way, this book contributes to the intellectual and scholarly ­currents that shape the modern liberation struggle.

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Introduction An Abolitionist Vision

James Govan Taliaferro (1798–1876) was an unlikely and unconventional abolitionist. A southerner by birth, he grew cotton and raised livestock on a plantation in Catahoula Parish, Louisiana – a rural “backwater” district west of Natchez, Mississippi. The forced labor of twenty-seven enslaved people made the plantation profitable, and they comprised a significant portion of Taliaferro’s wealth. In the 1840s, he was an ardent Whig – a party of nationalist entrepreneurs and businessmen, professionals, and evangelical reformers – and he detested “lawlessness, violence, and demagoguery.” The Whig Party collapsed in the 1850s, but Taliaferro remained a staunch nationalist. When eleven states voted to secede from the United States after the election of Abraham Lincoln in 1860, he called their Confederate States of America a “wretched oligarchy.”1

1

Peyton McCrary, Abraham Lincoln and Reconstruction: The Louisiana Experiment (Princeton: Princeton University Press, 1978), 59–60; Evelyn L. Wilson, “Louisiana Supreme Court Justices: Profiles of Three Reconstruction-Era Justices,” Louisiana Bar Journal 61, no. 2 (September 2013): 100; Wynona Gillmore Mills, “James Govan Taliaferro (1798–1876): Louisiana Unionist and Scalawag” (MA thesis, Louisiana State University, 1968), 43; Kenneth Michael Stickney, “Silenced: The Abrupt Demise of Catahoula Parish’s Unionist Newspaper” (MA thesis, University of Louisiana Monroe, 2007), 33, 114, 115–16; Charles Gayarre, ed., “In Memoriam: James G. Taliaferro,” in Reports of Cases Argued and Determined in the Supreme Court of Louisiana, vol. 28 (New Orleans: F.F. Hansell, 1877); Daniel Walker Howe, What Hath God Wrought: The Transformation of America, 1815–1848 (New York: Oxford University Press, 2007), 583.

1

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Taliaferro’s longstanding commitment to the Union eventually led him to take an active role in Reconstruction after the bloody Civil War (1861–1865) had upended his home state. At war’s end, Taliaferro opposed the Thirteenth Amendment that prohibited enslavement and ran an unsuccessful campaign for governor of Louisiana on a platform against Black suffrage. The New Orleans Riots of 1866, however, convinced him that Louisiana was on a disastrous path backwards into barbarism, a sort of status quo antebellum with ex-Confederates in charge of the state.2 Soon, Taliaferro was given an opportunity to help steer Louisiana toward a more modern and forward-looking approach. In 1867, he was appointed to the Louisiana Supreme Court as a newly minted Conservative Republican. As a judge, Taliaferro left an enduring mark. He sought to thoroughly overturn the legal rules that had supported slavery. Taliaferro ultimately understood the end of slavery as a two-step process. He believed that the Emancipation Proclamation of 1863 and the Thirteenth Amendment of the U.S. Constitution, ratified in 1865, expressed “the will of the sovereign power.” They eradicated ­slavery – root and stem. “The laws which had theretofore sustained the ­institution of slavery,” he declared, “ceased to exist.”3 But Taliaferro came to realize that this was only the first step. Emancipation had destroyed the property relationship between slaveholders and those held in bondage, but it had not fully abolished slavery. The Fourteenth and Fifteenth Amendments, adopted in 1868 and 1870, respectively, took the next steps: They destroyed the remnants of slavery by granting equal legal rights and Black suffrage.4 Moving forward, citizenship would be crucial for protecting and incorporating Black people into American ­society.5 Together, Taliaferro maintained, the Reconstruction Amendments required the total demolition of slavery and laid the foundation for the construction of equal citizenship. This two-step conception, which paired the destruction of slavery with the construction of full legal rights, guided Taliaferro’s work until his death in 1876. 2

3 4 5

Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877 (New York: HarperCollins, 1988), 262–64; Philip D. Uzee, “The Beginnings of the Louisiana Republican Party,” Louisiana History 12, no. 3 (Summer 1971): 197–211. Wainwright v. Bridges 19 La. Ann. 234 (1867), 238–39. Fifteenth Amendment questions were not raised in the cases under consideration here. W. E. B. Du Bois, Black Reconstruction (New York: The Free Press, 1935), 182.

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Other judges shared Taliaferro’s view. Thomas Peters had also owned enslaved people before the Civil War. Peters was elected to the Alabama Supreme Court in 1868 as a Republican, and had served in the state’s constitutional convention.6 Judge Henry Clay Caldwell grew up on the frontier, in what is now West Virginia, where he developed a “homespun populist philosophy and extreme sense of judicial fairness.” Union military service led Caldwell to Arkansas, where he remained after Lincoln appointed him to the federal bench. He was known thereafter as a “die-hard Republican.”7 Mississippi justice Jonathan Tarbell was one of the few northerners to serve postbellum on a southern bench.8 A native New Yorker, he had served as a brigadier general in the Union Army and worked with the reconstruction committee of Mississippi after moving to the state and becoming a planter in 1865.9 His appointment to the Mississippi Supreme Court stirred controversy. Though he opposed the policies of congressional Radicals, he still reportedly ran a “loyal league” – a pro-Union interracial club – in the state.10 A Democratic newspaper accused the moderate Republican “carpetbagger” of being a “briefless pettifogger.” In a letter to Massachusetts representative George Boutwell, Tarbell described the outcry: His “county paper” encouraged residents to “catch” him and “give him a coat of feathers.”11 Despite the threats, Tarbell stayed on the bench and advocated for Black rights until 1880. 6

Alabama Department of Archives and History, “Alabama’s Supreme Court Chief ­Justices: Thomas M. Peters,” May 7, 2010, www.archives.alabama.gov/judicial/ peters.html. 7 Richard S. Arnold and George C. Freeman III, “Judge Henry Clay Caldwell,” University of Arkansas at Little Rock Law Review 23, no. 2 (2001): 317, 320, 324; American Council of Learned Societies, Dictionary of American Biography, ed. Allen Johnson, vol. 2 (New York: Scribner, 1929), 408. 8 Though certainly not the only native northerner to serve as a judge in a southern court, most judges, even during Military Reconstruction, hailed from slave states. 9 William Arba Ellis, ed., Norwich University 1819–1911: Her History, Her Graduates, Her Roll of Honor, vol. 2 (Montpelier, VT: The Capital City Press, 1911), 303–4; William C. Harris, “The Creed of the Carpetbaggers: The Case of Mississippi,” The Journal of Southern History 40, no. 2 (May 1974): 206. 10 Harris, “The Creed of the Carpetbaggers: The Case of Mississippi,” 206–7; Franklin L. Riley, ed., Publications of the Mississippi Historical Society, vol. XIII (Oxford, MS: Mississippi Historical Society, 1913), 117. On loyal leagues, see Michael W. Fitzgerald, The Union League Movement in the Deep South: Politics and Agricultural Change during Reconstruction (Baton Rouge: Louisiana State University Press, 1989). 11 Forrest Cooper, “Reconstruction in Scott County,” in Publications of the Mississippi Historical Society, ed. Franklin L. Riley, vol. XIII (Oxford: University of Mississippi, 1913), 116–18.

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The unappreciated novelty of the abolitionism expressed by Taliaferro and like-minded judges is its emphasis on the rules of private law (involving disputes between individuals), rather than (or only) on suffrage or national politics. Private legal rules – including those governing contracts, marriage, inheritance, property, and other personal relationships – had all accommodated slavery in significant ways. Even after the end of enslavement, private law doctrines and precedent thwarted freedpeople’s incorporation into society. These judicial abolitionists aimed to eliminate slavery’s continued influence on that law so that freedpeople could fully enjoy newly granted rights. To that end, Taliaferro held that judges should not enforce ­antebellum contracts for the sale of enslaved people, which were remnants of slavery itself. Likewise, he urged his colleagues to ­ interpret the new legal rights of freedpeople retroactively. For ­ ­example, Taliaferro upheld a freedman’s right to inherit from his father, despite the fact that his enslaved parents’ inability to marry rendered him illegitimate. Recognizing such relationships would ­ ensure that f­ ormerly enslaved people enjoyed private law p ­ rotections equal to those accorded to f­reeborn Americans. In this way, ­abolitionist judges worked to s­upport and advance the promises of liberty and ­liberation by recognizing the rights of citizens established in ­postbellum ­constitutional ­amendments and civil rights statutes. Their decisions, Taliaferro believed, would build the legal scaffolding necessary to ensure ­slavery’s total ­annihilation and the inclusion of freedpeople into American society as full and equal members. Nothing More than Freedom recovers their work, revealing a road not taken. With few exceptions, these judges were not products of northern Republican politics. Nor were they necessarily moved by any moral imperative against slavery, as Black and radical abolitionists had been before and after the war. Indeed, many antislavery judges – including Taliaferro – may very well have continued to own enslaved people had it not been for the ratification of the Thirteenth Amendment, and many did continue to harbor the common racist beliefs of their day. Instead, theirs was a peculiar abolitionism that was homegrown and unique. These judges were motivated by a firm commitment to the rule of law, and, specifically, to the Constitution as it had become, not as it was. After the mighty scourge of civil war, they saw the amelioration of proslavery doctrines that shaped everyday life as a fundamental

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requirement of the Reconstruction Amendments, and they believed adherence to their provisions offered the only peaceful path to reconstructing southern life and law. But unlike many others – even Radicals in Congress – these judges understood that slavery’s vestiges and freedpeople’s rights were often addressed in the realm of private law and in spaces of private power. They were right, and they believed they were obligated to eradicate these residues. Taliaferro and other post–Civil War abolitionist judges failed to realize their vision. Bondspeople had been freed, but not liberated. If they had succeeded, U.S. history might look very different. The harm inflicted on freedpeople, including illegal bondage, invalidations of family relationships, and loss of property, would have been minimized. And the suffering of their descendants, including the denial of wealth, exploitation of heirs’ property, and proscriptions on marriage would not necessarily have become hallmarks of Black life. Abolition, in this sense, was a lost promise. But it is crucial to tell this story, both for its immediate impact and because our understanding of Reconstruction and the onset of Jim Crow is incomplete without engaging with this legal history. Most important, by recovering the peculiar abolitionism of post–Civil War judges, we gain a much fuller account of the long and complex history of systemic racism. Abolition was (and still is) a process that is distinct from and takes place after the moment of emancipation. Abolition after the Civil War would have required legal change on a massive scale: the identification and eradication of slavery’s vestiges in law and the creation and consistent maintenance of equal citizenship without regard to race or former status. Individual acts of manumission had occurred throughout America’s slave past, but neither these acts nor gradual emancipation regimes adopted in northern states ever challenged the racialized assumptions or threatened the structures that undergirded the peculiar institution. After the Civil War, however, the Thirteenth Amendment partly opened the door, by (at least) prohibiting the practice of slavery.12 The Fourteenth and Fifteenth Amendments provided a clear path to 12

Especially during the first years of Reconstruction, some believed the Thirteenth Amendment secured citizenship. See, e.g., United States v. Rhodes 27 F. Cas. 785 (No. 16,151) C.C. Ky. (1866).

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equal citizenship. Reflecting on that promise some seventy years later, W. E. B. Du Bois captured the essence of the post-emancipation abolitionist project: “The abolition of slavery meant not simply abolition of legal ownership of the slave; it meant the uplift of slaves and their eventual incorporation into the body civil, politic, and social, of the United States.”13 From their different vantage points, Du Bois and antislavery judges agreed that abolition required the remaking of law and society in ways that dismantled slavery and allowed freedpeople both to shed the markers of their previous enslavement and assume the status of legal equality in all its dimensions. Abolition rested on a deeper, more complete understanding of the liberty guaranteed by the Reconstruction Amendments. This book builds on and qualifies Du Bois’ definition of abolition as it examines postwar jurisprudence. Antislavery judges did not inherit the same intellectual traditions or share the same ideologies or motivations as Du Bois, but their jurisprudence aligned with and defended abolitionism according to the terms DuBois defined decades later. Regardless of motivations, the acceptance of these judicial views would have facilitated Du Bois’ ultimate goal for total political equality and social “uplift.” Unlike Du Bois and others, however, these judges recognized that in quotidian and various ways, law disadvantaged freedpeople and distinguished them from those who had been born free. And as long as disadvantages and inequities based on former enslavement remained, they would continue to resonate in American jurisprudence. The small and frequent encounters that generated legal disputes, it turns out, were every bit as important as the more dramatic and violent oppression that unfolded at the hands of the Ku Klux Klan and other vigilantes, the blatant disenfranchisement produced by Jim Crow laws, and debates over racial integration in national politics. But these smaller, private legal matters have remained just beyond our gaze. The lawsuits and decisions studied here illustrate the many ways that the legal system profoundly affected everyday life. Despite 13

Du Bois, Black Reconstruction, 189. On the preceding page, Du Bois was equally blunt: “Slavery was not abolished even after the Thirteenth Amendment. There were four million freedmen and most of them on the same plantation, doing the same work that they did before emancipation, except as their work had been interrupted and changed by the upheaval of war.”

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the best efforts of abolitionist judges, the ordinary disputes and the legal doctrines that judges used to resolve them helped to perpetuate race-based oppression after emancipation. Adherence to antebellum contract doctrines, for example, limited the power of the Thirteenth Amendment. Similarly, litigation related to racially heterodox families became the model for limiting Black civil rights. The failure of abolition in the nineteenth century ensured that racial inequality would remain endemic in American life and law. As a result, abolition theory has gained new traction in recent decades. Heeding Du Bois’ call, the important work and theorizing of activists dedicated to abolition – including Angela Davis and Ruth Wilson Gilmore, and social movements such as Critical Resistance and Black Lives Matter – have renewed calls for “abolition democracy.” They target “all systems of domination, exploitation, and oppression” in the name of abolition. They demand new measures to address the needs of those still ensnared by race-based inequality. In particular, they argue that the criminal justice system, which disproportionately polices, arrests, convicts, incarcerates, and executes people of color, is derived from the same racism and racist policies that supported slavery. Above all, they seek to demolish all manifestations of slavery and build just institutions to serve those who experience subjugation and race-based oppression.14 14

Angela Y. Davis, Abolition Democracy: Beyond Empire, Prisons, and Torture (New York: Seven Stories Press, 2005), 93. Modern abolitionists identify prisons and the carceral state as particular sites of racial subjugation. They also target the inequities of racial capitalism, white supremacy, and patriarchy. “Manifesto for Abolition,” Abolition: A Journal of Insurgent Politics, accessed August 27, 2020, https:// abolitionjournal.org/frontpage/; Dylan Rodríguez, “Abolition as Praxis of Human Being: A Foreword,” Harvard Law Review 132, no. 6 (2019): 1581, 1612; Patrisse Cullors, “Abolition and Reparations: Histories of Resistance, Transformative Justice, and Accountability,” Harvard Law Review 132, no. 6 (April 2019): 1684–94. See also Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New Press, 2010); Amna A. Akbar, “Toward a Radical Imagination of Law,” New York University Law Review 93, no. 3 (2018): 405–79; Joy James, The New Abolitionists: (Neo)Slave Narratives and Contemporary Prison Writings (Albany: State University Press of New York, 2005); Elizabeth Hinton, From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America (Cambridge, MA: Harvard University Press, 2016); Ruth Wilson Gilmore, Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California (Berkeley: University of California Press, 2007); The CR10 Publications Collective, Abolition Now! (Oakland, CA: AK Press, 2008).

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Nothing More than Freedom

These are laudable goals. But like Du Bois, today’s abolitionists underestimate the breadth of the problem. They overlook critically important areas of private law, which perpetuate less obvious forms of racial subjugation. To “challenge the historical conditions” derived from human bondage and eradicate the “oppressive forms of state and cultural violence” used to maintain them, we must understand at a more granular level how and where slavery’s remnants have endured, so long after emancipation.15 This book draws attention to the contingencies for abolition during Reconstruction; explores the unappreciated ways that private law interacted with constitutional interpretation to frustrate it; and, in the process, offers a new explanation for why the promises of Reconstruction have yet to be fulfilled and abolition remains incomplete. Twenty-first-century abolitionists must add to their important challenges the carceral state and criminal justice system, and deepen their analysis of the ways that political and economic inequities became pervasive within – and even constitutive of – American law and society.16 Judicial decisions in Reconstruction-era private litigation – often between parties who were white – expose an overlooked site of state action that facilitated the institutionalization of race-based difference and anti-Blackness in American law, and then sustained the creation of new forms of racial subjugation. The fundamental tenets of those rulings, which circumscribed Black citizenship, tied whiteness to economic privilege, and restricted civil rights statutes, remain embedded in American jurisprudence. Nothing More than Freedom examines everyday legal disputes to show how and where aspects of slavery survived emancipation. Between December 1865 – when the Thirteenth Amendment became part of the U.S. Constitution – and the formal end of Reconstruction in 1877, supreme courts in former slave states (states where slavery remained legal at the outbreak of the Civil War) decided some 15 16

Dylan Rodríguez, “Abolition as Praxis of Human Being: A Foreword,” Harvard Law Review 132, no. 6 (2019): 1581, 1612. Scholars in other fields, critical race theorists in particular, have been addressing the institutionalization of racism in the United States more fully. They have emphasized the way otherwise colorblind policies, such as housing policies and zoning practices, perpetuate racial inequality and shaped experiences of nonwhite people in legal settings.

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Introduction: An Abolitionist Vision

9

700 cases related to slavery or the meaning of Black freedom.17 The  records of these lawsuits comprise an archive that traces the cautious beginnings and then lost promise of abolition in southern courts.18 All involve attempts to define the meaning of freedom, and many reflect Black litigants’ historical willingness to use the courts to secure freedom and civil rights. Most were private law matters, including contracts; family; estates; property; and, on occasion, labor. The select criminal lawsuits included in this study explicate issues raised in private litigation (especially about family, labor, and civil rights), and vice versa. Indeed, our understanding of many postbellum crimes that historians have long interpreted, including those related to “miscegenation” and adultery and fornication, remain incomplete without this broader contextualization. These criminal suits intersect with and were constitutive of judicial conversations that took place in private law suits. All were crucial to daily life for freedpeople and could have supported a new definition of American liberty in the aftermath of the Civil War. Litigation initiated by or about freedpeople set the terms for private law and Black citizenship in the New South.19 17

18

19

Reconstruction as a congressional policy ended in 1877. Other scholars identify different end dates to the era. See, e.g., Laura F. Edwards, A Legal History of the Civil War and Reconstruction, (New York: Cambridge University Press, 2015); Pamela Brandwein, Rethinking the Judicial Settlement of Reconstruction (New York: Cambridge University Press, 2011); Douglas R. Egerton, The Wars of Reconstruction (New York: Bloomsbury Press, 2014). This study relies on a database of cases compiled by the author. It includes all reported suits related to slavery heard by the supreme courts of states in which slavery was legal in 1861 (Confederate and border states). It also includes unreported cases found in archives. Focusing on appellate cases has benefits and drawbacks. Using records from appellate courts revealed the most important legal questions of the day that were heard in courts across the South. Rulings in such cases ultimately identified the ways that abolition would be circumscribed. Admittedly, however, cases that were not appealed could reveal much about the people of the post-emancipation South. Extant appellate court records often do not include materials from lower courts. Orders and petitions (sometimes preprinted forms filled in by a court reporter) remain, but depositions are scarce. Some historical voices, especially those of freedpeople who left few other records, were muffled or refracted through lawyers and judges. (Exceptionally, records from Louisiana include a great deal more than other state records. For example, they include the poignant words of mothers seeking legitimacy for their children as well as the angry complaints of those who had gambled on the slave economy and lost.)

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The chapters that follow address the central questions raised in these cases. Some, including the next chapter, focus primarily on the effects of the Thirteenth Amendment on private law, while others assess ­ judicial interpretations of the Fourteenth Amendment and federal civil rights statutes.20 All analyze the ways decisions in post-­emancipation cases inflicted lasting harm. In some instances, that harm was direct, affecting individuals and their family ­members – including descendants. In others, it was indirect, but nevertheless potent. Though more difficult to appreciate, some decisions, and the legal doctrines on which they were based, left elements of slavery and racism embedded in law and jurisprudence in subtle but dangerous ways. Whether the outcomes were felt mostly individually or festered more broadly, the vestiges of slavery shaped postbellum law and dashed prospects for abolition. These cases are also a window onto the struggles faced by newly emancipated people and former slaveholders. Litigants recognized that judicial rulings could shape their lives; for example, a white ­family might lose the farm if debts owed for the purchase of slaves were not forgiven, a formerly enslaved Black child could inherit from his father, or a former slaveholder could marry the woman once ­considered his concubine. These particular suits reveal the stakes in law for those who emerged from the rubble of war. Had the law followed the path that Taliaferro hoped it would, the process of abolition might have begun on solid legal footing. Instead, this book tells the story of how judges’ rulings in private law undermined racial equality and reinscribed the vestiges of involuntary servitude. It begins with one of the most complex legal questions raised in state courts: whether contracts for the sale or hire of enslaved people retained their validity and enforceability after the Civil War. In these quieter corners of the legal system, slavery survived in legal doctrine and fatally compromised abolition.

20

The Fifteenth Amendment, which granted suffrage to formerly enslaved men, did not become the focus of any of the litigation considered in this book.

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1 The Contract Controversy

In Wainwright v. Bridges, the judges of the Louisiana Supreme Court evaluated a complicated agreement made in 1860 for the purchase of enslaved people. In 1867, the court, led by Justice James Taliaferro, refused to enforce the outstanding debts, holding that the end of slavery not only freed enslaved people from bondage but also destroyed the legal support required to enforce any agreement related to slavery. Taliaferro proclaimed in his opinion, “the unavoidable result [of emancipation] was, that the laws which had therefore sustained the institution of slavery and given their sanction to and enforced contracts … ceased to exist.” The U.S. Constitution’s contract clause, which otherwise prohibited the impairment of such agreements, did not apply because the “declaration of emancipation” had superseded it when it “inevitably demolished [slavery], and with it all its surroundings.” Emancipation, enacted by the “sovereign power, the paramount law” prohibited “the traffic in slaves,” and “necessarily involves the entire contract, and annuls it throughout.”1 The ruling set an important standard that abolitionist judges followed throughout Reconstruction. Contracts – the legal device that scaffolded the slave economy  – factor into a plurality of post-emancipation litigation related to slavery. At least 41 percent involved a contract for the sale or hire of

1

Wainwright v. Bridges 19 La. Ann. 234 (1867), 239.

11

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Nothing More than Freedom

at least one enslaved person.2 People who owed money claimed that emancipation had nullified their agreements, and refused to pay their creditors. Plaintiffs, on the other hand, insisted on enforcement. Strict performance (enforcing the precise terms of the contract as written) was out of the question because the Constitution now prohibited slave ownership, but plaintiffs sought to recover the debts owed to them. As Texas court reporter George W. Paschal wrote in his h ­ eadnotes to one such contract case, “It is but just to remark, that when the opinion in this case was delivered, the country was in a great state of uncertainty as to what would be finally settled as to the great events of the revolution; hence questions involving contracts of the kind were not decided, unless they were forced upon the court.” A steady stream of litigants prompted a discussion about the judiciary’s role in eradicating slavery, maintaining legal traditions, and defining the Thirteenth Amendment.3 A deeply contentious judicial debate over the enforcement of contracts for the sale or hire of enslaved people erupted as one of legal Reconstruction’s central battles. This chapter explains the doctrinal approaches favored by judges, analyzes their underlying legal rationales, and explores the consequences of choosing one rationale over the others. It argues that a fundamental disagreement about the meaning of the Thirteenth Amendment caused the judicial discord. In retrospect, this debate among judges amounts to an early scene in a much longer story. Lawmakers, scholars, and activists have argued over the original meaning and intent of the Thirteenth Amendment since its inception.4 In part, this stems from the imprecision of the amendment itself, which has allowed for a range of interpretations and was even designed with that intention. As historian Michael Vorenberg writes, even in 1865, those in favor of the amendment’s 2 3

4

This figure is based on the author’s database of cases. Forty-one percent is a conservative estimate. It does not necessarily include the suits in which a contract may have formed one part of a much larger, more complex, legal proceeding. Williams v. Arnis 30 Tex. 37 (1867); George W. Paschal, Reports of Cases Argued and Decided in the Supreme Court of the State of Texas, vol. XXX (Washington DC: W. H. & O. H. Morrison, 1870), 45. Antebellum abolitionists also disagreed about the Constitution’s position on slavery. Some, including Lysander Spooner and Salmon P. Chase, saw slavery as a perversion of constitutional guarantees, while followers of William Lloyd Garrison viewed the document as a proslavery “covenant with death.”

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The Contract Controversy

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ratification “had diverse, competing motivations as well as disparate notions about freedom, many of which were not fully formed, or for political purposes, not explicitly stated. And even before the amendment had been approved” many “had begun to reevaluate the measure in new social, political, and legal contexts.”5 For some, including modern activists, the amendment’s clause banning slavery “except as a punishment of crime whereof the party shall have been duly convicted,” has undercut its promise of abolition. Instead, it reinscribed “slavery by another name” within a carceral system controlled by the state.6 Some believe the punishment clause was intentionally included to ensure precisely this outcome, although legal historians note the text of the clause derived

5 6

Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment (New York: Cambridge University Press, 2001), 237. In the postbellum South, this re-enslavement emerged in the form of chain gangs, convict leasing, and extra-legal lynching – which often included the performance of a mock trial to grant legitimacy to vigilantism and murder. In 1997, Critical Resistance identified the “prison industrial complex” as slavery’s modern iteration. Thirteenth Amendment § 1. Douglas A. Blackmon, Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II (New York: Anchor Books, 2008). See also David M. Oshinsky, Worse than Slavery: Parchman Farm and the Ordeal of Jim Crow Justice (New York: Free Press, 1996); Alex Lichtenstein, Twice the Work of Free Labor: The Political Economy of Convict Labor in the New South (New York: Verso, 1996); Matthew J. Mancini, One Dies, Get Another: Convict Leasing in the American South, 1866–1928 (Columbia: University of South Carolina Press, 1996); Sally E. Hadden, Slave Patrols: Law and Violence in Virginia and the Carolinas (Cambridge, MA: Harvard University Press, 2003); Dennis Childs, Slaves of the State: Black Incarceration from the Chain Gang to the Penitentiary (Minneapolis: University of Minnesota Press, 2015); Sarah Haley, No Mercy Here: Gender, Punishment, and the Making of Jim Crow Modernity (Chapel Hill: University of North Carolina Press, 2016); Talitha LeFlouria, Chained in Silence: Black Women and Convict Labor in the New South (Chapel Hill: University of North Carolina Press, 2016); Jeff Forret, Williams’ Gang: A Notorious Slave Trader and His Cargo of Black Convicts (New York: Cambridge University Press, 2020); Kidada E. Williams, They Left Great Marks on Me: African American Testimonies of Racial Violence from Emancipation to World War I (New York: New York University Press, 2012); Ida B. Wells-Barnett, The Red Record: Tabulated Statistics and Alleged Causes of Lynching in the United States, 1895, www.gutenberg .org/files/14977/14977-h/14977-h.htm. Slavery has also been imagined as a carceral institution and experience, marked by subjugation, violence, and inequality. See, e.g., Stanley Elkins, Slavery: A Problem in American Institutional and Intellectual Life (Chicago: University of Chicago Press, 1959); Walter Johnson, River of Dark Dreams: Slavery and Empire in the Cotton Kingdom (Cambridge: Belknap Press, 2013), chap. 8 especially.

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Nothing More than Freedom

from the Northwest Ordinance in 1789.7 Other scholars have emphasized the abolitionist origins of the Thirteenth Amendment, and stress its capacious – if unrealized – authority to demolish every facet of slavery. Legal scholar Alexander Tsesis argues that “the framers of the Thirteenth Amendment adopted abolitionist ideas on the universality of fundamental rights and made them constitutionally viable.”8 Civil rights, according to this reading, need not depend on the Fourteenth Amendment or federal statutes (e.g., the Civil Rights Act of 1866) because the Thirteenth Amendment had that potential all along (and perhaps more powerfully than the Fourteenth Amendment because it has no constricting state action requirement).9 For scholars like Tsesis, recovering the abolitionist roots of the Thirteenth Amendment reinforces what Dorothy Roberts calls “abolition constitutionalism”  – a reconsideration of the Reconstruction Amendments for use in present-day legal campaigns against inequality and subjugation.10

7

Dorothy E. Roberts, “Abolition Constitutionalism,” Harvard Law Review 133, no. 1 (2019): 67, 67n396. On the punishment clause and the Northwest Ordinance, see especially, George Rutherglen, “State Action, Private Action, and the Thirteenth Amendment,” Virginia Law Review 94, no. 6 (2008): 1371–74. The Missouri Compromise also contained the same language. 8 Alexander Tsesis, “A Civil Rights Approach: Achieving Revolutionary Abolitionism through the Thirteenth Amendment,” University of California-Davis Law Review 39 (2006): 1800. 9 Ibid., 1776; Robert J. Kaczorowski, “To Begin the Nation Anew: Congress, Citizenship, and Civil Rights after the Civil War,” The American Historical Review 92, no. 1 (1987): 48. 10 Roberts, “Abolition Constitutionalism”; Alexander Tsesis, The Thirteenth Amendment and American Freedom (New York: New York University Press, 2004); Michael Vorenberg, “Imagining a Different Reconstruction Constitution,” Civil War History 51, no. 4 (December 2005): 416–26; William M. Wiecek, The Sources of Anti-Slavery Constitutionalism in America, 1760–1848 (Ithaca, NY: Cornell University Press, 1977); James Gray Pope, “Mass Incarceration, Convict Leasing, and the Thirteenth Amendment: A Revisionist Account,” New York University Law Review 94, no. 6 (2019): 1465–554; Jacobus TenBroek, Equal under Law (Originally Published as The Antislavery Origins of the Fourteenth Amendment (1951)) (London: Collier Books, 1965); Lea S. VanderVelde, “The Labor Vision of the Thirteenth Amendment,” University of Pennsylvania Law Review 138, no. 2 (December 1989): 437–504; George Rutherglen, “The Badges and Incidents of Slavery and the Power of Congress to Enforce the Thirteenth Amendment,” in The Promises of Liberty: The History and Contemporary Relevance of the Thirteenth Amendment, ed. Alexander Tsesis (New York: Columbia University Press, 2010).

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The Contract Controversy

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But nowhere in these discussions have scholars or activists recognized that almost immediately after its ratification, debates over the enforcement of contracts tied to slavery began to restrict any abolitionist potential in the Thirteenth Amendment. Similarly, they have overlooked how judicial deliberations in such cases echo the exact terms of ongoing debates today about the amendment’s utility: Some contend that the amendment lacks the power to fully abolish slavery or disrupt racial ideologies while others herald its expansive, if unrealized, capability to deliver transformational racial justice. Judges serving on postbellum tribunals fully appreciated the stakes of each position and understood that their rulings would help determine how significantly the Thirteenth Amendment would transform the American legal order. Those who favored contract enforcement saw these cases as matters of established commercial law doctrine (law related to business and trade, including contracts) and they treated them like any other contract. They did not view the agreements’ connection to slavery as disqualifying. As long as the contract accorded with the laws in effect when it was executed, it remained valid. Ruling otherwise, many reasoned, would violate the contract clause (Article 1, section 10) of the U.S. Constitution, which prohibited “impairing the obligation of contracts,” and violated the longstanding jurisprudence on the sanctity of contracts that had developed during the antebellum decades.11 Detractors insisted the agreements’ ties to slavery rendered them unenforceable by the new Thirteenth Amendment. Abolitionist judges, including Taliaferro, agreed with Radical politicians and Black delegates to state constitutional conventions that the issue was never about contract doctrine at all. Instead, it was about the abolition of property rights in people and the restoration of the natural right of liberty. (Though not mentioned in U.S. litigation, Article 2 of the Haitian Constitution of 1816 invalidated all debts for persons held as slaves based on the same premise.12) Abolition required the 11

12

Andrew Kull, “The Enforceability after Emancipation of Debts Contracted for the Purchase of Slaves,” Chicago-Kent Law Review 70, no. 2 (1994): 493; Justin Simard, “Citing Slavery,” Stanford Law Review 72, no. 1 (January 2020): 93. U.S. Const. Art. I, §10. Ada Ferrer, Freedom’s Mirror: Cuba and Haiti in the Age of Revolution (New York: Cambridge University Press, 2014), 330.

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Nothing More than Freedom

total destruction of slavery. Enforcement of these contracts reified slavery by affirming the privilege of ownership of human chattel and the value assigned to their bodies as originally inscribed in the contracts. In other words, they reasoned that these contracts were the practical instrument of slavery, and as such had become as invalid as the system of enslavement itself. The abolitionist vision failed to gain sufficient judicial traction by the slimmest of margins. Many courts were deeply divided on the matter, and single votes, not unanimous benches, determined the result. Most postbellum courts narrowly deferred to settled legal principles and viewed contracts for slaves as divorced from slavery itself. That legal settlement had serious consequences for Reconstruction, and it gave otherwise unremarkable contract disputes, the likes of which would never be heard again, a significant role in post-emancipation life and law: It began a process of restricting the application of the Thirteenth Amendment to a limited subset of slavery’s incidents (the legal limitations or disabilities that stemmed from enslavement). This all but eliminated the possibilities for using the Amendment as a powerful tool to achieve comprehensive abolition.13 Even before the end of the Civil War, politicians foresaw the impending contract problem. As early as 1864, in the Maryland Constitutional Convention, delegate Daniel Clarke of Prince George’s County argued that emancipation without compensation constituted the illegal taking of property. More important, “there are many mortgages and bills of sale in this State where negroes are the sole security, upon the faith of which the contract was made.” The “general creditors, who looked

13

The “incidents of slavery” came to be defined as the “various disabilities imposed upon slaves” by abolitionist George M. Stroud in his 1856 treatise, A Sketch of the Laws Relating to Slavery in the Several States of the United States of America. In 1864, Harvard law professor Theophilius Parson also wrote of slavery’s incidents in The Law of Contracts. Rutherglen, “The Badges and Incidents of Slavery and the Power of Congress to Enforce the Thirteenth Amendment,” 164. A modern lawyer defines an “incident” of slavery as “an aspect of the law that was inherently tied to or that flowed directly from the institution of slavery – a legal restriction that applied to slaves qua slaves or a legal right that inhered in slaveowners qua slaveowners.” Jennifer Mason McAward, “Defining the Badges and Incidents of Slavery,” Journal of Constitutional Law 14, no. 3 (February 2012): 571.

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The Contract Controversy

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to the personal property – the negro property” of debtors “for payment of their claims,” would “find that it has all been destroyed.” He argued that failure to uphold these contract rights would violate the Constitution’s contract clause and lead to socioeconomic chaos.14 Joseph B. Pugh of Cecil County, in contrast, espoused an abolitionist position. He argued that as foundational and well protected as the rights to slave ownership or contract were, they necessarily had to defer to the universal right to liberty. Pugh reminded the delegation that “the system of negro slavery … is the prime cause of the civil war now raging” and that “a disturbance of commercial and financial relations” commonly accompanied such “upheavals.” Of Clarke, Pugh asked rhetorically, “did it occur to the gentlemen who traced this right” to private property “to the period of the origin of what are known as natural rights, that there are one or more other natural rights, such as freedom and the right to maintain it to the death?” Pugh urged his fellow delegates to consider “whether, in view of the troubles that surround us, the institution shall not be uprooted and every vestige of it buried, enshrouded in constitutional parchment, and sunken fathoms deep in the free soil of Maryland forever.” Abolition, he claimed, superseded enslavers’ property and contract rights. In the end, Maryland’s new constitution prohibited slavery, but it did not provide compensation or nullify contracts for enslaved people.15 During the first years of Reconstruction (1865–1867), similar disagreements continued to rage. But with the onset of Congressional Reconstruction in 1867, states considered the issue once again – this time at conventions convened at the behest of newly installed military governors, following the dictates of the Reconstruction Acts. Delegates who drafted these constitutions looked very different from their predecessors. They came from classes not previously welcomed in high politics, including African Americans and members of the yeomanry. Many construed nullifying contracts for enslaved people as part of a multifaceted program for debt relief, which included homestead exemptions that shielded land from seizure, stay laws that

14

15

W. M. Blair Lord and Henry M. Parkhurst, The Debates of the Constitutional Convention of the State of Maryland, vol. 1 (Annapolis: Richard P. Bayly, 1864), 650–51, 654. Ibid., 1:666.

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Nothing More than Freedom

gave debtors additional time to pay their loans, and the scaling of Confederate currency so the useless scrip could be exchanged into currency of value. Those who favored such provisions sought ways to transfer economic power out of the hands of the old planter class in order to create a more egalitarian society.16 Other delegates, including Northern abolitionist “carpetbaggers” and Black Americans, saw contract nullification in moral terms, tied to the proper role of government in a post-emancipation nation. Reiterating arguments made in the eighteenth century, they claimed that ownership of human beings had always violated natural law. Emancipation corrected that injustice. As Black South Carolina delegate Robert B. Elliott noted, “A few years ago, the popular verdict of this country was passed upon the slave seller and the slave buyer, and both were found guilty of the enormous crime of slavery.” That verdict had consequences. “The buyer of the slave received his sentence, which was the loss of the slave, and we are now to pass sentence upon the seller. We propose that he shall be punished by the loss of his money.”17 Antislavery advocates had long condemned the buying and selling of people, especially the heart-rending separation of families, as proof of the institution’s cruelty. Antebellum-era abolitionists, including Harriet Beecher Stowe with Uncle Tom’s Cabin, publicized such sales to sway ever more readers to the cause. Ending the enforcement of contracts for bondspeople continued this tradition in a new venue. While no post-emancipation action could undo the fact that Americans had traded in human chattel for generations, proponents argued that contract nullification did the work of abolition. Removing slavery fully from the system of capitalism it once undergirded would bring the nation into alignment with the laws of nature and civilization and live up to the ideals on which it was founded.

16

17

Kull, “The Enforceability after Emancipation of Debts Contracted for the Purchase of Slaves,” 496. On debt relief measures, see Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, 326–29. Debt relief measures will be explored further in the following chapters. J. Woodruff, ed., Proceedings of the Constitutional Convention of South Carolina (Charleston, SC: Denny & Perry, 1868), 227; Kull, “The Enforceability after Emancipation of Debts Contracted for the Purchase of Slaves,” 522; Ariela J. Gross, Double Character (Athens: University of Georgia Press, 2006), 154.

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The Contract Controversy

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They rejected claims that contract nullification violated the U.S. Constitution. Elliott suggested the state’s status allowed it to circumvent the problem. “If under the laws of the State these slave contracts were bona fide contracts, they are so no longer. Congress has declared that no legal government exists in this state.” Without that lawful government, he reasoned, the constitutional provision did not apply. Delegate Robert C. DeLarge added that “the United States Courts can take the matter in hand, But we will record our votes on behalf of freedom, liberty and justice.”18 Delegates from South Carolina articulated views on the more ­radical end of the political spectrum, but their debates were ­otherwise representative. The invalidation of contracts associated with ­slavery gained similar traction in constitutional conventions throughout the region. Mississippi, North Carolina, and Texas delegations e­ ntertained ­proposals that would have made the administration of such ­contracts illegal. More important, a majority of conventions – primarily from the deep South – agreed that the end of slavery had ­nullified ­agreements related to it. Arkansas, Florida, Georgia, Louisiana, and South Carolina included provisions in their constitutions that ­prohibited the enforcement of all such contracts, and Alabama’s ­convention accomplished the same by adopting an ordinance.19 In accordance with the Reconstruction Acts, Congress reviewed states’ new constitutions before they took effect. Some congressmen pointed to the constitutional problem of contract impairment, while others responded that contracts for enslaved people were unique – or at least had become so with the adoption of the Thirteenth Amendment. As Indiana senator Oliver Morton explained, “contracts of that kind are held … to stand upon a different obligation, a different footing morally, and perhaps legally from contracts of any other kind. Slave property was swept away; those owning slaves lost them; and it was

18 19

Woodruff, Proceedings of the Constitutional Convention of South Carolina, 226–27. On Black political leadership in Reconstruction-era South Carolina, see Thomas Holt, Black over White: Negro Political Leadership in South Carolina during Reconstruction (Champaign: University of Illinois Press, 1979). Kull, “The Enforceability after Emancipation of Debts Contracted for the Purchase of Slaves,” 496, 496n5; Joseph A. Ranney, In the Wake of Slavery (Westport: Praeger Publishers, 2006).

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perhaps just as proper that those owning choses in action [rights in property], debts, promissory notes, and bills of exchange given for slaves should lose them also.” South Carolina delegate Robert Elliott had expressed the same sentiment, and it carried the day. In 1868, Congress approved the constitutions from South Carolina, Louisiana, Georgia, and Alabama, leaving all the nullification provisions entirely intact. Just a year later, Charles Sumner, the Radical senator from Massachusetts, introduced legislation that would have similarly denied federal courts jurisdiction over slavery-related contract disputes, making their enforcement impossible. Though the proposed statute died in committee, it confirms the existence of some congressional support for a comprehensive form of abolition that would have extinguished any remaining contractual obligations for bondspeople.20 Suits about slavery-related contracts began to appear on dockets immediately after the war. In Kentucky, the Court of Appeals began hearing cases just days before the Thirteenth Amendment took effect. Justices there required payment for enslaved people, despite emancipation. During Presidential Reconstruction (1865–1867), every state but Louisiana required their enforcement on the basis that contracts, if valid when executed, could not be abridged. The state constitutions produced after the Reconstruction Acts took effect, however, required judicial reconsideration. Many of the resulting governing documents introduced contract nullification provisions. This introduced the possibility that cases heard after these provisions went into effect might have been judged according to different standards than those decided before. More important, they opened the door to a significant doctrinal intervention that would have shaped what it meant for slavery to end. Judges quickly shut that door. One by one, courts struck down contract nullification provisions in state constitutions. Only two states (Louisiana and Georgia) maintained them, and rulings there faced challenges in the U.S. Supreme Court. Just as opponents of nullification in conventions and Congress had warned, most judges

20

Cong. Globe. 40th Cong., 2d Sess. 2999, 3005 (June 10, 1868); Kull, “The Enforceability after Emancipation of Debts Contracted for the Purchase of Slaves,” 501, 538.

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agreed that the measures conflicted with the Constitution’s contract clause. The retroactivity of the provisions only made them worse. As the Arkansas court ruled, “Wherein our State Constitution declares a valid contract null and void, we decide it to that extent contrary to the Constitution of the United States, and not binding upon the courts and people of the state.” The contracts would be “judged by the laws existing when it was made.” Whatever their methods, the majority of judges ruled that states lacked the ability to impair contracts.21 Courts in states without constitutional bans on the enforcement of contracts for enslaved people also considered the issue, since litigants raised the matter throughout Reconstruction. Petitioners reasonably hoped that courts would change their original position in states where military governors had installed new courts – new judges, perhaps more sympathetic to the federal cause, might rule differently. Nevertheless, judges continued to explain why they enforced agreements for enslaved people in nearly identical terms. In 1872, for instance, the Supreme Court of Virginia declared that “It would be monstrous … to say that the destruction of the institution can impair or affect contracts made during the period of its legal and constitutional existence.” If contracts for slaves were lawful when made, then antebellum doctrine required that postbellum courts uphold them.22 Most American judges had for some time accepted a liberalized doctrine of contracts, believing “that the only basis of legal obligation” was the agreement of the parties who entered into it, rather than the “fairness of an exchange” or a sound price. The theory had become accepted doctrine by 1844, when William W. Story published A Treatise on the Law of Contracts. Judges applied the doctrine equally to commerce in enslaved people and the exchange of other goods, services, or property. Thus, when adjudicating post-emancipation claims, they deemed a contract’s connection to 21

22

The Arkansas and Florida courts were explicitly concerned with the “retrospective” nature of the provisions. Jacoway v. Denton 25 Ark. 625 (1869), 642, 647; McNealy v. Gregory 13 Fla. 440 (1869). See also Calhoun v. Calhoun 2 S.C. 283 (1870); McElvain v. Mudd 44 Ala. 48 (1870). Henderlite v. Thurman 63 Va. 466 (1872), 476–77. See also The Emancipation Proclamation Cases 31 Tex. 504 (1868); Williams v. Johnson 30 Md. 500 (1869).

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slavery as irrelevant. Invoking a classic formulation of caveat ­emptor, or let the buyer beware, judges held that financial loss from a contract was a foreseeable consequence of investing in any asset. While there has been some scholarly debate about whether antebellum southern courts fully accepted this approach, post-emancipation litigation shows clear deference to it – even in states that had accepted commercial protections for slave buyers (e.g., implied or explicit warranties) during the antebellum decades. As one legal scholar puts it, judges determined that “The legal foundation of the enforcement of a debt … was not the law of slavery, but the law of contracts.”23 The trend toward formalism also shaped legal decisions: During the nineteenth century, a “system of objective rules necessary to assure legal certainty and predictability” developed to help ensure market stability. A central part of this formalism was the antebellum iteration of the maxim lex loci contractus – contracts were governed by the law of the jurisdiction where they were made. By the same token, the laws in effect at the time of a contract’s execution were an inherent part of that contract. For example, in Bronson v. Kinzie, the U.S. Supreme Court declared in 1843 that states could not enact legislation that “materially” and retroactively impaired the contract rights of creditors, since existing laws at the time a contract was made “entered into the contract, and formed a part of it.”24 23

24

Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Cambridge, MA: Harvard University Press, 1979), 185, 200. Scholars have emphasized that no separate commercial law of slavery existed. Rather, “the general rules of private law could be easily adapted to support slave commerce.” Simard, “Citing Slavery,” 90; Andrew Fede, “Legal Protection for Slave Buyers in the U.S. South: A Caveat Concerning Caveat Emptor,” The American Journal of Legal History 31, no. 4 (1987): 322–58. More recently than Fede, scholars note more national agreement on commercial law principles. Justin Simard, “Slavery’s Legalism: Lawyers and the Commercial Routine of Slavery,” Law and History Review 37, no. 2 (2019): 571–603; Laura F. Edwards, The People and Their Peace (Chapel Hill: University of North Carolina Press, 2009); Timothy S. Huebner, The Southern Judicial Tradition: State Judges and Sectional Distinctiveness, 1790–1890 (Athens: University of Georgia Press, 1999). Kull, “The Enforceability after Emancipation of Debts Contracted for the Purchase of Slaves,” 541. Horwitz, The Transformation of American Law, 1780–1860, 201; James W. Ely Jr., The Contract Clause: A Constitutional History (Lawrence: University Press of Kansas, 2016), chap. 3. Determining what “materially” impaired contracts became a source of some controversy. On changing interpretations of contract in the late nineteenth century, see Roy Kreitner, Calculating Promises: The Emergence of Modern

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The antebellum opinion also emphasized the presence and purpose of the Constitution’s contract clause, on which postbellum judges would later rely. Chief Justice Roger Taney stressed that the framers intended “to maintain the integrity of contracts, and to secure their faithful execution throughout this Union.” Taney hoped that Bronson would prevent states from tampering with contract rights. In this way, the right to contract became entwined with notions of the public good: Individuals would engage in commercial activity only if they were certain the law would enforce the agreements they made, according to the terms on which they made them.25 As the national economy became ever more integrated, lawyers and judges developed legal rules that promoted market dynamism, ensured predictability, and minimized conflict. This market-driven approach to doctrine straddled the Mason– Dixon Line throughout the antebellum decades. Northern and southern lawyers shared a commitment to commerce, and ultimately nurtured a legal tradition that emphasized it. In practice, this meant that southern judges applied nationally recognized legal principles to matters related to slavery, and as Justin Simard writes, “integrated their slave economy into a national legal and financial system.”26 By doing so they strengthened slavery’s place within the nation by ensuring it was part of widely accepted legal structures. Because slave contracts were traditionally seen as only contracts, judges could (and did) elide the truth: Each transaction conveyed an enslaved human being, not just another piece of property.

25

26

American Contract Doctrine (Stanford, CA: Stanford University Press, 2007), 6. Kreitner writes, “Contract … is the private law of the parties to the contract: their obligations flow directly from the agreement, not merely in the sense that they have agreed to be bound, but also in that they have agreed on the specific terms that bind them. The parties, thus, are seen as making law for themselves.” Post-emancipation judges regularly justified contract enforcement because the parties had agreed to the terms. They emphasize what Kreitner calls the “centrality and calculability of the individual.” Bronson v. Kinzie 42 U.S. 311 (1843), 318–19. See also McCracken v. Hayward 43 U.S. 608 (1844); Blair v. Williams 14 Ky. 34 (1823); Commercial Bank of Natchez v. Chambers 16 Miss. 9 (1847). See also Harry N. Scheiber, “Economic Liberty and the Modern State,” in The State and Freedom of Contract (Stanford, CA: Stanford University Press, 1998). Simard, “Slavery’s Legalism: Lawyers and the Commercial Routine of Slavery,” 573–74, 588, 593.

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This unifying, national commercial culture informed judicial decisions in post-emancipation contract litigation. It helps explain why some northern justices installed on the benches of southern courts by military governors often agreed with their southern counterparts on the issue of contracts related to slavery. They believed that their nullification would undermine settled law that had proven merits at a time when the postbellum economy desperately needed stability. Jurists agreed that there was nothing specific to slavery in the rules to which they ascribed, and it made sense to apply them just as they had always done. Put bluntly, most judges in post-emancipation contract cases could not see or would not recognize the connection between contract doctrine and slavery. Courts in two states – Georgia and Louisiana – rejected the approach that invariably upheld contract doctrine, but for very different reasons. To sustain the state constitution’s ban on the enforcement of contracts for enslaved people, Georgia Supreme Court chief justice (and former Confederate governor of the state) Joseph E. Brown invoked the conquered province theory – a version of what came to be known simply as ab initio. The principle, originally put forth by Radicals in Congress, accepted that the entire Confederacy had become conquered territory upon its defeat, and that the states that had comprised it therefore ceased to exist. Echoing South Carolina delegate Robert Elliott, Brown contended that upon defeat, Georgia “was in the Union, in a territorial sense” only. It lost the constitutional rights of states, and per the Constitution’s directive on territories, fell under the governing control of Congress. Brown reasoned if the provision that banned the enforcement of contracts for enslaved people had in fact been contrary to law, then Congress would not have sanctioned the state’s new constitution. Even so, the argument Brown made in 1869 did not directly challenge contract doctrine; instead, it rested on his belief that states could and did secede, and that the Constitution thus did not apply to them unless and until they were reincorporated into the Union.27

27

“Ab initio” was the shorthand used for the different theories used to evaluate secession’s legality – whether secession was null and void ab initio (from the beginning) or whether states had left the Union and the protection of the Constitution. Shorter v. Cobb 39 Ga. 286 (1869), 288, 293. Prior to Brown’s ascension to the bench,

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Louisiana’s court, in contrast, embraced an abolitionist approach to contract enforcement. Taliaferro ruled in Wainwright that the “sovereign power” had destroyed slavery, which rescinded “the sanction of law and its authority to enforce” agreements related to it. When the “essential requisites to a perfect obligation ceased to exist, the contract ceased also.”28 Taliaferro’s opinion rested on the premise that slavery violated natural law. Typically, scholars point to Lord Mansfield’s 1772 ruling in the Somerset case as the legal precedent for this idea in the Anglo-American context.29 Because slavery contradicted the laws of nature, only the laws of man – positive law – could have sanctioned it. Many learned American jurists, including Joseph Story and Lemuel Shaw, upheld pro-slavery laws because they believed the Constitution sanctioned them, even though they personally abhorred the institution. Likewise, Taliaferro conceded that slavery had been “tolerated” in Louisiana “by the constitution of the United States,” but otherwise existed “accidental[ly].” The Thirteenth Amendment rescinded that support, destroying the entire institution.30

28 29

30

judges in Georgia had repeatedly affirmed the validity of contracts for the sale or hire of enslaved people. In one 1866 suit, Chief Justice Joseph Henry Lumpkin compelled payment on a contract for the sale of an enslaved man named Jack. Registering both his proslavery convictions and his evangelical leanings, Lumpkin held that emancipation was “a two-edged sword … like the flaming sword placed at the East of the garden of Eden, at Adam’s expulsion, turning every way towards the community.” Freedom for enslaved people may have spelled doom for the South, but deference to accepted doctrine demanded that agreements for their sale had to be enforced nonetheless. On Lumpkin’s belief in slavery as a God-ordained institution, see Huebner, The Southern Judicial Tradition: State Judges and Sectional Distinctiveness, 1790–1890, 87–88. Riley v. Martin 35 Ga. 136 (1866), 139. Ranney, In the Wake of Slavery, 22–23. Brown started his political career as a states’ rights Democrat who eventually argued for secession. He became a “scalawag” Republican during Reconstruction, but returned to his Democratic roots as the era ended. He was elected to the Senate in 1877 as a Democrat. Wainwright v. Bridges 19 La. Ann. 234 (1867), 239. Recently, Holly Brewer has argued that slavery did exist in England despite Somerset’s claim to the contrary. The case “attempted to overturn the common law of slavery in England itself” that had developed to include slavery over the course of the seventeenth and eighteenth centuries. Holly Brewer, “Creating a Common Law of Slavery for England and Its New World Empire,” Law and History Review 39, no. 4 (November 2021): 765–834. Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (New Haven, CT: Yale University Press, 1975). Wainwright v. Bridges, 19 La. Ann. 234 (1867), 237.

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Taliaferro and other abolitionists might have read Somerset differently, since the opinion distinguished between a contract for an enslaved person and the practice of slavery. Mansfield invoked lex loci contractus explicitly when he stated that a sale of a bondsperson remained “good here,” even where slavery had no positive legal support. (One could not hold a man in bondage in England, but one could enforce a contract for his sale in an English court.) Most American jurists had accepted Mansfield’s premise that any “sale is a matter to which the law properly and readily attaches, and will maintain the price according to the agreement.”31 Southern judiciaries and legal theorists had gone to great lengths to demonstrate that slavery did indeed derive from natural law.32 But Louisiana had a long history of declaring slavery’s violation of natural law, even as its antebellum legislature and court supported the institution’s legal existence. This view underlay the conclusion that upon freedom, formerly enslaved people acquired retroactive rights. The Louisiana court’s abolitionist decision not to enforce slave contracts, then, actually aligned with a much longer legal tradition unique to the state. It was not, as some scholars would have us believe, a view that retrospectively “denied the legality of slavery, even where slavery was recognized by positive law.” Rather, the ruling followed an established line in state law and jurisprudence.33 31

32

33

Somerset v. Stewart 98 ER 499 (1772), 509. Still, as Robert Cover notes, the Somerset ruling remained a “constant reminder to the judge who read it, of the disparity between slave law and the moral principles underlying a decent legal order.” As a consequence, the Confederate Constitution specifically repudiated the decision. Ibid., 87–88. Kull, “The Enforceability after Emancipation of Debts Contracted for the Purchase of Slaves,” 515. Thomas R. R. Cobb, An Inquiry into the Law of Negro Slavery (Philadelphia: T. & J.W. Johnson & Co., 1858); Alfred L. Brophy, University, Court, and Slave: Pro-Slavery Thought in Southern Colleges & Courts & the Coming of the Civil War (New York: Oxford University Press, 2016). In the 1830s, theorists focused on the constitutional right to property enshrined in both the federal and state constitutions as trends in jurisprudence shifted away from natural law in favor of positive law. By the late 1850s, Cobb had taken a different tack. See especially, Simon J. Gilhooley, The Antebellum Origins of the Modern Constitution: Slavery and the Spirit of the American Founding (New York: Cambridge University Press, 2020), chap. 4. Judith Kelleher Schafer, Slavery, the Civil Law, and the Supreme Court of Louisiana (Baton Rouge: Louisiana State University Press, 1994), chap. 1; Kull, “The Enforceability after Emancipation of Debts Contracted for the Purchase of Slaves,” 517.

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Wainwright played an outsized role in shaping Louisiana’s postbellum legal order. It became the basis for the state’s constitutional ban on the enforcement of contracts that conveyed enslaved people. Less than a year after the decision, delegates incorporated the main tenets of the opinion into Louisiana’s new constitution. Article 128 stated: “Contracts for the sale of persons are null and void; and shall not be enforced by the courts of this state.”34 Justice Taliaferro served as the president of Louisiana’s constitutional convention and presided over the delegation’s debate about the continued enforcement of the contracts. The constitutional provision was later struck down by the U.S. Supreme Court, but Wainwright survived. In Palmer v. Marston, Associate Justice Noah Swayne wrote the opinion that preserved Taliaferro’s abolitionist result. The court had “no power of review” because the suit did not involve a state constitutional ban on contract enforcement (the decision had predated the state’s constitutional ban) and it “was governed by the settled principles of the jurisprudence of the State.”35 Abolitionist state court judges were joined by some federal justices. Arkansas Federal District Court judge Henry Clay Caldwell “saw the law as an instrument of substantive justice” and firmly believed in freedom as a natural right. Like some abolitionists of the antebellum era, including Salmon P. Chase and Lysander Spooner, he renounced the idea that the U.S. Constitution had ever supported the institution, let alone “[given] any sanction to slave contracts.” In Osborn v. Nicholson (later appealed to the U.S. Supreme Court) he determined 34

35

“Constitution Adopted by the State Constitutional Convention of the State of Louisiana, March 7, 1868” (New Orleans Republican Office, March 7, 1868), University of Pittsburgh Internet Archive, http://archive.org/details/constitutionadop1868loui. Related, Article 127 refused to recognize any contracts in which Confederate currency was used, and Article 129 refused to assume the debt of the Confederate government of the state and, critically, denied “compensation for slaves emancipated or liberated in any way whatever.” Palmer v. Marston 81 U.S. 10 (1872), 12. The court upheld Wainwright six times during Reconstruction. See Austin v. Sandel 19 La. Ann. 309 (1867); Halley v. Hoeffner 19 La. Ann. 518 (1867); Posey v. Driggs 20 La. Ann. 199 (1868); Dranguet v. Rost 21 La. Ann. 538 (1869); Lefevre v. Haydel 21 La. Ann. 663 (1869); Rodriquez v. Bienvenu 22 La. Ann. 300 (1870). Schafer, Slavery, the Civil Law, and the Supreme Court of Louisiana, 302. See also Winter v. Tournoir 25 La. Ann. 611 (1873); Succession of Herbert 27 La. Ann. 300 (1874); Brusle v. Hamilton 26 La. Ann 144 (1875).

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that the “statute giving the remedy” for the enforcement of slave contracts had “been repealed by article 13 of the amendments, of the constitution of the United States.” He considered the amendment “the work of the sovereign people of the United States,” and rejected the idea that after its passage, states could be compelled “to open their courts to the slave-dealer, and let him recover … the fruits of his barbarous traffic.” The abolition of slavery had likewise abolished legal mechanisms once used to support it.36 Unlike jurists elsewhere, Caldwell invoked the Fourteenth Amendment to expand his attack on slave contracts. To him, ­section  4 of the amendment further substantiated nonenforcement. It pronounced that “neither the United States, nor any state, shall assume or pay any debt of obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations, and claims, shall be held illegal and void.” While the section was meant to prevent compensation for slave property paid by state or federal governments, Caldwell ruled that it “conclusive[ly]” prohibited the enforcement of any debt for an enslaved person, even those made between individuals. By this reasoning, any further exchange of monies for a formerly enslaved person constituted illegal compensation for slave property.37 Historians and legal scholars have paid scant attention to section 4 of the Fourteenth Amendment. Those who believe in the Lost Cause explain it as an attempt by Republicans to punish the South, while others see it as a way to secure political support from northern legislatures, or, more generously, as a tool for Republicans to finish what the Thirteenth Amendment had started. More recently, however, historian Amanda Kleintop has argued persuasively that section  4 responded to southerners’ ongoing insistence that they be compensated for enslaved people taken from them, and represented congressional Republicans’ belief that abolition required “the denial of white southerners’ claims to own human property.” While they may not 36

37

Arnold and Freeman III, “Judge Henry Clay Caldwell,” 317, 320, 324. Osborn v. Nicholson 18 F. Cas. 846 (1870), 849–50, 853–54. American Council of Learned Societies, Dictionary of American Biography, 2:408. Caldwell quoted in Arnold and Freeman III, “Judge Henry Clay Caldwell.” U.S. Const. Amend. XIV, §4, emphasis added; Osborn v. Nicholson 18 F. Cas. 846 (1870), 856.

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have been thinking specifically about contracts for enslaved people when they debated section 4, many of those Republicans must surely have agreed with Caldwell’s interpretation of it. Some had already voiced their support for the state constitutional provisions that nullified slavery-related contracts on similar grounds during congressional debates over states’ new constitutions.38 Some delegates made comparable arguments at state constitutional conventions. Jonathan Jasper Wright, Black lawyer and delegate to the South Carolina Convention, contended that preventing the enforcement of slave contracts would “not establish a new precedent” because it comported with section 4 of the Fourteenth Amendment. Delegates in Virginia and Mississippi considered the same argument, although unlike South Carolina, neither state included a contract nullification provision in its new constitution.39 Even in states that upheld contracts for enslaved people, abolitionists left a lasting mark, but majority rulings have obscured their contributions. The courts in Alabama, Arkansas, and Texas, for example, were split on the matter. Dissenting judges opposed enforcing contracts for enslaved people for a variety of reasons. Some articulated concern for “fairness toward the contracting parties,” while others deferred to state constitutional provisions. Others agreed with Joseph Brown: The states of the former Confederacy had left the union and thrown off the authority (and accompanying protections) of the Constitution. For example, Arkansas judge John E. McClure, a proponent of ab initio, understood contract enforcement as “a matter 38

39

Amanda Laury Kleintop, “Life, Liberty, and Property in Slaves: White Mississippians Seek ‘Just Compensation’ for Their Freed Slaves in 1865,” Slavery & Abolition 39, no. 2 (2018): 383–404; Amanda Laury Kleintop, “The Balance of Freedom: Abolishing Property Rights in Slaves during and after the US Civil War” (Dissertation, Evanston, IL, Northwestern University, 2018), 150–52. Unsurprisingly, congressmen from loyal border states strongly resisted the inclusion of the provision. They believed that their loyalty had earned them protection from the same fate as Confederate rebels. Woodruff, Proceedings of the Constitutional Convention of South Carolina, 218. Wright later served on the bench of the South Carolina Supreme Court, but he could not save the slave contract provision from nullification. R. H. Woody, “Jonathan Jasper Wright, Associate Justice of the Supreme Court of South Carolina, 1870–77,” The Journal of Negro History 18, no. 2 (April 1933): 114–31. Kleintop, “The Balance of Freedom: Abolishing Property Rights in Slaves during and after the US Civil War,” 209n282.

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wholly within the control of the sovereignty of the State.” Thomas Peters in Alabama and Andrew Jackson Hamilton in Texas believed that contracts made after the Emancipation Proclamation took effect violated public policy and therefore should not be honored.40 By and large, however, the theory first articulated by James Taliaferro in Wainwright reflected post-emancipation abolitionist thought among judges. The Thirteenth Amendment emancipated slaves and abolished slavery by “annulling the laws” that had regulated both the economy of slavery and the contracts used to facilitate it. McClure exposed the sleight of hand required to uphold contracts in the first place. The purpose of the nullification clauses in state constitutions, he contended, was to “destroy the right of property in all slave contracts.” Noting the logical fallacy of his colleagues’ ruling, he continued, “I am not advised that property in a slave note is any more sacred or entitled to a higher or holier protection than the property in slaves.” Alabama’s Judge Peters emphasized the wording of the Thirteenth Amendment, noting that it called for the destruction of the entire institution. “The slave was not declared to be emancipated, but slavery was forever forbidden. The power that upheld it was withdrawn” and, as a consequence, “the obligation of the contract is gone.”41 By emphasizing the agreement, traditionalist judges  – whether intentionally or not – had privileged contract doctrine over property law, in order to maintain exchanges of enslaved people. Dissenting abolitionist judges further criticized that their colleagues’ longstanding commitments to slavery prevented them from appreciating the fundamental change in American law that the Reconstruction Amendments enacted. Federal District Court judge Henry Caldwell insisted that “no one can escape from [the Reconstruction Amendments’] operation by ‘the cry of the ‘constitution as it was.’” The judicial inclination to enforce contracts linked 40

41

John C. Williams, “Slave Contracts and the Thirteenth Amendment,” Seattle University Law Review 39, no. 3 (2016): 1015; Ranney, In the Wake of Slavery, 73. Jacoway v. Denton 25 Ark. 625 (1869), 654. McClure substantiated his position by invoking the U.S. Supreme Court’s ruling in Ogden v. Saunders 25 U.S. 213 (1827), 282. McElvain v. Mudd 44 Ala. 48 (1870), 74–75, emphasis added; Jacoway v. Denton 25 Ark. 625 (1869), 648, 661, emphasis in original.

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to slavery, Peters noted, “shows how reluctantly the human mind is disposed to … do right, though the heavens may fall.”42 At no time, however, did abolitionist judges propose the outright repudiation of contract or commercial law doctrine. The Thirteenth Amendment, they claimed, had rendered protections guaranteed by the contract clause inapplicable to agreements for enslaved people, and only them. As Caldwell interpreted it, section 4 of the Fourteenth Amendment prevented enforcement of debts only for enslaved people. By this reading, the Reconstruction Amendments held tremendous potential power. Together, they could abolish slavery by eliminating property in people and bringing freedpeople into civil society without any residue of their former status. In part, because abolitionist judicial writing includes natural law rhetoric, some scholars have concluded that these opinions constituted a “retrospective” denial of slavery’s legality that demanded “emancipation be made retroactive,” or a political stance disguised as judicial reasoning, not a plausible legal argument for contract nullification. These “neoabolitionists,” legal scholar Andrew Kull has contended, “would have involved the nation in a political revolution that Reconstruction did not envision. The Constitution of 1787 had allowed the states to maintain the institution of slavery. The Thirteenth Amendment altered that Constitution but did not seek to overthrow it.”43 This characterization misinterprets the arguments of judges who opposed contract enforcement. Judges who agreed that slavery violated natural law did not argue that it had never been legal in the past. Caldwell’s own language was clear on the point: “[T]here shall be no further recognition by the federal government or the states of 42 43

Osborn v. Nicholson 18 F. Cas. 846 (1870), 854; McElvain v. Mudd 44 Ala. 48 (1870), 81. Kull, “The Enforceability after Emancipation of Debts Contracted for the Purchase of Slaves,” 531–32. Since its publication, Andrew Kull’s article on the enforcement of slave contracts has been the foundation for evaluating the topic. Simard, “Citing Slavery”; Gross, Double Character. Recently, some scholars have begun to reassess it. See, e.g., Williams, “Slave Contracts and the Thirteenth Amendment”; Diane J. Klein, “Paying Eliza: Comity, Contracts, and Critical Race Theory – 19th Century Choice of Law Doctrine and the Validation of the Antebellum Contracts for the Purchase and Sale of Human Beings,” National Black Law Journal 20, no. 1 (2006): 1–41; Roberts, “Abolition Constitutionalism.”

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the idea that there could lawfully be property in man.” Whether or not slavery should have been allowed in the United States was beside the point. Moreover, abolitionist judges did not seek to overthrow the Constitution. Instead, they used natural law claims only secondarily to bolster the argument that the Thirteenth Amendment should be understood capaciously: It both prohibited enslavement and destroyed all the incidents of slavery.44 Taliaferro explained, “We do not consider the position maintainable, that the effect of emancipation was merely to produce a change in the status of the slave, and not to render void contracts relating to slaves. The status of the slave could only be changed by annulling the law that gave him that status. Emancipation, and the existence of laws upholding slavery, are incompatible. They cannot exist together.”45 Ratification debates support the interpretation that jurists were not disavowing enslavement retrospectively but prospectively insisting on the abolitionist potential of the amendment. A number of congressmen envisioned the amendment as a powerful tool – certainly strong enough to annihilate slavery-related contract rights. Radicals Henry Wilson of Massachusetts and Thaddeus Stevens of Pennsylvania made impassioned appeals to natural law, and promised that the amendment would “obliterate the last lingering vestiges of the slave system.” Delaware Republican Daniel Smithers argued that courts would lack the ability to enforce contracts, explaining that “The operation of the amendment is upon the law, not upon the subject; its effect is to” prohibit “the courts [from] tak[ing] cognizance of the claim of the master.”46 Legal scholar George Rutherglen writes that congressmen who understood the Thirteenth Amendment expansively believed that “Slavery could no more be maintained through the private exercise of common law rights of property and contract … than through the efforts of the government itself.” They recognized that it simultaneously abolished slavery’s government-supported institutional structure and extinguished the common-law rights (those derived from

44 45 46

Osborn v. Nicholson 18 F. Cas. 846 (1870), 856. Wainwright v. Bridges 19 La. Ann. 234 (1867), 240. Cong. Globe, 38th Cong., 1st Sess. 1324 (1864); Rutherglen, “State Action, Private Action, and the Thirteenth Amendment,” 1378, 1384, emphasis added.

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custom and precedent rather than written laws) individuals had traditionally claimed in order to practice it – both as incidents of the institution itself.47 The judges deciding post-emancipation suits had lived through the Thirteenth Amendment’s ratification process, and they themselves participated as politicians in state constitutional conventions called to implement it. Unquestionably, they understood the politics behind the amendment and viewed themselves as attentive interpreters of it, responsible for implementing a new legal order. The Thirteenth Amendment resolved what legal scholar Robert Cover describes as the “cognitive dissonance” produced when personal abolitionism collided with legal philosophy. It enshrined natural law principles – the natural right to freedom – into positive law in the Constitution. And by invoking the language of the Thirteenth Amendment, which prohibited slavery, not just enslavement, post-emancipation abolitionist judges could resolve the antebellum Gordian knot that beset them by limiting their aim to slavery, without running afoul of established commercial law principles. If anything, it was the traditionalists who retreated after emancipation to the safety of what Cover calls the “mechanistic formalism” of established law when they proposed to enforce agreements for human chattel in the same way that they always had, despite the new amendment.48 As the newly free Page family discovered, the failure to adopt the abolitionist interpretation of post-emancipation contract enforcement had dire consequences. In 1857, free man Henry Page had negotiated the purchase of his wife Dilly and two of his children, Britton (Britt) and William (Bill), from their enslaver, William Andrews. Page agreed to pay $3,200 in installments for his family members. He “became alarmed” in 1861 by “the great political excitement in the county” and feared that he and his family “would be reduced to slavery

47

48

Ibid., 1376. Rutherglen argues that the Civil Rights Act of 1866 offers the “best evidence of what Congress thought the ‘badges and incidents’ of slavery were at the time.” Admittedly, only a few Radicals, including Lysander Spooner and William Seward, supported the natural position prior to the Civil War. Huebner, The Southern Judicial Tradition: State Judges and Sectional Distinctiveness, 1790–1890, 57, 69. Cover, Justice Accused: Antislavery and the Judicial Process, 226–29, 232.

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again.” Page “left home [and] went to Cincinnati [and] remained there a while,” hoping to find safety. (It is not clear whether any of his family members went with him.) That same year, Andrews sued Page for $1,550, the balance due on the note contracted in 1857. In so doing, he initiated litigation related to the sale of enslaved persons that would last until 1871, well after all of Page’s family members had become free people.49 Henry Page did return to Tennessee and lived there with his family until he died prematurely in a Nashville sawmill accident in 1864. He left nearly 300 acres of land and $2,000 worth of personal property behind, but no will. His family members considered themselves his lawful heirs and as free persons they continued to live on the various properties Page had acquired before his death. In 1866, the Page family was shocked to learn that a court had ordered the sale of their property to cover the outstanding debt still owed to William Andrews. Representing their widowed mother Dilly, Page’s other children, Wyatt, Swail, and Larkin, traveled to Carthage, Tennessee – a town nestled along a bend in the Cumberland River approximately fifty-five miles east of Nashville – to contest the sale in the Smith County Chancery Court. They believed the debt had already been satisfied. And even if it had not, the law had freed the people identified for sale in the contract, thus making the agreement invalid.50 By the time the Tennessee Supreme Court finally decided the case in 1871, however, the judges assumed the contract’s enforceability, holding, “It is needless … to consider the 13th Amendment to the Constitution of the United States.” They considered only whether Dilly was the legitimate wife of Henry Page and, if so, whether she had overriding dower rights to the land that might otherwise be sold off. The court ruled that while she was indeed a dowager, she would have to relinquish some of the property to Andrews to cover the outstanding obligation. As a consequence, she retained a mere one-third of the

49

50

Andrews v. Page 50 Tenn. 653 (1871), Tennessee State Library and Archive, MT Box 474, page 36. Court records refer to Dilly as “Dilla” and “Dillah,” and sometimes name Henry as “Harry.” Andrews v. Page 50 Tenn. 653 (1871), 659, Tennessee State Library and Archive, MT Box 474, pages 28, 52, Petition of H. Page heirs, Deposition of G. G. Dillard.

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estate her husband had set aside for their family. Worse still, unless the debt was repaid in full, the remainder of the land would “be subject to the right of redemption,” and would be sold off after her death to repay Andrews instead of being passed down to the Page children. In part, this was a positive outcome. Dilly and her children were recognized as Henry’s legitimate family and heirs, so they would manage to keep some of the family’s property if they paid Henry’s financial debt.51 But the justices of the court entirely sidestepped a fundamental problem: Enforcing this contract imposed an extraordinary liability. It required the Page family to continue paying for their freedom after the law had already emancipated them. This meant that William Andrews continued to profit from his ownership of Dilly and her children, and received legal sanction to seize land that would have been rightfully theirs had she and they been born free. Dilly, a freed woman, remained bound to her former enslaver through legal obligation. Andrews v. Page revealed not only that upholding contracts for the sale of enslaved people could cause financial harm for those like the Pages, but also that after emancipation, freedpeople retained what legal scholar John C. Williams considers “something of their character of property.”52 The Page family, quite literally, had to pay for the freedom that the Constitution of the United States had already guaranteed. But resolutions in similar suits with less obvious connections to the lives of formerly enslaved people just as significantly diluted the meaning and abolitionist promise of the Thirteenth Amendment. By privileging contract and commercial doctrine, the majority of judges ensured that those released from bondage retained some semblance of their identity as property. Legal historian Allison Mileo Gorsuch found that indenture contracts in the antebellum free state

51

52

On the surface, the case presents as one about the legitimacy of Dilly and Henry’s marriage in order to determine whether she had dower rights, and scholars typically cite it this way. See, e.g., Darlene C. Goring, “The History of Slave Marriage in the United States,” The John Marshall Law Review 39, no. 2 (2006): 299–347. Only an investigation into the archival record reveals the sale at the heart of the litigation. The incisive work of lawyer John C. Williams tipped me off to the deeper meaning of the suit. Williams, “Slave Contracts and the Thirteenth Amendment,” 1026–27, 1026n70. Andrews v. Page 50 Tenn. 653 (1871), 671. Williams, “Slave Contracts and the Thirteenth Amendment,” 1027.

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of Illinois allowed slaveholders “to exercise the powers of ownership while denying ownership itself.” Similarly, judges’ enforcement of contracts permitted southerners to do the same. While these rulings did not return people to bondage, their interpretations nevertheless stymied abolition by “disguising slavery” behind a veneer that blended contract and commercial law doctrine. Those decisions did not reject slavery or seek to destroy its economic foundations; they merely accepted that American law no longer sanctioned enslavement.53 Aligning with the majority of state court judges, the U.S. Supreme Court required the enforcement of contracts for bondspeople. On appeal in 1871, the Court reversed Caldwell’s decision in Osborn v. Nicholson, holding that the contract clause still applied to contracts for the sale or hire of enslaved people, despite the Thirteenth Amendment. Affirming the Bronson rule, Justice Noah Swayne wrote, “Rights acquired by a deed, will, or contract of marriage, or other contract executed according to statutes subsequently repealed subsist afterwards, as they were before, in all respects as if the statutes were still in full force. This is a principle of universal jurisprudence.” Contrary to the intent of many of its framers, the justices held that arguments that relied on the Thirteenth Amendment failed because “there is nothing in the language of the amendment which in the slightest degree warrants the inference … that such should be its effect.”54 The Supreme Court decided White v. Hart at the same time as Osborn. That case considered Georgia’s constitutional provision barring contract enforcement and, in particular, Joseph E. Brown’s rationales to sustain it. Echoing Osborne, Swayne stressed that contracts made according to the laws in effect at the time they were executed remained valid and enforceable in perpetuity. He added that the ongoing validity of contracts rested on the illegality of secession: The states of the former Confederacy had remained a part of the Union throughout the war, Swayne declared; thus, they could not evade

53

54

Allison Mileo Gorsuch, “To Indent Oneself: Ownership, Contracts, and Consent in Antebellum Illinois,” in The Legal Understanding of Slavery: From the Historical to the Contemporary (Oxford: Oxford University Press, 2012), 137, 151. Osborn v. Nicolson 80 U.S. 654 (1871), 662.

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constitutional dictates after the war had ended. Two years later, in Boyce v. Tabb, the Court ruled that federal courts in Louisiana could enforce contracts tied to slavery, but it never overruled Wainwright. With these decisions, the issue of slavery-related contracts was settled, with just one abolitionist decision surviving the onslaught.55 Still, abolitionist jurists offer a glimpse of the road not taken. They began the process of identifying and eradicating all the incidents, if not yet all the badges, that had constituted the laws of slavery. Because critics have dismissed the dissenting abolitionists’ arguments as violating basic legal principles of contract doctrine, it has been difficult to appreciate their significance and, conversely, the harm caused by the majority rulings. The Wainwright decision in Louisiana, Caldwell’s impassioned ruling in federal court, and the dissents written in a number of other states show that the practical outcome of a policy of nonenforcement would have been that money for bondspeople would not be exchanged. While one party to any contract was going to absorb the financial loss, the nullification of slave contracts would have ensured that the law no longer acknowledged property in persons, or the “claim of the master.” This process might have laid a better foundation for the incorporation of freedpeople into civil society, but even if it did not, it would have removed one aspect of slavery from American law and commerce – itself a prerequisite for abolition. Those who initially had high hopes for the amendment’s power and promise recognized as much. The contract controversy, which began before the adoption of the Reconstruction Acts, and in a few instances, even before the Thirteenth Amendment took effect, illustrated to judges and Radicals alike that additional measures – including additional amendments and federal statutes – would be necessary to carry out their vision of Reconstruction and realize abolition. That work, which produced the Civil Rights Acts of 1866 and 1875, and the Fourteenth and Fifteenth Amendments, began in earnest even before the disagreement over contracts had been resolved.

55

White v. Hart 80 U.S. 646 (1871); Boyce v. Tabb 85 U.S. 546 (1873). In Boyce, diversity of citizenship took the litigants to federal court.

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2 Wreck and Ruin

The Civil War wrought havoc on the southern economy and the ­personal finances of the region’s white residents. It ruined many of the most prominent slaveholding families who had possessed the bulk of southern wealth – of which human property comprised the vast majority. The infamous Calhoun clan, once led by fire-eater politician and zealous slavery supporter John C. Calhoun, was among those facing financial calamity. By 1866, the family’s South Carolina plantation, Fort Hill, faced foreclosure. The Calhoun estate, like so many others, included more chattel property than real  – much of which had been mortgaged. When the Civil War ended in Confederate defeat and Black freedom, the estate became instantly insolvent. Court records state unequivocally that Fort Hill, like so many other plantations, had “been rendered by the result of the late revolution to its present condition of wreck and ruin.”1 In 1872, Fort Hill was put up for auction. When the majority of courts ruled in favor of the enforcement of debts for enslaved people, they established who would absorb the financial cost of emancipation. And when they nullified other debt relief provisions included in new state constitutions, they broadened the allocation of those losses. The cost of emancipation, most judges believed, fell “upon the party who owned 1

Floride Calhoun et. al. v. M.M. Calhoun et al. Clemson University Special Collections Unit University Archives. Lee v. Simpson Mss 256, Box 1, Folder 3.

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the property  … at the time of emancipation.”2 In making such an assessment, judges determined a great deal more than financial winners and losers. They ultimately settled the degree to which slavery would remain embedded in the American economy. To ­justify the o ­ ngoing exchange of money for enslaved people and the rejection of financial relief for some planters, judges relied not only on contract doctrine but also on the tenets of commercial ­capitalism that had developed over the course of the nineteenth century.3 Despite all antebellum evidence to the contrary, they declared that ­ government-mandated abolition had always been an inherent risk to slave ownership.4 It had been built into the price paid for every enslaved person. As the Circuit Court noted in the case that emerged from the Calhoun family’s crisis, “At the time, property in slaves, as in everything else, was subject to be destroyed by revolution; and it has been so destroyed.”5 Those who participated in the economy of slavery “took the chances of emancipation into consideration, and paid such a price as he supposed the intrinsic value of the slaves, lessened by such chances, would justify him in doing.”6 They had gambled, in other words, on investments that did not pay off. Generally, American capitalism in the mid-nineteenth century was governed by a few core tenets. Chief among them, the laws of nature  – including the law of supply and demand – should control the market, not the state.7 Unregulated markets fostered free competition, capital accumulation, the ownership of private 2

Hand v. Armstrong 34 Ga. 232 (1866), 237. Emphasis in original. This stood in contradistinction to Great Britain’s emancipation policy. When it ended slavery, it compensated slaveholders for the loss of their property. 4 As economic historian Gavin Wright contends, throughout most of the pre-emancipation period, the property rights of slaveholders were “accepted and enforced, built into economic behavior that implied expectations of long-term viability” of slavery as ­ a ­ commercial practice. It required unanticipated “extraordinary national ­ military upheaval” to disrupt those rights and expectations. Gavin Wright, Slavery and A ­ merican Economic Development (Baton Rouge: Louisiana State University Press, 2006), 11. 5 Calhoun v. Calhoun, 2 S.C. 283 (1870), 6. 6 Calhoun v. Calhoun, 2 S.C. 283 (1870), 6. 7 This is not to say that the United States lacked any regulation, or that Americans universally agreed on how much the state should intervene the economy. But, as Harry Scheiber has argued, any state intervention in the forms of tariffs, a centralized Bank of the United States, or subsidies for transportation projects tended to be “receptive 3

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Nothing More than Freedom

property  – including ownership of one’s self – and, ultimately, innovation and dynamism.8 Individuals assumed the risks of speculation and investment, while law facilitated economic growth by protecting private property, enabling the free exchange of goods and labor (i.e., through contract), and resolving disputes between economic actors.9 To slaveholders, emancipation violated the basic rules of capitalism by which they had abided and in which they had trusted. Government action had destroyed slave property, and enslavers feared they would have nowhere to turn for redress of what many considered an illegal taking. In a stinging rebuke to enslavers, the majority of judges concluded that the rules of property and contract, coupled with the cold calculus of the market, left no other option but for slaveholders to shoulder the financial loss, absent other significant relief. Judges effectively ensured that the business of bondage survived emancipation, even if enslavement did not, thus allowing some people (those to whom money was owed) to continue reaping the financial rewards of the slave economy – diminished though they may have been. To fully understand how and why the transactional aspect of slavery outlived its practice, we must confront post-emancipation judicial deference to the logic of capitalism. Historians have long accepted that New World slavery was a profitable economic enterprise.10 Slavery’s connection to the emergence of capitalism, however, has been the subject of robust scholarly debate

to enterprise” and either came in response to “popular demands” or provided for “the public good.” Scheiber, “Economic Liberty and the Modern State,” 145–47. 8 Of course, not all Americans ascribed to this view of capitalism. For instance, there were plenty of factions who opposed worker exploitation as the nation industrialized, and states, including Louisiana, that adopted more robust economic regulations. See Daniel Walker Howe, What Hath God Wrought: The Transformation of America, 1815–1848 (New York: Oxford University Press, 2007), chap. 14. See also, James Willard Hurst, Law and the Conditions of Freedom in the ­Nineteenth-Century United States (Madison: University of Wisconsin Press, 1956); Horwitz, The Transformation of American Law 1780–1860; Scheiber, “Economic Liberty and the Modern State.” 9 On risk, see Jonathan Levy, Freaks of Fortune: The Emerging World of Capitalism and Risk in America (Cambridge, MA: Harvard University Press, 2012). 10 See, e.g., Eric Williams, Capitalism and Slavery (Chapel Hill: University of North Carolina Press, 1944); Robert William Fogel and Stanley L. Engerman, Time on the Cross (New York: W.W. Norton & Company, 1974).

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for decades.11 Recently, scholars of what is known as the new history of capitalism have contributed to that debate by chronicling the many ways that slavery – and the cotton economy in particular – undergirded the development and form of capitalism in the United States and around the globe.12 Slavery, they insist, was implicated in the exploitation and oppression of labor, resource extraction, and legal regimes that supported free markets and unequal wealth distribution.13 The proliferation of scholarship linking capitalism and slavery has prompted many institutions – including universities, medical schools, banks, and insurance companies – to confront their own lingering ties to the wealth generated by both the labor and ownership of enslaved people.14

11

12

13

14

See, e.g., David Brion Davis, The Problem of Slavery in the Age of Revolution, 1770–1823 (Ithaca, NY: Cornell University Press, 1975); John Ashworth, Slavery, Capitalism and Politics in the Antebellum Republic, vol. 1: Commerce and Compromise, 1820–1850 (New York: Cambridge University Press, 1996); Eugene D. ­Genovese, The World the Slaveholders Made: Two Essays in Interpretation (New York: Pantheon Books, 1969). Edward E. Baptist, The Half Has Never Been Told: Slavery and the Making of American Capitalism (New York: Basic Books, 2014); Sven Beckert, Empire of Cotton: A Global History (New York: Knopf, 2014); Johnson, River of Dark Dreams: Slavery and Empire in the Cotton Kingdom; Caitlin Rosenthal, Accounting for Slavery: Masters and Management (Cambridge, MA: Harvard University Press, 2018); Sven Beckert and Seth Rockman, eds., Slavery’s Capitalism: A New History of American Economic Development (Philadelphia: University of Pennsylvania Press, 2016); Daina Ramey Berry, The Price for Their Pound of Flesh: The Value of the Enslaved, from Womb to Grave, in the Building of a Nation (Boston: Beacon Press, 2017). Economic historians have challenged some of the findings of this work, especially Baptist’s. See in particular, Alan L. Olmstead and Paul W. Rhode, “Cotton, Slavery, and the New History of Capitalism,” Explorations in Economic History 67 (January 2018): 1–17, https://doi.org/10.1016/j.eeh.2017.12.002; Marc Parry, “Shackles and Dollars: Historians and Economists Clash over Slavery,” The Chronicle of Higher Education LXIII, no. 17 (December 16, 2016): B6–9. For an overview of the historiography that considers the relationship between slavery and capitalism, see Manisha Sinha, “The Problem of Abolition in the Age of Capitalism,” American Historical Review 124, no. 1 (February 2019): 144–63. Craig Steven Wilder, Ebony & Ivy: Race, Slavery, and the Troubled History of America’s Universities (New York: Bloomsbury Press, 2013); Leslie M. Harris, James T. Campbell, and Alfred L. Brophy, eds., Slavery and the University: Histories and Legacies (Athens: University of Georgia Press, 2019); Sharon Ann Murphy, Investing in Life: Insurance in Antebellum America (Baltimore: Johns Hopkins University Press, 2010); Matthew Desmond, “In Order to Understand the Brutality of American Capitalism, You Have to Start on the Plantation,” New York Times Magazine, August 14, 2019, www.nytimes.com/interactive/2019/08/14/magazine/

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Nothing More than Freedom

Modern abolitionists and scholars of the Black radical tradition agree that law, slavery, and capitalism have always been connected. As abolitionist legal scholar Anthony Paul Farley bluntly articulates, the linkage began with the Middle Passage, “the primal scene of accumulation that became these United States,” and continues to this day.15 Indeed, many modern calls for reparations are specifically based on the “economic evisceration” produced by the “continuing harms of colonialism and slavery.”16 Such calls, however, typically focus on forms of institutionalized racism that have caused direct injury to Black people (and other people of color), such as lawful segregation, housing discrimination, and wage inequality. Examining private lawsuits reveals that slavery continued to shape post-emancipation economic development in unexpected ways. These, too, helped facilitate the institutionalization of racism observed by modern scholars. Law facilitated slavery’s relationship to capitalism. In fact, “to understand the place of slavery in American economic development,” economic historian Gavin Wright urges, we must look to its “legal aspects” because they have been “more enduring and pervasive – more robust in the parlance of economics – than the particularities” of slavery’s day-to-day practice.17 By the early nineteenth century, the law had come to view enslaved people as movable property – as fully alienable “chattels personal” that were not fixed to the land.18

15 16

17 18

slavery-capitalism.html; David Teather, “Bank Admits It Owned Slaves,” The Guardian, January 21, 2005, www.theguardian.com/world/2005/jan/22/usa .­davidteather. On medical schools’ purchase of Black cadavers, see Berry, The Price for Their Pound of Flesh: The Value of the Enslaved, from Womb to Grave, in the Building of a Nation, chap. 6. Anthony Paul Farley, “Accumulation,” Michigan Journal of Race and Law 11, no. 1 (2005): 57–58. Rodríguez, “Abolition as Praxis of Human Being: A Foreword,” 2019, 1611; “Movement for Black Lives,” The Preamble, accessed August 8, 2021, https://m4bl .org/policy-platforms/the-preamble/. For modern abolitionists, racial capitalism includes the “extraction of Black labor and the expropriation of indigenous land.” Policing and incarceration further the aims of exploiting labor. There is, in other words, a symbiotic relationship between racism, neoliberalism, and mass incarceration. Amna A. Akbar, “Toward a Radical Imagination of Law,” New York University Law Review 93, no. 3 (2018): 449–50. Wright, Slavery and American Economic Development, 7. Thomas D. Morris, Southern Slavery and the Law, 1619–1860 (Chapel Hill: University of North Carolina Press, 1996), chap. 3.

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This legal determination made possible the full commodification, monetization, and securitization of people. In short, it enabled the free exchange of chattel slaves in the United States, and the development of lucrative secondary markets fueled by slavery’s expansion. Antebellum legal doctrine – particularly the liberalization of the rules of contract and commercial law doctrine in general (Chapter 1) but also the law of inheritance – further supported the development and expansion of slavery’s capitalism.19 This chapter locates the link between slavery and capitalism in the mundane transactions between and the financial plans of white southerners that were adjudicated following the Civil War. Decisions in these suits helped ensure that the relationship between slavery and American economic development remained undisturbed, and reveal an underappreciated aspect of the incompatibility of liberal capitalism with abolition. During Reconstruction, judges in the United States stood at a crossroads. Abolitionists had long decried the commodification of persons, and, after emancipation, they insisted that upholding the financial instruments and arrangements of slavery perpetuated the immoral trade that the Constitution banned forever. Judges such as James Taliaferro came to believe the same, and decided that money for slaves could not continue to change hands because the ongoing enforcement of financial agreements related to slavery contradicted the Thirteenth Amendment – they were manifestations of slavery. But the majority of rulings rejected the abolitionist critique that slavery was antidemocratic, immoral, or – by late 1865 – unconstitutional in all regards.20 Judges denied the Thirteenth Amendment’s capacity to fully destroy the business of bondage.

19

20

Beckert and Rockman, Slavery’s Capitalism: A New History of American Economic Development; Horwitz, The Transformation of American Law 1780–1860; Simard, “Slavery’s Legalism: Lawyers and the Commercial Routine of Slavery”; Kreitner, Calculating Promises: The Emergence of Modern American Contract Doctrine. Antebellum abolitionists understood the incompatibility between slavery and capitalism, but only some rejected capitalism entirely. Most nevertheless “possessed a biblical political economy, not a classical liberal one,” and rejected that people could be property. James L. Huston, “Abolitionists, Political Economists, and Capitalism,” Journal of the Early Republic 20, no. 3 (Autumn 2000): 488.

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While judges could not prevent the financial losses of uncompensated emancipation from devastating the southern economy and many of the region’s families, they could and did preserve and protect the system of capitalism that slavery had made. By upholding both the specific legal agreements and the specific rules of capitalism that had developed within the context of Atlantic World slavery, judges salvaged aspects of slavery’s marketplace and safeguarded the racial privilege that participation in it had long afforded. In so doing, judges failed to consider that their combined reliance on commercial law doctrine and tenets of liberal capitalism ensured that aspects of slavery survived beyond 1865. That is, most judges did not appreciate how the law facilitated the racial subjugation of bodies and labor and thus left in place the assumptions and doctrines that would allow for new forms of racial exploitation, including tenant agreements and convict leasing, to arise. Intentionally or not, judges effectively ensured the proliferation of what scholar Cedric Robinson would later call “racial capitalism”: the development and evolution of “social structures emergent from capitalism” “permeate[d]” by “racialism,” by leaving residues of slavery embedded – and unchallenged – in law and in the American economy.21 The participants in the antebellum economy of slavery had no reason to believe that investing in chattel property had unduly exposed them to financial risk. They certainly understood the financial hazards of the modern commercial economy and had shown their aptitude for navigating the complexities of domestic and international markets. By speculating on slaves, land, and cotton, they generally prospered.22 They saw investments in slaves as particularly safe and responsible, since human assets provided protection against the vagaries of the larger economy. When crops failed, or the cotton market bottomed out, slaves could be sold or mortgaged until circumstances improved.

21 22

Cedric Robinson, Black Marxism: The Making of the Black Radical Tradition (Chapel Hill: University of North Carolina Press, 1983), 2. See, e.g., Johnson, River of Dark Dreams: Slavery and Empire in the Cotton Kingdom; Wright, Slavery and American Economic Development.

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As George Fitzhugh wrote in 1854, “Slavery insurance never fails, and covers all losses and misfortunes. Domestic slavery is nature’s mutual insurance society.”23 Slavery’s unique legal protections bolstered that view. Slavery enjoyed constitutional sanction, the protection of increasingly strong federal legislation, and support from the Supreme Court – even from antislavery justices – in landmark cases.24 The risk of emancipation that postbellum judges identified during Reconstruction materialized only with Confederate defeat and a dramatic constitutional transformation. The revolution occasioned by the Civil War – Black freedom itself – exposed the liability. Custom and culture provided southerners with an additional sense of security, which further sheltered them from the harsh realities of the market. During the antebellum period many lived according to a set of practices governed by notions of honor, mastery, and social respectability – all of which derived from one’s race, gender, and 23

24

George Fitzhugh, Sociology for the South: Or the Failure of Free Society (Richmond, VA: A. Morris Publisher, 1854), 168. More recently, historian Jonathan Levy corroborates the same: “[M]any white southerners hedged against the perils of capitalism by owning slaves.” Levy, Freaks of Fortune: The Emerging World of Capitalism and Risk in America, 62–63. See in particular, Dred Scott v. Sandford, 60 U.S. 393 (1857) and Prigg v. Pennsylvania 41 U.S. 539 (1842). Congressional legislation included both Fugitive Slave Acts. While scholars debate the degree to which framers specifically intended to protect slavery in the Constitution, congressional and Supreme Court actions gave explicit sanction to the notion that slaves counted as a special kind of constitutionally protected property. Southern jurists believed similarly. See Alfred L. Brophy, “The Market, Utility, and Slavery in Southern Legal Thought,” in Slavery’s Capitalism, ed. Sven Beckert and Seth Rockman (Philadelphia: University of Pennsylvania Press, 2016), 263. Reconstruction-era judges also say as much in their own rulings. For example, Chief Justice E. Woolsey Peck of the Alabama Supreme Court cited both federal Fugitive Slave Acts and Prigg in his opinion for McElvain v. Mudd 44 Ala. 48 (1870). On antislavery justices’ enforcement of slavery, see Cover, Justice Accused: Antislavery and the Judicial Process. On scholarly debates on slavery and the Constitution, see, e.g., George William Van Cleve, A Slaveholder’s Union (Chicago: University of Chicago Press, 2011); Christopher Tomlins, Freedom Bound (Cambridge: Cambridge University Press, 2010); Gordon S. Wood, The Creation of the American Republic (Chapel Hill: University of North Carolina Press, 1998); Sean Wilentz, No Property in Man (Cambridge, MA: Harvard University Press, 2018); Robin L. Einhorn, American Taxation, American Slavery (Chicago: University of Chicago Press, 2008); Don E. Fehrenbacher, The Slaveholding Republic (New York: Oxford University Press, 2001); David Waldstreicher, Slavery’s Constitution (New York: Hill and Wang, 2009).

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status as a slaveholder.25 Social standing, in other words, depended on slave ownership and the economic success begotten by the effective oversight of land and labor. For generations, historian Walter Johnson writes, white men had been “constructing themselves out of slaves.”26 An integral part of that process of self-making was reinforced in law and through legal contests.27 Going to court to defend one’s honor as a man and a master defined what Ariela Gross has called the “cultural meaning of whiteness.”28 Masculinity, mastery, status, and white privilege were largely coconstructed in antebellum southern courtrooms. After emancipation, litigants hoped that by appealing to a common feature of their agreements for slaves – warranties – they could use their status and commercial aptitude to shield themselves from their debts and the dishonor of financial failure. Warranties for enslaved people conventionally guaranteed title, soundness, and that the property would be “a slave for life.”29 After emancipation, buyers insisted that since the slaves had not remained in bondage for the duration of their natural lives, the warranty had been breached and they were entitled to an abatement from sellers. Warranties had emerged in older slave societies specifically to protect buyers. They served as an exception to caveat emptor, or buyer beware.30 Though not required, warranties were common features of 25

26

27 28 29 30

Though recent scholarship details women’s involvement in slavery and slave ownership, they were not presumed to be the primary agents of the slave economy. Women do not often appear as litigants in the post-emancipation contract cases examined here. In some cases, male agents represented the interests of slave-owning women in court. For a detailed account of women’s role in the economy of slavery, and male representation of women’s interests in slavery, see Stephanie E. Jones-Rogers, They Were Her Property: White Women as Slave Owners in the American South (New Haven, CT: Yale University Press, 2019). Walter Johnson, Soul by Soul: Life inside the Antebellum Slave Market (Cambridge, MA: Harvard University Press, 2001), 88. See also Gregory S. Alexander, Commodity & Propriety (Chicago: University of Chicago Press, 1997). Alexander argues that “property is the material foundation for creating and maintaining the proper social order, the private basis for the public good.” “The law worked to establish what it meant to be a master, and therefore what it meant to be a white man.” Gross, Double Character, 99. Ibid., 120. West v. Hall 64 N.C. 43 (1870). North Carolina Library and Archives Case #9571. Gross, Double Character, 99–102; Morris, Southern Slavery and the Law, 1619– 1860, 104–13.

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slave sales. Without such a guarantee, buyers had reason to question both the “soundness” of the bondsperson they wanted to purchase and the integrity of the seller.31 Typically, a buyer without a warranty had little recourse to recover funds from a seller in the event of a slave’s death or unsoundness, though a verbal promise – taking a seller at his word – could carry legal weight if a dispute arose.32 Antebellum warranty suits pitted white men against each other in symbolic duels in which one party sought satisfaction after a perceived slight by the other. They exposed both buyer and seller to attacks on their characters and challenges to their honor.33 Sellers faced charges of being liars, cheats, speculators, and swindlers. Buyers endured accusations of being easily duped or manipulated, or – worse still – lacking the gentleman’s skill of mastery when the enslaved people they purchased failed to live up to expectations.34 Defenses against such charges became part of elaborate performances of social and racial superiority, and helped defend and cement the status of those who participated in and prospered from the slave trade.35

31 32

33

34

35

Gross, Double Character, 55; Morris, Southern Slavery and the Law, 1619–1860, 109–11; Johnson, Soul by Soul: Life inside the Antebellum Slave Market, 183–84. “Unsoundness” became a contested category during the antebellum decades. It came to include mental as well as physical “defect.” Morris, Southern Slavery and the Law, 1619–1860, 109–11. Gross, Double Character, 55. Some states had unique rules regarding warranties for enslaved people. North and South Carolina, for example, recognized implied warranties, but were the only common-law states to do so. Louisiana permitted quanti minoris – a reduction in price of an object because of some defect – or redhibition, which canceled the sale altogether if the defect were significant enough to merit the action. On Southern honor generally, see Orlando Patterson, Slavery and Social Death (Cambridge, MA: Harvard University Press, 1982), 94–97; Bertram Wyatt-Brown, Southern Honor (Oxford: Oxford University Press, 1982). For a discussion of honor in the context of the antebellum Southern courtroom, see Gross, Double Character, chap. 2. Gross, Double Character, 55–57. Slaves themselves often shaped the outcomes of warranty suits. Some developed infirmities – through self-mutilation or feigned ­illness – after being sold so they would be returned to loved ones or a preferable living situation. Others, through indirect testimony, shaped legal outcomes. Ibid., 73; Johnson, Soul by Soul: Life inside the Antebellum Slave Market, 184–86. Some slave traders, seeking to protect their businesses and avoid the “unmasking” of questionable practices that could accompany accusations of fraud, simply allowed purchasers to return enslaved persons they found unsatisfactory rather than go to court. But this resolution may not have been available for those transactions that took place between neighbors or other individuals. Gross, Double Character, 54; Johnson, Soul by Soul: Life inside the Antebellum Slave Market, 169.

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Emancipation appeared to disrupt the traditional antagonism in antebellum contract litigation. The U.S. government, not an individual participant in the slave economy, had enacted the ultimate dishonoring and emasculation by prohibiting enslavement and thereby obliterating slave ownership as a marker of status. Nevertheless, former slave owners did sue those from whom they had purchased their human property in traditional ways. If the federal government would not compensate former slave owners for their losses – both financial and social (an open question until the ratification of the Fourteenth Amendment) – then white litigants would use familiar, time-tested methods to perform the rites of white masculinity by turning on one another. Relying on the logic of the market, judges rejected the argument that warranties protected buyers from emancipation. Warranties did not specifically protect against the destruction of slavery itself; therefore, purchasers had no remedy for recovering monies paid for slaves. Critically, judges distinguished, warranties did not include language to imply a future status; they only stipulated that bondspeople “were slaves for life in contradistinction to slaves for a shorter period of time,” such as those bound “for a term of years.”36 Justices throughout the old slaveholding republic made the same fundamental claim. Warranties only guaranteed enslaved status for the life of the institution, not the for the natural lifetime of the individual bondsperson. Put another way, the warranty did not “guarantee” forever a slave’s “political status.”37 Judges indicated that they would make an exception for warranties that specifically protected against the end of slavery itself. But the preponderance of warranties followed a standard formulation, which included no such stipulation. If the parties to a contract intended the warranty to protect against emancipation, then they would “have been more explicit in making known that intention than by adopting a stereotyped formula, which had been in use … for more than two hundred years.”38 As the war progressed, a few people did include provisions for the loss of labor, especially in hire contracts, and 36 37 38

Hand v. Armstrong 34 Ga. 232 (1866), 238. Walker v. Gatlin 12 Fla. 9 (1867), 12, emphasis in original. Walker v. Gatlin 12 Fla. 9 (1867), 15.

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judges honored them.39 But in most suits, litigants were effectively asking courts to apply an ex post facto “policy of insurance” against an unanticipated – and therefore unspecified – event. Therein lay the fundamental problem. The contracting parties would have needed to foresee emancipation by government action and agree to include it in their agreements if they had wished their warranties to protect against it. Without such a provision, judges declared, white southerners had inadvertently exposed themselves to an ever-present risk of emancipation by government action. The Florida court reminded litigants that the government could always have deployed “‘eminent domain,’” which vested the government with “ultimate title to all property.” Ownership of enslaved people had always been “subservient to that limitation and condition.”40 Perhaps most bluntly of all, the Kentucky Court of Appeals asserted that “the abolition of slavery, by the action of the government, was a contingency, like that of the death or escape of the slave to be risked by the purchaser.”41 In one refrain after another, judges made clear that people who had traded in slaves “took them subject to any change in the laws by which such property was held that the people of the United States, or their legally constituted agents might make.”42 Judges’ assertions implied that slaveowners, as rational economic actors, should have accounted for the intrinsic risk of emancipation. “It was possible, though not so probable, that the slaves might all … cease to be slaves by the effects of the war or the action of the government. … [A]ll these perils were known to the parties, and the risk of all was assumed and encountered” with every purchase or lease.43 Instead, judges articulated, southerners had deceived themselves into believing that enslaved property was safer than other market commodities. The risk to slavery that Reconstruction-era judges described was all but unfathomable before the war. It not only contradicted everything white enslavers believed about the financial benefits of slave ownership but also belied their historical experience. Slave ownership had a 39 40 41 42 43

See, e.g., Noland’s Executor v. Golden, 66 Ky. 84 (1867). Walker v. Gatlin 12 Fla. 9 (1867), 15. Thomas v. Porter, 66 Ky. 177 (1867), 177. Bailey v. Howard, 2 Ky. Op. 294 (1868), 295. Scott v. Scott 59 Va. 150 (1868), 176.

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proven track record. Investment in human property had helped people weather economic panics, including in 1837 and 1857, because they could be hired out for wages or liquidated through sale or mortgage.44 Black freedom could have been realized only with Union victory in the Civil War and the political will to abolish slavery. As the attorneys for one Mississippi man noted, “[N]o human foresight contemplated the events that have transpired.”45 Post-emancipation, the formerly responsible act of acquiring slaves was retrospectively transformed into a potentially reckless deed that imperiled households. Not only had slave ownership failed to protect the enslaving class, but individual slave owners had failed as men and masters. In what must have further frustrated litigants seeking relief, some judges agreed, even as they presumed an inherent risk to slavery and forced debtors to pay. The Alabama Supreme Court considered emancipation “the result of vis major of political events,” which could never have been anticipated. It must be “put on the same footing as an act of God.”46 Some rulings lamented the cost of emancipation to white slaveholders, but they also indicated the judicial constraints with which they were working. Judges were “not unmindful of the hardship and ruinous loss which have very often arisen out of circumstances connected with the late war, by which individuals, in consequence of acts not their own, have been made to suffer, but can not, on account of such hardship, depart from the well established principles of law.”47 It would otherwise open the floodgates to “every such warranty of servitude of slave thus emancipated,” which most judges believed to be “a wide and disastrous field of litigation” that called all warranties for enslaved people into question.48 This particularly revealing statement illustrates the rationale behind the majority position. Judges made a choice not to consider the alternative – nullifying

44 45

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Levy, Freaks of Fortune: The Emerging World of Capitalism and Risk in America, 94. Bradford v. Jenkins 41 Miss. 328 (1867). R. O. Reynolds, Reports of Cases Argued and Determined in the High Court of Errors and Appeals for the State of Mississippi, vol. XLI (New York: Banks Brothers, Publishers, 1868), 333. Glover v. Taylor & Co. 41 Ala. 124 (1867), 130–131. Alabama Department of Archives and History, SC268. Haskill v. Sevier 25 Ark. 152 (1867), 157. Haskill v. Sevier 25 Ark. 152 (1867), 157.

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the agreements – because it would have been too disruptive to court business and to the economy, not necessarily because it was unjustified. Judges, in other words, had no interest in being the perpetual censors of slave contracts. They concluded, therefore, that the laws that had permitted slavery may have changed but the rules of capitalism and doctrine of contract had not. When litigants went to court seeking compensation for their own individual lost causes, they challenged jurists to consider the relationship between slavery and capitalism. Abolitionists, such as Louisiana’s James Taliaferro, believed that contracts “arising from the traffic in slaves” violated the Thirteenth Amendment.49 The amendment necessarily ended the business of bondage and destroyed slavery’s connection to capitalism. Financial losses, therefore, had to be borne by those to whom money for bondspeople was still owed or who owned chattel property outright. In this interpretation (see Chapter 1) judges considered slaves to be a unique form of property that lacked support in natural law. Thus, when the majority of the nation no longer wished to tolerate slavery’s existence, little else existed to secure it permanently in place. The rules that governed the slave trade may have appeared identical to the commerce in any other commodity, but in fact, judicial abolitionists argued, they had been artificially sustained by positive law. Enforcing debts for bondspeople violated the very premise of abolition by validating that monetary value could be assigned to human bodies and allowing some to continue profiting from their monstrous trade. This position need not have threatened American capitalism any more than it undermined contract doctrine. It required the acceptance that persons could not be property, and that the Thirteenth Amendment prohibited the enforcement of any agreements that stipulated the opposite.50 Beyond that, judges did not fault liberal economic theory or practice. In this way, judicial abolitionists were far more conservative than abolitionists writ large. Many abolitionists, including William Lloyd Garrison, Wendell Phillips, and for a time Horace Greeley, harbored much stronger anticapitalist views. Some even advocated land redistribution and utopian socialism alongside 49 50

Wainwright v. Bridges 19 La. Ann. 234 (1867), 240. Huston, “Abolitionists, Political Economists, and Capitalism.”

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abolition. These activists saw the plight of the enslaved person and the wage laborer as intertwined, and grasped the connection between the development of slavery and the growth of liberal capitalism in the United States and abroad.51 But even the far more modest claims of judicial abolitionists proved too radical for most judges. They agreed with dissenting Louisiana justice John Ilsley, not Taliaferro. While the Thirteenth Amendment prohibited the continued ownership of slaves, it did not prevent the completion of transactions already contracted. Perhaps more revealing of the majority view, slavery’s capitalism had benefitted the economic development of the United States, and “but for the rebellion … [no] change would have been wrought.”52 To the contrary, Ilsley wrote, “‘no one’ (to use the language of Mr. Chief Justice Taney) ‘questioned the opinion that slavery and the traffic in slaves was morally right. It was regarded as an axiom … which no one thought of disputing, or supposed to be open to dispute.’”53 Indeed, for most, the overall benefit of slavery remained indisputable. Even as disappointed litigants sought relief from emancipation, judges maintained that the rules that had always governed the market remained unaffected and universal. That was unfortunate for those who still owed debts for bondspeople, but enforcement of those debts affirmed the fundamental tenets of the system of capitalism that slavery had engendered. Money for slaves, even if reduced in amount, would continue to enrich some white southerners. The rules of American law and capitalism combined to validate the financial value once vested in people. The post-emancipation effects of slavery’s capitalism were amplified in litigation related to southern estates. In contrast to the money

51

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Manisha Sinha, The Slave’s Cause: A History of Abolition (New Haven, CT: Yale University Press, 2016), 347–58. Sinha overturns the thesis of David Brion Davis, who argued in The Problem of Slavery in the Age of Revolution that abolitionist ideology not only promoted, but justified, capitalism’s accumulation of wealth and discipline of labor. See also, Sinha, “The Problem of Abolition in the Age of Capitalism.” Wainwright v. Bridges 19 La. Ann. 234 (1867), 244. Wainwright v. Bridges 19 La. Ann. 234 (1867), 244.

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involved in individual sales or leases, this type of litigation involved the wealth accumulated over generations. Slave ownership was supposed to provide financial security for families – especially for wives, children, and other dependents, since land was typically passed down to sons (or the eldest son alone), while wealth in other forms of property was bequeathed to wives and daughters. While most southerners did not own any slaves at all, those who did often invested more of their wealth in slaves than in real or other personal property.54 For elite planters especially, economic historian Gavin Wright reminds us that “wealth and wealth accumulation meant slaves, and land was distinctly secondary.”55 On the eve of the Civil War, roughly $3 trillion of the South’s $6.3 trillion in wealth was invested in slave property.56 This degree of financial reliance on slavery made emancipation utterly devastating.57 For those who had mortgaged or used their slaves as collateral, it was completely ruinous. One Virginia judge questioned whether any estate composed significantly of enslaved property could have survived emancipation. It was unclear to him “whether” anyone “would have been able to carry it, or any part of it, safely through a war which has wrecked the hopes and the fortunes of so many.”58 Estates were left insolvent. Bequests went unfulfilled. The effects of these outcomes remain observable to this day. Southern women often bore the brunt of the burden when estates crumbled. For example, Florida woman Rhoda Kilcrease Gibbes, the widow of William Kilcrease, challenged her husband’s will after 54

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Approximately 394,000 out of roughly 8 million free people in the South owned enslaved people in 1860 (or about 5 percent). Most owned between 1 and 5 bondspeople. Jenny Bourne, “Slavery in the United States,” EH.net, March 26, 2008, https://eh.net/encyclopedia/slavery-in-the-united-states/. See also, U.S. Bureau of the Census, Historical Statistics of the United States, 1970, collected in ICPSR study number 0003, “Historical Demographic, Economic and Social Data: The United States, 1790–1970.” Gavin Wright, Old South, New South: Revolutions in the Southern Economy since the Civil War (Baton Rouge: Louisiana State University Press, 1997), 19–20. Wright, Slavery and American Economic Development, 60. Southerners did occasionally raise concerns about the regional dependence on slavery and the perceived inequality between North and South. Recently, Walter Johnson has explored some of those fears. Johnson, River of Dark Dreams: Slavery and Empire in the Cotton Kingdom. Mason v. Jones 67 Va. 271 (1875), 277.

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“the estate suffered a loss amounting to not less than $150,000 from the emancipation of the slaves,” leaving it insolvent.59 The Florida Supreme Court invoked the same logic that informed rulings in contract suits. It would not “relieve her … upon a ground of loss, occurring in the natural order of things.”60 It would not “establish a principle of insurance” after the fact.61 Similarly, Susan Lewis, the widow of prominent Texan John Lewis, managed to salvage only a small portion of her husband’s estate.62 When he died in 1862, “Lewis was doubtless solvent … but … Emancipation reduced the estate to insolvency.”63 Ultimately, Susan’s efforts to save her family’s legacy failed. By 1898, land that had comprised the original Lewis plantation had changed hands three times. Descendants of John Lewis hoped to reclaim what they knew as Elmwood Plantation but never managed to do so.64 Owing to the property’s proximity to a reservoir, it became a “pulsating Gulf States Utilities plant” in the 1960s.65 The company, now known as Entergy, still owns the property but few, if any, recognize the role emancipation played in opening that acreage to outside purchase. Some suits pitted family members against each other. The children of Benjamin Skinner, a member of a distinguished North Carolina family that had lived in the region since the colonial period, ended up in court when emancipation made their father’s will impossible to honor.66 “By the results of the war the estate, other than the

59 60 62

63 64 65 66

Stephens v. Gibbes 14 Fla. 331, 360. 61 Stephens v. Gibbes 14 Fla. 331, 360. Stephens v. Gibbes 14 Fla. 331, 360. John Lewis had emigrated from Virginia with 200 slaves, and made his home and plantation in Montgomery County, Texas, in 1842. In addition to being a well-respected planter, Lewis distinguished himself in state government, where he served as the last speaker of the House for the Republic of Texas. Sondra Hernandez, “Civil War Vet Returns to Willis, Becomes Active in Politics,” The Courier of Montgomery County, March 15, 2017, www.yourconroenews.com/125years/article/Civil-War-vet-returnsto-Willis-becomes-active-11003364.php#item-85307-tbla-5. Lewis v. Nichols 38 Tex. 54, 55. Hernandez, “Civil War Vet Returns to Willis, Becomes Active in Politics.” Josie Patrick, “The General Lewis Plantation,” Willis Centennial, 1970, 19. As a consequence of their Quaker heritage, the Skinner family had a complicated history with slavery. For example, Reverend Thomas Harvey Skinner, Benjamin’s brother, believed slavery was a great evil, but also acknowledged that the law protected it. Mary Maillard, ed., “Skinner Family Papers,” accessed October 26, 2018, https://skinnerfamilypapers.com/?page_id=535.

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lands … is insufficient to pay the … legacies … to each of his four daughters.”67 Skinner’s daughters, disproportionately affected by the change in the estate’s worth, sued their brothers, to whom the land had been bequeathed. They demanded an accounting of the lands not specifically left to their brothers, and if selling them would not cover their pecuniary legacies, they argued their brothers’ lands should also be sold in order to honor their father’s desire “to make all his children equal.”68 The North Carolina Supreme Court recognized that to allow the daughters’ legacies to become “a charge upon the real estate” meant “exhaust[ing] the whole of the real estate and leav[ing] the sons nothing.”69 But not doing so entailed the sons “tak[ing] almost all the estate from the daughters.”70 Either scenario “would do violence to the intention of the testator.”71 In the end, Skinner’s explicit desire for parity among his children prevailed. The court ordered the accounting desired by his daughters, and demanded that the lands left to his sons be “ascertained and applied” to the legacies of the four daughters. Benjamin Skinner’s children ended up luckier than others. The generational wealth accrued in significant part through their family’s longstanding participation in slavery ultimately did pay off. But that was not always the case, as the Calhoun saga demonstrates. A family dispute was also at the heart of the sensational Calhoun v. Calhoun. During the antebellum years, the Calhouns were one of South Carolina’s most prestigious families.72 When John C. Calhoun died in 1850, he bequeathed his sizeable estate, which included the Fort Hill plantation, enslaved people, and other valuable 67

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Lassiter v. Wood 63 N.C. 360. S.F. Phillips, Cases Argued and Determined in the Supreme Court of North Carolina, vol. LXIII (Raleigh, NC: Nichols & Gorman, Book and Job Printers, 1869), 362. Lassiter v. Wood 63 N.C. 360, 363. 69 Lassiter v. Wood 63 N.C. 360, 363. Lassiter v. Wood 63 N.C. 360, 363. 71 Lassiter v. Wood 63 N.C. 360, 363. The family’s wealth came from the legacy of family matriarch Floride Bonneau Colhoun Calhoun. Her family had owned the land prior to John C. Calhoun. The Bonneaus made their fortune as the owners of rice plantations in the low country and from opportunistic purchases of Cherokee lands after the American Revolution. Ernest McPherson Lander, Calhoun Family and Thomas Green Clemson (Columbia: University of South Carolina Press, 1989), 12. John C. Calhoun, famous for his pro-slavery rhetoric, served in the House of Representatives, in the U.S. Senate, and as vice president for both John Quincy Adams and Andrew Jackson. These positions did not add much to the family’s coffers, but they certainly added to the family’s social position.

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possessions, to his wife (and first cousin), Floride Bonneau Colhoun Calhoun.73 When the aging Floride decided four years later that she no longer wished to oversee and maintain the large property, she sold the plantation (1,110 acres), fifty bondspeople, and all the personal property on thereon to her son, Andrew P. Calhoun, for $49,000 (approximately $1.7 million today74). Characteristically, the slave property made up the majority of the value of the estate.75 In order to buy the expensive property – real, chattel, and personal – Andrew Calhoun borrowed from his mother. In 1854, he “executed two separate mortgages, one for the Fort Hill plantation, and the other for the fifty negro slaves, each, by its terms, to secure the payment of the whole amount of the bond to Floride Calhoun” and her disabled dependent daughter Cornelia.76 The family agreed that Andrew would pay back the loan plus interest in regular installments over a fifteen-year period. By 1869, when the final payment of the mortgage was scheduled, Andrew Calhoun was slated to pay a total of $88,720 for the estate (Figure 2.1).77 Andrew agreed to the terms, certain that the investment would bring prosperity to his family. And then the war came. 73

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Even at this time, debt imperiled the estate. In 1850, Charleston friends raised the necessary funds to save the family from ruin and paid off their debt as a symbol of appreciation for the work John C. Calhoun had done on behalf of their state. Calculation determined using www.measuringworth.com/index.php. The real estate that made up the Fort Hill Plantation had been valued at $15,000; the slaves had an estimated worth of $29,000; and additional tools and equipment amounted to $5,000. Calhoun v. Calhoun 2 S.C. 283 (1870), 2. This information was included in the Circuit Court’s Decree, which was reported along with the South Carolina Supreme Court ruling. “Whereas I the said Andrew P. Calhoun in and by my certain bond or obligation bearing date the 15th day of May one thousand eight hundred fifty four stand firmly held and bound with Floride Calhoun and Cornelia Calhoun of the same state and District in the penal sum of ninety eight thousand dollars and determined for the payment of the full and just sum of Forty nine Thousand Dollars that is to say forty thousand two hundred dollars to the said Floride Calhoun and eight thousand eight hundred dollars to the said Cornelia M. Calhoun the whole amount to be paid in fifteen years from the first day of April AD one thousand eight hundred and fifty four, payment to commence in ten years from that date and to be fully completed in five equal annual installments there after with interest on the whole amount for the first ten years at the rate of five and one half per cent per annum, and for the remaining five years at the rate of three percent per annum upon the installments as they fall due” Bond between Floride, M.M. and A.P. for the Purchase of the Fort Hill Farm, May 15, 1854. Clemson University Special Collections Unit University Archives. Lee v. Simpson Mss 256, Box 1, Folder 54.

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figure 2.1  A Schedule of Slaves with Their Names and Ages The schedule of enslaved people purchased by Andrew Calhoun from his mother, Floride Calhoun, May 15, 1854. Courtesy of Special Collections and Archives, Clemson University.

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Mortgages like this one had long sustained the antebellum slave economy. Most contracts for enslaved people included promises to pay in installments, using the property being purchased as collateral for the debt. These purchase-money mortgages, as they were known, allowed those without sufficient capital on hand – such as Andrew Calhoun – to purchase enslaved people and transform their labor and prospective value into financial resources and social capital.78 Conversely, such agreements permitted those with sufficient liquidity – such as Floride Calhoun – to use existing assets to generate additional wealth, and so the cycle continued as slavery expanded throughout the era. From the colonial period onward, historian Bonnie Martin has shown, neighbors, friends, and family members executed mortgages largely on their own. Banks and other formal lending institutions rarely became involved, except as locations for deposit.79 In South Carolina, for instance, of all interpersonal loans that used slaves as collateral, individuals arranged 81 percent of them among themselves, while “banks, churches, merchants, and building societies” supplied the rest.80 South Carolina borrowers were more likely than residents in other states to use their bondspeople as security for loans, but the common financial practice took place everywhere, creating a “matrix of overlapping local credit networks” that had sustained some enslavers through periods of economic contraction.81

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An alternative arrangement, an equity mortgage, used other property as collateral for the purchase of a slave or other property. Bonnie Martin, “Slavery’s Invisible Engine: Mortgaging Human Property,” The Journal of Southern History 76, no. 4 (2010): 817–66; Bonnie Martin, “­Neighbor-to-Neighbor Capitalism: Local Credit Networks and the Mortgaging of Slaves,” in Slavery’s Capitalism (Philadelphia: Pennsylvania University Press, 2016), 107–21. Andrew and his mother entered into this kind of arrangement; he paid his debts to the Bank of Charleston into her account. On the securitizing of slaves in international financial networks, see Edward E. Baptist, “Toxic Debt, Liar Loans, and Securitized Human Beings: The Panic of 1837 and the Fate of Slavery,” in Capitalism Takes Command: The Social Transformation of Nineteenth-Century America, ed. Michael Zakim and Gary J. Kornblith (Chicago: University of Chicago Press, 2011). Martin, “Slavery’s Invisible Engine: Mortgaging Human Property,” 846. Martin, “Neighbor-to-Neighbor Capitalism: Local Credit Networks and the Mortgaging of Slaves,” 108.

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In some instances, these local networks were institutionalized. For example, enslaved property provided the security for 80 percent of mortgages in East Feliciana Parish, Louisiana, and served as collateral for the white planters of means who bought shares in the state’s investment banks.82 In some locations – frontier settlements especially  – enslaved people may have been the chief source of liquidity and the primary engine for further development of slave-based agriculture. Before emancipation, a borrower who defaulted on a mortgage for a bondsperson would have been forced to sell or face repossession by the lender.83 After the war, however, this option disappeared; the enslaved collateral used to secure the loans had been destroyed. So long as states required the repayment of debts for slaves, as all but Louisiana ultimately did, these obligations had to be paid out of other resources. And for those such as Andrew Calhoun, who had also mortgaged their other assets, or for those who had no other resources with which to pay back loans for slaves, financial disaster loomed. Even before the war ended, the Calhoun family suffered a tragic blow. Andrew P. Calhoun died suddenly of a heart attack in March 1865, just months before emancipation. At that time, he had paid only $9,000 of the money he owed on the Fort Hill mortgage, and had accrued other sizeable debts by investing heavily in the Confederacy. With emancipation and the removal of slaves as assets, the estate became insolvent. The newly widowed Margaret Calhoun, wife of Andrew, would not be able to pay her mother-in-law the mortgage debt her husband had incurred.84 Floride Calhoun was not at all sympathetic to her daughter-in-law’s plight. On March 12, 1866, she and her son-in-law Thomas Green Clemson initiated foreclosure proceedings against Andrew’s family.85 If her son’s family could not repay his loan, Floride would not allow her daughter-in-law or her grandchildren to remain at Fort Hill. 82 83

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Johnson, Soul by Soul: Life inside the Antebellum Slave Market, 26. Of course, financial risks taken by debtors could translate into personal disaster for the enslaved people whose value had been leveraged. Countless personal accounts of enslaved people recall the trauma of forced separation that accompanied masters’ insolvency. Margaret is sometimes called “Marguerite” in court documents. Clemson acted on behalf of the disabled Cornelia Calhoun.

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Margaret found no relief in court either. The Circuit Court’s decree from 1866 stated plainly that the estate “like many others, was almost entirely swept away by the results of the late war.”86 Fort Hill itself was “the only property remaining for the payment of the bond.”87 Andrew’s widow either had to pay or face the loss of her home. In her appeal to the state’s supreme court, Margaret Calhoun attempted to finesse the interpretation of her agreement in her favor. Because the enslaved property had been mortgaged, she argued, the creditor still owned them. In this case, that meant her mother-in-law, Floride, who died just before the suit commenced. The fifty bondspeople “were, at the time of emancipation, the absolute property of the mortgagees, both by law and the terms of the agreement. Their loss was the misfortune of the complainants,” not the liability of Margaret and her children.88 It was a claim of desperation, as Floride owned the mortgage, not the slaves. Margaret’s counsel almost certainly understood that such an argument would fail, but they, and lawyers and litigants elsewhere, tried any tactic that might offer relief. The Supreme Court of South Carolina was not persuaded. It followed the lead of the other state courts that enforced contracts for enslaved people and denied Margaret’s claim in its entirety. “Slaves, in South Carolina, when this contract was made, were the legitimate subjects of sale and purchase. To impeach such a transaction now as illegal, or against public policy, is not only to ignore the history of the State in regard to the institution, but to view the events of the past by the reflected light of the present day.”89 Moreover, the court declared that “the mortgage, in fact, is but a security for the debt.”90

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Calhoun v. Calhoun, 2 S.C. 283 (1870), 4. The widow and children of Andrew P. Calhoun did rent out the land of the plantation in an attempt to raise the funds necessary to pay Floride Calhoun and Thomas Clemson. However, given the financial circumstances southerners experienced in the immediate aftermath of the Civil War, they could not command enough money to pay their debts. Calhoun v. Calhoun, 2 S.C. 283 (1870), 4. Though it seems heartless of Floride to evict her own grandchildren, scholars of the family have documented that Floride did not have a particularly good relationship with her son Andrew, and seemed to care less for him and his children than she did for her daughter Anna Clemson and her children. Calhoun v. Calhoun, 2 S.C. 283 (1870), 13. Calhoun v. Calhoun, 2 S.C. 283 (1870), 307. Calhoun v. Calhoun, 2 S.C. 283 (1870), 308.

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Any argument to the contrary misunderstood the commercial instrument. The South Carolina court’s opinion relied on a firm belief in an uninterrupted economy. The “history of the State in regard to the institution,” judges believed, included the economic system that evolved within it. None of the cold calculations revealed in the opinion considered that antebellum wisdom instructed men of Andrew Calhoun’s class to build their estates out of slaves. Doing so purportedly insulated dependent family members from destitution and ruin should tragedy strike, and grew the wealth of the estate for future generations. Though Andrew had made a number of other poor investment decisions (including investing heavily in the Confederacy), purchasing Fort Hill did not count among them. He intended, as many prominent men did, to use the estate as security for his family and to safeguard the prominence of his family’s social stature. After Andrew’s death, Confederate defeat, and the destruction of slavery, Margaret and her children realized just how deceptive that security had been. Unable to find the funds needed to save it, they watched helplessly as Fort Hill was auctioned off in Walhalla, South Carolina, on January 21, 1872.91 Yet this was not the end of the Calhoun story or of the family’s ties to Fort Hill. In her will, written before initiating the original order of foreclosure, Floride Calhoun bequeathed Andrew’s bond and mortgage to her favorite daughter, Anna Clemson, and her granddaughter and namesake, Floride Clemson. In her diary, the younger Floride stated, with a full grasp of the stakes, that “Fort Hill, all the rest of her personal property & furniture, silver & jewels, [shall pass] to mother first, then to me, then to [my brother] Calhoun, in case I die without either will or issue.” In addition, “a fourth part of the Ft. Hill bond & mortgage is mine now. … Grandma has done a noble part by me.”92 When the property went up for auction, Thomas Green Clemson, Anna’s husband, bought Fort Hill on behalf of his wife and

91 92

Lander, Calhoun Family and Thomas Green Clemson, 239. Floride Clemson, A Rebel Came Home (Columbia: University of South Carolina Press, 1961), 109. Calhoun was Floride Clemson’s brother, Floride Calhoun’s grandson. The remaining three quarters of the Fort Hill bond passed to Anna Clemson.

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daughter using Andrew’s original bond as security plus $7,000 of his own funds. The property remained in the Calhoun family. After the untimely deaths of his children Floride Clemson and Calhoun Clemson in 1871, and his wife Anna Clemson in 1875, Thomas Clemson alone inherited Fort Hill. After yet another extraordinary and protracted legal battle (Lee v. Simpson) that contested this inheritance and ultimately ended up in the U.S. Supreme Court, the ownership of the old Calhoun plantation remained Clemson’s.93 The property became Clemson College in 1889, according to Thomas Clemson’s last will and testament.94 The Fort Hill plantation house still sits at the center of what is now Clemson University. Periodically, distant relatives of Floride and John C. Calhoun have challenged Clemson’s right to the property and the subsequent establishment of Clemson College by an interloper on their family’s land. None have succeeded. Some state legislatures and state constitutional conventions adopted measures specifically intended to provide postbellum financial relief. Recall (Chapter 1) that state constitutional provisions that nullified agreements for enslaved people were part of a multifaceted plan to alleviate debt. So too were homestead exemptions (which shielded a set amount of property from creditors), stay laws (which allowed debtors more time to pay their debts than originally stipulated), and statutes that allowed the scaling of Confederate currency.95 Those who favored such provisions sought ways to transfer economic power that had traditionally rested in the hands of large slaveholders to the politically ascendant men of more modest means, including Black Americans and members of the yeomanry. In this way, debt relief provisions represented the antithesis of slavery’s capitalism; they offered financial assistance to the very people who once comprised the estates of the region’s wealthiest families.

93 94 95

Lee v. Simpson 134 U.S. 572 (1890). Clemson, A Rebel Came Home, 119–20. Kull, “The Enforceability after Emancipation of Debts Contracted for the Purchase of Slaves,” 496. On debt relief measures, see Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, 326–29. These issues will also be discussed at length in subsequent chapters.

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Relief measures attracted interracial support, from struggling small farmers who sought debt alleviation to African Americans, who wanted to establish low homestead exemptions that would force large, indebted landholders to part with some of their real estate.96 With more land available, African Americans would have a chance to purchase their own homesteads at more affordable prices. Freedmen and other Radicals believed that providing land and breaking up plantations were essential for Black success.97 Some reasoned that the measures would aid poorer whites by shifting financial losses to those large planters considered wealthy enough to absorb them, and who were guilty of leading the southern states into a devastating war. They, or equally maligned slave traders, had presumably sold or hired out the slaves in question.98 Of course, this ignored reality. For one, all southerners, including the old planter elite, faced dire financial straits.99 For another, plenty of those who sought payment for slaves counted among the middling classes the delegates thought they were shielding from loss. As one legal scholar asserts, the “creditor, in fact, was far more likely to be a widow or an orphan than” a slave trader or wealthy planter.100 After all, credit often originated in local communities – sometimes between neighbors – rather than from commercial traders or well-heeled financial institutions.101 Debt relief provisions prompted litigation that mirrored contract cases. More often than not, judges overrode the intent of lawmakers, preferring instead to bolster the rules of liberal capitalism – particularly that the state should not create artificial barriers to the exchange of capital. The homestead exemption, for instance, was hotly debated among jurists, but it was not a new legal device. Exemptions had already been adopted in state codes or constitutions to shield real 96

Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, 326–27. Ibid., 329. 98 Kull, “The Enforceability after Emancipation of Debts Contracted for the Purchase of Slaves,” 524. 99 Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, 326. 100 Kull, “The Enforceability after Emancipation of Debts Contracted for the Purchase of Slaves,” 528. 101 Martin, “Neighbor-to-Neighbor Capitalism: Local Credit Networks and the Mortgaging of Slaves”; Richard Holcombe Kilbourne, Jr., Debt, Investment, Slaves: Credit Relations in East Feliciana Parish, Louisiana, 1825–1885 (Tuscaloosa: University of Alabama Press, 1995). 97

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property from creditors or tax collection when an owner was in dire financial straits. States across the nation had instituted them during the antebellum period to help protect small independent property owners against periods of economic panic – especially from opportunistic, predatory creditors.102 Ideally, such statutes would ensure that families would keep their homes and means of production despite market busts, crop failures, or derelict husbands who failed to provide adequately for wives and children.103 Over the course of Reconstruction states that lacked homestead exemptions adopted them, and those with preexisting laws expanded the amount of property they protected. For example, Alabama quadrupled the acres covered, while Georgia exempted “ten times the value of town lots protected in 1845.”104 Virginia came late to this practice; it was one of only three slave states (Kentucky and South Carolina were the others) that had failed to adopt a homestead exemption prior to the end of the Civil War.105 Virginia, a state that experienced a significant degree of physical destruction in the Civil 102

103

104 105

In other states, such exemptions were called “poor man’s laws.” Texas was the first state to adopt a homestead exemption, doing so in 1839. This should not be surprising, since the device was far more common in Spanish law than in English or American law. See Goodman, “The Emergence of Homestead Exemption in the United States.” “The ten Southern states passed their first homestead exemption laws in the following years: Texas in 1839; Georgia in 1841; Mississippi in 1841; Alabama in 1843; Florida in 1845; South Carolina in 1851 (repealed seven years later); Louisiana in 1852; Tennessee in 1852; Arkansas in 1852; and North Carolina in 1859. The remaining four states – Missouri, West Virginia, Kentucky, and Virginia – did not pass their first laws until 1863, 1864, 1866, and 1867, respectively.” Alison D. Morantz, “There’s No Place Like Home: Homestead Exemption and Judicial Constructions of Family, in Nineteenth-Century America,” Law and History Review 24, no. 2 (Summer 2006): 253n24. Paul Goodman, “The Emergence of Homestead Exemption in the United States: Accommodation and Resistance to the Market Revolution, 1840–1880,” Journal of American History 80, no. 2 (September 1993): 470–98. Goodman argues that antebellum homestead provisions were adopted to support the republican ideal of self-sufficiency that was threatened by tenant farming, wage slavery, and the market revolution. It’s worth noting that there was a negative side to adopting homestead exemptions. Creditors were less eager to loan money without strong assurances that the note would be repaid. This meant that often, the economy was constrained by a lack of financial liquidity. Ibid., 492. There was a $500 exemption that existed in Virginia before this was passed, but it was not a homestead exemption. Kentucky adopted its homestead exemption in 1866.

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War, attempted to forestall total economic collapse by adopting a retroactive homestead provision in its new state constitution.106 Even a retroactive exemption was not particularly unusual. Georgia, North Carolina, and Mississippi all structured their exemptions in this way. The U.S. Congress also saw the benefit of such protective legislation. Compelled by western states, Congress enacted The Bankruptcy Act of 1867, which gave preference to state homestead exemptions adopted before 1864, and was then revised to acknowledge exemptions enacted before 1872 – even if they were retroactive.107 Protecting property in the postbellum context safeguarded the foundations of the agricultural economy – real property ownership and the indebted landowners of all classes.108 Land reformers and abolitionists alike favored the provisions.109 The use of homestead exemptions by indebted former slaveowners predictably led to legal showdowns with creditors. In Virginia, suits against those who invoked the exemption also became referendums

106

107 108

109

Article XI of Virginia’s Constitution of 1870 protected $2,000 worth of property from creditors, on “any debt heretofore or hereafter contracted.” This constituted a high amount by antebellum standards (e.g., Indiana only exempted $300 in 1852), but a general trend toward more liberal exemption laws emerged after the war, and Virginia’s enactment aligned with other states’ Reconstruction-era protections. Article XI, Section 1 of the Constitution of Virginia of 1870 read: “Every householder or head of household shall be entitled, in addition to the articles now exempt from levy or distress for rent, to hold exempt from levy, seizure, garnisheeing, or sale under any execution, order, or other process, issued on any demand for any debt heretofore or hereafter contracted, his real and personal property, or either including money and debts due him, whether heretofore or hereafter acquired or contracted, to the value of not exceeding two thousand dollars, to be selected by him …” The Virginia Assembly enacted the Homestead Exemption Laws in the same year, pursuant to this new constitutional provision. See Chapter 157 – “An ACT to Prescribe in What Manner and on What Conditions a Householder or Head of a Family shall Set Apart and Hold a Homestead and Personal Property, for Benefit of Himself and Family, Exempt from Sale for Debt.” Acts of the General Assembly of the State of Virginia Passed at the Session of 1869–’70 (Richmond, VA: James E. Goode, Printer, 1870), 198. Goodman, “The Emergence of Homestead Exemption in the United States: Accommodation and Resistance to the Market Revolution, 1840–1880,” 492. Goodman, “The Emergence of Homestead Exemption in the United States: Accommodation and Resistance to the Market Revolution, 1840–1880,” 492. James W. Ely, Jr., “Homestead Exemption and Legal Culture,” in Signposts: New Directions in Southern Legal History, ed. Sally E. Hadden and Patricia Hagler Minter (Athens: University of Georgia Press, 2013), 294. Sinha, The Slave’s Cause: A History of Abolition, 354.

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on the state’s new political order. The enactment of a homestead exemption in Virginia signaled a new political willingness to protect the yeomanry over the interests of creditors. In a state once dominated by large slaveholders, this became possible because smaller planters and freedpeople had managed to wrest control of the state constitutional convention and the legislature away from the gentry who had historically controlled the state’s politics.110 As an “interracial group of Virginia Republicans” at the convention submitted, “The courts re-established under the auspices of the last Legislature, through their law officers, are now demanding the heart’s blood of the poor debtors – and for whom? No one, save the capitalists and landed proprietors who were and are the secessionists of Virginia. … As long as they are allowed to control the people by the ledgers, just so long with they be the greatest enemies the Republican party will have to contend with.”111 A homestead exemption offered welcome relief from this financial oppression. Litigants in The Homestead Cases, themselves men of the middling class, reinforced the claims made at Virginia’s Constitutional Convention. Counsel argued, “[T]he truth is the creditor class of the community have moulded [sic] the legislation, and even the public sentiment, of the States, on the subject of contracts. They have applied their own commercial code of morals to the subject – a code which ignores all other relations and obligations but that of creditor and debtor.”112 They implored the Virginia Supreme Court to consider Virginia’s postbellum circumstances and to remember the words and motivations of the lawmakers – Black and white – who had devised the exemption. Debtors insisted that “[T]he courts should not and cannot declare the action of the conventional power to be null and 110

111

112

William W. Freehling, The Road to Disunion Volume I: Secessionists at Bay, 1776– 1854 (Oxford: Oxford University Press, 1991). See especially Part III. Class conflict between planters and the yeomanry had existed long before the outbreak of the Civil War, and Reconstruction presented an opportune moment to level the political playing field. Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, 327; W. H. Samuel, The Debates and Proceedings of the Constitutional Convention of the State of Virginia, Assembled at the City of Richmond, Tuesday, December 3, 1867 (Richmond, VA: Office of the New Nation, 1868), 88. The Homestead Cases 63 Va. 266 (1872). State Law Library of Virginia, Case file 458. Grattan, for the appellants.

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void on the ground that it is contrary to public policy,” because the people of Virginia, through their delegates, had determined the policy themselves.113 In statehouses and courthouses, a clear and pointed argument emerged. The recklessness and moral bankruptcy of antebellum elites had led the southern states to war and subsequent defeat, and their interests should no longer be protected at the expense of others. “The war having swept off their slaves and nearly all their personal property, leaving them little less than their lands, these lands are insufficient to pay their debts; and therefore they ask for some relief from the overwhelming ruin which has been brought upon them, not by any misconduct or extravagance of their own, but by a calamity for which creditors and debtors are alike responsible.”114 Here, we find a postbellum condemnation of the “slave power,” made by white southerners – some ex-enslavers – themselves. The courts should recognize, litigants argued, that there were “relations even more important than that of creditor and debtor to the well-being of a State, prior in time, and based upon higher sanctions.”115 By invoking God, some appealed to a higher law to prove just how much was at stake (not unlike abolitionists who used the same moral suasion to condemn the slave trade). Yet creditors had also taken financial risks on slavery. They had lent the money necessary for individuals to buy the slaves that toiled across the region, and they too, as institutions, or more often as individuals, faced insolvency at the end of the Civil War. Though small farmers decried the power of creditors, the capital these lenders made available had long greased the wheels of the slave-based economy. They initiated mortgages, funded investments, and infused badly needed liquidity into a regional economy short on big financial institutions and on cash. The former slave states, seeking to make themselves anew, desperately needed both. Creditors sought relief in court when homestead exemptions prevented the repayment of loans. As in other contract litigation, they

113 114 115

Case file 458, Brief for Hill, The Homestead Cases, 63 Va. 266 (1872), 3. The Homestead Cases 63 Va. 266 (1872). State Law Library of Virginia, Case file 458. Grattan, for the appellants. The Homestead Cases 63 Va. 266 (1872). State Law Library of Virginia, Case file 458. Grattan, for the appellants.

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argued that retroactive homestead exemptions were “contrary to article I. sec. 10th constitution of the United States.”116 The Virginia court agreed, and treated the suit like any other contract dispute. The state’s legislature, it held, “Cannot, by retrospective legislation, annul the force of prior obligations. If it could do this, then the integrity of contracts, and the security for their faithful execution, in every State in the Union, would no longer be placed under the protection of the constitution of the United States, but would rest entirely upon the discretion of the legislatures or conventions of the several States. And where would be found the limit upon that discretion?”117 There was more disagreement about the constitutionality of homestead exemptions than over the enforcement of contracts for the sale or lease of enslaved people. The courts in Georgia, Alabama, Mississippi, and North Carolina all upheld retroactive exemptions. North Carolina’s Justice Edwin Reade noted that homestead exemptions represented lawmakers’ “commendable spirit” that allowed debtors with “the most prudent and honest purposes” to “escape from misfortune.”118 Reade strongly preferred the exemptions over stay laws, which he thought enabled debtors “to be profligate and dishonest.”119 Stay laws, which applied to wealthy and indigent alike, allowed debtors more time to pay their creditors than contracts originally stipulated. Some believed the measures did more harm than good.120 In 1869, Reade noted, “eight years of stay laws have left considerable indebtedness, with interest and cost accumulated and creditors and 116 117 118 119 120

The Homestead Cases 63 Va. 266 (1872), 2. State Law Library of Virginia, Case file 458. Opinion, The Homestead Cases, 63 Va. 266 (1872). Jacobs v. Smallwood 63 N.C. 112 (1869), 116, 115. Jacobs v. Smallwood 63 N.C. 112 (1869), 115–116. Homestead Exemption: Constitution of North Carolina 1868, Article X. Chapter CXXXVII “An Act to Lay Off the Homestead and Personal Property Exemption” Public Laws of the State of North Carolina, Passed by the General Assembly at Its Session 1868–1869 (Raleigh, NC: M.S. Littlefield, State Printer & Binder, 1869), 331. See also Goodman, “The Emergence of Homestead Exemption in the United States: Accommodation and Resistance to the Market Revolution, 1840–1880,” 492; Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, 327. Stay Laws: Chapter XIX, “An Ordinance to Change the Jurisdiction of the Courts and the rules of Pleading Therein,” Ordinances Passed by the North Carolina State Convention (Raleigh, NC: Wm. E. Pell, State Printer, 1867), 31–37.

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sureties impoverished, without any corresponding benefit to the principle debtors … some of whom will not pay, although their means are abundant and are used in speculation and extravagance.”121 The stay laws delayed repayment of obligations, exacerbating the already illiquid market, and they could lead to spiraling debt as interest compounded over time. Similarly, some insisted they aided immoral behavior when they permitted those otherwise capable of repayment to withhold their funds. The North Carolina Supreme Court overturned the stay laws for impairing contract rights. (For their part, Black southerners supported low homestead exemptions because they thought such measures would force large land holders to sell off some of their property to cover debts.122) Ultimately, however, the U.S. Supreme Court struck down ­retroactive homestead exemptions for the same reasons Virginia’s Supreme Court did: They violated the constitutional protection against the impairment of contract.123 But embedded within appeals to ­contract doctrine, slavery’s capitalism survived. The bulk of the cost of the court’s ruling would be borne by those small property owners  – Black and white – that many homestead exemptions had been specifically instituted to protect, but also those like Andrew Calhoun, who counted among the region’s elite. Those who were left with few resources would indeed be exposed to the perils of the postbellum economy, and the demands of creditors. Perhaps more important, judges proved their commitment to liberalism, even over the expressed wishes of state legislatures. In Black Reconstruction, Du Bois wrote that “Reconstruction was an economic revolution on a mighty scale.” But, he clarified, it was “not simply a fight between the white and black races in the South or between master and ex-slave.” Instead, “it was much more subtle,” and challenged the fundamental economic organization of American capitalism. Reconstruction, Du Bois concluded,

121 122 123

Jacobs v. Smallwood 63 N.C. 112 (1869), 115. Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, 327. See Edwards v. Kearzey 96 U.S. 595 (1877). Ranney, In the Wake of Slavery, 94–97; Goodman, “The Emergence of Homestead Exemption in the United States: Accommodation and Resistance to the Market Revolution, 1840–1880,” 492.

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“was a desperate effort of a dislodged, maimed, impoverished and ruined oligarchy and monopoly to restore an anachronism in economic organization by force, fraud and slander, in defiance of law and order, and in the face of a great labor movement of white and black, and in bitter strife with a new capitalism and a new political framework.”124 Du Bois did not appreciate, however, that judges facilitated the survival of “an anachronism” – slavery – by failing to address the rules of capitalism that had supported it throughout the nation’s history. The consequences of that failure can be traced directly. Recent economic research has shown that despite their immediate losses, the financial costs of emancipation had a limited effect on the long-term generational wealth or status of the old planter elite.125 Many of these families reestablished their social and fiscal footing within just a few decades. By 1900, the sons of slaveholders had recovered their family’s losses. They married into other former slaveholding families to join resources and shifted to white-collar employment. As a class, that is, former slaveholders consolidated their remaining wealth, mobilized their market and managerial acumen, and reasserted themselves as gentlemen – aided by the romanticism and burgeoning veneration of the Lost Cause.126 More important, they quickly regained access to credit, often from northern financiers, allowing investment into the novel ventures that would come to define the New South (e.g., textile mills and railroads). By 1940, the grandsons of planters had surpassed the relative wealth of their ancestors. The slaveholding elite may have lost in the short run, but within two generations their descendants had made significant economic advances. And they did so by using many of the same strategies as their forebears, including the exploitation of Black labor. 124 125

126

Du Bois, Black Reconstruction, 346–47. Philipp Ager, Leah Platt Boustan, and Katherine Eriksson, “The Intergenerational Effects of a Large Wealth Shock: White Southerners after the Civil War,” National Bureau of Economic Research Working Paper Series Working Paper 25700 (March 2019), https://doi.org/10.3386/w25700. On managerial expertise, see especially, Rosenthal, Accounting for Slavery: Masters and Management. On romanticism and the Lost Cause, see C. Vann Woodward, Origins of the New South (Baton Rouge: Louisiana State University Press, 1951); David W. Blight, Race and Reunion: The Civil War in American Memory (Cambridge, MA: The Belknap Press of Harvard University Press, 2001).

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Thomas Clemson exemplifies the pattern. He infused the capital necessary to save the Calhouns’ Fort Hill and then used his cachet to transform the property into a public college dedicated to educating the next generation of elite southerners. Clemson, a former U.S. secretary of agriculture and Confederate Army officer, believed that the New South would be led back to prosperity by white men educated in the cutting-edge agricultural science and technology of the day. Clemson’s history also illuminates the new ways that white southerners used the tools of capitalism to facilitate the development of new forms of racial subjugation. Clemson College’s buildings were constructed by Black convict laborers, leased by the first trustees of the college who had been tasked with bringing Clemson’s vision of a “high seminary of learning” to life. The Fort Hill plantation home, required by Clemson’s will to remain a central feature of the college, was restored in the 1930s by the John C. Calhoun chapter of United Daughters of the Confederacy, and remains open to the public.127 In countless other circumstances, land, capital, and financial access remained squarely in the hands of white elites. Freedpeople – and poor whites, at least economically – made far less headway. For one, courts invalidated many of the protections instituted by state legislatures, which had been designed specifically to protect the financially disadvantaged. For another, even when large planters defaulted, their property was not redistributed to those of more modest means, either by policy or by free market forces. Recent scholarship has shown instead that northern capitalists bought up large portions of southern land for resource extraction.128 When Congress repealed the Southern Homestead Act in 1876, which had been enacted to encourage the redistribution of land to freedpeople and loyal white southerners, it facilitated an increase in corporate acquisition of southern land. Those who were dispossessed from their properties or unable to purchase real estate of their own were often left to work as laborers for the corporations, including Georgia Land & Lumber Company 127

128

Rhondda Robinson Thomas, “Reconstruction, Public Memory, and the Making of Clemson University on John C. Calhoun’s Fort Hill Plantation,” American Literary History 30, no. 3 (Fall 2018): 584–607. Emma Teitelman, “The Properties of Capitalism: Industrial Enclosures in the South and the West after the American Civil War,” The Journal of American History 106, no. 4 (March 2020): 879–900.

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and Phelps, Dodge, & Co. But racial harmony was elusive, despite common challenges. As Emma Teitelman writes, “These [B]lack and white southerners perhaps shared an enemy in the same lumber corporation but not common relationships to capital, landlessness, or each other. In this period, white farmers channeled their experiences of post-emancipation capitalism into renewed racism.”129 Emancipation had ended enslavement, leaving formerly enslaved people free to contract their own labor for the first time. Self-ownership, a long-venerated tenet of liberalism, had been central to the discourse of antebellum abolitionists. The right to sell one’s own labor became synonymous with freedom, and contract, as Amy Dru Stanley has written, became “a worldview” that “idealized” the “voluntary exchange between individuals who were formally equal and free.”130 An approach that viewed the contract rights of all citizens on equal terms might have helped Black Americans gain an independent financial footing for the first time. But without some kind of abolitionist reform of slavery’s capitalism, the notion that the labor, and even bodies, of non-white people could be exploited for white gain remained largely unopposed, and the legal devices once used to convey bondspeople were merely redeployed to new ends. Judges could and did extol the virtues of self-ownership for white Americans, while simultaneously upholding the contracts that commodified freedpeople into bonded sharecroppers, contract workers, or convict laborers. As W. E. B. Du Bois wrote in The Souls of Black Folk, “So skillfully and so closely has [the white merchant-landowner] drawn the bonds of the law about the tenant, that the black man has often simply to choose between pauperism and crime; he ‘waives’ all homestead exemptions in his contract; he cannot touch his own mortgaged crop, which the laws put almost in the full control of the landowner and the merchant.”131 Judges, lawmakers, and laymen alike used the logic of the market and the rules of contract to fashion new technologies of subjugation that kept freedpeople, their descendants, and poor whites alike in peonage for another century. And they did so all while claiming they were upholding American legal and economic tradition.

129 130 131

Ibid., 894. Amy Dru Stanley, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation (Cambridge: Cambridge University Press, 1998), x. W. E. B. Du Bois, The Souls of Black Folk (New York: Penguin Books, 1989), 121.

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Determinations about the enforceability of contracts related to slavery opened Pandora’s box. As Texas court reporter George Paschal summarized, by war’s end, “there was a forced consent that the negroes had become free. But when had they obtained their freedom? What was the effect of that freedom upon thousands of existing contracts for their sale and hiring? … And no sooner were the courts organized than the records were filled with the questions.”1 Since the majority of courts held that contracts made while slavery was legal remained enforceable, rulings required an additional assessment of when slavery became illegal. That determination was up for debate. Many suits heard in state courts concerned contracts that existed in a liminal space: Parties agreed to their terms after Abraham Lincoln issued the Emancipation Proclamation, but before the Thirteenth Amendment had been ­ratified.2 Debtors argued that the Proclamation freed the enslaved people in question, thereby nullifying their agreements, while creditors 1 2

Emancipation Proclamation Cases 31 Tex. 504 (1868), 512. The Emancipation Proclamation applied to “the States and parts of States wherein the people thereof respectively, are this day in rebellion against the United States, the following, to wit: “Arkansas, Texas, Louisiana, (except the Parishes of St. Bernard, Plaquemines, Jefferson, St. John, St. Charles, St. James Ascension, Assumption, Terrebonne, Lafourche, St. Mary, St. Martin, and Orleans, including the City of New Orleans) Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, and Virginia, (except the forty-eight counties designated as West Virginia, and also the

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insisted that only the amendment delivered freedom. Until judges decided when enslaved people obtained their freedom, they could not determine the validity of such contracts.3 Given that the Thirteenth Amendment ended slavery for good, the question over its precise end date appears narrow in its scope. But Paschal’s remarks provide clues to its unappreciated significance. His headnotes explain that emancipation did not occur as the result of revolutionary constitutional change, but was something that required “forced consent.” The phrase offers a revelatory glimpse of how many judges understood slavery’s demise: as a consequence of federal coercion, not self-determined choice. Southerners begrudgingly accepted that slavery was over, but not necessarily that it ought to be. Nevertheless, in order to say when emancipation happened, jurists had to define how, as a matter of law, slavery had ended. Answering that question had concrete implications for the allocation of debts for enslaved property, debates over compensation for that ­property, and in some instances for the lives of individual freedpeople. Most important, however, embedded within private law rulings about ­ contract enforcement were determinations about sovereignty  – ­ where the sovereign power to end slavery truly resided – and the ­imposition of federal authority that almost all antebellum jurists and politicians had denied the national government possessed. Before the war, slavery was most often viewed as a constitutionally protected institution whose practice was regulated by the states. domestic ­ Abraham Lincoln himself agreed in his first inaugural address that slavery enjoyed the ­protection of the nation’s highest law, rendering it untouchable in states “where it exists.”4 But just four years later, the federal government had in fact destroyed slavery everywhere. counties of Berkley, Accomac, Northampton, Elizabeth City, York, Princess Ann, and Norfolk, including the cities of Norfolk and Portsmouth[)], and which excepted parts, are for the present, left precisely as if this proclamation were not issued.” Emancipation Proclamation, January 1, 1863; Presidential Proclamations, 1791–1991; Record Group 11; General Records of the United States Government; National Archives. 3 As a practical matter, enslaved people themselves also struggled to determine their status. Often freedom resulted from Union occupation, but territory may have changed hands, if ruling authority could be determined at all. Leon Litwack, Been in the Storm So Long (New York: Random House, 1979), 172–73. 4 On antebellum debates on slavery’s constitutional status, see, e.g., Timothy S. Huebner, “Politics and the Proslavery Constitutional Order, 1846–1857,” in Liberty and

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This fundamental tension – that the federal government had no ­constitutional right to disturb slavery but had nevertheless brought about its end – challenged postbellum jurists. Unlike questions over contract enforcement, there were no perfect precedents they could apply to these matters; they had only antebellum rulings and political ruminations about the constitutionality of slavery and the role the federal government played in securing it to guide them. Noted one Arkansas judge, “None question the fact that all slaves in the State have been emancipated and forever made free, but lawyers and courts do not so well agree as to the sovereign act which gave them freedom.”5 In effect, litigation about the date of emancipation forced judges to grapple with the possibility that the union of states created in 1789 had transformed over the course of the war into a nation united by a centralized government willing and able to flex new muscle.6 As abolitionist senator Charles Sumner articulated, “the form of the State being changed, the State is no longer the same.”7 Jurists contended with the possible emergence of a newly powerful state that could destroy an entrenched property regime, which challenged older, but still potentially relevant, ideas about federalism, states’ rights, the composition of “the people,” and the longstanding tradition of and obligation to jurisprudential continuity.8 Union: The Civil War Era and American Constitutionalism (Lawrence: University Press of Kansas, 2016); Harold M. Hyman and William M. Wiecek, Equal Justice under Law: Constitutional Development, 1835–1875 (New York: Harper & Row, Publishers, 1982); Paul Finkelman, “Lincoln, Emancipation, and the Limits of Constitutional Change,” Supreme Court Law Review 2008, no. 1 (January 2008): 349– 87; The Pro-Slavery Argument: As Maintained by the Most Distinguished Writers of the Southern States: Containing the Several Essays on the Subject, of Chancellor Harper, Governor Hammond, Dr. Simms, and Professor Dew (Philadelphia: Lippincott, Grambo, & Co., 1853); Lysander Spooner, The Unconstitutionality of Slavery (Boston: Bela Marsh, 1860). Judicial rulings include, e.g., Prigg v. Pennsylvania 41 U.S. 539 (1842); Jones v. Van Zandt 46 U.S. 215 (1847); Strader v. Graham 51 U.S. 82 (1851); Dred Scott v. Sandford 60 U.S. 393 (1857). 5 Jacoway v. Denton 25 Ark. 625 (1869), 627. 6 See, among others, James McPherson, Battle Cry of Freedom (New York: Oxford University Press, 1988), 859; Melinda Lawson, Patriot Fires: Forging a New American Nationalism in the Civil War North (Lawrence: University Press of Kansas, 2002), 3. 7 George Frisbie Hoar, ed., Charles Sumner: His Complete Works, Statesman Edition, vol. X (Boston: Lee and Shepard, 1900), 199. Emphasis in original. Sumner was paraphrasing Aristotle. 8 On federalism and federal power, see, e.g., Harry N. Scheiber, “Federalism and the American Economic Order, 1789–1910,” Law & Society Review 10, no. 1 (1975): 57–118; Norman W. Spaulding, “Constitution as Countermonument: Federalism,

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Scholars have regularly considered the Civil War’s effect on ­sovereignty and federal power. They debate whether the Civil War and Reconstruction Amendments produced a constitutional revolution or a restoration of the antebellum legal order.9 More recent scholarship favors revolution.10 Historian Gregory Downs has offered a nuanced explanation for why such an evaluation is so difficult, but he still observes a revolution in which “multiple groups claimed sovereign authority.” The Civil War “became a transformative revolution that permanently, forcibly re-created the United States’ political and social structure.” But those who led that revolution “aimed to restore normal political time once they had transformed the nation, and they from the beginning created a fiction of continuity, a whitewashed revolution, to try to defang and protect their revolutionary gains.”11 Regardless of what the framers of the amendments intended or how they hoped to secure lasting change, in practical reality state Reconstruction, and the Problem of Collective Memory,” Columbia Law Review 103, no. 8 (December 2003): 1992–2051; Gautham Rao, “The Federal ‘Posse Comitatus’ Doctrine: Slavery, Compulsion, and Statecraft in Mid-Nineteenth Century America,” Law and History Review 26, no. 1 (2008): 1–56; Kaczorowski, “To Begin the Nation Anew: Congress, Citizenship, and Civil Rights after the Civil War”; Heather Cox Richardson, West from Appomattox: The Reconstruction of America after the Civil War (New Haven, CT: Yale University Press, 2007); Allan Nevins, “A Major Result of the Civil War,” Civil War History 5, no. 3 (1959): 237–50; Laura F. Edwards, A Legal History of the Civil War and Reconstruction (New York: Cambridge University Press, 2015). On popular understanding of the antebellum U.S. government, see Lawson, Patriot Fires: Forging a New American Nationalism in the Civil War North, 4–7. 9 See, e.g., Herman Belz, Emancipation and Equal Rights: Politics and Constitutionalism in the Civil War Era (New York: Norton, 1978); Harold M. Hyman, A More Perfect Union (Boston: Houghton, Mifflin and Company, 1975); Michael Les Benedict, “Preserving the Constitution: The Conservative Basis of Radical Reconstruction,” Journal of American History 61, no. 1 (1974): 65–90; Michael Les Benedict, A Compromise of Principle: Congressional Republicans and Reconstruction, 1863– 1869 (New York: Norton, 1974); Charles Fairman, Reconstruction and Reunion, 1864–1888, vol. 6: History of the Supreme Court of the United States (New York: Macmillan, 1971). 10 See, e.g., Kaczorowski, “To Begin the Nation Anew: Congress, Citizenship, and Civil Rights after the Civil War”; Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877; Edwards, A Legal History of the Civil War and Reconstruction; Gregory P. Downs, The Second American Revolution: The Civil War-Era Struggle over Cuba and the Rebirth of the American Republic (Chapel Hill: University of North Carolina Press, 2019). 11 Downs, The Second American Revolution: The Civil War-Era Struggle over Cuba and the Rebirth of the American Republic, 7.

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court judges made determinations about the effect of war on state sovereignty and federal power in obscure, often unremarkable, private litigation, wherein they undercut the revolution before it made much impact at all. Continuity, in other words, was no fiction in most postbellum jurisprudence. For most judges, even if continuity had to be manufactured, it was their North Star. In a series of case studies, this chapter surveys the methods by which judges determined when and how emancipation occurred. By examining opinions at this granular level, it demonstrates that in law as in practice, emancipation happened many times over (sometimes more than once in the same jurisdiction); reveals the variety of ways that judges believed slave property became free people; and explores the judicial struggle to arrive at such determinations. Some rulings appealed to more abstract principles, while other decisions were deeply contingent on the military experience and postbellum politics of each state and, sometimes, on individual judges themselves. With careful deliberation, judges considered troop movements, decrees from Union generals, the Emancipation Proclamation, the decisions of state lawmakers, the adoption of the Thirteenth Amendment, and legal theories about political power and statehood in an attempt to fix the moment of and authority to enact emancipation in time, place, and law.12 In answering what appeared to be a minor question, judges rendered a major judgement. Abolitionist jurists acknowledged that the federal government had expansive power to emancipate, and considered it a reflection of the “national will.” But those in the majority who understood Black freedom on narrower terms never granted that the federal government had the power to singlehandedly abolish slavery. They crafted contorted juridical positions that acknowledged the federal government had in fact liberated 4 million bondspeople while simultaneously denying that the state had the authority to implement abolition. A majority of judges accepted that through “forced consent,” the practice of slavery had ended, but largely denied that the powers of the federal government had permanently expanded in ways 12

As Adam M. Carrington has argued, the cases should also be seen as debates over the legality of the Emancipation Proclamation. Adam M. Carrington, “Running the Robed Gauntlet: Southern State Courts’ Interpretation of the Emancipation Proclamation,” Journal of American Legal History 57 (November 2017): 556–84.

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that would allow any more than the wartime seizure of property. The federal government’s exceptional wartime authority was temporary, judges asserted, and the government did not retain that power after the return of peace. That conclusion formed the bedrock of broader resistance to the claim that the federal government – and Congress in particular – had the authority to carry out Reconstruction based on abolitionist policies, and planted an unappreciated seed of what would grow into the Lost Cause veneration of states’ rights. In Delaware and Kentucky, the Thirteenth Amendment unequivocally ended slavery. Few slaveowners lived in Delaware, and no slave contract disputes appeared on the docket of the state’s highest court. The Thirteenth Amendment formally ended slavery in the state without contest. Kentucky was an entirely different story. Despite its status as a Union slave state, its courts encountered litigation identical to that seen by members of the former Confederacy, and often before courts in other states did. Throughout the war, loyal Kentuckians had insisted on their unchanged right to own human property. Even though it did not apply to them, citizens and state officials alike condemned the Emancipation Proclamation as unconstitutional, and refused to grant or recognize the freedom of any enslaved person who claimed liberty under it.13 But in 1863, many did not suspect that Lincoln’s war measure would lead to a constitutional amendment that would affect them. Proslavery citizens gambled, hoping that remaining loyal to the Union would allow Kentucky to escape the consequences of treason. The bet did not pay off for Kentucky slaveholders any more than secession had for Confederates. Nevertheless, its court remained wedded to a prewar conception of state sovereignty and a federal obligation to protect private property. While the Thirteenth Amendment formally ended slavery in the state, questions remained about whether some enslaved people had been liberated prior to its enactment through other means. By 1864, congressional enlistment laws that freed bondsmen – and, in 1865,

13

Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, 37. On postbellum judicial interpretation of the Emancipation Proclamation in Kentucky, see Commonwealth v. Painter 65 Ky. 570 (1866) and Mark v. McGeorge 6 Ky. Op. 117 (1872).

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their families – in exchange for military service applied to the state. Some enslaved people acquired their freedom using these laws, complicating the court’s assessment of Black freedom.14 Throughout the war, enslaved Kentuckians had fled to free territory or to one of the state’s military encampments to seek liberty and protection from Confederate incursions that might result in capture, to avoid being sold or moved into Confederate territory, or to evade the guerilla “Regulators” who used violence to maintain bondage and white supremacy in the state while slavery crumbled around them. The exodus intensified after news of the Preliminary Emancipation Proclamation spread. The shift in federal enlistment policy in 1864  – which had not previously applied to Kentucky – further amplified hopes for abolition. Many chose to risk the dangers of military service. Ultimately, more than 23,000 free Black and enslaved Kentuckians joined up, seizing the opportunity to liberate themselves and destroy the system of bondage that had subjugated their brethren for generations.15 The Kentucky Court of Appeals contended with these facts in a set of cases decided on December 11, 1865 – just days before Secretary of State William H. Seward certified the Thirteenth Amendment’s ratification. The cases concerned federal enlistment law that purported to liberate enslaved people prior to the adoption of the Thirteenth Amendment. For example, before the term of his contracted hire ended, enslaved man Marshall departed his post and secured freedom after being “recruited and enlisted as a soldier in the army of the United States.”16 Likewise, bondswoman Milly left her enslaver 14

15

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Originally, enlistment laws did not apply to loyal Kentuckians because Lincoln and Secretary of War Edwin Stanton worried that the state would secede if they did. By 1864, that position had changed. Amy Murrell Taylor, Embattled Freedom: Journeys through the Civil War’s Slave Refugee Camps (Chapel Hill: University of North Carolina Press, 2018); Victor B. Howard, Black Liberation in Kentucky: Emancipation and Freedom, 1862–1884 (Lexington: University Press of Kentucky, 1983), 108. In 1862, Union military officials prohibited enslaved people from living in or near the camps. Once the Emancipation Proclamation took effect, that policy changed. Hughes v. Todd 63 Ky. 188 (1865)., Kentucky Department for Libraries and Archives, Public Records Division, Kentucky Court of Appeals #135, Brief for Appellees, 1. On black enlistment in Kentucky, see John David Smith, “The Recruitment of Negro Soldiers in Kentucky, 1863–1865,” The Register of the Kentucky Historical Society 72, no. 4 (October 1974): 364–90.

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and found employment “as a free woman, by her own voluntary consent.”17 According to a federal enlistment law enacted in March 1865, her husband’s enrollment in the army had liberated her.18 The Kentucky Court of Appeals enforced the contract for Marshall’s hire because it had been made prior to the adoption of the Thirteenth Amendment, which, the opinion claimed, was the legal end of slavery in the state. Likewise, it awarded Milly’s wages to her enslaver, since until the amendment freed her, she could not contract her own labor. Invoking the legacy of the Kentucky Resolutions of 1798 (the origin of the compact theory of the Constitution), Chief Justice George Robertson reasserted the sovereign right of the state to invalidate federal laws it deemed unconstitutional and symbolically nullified congressional enlistment laws, which after the war no longer had any effect.19 Robertson did not deny that U.S. forces had the right to seize rebel property, or that the Thirteenth Amendment would free any people still enslaved in Kentucky when it took effect, but he refused to accept that federal law predating the amendment had the power to liberate bondspeople from loyal citizens without compensation. Invoking the takings clause of the Fifth Amendment – similar to Roger Taney in Dred Scott – he wrote, “When the Constitution declared that ‘private property shall not be taken for public use without just compensation,’ it undoubtedly meant that it should never be so taken; and that, if ever so taken, the act should be void.”20 Thus, litigants, and slaveholders in general, “Must look alone to the government for reparation. And, if the government” did not provide restitution, “its act was unconstitutional and void,” and “a wrongful abduction ­without title.”21 17 18

19

20 21

Corbin v. Marsh 63 Ky. 193 (1865), 203. Corbin v. Marsh 63 Ky. 193 (1865). “A Resolution to encourage Enlistments and to promote the Efficiency of the military Forces of the United States,” (12 Stat. 571); “An Act to amend the several Acts heretofore passed to provide for the Enrolling and Calling out the National Forces, and for other Purposes,” (13 Stat. 487). The law allowed for the fact that slaves would not have been married under state law. See in particular, Second Confiscation and Militia Act 12 Stat. 597 (1862). On the Kentucky Resolution and the origin of the compact theory, see Mark E. Neely Jr., Lincoln and the Triumph of the Nation (Chapel Hill: University of North Carolina Press, 2011), 6. Corbin v. Marsh 63 Ky. 193 (1865), 195–96. In Dred Scott, Taney invoked the Fifth Amendment’s due process clause. Hughes v. Todd 63 Ky. 188 (1865), 190

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In effect, Robertson’s opinions read as jeremiads in support of a return to a status quo antebellum and, in particular, the legal ­principles that had governed slavery’s existence prior to the Civil War. Many southerners – and slaveholders living along slavery’s ­border – believed in the primary sovereignty of the states, that the Union existed to protect the rights of liberty and property, and that the Constitution required the federal government to protect those rights, especially when it came to slave property.22 On the eve of the war, this version of southern constitutionalism prevailed across the nation. At that time, only a scant few abolitionists believed that the federal government could end slavery in states where it was legal; and, while some Republicans believed Congress had the right to prohibit slavery in the territories, Taney’s Dred Scott ruling said otherwise. Kentuckians had always intended to maintain slavery’s protected status.23 In the election of 1860, the state voted for John Bell of the Constitutional Union Party, which had crafted a platform based on the maintenance of the Union, the protection of constitutional rights, and their enforcement. Less than 1 percent of Kentuckians voted for Abraham Lincoln – a total repudiation of the candidate they believed sought abolition.24 Despite the centrality of slavery to the intensifying sectional conflict, the Civil War began as one to save the Union, and for the postbellum Kentucky court and many of the state’s citizens, it should have remained so. Robertson wrote pointedly that Kentucky was “always for a restoration of the union, and nothing more nor less.”25 With emancipation realized, Robertson’s ruling anticipated calls for compensation and arguments about the unconstitutional taking

22 23

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Timothy S. Huebner, Liberty and Union: The Civil War Era and American Constitutionalism (Lawrence: University Press of Kansas, 2016), 39. Finkelman, “Lincoln, Emancipation, and the Limits of Constitutional Change”; Huebner, Liberty and Union: The Civil War Era and American Constitutionalism, 57. Some Black abolitionists, along with Spooner and Chase, argued that the Constitution was antislavery. Jurists overwhelmingly disagreed. “Lincoln and the 1860 Election,” Kentucky Historical Society, n.d., https://apps .legislature.ky.gov/LegislativeMoments/moments08RS/35_web_leg_moments. htm. See also Kenneth H. Williams and James Russell Harris, “Kentucky in 1860: A Statistical Overview,” The Register of the Kentucky Historical Society 103, no. 4 (Autumn 2005): 743–64. Corbin v. Marsh 63 Ky. 193 (1865), 198, emphasis in original.

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of private property. He knew that his rulings in this and similar suits would have limited effect: In just a few days a constitutional amendment would prohibit slavery everywhere. But in late 1865 and for some time thereafter, receiving payment for lost slave property still appeared feasible. Appealing explicitly to antebellum notions of state sovereignty, Robertson used his opinions to resist the imposition of federal authority and advocate for “reparation.” Without compensation to loyal slaveholders, he declared that “the boasted palladium of private property against arbitrary power is but a mockery, and the constitution itself may become a dead letter.”26 Robertson’s rulings failed to acknowledge that during the war Lincoln had attempted a compensated emancipation in Kentucky and other loyal border states. In March 1862, Lincoln proposed that if the state agreed to a specific end date for slavery – as late as 1882, even – he would encourage Congress to allocate the funds to pay enslavers $400 for each bondsperson emancipated. For those concerned about the emergence of a large free Black population, he suggested colonization as an appropriate measure. Lincoln warned the congressmen of all the loyal states that failure to accept the offer would almost certainly result in emancipation by “friction and abrasion – by the mere incidents of the war.”27 Kentuckians still rejected the overture. They had continuously denied that the Constitution allowed for the destruction of slavery at all, and believed they were fighting a war to preserve the Union created under that Constitution, not to undermine the peculiar institution.28 That belief, clearly articulated in Robertson’s rulings, persisted after the Civil War. The people, politicians, and jurists of Kentucky were aligned in their belief in obligatory compensated emancipation. Kentucky’s General Assembly refused to support the Thirteenth Amendment 26

27 28

On post-emancipation calls for compensation, see Kleintop, “Life, Liberty, and Property in Slaves: White Mississippians Seek ‘Just Compensation’ for Their Freed Slaves in 1865.” Hughes v. Todd 63 Ky. 188 (1865), 190–91. Abraham Lincoln, quoted in Lowell H. Harrison, “Slavery in Kentucky: A Civil War Casualty,” The Kentucky Review 5, no. 1 (Fall 1983): 35. Ibid., 33; Finkelman, “Lincoln, Emancipation, and the Limits of Constitutional Change,” 378–79. See also Eric Foner, The Fiery Trial (New York: W.W. Norton & Company, 2010), 181–84. Congress enacted the Compensated Emancipation Act in 1862, which paid slaveholders in Washington DC for their chattel property.

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without a provision for compensation. The state’s legislature sought $34 million from Congress, which equaled the assessed value of all Kentucky slaves in 1864, then later upped its asking price to a staggering $100 million.29 The funds never came, and Kentucky did not ratify the amendment, or the other Reconstruction Amendments, until 1976.30 Instead, Kentuckians continued to appeal to the very wartime enlistment policy Robertson evaluated to justify their own arguments for remuneration. A section in the Enrollment Act of 1864 had promised the creation of a commission in loyal slave states that would pay enslavers between $100 and $300 for the enslaved people who were freed through military service. That year, Governor Thomas Bramlette had attempted to facilitate payments stipulated in the statute, but by mid-1865 he had made little headway. Similarly, Kentucky’s congressmen believed the provision demonstrated federal intent to compensate loyal slaveholders for their losses and argued in debates over the Thirteenth Amendment and beyond that it had to be honored. As one historian has noted, Kentuckians freely expressed their “anger and antagonism toward” Congress for “interfer[ing] with the domestic rights of the states.”31 Kentuckians continued pushing for compensation under this law with little success until section 4 of the Fourteenth Amendment prohibited compensation for slaves.32 For his part, Robertson personally agitated for compensation. Like many other men of his class, he had invested in slaves. As a fellow Whig, he had been friends with Abraham Lincoln since the 1840s, despite their differing views on slavery. Their relationship became strained in 1862 when Lincoln issued the Preliminary Emancipation 29

30 31 32

E. Merton Coulter, The Civil War and Readjustment in Kentucky (Chapel Hill: University of North Carolina Press, 1926), 259; Ross A. Webb, Kentucky in the Reconstruction Era (Lexington: University Press of Kentucky, 1979), 9–15. Coulter, The Civil War and Readjustment in Kentucky, 259; Webb, Kentucky in the Reconstruction Era, 9–15. Webb, Kentucky in the Reconstruction Era, 6, 13. “An Act to further regulate and provide for the enrolling and calling out the National Forces, and for other purposes” (13 Stat. 6), §24. Kleintop, “The Balance of Freedom: Abolishing Property Rights in Slaves during and after the US Civil War,” ­160–61; Smith, “The Recruitment of Negro Soldiers in Kentucky, 1863–1865,” 389.

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Proclamation, threatening what Robertson believed was constitutionally protected private property. Robertson became furious that “Union troops were ‘forcibly detaining the slaves of Union Kentuckians.’” One of Robertson’s own bondspeople (a man named Adam) fled in search of freedom to the Union camp of the 22nd Wisconsin Regiment. Robertson demanded that the commander return him, but Colonel William Utley denied the judge entrance into the camp and refused to release the man in question. In response, Robertson sued Utley in federal court, and had him indicted for “harboring a slave.” When Lincoln learned of the situation, he offered Robertson $500 for the lost slave property, but Robertson refused. He intended his suit “to try the question of whether the civil or the military power is Constitutionally supreme in Kentucky.”33 Finally, in 1871, Utley was convicted in federal court, and was ordered to pay Robertson $935. In the end, the U.S. Treasury paid the bill on Utley’s behalf, and Robertson recovered some of what the war had “taken” from him.34 The litigants who appeared in his court were not so privileged (Figure 3.1). To be sure, justifying arguments against emancipation by appealing to traditional notions of state sovereignty was much easier to make in a state that had not seceded – it had not overthrown the Constitution or attempted to rend the Union. Indeed, from the outset, Reconstruction looked very different in Kentucky than elsewhere. Kentucky’s loyalty to the Union exempted it from Presidential or Congressional Reconstruction. It did not have to be readmitted to the Union because it had never seceded. The Reconstruction Acts (1867), which ushered in Radical Reconstruction and military occupation, did not apply to Kentucky. To the contrary, except for the presence of Freedmen’s Bureau personnel, martial rule in the state 33

34

Robertson, quoted in Jerrica A. Giles and Allen C. Guelzo, “Colonel Utley’s Emancipation – or, How Lincoln Offered to Buy a Slave,” Marquette Law Review 93, no. 4 (2010): 1280. William B. Allen, A History of Kentucky: Embracing Gleanings, Reminiscences, Antiquities, Natural Curiosities, Statistics, and Biographical Sketches of Pioneers, Soldiers, Jurists, Lawyers, Statesmen, Divines, Mechanics, Farmers, Merchants, and Other Leading Men, of All Occupations and Pursuits. (Louisville, KY: Bradley & Gilbert, 1872), 261–64; Sanders, “Judge George Robertson,” ExploreKYHistory, accessed April 15, 2015, http:/​/​explorekyhistory.​ky.​gov/​items/​show/​40; Kurt X. Metzmeir, “History of the Courts of Kentucky,” in United at Last: The Judicial Article and the Struggle to Reform Kentucky’s Courts (Lexington: Kentucky Court of Justice, 2006).

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figure 3.1  Letter from George Robertson to Abraham Lincoln In his letter to President Lincoln, Judge Robertson notes that by keeping “my boy Adam,” Colonel Utley violated the law. He “has been guilty of a Felony punishable by confinement in the penitentiary.” Library of Congress, Manuscript Division, Abraham Lincoln Papers. Library of Congress, Abraham Lincoln papers: Series 1. General Correspondence, 1833–1916: George Robertson to Abraham Lincoln, Monday, December 1, 1862 (seeks return of his slave).

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ended in October 1865.35 Kentucky was not compelled to ratify the Reconstruction Amendments or to produce a new state constitution that protected Black rights, even though Black residents held conventions to urge such action.36 An interracial governing coalition, as appeared in states under military governorship, never emerged.37 Republicans (or Unconditional Unionists) pushed for some reforms, but they were a minority in the state and did not identify with the Radical faction of their party. Historian Eric Foner explains that Kentucky “clung to the decaying body of slavery” throughout Reconstruction.38 Its court helped establish that trajectory in rulings that retroactively considered wartime policy, even before the official ratification of the Thirteenth Amendment. Some states, especially those that underwent a version of wartime Reconstruction, amended or adopted new constitutions that banned slavery before the end of the Civil War. In a fraction of these, courts declared those pronouncements the final word on emancipation. In the remaining states, rulings served as temporary standards revisited by courts that convened after the Reconstruction Acts took effect.39 In all suits that accepted state constitutional change as the legal standard for emancipation, judges recognized the sovereign will of the

35 36 37

38

39

Kentucky was the only loyal state to which the Freedmen’s Bureau was dispatched. Darrel E. Bigham, On Jordan’s Banks: Emancipation and Its Aftermath in the Ohio River Valley (Lexington: University Press of Kentucky, 2006), 141–42. An antislavery movement had existed in Kentucky from statehood until the ratification of the Thirteenth Amendment, but proslavery forces remained in political control of the state. See, e.g., Lowell Harrison, The Antislavery Movement in Kentucky (Lexington: University Press of Kentucky, 1978); Harold D. Tallant, Evil Necessity: Slavery and Political Culture in Antebellum Kentucky (Lexington: University Press of Kentucky, 2003). On the conservatism of antislavery forces in Kentucky and their convergence with proslavery thinkers, see Luke E. Harlow, Religion, Race, and the Making of Confederate Kentucky, 1830–1880 (New York: Cambridge University Press, 2014). Coulter, The Civil War and Readjustment in Kentucky, 259; Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, 37–38; Ira Berlin et al., eds., Freedom: A Documentary History of Emancipation 1861–1867, vol. II (New York: Cambridge University Press, 1993), 625; Webb, Kentucky in the Reconstruction Era, 9–15. See Phillips v. Evans 38 Mo. 305 (1866); McMath v. Johnson 41 Miss. 439 (1867); Vicksburg & Meridian R.R. Co. v. Amos Green 42 Miss. 436 (1869); Herrod & Thigpen v. Clement Davis 43 Miss. 102 (1870); Whitfield v. Whitfield 44 Miss. 254 (1870).

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people to end slavery as paramount, preferring to reinforce popular approval over presidential edict or federal policy. Led by political contingents eager to end slavery and “revolutionize state politics,” two loyal border states, Maryland and Missouri, initiated their own “internal reconstructions.”40 In stark contrast to Kentucky, Maryland debated and adopted a new constitution that took effect on November 1, 1864. That became the date of slavery’s legal end in the state, which its highest court affirmed in 1869.41 The Missouri court ruled that “The Ordinance of Emancipation,” delivered “by the sovereign act of the people,” on January 11, 1865, had “caused a complete annihilation or destruction of all property in slaves.”42 Maryland and Missouri changed their constitutions after emancipationists assumed control of state government and led the campaign against slavery. For instance, when they finished their work, members of the Missouri convention that produced the ordinance of emancipation sang the abolitionist anthem “John Brown’s Body” in ­celebration (Figure 3.2).43 The governor of the state, Radical Republican Thomas Clement Fletcher, remarked that the time had come “to rid ourselves of all the effects of the damnable system of slavery has left behind it.”44 In contrast, ending slavery in Tennessee, where judges also affirmed the ratification date of a new state constitutional amendment as slavery’s legal end, came as the result of wartime Reconstruction conducted under military rule. In these circumstances, Unionists deemed acceptable to military governors operated with the knowledge that peace and reunion depended on loyal state governments accepting the terms of Lincoln’s Proclamation of Amnesty and Reconstruction 40 41

42

43 44

Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, 37. Williams v. Johnson 30 Md. 500 (1869). Maryland’s court assumed the state’s constitution had ended slavery. In the only case to consider the matter, judges considered only whether emancipation prohibited the recovery of value for slaves lawfully procured. The court, as did most others, decided it did not. Phillips v. Evans 38 Mo. 305 (1866), 314. Like Maryland, an emancipationist government assumed control of Missouri and promoted the constitutional change. On January 11, 1865, three weeks before Congress proposed the Thirteenth Amendment, Missouri adopted its final ordinance of emancipation. Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, 41; Journal of the Missouri State Convention Held in Jefferson City June, 1863 (St. Louis, MO: George Knapp & Co., 1863), 4; “Emancipation in Missouri: Passage of the Freedom Ordinance through the Constitutional Convention,” New York Times, July 2, 1863. Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, 42. Thomas C. Fletcher, Missouri’s Jubilee (Jefferson City, MO: W.A. Curry, 1865), 5.

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figure 3.2  Missouri Ordinance of Emancipation This image commemorating emancipation in Missouri was published in the Westliche Post, a German-language newspaper in St. Louis. At the bottom, it shows Blind Justice welcoming the “Natural Philosophy” and the “Rights of Man” for white and Black Missourians alike. Knobel, E., Artist, and Theodore Schrader.  Emancipation Ordinance of Missouri. An ordinance abolishing slavery in Missouri / E. Knobel. Missouri, ca. 1865. St. Louis, Mo.: Published by “The Westliche Post,” 18 Chestnut Street and Theo. Schrader, lith., 14 Chestnut Street. Photograph. Library or Congress www.loc.gov/item/2004665364/.

(the Ten Percent Plan), and, in particular, on the end of slavery – whether the state’s citizens liked it or not.45 After the fall of Nashville in February 1862, Lincoln appointed Andrew Johnson the military governor of Tennessee.46 The issuance of the Emancipation Proclamation in 1863 had prompted some of the state’s Unionists to switch allegiances, but it never applied to the occupied state (although that did not stop litigants from arguing it had freed enslaved people for whom they owed debts). And so Johnson began 45 46

On the Ten Percent Plan, see Foner, Reconstruction: America’s Unfinished R ­ evolution, 1863–1877, 35–37. Tennessee was the only whole state to undergo wartime Reconstruction under ­military control. Ibid., 43.

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pushing for emancipation. Before leaving for Washington to assume his post as vice president, he encouraged loyal Tennesseans to hold a constitutional convention. As Johnson noted in a letter to Lincoln, he “would rather have the pleasure and honor of turning over the State, organized, to the people properly Constituted, than be Vice President of the United States” (Figure 3.3).47 As it turned out, he never had to choose. Assembled without the sanction of popular vote, self-­appointed Unionist delegates adopted an amendment to the state’s 1835 constitution that prohibited slavery. It was subsequently approved by the small portion (a mere 25,000) of white men permitted to vote in the referendum held in February 1865.48

figure 3.3  Letter from Andrew Johnson to Abraham Lincoln  In his letter, then Tennessee governor Andrew Johnson tells President Lincoln that ending slavery in the state “would have a good effect and set the right precedent in restoring state authority where people have been in rebellion.” Courtesy of the Andrew Johnson National Historic Site. 47

48

Andrew Johnson, “Letter to Abraham Lincoln,” January 17, 1865, Andrew Johnson National Historic Site, www.nps.gov/anjo/learn/historyculture/johnsonand-tn-emancipation.htm. Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, 43–44.

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figure 3.3  (cont.)

Given its origins, the change in Tennessee’s supreme law was hardly unassailable. Still, the state’s Supreme Court, on which sat judges that one scholar identifies as “non-elite second-tier lawyers and politicians,” accepted the legitimacy of the convention’s work in 1866.49 In Graves v. Keaton, Judge Alvin Hawkins deferred to the state’s amended constitution as the legal end of slavery. “The ­provisions of the amendment to the Constitution of the State, abolishing slavery, constitute part of the public law of the land, of which the Courts of the country are bound to take judicial notice.”50

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The reestablished Supreme Court of Tennessee had only resumed operations in 1865 after a near total wartime shutdown. The Unionist governor had struggled to appoint respected members of the Tennessee Bar to this court. R. Ben Brown, “The Tennessee Supreme Court during Reconstruction and Redemption,” in A History of the Tennessee Supreme Court, ed. James W. Ely Jr. (­Knoxville: University of Tennessee Press, 2002), 103–4. Graves v. Keaton 43 Tenn. 8 (1866), 14.

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The court reaffirmed Graves several more times, even after the state adopted a new constitution in 1870.51 Judges in the state agreed that “[t]he principle that all power is inherent in the people, and all free governments are founded on that authority, and instituted for their peace, safety and happiness. For the advancement of these ends, they have, at all times, an unalterable and indefeasible right to alter, reform or abolish the government, in such mannor [sic] as they may think proper.”52 By continuing to defer to the state’s constitutional change, the court simultaneously identified the people of the state as the source of the sovereign power to end slavery and ignored almost entirely that they had been compelled to make the change by wartime Reconstruction policy. Mississippi, where the Emancipation Proclamation ostensibly applied, also deferred to the state’s first constitutional convention, which had met in August 1865, to settle the date of emancipation. The Mississippi court ruled in McMath v. Johnson that members of the state’s convention “themselves, by a new and original provision embodied in the fundamental law, struck down and abolished the institution within the State.”53 It was “from its date alone that the emancipation of the slaves took effect” because only the citizens of the state possessed the sovereign authority to make such a change.54 (In 1870, a remade Supreme Court of Mississippi partially overturned this ruling.55) The personal background of the justices who served on the Mississippi High Court of Errors and Appeals in 1867 almost ­certainly informed the state’s first judgment about when slavery ended. 51

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Gholson v. Blackman 44 Tenn. 580 (1867); Alex Officer v. Sims 49 Tenn. 501 (1871); Johnson v. Johnson 49 Tenn. 521 (1871); Andrews v. Page 50 Tenn. 653 (1871). Contrary to recent scholarship on the matter, the Andrews court ruled “slavery in this State was abolished, by the amended constitution of 1865.” Carrington, “Running the Robed Gauntlet: Southern State Courts’ Interpretation of the Emancipation Proclamation,” 571. Ridley v. Sherbrook 43 Tenn. 569 (1866), 574. The Supreme Court of the United States had sustained the same premise in 1849. Luther v. Borden 48 U.S. 1 (1849). McMath v. Johnson 41 Miss. 439 (1867); Reynolds, Reports of Cases Argued and Determined in the High Court of Errors and Appeals for the State of Mississippi, XLI:460. McMath v. Johnson 41 Miss. 439 (1867). The ruling did not specify an exact date, but merely stated that emancipation took place in August 1865. Whitfield v. Whitfield 44 Miss. 254 (1870).

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Henry  T.  Ellett, William Littleton Harris, and Alexander Hamilton Handy had all served as delegates to their state’s secession convention. Ellett, who in 1847 had assumed Jefferson Davis’ vacated seat in the U.S. House of Representatives, served on the committee that drafted the state’s ordinance of secession.56 Handy became Mississippi’s secession commissioner to Maryland, while the state dispatched Harris to Georgia in the same capacity. Harris’ speech to the Georgia General Assembly reveals the judge’s ideological commitments. Hoping to convince Georgia to follow Mississippi out of the Union, Harris vehemently defended slavery by expressing his “old republican orthodoxy,” extolling the equality of the sovereign states, and celebrating the “sovereignty of the people of a state” to govern themselves without interference.57 Elements of these beliefs permeated the court’s ruling in 1867, invoked by men who by all accounts were predisposed to accept the validity of a state convention. After all, they had served as delegates to one less than a decade earlier. Before the formal adoption of the Thirteenth Amendment, and sometimes even after its ratification, a group of state court justices proclaimed that only the people – the citizens of their respective ­ states – had the right to strike slavery from the law books. In Maryland and Missouri, this assertion celebrated abolition, confirming that a change in political will – or at least state government – could deliver meaningful change that aligned with the stated policies of the federal government. In Mississippi and to a lesser extent Tennessee, however, emphasis on the sovereign power of the people was a way to reassert judges’ continued commitment to states’ rights and to undercut the federal changes that had ensured slavery’s demise – even if they did recognize Black freedom. These judicial rulings proved that antebellum debates over “federalism and the locus of sovereignty” that just years earlier had motivated debates over secession’s legality, remained

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“Ellett, Henry Thomas,” Biographical Directory of the United States Congress, accessed July 29, 2020, https://bioguideretro.congress.gov/Home/MemberDetails? memIndex=E000116. “Address of Hon. W. L. Harris, Commissioner from the State of Mississippi, Delivered before the General Assembly of the State of Georgia, on Monday Dec. 17th 1860,” quoted in full in Charles Dew, Apostles of Disunion: Southern Secession Commissioners and the Causes of the Civil War (Charlottesville: University of Virginia Press, 2001), 88.

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unresolved. They denied that “national sovereignty” had emerged “victorious on the battlefield,” or that the federal government had ended slavery. In the process, they set the terms of a renewed fight based on the same southern constitutionalism evidenced in Kentucky, which would be waged throughout Reconstruction not only in courtrooms but also in statehouses, ballot boxes, and sometimes violently in town squares and rural backwoods.58 Mississippi’s court in particular foreshadowed the onset of Redemption, the rejection of federal policy, and the eventual return to “home rule,” based on the superiority of the white citizens – the only “people” who counted – and the sovereignty of the state to make that determination. Most state courts construed the Emancipation Proclamation as a war measure, and determined that it was effective only when the Union Army could enforce it. At some point during Reconstruction, Texas, Virginia, North Carolina, South Carolina, Mississippi, Alabama, Florida, and Arkansas used a version of this approach to determine the date of emancipation. Rulings came from courts that convened after the Reconstruction Acts took effect, primarily reached by jurists deemed acceptable to military governors. They ruled that freedom came only “to such slaves individually as should come under control of the armies of the United States,” either through direct capture or the conquest of territory.59 In contrast to courts that invoked the people’s will as the source of emancipation, opinions that relied on military force examined the constitutional authority of the wartime president and Congress to realize Black freedom. Among the courts that settled on the military force standard, Texas issued the first ruling. It was the only court that settled on an exact date of emancipation, although it took an indirect path to reach that conclusion. The so-called Military Court – the Texas Supreme Court to which Military Governor Philip Sheridan appointed the judges – agreed in the Emancipation Proclamation Cases (1868) that the Proclamation did not immediately emancipate enslaved people or free

58 59

Kaczorowski, “To Begin the Nation Anew: Congress, Citizenship, and Civil Rights after the Civil War,” 50–51. Harrell v. Watson 63 N.C. 454 (1869), 459–60.

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litigants from their debts for slaves.60 But there was no consensus about the timing of freedom or how it had been delivered. While the majority opinion settled several important questions, including the enforceability of contracts, a concurring opinion ultimately provided the standard for judging when and how enslaved people became free.61 Associate Justice Livingston Lindsay reasoned that the practice and business of slavery continued “both in fact and in law, until by the actual force of the national arms its disruption and overthrow, as a legal institution, was made a reality. … By force it was established; by force it was destroyed.”62 Lindsay’s position reflected a blunt but potent legal view of the nature of slavery, and prerequisites both for its existence and its demise. Slavery existed through the force of violence and, he theorized, it therefore remained legal in Texas until the Union Army could, by force, secure the state and implement the Emancipation Proclamation. This took place, Lindsay decreed, “upon the success 60

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Emancipation Proclamation Cases 31 Tex. 504 (1868). Only the reported material from this suit remains. The case file was among those stolen in the 1970s by a janitor who worked for the Supreme Court of Texas. Historical case records have since been moved to the Texas State Library and Archive, where the staff continues to search for the stolen items. The Archive has located some of the lost material on eBay and other online auction sites, but recovering the records often requires lengthy and expensive interstate litigation. The author of the court’s opinion in the Emancipation Proclamation Cases, Amos Morrill, developed a far more complex theory of the power required to end slavery than his peers. He denied the legality of the Emancipation Proclamation in its entirety because Congress had not passed any statute that liberated enslaved people. It had adopted the Confiscation Acts, which Morrill agreed freed those who came under the protection of Union forces according to their terms. But, he argued, by enacting the statutes, Congress took away any authority to seize captives from the other branches of government. “The congress by this act virtually negatives the power of any other branch of the government to do what the constitution authorizes that body alone to do.” President Lincoln therefore had no constitutional authority to issue the Proclamation. Morrill conceded that only those enslaved people captured under the dictates of the Confiscation Acts had become free during the war. For Morrill, the Thirteenth Amendment delivered final freedom, even if some enslaved people were freed by military force prior to its enactment. Crucially, “by this amendment, not only the slaves of the disloyal, but of the loyal also, were free.” Emancipation Proclamation Cases 31 Tex. 504 (1868), 530, emphasis added. Livingston Lindsay, a Virginia native, participated in Texas’ Constitutional Convention of 1868, where he was considered a moderate. He was appointed to the Military Court, but left the Texas Supreme Court after it was reorganized in 1870. University of Texas at Austin Tarlton Law Library Jamail Center for Legal Research, “Livingston Lindsay,” Justices of Texas 1836–1986, accessed March  16,  2013, http://tarlton.law.utexas.edu/justices/profile/view/65.

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of the national forces” “on the 19th day of June, 1865,” when Major General Gordon Granger arrived in Galveston to take command of the District of Texas.63 On that date, Granger issued General Order No.  3, which voided all Confederate laws and declared to “[t]he people of Texas” that “in accordance with a proclamation from the Executive of the United States, all slaves are free.”64 From then on the U.S. military had the power to enforce the dictates of the Proclamation. Granger’s order famously prompted a mass celebration by emancipated persons  – the basis for Juneteenth as a day of jubilee. (Contrary to popular assertions that the order informed Black Americans of their freedom, the order is better understood as a declaration to white enslavers that the U.S. military had arrived to compel emancipation.) As subsequent rulings in Texas ultimately affirmed, Juneteenth was the legal date of emancipation in Texas.65 Several other courts accepted the premise of Lindsay’s concurrence, even if not the specific date. Despite its claims, they concluded the Emancipation Proclamation could not alone have liberated any enslaved person in the Confederacy. As the South Carolina court put it, “the proclamation was, in effect, simply an advertisement of what would be a certain consequence of conquest.”66 In other words, it granted the U.S. military nothing more than the right to transform slaves into free persons upon their seizure. Consequently, “freedom is personal to each particular slave, or perhaps sections, and to that extent a question of fact in the individual case or as to localities.”67 Black freedom, by this metric, required two steps: Federal forces had to capture enslaved property and then could carry out the dictates of the Proclamation. 63 64

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Emancipation Proclamation Cases 31 Tex. 504 (1868), 533–34. Granger, Gordon. General Order No. 3, June 19, 1865. The original order was recently discovered and digitized by the National Archives of the United States. Michael Davis, “National Archives Safeguards Original ‘Juneteenth’ General Order,” National Archives News, June 19, 2020, www.archives.gov/news/articles/ juneteenth-original-document. See, e.g., Algier v. Black 32 Tex. 168 (1869); Dowell v. Russell 39 Tex. 400 (1873); Garrett v. Brooks 41 Tex. 479 (1874). Pickett v. Wilkins 13 Rich. Eq. 366 (1867); J. S. G. Richardson, Cases in Equity Argued and Decided in the Court of Appeals and Court of Errors, of South Carolina, vol. XIII: South Carolina Law & Equity Reports (Charleston, SC: E.J. Dawson & Co., n.d.), 368, //catalog.hathitrust.org/Record/010426293. Whitfield v. Whitfield 44 Miss. 254 (1870); J. S. Morris, Cases Argued and Decided in the Supreme Court of Mississippi, vol. 44 (Jackson, MS: Published by the Reporter, 1872), 271.

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This determination depended on judges’ interpretation of the laws of war: Only “belligerent occupation” permitted “appropriating or confiscating the property of the enemy.”68 To the victor go the spoils. In practice, this guideline established a moving target for freedom, and left open the possibility that slavery might be legal in some parts of a state while illegal in others. The distinction depended entirely on judicial review of military action. Each time a court evaluated a wartime contract related to slavery, it would need to determine whether or not the slave property in question had fallen under Union protection. As the Mississippi court noted in 1870 (revising but not fully overturning the standard set by McMath), “If portions of the state prior to the surrender, fell within the federal lines, and freedom thus came permanently to any slave, or slaves, the fact and date of freedom ought to be recognized by the courts upon satisfactory proof.”69 Rulings that required military force to enact emancipation invoked as relevant evidence the legacy of a divisive and destructive war, and relied explicitly on the power of President Lincoln, as commander in chief, to marshal federal troops to implement his edict.70 Final freedom for those who fell under military control did not have to wait for the Thirteenth Amendment because bondspeople “were emancipated by force of arms by the conquest and subjugation of the South.” Popular recognition of conquest sufficiently established the reality of slavery’s demise. “All men knew the fact, and all acquiesced in the result.”71 Upon its ratification, the Thirteenth Amendment freed any persons not already liberated by arms and prohibited slavery from reemerging. North Carolina’s Richmond Pearson accepted these premises in the abstract, but required more than a presidential order and m ­ ilitary might to enact freedom. He believed that emancipation required additional congressional action because only it had the constitutional 68

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Henderlite v. Thurman 63 Va. 466 (1872), 472. See also Slaback v. Cashman 12 Fla. 472 (1869); Jacoway v. Denton 25 Ark. 625 (1869); Whitfield v. Whitfield 44 Miss. 254 (1870); Carrington, “Running the Robed Gauntlet: Southern State Courts’ Interpretation of the Emancipation Proclamation,” 574–76. The following chapter will address the laws of war more expansively. Whitfield v. Whitfield 44 Miss. 254 (1870); Morris, Cases Argued and Decided in the Supreme Court of Mississippi, 44:271. Florida’s court was also explicit in its endorsement of the president’s wartime power to issue the Emancipation Proclamation. Slaback v. Cushman 12 Fla. 472 (1868). Henderlite v. Thurman 63 Va. 466 (1872), 478.

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authority to declare war or seize enemy property.72 “The President, without the concurrence of the legislative branch of the government, could not arrogate to himself the power as a war measure to abolish” slavery where it was legal.73 But Congress had acted in support of emancipation when it enacted the Second Confiscation Act in July 1862. The statute sanctioned the U.S. military to grant freedom to any enslaved people who “shall be deemed captives of war,” and granted the president the right to act in its support.74 To Pearson, the Emancipation Proclamation served congressional law by announcing to “what localities the Act of 1862 was applicable.”75 Functionally, however, the ruling operated in the same way as others that recognized military force as emancipatory.76 72

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Richmond Mumford Pearson served as chief justice of the Supreme Court of North Carolina from 1858 to 1878. During the Civil War, Pearson often challenged the Confederacy. He had been known as a staunch Federalist and Whig who opposed secession. In 1862, he interpreted the Confederate conscription laws to mean that any man could provide a substitute in lieu of military service. In 1864, he refused to uphold the suspension of habeas corpus, and released individuals who sought relief from him. Thus, many saw Pearson’s actions as an attempt to undermine the Confederate government in North Carolina. Because many remained confident in Pearson despite his controversial decisions during the war, he was promptly reelected to his position on the bench after the war ended. He was rumored to be one of President Andrew Johnson’s choices for the U.S. Supreme Court, but he was never nominated. Pearson declared himself a Republican, and supported the election of Ulysses S. Grant in 1868. Accusations of excessive drinking followed the judge throughout his career. William S. Powell, “Richmond Mumford Pearson,” in Dictionary of North Carolina Biography, vol. 5 (Chapel Hill: University of North Carolina Press, 1994), 49–51. Harrell v. Watson 63 N.C. 454 (1869), 458, State Archives of North Carolina, case record number 9345. “An Act to Suppress Insurrection, to Punish Treason and Rebellion, to Seize and Confiscate the Property of Rebels, and for other Purposes,” 13 Stat. 589; Steven F. Miller, “The Second Confiscation Act,” Freedmen and Southern Society Project, December 10, 2017, www.freedmen.umd.edu/conact2.htm. Harrell v. Watson 63 N.C. 454 (1869), 458–59. Though the ruling was subsequently challenged, Harrell v. Watson remained the standard for judging emancipation in North Carolina throughout Reconstruction. Pearson reaffirmed the ruling in West v. Hall. He wrote, “It is settled that a contract for the purchase of a slave is not illegal, even when made after the Proclamation of the President, the slave not being under the control of the military forces of the United States.” West v. Hall 64 N.C. 43 (1870), 1. The North Carolina court might have used the date of a military order to determine slavery’s end. On April 27, 1865, General John Schofield issued General Order No. 31, “announcing to the army and people of North Carolina that hostilities within this state have definitely ceased; that for us the war has ended, and it is hoped that peace will soon be restored throughout the country.” But Pearson denied that a

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The judicial rulings in most postbellum courts enshrined in law a cascade of freedom that depended on federal armies acting simultaneously as liberators, enforcers of presidential edict and federal policy, and conquerors of rebels. Like the states that based emancipation on a change in state constitutional law, states that relied on military conquest denied that President Lincoln’s Proclamation alone had the legal power to emancipate. But they nevertheless recognized that the federal government had delivered Black freedom by force of arms, confirming that the war itself made emancipation possible. The Proclamation, coupled with the military power of Union armies (and, in North Carolina, congressional approval) destroyed slavery. For this reason, judges could not provide a remedy for those seeking compensation for the enslaved property they had lost. As Virginia judge Waller Redd Staples noted, if during war “by an act of sovereign power, private property is seized and confiscated, the question of compensation or indemnity is addressed not to the judicial, but to the legislative department.” According to this rationale, courts had no ability to compel payment, nor to “relieve” those who owed debts for enslaved people of their obligations because the “sovereign power” of the United States had superseded any legal claim over which courts might otherwise have had jurisdiction.77 In this way, rulings that deferred to federal military capacity to deliver freedom acknowledged the full scope of the government’s expanded authority. At the same time, however, these courts

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military order could abolish slavery throughout the state and reiterated the need for something more than a martial act supported solely by the commander in chief. Instead, complete emancipation “was left as an act that could only be done by the government of the United States,” which was ultimately delivered by the Thirteenth Amendment, “or by an ordinance of a convention of the people of the state.” North Carolina adopted such an ordinance, but not until 1866, after the amendment had ended slavery everywhere. Harrell v. Watson 63 N.C. 454 (1869), 459. S. Doc. No. 11, 39th Cong., 1st Sess (1866). United States Congressional Serial Set, volume 1237, 194; General Assembly, Public Laws of the State of North Carolina Passed by the General Assembly at the Sessions of 1866 ’67 (Raleigh: Wm. E. Fell, State Printer, 1867), 99; and Senate Ex. Doc. no. 26, 39 Cong., 1 Sess., 197. March 10, 1866. See also www.learnnc.org/lp/editions/nchist-civilwar/5516. Indeed, many former slaveholders did exactly as instructed; they continued to seek compensation from the federal government until section 4 of the Fourteenth Amendment specifically eliminated the possibility. Henderlite v. Thurman 63 Va. 466 (1872), 479.

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emphasized that only exceptional wartime circumstances had made emancipation possible. Lincoln possessed the capacity to direct his armies to liberate enslaved people only as commander in chief. The expanded authority used to deliver freedom, in other words, was temporary. It receded with the return of peace.78 These rulings, then, not only prompted questions about when slavery ended but also implicitly considered when the use of war powers ended.79 Given that state courts that relied on military force to determine the boundary between slavery and freedom were ruling after the Reconstruction Acts took effect, these questions were all the more provocative. (The next chapter will return to this question of just how long ex-Confederate states remained in the “grasp of war.”) Curiously, the rulings that relied on force to enact emancipation acknowledged the military conquest of the Confederacy, but not the total annihilation of the states that had once comprised it. To most, rebels had been vanquished and the states over which they ruled had been liberated from the traitors’ grip and could now return to their proper place in the Union. Georgia’s court disagreed with this assessment. Instead, it held that “the union between the States, as organized governments, which existed at the date of secession, ceased to exist when the States withdrew from it.”80 Therefore, the Constitution’s contract clause did not invalidate the state’s own ban against enforcing agreements for enslaved people, and the court did not need to establish when slavery had ended. It would not enforce any of them. To Chief Justice Joseph E. Brown, how slavery ended was self-evident: It was compelled by the victors. Brown wrote in 1869, “When the Government succeeded in our subjugation, and became a conquering power, it acquired the legal right to dictate the terms

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Pearson suggested Congress possessed greater authority, but he did not opine on the extent of that power during peacetime. Scholars have begun to challenge traditional periodization of the Civil War and Reconstruction eras to suggest the war itself – or key features of it – continued after the formal end of hostilities. See, e.g., Gregory P. Downs, After Appomattox: Military Occupation and the Ends of War (Cambridge, MA: Harvard University Press, 2015); Carole Emberton, Beyond Redemption (Chicago: University of Chicago Press, 2013). Shorter v. Cobb 39 Ga. 286 (1869), 289–90.

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upon which the conquered States should be restored to position in the Union.”81 Those terms included the abolition of slavery and, “under the supervision of Congress,” the establishment of a republican government.82 The conquered territory of Georgia complied by adopting a new constitution that not only prohibited slavery but also forbade the enforcement of any slavery-related contract, or the collection of debts incurred prior to June 1, 1865.83 It was approved by Congress as a condition of the state’s readmission under the Reconstruction Acts. Its approval signaled its constitutionality. Until 1869, the state had marked slavery’s end by using the date of the state’s previous constitution – November 1865.84 But a shift in Georgia politics, initiated by Radical Reconstruction, facilitated Brown’s ruling. Like James Taliaferro and many other state court judges, Brown had served as a delegate to his state’s constitutional convention. There, he championed debt relief measures – including the invalidation of contracts for enslaved people – and reassured concerned colleagues that such provisions would not be struck down by the courts.85 The same constitution that included the contract nullification clause also gave the governor the ability to replace justices on the court. In 1868, the governor exercised that power, and appointed Brown to the chief justiceship of Georgia’s Supreme Court.86 From his new position on the bench, he stayed true to the promise he had made at the convention.87 Though Georgia alone used this standard to evaluate emancipation until the U.S. Supreme Court overturned it in White v. Hart (Chapter 1), 81 82 83

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Shorter v. Cobb 39 Ga. 286 (1869), 290. Shorter v. Cobb 39 Ga. 286 (1869), 295. Shorter v. Cobb 39 Ga. 286 (1869); Georgia Constitution of 1868, Art. 5, sec. XVII; Constitution, Ordinances and Resolutions of the Georgia Convention (Atlanta: New Era Job Office, 1868), 16–17, https://hdl.handle.net/2027/hvd.li3cmh. Cobb v. Battle 34 Ga. 458 (1866). “[T]he recognition by the convention of Georgia, in November, 1865, of the abolition of slavery thenceforth swept away, at a blow, all laws in reference to negroes as slaves, their freedom began then.” Kull, “The Enforceability after Emancipation of Debts Contracted for the Purchase of Slaves,” 498–99. He replaced Hiram Warner, who had served in that post for just one year after the death of Joseph Lumpkin. He led the change in the court’s position on when and how emancipation took place by convincing swing justice (and former Confederate lieutenant) Henry Kent McCay to vote in support of ab initio over the strenuous objections of Hiram Warner.

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the position only partially deviated from those articulated elsewhere. It shared and reinforced the belief that military force produced Black freedom. Neither Brown, who proclaimed while serving as governor of Georgia in December 1860 that southerners “can never consent to see slavery abolished” or “submit to all the taxation, vassalage, low wages and downright degradation, which [would] follow,” nor his statesmen had consented to emancipation.88 It had been coerced as a term of their military defeat. Brown, who was briefly imprisoned and then pardoned by Andrew Johnson after the Civil War, never abandoned this view.89 Using language that portended the Lost Cause rhetoric of later years, he wrote in his 1869 ruling, “Notwithstanding the determined purpose of the Southern people, and the intrepid valor of the Southern armies, this great task was accomplished by overwhelming superiority of numbers and vast advantages in resources.”90 Brown, like many other judges, also emphasized that the expanded federal authority to make demands of the state was temporary. It lasted only until Georgia met the terms set by Congress in the Reconstruction Acts. Once Congress, as “legal representative of the conquering powers,” approved Georgia’s new constitution, it became “irrevocably fixed upon the people of the State,” and the federal government’s exceptional authority over it ended entirely. In other words, Brown conceded that the federal government had possessed and exerted extraordinary authority that had ended slavery, but not that it had amassed any new permanent power over the states that it had not possessed prior to the Civil War. Abolitionist judges accepted the legality of the Emancipation Proclamation. Their position relied on some of the same justifications that informed their view of enforcing contracts tied to slavery (which is not surprising, given the issues were often raised in the same suits). For instance, because slavery lacked support in natural law, a change

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Joseph E. Brown to Alfred H. Colquitt and Others, December 7, 1860, in William W. Freehling and Craig M. Simpson, eds., Secession Debated: Georgia’s Showdown in 1860 (New York: Oxford University Press, 1992), 155. Joseph H. Parks, Joseph E. Brown of Georgia (Baton Rouge: Louisiana State University Press, 1977), 358, 368. Shorter v. Cobb 39 Ga. 286 (1869), 290.

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in the will of the nation could overturn the positive law that had made its practice legal. But some of these judges also engaged the claim that emancipation was secured by martial action. One judge concurred with Livingston Lindsay that slavery itself existed through force, and emancipation freed those who had once been subjected to its violence. For another justice, the military conquest of the Confederacy made the Emancipation Proclamation applicable to all agreements made from the date of its promulgation onward, even if it took two more years to finally subdue the rebellion. Regardless of their rationale, these judges believed the president’s order possessed a great deal more power than did their peers. After General Benjamin Butler’s troops secured New Orleans and the surrounding sugar parishes in April 1862, portions of Louisiana began a program of wartime Reconstruction. Because of its strong Unionist sentiment; international population; and large, well-established free Black community, Lincoln had high hopes for the region’s return to the Union fold. The Emancipation Proclamation did not apply to territories already held by Union forces, but in 1864, delegates convened and adopted a new constitution that prohibited slavery. That document served as a temporary legal boundary between slavery and freedom.91 The government instituted in 1864 failed to garner sufficient support from either Radicals or free Blacks, both of whom sought political rights – suffrage – for freedmen. After the New Orleans riot of 1866 undermined the lenient policies of Lincoln’s Ten Percent Plan, and later those of Andrew Johnson, the stage was set for yet another constitutional convention, over which James Taliaferro, himself shaken by the riot, would preside.92 Just months before a biracial delegation met to draft a new constitution, Taliaferro penned the opinion in Wainwright v. Bridges. According to the ruling, emancipation, whenever and wherever it may have taken place, occasioned a more complete destruction of both the institution and its supporting legal frameworks than other states recognized. The court did not need to specify when emancipation took place, as all agreements related to slavery had become unenforceable regardless of timing. 91 92

Fenn v. Carr 19 La. Ann. 106 (1867). Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, 262–64.

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The court justified its position on the authority to liberate. Because slavery existed “without the positive authority or sanction of the paramount organic law of this nation,” Taliaferro reasoned, slavery existed “only by the will of the sovereign power.”93 Consequently, it could be abolished once “the sovereign will of this nation declared that African slavery should no longer exist within its borders.”94 The court believed that declaration came in the form of the Emancipation Proclamation (“declaration of emancipation”), which had destroyed slavery in its entirety.95 Taliaferro construed the Proclamation as more than a presidential edict or war measure; it communicated the “sovereign will” of the people themselves. In Louisiana, it did not matter that the Proclamation took effect on January 1, 1863, or any other date; it mattered only that through their government, the people of the United States had rescinded their support for the peculiar institution. The state’s courts, therefore, no longer had any authority to enforce matters related to it. In an 1869 ruling in Alabama, abolitionist judge Thomas Peters agreed with the Louisiana court about slavery’s national character and that slavery had existed through positive law alone. Like Taliaferro, Peters had owned enslaved people before the Civil War, was elected to his state’s Supreme Court in 1868 as a Republican, and had served in the state’s constitutional convention that ratified a contract nullification ordinance.96 (Remarkably, he also came to believe not only in racial equality but also in equal rights for women.97) After emancipation, Peters called slavery “a national interest, protected by national law” that “depended on force, and not upon right, for its preservation.” It could therefore “only expire by a national act.” He believed the Emancipation Proclamation counted as that act, because it “authoritatively proclaimed [freedom] as the will of the nation.”98

93 94 95 96 97

98

Wainwright v. Bridges 19 La. Ann. 234 (1867), 238. Wainwright v. Bridges 19 La. Ann. 234 (1867), 239. Wainwright v. Bridges 19 La. Ann. 234 (1867), 240. Alabama Department of Archives and History, “Alabama’s Supreme Court Chief Justices: Thomas M. Peters.” “2006 Lawyers’ Hall of Fame: Thomas Minott Peters (1810–1888),” Alabama State Bar, accessed July 22, 2020, www.alabar.org/about/alabama-lawyers-hallof-fame/2006-lawyers-hall-of-fame/. Morgan v. Nelson 43 Ala. 586 (1869), 591–92.

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For a brief time, the Alabama court used the Proclamation as the boundary between slavery and freedom as no other court did. With its issuance, Peters concluded, “The nation fixed the day for its termination.” Citing the “doctrine of relations” (something done at one moment is treated as if it were done in the past), he explained the subsequent months of war as merely part of the “successive operations” that abolished slavery. But that did not change the date of emancipation or make suspect the authority of the Proclamation to ensure its “consummation.” “From the beginning, the whole is one continuing act,” Peters wrote, “and therefore, in legal contemplation, it is done from the commencement.”99 Dissenting Texas judge Andrew Jackson Hamilton agreed that the Emancipation Proclamation had possessed considerable legal power. Though the majority of his court disagreed, Hamilton argued that the legality of the Proclamation derived from Lincoln’s authority as commander in chief. Those who continued trading in human chattel knew the policy, and “disregarded it at [their] peril.”100 As a consequence, “the conquering power has now a right to demand that the policy which they were constrained to adopt during the war, as well as subsequent measures, shall be respected.”101 In contrast to Taliaferro, Peters and Hamilton acknowledged that fully realizing emancipation – and any chance of delivering ­abolition  – had required a Union military victory. These positions share some of the logic of rulings that depended on military conquest as the prerequisite for Black freedom. For Hamilton, military force saved the Union and produced “the most imposing, responsible, and noble act ever performed by a president of the United States.”102 For Peters, military force was purely instrumental, meant to counteract the violence required to sustain enslavement. “No human being was ever created a slave,” he wrote. “Slavery was the creature of force or fraud.”103 Like Hamilton, Peters soon found himself in the minority. Less than a year after he ruled, and over his stringent objections, the 99 100 101 102 103

Morgan v. Nelson 43 Ala. 586 (1869), 592–93. Emancipation Proclamation Cases 31, Tex. 504 (1868), 552. Emancipation Proclamation Cases 31, Tex. 504 (1868), 546. Emancipation Proclamation Cases 31, Tex. 504 (1868), 549. Morgan v. Nelson 43 Ala. 586 (1869), 591.

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Alabama court overturned the abolitionist ruling.104 In McElvain v. Mudd, which rejected the state’s constitutional provision banning the enforcement of contracts tied to slavery, the majority opinion asserted that the Emancipation Proclamation “though positive in its language, depended upon a contingency” – the Union’s military victory – before “its purpose would ever be realized.”105 As most courts concluded, Alabama determined that “until the rebellion was suppressed, and the said proclamation became effectual to control the people of the rebel States,” slavery had not ended.106 The two Alabama rulings underscore the divergent views among judges and the rapidly shifting terrain of post-emancipation jurisprudence. Abolitionist judges used their opinions and dissents to announce when in law the process of abolition began. They bolstered the notion that the war itself inevitably initiated slavery’s destruction, and affirmed a belief in the substantial authority of the president both to secure the nation from harm – its disunion – and carry out the will of the people to end the source of sectional conflict – slavery. More important, they reinforced the emerging constitutionalism of congressional Republicans. They theorized that sovereignty, as legal scholar Robert Kaczorowski writes, “resided in the national government and included the primary authority to determine the status and secure the rights of all Americans”107 (Table 3.1). In some instances, establishing the date of emancipation allowed judges to do precisely that – determine the status and uphold the rights of newly free Americans. The standards themselves may have come primarily from contract litigation, but they applied more broadly, including to suits involving or initiated by freedpeople. These cases illustrate white southerners’ blatant resistance

104

105 106 107

Both cases were decided by the same justices after the adoption of the Constitution of 1868. That constitution provided that justices be elected by the people, not by the state’s legislature. J. Ed Livingston, George Earl Smith, and Bilee Cauley, “A History of the Alabama Judicial System,” 1955, https://judicial.alabama.gov/docs/ judicial_history.pdf. McElvain v. Mudd 44 Ala. 48 (1870), 60. McElvain v. Mudd 44 Ala. 48 (1870), 61. Kaczorowski, “To Begin the Nation Anew: Congress, Citizenship, and Civil Rights after the Civil War,” 47.

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106 table 3.1  Dates of Emancipation State

Standard(s) for Emancipation

Relevant Case(s)

District of Columbia

Compensated Emancipation Act of April 16, 1862

none

Maryland

State constitution of 1864

none

Missouri

Ordinance of Emancipation, January 1865

Phillips v. Evans (1866)

Delaware

Thirteenth Amendment

none

Kentucky

Thirteenth Amendment

Hughes v. Todd (1865); Corbin v. Marsh (1865)

Virginia

Direct union control

Henderlite v. Thurman (1872)

North Carolina

Direct union control

Harrell v. Watson (1869)

South Carolina

1. Military conquest;

Georgia

1. November 1865 with new

complete when Robert E. Lee and Joseph E. Johnston surrendered in April 1865 2. Direct union control constitution 2. Date irrelevant after Shorter ruling 3. State constitution

Alabama

1. State convention,

September 22, 1865 2. Military conquest of the state on May 1, 1865 3. Emancipation Proclamation 4. Military conquest Mississippi

1. State constitution, August

1865 2. Direct union control

Mitchell v. De Schamps (1866) Pickett v. Wilkins (1867)a

Cobb v. Battle (1866); Shorter v. Cobb (1869)

Jeffries v. State (1866); Ferdinand v. State (1866); Eliza v. State (1866); Leslie v. Langham’s Executors (1867); Morgan v. Nelson (1869); McElvain v. Mudd (1870) McMath v. Johnson (1867); Vicksburg & Meridian Railroad Co. v. Amos Green (1869); Herrod and Thigpen v. Davis (1870); Whitfield v. Whitfield (1870)

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table 3.1  (Continued) State Louisiana

Standard(s) for Emancipation . State constitution of 1864 1 . The court did not enforce 2

slave contracts, regardless of when they were mad

Relevant Case(s) Fenn v. Carr (1867); Wainwright v. Bridges (1867)

Florida

Direct union control

Slaback v. Cushman (1869)

Tennessee

State constitutional amendment, February 22, 1865

Brothers v. State (1866); Graves v. Keaton (1866); Gholson v. Blackman (1867); Alex Officer v. Sims (1871); Johnson v. Johnson (1871); Andrews v. Page (1871)

Texas

1. Military conquest of

the state, June 19, 1865 (Juneteenth) 2. Unspecified, but by June 15, 1865 3. Back to Juneteenth Arkansas

. State constitution of 1864 1 . Direct union control 2

Emancipation Proclamation Cases (1868); Dowell v. Russell (1873); Garrett v. Brooks (1874)

Steele v. Richardson (1866); Jacoway v. Denton (1869)

Note: States in gray did not secede. a  The South Carolina opinions proved difficult to find in electronic databases. See Richardson, Cases in Equity Argued and Decided in the Court of Appeals and Court of Errors, of South Carolina, XIII:9, 366.

to emancipation, and perhaps even their incredulity that it had occurred at all. It mattered, then, that judges could determine precisely when an individual person became free: Only then could legal measures protect those experiencing violations of their rights or denial of their freedom. In one bizarre Texas case from 1874, two men had knowingly attempted to arrange a slave sale after the Civil War had ended and after Granger had ordered slavery’s end in the state. According to the evidence presented in court, William Garrett agreed to sell an enslaved man named Miles to John H. Brooks for $400 in gold. The two men, however, disagreed over the date of the contract’s execution. Garrett contended that Brooks “wrote the note and backdated it to 1 April

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1865 because he feared that the government of the U.S. States and Soldiers would punish him for the transaction if dated 5 July 1865,” the actual date of its execution.108 The original “sale,” however, was actually part of a ruse to force Miles back to San Augustine, a town about twenty-five miles west of the Louisiana border, so that Garrett could recapture him and illegally return him to bondage.109 The deception worked, and Brooks notified Garrett that Miles was living on his property. Garrett arrived with “his gun and pistols to [the] defendants house and asked for Miles.”110 In an effort to maintain their hold on human property, some defied military orders and resorted to extralegal violence. By that point, however, Brooks had come to believe that Miles was in fact a free man, and that he had wronged Miles by “telling Garrett where he was and because he [knew] that Mr. Garrett treated negroes badly he would ill treat him.”111 Suits such as Garrett demonstrate that some people remained under the threat of bondage despite their liberty. Setting the date of emancipation was essential for identifying when formerly enslaved individuals such as Miles acquired the basic rights of freedom. When the lower court and the Texas Supreme Court agreed that the note had been executed in July 1865, they reaffirmed June 19, 1865 – Juneteenth – as the official end of slavery in Texas and recognized that “Miles, under the existing condition of affairs, had a right to remain with or leave the service” of Brooks according to the terms labor both found agreeable.112 Indeed, Miles and his family had “remained with Broocks [sic] working [for] him during the year 1865 for which Broocks [sic] paid him” as a free man, and Miles negotiated to stay and work for Brooks “for another year.”113 Similarly, by determining the date of Henry Parker’s freedom, the North Carolina Supreme Court established that he was the lawful owner 108 109 110 111 112 113

Garrett v. Brooks 41 Tex. 479 (1874), Texas State Library and Archives, box ­201-4324, file M-8485, transcript, page 15. Garrett v. Brooks 41 Tex. 479 (1874), Texas State Library and Archives, box ­201-4324, file M-8485, transcript, page 12. Garrett v. Brooks 41 Tex. 479 (1874), Texas State Library and Archives, box ­201-4324, file M-8485, transcript, page 12. Garrett v. Brooks 41 Tex. 479 (1874), Texas State Library and Archives, box ­201-4324, file M-8485, transcript, page 13. Garrett v. Brooks 41 Tex. 479 (1874), 481. Garrett v. Brooks 41 Tex. 479 (1874), Texas State Library and Archives, box 201– 4324, file M-8485, transcript, page 17.

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of a mule left behind by General Sherman in March, 1865. Decided just six months before Harrell v. Watson, the court ruled that Parker became free on March 13, 1865, when “Sherman’s army entered Fayetteville, and … came under the control of the government of the United States,” according to the terms of the Second Confiscation Act.114 Just two days later, Parker found the mule and claimed it as his own. Believing Parker was still enslaved, however, John Buie claimed the mule for himself and attempted to sell it. The court ruled that because the United States “prevailed” against the Confederacy, and Parker claimed the mule after U.S. forces had taken his region of the North Carolina, Parker “was a freeman and the mule was his ­property.”115 As such, he had every right to do with it whatever he pleased. Emancipation was never a single event. Rather, the force of freedom careened through the slave states, liberating as it went. This was certainly true in practice: Historians have long told the powerful stories of enslaved people fleeing plantations for Union encampments, or Black men enlisting in the U.S. army in order to secure freedom for themselves and their families.116 It was just as true in political terms. Despite the Emancipation Proclamation and federal laws, congressional leaders and President Lincoln concluded that an amendment to prohibit slavery forever was required to give higher meaning to the Union’s sacrifice and to bring a permanent end to sectional strife.117 Only then could the nation begin to atone for its original sin. But the jagged and uneven path of freedom was also reflected in law. Whether set by the adoption of a new state constitution, based on the movements of liberating armies, or achieved by the Thirteenth Amendment, judges fixed moments of freedom in time and in law. Their rulings became extended expositions on the nature of slavery and the sovereign power that had been required to sustain it and, during Reconstruction, to eradicate it. For individuals such as Henry 114 115 116

117

Buie v. Parker 63 N.C. 131 (1869), 135, State Archives of North Carolina, case record number 9279. Buie v. Parker 63 N.C. 131 (1869), 136. Taylor, Embattled Freedom: Journeys through the Civil War’s Slave Refugee Camps; Ira Berlin et al., Slaves No More: Three Essays on Emancipation and the Civil War (New York: Cambridge University Press, 1992). Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment; Foner, The Fiery Trial.

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Parker and Miles (who perhaps had not yet chosen his last name when he became embroiled in the dispute between Brooks and Garrett), rulings that identified the boundary between slavery and freedom carried a great deal of significance. They determined when individuals became eligible to exercise the rights of freedom, which included the ability to contract wages and possess property of their own. Indeed, for all freedpeople in Texas, the date of emancipation came to signify their deliverance from bondage. Their annual Juneteenth celebrations, which began in local settings in 1866, quickly spread to other parts of the South. Since George Floyd’s murder at the hands of Minneapolis police officers in May 2020 especially, Juneteenth has become an occasion to highlight the ongoing abolitionist struggle for liberation and social justice.118 In June 2021, after decades of activism, it became a federal holiday.119 While judges reached no unanimous conclusion about when and how slavery ended, a majority agreed on one point: Military force destroyed the peculiar institution, and only during wartime could the federal government claim the authority to seize and destroy private property, chattel or otherwise. Neither the war nor Confederate conquest, they ruled, had imbued the federal government with greater power than it had prior to 1861. Contrary to Sumner’s assertion, most judges believed the form of the state had not changed. Those who ascribed to this view remained wedded to the idea of the Union and the Constitution “as it was,” even with new amendments.120 And most of important of all, that meant that states, regardless of their attempt to sunder the Union itself, had not lost any of the rights they had traditionally claimed. In the 1870s and the decades that followed, these ideas gained lasting traction in the Supreme Court of the United States. For instance, the Court ruled that Congress did not possess 118

119

120

Teresa Palomo Acosta, “Juneteenth,” Texas State Historical Association, Handbook of Texas Online, August 3, 2020, www.tshaonline.org/handbook/entries/ juneteenth. Giuliana Perrone, “Juneteenth and the Broader Black Freedom Struggle,” African American Intellectual History Society, Black Perspectives (blog), June 25, 2021, www.aaihs.org/juneteenth-and-the-broader-black-freedom-struggle/. During the 1860 presidential election, the Constitutional Union Party adopted the slogan “the Union as it is, the Constitution as it is.” During the election of 1864, the Peace Democrats, or “Copperheads,” amended the slogan to “The Union as it was, the Constitution as it is.”

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any new power to prosecute the perpetrators of racial violence or protect an extensive set of civil rights. Radicals and abolitionist judges pushed back on this position, arguing that the will of the people itself had evolved and come to agree that the nation could survive only if it were fully free. In the face of southern intransigence, abolitionists knew that truly eradicating slavery would require strong federal action, and they used their rulings to affirm that the government of the United States possessed the power to take it. But it was not to be. The judicial resolution to a question about Confederate sovereignty ensured that outcome.

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4 Confederate Reckonings

Texas Supreme Court reporter George Paschal had a knack for ­summing up the stakes of post-emancipation litigation. More than that, he could tease out the distinct, but related, issues that converged in the same suit. In his headnotes to the Emancipation Proclamation Cases, for instance, he remarked not only on the question of contract enforcement and the timing of emancipation but also on the ambiguity of the rule of law that governed the postbellum South: When I returned to my home in 1868, I found the [state constitutional] convention in session, the whole country under military rule, the business of the courts well-nigh suspended, three members of the supreme court serving in the constitutional convention, the people in utter confusion as to the landmarks of liberty, the great mass of the legal profession entirely in the dark as to what had been the decisions for several years, and, under the cry of “void, ab initio” there were still greater uncertainty as to what constitution and statute laws the people were living under.1

Secession, military defeat, and emancipation had all contributed to the “utter confusion” southerners faced. But the “greater uncertainty” about the status and governance of their states stemmed directly from the previous existence of the Confederate States of America. The 1

George W. Paschal, Reports of Cases Argued and Decided in the Supreme Court of the State of Texas, vol. XXXI (Washington DC: W. H. & O. H. Morrison, 1870), 7. The title of this chapter was inspired by Stephanie McCurry, Confederate ­Reckoning: Power and Politics in the Civil War South (Cambridge, MA: Harvard University Press, 2010).

112

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specter of the vanquished Confederacy loomed over the postbellum South, and in order to resolve disputes related to slavery, judges, lawyers, and laypeople would have to reckon with it. This chapter delves more deeply into some issues already explored to explain how the existence of the Confederacy complicated judicial decision-making. Judges considered how the exigencies of war shaped personal disputes, rendered verdicts on contracts executed during the war, and examined the use of Confederate currency in those agreements. In doing so, they intervened in the longstanding debate over the right of secession, considered the lingering effects of the Confederacy’s existence, and contributed to political discussions about who had the legal authority to enact Reconstruction policy and what shape it could take.2 By maintaining legal continuity despite the breach caused by the Civil War, judges ensured the ongoing applicability of legal doctrine and preserved antebellum commercial practice. In their rulings, elements of slavery, the fundamental principle for which the Confederacy stood, survived the crucible of war. Scholars have written expansively about questions prompted by secession, the existence of the Confederacy, and the conduct of the Civil War. Legal histories of the Civil War and Reconstruction have tended to emphasize changes in federal law and assessments of federal power and sovereignty, the addition of the Reconstruction Amendments, and the transformational rulings from the U.S. Supreme Court that interpreted their meaning.3 Some have explored how the federal government, and Lincoln in particular, used the U.S. 2 3

On the legal stumbling blocks faced by Congress in enacting Reconstruction policy, see John Fabian Witt, Lincoln’s Code (New York: Free Press, 2012), 304–8. Harold Melvin Hyman, The Reconstruction Justice of Salmon P. Chase: In re Turner & Texas v. White (Lawrence: University Press of Kansas, 1997); Hyman, A More Perfect Union; Hyman and Wiecek, Equal Justice under Law: Constitutional Development, 1835–1875; Michael Les Benedict, Preserving the Constitution: Essays on Politics and the Constitution in the Reconstruction Era (New York: Fordham University Press, 2006); Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866–1876 (New York: Oceana Publications, Inc., 1985); Michael A. Ross, Justice of Shattered Dreams: Samuel Freeman Miller and the Supreme Court during the Civil War Era (Baton Rouge: Louisiana State University Press, 2003); Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment; William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge, MA: Harvard University Press, 1988); George Rutherglen, Civil Rights in the Shadow of Slavery (New York: Oxford University Press, 2013).

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Constitution to win the war and consolidate federal power.4 Others have analyzed the sectional conflict through the laws of war, viewing conquest of the Confederacy and emancipation as legally sanctioned wartime policy.5 Literature from the past two decades especially has stressed the socio-legal history of the Civil War and Reconstruction, tracing the evolving relationships between individuals – including freedpeople – their government(s), and the law.6 This examination of state-level judges tasked with resolving private litigation enriches our understanding of these formative issues, identifies an underappreciated site of their deliberation, and reveals how private litigation intersected with abolition. Abolition factored into judgments in two ways. First, dismantling the Confederacy was an inextricable part of deconstructing slavery – a primary task of abolition. Notwithstanding their rhetorical emphasis on generic states’ rights, Confederate founders had drafted a constitution dedicated to the preservation of slavery, and they had constructed a central government designed to be strong enough to protect it.7 When these same men professed that their would-be nation’s “corner-stone rest[ed] upon the great truth that the negro is not equal to the white man,” they ensured slavery and racial inequality were entwined with, if not inherent to, the Confederacy.8 This message was not lost on postbellum judicial abolitionists. They understood that resolving cases that originated during the Civil War was fundamentally about slavery as well as the status of the rebellious states. Second, and more immediately, determining Confederate sovereignty was a prerequisite for enforcing a substantial number of 4 5 6

7

8

Neely, Lincoln and the Triumph of the Nation. Stephen C. Neff, Justice in Blue and Gray: A Legal History of the Civil War (Cambridge, MA: Harvard University Press, 2010); Witt, Lincoln’s Code. Edwards, A Legal History of the Civil War and Reconstruction; Gregory P. Downs and Kate Masur, eds., The World the Civil War Made (Chapel Hill: University of North Carolina Press, 2015); Pamela Brandwein, Rethinking the Judicial Settlement of Reconstruction (New York: Cambridge University Press, 2011); Dylan Penningroth, The Claims of Kinfolk (Chapel Hill: University of North Carolina Press, 2003). Aaron R. Hall, “Reframing the Fathers’ Constitution: The Centralized State and Centrality of Slavery in the Confederate Constitution,” Journal of Southern History 83, no. 2 (May 2017): 225–96. On the ways in which an unyielding political commitment to slavery proved to be a weakness for the Confederacy, see McCurry, Confederate Reckoning: Power and Politics in the Civil War South. Alexander H. Stephens, “Cornerstone Speech” (Savannah, GA, March 21, 1861).

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agreements for slaves, including, but not limited to, all contracts executed during the Civil War. In order to claim jurisdiction and enforce agreements, judges had to pass judgment on the Confederacy’s former existence. Specifically, they had to answer two separate but related questions: whether secession had been illegal and whether the Confederacy was an insurgent organization run by treasonous rebels (perhaps, as Lincoln believed, over the wishes of the majority of southern people) or whether it had existed as a separate sovereign nation.9 The answer would determine which, if any, agreements made in rebelling states could be upheld or even considered by postbellum courts. In short, cases related to slavery forced judges to confront the remains of the republic founded to protect slavery’s existence. They had to pay attention to the legal demands of individual southerners who had continued to engage in its slave economy despite the increasing threat of its collapse. A great many of the suits fundamentally concerned with the consequences of emancipation depended on an evaluation of secession and sovereignty. In making these determinations, legal and political questions collided with the personal experiences and beliefs of judges and litigants. The Confederacy was never recognized by the United States or by any foreign nation as a sovereign state.10 Yet those who supported it and lived under its rule observed a functioning constitutional government that carried out the will of its people. Many Union supporters who experienced or closely observed the war agreed. Ultimately, however, many judges let the outcome of the war settle the questions. North Carolina’s Justice Richmond Pearson, for example, believed that “our State is not an independent nation, but is a member of the Union, and the attempt to withdraw [from it], and the war consequent thereon, was a revolt, and subjected our citizens, who participated in it, to the charge of treason, unless the State had a right to secede. That question we must suppose to have been settled by the result of the war,” which “resulted in subjugation,” not independence.11 9 10

11

Secession and the sovereignty of the Confederacy constituted two legal questions that, while often linked, remained distinct from one another. Some scholars resist using “Confederacy” or “Confederates” precisely because the terms grant tacit legitimacy to a rogue state and its traitorous supporters. Steven Hahn, A Nation without Borders (New York: Penguin Random House, 2016), 4. In re Hughes 61 N.C. 57 (1865), 68, 72. Emphasis in original.

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This conclusion had profound implications. If southern states had seceded and the Confederacy had become a sovereign nation, then it had been conquered, and was entirely subject to the will of the victors without concern for constitutional protections. But if the legal bonds of federalism had remained intact throughout the war, however tenuously, then judges could maintain that the private legal rights of southerners – including the right to hold enslaved people as property – remained continuous and unaltered. The states that had purportedly joined the Confederate States of America, therefore, had never actually left the United States; they were merely “in rebellion.” Embedded in every ruling was a judicial choice about whether antebellum law and legal custom rooted in slavery continued to apply in the postbellum and post-emancipation legal universe, or whether the war had occasioned a second national founding that permitted the dramatic expansion of federal authority and the annihilation of all matters derived from slavery. Collectively, judges chose the former, thereby preventing the full defeat of the Confederacy and the institution for which it stood. While the Civil War raged around them, southerners generally remained committed to their twin causes: independence and slavery. An economy based on slavery and the production of cotton continued to operate throughout the conflict, even as productivity and profitability declined throughout the war. The belief in the righteousness of a society ordered around slavery (and the possibilities for upward mobility that slave ownership had long promised) never waned. The wartime commerce of slavery was shrouded in legal ambiguity. When the Civil War erupted the law of belligerency was murky at best, and whether or not the law of nations would govern the conflict had not yet been determined.12 Ultimately, Union leaders, led principally by President Abraham Lincoln and Secretary of State William Seward, adopted a legal strategy motivated by necessity and pragmatism.13 Confederates (and the Confederacy) would be declared “belligerents” so that the laws of war applied to the conflict without inviting international recognition of the Confederacy as a separate 12 13

Cynthia Nicoletti, Secession on Trial (New York: Cambridge University Press, 2017), 207. On Lincoln’s view of secession, see Neely, Lincoln and the Triumph of the Nation, chap. 1.

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sovereign nation.14 The Lincoln administration hoped this position would forestall any foreign assistance to the rebel states. In effect, as legal historian Stephen Neff attests, Union leaders decided to view the Confederacy as a quasi-state in order “to operate in both a belligerent and a sovereign mode, entirely as [they] chose.”15 This ensured that the law of war would govern the conflict while also denying states had the right to secede. It also set the stage for postbellum judges. The U.S. Supreme Court sustained the legality of this approach in its 1863 ruling in The Prize Cases. Concurring with the Lincoln administration, the Court categorized the Confederacy as a belligerent, affirming that it need not have been a separate nation for a state of war to exist. Associate Justice Robert Cooper Grier found it absurd to proclaim “[t]hat insurgents who have risen in rebellion against their sovereign, expelled her Courts, established a revolutionary government, organized armies, and commenced hostilities, are not enemies because they are traitors; and a war levied on the Government by traitors, in order to dismember and destroy it, is not a war because it is an ‘insurrection.’”16 While it was true that Confederate states needed to emerge victorious from the conflict in order to fully achieve sovereign independence, a state of war nevertheless existed. During and after the war, U.S. politicians separately considered theories for deciding the status of seceded states. The “state suicide” theory, first articulated by Charles Sumner in 1862, contended that secession was illegal and tantamount to suicide – a willful act that annihilated statehood and transformed states into U.S. territories. The concept became known as ab initio because it would have required seceded states to reapply for statehood “from the beginning” once Union forces subdued the rebellion.17 The “conquered province” theory, advocated by Thaddeus Stevens and later accepted by Joseph E. Brown of Georgia, recognized the Confederacy’s belligerent status, and stipulated that military defeat in the Civil War accomplished the same thing as state suicide: the reduction of the former Confederacy to conquered territory. The U.S. Constitution stipulated that territories

14 15 16 17

Witt, Lincoln’s Code, 155; Nicoletti, Secession on Trial, 207. Neff, Justice in Blue and Gray: A Legal History of the Civil War, 119. See also Nicoletti, Secession on Trial, 207; Witt, Lincoln’s Code, chap. 10. The Prize Cases 67 U.S. 653 (1862), 670. Ranney, In the Wake of Slavery, 67.

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fell under the direct control of Congress, which Radicals such as Sumner and Stevens found especially appealing, since they sought a more thorough reconstruction of the South than either Abraham Lincoln or Andrew Johnson. Other theories rejected that secession or conquest reduced states to territories. The “forfeit rights” position contended that though states chose to relinquish their rights when they attempted to leave the Union, they lacked the “authority to throw off their obligations without the permission of the government to which” they owed them.18 By this metric, without the approval of the United States, individual states could not secede at will. The “southern theory,” in contrast, contended that Confederate states had consistently remained in the Union, but at war’s end, they lacked proper republican governments staffed by loyal men, as required by the Constitution’s guarantee clause. As one court noted, “The frame of the government of the State still existed; there was the machinery, but no hands to work it; there were the offices, but no officers qualified to discharge the duties.”19 Many jurists and other moderates favored this approach.20 The outcome of the war often altered personal calculations about which theory to endorse. Lincoln, for example, had long asserted his belief in perpetual union. In his first inaugural address, he declared “that no government proper ever had a provision in its organic law for its own termination.”21 But in what became known as his “last speech” (as John Wilkes Booth called it), delivered just two days after Robert E. Lee surrendered to Ulysses S. Grant, Lincoln encouraged his fellow Republicans “to think of Reconstruction as a practical matter rather than a theoretical matter.” Lincoln had come to believe that whether the South was “in or out of the Union” was a “downright mischievous” distraction to the task of repairing the nation. The issue of sovereignty, Lincoln assumed, should not complicate his plans for 18 19 20

21

Benedict, Preserving the Constitution: Essays on Politics and the Constitution in the Reconstruction Era, 8. In re Hughes 61 N.C. 57 (1865), 68. Benedict, Preserving the Constitution: Essays on Politics and the Constitution in the Reconstruction Era, 8–11; Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, 232; Nicoletti, Secession on Trial, 105n55. Abraham Lincoln, “First Inaugural Address” (Washington DC, March 4, 1861).

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Reconstruction. Perhaps because his Ten Percent Plan was so modest, he did not perceive that the legal status of ex-Confederate states would complicate its dictates. Or perhaps in his mind the matter was at least partially settled. Union victory had destroyed the Confederate government and the treasonous state governments that had served it, leaving “no authorized organ for us to treat with.”22 But the loyal citizens would restore their states’ legitimate governments, and return them to their proper place in the federal Union. Andrew Johnson, who assumed the presidency after Lincoln’s assassination in April 1865, continued to deny that secession had occurred. He, Attorney General James Speed, and many other Unionists endorsed the “southern theory.” They believed that once the war concluded, the relationship between southern states and the federal government would return to the status quo antebellum. In his first annual address to Congress in December 1865, Johnson noted, “[T]he policy of military rule over a conquered territory would have implied that the States, whose inhabitants may have taken part in the rebellion, had, by the act of those inhabitants, ceased to exist. But the true theory is, that all pretended acts of secession were from the beginning null and void [i.e., void ab initio]. The State attempting to secede placed themselves in a condition where their vitality was impaired, but not extinguished; their functions suspended, but not destroyed.”23 Speed clarified that by rebelling against the United States, the states had “deprived themselves of all civil State government,” but had not left the Union.24 Though Johnson would require the establishment of new governments and demand loyalty oaths from some individuals, the states, under his Reconstruction plan, retained their original constitutional position in the Union. Many former Confederates knew that although they had argued for the legality of secession and had proclaimed their allegiance to a new and independent government, the continuity of statehood now 22

23 24

Abraham Lincoln, “Final Address” (Washington DC, April 11, 1865); Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, 74; McPherson, Battle Cry of Freedom, 851–52. Andrew Johnson, “First Annual Message to Congress,” December 4, 1865. Attorney General James Speed, quoted in Neff, Justice in Blue and Gray: A Legal History of the Civil War, 212.

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worked to their advantage.25 It was the only way that they would keep control of their state governments and avert the ire of Radicals in Congress. Ex-Confederates wanted it both ways: to have fought for independence while simultaneously claiming that their actions in pursuit of it had not extinguished statehood.26 This, historian Anne Sarah Rubin notes, “appears as a self-conscious attempt to manipulate Northerners” into minimizing the terms of Reconstruction.27 Some ex-Confederates also believed that insisting on states’ continuous constitutional relationship would allow – or even require – compensation for lost slave property. By insisting on ongoing statehood, former Confederates could argue that the Fifth Amendment prohibited the federal government from taking property without due process. Because the amendment applied to them continuously, ex-slaveholders in seceded states were therefore owed financial restitution, or “just compensation” for emancipation.28 Southern congressional delegations, deliberately construing their states’ place in the union as unaffected by the Civil War, returned to Washington DC in December 1865.29 They expected to retake their positions in Congress and pursue their claims for “reparation.” Their presence would give them a say in – and the potential to prevent – any congressional legislation related to Reconstruction. Northern congressmen, however, refused to welcome them. The most Radical among them had already committed to some version of ab initio, favoring the demotion of southern states to congressionally ­controlled territories. The move, which would strip ex-Confederate states of congressional representation, would force southerners to repent for treason and the calamitous war it precipitated, allow Congress to 25

26 27 28

29

On continued belief in the legality of secession, see Nicoletti, Secession on Trial, chap. 4. For a discussion of the ways in which the Confederacy outlived its defeat in the minds of Southerners, see Anne Sarah Rubin, A Shattered Nation: The Rise & Fall of the Confederacy, 1861–1868 (Chapel Hill: University of North Carolina Press, 2005). Cynthia Nicoletti, “The American Civil War as a Trial by Battle,” Law and History Review 28, no. 1 (February 2010): 71–110. Rubin, A Shattered Nation: The Rise & Fall of the Confederacy, 1861–1868, 163. Kleintop, “Life, Liberty, and Property in Slaves: White Mississippians Seek ‘Just Compensation’ for Their Freed Slaves in 1865,” 388. Kentucky judge George Robertson had maintained as much in late 1865, but there was no question about his state’s status, since it had not seceded. Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, 226.

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protect the emergent civil rights of African Americans, and permit the remaking of the South to fit many northerners’ free-labor, republican (and Republican) vision.30 When they became disenchanted with Andrew Johnson’s lenient policies, congressional leaders sought justification to seize the reins of Reconstruction and expand their authority over the defeated South. At the same time, few found the idea of indefinite congressional oversight politically palatable. Contending with the same constitutional strictures that Lincoln had faced when crafting effective wartime policy, Congress looked to Richard Henry Dana’s “grasp of war” theory. Dana, who had argued The Prize Cases on behalf of the federal government, first articulated the grasp of war theory in a June 1865 speech in Boston. The United States, he claimed, functioned as a “conquering party” and could therefore “hold” the states of the ex-Confederacy “in the grasp of war until it has secured whatever it has a right to acquire.”31 Accordingly, the southern states would remain under congressional control until the nation’s legislative body determined that its conditions for Reconstruction had been met. Crucially, this limited the possibility of unfettered or perpetual federal intervention in matters traditionally left to the states, avoided any concession about the right of secession, and gave Congress the authority to set federal policy over the wishes of the recalcitrant and anti-Black Andrew Johnson.32 30

31

32

Congress struggled to claim authority over Black rights or Reconstruction policy. As John Fabian Witt argues, using wartime powers – the laws of war outlined by Lincoln and the Lieber Code – gave them the tools they needed to do so. “The Reconstruction Act mobilized the laws of war precisely for the purpose of bringing the Civil War chapter of their history to a close.” Witt, Lincoln’s Code, 314–15. On the free labor vision, see Eric Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the Civil War (New York: Oxford University Press, 1995); David Montgomery, Beyond Equality: Labor and the Radical Republicans, 1862–1872 (Chicago: University of Illinois Press, 1981). The “grasp of war” concept derived from the same principles that had motivated the government’s position on the Union’s naval blockade, which the Supreme Court had declared constitutional in the Prize Cases in 1863. The Confederacy could be treated as a belligerent according to the laws of war without recognizing sovereignty or the right of secession. Richard Henry Dana Jr., “‘Grasp of War’ Speech,” in Speeches in Stirring Times and Letters to a Son, ed. Richard Henry Dana III (Boston and New York: Houghton Mifflin and Company, 1910), 243–59. See also Witt, Lincoln’s Code, 306–7. Witt, Lincoln’s Code, 306.

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Litigation related to slavery forced state judiciaries into this ongoing controversy. With the onset of Congressional Reconstruction, the status of the states became more ambiguous. The Reconstruction Acts required each state to apply for readmission, but it did not specifically stipulate that they had lost their statehood. The question of state status emerged in cases regarding contracts for enslaved people made during the war. The chief justice of the Texas Supreme Court, Amos Morrill, recognized one fundamental problem: “It is evident that if, during the rebellion, the citizens of Texas were citizens of and subject to the constitution of the United States, then they could not ‘be deprived of property,’ … without due course of law. If they were a part of another state or de facto government, and they and their property were captured by the forces of the United States,” then no legal problem arose.33 The primary question in most suits remained whether or not the constitutional provision against “impairing the obligation of contracts” (Article 1, section 10) remained applicable to contracts made during the war in ex-Confederate states. If those states had legally seceded, then the provision did not apply and courts could decline to adjudicate suits making that claim. Appealing to this logic, lawyers for debtors frequently contended that the states had left the Union. They used the existence of war itself as proof. They invoked legislative acts and news coverage of the war as evidence that “the leaders and people of certain southern states resolved that they would not live under a government presided over by an abolitionist.”34 The matter became more complex when states began adopting new constitutions that prohibited the enforcement of all agreements for enslaved people. Delegates to state constitutional conventions that adopted such provisions insisted that even if their states had not seceded, they had no legal government until they met the standards set by congressional Reconstruction policies. Either way, the contract clause did not apply until Congress sanctioned the states’ representatives return to the legislative body. Similarly, some attorneys claimed that the very need to write new constitutions affirmed that ex-Confederate states were either conquered or had had their 33 34

The Emancipation Proclamation Cases 31 Tex. 504 (1868), 519. Bishop v. Jones & Petty 28 Tex. 294 (1866), 296.

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governments “overthrown by Congress under the reconstruction acts.”35 As a lawyer for one appellee in Florida noted, the “illegality of the government, and its acts as such, that gave rise to the absolute necessity for a constitutional convention” and to “erect a Constitutional Republican Government,” proved that “Florida was in no constitutional sense a State in the Union.”36 Most courts rejected this argument, opting instead to enforce agreements for slaves.37 In order to do so, courts had to sustain that the contracts clause of the Constitution applied continuously to the states that had joined the Confederacy. That is, in spite of what Confederates claimed during the war, judges (some of whom had been Confederate supporters or served in the Confederacy’s ranks) had to establish legal continuity. The Virginia court, for instance, determined that even if the state had been out of the Union from the time it seceded to the moment when Congress readmitted it, constitutional protections applied throughout. Readmission “restored [southern states’] normal position in the Union,” and ensured “the [C]onstitution of the United States at once operated upon them as the ‘supreme law of the land,’ and they became at once bound by the force of its prohibitions, as well as entitled to the benefits of its protection.”38 The argument shared much with the “southern theory” that Andrew Johnson had supported. During the war, Confederate states lacked proper republican governments, but once loyal men regained power, states reassumed their proper place in the Union. The Constitution may have been suspended by rebel usurpers, but it had never been severed.39 The South Carolina court offered a particularly robust defense of perpetual statehood. Pointing to Andrew Johnson’s message to Congress and other federal actions, the court insisted that no constitutional breach had occurred.40 Moreover, the court reasoned,

35 36 37

38 39 40

McNealy v. Gregory 13 Fla. 417 (1869), E. J. Simkins for Appellee. McNealy v. Gregory 13 Fla. 417 (1869), E. J. Simkins for Appellee. Some courts made determinations about secession and sovereignty in suits that did not involve slavery and cited them in suits that did. See, e.g., Ranney, In the Wake of Slavery, chap. 5. The Homestead Cases 63 Va. 266 (1872), 284. Benedict, Preserving the Constitution: Essays on Politics and the Constitution in the Reconstruction Era, 8–11. See also Chapter 1, note 127. Calhoun v. Calhoun 2 S.C. 283 (1870), 294.

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if Congress had not considered the southern states members of the Union, then the proposed constitutional amendments would not have been sent to them for consideration. To the contrary, “It is of consequence and significance that the Congress of the United States did regard the said States in the Union at the time, for the most important act that a State, under the Constitution, could perform.”41 The opinion failed to mention that Congress made the ratification of those amendments compulsory for states’ complete restoration to the Union. Opinions that favored statehood convey a central contradiction: Judges insisted that states had not left the constitutional fold while simultaneously acknowledging that federal law required readmission to the Union. The South Carolina court, for instance, construed congressional Reconstruction law as merely laying out the conditions by which southern states would once again become “entitled to representation in Congress.”42 It ignored entirely that the policy would shape that “representation” by allowing military governors to register voters and oversee elections until Congress determined the state could govern itself. Nor did it consider the possibility that the denial of representation suspended (at the very least) the state’s sovereignty. Though Congressional Reconstruction policy only envisioned temporary military rule over the defeated region, it was nevertheless a precondition for readmission, implying that states had, at least for a time, lost their coequal status.43 Two groups of judges refuted claims of continuous statehood: abolitionists and those who insisted that secession had been legal. Georgia’s court, led by Chief Justice Joseph E. Brown, was among the latter. He ascribed to the conquered province theory: Military defeat in the Civil War had reduced the state of Georgia to a U.S. territory.44 The Georgia court decided in 1869 that because the state had been conquered, Congress possessed the sole authority to dictate the terms of its readmission to the Union. When the national legislature accepted the state’s new constitution, which included a provision that invalidated contracts for enslaved people, they rendered the 41 42 43 44

Calhoun v. Calhoun 2 S.C. 283 (1870), 297. Calhoun v. Calhoun 2 S.C. 283 (1870), 297. Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, 277. Not all justices on the Georgia court agreed with this, but Brown’s advocacy carried the day. Ranney, In the Wake of Slavery, 71–72.

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document legal in all respects. Congress would not have done so if they believed the provision was unconstitutional. Critically, the court held, because the state adopted the new governing document before the state’s official readmission, it dodged any constitutional conflict. The prohibition in Article 1, section 10 against the impairment of contract did not apply to the state during the interregnum between secession and readmission. Brown justified his position with anti-abolitionist claims. First, he used the absence of compensation for enslaved property as further proof of Georgia’s subjugation. “Now I ask whether this action of the people of Georgia in abolishing slavery under the dictation of the President of the United States, without compensation to the owners, when the property of the slave-holder in his slave was guaranteed by the Constitution and laws of the United States, is to be upheld by the Courts of the States and of the Union; and if so, upon what principle? … It can only be done upon the principle that the State was conquered, and that she acted in obedience to the requirement of the conqueror.”45 In effect, Brown inverted the argument made in 1865 by Kentucky’s George Robertson (Chapter 3): Kentucky had not seceded; therefore, the U.S. Constitution – specifically the Fifth Amendment – applied to the state and required that its citizens receive compensation for their lost property. If Georgia had not left the Union, the same truism would apply. Georgia’s citizens did not receive compensation. Therefore, the state must have seceded. Brown’s insistence on ab initio as justification for invalidating slave contracts revealed another one of the tensions inherent to postbellum jurisprudence. Contrary to many of his peers, he affirmed that a war between nations had existed and reinforced the ideologies that had motivated its outbreak. The Confederacy had erected a government separate and apart from that of the United States, waged war, negotiated with foreign nations (even if ultimately unsuccessfully), issued currency, and enacted laws. The states that comprised it had affirmed allegiance to this new nation, and served its purposes accordingly. To pretend otherwise after the fact amounted to a preposterous legal fiction, invented for the sole purpose of preserving the political position and institutions of rebel states after their quest for independence had 45

Shorter v. Cobb 39 Ga. 286 (1869), 297.

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failed. “The Union was not only destroyed during the period of the war,” Brown opined, “but its destruction would have been permanent had not” the U.S. military “restore[d] it by force.”46 To think after surrendering that the people of Georgia would return to the status quo antebellum “is not only a practical absurdity,” he wrote, it is “contrary to equity and common sense.”47 That Joseph E. Brown, the famously ardent slavery and state’s rights advocate, adopted the same position as the Radical Stevens seems counterintuitive at first.48 But the position had a consistent logic that many ex-Confederates abandoned after the war. If, like Brown, one believed that states had had a right to secede – and perhaps continued to believe in that right – and granted the existence of a legally distinct Confederate nation, then one necessarily had to accept as well that that nation had been conquered. It thus became subject to the will and the law of the victors.49 To say otherwise defied logic and history. As railroad tycoon Leland Stanford put it, “To say because they had no right to go out therefore they could not, does not seem to me more reasonable than to say that because a man has no right to commit murder therefore he cannot.”50 While Stanford was writing in response to President Andrew Johnson’s assessment of secession’s legality, he just as well could have been reflecting on the conversations taking place among American jurists. Still, Brown’s position was not without danger. It implied that states retained the legal right to secede despite the failure of the Confederate attempt, leaving war as a perpetual option for securing independence from the Union. Indeed, some southerners saw the Civil War as a “trial by battle,” in which defeat on the battlefield prevented the achievement of their goals for erecting an independent slaveholding republic but did not challenge the righteousness of their 46 47 48

49 50

Shorter v. Cobb 39 Ga. 286 (1869), 288. Shorter v. Cobb 39 Ga. 286 (1869), 288. Brown did not universally support the Confederacy but he did maintain his commitment to states’ rights. He openly opposed Jefferson Davis, believed Georgia’s militias should only be used to defend the state, and ultimately supported Andrew Johnson’s plans for Reconstruction. On the ongoing postbellum debate over the right of secession, see Nicoletti, Secession on Trial, chap. 4. Leland Stanford to Cornelius Cole, February 9, 1867, quoted in Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, 179.

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causes – independence and slavery – or diminish any of the states’ traditional prewar rights. Many southerners continued to believe that states retained the right to leave the Union, regardless of the war’s outcome. The position, as historian Cynthia Nicoletti has uncovered, “criticize[d] the idea that the outcome of a violent conflict could render a legitimate verdict on the legitimacy of secession.”51 Ironically, by accepting abolitionist Thaddeus Stevens’ conquered province theory, Brown and others who agreed with him reasserted both the validity of their southern nationalist ideology and their states’ right to secede. Judicial abolitionists also accepted that secession had ruptured the original Union, but they did not reach the same problematic conclusion as those who maintained secession’s legality. For example, in the Emancipation Proclamation Cases, dissenting judge Andrew Jackson Hamilton of Texas agreed that Confederate states had left the United States and that a state of war between two nations had existed, but he insisted that the outcome of the war denied secession’s legality. Echoing Grier’s opinion in The Prize Cases, Hamilton wrote that “the revolting states did practically, not legally, withdraw from the union, by severing their political connection with it; they did expel from their limits the flag of the United States, its courts and officers …, and erected a new government in its stead with a constitution, … organized vast armies, equipped them and put them in the field; and for four years contested the palm of final victory with the United States on more than three hundred bloody fields.”52 By this reading, a proverbial trial by battle had determined secession’s illegality while simultaneously affirming that a legal break had occurred in 1861. Hamilton fumed, “It is too late for those who were engaged on the Confederate side to insist now that they have always been in the union. … The thing was done, the right to do it was denied, and that question of right was decided by wager of battle against the c­ onfederacy.”53 To  the plaintiffs seeking the validation of their contracts for human chattel, Hamilton proclaimed, “There let him rest.”54

51 52 53 54

Nicoletti, Secession on Trial, 92. Emancipation Proclamation Cases 31 Tex. 504 (1868), 544. Emancipation Proclamation Cases 31 Tex. 504 (1868), 544, 546. Emancipation Proclamation Cases 31 Tex. 504 (1868), 553.

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More important for judges such as Hamilton, the defeat of the Confederacy necessarily resulted in an abolitionist victory. “The conquering power has now a right to demand that the policy” – emancipation – “which they were constrained to adopt during the war, as well as subsequent measures, shall be respected.”55 Other abolitionists adopted similar positions. Judge Peters of Alabama, who believed the Emancipation Proclamation ended slavery everywhere it applied, thought that his state “had no legal government” until rebel rule “was destroyed.”56 Until that took place, Alabama “had no constitutional connection with” the government of the United States.57 Adopting a view similar to Dana’s “grasp of war,” Peters conceded Alabama’s place in the Union was only “suspended, … not destroyed,” so it had not become a territory. But he nevertheless insisted that the state possessed the power to nullify all remnants of its Confederate government, including the contracts made under its rule.58 Peters repudiated the Confederacy in its entirety. Louisiana’s court delivered a master stroke of abolitionism while simultaneously avoiding the controversy over secession’s legality or Confederate sovereignty. At least in post-emancipation litigation over slavery, the court determined that such questions were utterly irrelevant. Taliaferro’s opinion in Wainwright interpreted that the Thirteenth Amendment required abolition, thereby denying courts any authority to support matters related to slavery. Rather than focus on the status of the state, as all other courts chose to do, Louisiana’s ruling emphasized the universality of slavery’s destruction. Above all, abolitionist judges grasped that by continuing to enforce contracts for enslaved people in the postbellum South, courts in ex-Confederate states would be supporting the very institution the Civil War had destroyed. “The question here,” as Hamilton saw it, “is whether now the courts will aid in carrying out and enforcing contracts against the public policy of the government, pronounced in the most solemn form as both sovereign and belligerent in a great civil war.”59 Upholding agreements for enslaved people, he continued,

55 56 57 59

Emancipation Proclamation Cases 31 Tex. 504 (1868), 546. McElvain v. Mudd 44 Ala. 48, 65. McElvain v. Mudd 44 Ala. 48, 64. 58 McElvain v. Mudd 44 Ala. 48, 68. Emancipation Proclamation Cases 31 Tex. 504 (1868), 553.

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was repugnant to the outcome of the war, dishonored those who had secured the Union victory at great cost, and was an “injustice to the memory and character” of Abraham Lincoln.60 Whether through conquest of arms or because of the usurpation of a lawful government, the destruction of Confederate rule coincided with, and mandated, the total eradication of slavery. Either the federal government or the “rightful” government of the states was required to enact policies that furthered that aim. The abolitionist positions on Confederate sovereignty shared a great deal with the laws of war that coalesced during the Civil War. Authored by Francis Lieber and implemented by Lincoln in General Order 100 in 1863, the Lieber Code paid careful attention to wartime policies on slavery and considered how they related to martial doctrine. Like judicial abolitionists, Lieber contended that because slavery violated natural law and the law of nations, it existed only because of positive legal permission. If some form of war existed between the Union and the Confederacy, then the federal government had not only the right, but the obligation, to secure freedom for all enslaved persons and to protect them from re-enslavement.61 According to historian John Fabian Witt, emancipation thus became “rationally connected to the advancement of the war effort, and that was enough for it to fall within the wide warrant of military necessity.”62 At least one judge – though hardly an abolitionist by any other standard – explicitly concurred. In a dissenting opinion, Tennessee Supreme Court justice James Shackelford argued that the Lieber Code granted U.S. forces the right to liberate enslaved people everywhere, regardless of the legality of the Emancipation Proclamation. “The laws of war,” Shackelford wrote, “recognized” bondspeople “as human beings, in which no right of property could exist.”63 Ultimately, the U.S. Supreme Court agreed with the majority of state court judges. It ruled in Texas v. White (1869) that states could not legally secede, and that no state had ever been devoid of constitutional protection. The opinion in White v. Hart, which decided that 60 61 62 63

Emancipation Proclamation Cases 31 Tex. 504 (1868), 547. Witt, Lincoln’s Code, 241–42; Neff, Justice in Blue and Gray: A Legal History of the Civil War, 128, 136–37. Witt, Lincoln’s Code, 239. Gholson v. Blackman 44 Tenn. 580 (1867), 595–96.

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all contracts for enslaved people had to be honored in state courts, relied on the premise of a continuous Union articulated in Texas. Neither ruling actually stopped state courts from commenting on the status of Confederate states or the enforcement of contracts, but they did create a single standard by which those courts had to abide. The status of individuals who lived in the former Confederacy was directly tied to determinations about its sovereignty. During the  Civil War, many people understood themselves to be citizens of the Confederacy (or, perhaps more aptly, of a state that had joined the Confederate States of America). But their legal status was not so clear. If states remained in the Union but were occupied by a rebel government, then southerners retained their national citizenship. If not, then they had become citizens of a separate nation that no longer existed, leaving them stateless. The status of people who lived in territory reclaimed by the United States midway through the war was even more difficult to ascertain. The chief justice of the U.S. Court of Claims Charles Drake explained the crux of the problem: “Had the war been with a foreign nation, there would have been no difficulty in  … knowing … the boundary line between us and that nation.” But in the instance of civil war, “where the parties were of the same nation, and States were divided by imaginary lines,” determining “the boundaries of the insurrection” and the status of those on either side of the lines was chronically difficult.64 Determining those boundaries became a judicial requirement when disputes arose over the wartime commerce of slavery. Martial activity had severely restricted – but never stopped – the interstate slave trade. The presence of federal armies in Virginia, for example, posed a considerable threat to the traditional movement of bondspeople from the Upper South to the Lower, especially after the enactment of antislavery policies and statutes such as the Confiscation Acts. Farther west, Union campaigns led by Grant and David Farragut sealed off the Mississippi and Cumberland Rivers to traders. But some intrepid – or desperate – southerners attempted to skirt these barriers to commerce in order to liquidate their increasingly

64

Ensley’s Case 6 Ct. Cl. 282 (1870), 288.

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vulnerable enslaved assets. In 1864, for example, Enoch Ensley, a resident of Union-occupied Memphis, gave Christian Dickmann, a citizen of Denmark, power of attorney over the sale of his enslaved property in Mobile, Alabama.65 Union policy prohibited Ensley from conducting the business in Confederate territory himself, so he asked his Danish agent to invest any proceeds from the sale – which ultimately amounted to $200,000 in Confederate currency – in cotton, which he considered to be a far safer commodity than either slaves or the dollars of the rebel state.66 The U.S. government provided for the ongoing trade of some commodities across battle lines, even in occupied regions. Federal agents granted permits for selling cotton in markets located within the Confederacy, for example. After the Emancipation Proclamation took effect, however, they made no such accommodations for economic activities that supported slavery. As the Mississippi court noted, “if either money or goods were to be transported beyond the federal lines into and within the Confederate States government, for the benefit of [a] plantation, and to supply the wants of [its] slaves, then such contract is void in law.”67 The sale of Enoch Ensley’s enslaved people would not support a plantation or its slaves; instead, Ensley sought to divest himself of human property entirely. In 1870, that mattered little to Justice Drake. He held that the law did not allow those living in territory occupied by Union forces (all of Tennessee by 1863) to carry out trade in the Confederacy at all. He determined that a state of war had existed, and that those on opposite sides could not be lawful commercial partners. As the U.S. Supreme Court had settled in 1869, “as soon as war is commenced, that business intercourse should cease between the citizens of the respective parties engaged in it.”68 Even without the directive, Drake believed, the fact that Ensley’s Danish agent had been

65 66 67 68

On the complex legal problems associated with Union occupation, see Neff, Justice in Blue and Gray: A Legal History of the Civil War, chap. 4. Ensley’s Case 6 Ct. Cl. 282 (1870). Shacklett v. Polk 51 Miss. 378 (1875), 395. Ensley’s Case 6 Ct. Cl. 282 (1870), 287, quoting United States v. Grossmayer 76 U.S. 72 (1869). The ruling did not grant Confederate sovereignty, but relied on the Non-Intercourse Act of 1860 that ensured the maxim applied in the context of the Civil War.

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dispatched “with authority to sell as slaves persons who, more than a year before, had been declared free by proclamation of the President of the United States,” compromised the sale from its outset.69 Drake, a former senator from Missouri, had begun his political career as a Democrat. During the Civil War, however, he became a noted Radical Republican. As chief architect of Missouri’s emancipationist constitution, he sought the disfranchisement of any resident who had aided the Confederacy either directly or indirectly, even though Missouri had never seceded and its inhabitants had remained U.S. citizens. Of the state’s new constitution, he proclaimed, “We intend to erect a wall and a barrier, in the shape of a constitution that shall be as high as the eternal heavens, deep down as the very center of the earth, so that [disloyal men] shall neither climb over it nor dig under it, and as thick as the whole territory of Missouri so that they shall never batter it down nor pierce through it.”70 After President Grant appointed Drake to the Court of Claims in 1870, he brought this brand of ardent abolitionism to the bench. As Drake conceded, the questions raised by litigants in Unionoccupied territories derived from federal equivocation on wartime policy as well as questions about Confederate sovereignty. Proclamations intended to govern communication and trade between southerners, in particular, reversed course frequently. Policy from 1861 dictated that once occupied territories were “restored to [their] normal condition,” their inhabitants could freely participate in commercial activity with anyone else in Union territory.71 But an 1863 pronouncement dictated the opposite: Until the war ended, inhabitants had no such right. One Tennessee judge, Thomas J. Freeman, lamented that those living in occupied areas could be construed “as both enemies and friends to each belligerent party,” potentially leaving them without any lawful trading partner.72 The judge found such a prospect “hard to maintain on sound principle.”73 69 70

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Ensley’s Case 6 Ct. Cl. 282 (1870), 286. Drake, quoted in Martha Kohl, “Enforcing a Vision of Community: The Role of the Test Oath in Missouri’s Reconstruction,” Civil War History 40, no. 4 (December 1994): 298. Pointer v. Smith 54 Tenn. 137 (1872), 142. Pointer v. Smith 54 Tenn. 137 (1872), 144. Pointer v. Smith 54 Tenn. 137 (1872), 144.

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Lincoln’s wartime policy was based on the very idea that Freeman saw as objectionable: treating the South and its inhabitants “as both enemies and friends.” But Freeman’s views better aligned with the majority of other jurists. Justice Edward Loring, famous for ordering the rendition of escaped bondsman Anthony Burns to slavery in 1854, dissented on the same grounds in Ensley’s Case. He believed that those living in seceded states – even if they had been retaken by U.S. forces – retained their right to engage in commerce with their Confederate kinsmen. “Military occupation,” he wrote, was “mere force” that had “no power in itself to determine the political relations of the government or the civil rights and status of the people.”74 Judges who shared the views of Freeman and Loring continued to maintain that even if the laws of war governed the conflict between the Confederate States and United States, individuals within the Confederacy retained the right to trade with their Confederate countrymen in slaves or any other commodity. Different concerns arose in suits between people who had lived within the unoccupied portions of the Confederacy for the duration of the war. No law prohibited them from trading with one another. Still, some of those litigants attempted to take retroactive advantage of Union policy to justify relief from their debts for enslaved people. For instance, the purchaser of thirty-three enslaved people deployed a particularly inspired argument: He contended that he could not lawfully pay the outstanding portion of his note because the seller had received a pardon from President Andrew Johnson and taken an oath of amnesty in 1865.75 The oath, claimed the buyer, precluded the vendor from receiving any further monies for slaves sold after the enactment of the Emancipation Proclamation. It altered the status and rights of the persons who swore to it. Unsurprisingly, the Virginia Supreme Court was not persuaded. It once again affirmed their belief in continuous obligation of contract, 74

75

Ensley’s Case 6 Ct. Cl. 282 (1870), 288, emphasis in original. Loring rose to national prominence when he ruled on the rendition of Anthony Burns in 1854. Subsequently, James Buchanan appointed him to the U.S. Claims Court. Rives v. Farish’s Administrator 65 Va. 125 (1873). For the legal history of loyalty oaths during the Civil War, see Neff, Justice in Blue and Gray: A Legal History of the Civil War, 154–56. See in particular, Andrew Johnson, “A Proclamation of Amnesty and Reconstruction,” May 29, 1865.

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and demonstrated its willingness to overrule presidential policy if it interfered with those rights. The judges did not believe the purpose of Johnson’s Proclamation of Amnesty and Reconstruction was “to impose conditions which would constrain one party to surrender valuable rights.”76 Those who took the oath prior to the adoption of the Thirteenth Amendment lost the right to continue practicing slavery, but that did not have any effect on agreements that predated it. Courts remained adamant that the actions of individuals undertaken during the war had no bearing on the commercial rules of slavery or the past status of enslaved people. In fact, Virginia’s court gave the effect of the loyalty oath “extended consideration” only because it raised the possibility of back pay for freedpeople. It was one of the few post-emancipation rulings to discuss such a possibility. If the oath prevented the seller from collecting any debts for slaves that originated after the Emancipation Proclamation went into effect, as the defendant argued, then he – and many other former slaveholders – owed wages to the people he had continued to hold in bondage for another two and a half years. Having already ruled that the Emancipation Proclamation had no effect on territories outside federal control, the Virginia court bristled at the assertion.77 The court did not wish to leave open any possibility that an oath taker’s acceptance of emancipation translated into either an admission of the Emancipation Proclamation’s efficacy at the time Lincoln issued it, or, stemming from the admission, the possibility that planters had unlawfully enslaved freedpeople without pay. Other litigants, who had feared the prospect of war and Confederate defeat, demonstrated that there never existed complete confidence in the ultimate success of the rebel cause. They had attempted to hedge their bets on slavery’s fate in their agreements for bondspeople. Even a contract from as early as 1860 included a stipulation that “if war should ensue between the states of the union, and” the lessor of a plantation and its enslaved laborers “be thereby interrupted in his use of the plantation or control of the hands, then he should be released from his contract.”78 Neither a jury nor, on appeal, the Supreme 76 77 78

Rives v. Farish’s Administrator 65 Va. 125 (1873), 132. See Henderlite v. Thurman 63 Va. 466 (1872). Loggins v. Buck’s Administrator 33 Tex. 113 (1870).

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Court of Texas relieved the lessor from his obligations, because, according to Justice Livingston Lindsay, “the intervention of war, is warranted by neither the maxims of logic nor the rules of law.”79 Lindsay’s comment encapsulated the prevailing opinion among most southern justices. The vagaries of war would not indemnify southerners against financial losses, even when parties explicitly attempted to defend against them. In suits like these, questions over sovereignty, statehood, wartime policy, and the citizenship status of litigants converged. But abolitionists did not see that convergence as inevitable. As Justice Drake of the U.S. Court of Claims suggested, any agreement for slaves made after the Emancipation Proclamation took effect was contrary to law. Alabama’s judge Thomas Peters made the same argument in his ruling that set January 1, 1863, as the date of emancipation (Chapter 3).80 James Taliaferro went even further in Wainwright, determining that all agreements, regardless of their date of origin, had been nullified by the Thirteenth Amendment. Adoption of an abolitionist approach would have alleviated the tensions inherent to the majority of suits that raised questions about the Confederacy. At least in suits tied to slavery, there would have been no need to inquire into the status of the Confederacy or its inhabitants. But most judges were dedicated to commercial law doctrine and American capitalism, and they were determined to uphold agreements for the sale or lease of enslaved people – whether they had been made before or during the Civil War. Maintaining continuous statehood was the only way to apply the Constitution’s contract clause to all of these agreements in all states. Questions about the status of the Confederacy and its ­inhabitants most frequently emerged in cases that involved the use of Confederate currency – known as “graybacks.” Surprisingly, very little ­scholarship on the topic exists.81 In these cases, intellectual debates over

79 80 81

Loggins v. Buck’s Administrator 33 Tex. 113 (1870), 118. Morgan v. Nelson 43 Ala. 586 (1869). Outside of conversations about the U.S. Supreme Court case that dealt with the use of Confederate currency – Thorington v. Smith – I have found only a handful of sources that describe its postbellum effects at the state level. John P. Dawson and Frank E. Cooper, “The Effect of Inflation on Private Contracts: United States,

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sovereignty – and what made a nation sovereign – collided with the practical reality that southerners conducted their wartime business in dollars issued by a government of questionable status. The outstanding agreements – and the currency itself – were relics of the subdued rebellion. The Confederacy began issuing its own notes even before shots were fired at Fort Sumter. Southern leaders hoped the scrip would help establish the legitimacy of the nation and raise capital for the impending war. Though confidence in Confederate dollars waned over the course of the conflict and rampant inflation ultimately rendered the currency nearly valueless, southerners continued to use it throughout the war. In some instances, the choice was patriotic; it allowed southerners to invest in the Confederate cause. In others it was made out of necessity. Confederate law forbade the use of other money, and currency of any sort became difficult to obtain, especially in the Confederacy’s death throes. Whatever the case, southerners initiated countless agreements for enslaved people over the course of the war that called for repayment in Confederate dollars (Figure 4.1). At their heart, currency cases involved the same basic dispute as other contract suits and estate litigation – who would suffer the financial losses of emancipation. If courts refused to acknowledge trade in Confederate currency because the Confederacy itself lacked sovereignty, then a subset of debtors might have won the relief they sought. But that rarely happened. Instead, currency cases reveal yet another form of resistance to overturning agreements or relegating the Confederate period to legal purgatory. In addition, they show how the use of the scrip had, perhaps inadvertently, exposed southerners to ever greater monetary damages, compounding already dire postbellum financial circumstances. For instance, Andrew Calhoun could not pay the debts he owed to his mother in large part because he had invested heavily in the Confederacy, and accepted payment of debts owed to him in Confederate graybacks. In 1863, he had 1861–1879,” Michigan Law Review 33, no. 5 (March 1935): 706–57; Robert J. Haws and Michael V. Namorato, “Race, Property Rights, and the Economic Consequences of Reconstruction: A Case Study,” Vanderbilt Law Review 32 (1979): 305–26; Stephen Mihm, A Nation of Counterfeiters: Capitalists, Con Men and the Making of the United States (Cambridge, MA: Harvard University Press, 2009), chap. 7; Neff, Justice in Blue and Gray: A Legal History of the Civil War, 215.

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figure 4.1  Confederate 100 Dollars An interest-bearing Confederate $100 bond. The note features an image of proslavery “fire-eater” John C. Calhoun and enslaved people tending a ­cotton field. North Carolina one-hundred dollar bond, 1862; CK56.718, North Carolina Collection Numismatic Collection, University of North Carolina at Chapel Hill.

accepted $100,000 Confederate dollars for the sale of his Alabama plantation, but when he attempted to pay his creditors with it, they refused to accept the precarious currency. This left him in more debt than before the sale – without the land and saddled with useless paper money. As the value of the currency depreciated, so did Andrew’s financial prospects.82 Even before the Civil War, paper bills had been volatile. During the antebellum decades, Americans did not have confidence in such money.83 The federal government itself only began printing paper money – “greenbacks” – after the passage of the Legal Tender Act in 1862. (The Supreme Court did not deem this move constitutional until 1870 in the Legal Tender Cases.84) And even if many chose to overlook it in 1861, secession and the establishment of a new nation was intrinsically financially risky. Despite early battlefield victories, there were no guarantees that the Confederacy could sustain itself long enough to establish uncontested sovereignty. Accepting 82 83 84

Lander, Calhoun Family and Thomas Green Clemson, 223–24. Mihm, A Nation of Counterfeiters: Capitalists, Con Men and the Making of the United States, 1. Legal Tender Cases 79 U.S. 12 (1870). The decision reversed an earlier ruling on the legality of paper money.

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currency from a government that had not yet established its independence required an element of faith on the part of those who used its notes.85 Some justified the risk because depreciation actually created new opportunities. Some debtors, for instance, purposely entered into agreements using Confederate money after 1863, as depreciation accelerated. They could speculate on the market (in slaves or other commodities), because it had become affordable.86 But the frequency with which contracts called for the scrip better reflected the lack of available alternatives, not opportunism. Litigants regularly testified that they would have preferred payment in specie had any been available. One man from Tennessee noted that his contract “was made with a view to a payment in Confederate money” because “there was no other money, or at least very little … in circulation” at the time he executed his agreement.87 As the tide of war turned, the use of graybacks became subject to the discretion of individuals who calculated whether it was worth the risk of accepting them. Many still chose to do so out of hope or necessity, just as they had chosen to continue trading in slaves. For some judges, abolitionist or otherwise, the stipulation of payment in Confederate currency nullified any contract because it aided the treasonous southern cause against the United States.88 The Texas Supreme Court temporarily rejected its use on these grounds. In 1868, Chief Justice Amos Morrill explained, “Confederate money  … did not on its face purport to be of any value unless the rebellion against the United States should prove to be successful, and therefore,  … it might be regarded as promises to pay in aid of treason against the United States.”89 This position invalidated all transactions in 85 86 87 88

89

On the belief that the Confederacy would ultimately prevail, see, e.g., Rubin, A Shattered Nation: The Rise & Fall of the Confederacy, 1861–1868. Haws and Namorato, “Race, Property Rights, and the Economic Consequences of Reconstruction: A Case Study.” Wiseman v. Russey 47 Tenn. 233 (1869), 234. Dawson and Cooper, “The Effect of Inflation on Private Contracts: United States, 1861–1879,” 711. The article, written at the height of the Great Depression, seeks to identify resources available in Anglo-American law should “extreme inflation … again produce a similar catastrophe,” and compares Confederate inflation to that experienced in post–World War I Germany and France. McCartney v. Greenway 30 Tex. 753 (1868). Note that the citation for McCartney is the same as Reavis v. Blackshear. The only publication of the McCartney opinion comes as a footnote to Reavis; it has no citation of its own.

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Confederate currency, and supported the full disavowal of the purported nation it represented. Unsurprisingly, the Louisiana court adopted an explicitly abolitionist position to invalidate graybacks. The state’s 1868 constitution was demonstrably committed to resolving slavery’s transactional remains and repudiating the state’s Confederate past. In addition to Article 128, which forbade the enforcement of contracts for the sale or hire of enslaved people, Article 129 refused to assume the debt of the Confederate government of the state and denied “compensation for slaves emancipated or liberated in any way whatever.” Article 127 refused to recognize any contracts in which Confederate currency was used, whether they related to slavery or not.90 In the only suit in the state to raise the issue of currency, the Louisiana Supreme Court vacated an 1863 payment made in Confederate dollars. The use of “illicit currency” meant “there was no payment in law.”91 The young freedman to whom the money was owed would have to be paid again in valid currency. When it came to matters related to the Confederacy, Louisiana did not engage in any debate over secession or sovereignty, or carry out any case-by-case currency conversions or jury estimations. The transactions were simply deemed illegal on their face. In courts that adhered to antebellum commercial law doctrine, however, the currency complication posed serious legal obstacles to contract enforcement and debt allocation. In order to uphold contracts for enslaved people in which payment in Confederate currency was either explicit or implied, judges and state legislatures had to accomplish two things. First, they had to overcome the fact that the notes had been issued by an illicit organization. Second, they 90

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Constitution adopted by the State Constitutional Convention of the state of Louisiana, March 7, 1868, University of Pittsburgh Internet Archive, http://archive.org/ details/constitutionadop1868loui (accessed March 23, 2013). Alabama had a similar ordinance in its Constitution of 1868. V.W. Porter v. Brown 21 La. Ann. 532 (1869), 533. The 1869 case involved a bequest made by slave owner William Porter to a formerly enslaved boy who had been owned by another man. The will instructed Porter’s executors to purchase the boy, named Victorin; send him to school; and pay him $1,000 when he turned eighteen. The executors followed these instructions, and made the bequest in March of 1863 in Confederate dollars. Records do not indicate what the relationship between Victorin and the testator was. The boy was the son of one of Porter’s enslaved women. Given the unusual bequest, it is possible – likely even – that he was the boy’s father.

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had to devise a way to discharge the agreements in some other form of legal tender. Few agreed on how best to accomplish their goal. Chaos ensued. State legislatures and constitutional conventions that convened in the aftermath of the war immediately set to work on the problem. Some suggested defining any use of the word “dollars” to mean U.S. currency, since this was the only legal tender. This would have allowed courts to enforce the contracts but amplified the debts of people who agreed to use Confederate money of lesser value.92 To avoid the problem of construing “dollars” to mean U.S. currency, most former slave states quickly adopted legislation that permitted litigants to introduce parol evidence (evidence related to contract negotiations) that substantiated the contract’s presumed currency.93 For instance, in one Alabama suit, the hirer of enslaved people noted that “there was … a general and notorious custom that when the word dollars was employed in a contract and nothing was said of the sort of dollars meant, the parties meant and understood that the promise was to pay in Confederate money.”94 Some courts also required the admission of “evidence … in regard to the value of the currency” so that the court could “ascertain the amount due on the contract in lawful money” and enforce the agreement equitably.95 Allowing the introduction of that evidence, however, proved far easier than “reconstructing monetary ­values” – or the revalorization of debts – so that Confederate dollar amounts could be converted into a legally recognized currency in an 92 93

94 95

Dawson and Cooper, “The Effect of Inflation on Private Contracts: United States, 1861–1879,” 715. For specific legislation, see Ala. Ordinance No. 26 of Sept. 28, 1865 (Rev. Code of 1867, p. 59, sec. 3); Ark. Act of Mar. 5, 1867, sec. 2 (Laws of 1866-7, No. 88, p.  195); Fla. Act of Nov. 7, 1865 [quoted in Fife v. Turner, 11 Fla. 289 at 291 (1867)]; Ga. Ordinance of Nov. 8, 1865 (Laws of 1865-6, App., p. 20); Miss. Act of Feb. 19, 1867 (Laws of 1866-7, No. 282, p. 373); N. C. Act of Mar. 12, 1866 (Acts of 1865-6, c. 69); S. C. Ordinance of Sept. 27, 1865 [quoted in headnote to Rutland v. Copes, 15 Rich. Law (S. C.) 84 (1867)]; Tex. Act of Nov. 10, 1866 (Laws of 1866, c. 125, sec. 4, p. 128); Va. Act of Mar. 3, 1866 (Laws of 1865-6, c. 71, p. 184); W. Va Act of Apr. 7, 1873 (Acts of 1872-3, c. 116, p. 307).” Ibid., 715, 715n29. Buford v. Tucker 44 Ala. 89 (1870), Alabama Department of Archives and History SC389. Short v. Abernathy 42 Tex. 94 (1874), 97–98. Texas allowed currency conversion only after the U.S. Supreme Court ruled in Thorington v. Smith.

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appropriate amount.96 This became the real sticking point. Over the strong objection of creditors, most state legislatures adopted scaling laws to guide this process, which allowed the translation of debts into another form of money, including depreciated greenbacks; gold; or, in at least one case, pork.97 In Virginia, for example, a state law adopted in 1866 suggested a process for determining the value of “Confederate liabilities.” It provided “that the debt may be liquidated and settled” by adjusting the amount stipulated to “its true value at the time the contract was entered into.”98 But the law also allowed judges and juries to scale the contract to another moment in time, if it “seem[ed] right in the particular case.”99 Not all states had scaling laws. Kentucky and Tennessee lacked them altogether; Mississippi’s legislature initially presumed contracts executed during the war were “dischargeable in Confederate money,” but did not offer any guidance for resolving them; the Texas legislature adopted a scaling law but its court nullified it; and Louisiana’s state constitution simply dodged the problem entirely.100 Without a scaling provision, debts that were enforced had to be discharged in the stated amount of legal currency, despite the fact that Confederate scrip “was very much depreciated, and in consequence, prices of every kind very much inflated.”101 As a result, debtors often found their obligations amplified by the one-to-one conversion to another form 96

Dawson and Cooper, “The Effect of Inflation on Private Contracts: United States, 1861–1879,” 716. 97 Ibid., 719n40; Haws and Namorato, “Race, Property Rights, and the Economic Consequences of Reconstruction: A Case Study,” 320. The U.S. Supreme Court later invalidated some of these laws. North Carolina’s statute was deemed illegal in Wilmington and Weldon R.R. v. King 99 U.S. 3 (1875). To avoid constitutional issues of impairing contract, legislators in some states made the statutes advisory only. Dawson and Cooper, “The Effect of Inflation on Private Contracts: United States, 1861–1879,” 730. 98 Moses v. Hart’s Administrator 66 Va. 795 (1875), 802. 99 Moses v. Hart’s Administrator 66 Va. 795 (1875), 802. 100 Dawson and Cooper, “The Effect of Inflation on Private Contracts: United States, 1861–1879,” 753n137. Mississippi’s change in court staffing influenced its rulings on Confederate currency. Eventually, court rulings determined that juries would “set the value of funds at the time and place of a contract was recognized.” On Mississippi, see Haws and Namorato, “Race, Property Rights, and the Economic Consequences of Reconstruction: A Case Study,” 322–25. Quotation from Cowan v. McCutchen 43 Miss. 207 (1870), 324. 101 Wiseman v. Russey 47 Tenn. 233 (1869), 234.

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of currency. But “however much we may sympathize with complainants, and commiserate their misfortunes,” most judges agreed, “we cannot grant relief … without doing violence to long and well-settled principles of [contract] law.”102 Even in states with scaling laws, determining which currency contracting parties intended could prove difficult. While some agreements stipulated payment explicitly in Confederate currency, others required the more ambiguous “current funds.” Southerners incorporated the phrase into their agreements as a way to protect themselves against both the scarcity of specie in the South during the Civil War and the possibility of Confederate defeat. In practice, the term could be construed to mean either funds circulating at the time the parties executed the agreement or lawful currency at the time the note came due. Buyers hoped to indemnify themselves against loss by arguing the term meant Confederate notes, which had become illegal or, at the very least, worthless. Thus, they owed nothing. Some hirers and buyers may have counted on this and agreed to the terms thinking they might get a few months’ worth of free enslaved labor out of the deal. Sellers, on the other hand, demanded payment in funds that were legal at the due date of the note – that Confederate dollars be converted directly into U.S. dollars or specie (1:1) in order to receive as much as possible. Regardless of the war’s outcome, they wanted to be paid in whatever counted as legal tender at the time the note matured, in the exact amount stipulated. In order to win financial relief, debtors had to establish the meaning of the ambiguous “current funds.” Litigants could prove that “there existed laws of the Confederate congress which punished the dealing in the United States treasury notes,” but they often could not say definitively whether parties agreed that the note was to be paid in Confederate currency or some other form of money. In the 1867 Texas suit Williams v. Arnis, for example, the jury “concluded the note was payable in the United States currency [greenbacks], which was proved to be in circulation here at the maturity of the note, [and] deducted the amount of the depreciation.”103 The Supreme Court 102 103

Wiseman v. Russey 47 Tenn. 233 (1869), 235. Williams v. Arnis 30 Tex. 37 (1867), in Paschal, Reports of Cases Argued and Decided in the Supreme Court of the State of Texas, 1870, XXX:49.

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of Texas upheld the ruling (it only later voided all agreements calling for Confederate currency), believing it was appropriate to interpret the contract “according to usage of the community, as the best evidence of the intention of the parties.”104 Juries, the court believed, were in the best position to make that determination and to set what they considered proper conversions from Confederate dollars into some other form of payment. Most states left any determination of awards up to juries, but that created its own problems. Litigants rarely knew “upon what principle the Jury arrived at the amount of their verdict.”105 Records indicate that juries often had a difficult time calculating the value of the contract. During one appeal, a juror from the trial court testified as much: “There was a good deal of confusion on the jury. There was a proposition to scale the debt. I didn’t think the regular scale was applied.” In actuality, the jury had arrived at its sum because “two witnesses who testified said the land in controversy was worth $3,100 in gold, and we of the jury concluded to lump the verdict at $3,000, without regard to anything whatever.”106 Comments like these hardly inspired confidence; instead, they motivated litigants to appeal unfavorable verdicts. It was a foregone conclusion that neither party in cases like these would emerge from the litigation with all they had hoped for. But judges offered some financial relief to creditors trading in slaves and Confederate currency, even if it fell far short of what they believed was owed to them. Given the U.S. Supreme Court’s 1869 ruling in Texas v. White – that the Confederacy itself was never an independent nation – judges in state courts might have followed the lead of states such as Louisiana. If the Confederacy had never enjoyed the sanction of law or sovereignty, then how could its money be treated as legal t­ender? Ultimately, when it came to the currency problem, many states ­straddled the line. State legislatures and courts respected the fact that individuals had no say in the monetary policy of a rogue entity, and accepted that they should not be punished for the acts it committed.

104 105 106

Williams v. Arnis 30 Tex. 37 (1867), in Ibid., XXX:48. Penn v. Reynolds 23 Grattan 518 (1873), Virginia State Law Library case file #88, 1. Penn v. Reynolds 23 Grattan 518 (1873), Virginia State Law Library case file #88, 1415.

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Questions over Confederate status, in other words, need not necessarily extend into interrogations of citizenship. Judges made a careful distinction between actions that directly aided the rebellion against the United States and those which merely reflected the day-to-day business of individuals.107 When they enforced contracts for enslaved people, they affirmed slavery’s wartime commerce as separate from the success or failure of the Confederate States of America. Had this not been the case, the monetary policies adopted by the Confederacy – and thus the currency itself – could have been declared null and void, as the Supreme Court declared all other Confederate laws.108 In the end, the U.S. Supreme Court settled the matter in Thorington v. Smith, which confirmed the approach most state courts had adopted. It validated the currency as “the only measure of value which the people had, and their use was a matter of almost ­absolute necessity.” As long as the contracts were made “in the ordinary course of civil society,” and not to directly aid the rebellion, the use of Confederate currency would not invalidate contracts made during the Civil War.109 Rulings that discharged debts made in Confederate currency helped dismantle the remaining institutional trappings of the Confederacy. But reaching the opposite conclusion – refusing to honor debts in rebel coin – would have done the same thing. As historian Stephen Mihm describes, even before the end of the Civil War, southerners favored greenbacks to their own nation’s graybacks, which signaled the beginning of “a process by which the South was absorbed once again into the nation – not through brute military force or territorial conquest, but via the green slips of paper that denoted a reinvigorated Union.”110 In order to uphold agreements for slaves (or anything else) that called for repayment in graybacks, judges chose to justify their use by individuals and overlook the authority that issued them, or its raison d’etre. The military defeat of the Confederacy failed to end the controversies surrounding its existence or its legal status. It also failed to end the commercial practices of slavery. Nor were these issues fully resolved 107 108 109 110

Neff, Justice in Blue and Gray: A Legal History of the Civil War, 215. Daniel W. Hamilton, The Limits of Sovereignty (Chicago: University of Chicago Press, 2007), 166. See also Williams v. Bruffy 96 U.S. 176 (1877). Thorington v. Smith 75 U.S. 1 (1869), 13. Mihm, A Nation of Counterfeiters: Capitalists, Con Men and the Making of the United States, 329.

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in Congress or in the White House. Instead, in courtrooms across the South, jurists, whose ideologies about secession, sovereignty, and slavery varied considerably, hashed them out. Rather than emerging solely out of conflicts between those at the highest levels of American political circles, individuals – a great many of whom sought financial relief from the cost of emancipation – forced judges at the state level to determine whether or not secession had occurred as a matter of law. On a case-by-case basis, verdicts facilitated resolutions in contract cases, settled estates, and guided the process of scaling Confederate currency into legal tender. Taken as a whole, however, judgments amounted to one of the essential steps in preserving the economy of slavery. Judges largely concluded that southern states and their inhabitants had remained in the Union, and therefore were continuously bound and protected by the Constitution. By denying secession, they affirmed the continuity and strength of the American legal order. State governments may have needed reformation or reconstitution, but the Union, and its supreme law, had weathered its greatest crisis and remained indissoluble. When it came to slavery’s resolution, this position ensured something short of total abolition. All agreements, even those drawn during the Confederate era or that called for payment in graybacks, remained enforceable and worth the trouble of tediously scaling one currency for another. The judicial position represented the tacit acceptance of the Lincoln administration’s “mixed theory of the legal status” of the war and the Confederacy.111 As Lincolnian Unionists had maintained, one could split the difference between belligerency and sovereignty in order to treat the CSA as a foe constituted of friends. But after the war, this sleight of hand allowed southern judiciaries to smooth over any perception of discontinuity or legal breach, and left them with the authority to intervene in all legal disagreements that stemmed from slavery. More broadly, recognizing continuous statehood and denying Confederate sovereignty limited congressional authority over Reconstruction in the southern states. Taking these positions, then, laid the groundwork for states to resist federal attempts to secure Black rights. Many judges would ultimately argue that Congress did 111

Witt, Lincoln’s Code, 155.

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not possess the authority to force states to accept equal rights or adopt any other state action. Some Radical Republicans feared precisely this outcome; without the total destruction of the slaveholding republic, there would be no chance to build the political and legal scaffolding necessary to protect equal rights in perpetuity. There would not be, in other words, any chance for abolition’s success. But, as some scholars have argued, congressional Reconstruction was, at its core, a more conservative enterprise than it appears. There was a congressional “reluctance” to deviate from “traditional constitutional forms” and “principles of American federalism.”112 Mainstream Republicans, these scholars show, did not believe the amended constitution fundamentally altered federal power; it merely allowed an expanded national citizenry to be governed by its dictates.113 The confluence of conservatism in courts and in Congress frustrated abolition and undermined Black citizenship. The following chapters illustrate how.

112

113

Benedict, Preserving the Constitution: Essays on Politics and the Constitution in the Reconstruction Era, 7. Essay originally published as Benedict, “Preserving the Constitution: The Conservative Basis of Radical Reconstruction.” See also Pamela Brandwein, Reconstructing Reconstruction (Durham, NC: Duke University Press, 1999); Downs, The Second American Revolution: The Civil War-Era Struggle over Cuba and the Rebirth of the American Republic. Hyman, A More Perfect Union, 435–36.

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5 Life after the Death of Slavery

In 1868, three years after the adoption of the Thirteenth Amendment, American jurists had yet to reach a consensus about the meaning of Black freedom. In his introductory remarks to the Emancipation Proclamation Cases, Texas Supreme Court reporter George Paschal wrote, “The war came, and it ended; the stone which had been laid as the chief of the corner was dashed to pieces; the fabric fell, and slavery was destroyed.” Bondspeople were slaves no more, but Paschal’s description confirmed their persistent, indeterminate status. Emancipation, he wrote, had produced “four million servitors, who emerged from the funeral pile to find no masters to command them.” Paschal understood that a central charge of Reconstruction-era courts would be to define Black freedom and determine the legal identity of the newly freed person who had arisen from the ruins of slavery.1 In their decisions, judges determined what that transformation meant for freedpeople’s future status and condition in law. This chapter begins an extended exploration of how judges conceptualized the emancipated person. It illuminates the pivotal connection between cases that asked judges to resolve disputes that had grown out of slavery (e.g., contracts for the sale of an enslaved person) and those that required them to consider the rights of newly 1

The Emancipation Proclamation Cases 31 Tex. 504 (1868), in Paschal, Reports of Cases Argued and Decided in the Supreme Court of the State of Texas, 1870, XXXI:511. “Pile” is a variation of “pyre.”

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freed people (e.g., the right to testify). It traces judicial deliberations, analyzes the law’s power to “make and unmake persons,” and considers the effects of that power on the people who emerged from what Paschal called the funeral pile of slavery. In one revelatory opinion, the Louisiana Supreme Court wrote in 1873: “The moment the incapacity, the disqualification of slavery, was removed, [slaves] became persons.” Freedom came into being after the law “removed” the property interest from the person.2 Using what scholar Colin Dayan calls “the sorcery of law,” the legal act of emancipation transformed the slave. As property in persons was destroyed, freedpeople emerged – phoenix-like – from the ashes. In this formulation, emancipation revived the formerly “dead” enslaved person, as she emerged from the wreckage of the peculiar institution. Most postbellum judges did not consider the legal transformation from slave to person – or slave to citizen – in such careful terms. Instead, they described slavery and enslaved people in the abstract – as if slaves had only been property, not people. This made it easier to apply antebellum doctrine to post-emancipation cases that involved slavery. Judges overlooked the central tension that had underlain slavery – that the law had recognized property and person in the same body. They sidestepped the possibility that freedpeople’s former status as property might influence their post-emancipation lives. In doing so, they elided and undermined the potential of abolition to eradicate slavery and its vestiges. Most judges described emancipation as the destruction of the property interest, not as the restoration of freedom that had been suppressed by slavery. In reality, however, the ex-slave emerged into freedom not as a blank slate onto which rights and obligations of newly granted citizenship might be bestowed, but instead as a palimpsest – civilly resuscitated, but with residues of her past enslavement not yet fully expunged.3 The freedperson was no longer bound to a master, but was also not a full and equal citizen. She inhabited a new category: the former slave.

2

3

Colin Dayan, The Law Is a White Dog: How Legal Rituals Make and Unmake Persons (Princeton: Princeton University Press, 2011); Walsh v. Lallande 25 La. Ann. 188 (1873), 190. In a free labor, or liberal, construction, the property interest would be returned to the person from whom it had been wrested. Colin Dayan, The Law is a White Dog.

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A wealth of theoretical literature considers how people became slaves. Often, scholars and activists have used the language of death to describe the experience of enslaved persons. Colin Dayan writes that slaves suffered the “legal fiction of ‘civil death’: the state of a person who though possessing natural life … lost all civil rights.” She could thus be reduced to a form of chattel p ­ roperty (or, for twenty-first-century abolitionists, to a ­prisoner). “Social death,” according to Orlando Patterson, detached a ­person  from any “claims of birth” or “legitimate social order,” and p ­ roduced “insidious violence, the namelessness and ­invisibility, the ­endless personal violation, and the chronic inalienable dishonor of ­enslavement.”4 Civil death defined and demarcated the slave as a legal object, while social death – a substitute for literal death – enveloped all aspects of her life and marked her e­rasure from ­society.5 Less scholarship has been written about how slaves become free people or how the constitutional prohibition of ­slavery influenced that process. Only by closely examining this transition can we trace the residues of both civil and social death.

4

5

Ibid., 44. (emphasis in original); Patterson, Slavery and Social Death, 5, 12. In the antebellum South, the social and civil status of the slave could, at least at the level of abstraction, become almost one and the same. See, e.g., State v. Mann 13 N.C. 263 (1829). See also Georg Wilhelm Friedrich Hegel, The Phenomenology of Spirit, trans. A.V. Miller (New York: Oxford University Press, 1977); Claude Meillassoux, The Anthropology of Slavery: The Womb of Iron and Gold (Chicago: University of Chicago Press, 1991); Hortense J. Spillers, “Mama’s Baby, Papa’s Maybe: An American Grammar Book,” Diacritics 17, no. 2 (Summer 1987): 64–81. While theoretically provocative, the concept of social death did not reflect the reality that in the United States and elsewhere, enslaved people made social lives despite their status. Slaveholders valued slaves precisely because they were human and therefore capable of the complex labor that made them so profitable. The master class strove to reduce Black bodies to dehumanized commodities, but a total transfiguration never occurred. Instead, slavery existed as an ongoing existential struggle between the desire of masters to perfect social death (and thus achieve total subjugation) and the defiant determination of the enslaved to live. Enslaved people suffered dishonor, for example, but successfully resisted complete invisibility or natal alienation. In the post-emancipation context, however, judges often retrospectively assumed enslaved people had been civilly and socially dead. Vincent Brown, “Social Death and Political Life in the Study of Slavery,” American Historical Review 114, no. 5 (December 2009): 1231–49; Walter Johnson, “To Remake the World: Slavery, Racial Capitalism, and Justice,” Boston Review, February 20, 2018, http://bostonreview.net/forum/walter-johnson-to-remake-the-world; Walter Johnson, “On Agency,” Journal of Social History 37, no. 1 (Autumn 2003): 113–24.

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Identifying the “former slave” in postwar jurisprudence helps us locate those residues. The classification itself illuminates how postwar law and legal decisions undermined abolition by stressing the ongoing relevance of Black Americans’ enslavement. Judges recognized that the property interest vested in people had been removed, but did little to address the broader structures that had supported slavery as an institution (e.g., racially specific criminal codes) or their ongoing effects on the lives of the formerly enslaved (e.g., racially motivated prosecutions). As they shunted freedpeople into a new category of former slave, judges blurred the line between race and previous status. The production and effect of the category can be observed in both civil and criminal litigation – in suits that did not appear to have direct influence on Black lives, and those that specifically concerned freedpeople. Private law decisions best reveal how judges conceived of emancipation narrowly – as a legal act that uncoupled the property interest from the person. Criminal cases, by contrast, were among the first to ask jurists to apply their evolving conception of emancipation to suits involving Black defendants. They illustrate the harmful consequences of that narrow understanding of emancipation, illuminating how the legal system undercut Black civil rights. Judges struggled – and often failed outright – to overcome a freedperson’s former servitude. They reinscribed the mark of bondage on African Americans, even for those who had been free prior to the Civil War.6 Postwar cases laid the groundwork for the separate, unequal racial category that Black citizens – now defined as former slaves – would inhabit for generations. Judicial decisions in this era highlight the contingencies of a new age of American citizenship. Judges might have used the law to deliver lasting equality. A few even tried. But most turned to prewar legal doctrines that had been vital to the perpetuation of slavery. We can trace the evolution in legal thought about freedom in suits ranging from contract disputes, criminal cases, and family law. The development of this jurisprudence is a crucial inflection – a shift away from abolition and toward inequality. In the litigation of everyday 6

On the relationship between the “taint” of blood, the legal concept of attainder, and slavery, see Dayan, The Law Is a White Dog: How Legal Rituals Make and Unmake Persons, chap. 2.

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disputes, Black freedom was consigned to the narrowest possible space. The effects were devastating. Abolition was undermined across the spectrum of private and public law. Cases that involved contract litigation – usually battles between two white parties to an agreement to buy or lease an enslaved person – did not appear to have any effect on the liberty of the slave(s) that were exchanged in the agreements. But it did serve practical ends. Limiting emancipation (rather than the end of enslavement) to the end of property rights made it easier to uphold such contracts, and to enforce them after the war. In antebellum contract suits, the l­iteral death of an enslaved person, so long as it had not been caused by negligence or by “unsoundness” concealed at the time of the sale or hire, did not a­ brogate a contract. The buyer of the slave was still obligated to honor the agreement and pay any outstanding debt. As a Virginia court noted, slave “property, in its nature, was subject to many and peculiar perils.” Among them was the prospect that “some ­ therwise or all of [the slaves] might, at any time, die or run away, or o cease to be slaves.”7 These were risks of doing business. Anyone who had a passing familiarity with the laws and customs of ­slavery would have known them. Postwar courts invoked this h ­ istory as they upheld prewar contracts for the sale or lease of slaves. In 1867, the North Carolina Supreme Court captured the prevailing view in Woodfin v. Sluder: “The emancipation of slaves during the year was their ­artificial death as slaves, and operated as would their natural death; ­therefore the defendant is liable for the hire during the whole of the year.”8 The legal “death of slavery did not free debtors from ­preexisting legal obligations.” Judges effectively asked slaveholders to think of postbellum financial losses caused by emancipation – a political act – as the equivalent

7 8

Scott’s Executors v. Scott 59 Va. 150 (1868), 176. Woodfin v. Sluder 61. N.C. 200 (1867), 202, State Archives of North Carolina, Supreme Court Record Group, case 8992. See also Whitesides v. Williams 66 N.C. 141 (1872). Literature on antebellum slave contracts and the potential justifications for their nullification includes Morris, Southern Slavery and the Law, 1619–1860; Gross, Double Character; Johnson, Soul by Soul: Life inside the Antebellum Slave Market.

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of the death of every enslaved person in the South. The same court held in Banks v. Shannonhouse that enslaved people who were leased out by their owner “went into possession of Mrs. Shannonhouse, and their ‘political death’ afterwards is the same in legal effect as if they had died a natural death.”9 In the Emancipation Proclamation Cases, Texas Supreme Court chief justice Amos Morrill stressed the validity of the enforcement of debts for the purchase or hire of enslaved people by invoking the decisions of British courts.10 After Parliament abolished slavery in the British empire in the 1830s, judges had compared emancipation to common business risks. “The question is analogous to those which arise by fire. … If the property here had passed and the residue of it was destroyed by a vis major, the loss must fall upon the proprietor of the thing,” wrote judge John Williams in 1842.11 When a greater superior force “arising wholly above the control of human agencies” destroyed the slave property conveyed in the contract, Justice Morrill reasoned, it did not annihilate the underlying agreement. Emancipation, like fire, counted as a vis major.12 American judges followed the lead of their British counterparts. After all, it had taken a catastrophic Civil War to end slavery, surely a force beyond and outside contractors’ control. American and British jurists treated emancipation as a dramatic natural – or even supernatural – act that destroyed the property interest in slaves. But slavery-related contracts survived and left the parties bound to their original terms. Opinions in contract law and other private law matters exposed the inconvenient truth that proslavery Americans had long denied: The property interest that had transformed persons into property could always have been destroyed. Property in persons was 9 10

11

12

Banks v. Shannonhouse 61 N.C. 284 (1867), 287. Chief Justice Amos Morrill had opposed secession. He fled Texas back to his home state of Massachusetts, and only returned to the South during the final year of the war. University of Texas at Austin Tarlton Law Library Jamail Center for Legal Research, “Amos Morrill (1809–1884),” Justices of Texas 1836–1986, accessed March 16, 2013, http://tarlton.law.utexas.edu/justices/profile/view/73. Emancipation Proclamation Cases 31 Tex. 504 (1868), citing Fullarton v. Mittelholzer 115 Eng. Rep. 385, in Paschal, Reports of Cases Argued and Decided in the Supreme Court of the State of Texas, 1870, XXXI:528. Henry Campbell Black, “Vis Major,” in Black’s Law Dictionary (St. Paul, MN: West Publishing Co., 1968).

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a function of law, not a natural category. When that happened, Louisiana judge John Ilsley noted, “A slave, by the abolition of slavery, has perished as property as completely, and to all intents and purposes, as if he had been overcome by death.” “Artificial death” destroyed the property interest that had made persons into slaves, not just by ending their enslavement, but by revoking the right to hold persons as property.13 What the law had created it could also destroy. Every antebellum manumission had proven the contingency of slavery, though few admitted it at the time. When enslaved people bought their freedom or were manumitted, the law recategorized the subject as a free person. Such events were relatively rare, especially in the years leading up to the Civil War.14 In many states, statutes had prohibited or limited manumission to protect slavery.15 Widespread manumission would have undermined the proslavery conceit that American slavery was supported by natural law, and that Black people were enslaved for their own benefit. Thomas R. R. Cobb, who died while fighting for the Confederacy, claimed that immutable racial difference justified slavery. He disagreed with Americans who invoked Lord Mansfield’s 1772 declaration in Somerset v. Stewart that slavery was made legal by positive law alone. But emancipation proved that a change in that law could destroy slavery, despite Cobb’s proslavery natural law theory.16

13 14 15

16

Wainwright v. Bridges 19 La. Ann. 234 (1867), 249. During the antebellum years, free people’s rights would have been contingent on the jurisdiction in which they lived. Recently, Loren Schweninger has argued that manumission reinforced slavery. Loren Schweninger, Appealing for Liberty: Freedom Suits in the South (New York: Oxford University Press, 2018). Somerset v. Stewart 98 ER 499 (1772); Cobb, An Inquiry into the Law of Negro Slavery; Paul Finkelman, “Thomas R.R. Cobb and the Law of Negro Slavery,” Roger Williams University Law Review 5, no. 1 (Fall 1999): 75–115. Scholars have shown that slavery existed in British North America as a customary practice only until the latter half of the eighteenth century. Jonathan A. Bush, “Free to Enslave: The Foundations of Colonial American Slave Law,” Yale Journal of Law and Humanities 5, no. 2 (1993): 417–70. For an expanded discussion of proslavery philosophy and the law, see especially, Brophy, University, Court, and Slave: Pro-Slavery Thought in Southern Colleges & Courts & the Coming of the Civil War; Gilhooley, The Antebellum Origins of the Modern Constitution: Slavery and the Spirit of the American Founding.

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As an attorney, George Paschal had argued in favor of upholding slavery-related contract debts in the Emancipation Proclamation Cases. In his capacity as court reporter, he included Morrill’s invocation of fire in the headnotes to the case. But Paschal emphasized the people who had “emerged from the funeral pile,” not an earlier agreement to sell them. He imagined a great, metaphorical fire as the agent responsible for the bondsperson’s transformation and equated the end of slavery to an act of God. The reference to a “funeral pile” conjured the ritual cleansing and sanctification of the biblical baptism of fire, said to signify the penetration of the Holy Ghost into the human spirit.17 Emancipation offered freedpeople deliverance, and it offered the nation absolution – forgiveness for the sin of slavery. In this way, emancipation held out the possibility of reunion and reconciliation, and gave white southerners the chance for their own rebirth  – for a new South, cleansed of the scourge of slavery and civil war. Gradually, Paschal pushed back against the narrow understanding of emancipation. He began to outline the end of enslavement as more than the extermination of property (even if that left contracts intact). It was the first step in imagining “the people” of the United States to include those formerly held in bondage. Just a year after the Texas Supreme Court decided the Emancipation Proclamation Cases, Paschal persuaded the Supreme Court of the United States to view the Civil War not as a rupture of the nation but instead as an opportunity to acknowledge a vastly expanded citizenry.18 Paschal, like James Taliaferro, exhibited abolitionist views after the passage of the Thirteenth Amendment, and likely believed in ­freedom’s redemptive potential. Though he opposed abolition, His longstanding opposition to secession cost him friends, and almost his life. After supporting Stephen A. Douglas for president in the election of 1860 and Unionist Texas governor Sam Houston on the eve of the 17

18

See in particular Matthew 3:11: “I baptize you with water for repentance, but he who is coming after me is mightier than I, whose sandals I am not worthy to carry. He will baptize you with the Holy Spirit and fire.” By the mid-nineteenth century, the phrase “baptism of fire” had also come to signify a soldier’s first experience in battle. That usage derived from the French baptême du feu. Pachal’s argument and its influence on the Supreme Court will be explored in Chapter 8.

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Civil War, he was “jailed, threatened by a mob, and held for trial by a court-martial.” Still, Paschal never recanted. Paschal came to embrace Black liberty, as well as the more Radical notion of equal citizenship. Paschal trained with famed jurist Joseph Lumpkin, the first chief justice of the Georgia Supreme Court. Early in his career, Paschal followed in the footsteps of his mentor, ­serving as an associate justice on the Arkansas Supreme Court. But he resigned his post in 1843 after only a year on the bench to r­epresent the Cherokee Nation in its legal battle against the United States.19 Perhaps his ­history of advocating for marginalized people contributed to his evolving beliefs about abolition. After the Civil War, he joined the Republican Party and supported the Fourteenth Amendment. His ­earlier commitments to slavery did not survive the war.20 Like Paschal, abolitionist judges understood the expansive potential of emancipation and recognized that validating contracts, and the terms by which judges upheld them, affected Black liberation. They insisted that the Thirteenth Amendment delivered wholesale liberation to millions of people.21 This transformation inspired some to hope for a new era of genuine liberty. When Louisiana Supreme Court justice Taliaferro ruled in Wainwright v. Bridges that all contracts for slave sales and leases were unenforceable, he expressed this fervent hope. He wrote in the 1867 opinion that “freedom … was a preexisting right; slavery a violation of that right. Titles to slaves would, therefore, seem to be vitiated.” Emancipation, he stressed, revived the “natural right” to freedom. In this view, positive law had prevented enslaved people’s liberty, just as the absence of positive law had obviated slavery in Britain in Somerset’s Case. Similarly, dissenting

19

20 21

Paschal had married Sarah Ridge, the daughter of Cherokee leader Major Ridge. He succeeded in negotiating the Treaty of Amnesty of 1846, which indemnified Cherokees for some of their losses. Some sources incorrectly list Sarah’s father as John Ridge. John was her brother. Kevin Ladd, “Pix, Sarah Ridge,” Handbook of Texas Online, June 15, 2010, https://tshaonline.org/handbook/online/articles/fpi30; James P. Hart, “George W. Paschal,” Texas Law Review 28, no. 23 (1949): 25. Amelia W. Williams, “Paschal, George Washington,” Handbook of Texas Online, June 15, 2010, https://tshaonline.org/handbook/online/articles/fpa46. Orlando Patterson defined individual acts of manumission as “symbolic rebirth” of a person. But he did not consider the implications of the total destruction of a slave regime. Patterson, Slavery and Social Death, 293; Dayan, The Law Is a White Dog: How Legal Rituals Make and Unmake Persons.

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Alabama justice Thomas Peters called emancipation “an assault, by the law” on enslavement.22 It “does not destroy the person held as a slave,” Peters continued, “it destroys the authority of the master to hold him in subjection as a slave.”23 In this articulation, death came for the institution, not for individuals held as slaves. Once it did, the law could address the remnants of civil and social death. Abolitionist judges like Taliaferro and Peters maintained, as had abolitionists in northern states, that God’s law always favored liberty. To achieve abolition, those judges strove to root out and eliminate vestiges of slavery that might hinder freedpeople’s equal enjoyment of their natural rights.24 In the context of private law, they held, this prevented courts from enforcing contracts for the sale or hire of enslaved people. In the process of making this argument, abolitionists revealed how they construed emancipation: The Thirteenth Amendment restored the bondsperson to freedom, delivering universal liberation to those who had been unnaturally held in bondage. Most judges, however, refused to consider emancipation in this way. Legal scholar Diane Klein explains that the post-emancipation enforcement of contracts for the sale or hire of enslaved people required the willful disregard of the agreement’s human subject. Klein argues that by ignoring the literal humanity of the bondsperson at the heart of the transaction, judges could focus solely on the property rights of ex-slaveholders.25 This, she claims, “reflects a shocking unconcern and naiveté about the ‘rights’ and the ‘interests’ of formerly enslaved persons.” Overlooking those rights and interests preserved elements of the slave’s civil death.26 For judges who were

22 23 24

25

26

McElvain v. Mudd 44 Ala. 48 (1870), 77. McElvain v. Mudd 44 Ala. 48 (1870), 75. Wainwright v. Bridges 19 La. Ann. 234 (1867), 238, Historical Archives of the Supreme Court of Louisiana, Earl K. Long Library, University of New Orleans, http://dspace.uno.edu:8080/xmlui/handle/123456789/38050. See sections 127, 128, and 129 of the constitution adopted by the State Constitutional Convention of the state of Louisiana, March 7, 1868. Klein, “Paying Eliza: Comity, Contracts, and Critical Race Theory. 19th Century Choice of Law Doctrine and the Validation of the Antebellum Contracts for the Purchase and Sale of Human Beings,” 20. Klein’s article discusses comity suits where slavery-related contracts were adjudicated in free states. Ibid., 39.

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committed to upholding prewar commercial law doctrine, the focus on the commercial relationship between two white contracting parties meant they could ignore the person whose life was determined by the agreement. In contrast, abolitionists wrote about emancipation as the restoration of freedom. They emphasized personhood and insisted on formerly enslaved people’s right to freedom. The imposition of slavery through positive law had prevented the enjoyment of those rights, but liberation removed this legal disqualification. Abjection and rightlessness, in other words, lasted only as long as enslavement was protected by statutes and other positive legal commands. The focus on property law as the key to slavery was a way to dodge the personhood of the ex-slave. It was rooted in antebellum ­proslavery theory and carried into post-emancipation adjudication.27 After the war, judges did concede that antebellum law defined slaves as both persons and property. This double character, as historian Ariela Gross calls it, rested on juridical conceits in the antebellum era, particularly when enslaved people, ostensibly defined as ­property, were tried for criminal offenses (e.g., theft or murder) that could only have been committed by persons.28 Judges also knew that the rules of slavery – such as they were – were applied inconsistently, ­especially in lower courts where judges privileged social order over strict ­adherence to legal rules.29 By identifying the slave only as property, and conceiving of emancipation as the destruction of a property interest alone, many judges took refuge in contract law. They focused on the contract – on commercial 27 28

29

Cobb, An Inquiry into the Law of Negro Slavery, 4. Gross, Double Character; Morris, Southern Slavery and the Law, 1619–1860. On the dual relationship with master and state, see Bryan Wagner, Disturbing the Peace: Black Culture and the Police Power after Slavery (Cambridge, MA: Harvard University Press, 2009), 5–6; Malick W. Ghachem, “The Slave’s Two Bodies: The Life of an American Legal Fiction,” The William and Mary Quarterly 60, no. 4 (October 2003): 838. As historians have shown, there was no discrete Anglo-American law of slavery – only an “interrelationship between slavery and law.” Southerners did not even “agree … on a formal definition of slavery.” Morris, Southern Slavery and the Law, 1619–1860, 3, 424. See also Edwards, The People and Their Peace; A. Leon Higginbotham Jr. and Anne F. Jacobs, “The ‘Law Only as an Enemy’: The Legitimization of Racial Powerlessness through the Colonial and Antebellum Criminal Laws of Virginia,” North Carolina Law Review 70, no. 4 (April 1992): 969–1070.

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law doctrine – in a way that resonated with prewar legal practice. They were merely upholding debts, they claimed. The stark distinction between property and contract, in other words, obscured that the agreements conveyed persons who, at the time of adjudication, possessed the rights of freedom. Most judges refused to accept that with the ratification of the Thirteenth and Fourteenth Amendments, they were upholding debts for the sale or lease of persons who had become citizens and had legal rights, and whose consent to the contract had never been considered as relevant to the agreement. The elision of the former slave’s personhood also governed cases that raised questions of Black rights. Judges decided cases that involved civil rights and citizenship at the same time as they adjudicated contract disputes. But in all cases – civil and criminal – most judges rested on the limited view of emancipation, which they deployed to reinscribe inequality. Criminal litigation involving freedpeople exposes how this narrow view shaped Black rights and supported the development of a racialized postwar jurisprudence. Eliminating the slave’s status as property did not change the characteristic that made her eligible for enslavement in the first place – her race. Despite the efforts of judicial abolitionists, racial attitudes forged over generations of slavery survived the war nearly unscathed. Free African Americans had lived in slave states prior to the Civil War, and as historian Martha Jones has shown, they enjoyed an “imperfect, partial … bundle of rights,” including the ability to “sue and be sued, to hold property real and personal, to defend possessions and earnings, and in some cases to vote.”30 Enjoyment of these rights during the antebellum period varied by jurisdiction. It was not the same as universal equal citizenship, nor was it free of race-specific restrictions. The citizenship constructed by Congress – in the form of the Civil Rights Act of 1866 and then the Fourteenth Amendment – was supposed to end those restrictions. Postwar criminal cases quickly revealed how judges located freedpeople in evolving legal frameworks. Their opinions made it clear

30

Martha S. Jones, Birthright Citizens (New York: Cambridge University Press, 2018), 143.

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that emancipation had not removed the tarnish of enslavement or racial difference. Soon after emancipation, courts heard appeals from verdicts in criminal cases that had begun prior to the ratification of the Thirteenth Amendment. Defendants’ lawyers invariably pointed to the change in the nation’s fundamental law. The amendment, they argued, invalidated the slave codes that had been used to charge enslaved defendants, challenging scores of convictions and sentences. To judges, however, it was not clear how emancipation would change existing criminal law or whether prewar statutes could now be applied to formerly enslaved people. One judge asked, “What effect has [emancipation] had upon the criminal statutes of the State applicable exclusively to slaves? Do they remain in existence, or have they been abrogated?”31 When judges decided whether existing law and doctrine still applied, they turned first to what was familiar – the prewar laws of slavery and their assumptions about race. The survival of these earlier legal rules and doctrine emerged almost immediately in postwar criminal litigation. Theft had been a common accusation levied against enslaved people. Historians have called such theft a form of resistance, a way to supplement inadequate provisions, as “taking” what justifiably should have been for the benefit of enslaved people, or even just an act done for the “satisfaction” of outsmarting a grasping master or overseer. The longstanding use of criminal law (and private punishment according to the “justice of the plantation”) to punish such resistance was challenged after emancipation.32 In an 1866 larceny case, the Supreme Court of Alabama held that antebellum standards should apply to “Eliza a freedwoman of color,” who before her emancipation “feloniously took and carried away two dresses and four yards of white cloth” worth $50 from one Emeline McClelland.33 The jurors who heard Eliza’s case in the Tuscaloosa County Circuit Court were likely unsurprised to encounter a Black defendant charged with this crime. White southerners often argued that theft was constitutive of Black character – a

31 32 33

George v. State 39 Ala. 675 (1866), 675. Eugene Genovese, Roll, Jordan, Roll: The World the Slaves Made (New York: Vintage Books, 1972), 602–6; Morris, Southern Slavery and the Law, 1619–1860, 322, 324. Court records do not indicate when Eliza was charged with larceny, only that she was convicted in November 1865.

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predisposition inherent to the race. As a free woman in a postwar courtroom, however, Eliza was no longer subject to the whims of her slaveholder. Instead, her case had to be addressed according to and entirely within the bounds of formal law.34 The change in Eliza’s status was the basis for her appeal. She was charged with stealing the fabric while enslaved, but Eliza came before the court as a freedwoman. When her case came to trial in 1865, Alabama’s prewar criminal code remained in effect and questions arose over which section properly applied to her. A jury found Eliza guilty of violating the statute that applied to white citizens and free Blacks, not the slave code. On appeal in 1866, Eliza’s lawyer contended that the larceny statute did not apply to her when she committed the theft. The Alabama Supreme Court, however, upheld the conviction. The court stressed that the antebellum law included “provisions” that had been “adapted respectively to slaves, to ‘free persons of color,’ and to all other persons.” The world had changed, the court conceded: “[T]he results of political convulsion and war have, to some extent destroyed its symmetry and consistency.” But the statute applied to “all classes now existing.” Eliza, the court reasoned, had simply moved from one legal category to another – from enslaved to free person – but her crime had not changed and it remained punishable at law. She should be disciplined as a free person using an existing statute.35 The court based its decision on its interpretation of emancipation. Black freedom “changed [bondspeople’s] servile status; but … they remained as persons; and as persons they are amenable to the existing laws.” No one had anticipated “that one class, then existing, would cease to exist as a class,” but once it happened, “the persons who composed the defunct class, eo instanti, became persons of another class.”36

34

35

36

Eliza v. State 39 Ala. 693 (1866), Alabama Department of Archives and History, Alabama Supreme Court Record Book SC141. See also Burt v. State 39 Ala. 617 (1866); Jeffries v. State 39 Ala. 655 (1866); Nelson v. State 39 Ala. 667 (1866); and Ferdinand v. State 39 Ala. 706 (1866). Eliza v. State 39 Ala. 693 (1866), 695; John J. Ormond, Arthur P. Bagby, and George Goldthwaite, eds., The Code of Alabama (Montgomery, AL: Brittan and DeWolf, 1852), 574. §3173 Eliza v. State 39 Ala. 693 (1866), 695, emphasis added.

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From one perspective, Eliza’s case demonstrates the promise of identifying freedpeople as persons who had become subject to the duties and obligations of existing state laws. This recognition marked their entry into civil society and could help foster racial parity, even if it meant jail time for Eliza (though a technicality saved her from this fate). As the court put it, such a statute was “framed to … operate upon all persons who might at any time come with in its influence, either by birth, immigration, or otherwise.” It did not matter how a person had become free; it mattered only that she had.37 From another perspective, cases like Eliza’s exposed the distinctive way that judges saw freedpeople’s new relationship with the law. The court determined how freedpeople fit into existing legal frameworks and how emancipation functioned. In Eliza’s case, the decision suggested that freedom had been bestowed upon the “servile” class from on high. As Justice Thomas Judge noted in his opinion, “the fact that this class have not become free by their own seeking, but by political convulsion, in which they took no part, can not affect their amenability to the laws.”38 This remark clarified the reasoning behind the application of the state’s larceny statute. But it also revealed that some judges saw freedom only as the consequence of a change in law, not as a natural right to which all persons were entitled. The judicial description of Black freedom as the result of a “political convulsion” helps us trace the complex logic of postwar judicial thinking: If the state used its law to destroy property in persons, then the formerly enslaved, once free, owed their legal personhood and any rights that traveled with it to the state and its legal regime. Their freedom, that is, was contingent. Those who became free in this way were marked as different, distinct from other citizens. The scholar Saidiya Hartman has called this contingency a “debt of emancipation” owed by freedpeople to government, which had dictated emancipation at the point of the sword. Freeborn Americans owed no such debt.39 37 38

39

Eliza v. State 39 Ala. 693 (1866), 696. Eliza v. State 39 Ala. 693 (1866), 696, emphasis added. On slaves’ freeing themselves, see, e.g., Berlin et al., Slaves No More: Three Essays on Emancipation and the Civil War; David Brion Davis, The Problem of Slavery in the Age of Emancipation (New York: Alfred A. Knopf, 2014). Saidiya V. Hartman, Scenes of Subjection: Terror, Slavery, and Self-Making in Nineteenth-Century America (New York: Oxford University Press, 1997), 130.

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Hartman’s framework of indebtedness clarifies the ways that judicial decisions differentiated former slaves from other citizens. Judges determined the status of freedpeople and interpreted the rights they acquired. Only emancipated citizens were indebted to the state for their legal personhood. From this perspective, emancipation bound freedpeople to the state. Absent were the “uplift” and “incorporation” of Black Americans into society that W. E. B. Du Bois argued were the prerequisites for abolition. Instead, the paradoxical construction of freedpeople as both autonomous and beholden to the state limited their rights and frustrated abolition.40 Emancipation made determining criminal punishment exceptionally difficult. In some cases, judges held that no law could be applied to formerly enslaved criminal defendants who had allegedly committed crimes while enslaved, but were not tried until after they became free. If emancipation had nullified slave codes, then they could not be invoked against formerly enslaved defendants. On the other hand, if slave codes remained in force, then there were no longer any slaves to whom they applied. These prosecutions, it seemed, presented either a criminal charge with no statute to justify it or a criminal statute with no defendant to charge. Furthermore, if the alleged crime took place before emancipation, then the use of any statutes enacted after emancipation ran the risk of ex post facto application. As one jurist asked, “For how could that punishment, which was prohibited by law from being applicable to slaves, for offenses committed while slaves, ever be made applicable to them when they became free, except for offenses committed by them after they became free[?]”41 The same judge who presided over Eliza’s trial discharged the freedman George, who had been indicted under the Alabama slave code in 1862 for stealing the horse of a white man – a capital crime. When George’s conviction was appealed in 1866, the state Supreme Court recognized that slave codes no longer applied: “It would be a solecism to say, that laws are in force, with no subject-matter in existence to which they relate; and to hold that they continue as laws.” Equally troubling, the second option was to apply a section of the robbery statute to George’s case that had not existed when the 40 41

Ibid., 115, 117. Nelson v. State 39 Ala. 667 (1866).

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alleged crime occurred. The law had been amended to include free people of color only after George had been charged and tried. The Alabama court found a third way. It relied on an 1809 decision of the U.S. Supreme Court. In Yeaton v. United States, Chief Justice John Marshall held that “after the expiration or repeal of a law, no penalty can be enforced, nor punishment inflicted, for violations of the law committed while it was in force,” unless the legislature had provided expressly for such application. George and several other criminal defendants, the Alabama court decided, could not be prosecuted because the state had no applicable statute for freedpeople who had been charged under defunct slave codes.42 (Because the law at issue in Eliza’s suit predated emancipation and included free people of color, no such issues arose in her case.) Eliza’s and George’s cases were decided on the same day, by the same court. Together, they illustrate postwar judges’ dominant strategy: fit unprecedented circumstances into traditional legal doctrine. Though they might seem contradictory, both decisions adhered to well-established principles of law, even when that approach meant letting a convicted horse thief go free. In a similar case, Justice Judge conceded, “It is not pleasant … to be forced to this conclusion; but we come to it under the guidance of the stern and inflexible rules of the law; … we are not at liberty to announce a different result, regardless of the character of the case, or of whom it may relieve from punishment.”43 Judges applied the legal principles that had always guided them, even when the outcome of cases overturned a criminal conviction for a major crime. Together, former status and race restitched the threads of slavery in freepersons’ lives, as illustrated in disagreements about freedpeople’s right to testify. Many Black Americans understood the prewar prohibition on Black testimony “as the crowning injustice” of their social position.44 The ability to speak for oneself was an essential component of citizenship, they said. Discriminatory bans on testimony 42

43 44

George v. The State 39 Ala. 675 (1866), 677, Alabama Department of Archives and History, Alabama Supreme Court Record Book, SC 141; Yeaton v. United States 9 U.S. 281 (1809). Nelson v. The State 39 Ala 667 (1866), 675. See also Wharton v. The State 45 Tenn. 1 (1867). Gross, Double Character, 61.

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arose in the colonial period and survived into the 1860s. In his 1858 treatise, Thomas Cobb identified the “disqualification” of slave testimony against free persons as “one of the consequences of the want of liberty.” In an 1853 attack on American slave law, abolitionist William Goodell observed a more practical, if nefarious, justification for banning Black testimony: Granting enslaved people the power to “testify against their owners and overseers … would imply the right of protection against assaults by them.” That right would have recognized the personhood of a slave, and thus was strictly forbidden.45 Free Blacks had also been barred from testifying against whites. This sort of prohibition became common in slave and in many free states after the American Revolution, representing a distinct insult to free people of color. Race – not just status – had become the basis for banning testimony. More precisely, in these statutes, race became status, and vice versa. The laws that banned Black testimony were reinforced by the new racialized “science” that became fashionable among proslavery thinkers and activists in the 1850s and beyond. Cobb, for example, emphasized that such restrictions were “founded not only upon the servile condition of the negro, but also upon his known disposition to disregard the truth.”46 Postwar judges struggled with how best to address such restrictions after emancipation. Allowing a Black witness to testify against a white litigant would have required a considerable change in law and legal thought, as well as in popular racist tropes. The Civil Rights Act of 1866 was designed to address such assumptions and the rules that they supported. The new federal law extended the fundamental right to testify to Black Americans, recognizing it as constitutive of ­universal citizenship regardless of race. A decision in a federal case from Kentucky case provided a ­directive to the state courts that would have to interpret the Civil Rights Act.

45

46

Cobb, An Inquiry into the Law of Negro Slavery, 226–27, 229, 231–32; Morris, Southern Slavery and the Law, 1619–1860, 231; William Goodell, The American Slave Code in Theory and Practice (London: Clarke, Beeton, and Co., 1853), 282. In practice, though, testimony of African Americans often found its way into antebellum legal proceedings. See, e.g., Gross, Double Character; Edwards, The People and Their Peace; Schweninger, Appealing for Liberty: Freedom Suits in the South. Morris, Southern Slavery and the Law, 1619–1860, 230, 233; Cobb, An Inquiry into the Law of Negro Slavery, 226.

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The opinion in United States v. Rhodes was written by Supreme Court justice Noah Swayne (following the practice known as “riding circuit,” which featured justices visiting and sitting with local federal judges). Swayne held that prohibitions of Black testimony violated the new statute: “Congress … [gave] to the colored man everywhere the same right to testify ‘as is enjoyed by white citizens.’” Swayne had “no doubt of the constitutionality of the act in all its provisions.” In fact, he added, the Thirteenth Amendment alone could have established Black citizenship. The Civil Rights Act simply did away with “doubts and differences of opinion which might otherwise have existed” about which rights were protected. Otherwise, states would have been permitted to discriminate against freedpeople, Swayne stressed, making abolition “a phantom delusion.”47 But not all jurists agreed that federal law should interfere in certain rights. Delaware and Kentucky decisions ignored Rhodes, a federal case, in favor of a narrow conception of citizenship. In State v. Rash in 1867, Judge Edward Gilpin of Delaware responded to a challenge to the state’s ban on Black testimony. He attacked the assertion of federal authority over the states, calling the Civil Rights Act of 1866 a “naked question of power.” He held that “in so far as the civil rights bill assumes to compel, regulate, or control the admission of evidence in the Courts of this State, it is inoperative, unconstitutional and void.” State citizenship, he maintained, remained a matter of state law and could still be limited on the basis of race and former status.48 In a suit argued by future U.S. Supreme Court justice John Marshall Harlan, Kentucky Supreme Court justice George Robertson also denounced the Civil Rights Act of 1866, calling it a “mere brutum fulmen” – a law without any legal effect. He charged that Congress lacked the “authority for class legislation” that only protected one group – Black people. Opponents of civil rights laws often called

47

48

United States v. Rhodes 27 F. Cas. 785 (1866), 787, 789, 794. See also Douglas L. Colbert, “Challenging the Challenge: Thirteenth Amendment as Prohibition against the Racial Use of Peremptory Challenges,” Cornell Law Review 76, no. 1 (November 1990): 51–52. State v. Rash 1 Houston 271 (1867); John W. Houston, Reports of Cases Decided in the Court of Oyer and Terminer and the Court of General Sessions of the Peace and Jail Delivery of the State of Delaware (Wilmington, DE: Mercantile Printing Co., 1920), 280.

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them class legislation – no existing statutes singled out white citizens, after all. President Andrew Johnson vetoed the Freedmen’s Bureau Bill of 1866 on such grounds. But Robertson’s view stemmed more profoundly from his interpretation of emancipation. The Thirteenth Amendment “certainly gave the colored race nothing more than freedom,” Robertson concluded. “It did not elevate them to social or political equality with the white race. It neither gave or aimed to give them, in defiance of State laws, all the rights of the white race, but left them equally free in all the States, and equally subject to State jurisdiction and State laws.” To Robertson, being “as free as the white race” meant that a freedperson no longer counted as property, but nothing more than that. States retained their customary ability to regulate people’s rights according to race.49 In Robertson’s view, the Civil Rights Act violated the Constitution because it asserted rights to govern behavior that was the purview of states. To Robertson, freedom did not guarantee equal status or rights to any greater degree after the war than it had before. He did not believe that emancipation had cleansed the freedperson of the racial stigma that had made her eligible for enslavement in the first place. After the Civil War, judges began to sort freedpeople as occupying a distinct legal category. They were no longer property, but their race and previous condition of servitude meant they did not possess equal rights.50 The state court decisions in Delaware and Kentucky reaffirmed the racist assumptions held by many white Americans. Most supporters of free labor and mainstream Republicans believed that African Americans should be free, but could never be equal to white Americans. Abraham Lincoln himself had championed such views. He endorsed the natural right of all men to live self-sustaining free lives, but denied racial equality and opposed full membership in the body politic for Black Americans. In 1858, Lincoln even spoke in favor of colonization, noting “what I would most desire would be the separation of the white and Black races.” His views quickly evolved, however, when he encountered “Black Americans of political experience 49 50

Bowlin v. Commonwealth 65 Ky. 5 (1867), 7–8, emphasis in original. See Porter v. Ralston 69 Ky. 665 (1869); Bowlin v. Commonwealth 65 Ky. 5 (1867), 8, emphasis in original.

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and wide-ranging accomplishment.” Though Lincoln tempered his position (we cannot say for sure whether he would have advocated racial equality on Radical terms), many others insisted that the law should continue to regulate and restrict Black rights.51 Robertson and Gilpin appealed to the distinction in rights that Lincoln had embraced before the Civil War. Like Lincoln, they agreed that all free people were entitled to the natural rights identified in the Declaration of Independence – life, liberty, and the pursuit of happiness. Many also agreed that African Americans should possess “security of person and property.”52 Some even argued that free Blacks should enjoy political rights, perhaps even the right to vote, but thought that individual states should make that determination, not the federal government. Even in Rhodes, the moderate Republican Swayne noted that the Civil Rights Act did not necessarily guarantee suffrage. He wrote that “whether it was competent for congress to confer political rights also, invol[v]es a different inquiry.” In that respect, Black Americans could be treated like women or children – as unequal, dependent citizens.53 The right to full social equality found few supporters outside radical abolitionist circles. Even some Radical Republicans did not believe that citizenship guaranteed it. Most maintained that any social interactions between the races had to be determined by individuals and could not be required by law. Social equality could lead to racial mixing and tacitly condone interracial sex or even marriage, which white Americans almost unanimously abhorred.54 To allow Congress the authority to enforce equal rights, many feared, would invite chaos and racial degradation. As Robertson wrote, such power could be used to force states to “legalize 51 52 53 54

Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the Civil War, 290; Foner, The Fiery Trial, 123, 131. Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the Civil War, XXXV. United States v. Rhodes 27 F. Cas. 785 (1866), 794. Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the Civil War, 290–95; G. Edward White, Law in American History, vol. II (New York: Oxford University Press, 2016), 16; Brandwein, Rethinking the Judicial Settlement of Reconstruction, 65; Hartman, Scenes of Subjection: Terror, Slavery, and Self-Making in Nineteenth-Century America, 173–83; Foner, The Fiery Trial, 118; United States v. Rhodes 27 F. Cas. 785 (1866), 790, 794.

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intermarriages between the two races deteriorating to the Caucasian blood, and destructive of the social and legislative decorum of States.” It “would place the Black race, in all the States, under the pupilage of Congress, free from the control of the local sovereign that governs the white race.” Before the U.S. Supreme Court revived the distinction between state and federal citizenship in the SlaughterHouse Cases (1873), or Justice Joseph Bradley pointed in The Civil Rights Cases (1883) to freedpeople’s elevation to “special favorite of the law,” state court judges asserted their states’ prerogative over their inhabitants.55 The Fourteenth Amendment effectively codified the Civil Rights Act of 1866 into the Constitution. It invalidated discriminatory Black Codes, and, at least in theory, prevented the separation of state and federal citizenship that Robertson and Gilpin had supported in decisions that predated its adoption. The new amendment was designed to overrule discriminatory state law and decisions that upheld those laws, despite the Civil Rights Act. In response, judges shifted their ground but not their ideology. Now, they used private law – including marriage, custody, and inheritance – to frustrate abolition and divert attention from the promises of the Fourteenth Amendment, which supporters had promised would not affect the law of the family.56 Post-emancipation family law, in contrast to egregious Black Codes, appeared to offer positive rights to African Americans. Many freed fathers saw paternal rights as confirmation of fatherhood and validation of their freedom. They could finally be recognized as heads of their own households. Republican ideology stressed that supporting a family was a rite of passage for emancipated men that allowed them to prove their suitability for and fully claim their citizenship.57

55 56 57

Bowlin v. Commonwealth 65 Ky. 5 (1867), 9, emphasis in original. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine, 133. Nancy F. Cott, Public Vows: A History of Marriage and the Nation (Cambridge, MA: Harvard University Press, 2000), 82; Laura F. Edwards, Gendered Strife and Confusion (Urbana: University of Illinois Press, 1997), 18; Stanley, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation, xi.

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Some freed families paid a steep price for legitimacy. When Arkansas freedman Peter Scoggin attempted to regain custody of his daughter, Elizabeth, he was put on trial for bigamy, a serious crime. A jury found him guilty of violating “public morals” for not divorcing Elizabeth’s mother before marrying another woman. Scoggin did not believe he needed a divorce. His relationship with Elizabeth’s mother began while both were enslaved, and therefore his marriage to her was not recognized in law. He asserted his parental rights because he trusted that with freedom and citizenship, he had gained the right to the custody of his daughter as her father. Instead, he was charged with a felony. His trial both took his race into account and failed to reckon with his previous condition of servitude.58 Arkansas marriage laws did not differentiate between formerly enslaved people and free African Americans who may have been living in the state prior to emancipation or who had moved recently into the state. The state code categorized all “persons of color” as a single race, and apparently presumed that all African Americans living in the state had been enslaved. Like the legislatures of other former slave states, Arkansas’ General Assembly was, according to the presiding judge, “composed almost exclusively of Southern men, who were familiar with the habits and usages, and well aware of the limited civil rights of the colored population during their bondage.”59 After the war, the legislature granted Black Arkansans the right to marry, but simultaneously insisted that Scoggin and others like him retroactively conform to normative domestic standards and laws of monogamy, which as an enslaved person Scoggin could not do. Because he had not been allowed to marry legally, he presumed that he did not need to file for divorce. Ultimately, Scoggin was 58 59

Scoggins v. State 32 Ark. 205 (1877). Scoggins v. State 32 Ark. 205 (1877), 217, Case Transcript, University of Arkansas at Little Rock/Pulaski County Law Library, UALR William H. Bowen School of Law. The state had adopted several antebellum laws to limit the creation of a free Black population; some regulated manumissions by slave owners, while others required a fee for free African Americans to reside in the state. By 1860, free Blacks were forbidden from moving into the state. Georgena Duncan, “Manumission in the Arkansas River Valley: Three Case Histories,” Arkansas Historical Quarterly 66, no. 4 (Winter 2007): 423. The case name is Scoggins, but the petitioner’s name was Scoggin.

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lucky. The statute of limitations had run out, and the Arkansas court overturned his conviction.60 No longer under the control of masters, Black Americans like Scoggin instead were increasingly policed by the state. The formal recognition of their freedom and basic rights – including to right to form legitimate families – was granted by the unique action of the state. As a consequence, freedpeople became beholden to it. The law regulated white native-born and naturalized citizens’ lives, including the laws of marriage, but white people never had to contend with complications stemming from previous enslavement or race-based presumptions about their moral character, fitness for freedom, or the origins of their legal personhood. In contrast, for freedpeople, mere freedom from bondage did not guarantee legal subjectivity. They were recognized as people only because of a change in law; their humanity was not assumed as a function of natural law as it was for white Americans. The legal scholar Samera Esmeir’s study of colonial Egyptian law helps clarify this point: “The human is chained to the power of modern state law, not simply because the state’s laws are imposed on the human, but because they decide its status as human.”61 Their “juridical humanity” necessarily tethered them to the state in a way that other citizens were not. The consensus that Black people’s lives needed to be policed was most forcefully articulated in cases that raised the specter of Black men’s sexuality. Now unrestrained by slavery, so the story went, Black men posed a grievous risk to white women. Racist diatribes were often persuasive, as in the case of Alexander Neely, who was convicted of raping a white woman. On appeal, his lawyer argued that the prosecution never introduced evidence of intent. The North Carolina Supreme Court held that Neely’s race alone proved the 60

61

Though the court reversed Scoggin’s conviction, the court remanded the case for a new trial. It appears the lower court would have the final word on whether the statute of limitations had in fact run out. “But the prosecution for the bigamous marriage charged in the indictment appearing to be barred by the statute of limitations, the judgment is reversed, and the cause remanded with instructions to the court below to grant appellant a new trial.” Samera Esmeir, Juridical Humanity (Stanford: Stanford University Press, 2012), 2. For a conceptualization of the “colonial status” of African Americans see the activist text Stokley Carmichael and Charles V. Hamilton, Black Power: The Politics of Liberation (New York: Random House, 1967).

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predisposition to rape because it was the Black man’s nature to desire and assault white women. Comparing African American men to farm animals, Justice Richmond Pearson wrote, “I see a chicken-cock drop his wings and take after a hen: my experience and observation assure me that his purpose is sexual intercourse; no other evidence is needed.” Jurors, Pearson instructed, should consider Neely’s race. Given that “he was a negro, and considering the hasty flight of the woman, … and the repugnance of a white woman to the embraces of a negro,” jurors had all the evidence they needed “to find that the intent was to commit rape.” After all, “there is no evidence to show that [Neely’s] intent was to kill her or to rob her; so the intent must have been to have sexual intercourse.”62 One judge dissented from the court’s decision upholding Neely’s conviction, which underscored the consequences of decisions based on race alone. “[The majority] assumes,” Justice William Rodman wrote, “that the prisoner is a brute … unrestrained by reason or a moral sense.” But Neely was “entitled to be tried as a man and to have his acts and intents inquired into and decided upon by the principles which govern human conduct.” The Fourteenth Amendment guaranteed him equal protection of the law, Rodman stressed. The rules of evidence “must be the same for all classes and conditions of men.”63 Those who continued to view people like Neely as a predator because of his race not only won the day, they also reinscribed such assumptions into postwar law. Scoggin’s and Neely’s cases demonstrate that slavery had inculcated “whiteness” as “the norm of humanity,” collapsing race and criminality into a single category. Emancipation may have destroyed the property interest that defined the servile status, but it did not erase racialized assumptions about fitness for freedom, let alone about character. Jurists transposed the primary vestige of enslavement – race itself – into postbellum jurisprudence. The debt owed for emancipation, in other words, was extracted in the form of circumscribed

62 63

State v. Neely 74 N.C. 425 (1876), 427–29. State v. Neely 74 N.C. 425 (1876), 430, 432. Still, Rodman was quick to add, Neely’s color could “aggravate the guilt upon the prisoner upon conviction,” leaving him subject to racially specific punishment. But Neely did not receive even that much. Instead, his color proved his guilt.

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citizenship. Judges retained the “feeling and sentiment” that a good and proper society must be ordered by race. It took time for racial classifications based on “immutable, inherent, and naturalized racial differences” to solidify in American law.64 But the process began in Reconstruction-era courtrooms, born from the same racism – and often the same judicial pens – that had long influenced, and even directed, the jurisprudence of slavery. Many judges who sat on state appellate courts during Reconstruction had supported race-based slavery. Emancipation as a consequence of war had not altered their views. Frequently, their decisions reflected their proslavery pasts and Confederate allegiances. Military governors replaced some judges during Radical Reconstruction, but others, such as Richmond Pearson of North Carolina, remained in their posts. Some, including Reuben Reeves and George Moore of Texas, were removed but found their way back to the bench. Most state court judges had come of age in the prewar years, in a South increasingly committed to proslavery and anti-Black philosophy, especially as northern abolitionism intensified. They believed, scholar Alfred Brophy has written, that “hierarchy rather than equality” formed the foundation of a well-ordered society and “told themselves that slavery was justified by the past, was economically necessary, and was moral.” Citations of Cobb’s Inquiry into the Laws of Negro Slavery littered post-emancipation briefs and opinions because many jurists still believed in African Americans’ inherent inferiority.65 Abolitionist judges resisted this process. They fought to recognize citizenship and equality for Black Americans in law and society. Some may have stopped short of Taliaferro’s declaration that freedom was a preexisting right restored at long last to freedpeople. But all abolitionist judges agreed the Civil Rights Act and Reconstruction Amendments created new protections for all citizens, and prohibited the consideration of race and/or former status in judicial decision making. As Alabama judge Benjamin Saffold held in one case, 64 65

Hartman, Scenes of Subjection: Terror, Slavery, and Self-Making in Nineteenth-Century America, 121, 162–63, 168. Brophy, University, Court, and Slave: Pro-Slavery Thought in Southern Colleges & Courts & the Coming of the Civil War, 10. For an examination of Robertson’s intellectual and professional trajectory on matters of slavery, see 58–60.

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the Civil Rights Act “intended to destroy the distinctions of race and color in respect to the rights secured by it.” By adopting the Fourteenth Amendment, Saffold continued, the constitution made permanent “that no person shall be disfranchised, in any respect whatever … and that the persons who acquire citizenship … shall not be distinguished … for any of the causes, or any of the grounds, which previously characterized their want of citizenship.”66 The Fourteenth Amendment should have prevented the reverberation of slavery in freedpeople’s lives. But the power and popularity of racism in law was unstoppable. That is, after emancipation, racism reinscribed the marks of bondage. Abolitionists responded by opposing any resort to racial i­deology. Mississippi judge Jonathan Tarbell wrote in one opinion, “As a ­question of policy or propriety, people may differ [over the nature and character of freedpeople], but this is a view … the court ­cannot ­entertain. They can only declare legal rules. Matters of taste and propriety, like this, the people must determine for themselves, ­ within the established laws.” Tarbell believed that any concern for ­maintaining white supremacy – which Robertson raised in Bowlin – or appeals to inherent racial depravity – which Pearson relied on in Neely – had no place in judicial discourse.67 While Tarbell noted that racist views may shape society outside the courtroom, he stressed that those who defined the rights and legal position of Black Americans could not resort to racial prejudice. The Reconstruction Amendments obligated judges to uphold equality irrespective of “race, color, or previous condition of servitude.”68 Abolitionist judges, like similarly minded politicians, remained committed to this fundamental ideal throughout Reconstruction. Ultimately, however, they failed to convince most of their colleagues. By undermining the abolitionist potential of the Reconstruction Amendments, postwar jurisprudence hewed closely to the past. Judges imported proslavery theory into law and undermined the promise of equality. They recognized that African Americans were now emancipated persons who possessed basic civil rights to marriage, to property 66 67 68

Burns v. State 48 Ala. 195 (1872), 197–98. Dickerson v. Brown 49 Miss. 357 (1873), 374–75. U.S. Const. Amend. XV, Sec. 1.

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ownership, and to sue and be sued, just as free Blacks had been during the antebellum decades. But they also maintained that race and the distinctive way former slaves had become free raised insurmountable barriers to equal citizenship. Abolition, in other words, foundered on the shoals of “natural” racism. The stain of former bondage replaced the “taint” of enslavement. Far from celebrating freedom, the majority of judicial opinions emphasized the freedperson’s previous bondage, a status that other citizens did not share. This distinction between a freed and freeborn person mattered. It created a persistent purgatory – what Du Bois in The Souls of Black Folk called the “present-past,” for all Black Americans.69 Collectively, they were stamped by the belief that enslavement had been an appropriate condition for Black people – a reflection of their laziness, mendacity, and even inherent criminality. Emancipation had not changed those universal “truths.” Still, the triumph of racist jurisprudence was neither easy nor immediate. Instead, abolitionist judges forced their brethren to articulate their racism openly. Most postwar opinions – especially but not only in the private law of the family and in criminal cases – provide a roadmap for how judges ushered in a new era of racism in law, despite the ratification of the Thirteenth and Fourteenth Amendments. As a consequence, we can trace the development of American apartheid to its roots in post-emancipation case law, as judges taught the nation which kinds of discrimination survived the Civil War. Their racism became the cornerstone of a new edifice: Jim Crow.

69

W. E. B. Du Bois, The Souls of Black Folk, 26.

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On July 15, 1867, Daniel Allen achieved what had previously been impossible for him: He became a real property owner. Though once considered property himself, Daniel had enlisted in the Union Army and become a free man. Daniel paid John Henry Stahel $105, perhaps from his soldier’s pay, for “lot no. 148 of ‘Bruce’s addition to the city of Lexington,’” Kentucky, that “Front[ed] Mill Street 33 feet more or less, running back that width 140 feet to an alley 13 feet wide.” His property was a physical manifestation of the prize he had helped secure on the battlefield: freedom and legal personhood for himself and the nearly 4 million other enslaved persons who had been living in the American South.1 Daniel Allen only enjoyed his property briefly. After his death in 1868, his mother, Fanny Whitesides, and other relatives – Nelson Whitesides, Mark Allen, and Jake Sales – took immediate possession of the property, including a “house and improvements.” Daniel had left no will, and Jane Allen quickly contested the acquisition. She claimed to have been Daniel’s wife, and argued that any inheritance should pass to their children, Fanny, Hardin, and Lucinda, as Daniel’s only rightful heirs. She asked the court not to let the previous disabilities of bondage disqualify her children from the rights automatically enjoyed by freeborn Americans. The lengthy court battle that ensued 1

Whitesides v. Allen 74 Ky. 23 (1874), Kentucky Court of Appeals #7457, Kentucky Department for Libraries and Archives, Public Records Division.

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was complicated by the fact that the litigants, like Daniel himself, had been enslaved. In Whitesides v. Allen the Kentucky Court of Appeals ruled in Jane Allen’s favor. They did so by granting Daniel Allen’s children retroactive legitimacy, since their parents would have been considered married had they been free. This allowed the children to inherit the estate their father had so carefully amassed. Suits related to freedpeople’s marriages – the linchpin of familial legitimacy – put the disabilities of the slave past, rather than newly granted rights, at the center of discussions about freedom and abolition. In each, a domestic conflict exposed the need to consider the previous actions and intentions of freedpeople, and prompted an assessment of how the established laws and customs of domesticity could be applied to those formerly excluded from their protection. Rather than exposing the ways that race and former status determined whether freedpeople were entitled to equal rights, this chapter considers whether former status prevented some rights – including the most fundamental among them – from being enjoyed at all. Contrary to maintaining unequal racial categories for criminal punishments or upholding racial restrictions on the exercise of civil rights, there was little opposition to extending domestic rights to freedpeople. To the contrary, lawmakers, jurists, religious leaders, social reformers, and freedpeople themselves all saw the right to marry and have legal families as essential. It would curb presumed deviancy and immoral sexual behavior outside of marriage; impose state control over the formerly enslaved; and, for freedpeople, end the domestic fragility that had long plagued their lives. But cases related to the Black family presented a particularly difficult juridical problem: Freedom had not necessarily eliminated the barriers to enjoying domestic rights, even after they had been granted without objection. The difficulty derived from the fact that domestic rights, unlike voting or property rights, depended on a specific action – a lawful marriage – that had taken place sometime in the past. But the formerly enslaved, previously denied the ability to legally marry, bear legitimate children, or inherit from family members, would remain disadvantaged – or disabled – by the incapacities of their pasts unless some kind of legal accommodation were made.2 2

Some historiography assumes we can identify the Black family during Reconstruction, even though it was still in the process of being defined by former bondspeople

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Judges faced a stark choice. Either freedpeople entered American society as tabula rasa juridical subjects without the official legal pasts needed to make their intimate domestic relations fully legitimate, or they entered society as previously enslaved people with some kind of backdated legal standing. As they did in Whitesides, many judges chose to blur the line between slavery and freedom. They recognized retroactive rights that granted ex post facto legality to enslaved people’s domestic relationships. These judges realized that ending slavery demanded more than granting rights. It also required removing the disabilities previously imposed by bondage so that all rights could be enjoyed equitably.3 Undoubtedly, both acts – removing disabilities and acquiring rights – were intertwined and mutually constitutive; both were necessary to establish the status and place of freedpeople in postbellum

3

themselves. For comments on the problematic use of “Black family,” see Melinda Chateauvert, “Framing Sexual Citizenship: Reconsidering the Discourse on African American Families,” Journal of African American History 93, no. 2 (Spring 2008): 198–222. See also Brenda E. Stevenson, “The Question of the Female Slave Community and Culture in the American South: Methodological and Ideological Approaches,” Journal of African American History 92 (Winter 2007): 74–95; Laura F. Edwards, Gendered Strife and Confusion (Chicago: University of Illinois Press, 1997); Tera W. Hunter, Bound in Wedlock (Cambridge, MA: Harvard University Press, 2017). Freedpeople would probably not have thought of themselves as tabula rasa juridical subjects. To the contrary, as scholarship has shown, Black litigants turned to the courts to resolve their domestic disputes precisely because they had previous legal experience and well-developed assumptions about the law. In post-emancipation rulings, however, judges regularly rejected the possibility that slaves could ever have been legal actors. When they turned to antebellum precedent at all, they cited rulings that defined slave unions as concubinage, legal treatises and commentaries that defined slave marriage as a customary practice (e.g., Thomas Cobb’s, An Inquiry into the Law of Negro Slavery in particular), and Roman law principles to justify their stances. Literature on enslaved and free Black peoples’ extensive legal experience includes Edwards, The People and Their Peace; Gross, Double Character; Morris, Southern Slavery and the Law, 1619–1860; Kelly M. Kennington, In the Shadow of Dred Scott (Athens: The University of Georgia Press, 2017); Anne Twitty, Before Dred Scott (New York: Cambridge University Press, 2016); Lea S. VanderVelde, Redemption Songs: Suing for Freedom before Dred Scott (Oxford: Oxford University Press, 2014); Kimberly M. Welch, Black Litigants in the Antebellum American South (Chapel Hill: University of North Carolina Press, 2018); Jones, Birthright Citizens. For scholarship on African Americans’ invocation of legal beliefs after emancipation, see especially Penningroth, The Claims of Kinfolk; Elizabeth Regosin, Freedom’s Promise: Ex-Slave Families and Citizenship in the Age of Emancipation (Charlottesville: University Press of Virginia, 2002); Melissa Milewski, Litigating across the Color Line (New York: Oxford University Press, 2017).

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American society. In this way, cases related to Black domestic rights demonstrate why abolition must be considered a multistep process that required both destruction and construction. Disabilities of slavery (in this case, former illegitimacy) had to be addressed and resolved before rights granted by the state could be enjoyed equally to those who had never been enslaved. Judges who turned to retroactive or “dormant” rights doctrine to make Black families whole – and equal to those of freeborn Americans  – found a functional mechanism for applying existing domestic law principles to freedpeople’s families. Superficially, the method seemed promising; for instance, freed children could acquire legitimacy from parents whose marriages were deemed retroactively legal. In practice, however, their methods helped some litigants, while others, like those who could not substantiate a long-term relationship in the past, found themselves held to legal standards they could never meet. Prospects for abolition remained undecided. Northern states that had ended slavery before the Civil War had considered the problem of emancipated people’s domestic rights well before former slave states had. By planning ahead, they avoided (albeit imperfectly) many of the problems faced by postbellum ­southern courts. For example, the handful of northern states that adopted gradual emancipation enacted statutes that recognized the marriages of remaining bondspeople if they were sanctioned by the ­slaveholder. A New York law recognized the marriages of enslaved people, including those of couples in which only one of the parties was enslaved, while the Pennsylvania Society for Promoting the Abolition of Slavery and for the Relief of Free Negroes preserved legal records – including those related to marriages – for African Americans living in Pennsylvania and in surrounding states, to ensure they would be available when enslaved people became free.4 In contrast, southern states had not arranged for slavery’s end, and post-emancipation courts scrambled to adjudicate cases that facilitated 4

Cott, Public Vows: A History of Marriage and the Nation, 33; Michael Grossberg, Governing the Hearth (Chapel Hill: University of North Carolina Press, 1985), 129– 30; Hendrik Hartog, Man and Wife in America (Cambridge, MA: Harvard University Press, 2000), 130; Debra L. Newman, “Black Women in the Era of the American Revolution in Pennsylvania,” The Journal of Negro History 61, no. 3 (July 1976): 281.

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the Black family’s transition out of slavery and into freedom. Judges often responded to the domestic disputes raised by Black litigants by recognizing retroactive rights that granted ex post facto legal pasts to freedpeople. Some state courts relied on new state laws because they functioned retroactively; some had unique antebellum legal regimes that conditionally recognized slave marriages. The Maryland legislature, for instance, had enacted a statute in 1777 that made slave marriages quasi-legal. The law, adopted during Revolutionary fervor, granted “moral” benefits to bondspeople who married with the consent of their masters, which would become legal obligations if they were freed. Similarly, Tennessee recognized certain “inchoate” rights of slaves that included limited benefits of marriage if (and only if) a couple had their masters’ consent to wed. The state recognized such rights in order “guard against the effect of” abolitionists’ “incendiary publications, and to tighten the bonds of slavery by defensive legislation, against persistent and untiring efforts to produce insurrection.”5 All of these methods required not simply the granting of new rights but the removal of the legal disabilities of slavery that emancipation had not resolved.6 The premise of retroactive rights, and the particular doctrine of “dormant rights,” had an antebellum heritage, although it likely derived from the Roman slave custom of contubernium. According to dormant rights theory, slaves had always possessed the rights of free people, but the institution of slavery had rendered them inactive, or dormant. Ending the condition of bondage reanimated their suppressed rights and applied them retroactively to the period of dormancy (the term of enslavement). For instance, a customary marriage became retroactively legitimate once husband and wife were free because state recognition of the marriage contract had been suspended only by the application of the positive laws of slavery, not by any inherent legal incapacity. Inclusion into lawful society made

5 6

For antebellum litigation related to the marriages of enslaved people, see, e.g., Commonwealth v. Clements 6 Binney 206 (1814); Overseers of Marbletown v. Overseers of Kingston, 20 Johns 1 (1822); and Jackson v. Lervey 5 Cowen 397 (1826). Andrews v. Page 50 Tenn. 653 (1871). Laws of the State of Maryland, 1777 Md. Laws, Chapter 12, Section XI; Jones v. Jones 36 Md. 447 (1872); Goring, “The History of Slave Marriage in the United States,” 319n104.

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the marriage legal, both prospectively and retrospectively. The doctrine was first applied to formerly enslaved people as early as 1819, when a Louisiana court ruled in Girod v. Lewis that upon emancipation, a marriage between enslaved people immediately became lawful. “Emancipation,” the court ruled, “gives to the slave his civil rights, and a contract of marriage, legal and valid by the consent of the master and moral assent of the slave, from the moment of freedom, although dormant during the slavery, produces all the effects which result from such contract among free persons.”7 Prior to emancipation, judges outside of Louisiana rejected the dormant rights premise. They feared that it opened the door to the recognition of a panoply of rights beyond marriage, and asserted that rights not enjoyed by bondspeople could not be applied ex post facto. In 1858, for example, North Carolina justice Richmond Pearson proclaimed that the Girod ruling amounted to little more than a “fanciful conceit.” Yet postbellum judges across the South – including in Alabama, Missouri, and Texas – regularly cited the case when ruling on the domestic relationships of freedpeople. In other instances, courts adopted the premise behind “dormant rights” without using it by name or citing Girod. Instead, they simply recognized retroactive rights and accomplished the same thing.8 The civil rights tradition imported from the Louisiana court’s ruling in Girod could harmonize with common-law doctrine of other states. Enslaved people, after all, were not the only ones who suffered legal disabilities. People deemed insane or underage shared prohibitions against marriage. But any unions they entered, even those not immediately recognized by the state, would be considered legitimate once the incapacity was resolved (by growing older or regaining 7

8

Girod v. Lewis 6 Mart. 559 (1819). The “dormant right” of slaves to marry has been discussed in Adrienne D. Davis, “The Private Law of Race and Sex: An Antebellum Perspective,” Stanford Law Review 51, no. 2 (January 1999): 221–88; Goring, “The History of Slave Marriage in the United States”; Grossberg, Governing the Hearth, 130–32; Cobb, An Inquiry into the Law of Negro Slavery, 243. Howard v. Howard 51 N.C. 235 (1858). The North Carolina court chose to leave the precedent intact; it did not apply “dormant rights” during Reconstruction. See also Laura F. Edwards, “‘The Marriage Covenant Is at the Foundation of All Our Rights’: The Politics of Slave Marriages in North Carolina after Emancipation,” Law and History Review 14, no. 1 (Spring 1996): 81–124. Goring, “The History of Slave Marriage in the United States,” 317–22.

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sanity) and the couple continued living together. What mattered for freedpeople, “lunatics,” and young people alike was the “subsequent mutual acknowledgement of each other as husband and wife,” which, once they were able to contract, served to “complete the act of matrimony so as to make them lawfully and fully married.”9 Of course, antebellum law presumed enslaved people had no civil rights, whereas citizens might have had their rights restricted because of circumstantial ineligibility to exercise them. Judges who invoked dormant rights or relied on the basic premise of retroactivity, then, introduced an almost magical transfiguration that allowed them to imagine and conjure past rights for formerly enslaved people who never possessed them, so they could apply preexisting legal standards to resolve their suits. It required, as one Kentucky brief put it, that judges “reach their hands back into the days of slavery” and uncover – or recover – rights that were never, and could never have been, exercised by bondspeople. Nevertheless, the application of retroactive rights gave postbellum judges a way to justify rulings that addressed the demands of freedpeople, and to promote social order by legalizing Black households.10 Promoting social order became a postbellum priority for judges and lawmakers alike. As part of their new Black Codes, state lawmakers quickly enacted policies to address the free Black family. They encouraged lawful matrimony and the formation of normative families in distinct households in order to discourage customary domestic practices and reduce the dependency of freedpeople on local governments. On dependency see, e.g., Bardaglio, Reconstructing the Household, 1995; Edwards, Gendered Strife and Confusion; Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America (New York: Oxford University Press, 2009). In some places, such as Texas, new state constitutions included provisions for legalizing slave unions. Others, such as North Carolina, Kentucky, and Missouri, adopted legislation that required former slaves to register their preexisting marriages with the state, sometimes for a fee. But most states

9 10

Johnson v. Johnson 45 Mo. 595 (1870), 600–601. Lewis v. Commonwealth 66 Ky. 539 (1868), Kentucky Department for Libraries and Archives, Kentucky Court of Appeals #1972.

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simply enacted statutes that legitimized the unions between former slaves as long as the couple continued living together after emancipation. These laws were sometimes retroactive, but not always; for example, in Arkansas and Mississippi marriages were considered valid only from the moment the new marriage laws went into effect, so long as a couple continued cohabitating.11 Not all freedpeople felt the need to marry or remarry. Some understood their personal relationships in ways that reflected the customs of slave communities, where “the substance of the relationship” and recognition by others was enough to legitimize a union. These couples already regarded their marriages as valid, and saw no reason or need to allow a new authority – the state – to intervene in their relationships. For some, this decision was pragmatic. For others, ignorance played a role. The rampant illiteracy among the freed population posed a particular problem in this regard: Many freedpeople either could not read or could not properly interpret new Black Codes. Some were simply unaware that new statutes had been passed at all. In states that required marriages to be registered, statistics illustrate the problem. In North Carolina, for example, the percentage of couples who registered their marriages varied dramatically by county, ranging from as high as 89 percent to as low as 7 percent.12 In addition, legislative intent and freedpeople’s behavior often clashed. As a result, it became clear to one Tennessee Supreme Court justice that “It has devolved upon the Courts the duty of declaring the rules of law applicable to [freedpeople] in their domestic relations growing out of their changed condition.” But determining those rules was anything but straightforward, especially when 11

12

Cott, Public Vows: A History of Marriage and the Nation, 89–91; Herbert G. Gutman, The Black Family in Slavery and Freedom, 1750–1925 (New York: Vintage Books, 1976), 418; Peter W. Bardaglio, Reconstructing the Household (Chapel Hill: University of North Carolina Press, 1995), 133; Goring, “The History of Slave Marriage in the United States,” 317–38, 319n104. On customary practices, see Hunter, Bound in Wedlock, 30–35. Noralee Frankel, Freedom’s Women: Black Women and Families in Civil War Era Mississippi (Bloomington: Indiana University Press, 1999), xi–xii, 80, 83, 91; Edwards, Gendered Strife and Confusion, 19, 54–56; Edwards, “‘The Marriage Covenant Is at the Foundation of All Our Rights’: The Politics of Slave Marriages in North Carolina After Emancipation”; Gutman, The Black Family in Slavery and Freedom, 1750–1925, 416.

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criminal charges were brought against freedpeople for violating longstanding state marriage laws. Local officials charged freedpeople with bigamy, adultery, and fornication. Although these crimes were not new, the involvement of formerly enslaved people in such cases was. Scholars have typically cited these criminal cases as evidence of the aggressive policing of Black households by the state, but some justices saw them as matters “of great importance, involving … the rights and privileges of free persons.” They required judges to determine whether freedpeople could be held criminally liable for the relationships they had entered while enslaved simply because, as a consequence of their former bondage, they failed to meet preexisting legal standards.13 Such was the task in McReynolds v. State. After Solomon McReynolds married Betsy Edrington in 1867, the local authorities in Montgomery County, Tennessee, charged him with bigamy because he had not divorced Eliza Elder before remarrying. (It appears that Eliza alerted the authorities to the second marriage.) Testimony corroborated that in 1856, Solomon and Eliza had “stood upon the floor and raised their right hands and were married by” an enslaved preacher. Many formerly enslaved people established new relationships after emancipation; in fact, scholarship indicates that as many freedpeople separated as formally married. But Solomon and Eliza had continued living together after emancipation, and the new statute regarding freedpeople’s marriages considered their continued cohabitation as the establishment of a lawful marriage.14 Formerly enslaved people who found themselves in circumstances such as these regularly made the same argument to defend themselves against criminal charges: Marriages that predated emancipation lacked legitimacy “for the reason that the slave could not contract.” Judges almost universally rejected this claim. They agreed

13

14

Solomon McReynolds v. The State 45 Tenn. 18 (1867), 20–21; Mary Frances Berry, The Pig Farmer’s Daughter and Other Tales of American Justice (New York: Vintage Books, 1999); Hunter, Bound in Wedlock; Grossberg, Governing the Hearth. Solomon McReynolds v. The State 45 Tenn. 18 (1867), Tennessee Library and Archives, MT Box 266; Deborah Gray White, Ar’n’t I a Woman? Female Slaves in the Plantation South (New York: W.W. Norton & Company, 1999); Thomas Johnson Michie, ed., The Encyclopedic Digest of Tennessee Reports, vol. IV (Charlottesville, VA: The Michie Company, Law Publishers, 1907), 408.

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that emancipation and statutory law removed the previous inability to marry, and that state legislatures had the right to regulate marriages. In their estimation, what mattered took place after emancipation (i.e., ongoing cohabitation), and was, at least to lawmakers, unconnected to slavery or the disabilities that had once stemmed from it.15 Although they granted that customary unions between enslaved people in most states had been “absolutely void” according to established antebellum legal principles, many judges still considered the past intentions of enslaved persons. They acknowledged that the choices that enslaved people had made might be valid after emancipation. As Judge James O. Shackelford ruled, it was “necessary to look to the status and condition” of the litigants “and see what rights and privileges were accorded them” while they were enslaved. Judges often interpreted a wedding, even between bondspeople, as an important signal of “the moral assent of the mind on the part of the slaves to a marriage.” With evidence of that assent, and continued cohabitation after emancipation, the law could bestow retroactive and positive legal authority to the marriages of the state’s freed population. “The marriage of” formerly enslaved “persons [was] made valid by their consenting to live together after their emancipation; and having given, while in a state a slavery, a moral assent, as soon as they were capable of contracting or legally assenting to the marriage, it would become valid.”16 Judges used the language of assent to apply the principles of dormant rights, which emphasized slaves’ “moral power to agree,” to the marriages of freedpeople. In theory, this approach had the potential to solve many issues that stemmed from formerly enslaved people’s previous lack of legitimacy, including parental rights over children who had been born enslaved. The problem with this approach, however, was that recognizing moral assent given prior to emancipation imbued freedpeople with legal liabilities they never considered – or perhaps ever desired – when they began their relationships. These liabilities 15 16

Solomon McReynolds v. The State 45 Tenn. 18 (1867), Tennessee Library and Archives, MT Box 266. Solomon McReynolds v. The State 45 Tenn. 18 (1867), 20, 22, 25, Tennessee Library and Archives, MT Box 266. Curiously, Shakelford did not comment on Tennessee’s tradition of recognizing the “inchoate” right of enslaved people to marry. Later courts in the state did. See, e.g., Andrews v. Page 50 Tenn. 653 (1871).

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were only and could only have been realized after emancipation.17 (It is unclear why in these unprecedented circumstances judges refused to recognize retroactive rights without imposing the liabilities.) Rulings also ignored the customary domestic practices that had developed in enslaved communities. For example, African Americans had adopted views that were different from those of their white counterparts on the possibility of ending a marriage. Distinct from the problems associated with forced separation, the custom of enslaved African Americans permitted “divorce” when it was desired and deemed by the community to be in the best interest of husband and wife. This was in stark contrast to American law, which overwhelmingly elevated the sanctity of the marriage over the wishes of the individuals who had entered into it. In this way, formal recognition of a marriage took away an informal right traditionally enjoyed by bondspeople. Whereas many white Americans saw these Black customs as proof of racial inferiority and moral degeneracy, freedpeople made choices about their relationships that accorded with the accepted values of their communities. Consequently, many understood their decisions not to formalize an existing union as an assertion of freedom that was as valid as obtaining a marriage certificate. It may very well have been that Solomon McReynolds believed he had the option, and perhaps even the right, to choose a new wife. The state, however, did not. As the trial court judge John A. Campbell ruled, marriage law, “with all the penalties and protection, is imposed upon and extended to the black race.”18

17

18

James O. Shackelford was appointed to the Tennessee bench by Governor William Brownlow while the state was under Radical control. A practicing lawyer since the late 1830s, Shackelford had moderate political leanings. He affiliated with the Whig Party and then the Republicans. However, his southern roots were undisputed; one of his sons died at the Battle of Gettysburg while serving in the Confederate Army, and he remained “loosely affiliated with the Southern cause.” R. Ben Brown, “The Tennessee Supreme Court during Reconstruction and Redemption,” in A History of the Tennessee Supreme Court, ed. James W. Ely Jr. (Knoxville: The University of Tennessee Press, 2002), 103. Edwards, “‘The Marriage Covenant Is at the Foundation of All Our Rights’: The Politics of Slave Marriages in North Carolina after Emancipation,” 111; Hunter, Bound in Wedlock, 279; Frankel, Freedom’s Women: Black Women and Families in Civil War Era Mississippi, 80, 83, 91; White, Ar’n’t I a Woman? Female Slaves in the Plantation South, 177–80; Edwards, Gendered Strife and Confusion, 19. Solomon McReynolds v. The State 45 Tenn. 18 (1867), Tennessee Library and Archives, MT Box 266.

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Similarly, civil litigation arose because neither legal traditions nor the new statutes related to Black marriage accounted for the domestic conditions people had endured while enslaved. Many freedpeople faced complicated domestic predicaments upon entering freedom. For instance, some had more than one living spouse, which typically resulted from family separations endemic to slavery. During Reconstruction, freedpeople had to make painful decisions about which person they preferred to marry legally. Raising the stakes, some states, including Georgia and South Carolina, required individuals to pick a spouse or face the risk of prosecution for fornication and adultery. Informal Freedmen’s Bureau tribunals sorted out some of the messy social situations by determining who should become the legal wife of a man with more than one. Their rulings were often based on a simple economic calculus: The wife who had the youngest or the most dependent children usually emerged legitimate.19 Demus Johnson of Missouri contended with this kind of domestic dilemma. Amid the upheaval of the Civil War he discovered that his first wife Elizabeth and their children were alive and living in Kentucky – twenty-five years after they had been sold away. During that period, he had married another woman, having “given [Elizabeth] up for dead.”20 As part of what became a contentious divorce proceeding, Demus asked the court to invalidate his second marriage so that he could resume matrimonial relations with the woman he had wed on a plantation in 1849. Demus had not separated from Elizabeth or their children voluntarily, and in the aftermath of emancipation, he demanded the court repair the original union that slavery had torn asunder.21 “Is the poor bond woman to be discarded and her children 19

20 21

Tera W. Hunter, To ’Joy My Freedom: Southern Black Women’s Lives and Labors after the Civil War (Cambridge, MA: Harvard University Press, 1997), 39; Litwack, Been in the Storm So Long, 241–42; White, Ar’n’t I a Woman? Female Slaves in the Plantation South, 178; Frankel, Freedom’s Women: Black Women and Families in Civil War Era Mississippi, 83–84; Gutman, The Black Family in Slavery and Freedom, 1750–1925, 419–25; Leslie A. Schwalm, A Hard Fight for We: Women’s Transition from Slavery to Freedom in South Carolina (Chicago: University of Illinois Press, 1997), 245–46. Johnson v. Johnson 45 Mo. 595 (1870), Missouri State Archives 598/4. Johnson v. Johnson 45 Mo. 595 (1870), Missouri State Archives 598/4, Brief for the Appellant, filed March 25, 1870.

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rendered illegitimate,” he pled, “for the sake of the freewoman who married her husband, knowing at the time he had a wife living?”22 Unmoved, the Missouri Supreme Court used the premise behind the dormant rights theory to substantiate Demus’ second marriage. There had been an apparent “moral assent of the mind” to the union given by Demus and his second wife, Sinai, and that relationship had lasted into freedom.23 The court ruled that “[h]is first marriage in his then state of servitude had no legal existence … and by continuing to live with [Sinai] and acknowledging her as his lawful wife after he had obtained his civil rights, he disaffirmed his first marriage and ratified the second.”24 The ruling overlooked the very real incapacities inherent to the personal relationships of enslaved people and the common practices that developed as a result, including forced separation and serial marriage. It is impossible to know whether Demus regarded Elizabeth as his legitimate wife sincerely, or whether, as Sinai’s brief suggested, he feigned concern for her in an effort to escape alimony payments. Practically, it made no difference. Demus and Elizabeth resumed a matrimonial relationship once freedom made it possible for them to do so, and it was their union that he sought to validate. Judges dismissed this fact because the law on slave marriages was settled: They did not have legal standing. The ruling made it possible for both Sinai and Demus to move on from their relationship, and for Demus and Elizabeth to reunite, but the litigants’ emotional appeals suggest that the lasting legacies of slavery were not so easily resolved.25 The consequences of a marriage were important for more than just husbands and wives. They also mattered for freed children. Lacking legitimacy when born, they had questionable claims to the rights that legitimacy afforded, including the right to inherit. The post-emancipation litigation involving former slave children, then, was often far more

22 23 24 25

Johnson v. Johnson 45 Mo. 595 (1870), Missouri State Archives 598/4, Brief for the Appellant, filed March 25, 1870. Johnson v. Johnson 45 Mo. 595 (1870), 599. Johnson v. Johnson 45 Mo. 595 (1870), 601. Hunter, Bound in Wedlock; Johnson v. Johnson 45 Mo. 595 (1870), 601.

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complex than marriage suits. It regularly required an assessment of biological paternity, evidence of a father’s acceptance of his children, and the determination that a valid marriage between formerly enslaved parents had existed. At the core of the problem, paternity laws conflicted with partus sequitur ventrem, the doctrine introduced in Virginia in 1662, which held that children born to enslaved mothers shared their condition. In contrast to freeborn children, paternity had been irrelevant in these cases. When newly emancipated children became legal subjects, however, they lacked the legal pasts needed to assign or establish legitimacy or paternity. As one Kentucky judge ruled, emancipation “abolished all interest of the owner in his slave, and with its abrogation relieved him from all responsibility to support the freed slave; but this in nowise shifted the responsibility of support on to the shoulders of the legally irresponsible putative father.”26 In one sense, addressing children’s status was part of granting formerly enslaved people the same domestic rights enjoyed by freeborn white Americans. Many of the Black Codes that legalized slave marriages also legitimized the children born to enslaved parents in an attempt to grant them blanket amnesty that erased their former status as a barrier to legitimacy. But as the Kentucky judge suggests, legislators also wanted to prevent freed children from becoming dependents on the state, which faced responsibility for thousands of newly “fatherless” children.27 The Kentucky judge who was wary of “irresponsible” fathers also intimated the paternalistic impulse behind states’ new statutes. As one lawyer’s brief described, they “announced to these people … ‘unless you comply with the requirements of the law, your children shall be deprived of the enjoyment of what property you leave them.’” Those who refused to comply risked burdening their children with “‘the inheritance of disgrace.’” Sending such a message would end the “state of concubinage among African Americans”; “there would be prompt renewing of marriage vows … and great improvement in their moral and social status.” The brief drew on well-articulated fears held

26 27

Lewis v. Commonwealth 66 Ky. 539 (1868), 544. On the specific anxieties associated with emancipating children, see Mary Niall Mitchell, Raising Freedom’s Child: Black Children and Visions of the Future after Slavery (New York: New York University Press, 2010).

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by lawmakers and other members of white society when it urged the state to flex its regulatory muscle.28 New statutes assumed that children lived in traditional, intact households. Yet the effects of slavery and war – particularly death and displacement; nontraditional family structures; or, the most difficult issue, white paternity – often prevented the establishment of normative households and conventional paternal relationships. To circumvent these problems the parents of some children legally married other spouses in order to create lawful households. Other savvy single parents went as far as registering marriages to “dead or missing” partners in order to establish their children’s legitimacy. Relatives or other nonrelated kin may have become the adoptive or de facto guardians of children whose birth parents may have lived – or been sold – elsewhere, or who were no longer living.29 Altogether different problems arose when freed parents fought over custody of their children. Not all enslaved parents had been in committed relationships or even in the same location to raise children together. Upon emancipation, however, both sometimes claimed custody. Records do not indicate, for example, whether Sarah Lacy and Harry Pope ever considered themselves married, but both asserted parental rights over their son Elkin. When Harry apprenticed his son so that he might “learn the vocation of farming,” Sarah protested. While enslaved, Elkin had remained with her after Harry Pope had been sold away, and she insisted this entitled her to full custody of her son.30 28

29

30

Whitesides v. Allen 74 Ky. 23 (1874), Kentucky Court of Appeals #7457, Kentucky Department for Libraries and Archives, Public Records Division; Schwalm, A Hard Fight for We: Women’s Transition from Slavery to Freedom in South Carolina, 239; Cott, Public Vows: A History of Marriage and the Nation, 85–86; Litwack, Been in the Storm So Long, 240; Katherine M. Franke, “Becoming a Citizen: Reconstruction Era Regulation of African American Marriages,” Yale Journal of Law and Humanities 11, no. 2 (1999): 251–309. Hunter, Bound in Wedlock; Hunter, To ’Joy My Freedom: Southern Black Women’s Lives and Labors after the Civil War, 37, 39; Litwack, Been in the Storm So Long, 240; Franke, “Becoming a Citizen: Reconstruction Era Regulation of African American Marriages.” 37. Timmins v. Lacy 30 Tex. 115 (1867), Texas State Library and Archives, Box 2014046, file M-3866. The case file for Timmins v. Lacy is among those recovered by the Texas State Library and Archives. According to the Note for Researchers in the file, it was “part of a large cache of files stolen from the basement of the Court

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Elkin’s legitimacy and Harry’s paternal rights depended on the existence of a marriage between his parents. The Texas Supreme Court found no evidence of one, and therefore proclaimed Elkin Pope illegitimate. “It is a universally recognized principle of the common law, that the father of a bastard has no parental power or authority over such illegitimate offspring.” While the court entertained the application of dormant rights doctrine in this case, the necessary “assent manifested by their continued cohabitation, after acquiring capacity to contract” was never given by either Sarah or Harry. Because they had not sustained a marital union after becoming free, the application of dormant rights was out of the question. The court could not resuscitate Harry Pope’s claim to parental rights, and Elkin could not be retroactively legitimated.31 In this instance, illegitimacy worked in favor of a mother who wished to retain custody of her son. But it worked against his father. Harry Pope might have maintained a parental relationship with Elkin had he not been sold away from his family. The five justices who ruled on this case almost certainly understood the realities of slavery well enough to grasp his antebellum predicament. All had spent considerable time – if not their whole lives – living in the South; all but one served in the Confederate Army; and at least one, Richard Coke, owned a moderately sized plantation and fifteen enslaved persons. But they did not find that existing law provided any remedy for Harry’s situation.32

31 32

building in the 1970’s.” It appears that only part of the transcript was recovered. However, the published report of the case is quite complete, and includes salient passages from the court records. Paschal, Reports of Cases Argued and Decided in the Supreme Court of the State of Texas, 1870, XXX:123. Timmins v. Lacy 30 Tex. 115 (1867), 135, 137. John W. Payne Jr., “Coke, Richard,” Handbook of Texas Online, June 10, 2010, https://tshaonline.org/handbook/online/articles/fco15; H. Allen Anderson, “Donley, Stockton P.,” Handbook of Texas Online, June 12, 2010, https://tshaonline.org/ handbook/online/articles/fdo14; Thomas W. Cutrer, “Willie, Asa Hoxie,” Handbook of Texas Online, August 10, 2017, https://tshaonline.org/handbook/online/­articles/ fwi43; Charles Christopher Jackson, “Smith, George Washington,” Handbook of Texas Online, June 15, 2010, https://tshaonline.org/handbook/online/articles/fsm17; “Moore, George Fleming,” Texas State Historical Association: Handbook of Texas Online, June 15, 2010, https://tshaonline.org/handbook/online/articles/fmo28. George Washington Smith opposed secession, but remained in Texas throughout the Civil War. The rest of the justices served in the Confederate military. Philip Sheridan removed all of them when he became military governor of the state in 1867.

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Historian Michael Grossberg notes that over the antebellum period, the law had consistently expanded the rights of mothers “to claim parental prerogatives,” and that southern judges often preferred rulings that conformed to “a sense of equity” and recognized stable families – in whatever form – to reduce dependency and promote social integration. Justices in Texas likely accepted this liberalized view of bastardy. For example, the court believed that recognition of the parental rights of Sarah Lacy in the Timmins ruling best achieved those ends. Lacy had married after emancipation, and with her new husband “ha[d] a comfortable home, with provisions amply sufficient for the support of themselves and family.”33 Freedpeople’s complicated kin networks further challenged traditional domestic conventions. Fictive kinship, or the formation of familial ties among those not related by blood, occurred frequently in enslaved communities because forced separation often precluded the establishment of traditional nuclear families and because these communal connections helped bondspeople “overcome the hardships” and deprivations of slavery. Similarly, extended networks of blood-related kin often labored collectively to support one another through the challenges of enslavement and early freedom. Upon emancipation, formerly enslaved people in both circumstances drew on past practices as they began a process of self-making that would define their free lives. They sought to constitute families as they wished, and to protect themselves and their loved ones from both internal challenges (from members of their own communities) and external ones (from state laws and the pressures to conform to white social norms). As Stephen Hahn has argued, constructing families “may be regarded as among the first political acts that simultaneously rejected the legacy of enslavement and celebrated the vitals of freedom.”34 33

34

Grossberg, Governing the Hearth, 203–4, 219, 221. By 1850, Texas had shown its commitment to such a view. Though Moore’s 1867 opinion fails to cite it, the state’s Supreme Court had previously ruled in Hartwell v. Jackson that “the rights of the children do not depend on the legality or the illegality of the marriage of the parents.” Hartwell v. Jackson 7 Tex. 576 (1850). Paschal and Texas Supreme Court, Reports of Cases Argued and Decided in the Supreme Court of the State of Texas, during the Tyler and Austin Sessions, 1867, and Part of the Galveston Session, 1868, 124. Timmins v. Lacy 30 Tex. 115 (1867). Patterson, Slavery and Social Death, 62–65; Penningroth, The Claims of Kinfolk, 85–89; Hunter, To ’Joy My Freedom: Southern Black Women’s Lives and Labors after the Civil War, 37–38.

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Conflicting ideas about who counted as family could thwart this celebration and frustrate abolition. In Whitesides v. Allen, the case that introduced this chapter, Jane Allen petitioned the court on behalf of her children, after Daniel Allen’s mother and half-siblings claimed her husband’s property as their own. The relatives claimed that because the parents had never lawfully wed, Jane’s children were illegitimate and had “no right to inherit from a reputed father.” Daniel’s kin used their own familial relationship instead to bolster their claim. They believed that their continued “possession and occupation” of it “was their right,” based on the belief that their family, as they conceived of and understood it, was the only legitimate one.35 Notions of property ownership and family were connected in American communities long before emancipation – perhaps, as Dylan Penningroth suggests, even co-constructed. Despite the fact that enslaved people could not legally own property, they did. This ownership, Penningroth writes, “[P]ut an unmistakable dynamism into their social ties, stretching and bending the lines of blood and marriage.” Within this context, enslaved and free Black Americans bequeathed and inherited property according to customary rules based on personal circumstances and concepts of belonging. Bequests, not blood or legal convention, defined relationships as familial. Some children inherited from parents (usually from fathers, but sometimes from mothers), some children inherited from more distant relatives or unrelated kin, while other families shared inheritance collectively. Emancipation prompted judges to consider the “unwritten rules” developed during slavery when beliefs about both family and property held by Black Americans clashed with American legal traditions.36 There was a demonstrable judicial intent to make normative families legitimate. Judges regularly looked for evidence that substantiated marriages, paternity, and lasting familial connections in order to find traditional nuclear families within the otherwise unconventional domestic networks presented in court. The Kentucky Court of Appeals did so in Whitesides by relying on the retroactive statute 35 36

Whitesides v. Allen 74 Ky. 23 (1874), Kentucky Court of Appeals #7457, Kentucky Department for Libraries and Archives, Public Records Division. Penningroth, The Claims of Kinfolk, 6, 9, 89–91.

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enacted by the state’s legislature, which stipulated that “the issue of” established “customary marriages of negroes shall be held legitimate.” The law made it clear, wrote Judge Pryor in 1874, “that the legislature never intended to declare the children of such parents living at the time of the passage of the act bastards.” While Jane and Daniel Allen may have been guilty of violating the statute requiring them to marry formally, the law did not punish their children for the infraction because they had otherwise demonstrated their familial ties. While Kentucky would not necessarily apply dormant rights to the marriages of former slaves, it would grant retroactive legitimacy to the children born of those unions. It could then apply conventional rules of inheritance to the case. Daniel and Jane Allen’s children were the lucky beneficiaries.37 The court said nothing about the claims of Daniel’s relatives, except that their interpretation of the statute “could not have been the legislative intent” because contrary to accepted principles of domestic law doctrine, it would have denied children of their primary right to inherit from their father. In this, Daniel Allen’s mother and half-siblings came face to face with the limits of abolition. While records do not indicate Daniel’s intentions for his property, they do reveal that his extended family members had paid for the “improvements” to the property – including the cost of building the house on it – and that all parties to the suit lived there together until Daniel’s death. They appeared to consider it “joint” property that reflected the financial interests and future aspirations of many people. It was, in other words, heirs property – “a form of ownership in which descendants inherit an interest, like holding stock in a company,” but do not hold the title to the land outright.38 Many saw shared property ownership as protection against dispossession, since no one person could sell the land. But it left some, like the Whitesides, in a precarious legal position. American law was not designed to accommodate the complex familial relationships of enslaved or freed people, and post-emancipation judges lacked the

37 38

Whitesides v. Allen 74 Ky. 23 (1874), 24. Lizzie Presser, “Kicked Off the Land: Why so Many Black Families Are Losing Their Property,” The New Yorker, July 15, 2019, https://features.propublica.org/ black-land-loss/heirs-property-rights-why-black-families-lose-land-south/.

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doctrinal or statutory means to account for the influence of customary practices on Black lives. Instead, they recognized only traditional forms of property ownership and inheritance. To the Kentucky court, for instance, Daniel Allen owned the property in question because he had transacted its purchase. Without leaving a will stipulating anything to the contrary, and despite his family members’ belief in a shared claim, this entitled his children to the primary right of inheritance upon his death.39 Most judges, whether they stuck to the statutes or invoked retroactive rights, attempted to find solutions to freedpeople’s domestic woes. But only a few articulated why finding solutions to these problems mattered for abolition. Abolitionist judge Thomas Peters offered one of the clearest expositions on the concept of dormant rights and one of the strongest endorsements for its application during Reconstruction. In Stikes v. Swanson, the Alabama Supreme Court considered whether or not children born to slaves could be considered lawful inheritors once they became free persons, and whether or not their legitimacy depended on the validity of their parents’ marriages. The sons of Cassius Swanson (one born to his first wife who died, two born to his second wife) sought to inherit the $556.18 from their father’s estate that remained for distribution. They could do so only if the court deemed them legal heirs – the offspring of valid marriages. Peters ruled, “The cohabitation of Cassius Swanson with each of his two wives was undoubtedly a quasi marriage. He did all that he could to make it legal. The impediment which prevented its legality was the slavery of the parties.” Though slavery had prevented formal legal recognition, the court believed that the union still possessed the crucial elements of a lawful marriage, including the intent to “make it legal.” That intent proved that Cassius’ marriages “would have been legal at common law” and should therefore be understood as “legal natural marriages, jure divino,” by divine law.40 Natural law – God’s law – carried greater weight than any law of man, and emancipation, Peters ruled, had “restored the former slave to his natural rights.” In true abolitionist form, Peters condemned slavery fully by invoking the ever-present natural rights – including 39 40

Penningroth, The Claims of Kinfolk, 20. Stikes v. Swanson 44 Ala. 633 (1870), 635–36.

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marriage – that slavery had artificially and immorally suppressed. “Justice,” Peters wrote, “is the law of laws,” and Cassius’ formerly enslaved children, Martin, Abraham, and William, “should not be made to suffer for a wrong committed, against their mothers, their father, and themselves. This would be adding wrong to wrong, without any necessity to vindicate it, except perhaps, an old prejudice, the bases of which is now swept away forever.” The Alabama Supreme Court demanded that badges of previous servitude be eradicated fully. Citing Girod, the ruling ensured that Cassius’ sons emerged victorious. The court “restored their heritable blood” so they would not have to trade the disabilities of slavery for those of illegitimacy.41 James Taliaferro, perhaps unsurprisingly, agreed with this approach. To achieve abolition, rulings in cases such as these had to accommodate the needs of people whose domestic relationships did not or could not conform to traditional models. He believed emancipation had ensured that “the disabilities” that had defined slavery had “ceased,” and he insisted on reviving “dormant rights” to do the work of fully resolving them. It was the best way to eliminate the incapacities of slavery for all freedpeople. Otherwise, some would suffer lingering effects of slavery because of unlucky circumstances, while their peers were unburdened by their pasts. For the end of slavery to be total, Taliaferro believed, this inequality would have to be eradicated. Nevertheless, and despite the Girod precedent and Taliaferro’s insistence, the Louisiana Supreme Court declined to apply the dormant

41

Stikes v. Swanson 44 Ala. 633 (1870), 637. Born in Tennessee, Thomas M. Peters spent his entire adult life in Alabama. He attended the University of Alabama, owned and edited a newspaper in Moulton, and served in both houses of the state legislature. He affiliated with the Whig Party, and then with the Republican Party. He strongly opposed secession, and remained a committed Unionist during the Civil War. During Reconstruction, he was a delegate to the state’s constitutional convention in 1867. The Republican Party nominated him to the bench of the state’s Supreme Court in 1868, and he became its chief justice in 1873. Alabama Department of Archives and History, “Alabama’s Supreme Court Chief Justices: Thomas M. Peters.” Stikes was not the first Alabama case in which the court considered the theory of dormant rights. During the antebellum period, the state’s Supreme Court left open the possibility of applying the concept under certain circumstances. See Malinda and Sarah v. Gardner 24 Ala. 719 (1854). It was the only state to take this position during the antebellum era. Davis, “The Private Law of Race and Sex: An Antebellum Perspective”; Goring, “The History of Slave Marriage in the United States.”

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rights doctrine in the only case it heard on the matter. It concerned the right of two freedpeople to inherit from a relative, which, once again, depended on the establishment of their legitimate familial ties. When examining the marriage of two brothers’ parents, judges discovered an insurmountable hurdle. Their mother had died prior to emancipation, and thus before her “dormant rights” could be activated, or such a union could be recognized by the state. Unfortunately for the two men, “the subsequent emancipation, as it could not resuscitate the marriage, could produce none of the civil fruits which are the results of a civil marriage.” They had no legitimate right to inherit. This was precisely the outcome Taliaferro denounced: Some litigants were denied rights because of circumstances they could not control, while others, by luck alone, would not share the same fate.42 The possibility of using dormant rights remained open to state court judges throughout much of Reconstruction. However, the 1875 U.S. Supreme Court ruling Hall v. United States appeared to nullify it once and for all. The case had nothing to do with the marriage or legitimacy of a freedperson. Instead, it involved a formerly enslaved man who sought outstanding compensation for labor he contracted to a plantation owner before emancipation. Although there was no need to comment beyond the matter at hand, an aside in Justice Noah Swayne’s opinion changed the way the domestic relations of former slaves could be interpreted. Using Thomas Cobb’s An Inquiry into the Law of Negro Slavery as a guide, the opinion specified that matters of contract involving freedpeople, “not excepting the contract of marriage,” had to be determined “as if slavery had not been abolished  … and the laws referred to were still in force there.” Customary slave marriages, the high court declared, remained without legal sanction unless and until they were validated by the state.43 42

43

Auguste and Joseph Pierre v. Auguste Fontenette et als. 25 La. Ann. 617 (1873), 618. In effect, the majority ruling put limits on the Girod ruling; it might have been applied in another case with more fortunate circumstances in which both parents survived into freedom. However, no such case reached the state’s supreme court. Hall v. United States 92 U.S. 27 (1875);Paul Finkelman, “Introduction: Thomas R.R. Cobb and the Law of Negro Slavery,” in An Inquiry into the Law of Negro Slavery in the United States of America (Athens: University of Georgia Press, 1999).

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The ruling in this Mississippi case appears as a sort of deus ex machina, disconnected as it was from marriage, legitimacy, or inheritance. But it did not come out of nowhere: It aligned with the Court’s previous decisions on the enforcement of antebellum contracts related to slavery in postbellum courts. The Court had ruled that because southern states had not legally seceded, any agreement made in good faith remained actionable, even after slavery ended. Moreover, the majority stressed, the laws in effect at the time of a contract’s execution – including the marriage contract – remained an inherent part of the agreement. By these standards, granting retroactive rights attempted the impossible: to attach rights to someone incapable of bearing them at the time of the agreement’s execution. Perhaps more important, the Hall decision signaled an important step in the evolving judicial understanding of lawful marriage. Specifically, it indicated the growing importance of the state in determining familial legitimacy, and suggested the role played by post-emancipation slavery cases in the turn toward this standard.44 Whatever the Supreme Court’s rationale for including the aside about marriage in their ruling, the justices understood the past in very specific terms that precluded granting retroactive rights. While the Court willingly looked to the past, just as state court judges had done, it would not retroactively grant rights that had not existed therein. Instead, they reinforced the illegality of all slave unions. “In order to see the proposition in its true light, it is necessary, as it were, to roll back the tide of time, and to imagine ourselves in the presence of the circumstances by which the parties were surrounded when and where the contract is said to have been made.”45 In a definitive dismissal of dormant rights, Swayne ruled, “The destruction of the institution can have no effect on the prior rights here in question.”

44

45

Hall, the petitioner, claimed he had been born to a free woman and was wrongfully enslaved. Therefore, he retained his right to contract. Without evidence of a free birth, the court treated him as a former slave. “His color was presumptive proof of bondage.” Texas v. White 74 U.S. 700 (1868); White v. Hart 80 U.S. 646 (1872); Osborn v. Nicholson 80 U.S. 654 (1872); Boyce v. Tabb 85 U.S. 546 (1873);s Bardaglio, Reconstructing the Household, 1995; Grossberg, Governing the Hearth. Hall v. United States 92 U.S. 27 (1875), 31.

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Emancipation would not wash away the sins of slavery, and some state courts had to overturn previous rulings as a consequence.46 Still, not even the U.S. Supreme Court fully settled the matter of retroactive domestic rights. For one, the Hall ruling said nothing about the statutes or rulings that permitted formerly enslaved children to claim retrospective legitimacy. The court did not specify whether or not the contractual defect that prevented their parents from lawfully marrying extended to the offspring of the union. In addition, at least one state seems to have ignored the Hall ruling altogether. In Williams v. State, the Supreme Court of Georgia ruled that the unions of formerly enslaved persons were “made just as effectually the contract of marriage by them as if they had been always free and had been legally married.”47 The 1881 ruling reiterated opinions decided during the Reconstruction period, seemingly without concern for the Supreme Court’s precedent. Even after emancipation, marriages between freedpeople often continued to exist in legal purgatory, their emancipated children in a legal limbo, and unconventional networks of kin in an ambiguous state that challenged the established rules of inheritance. This, too, was the world that slavery had made. When Black litigants initiated lawsuits to contest these matters, they challenged judges to unmake that world, and take a significant step toward abolition. In these cases, judges largely sought the same outcome, but it became clear that the lasting disabilities of slavery had to be removed before some rights could be granted and enjoyed. Slavery, by this rendition, was defined as little more than a bundle of disabilities that could be resolved bit by bit through existing legal norms. In practice, then, judges who ruled on cases related to the Black family not only reimagined pasts for freedpeople but also reimagined slavery itself.

46

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The Alabama Supreme Court relied on the Hall ruling to do so in Cantelou v. Doe ex dem. Hood 56 Ala. 519 (1876); however, a change in the state’s political leadership likely also played a role. Only after Redeemers came to power was the court willing to overturn the two cases that affirmed retroactive rights. Grossberg, Governing the Hearth, 134. Williams v. State 67 Ga. 260 (1881), 262.

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Ultimately, the process cut both ways. It made it seemingly possible to treat former slaves as citizens equally affected and bound by the law’s duties and obligations as white Americans, which was precisely the goal of federal civil rights legislation enacted during Reconstruction. Indeed, some state laws were explicitly crafted to make the marriages of freedpeople legally equal to those of white citizens. Yet this approach regularly neglected the consequences of enslavement on the shape of the Black family and on the customary domestic ideals that Black Americans had developed over generations. It ignored the reality that former slaves had been treated as property both by the law and by convention, and instead used imagined pasts to resolve otherwise intractable problems facing courts in the present. As the outcomes of these cases have shown, former slaves were held to legal standards – of marriage, paternity, or legitimacy – that had not applied to them when they entered into the relationships. Only later did they become the bases for post-emancipation litigation. Would Solomon McReynolds have married Eliza Elder if he had known of these legal liabilities? Would Daniel Allen have left a will stipulating his intent? Judges were not just determining winners and losers in these cases; they were also applying retroactive rights that created ex post facto legal obligations and set unattainable legal requirements for a particular subset of litigants. For some freedpeople, one set of disabilities was replaced by another.48 Even with these consequences, it was quite likely that acknowledging retroactive rights held out the greatest possibility for defending the rights of the largest number of freedpeople. In many ways, this process was a compromise between two unappealing extremes. At the most radical, there could have been a total accommodation to the private relationships of formerly enslaved persons. This would have allowed for the construction of families that comported with prior practices and longstanding custom. It is nearly impossible, however, to imagine any scenario in which plural marriage, customary

48

Several statutes, including those adopted in Virginia and South Carolina, specifically stated that freedpeople were “entitled to the rights and privileges, and subject to the duties and obligations of that relation in like manner as if they had been duly married by law.” Virginia Code, Section 2, Chapter 18, Act of February 27, 1866. Goring, “The History of Slave Marriage in the United States.”

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property relationships, or community-sanctioned divorce would have been countenanced in any part of the nation. Nor is it realistic to believe that granting amnesty to freedpeople would have resolved every issue. It would have done little, for example, to alleviate the custody dispute between Harry Pope and Sarah Lacy. At the other end of the spectrum, all prior domestic bonds of freedpeople could have been deemed illegitimate, and only those formally created after emancipation accorded legal weight. This is more plausible than the first scenario; states that did not recognize retroactive rights accepted as much, and the U.S. Supreme Court ultimately adopted this premise in Hall. This option offered the greatest clarity: Relationships from the past were illegitimate, but those solemnized after emancipation would be recognized as lawful. But it also made it much more difficult to realize abolition – to make the citizenship of former bondspeople equivalent to that of freeborn Americans who had not been denied a legal history. The middle ground on which many lawmakers and judges staked their claim required implementing methods for determining which freedpeople would remain burdened by bondage, and which would benefit fully from their enfranchisement. From the very beginning of Reconstruction until the Hall ruling in 1875, judges throughout much of the South, even those not outwardly committed to abolition, ruled in ways that took seriously the new personhood as well as the past intentions of freedpeople. In so doing, they affirmed that deconstructing slavery required an examination of and reconciliation with the past. Many, including the sons of Cassius Swanson and the children of Daniel Allen, benefitted as a result. Still, judicial acceptance of retroactive rights exposes something important about the limits of abolition. Judges who used dormant rights saw it as a viable tool for solving their postbellum predicament, but, critically, without disrupting preexisting doctrine. To be sure, some judges tried harder than others to ameliorate the legal limbo in which some former slaves found themselves, but few were willing to throw out antebellum precedents in the postbellum world. Invoking retroactive rights, even though it took some doctrinal cajoling, allowed them to continue to practice law as they had come to know and understand it, and to afford some former slaves the unburdened freedom and family life they had long desired.

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Black litigants who were unable to conform to preestablished rules and expectations paid the price of this approach. As a result, some have experienced lasting, and quantifiable harm. For example, many of the free Black families who, against all odds, managed to acquire property have since lost their claims to it over the generations from emancipation to the present. In part, this has resulted from the kinds of kin relationships evidenced in Whitesides, where many claim a stake in the property’s ownership. It became heirs’ property, whereby descendants inherit an interest in but not title to the land. Black Americans’ resistance to leaving wills during the Jim Crow era, however, has jeopardized these arrangements. Many have intentionally died intestate because they either did not trust the courts to uphold their property rights or did not have access to the legal system. They assumed, incorrectly, that without a will ownership of land would stay within established family networks. Instead, over the years the claim to the property has splintered among many descendants, leaving them all vulnerable to dispossession. Developers, investors, and state officials have regularly exploited these tenuous property claims. Their actions, including predatory taxation and the filing of partitions – all legal – have forced Black families from their ancestral homes by compelling sales at prices well below market value.49 During the twentieth century alone, a staggering 90 percent of Black property-owning families lost their claims this way, exacerbating the long-standing wealth gap between Black and white Americans. Economists estimate that over time, these losses have cost Black families hundreds of billions of dollars of accrued wealth. It is no wonder, then, that wealth accumulated in white households “was 13 times the median wealth of black households in 2013,” up from eight times just three years earlier.50 Advocacy work, along with recent public attention to the plight of dispossessed Black Americans, has led to promising reform. Since 2011, some states have adopted the Uniform Partition of Heirs Property Act to prevent predatory actions against

49 50

Presser, “Kicked Off the Land: Why so Many Black Families Are Losing Their Property.” Rakesh Kochhar and Richard Fry, “Wealth Inequality Has Widened along Racial, Ethnic Lines since End of Great Recession,” Pew Research Center, December 12, 2014, www.pewresearch.org/fact-tank/2014/12/12/racial-wealth-gaps-great-recession/.

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Black and other vulnerable land owners. But it has come much too late for the myriad families who have already lost the rights to their ancestral land.51 The circumstances that made this mass eviction possible did not emerge as a consequence of Jim Crow alone. Instead, they developed during Reconstruction, when the consequences of slavery on the Black family confounded state court judges. When we approach abolition, as some judges ultimately did, as an action that required the subtraction of disabilities as well as the bestowal of rights, we must confront the diminished prospect for fully eradicating slavery from American law or life. Invoking dormant rights, for instance, helped many freedpeople establish legitimacy, protect their children, validate families, and even secure property. But that was not enough. Even if positive law and judicial rulings were able to deconstruct the peculiar institution, brick by brick, judges and freedpeople alike would still be left with troubling legacies for which there was no remedy. No performance of legal acrobatics could alter, undo, or fully resolve the ways that slavery continued to influence the lives of many freedpeople. For them and for their descendants, abolition remains incomplete.

51

Presser, “Kicked Off the Land: Why so Many Black Families Are Losing Their ­Property”; Michelle Chen, “Black Lands Matter: The Movement to Transform Heirs’ Property Laws,” The Nation, September 25, 2019, www.thenation.com/ article/archive/heirs-property-reform/; Thomas W. Mitchell, “From Reconstruction to Deconstruction: Undermining Black Landownership, Political Independence, and Community through Partition Sales of Tenancies in Common,” Northwestern University Law Review 95, no. 2 (2001): 505–80; Thomas W. Mitchell, “Reforming Property Law to Address Devastating Land Loss,” Alabama Law Review 66, no. 1 (2014): 1–61; Greg Barlow, “Defying Great Odds: Mitigating Property Loss through Historic Partition Law Reform in the U.S.,” Law & Society Association, News & Press: LSA Stories (blog), August 26, 2020, https://lawandsociety.site-ym .com/news/523353/Defying-Great-Odds--Mitigating-Property-Loss-ThroughHistoric-Partition-Law-Reform-in-the-U.S.htm; “Partition of Heirs Property Act,” Uniform Law Commission, 2010, www.uniformlaws.org/committees/ community-home?CommunityKey=50724584-e808-4255-bc5d-8ea4e588371d.

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7 The Grave Question

When white Louisiana planter Ephraim C. Hart died in 1869, “a large succession opened.”1 He had managed to amass a sizeable estate, which included the home in Shreveport that he shared with his family. His wife, freedwoman Cornelia, expected the entirety of that wealth to pass to their children, Imogene, Sandy, Archie, and young Cornelia. However, “persons setting themselves up as the nearest relatives of” Ephraim Hart contested the succession. They asserted their own claim to the estate, “as collateral heirs.” Just as Jane Allen had done, Cornelia Hart went to court to defend her children’s right to inherit from their father against claims from extended family members. The complication in Hart v. Administrators, however, was not just that Cornelia had once been enslaved. Rather, she claimed that she had married her enslaver and had born his legitimate children. She asserted their right to inherit the estate of which they had once been a part. To validate her relationship and support her children’s claim to their father’s estate, Cornelia Hart produced a parade of witnesses who corroborated her relationship with Ephraim. By offering public verification of her household, Cornelia Hart forced the court, and her husband’s relatives, to confront the possibility that a white man had

1

Hart v. Administrators 26 La. Ann. 90 (1874), 90.

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chosen to build a legal family with a Black woman he once held in bondage.2 Cornelia Hart won her case.3 This chapter explores cases that raised what Tennessee judge John L. T. Sneed called “the grave question:” the legality of unions between racially heterodox people.4 Some of these relationships had begun after emancipation; others were decades old. Antebellum sexual liaisons between white men and enslaved women – and occasionally Black men and white women – had been well known, even if they were not always acknowledged.5 As Joshua Rothman and Martha Hodes have shown, such couples sometimes lived openly with community “toleration,” but never approval.6 Once freedpeople could make legal 2

3 4

5 6

Often, if and when interracial relationships were publicly revealed, the Black woman was blamed for the social misconduct. As the trope went, her “savage sexuality” enticed the otherwise proper white man into committing the misdeed. It was always the “jezebel,” with her promiscuous nature, who played a role in these interracial marriage cases. Jennifer L. Morgan, Laboring Women: Reproduction and Gender in New World Slavery (Philadelphia: University of Pennsylvania Press, 2004); White, Ar’n’t I a Woman? Female Slaves in the Plantation South. Census records indicate that they continued living in the family’s Shreveport home for generations to come. Lonas v. State 50 Tenn. 287 (1871), 300. In all the cases, judges, lawyers, and litigants assume the existence of racial categories, even though during Reconstruction, those categories remained in flux. I adopt Peggy Pascoe’s use of “white” and “Black” as reflecting the sources themselves. Cornelia Hart was Black because she was recognized as a former slave, and the case file identifies her as a woman of color, despite her admittedly light complexion. Her husband is white because that is how the case material labels him. Following the lead of Martha Hodes, I use “miscegenation” only in context; the word itself is derogatory, and was invented as part of a political attack against Abraham Lincoln during the presidential campaign of 1864. I also use “interracial” in context-specific circumstances. I have chosen to use “mixed race” or “racially heterodox” to identify a union between persons who have been identified and recognized in primary sources as being of different races. For many, even at the time, the designations were reflective of the society in which they lived, but not necessarily of the families they had created for themselves. This is perhaps most clear in Hart v. Administrators. Martha Hodes, White Women, Black Men: Illicit Sex in the Nineteenth-Century South (New Haven, CT: Yale University Press, 1997), 8–9; Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America, 12–14. Thomas Foster, “The Sexual Abuse of Black Men under American Slavery,” Journal of the History of Sexuality 20, no. 3 (September 2011): 445–64. Joshua D. Rothman, Notorious in the Neighborhood: Sex and Families across the Color Line in Virginia, 1787–1861 (Chapel Hill: University of North Carolina Press, 2003); Hodes, White Women, Black Men: Illicit Sex in the Nineteenth-Century South; Emily Clark, The Strange History of the American Quadroon: Free Women of Color in the Revolutionary Atlantic World (Chapel Hill: University of North

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claims against white people, however, they forced a collision between conventional and unconventional notions of race, sex, and familial legitimacy. Though scholars debate whether or not enslaved women could consent to such relationships at all, court records present a far messier picture wherein substantiating a marriage between willing partners was essential to victory.7 During Reconstruction, however,

7

Carolina Press, 2013); Joan M. Martin, “Plaçage and the Louisiana Gens de Couleur Libre,” in Creole: The History and Legacy of Louisiana’s Free People of Color, ed. Sybil Kein (Baton Rouge: Louisiana State University Press, 2000). Borrowing from Martha Hodes, “toleration” does not express acceptance or a “liberal spirit,” but rather “forbearance for that which is not approved.” Hodes, White Women, Black Men: Illicit Sex in the Nineteenth-Century South, 3. Because slaves, as property, were by definition incapable of giving consent, some argue that sexual relationships between enslaved and enslaver always amounted to rape. Saidiya Hartman elucidates the central problem: “If the definition of the crime of rape relies upon the capacity to give consent or exercise will, then how does one make legible the sexual violation of the enslaved when that which would constitute evidence of intentionality and thus evidence of the crime – the state of consent or willingness of the assailed – opens up a Pandora’s box in which the subject formation and object constitution of the enslaved female are no less ponderous than the crime itself or when the legal definition of the enslaved negates the very idea of ‘reasonable resistance?’” For Hartman, the “confusion between consent and coercion, feeling and submission, intimacy and domination, and violence and reciprocity constitutes … the discourse of seduction,” and it can make it appear as though the enslaved women were always willing, when her “consent” was no more than a response to the constant threat of violence. Other scholars, including Brenda Stevenson note, “Despite the abundance of evidence supporting the notion that large numbers of women resisted in any and every way they could, not all of those relationships were physically coerced, just as not all ‘marriages’ between bonded men and women were voluntary.” This position allows the possibility that some interracial relationships had more complex and complicated meanings than some assessments allow, and requires that we take seriously that an enslaved woman might assent to or even pursue a sexual relationship with an enslaver or other white man, for whatever reason (as bondswoman Harriet Jacobs recounted in her narrative). In the cases recounted here, there is little evidence to indicate how the relationships in question began, or what the motivations of either party were in sustaining them, especially after emancipation. Once free, the women were no longer “extension[s] or embodiment[s] of the owners’ right to property,” yet many remained with the white men who had owned them. Nevertheless, testimony and other court records do offer circumstantial evidence that, at the very least, demonstrates the range of complex relationships that Black women had with their enslavers. This appears to corroborate Brenda Stevenson’s findings about antebellum concubinage. Nevertheless, the women’s words were mediated through court proceedings and often reflected the very specific goals of using proof of marriage to substantiate claims to inheritance, usually for their children. Hartman, Scenes of Subjection: Terror, Slavery, and Self-Making in Nineteenth-Century America, 80–82. Brenda E. Stevenson, “What’s Love Got to Do with It? Concubinage and Enslaved Women and Girls in the Antebellum South,” The Journal of African American History 98, no. 1 (Winter 2013): 117.

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such relationships simply provoked outrage. Interracial sex within the institutional confines of slavery was one thing; legal sanction of interracial marriage was quite another.8 Post-emancipation litigation of the relationships between Black and white people exposed the potential power of germinal civil rights doctrine to remake racial categories and upend traditional social stratification. If freedom and equal citizenship granted the right to contract marriage without regard to race, then new or preexisting bans against interracial marriage would fail legal challenges.9 Black “concubines,” mixed-race children, and other members of the extended plantation family could use claims of legitimate marriage to acquire the estates of former masters and the esteem of whiteness that the lawful possession of those estates helped engender. Legal scholar Adrienne Davis corroborates that established antebellum rules of “inheritable blood,” “which had maintained the hierarchies of slavery” by ensuring wealth could be passed only to legitimate white heirs, “now threatened the integrity of property titles in the southern states.”10 By bringing suits, Black women and their mixed-race children threatened to acquire the legal advantages of legitimacy that marriage bestowed. In the process, they would taint the purity of race and devalue the power of whiteness. In civil suits such as Cornelia Hart’s, judges were sometimes willing to uphold freedpeople’s right to construct families of their own choosing. In some cases, judges even celebrated the relationships. For example, the ruling in Dickerson v. Brown (1873) validated the matrimony of a Mississippi slaveowner and his formerly enslaved woman because the couple were “married in heart and by the laws of nature and of love,” and the new state constitution had declared all such unions, and the children born to them, legitimate.11 8

Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America, 1, 28. 9 Such a possibility was well understood, especially after the passage of the Civil Rights Act of 1866. President Andrew Johnson invoked miscegenation as the reason for vetoing the law. See especially, Grossberg, Governing the Hearth, 136; Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America, 20–28; Ann S. Holder, “What’s Sex Got to Do with It? Race, Power, Citizenship, and ‘Intermediate Identities’ in the Post-Emancipation United States,” The Journal of African American History 93, no. 2 (2008): 156. 10 Davis, “The Private Law of Race and Sex: An Antebellum Perspective,” 271. 11 Dickerson v. Brown 49 Miss. 357 (1873), 368.

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Ultimate success, however, depended on litigants’ ability to substantiate a marriage and establish the intent of the white men with whom Black women had had a relationship (the gender combination was always white men and Black women in these suits). For abolitionists, the Fourteenth Amendment mandated this outcome. But even for other, nonabolitionist jurists, finding in favor of the mixed-race family in civil suits posed little threat to established social norms, just so long as criminal statutes prevented the post-emancipation legalization of miscegenation. With these criminal statutes in place, no more racially heterodox families could form. Outcomes in civil suits, therefore, cannot be understood in isolation from antimiscegenation efforts in criminal court. Opinions (and arguments) in criminal miscegenation suits reveal the starkest rejection of abolition found in all post-emancipation litigation related to slavery. But this rejection was enmeshed in a much broader resistance to the extension of rights to Black Americans, as embodied in Black Codes. Southern state legislators enacted Black Codes that restricted Black movement, regulated Black behavior, and maintained a rigid social hierarchy that kept freedpeople at the bottom – as close to slavery as possible.12 Any right granted to the freedperson, the argument went, would become the slippery slope that would lead to unfettered racial mixing and the degeneration of the nation and the white race who rightly controlled it. As one historian notes, “the spectre of miscegenation was … a bugaboo which the southerners in Congress and their northern sympathizers overworked at every opportunity. It became the reductio ad absurdum of the congressional debates.”13 For those looking for the means to restrict all rights, the suits over the issue provided the perfect testing ground in the search for viable legal strategies that would preserve bans on interracial marriage and procreation, and ultimately defeat abolition, because they most blatantly exposed the threat to conventional racial sensibility and propriety. More broadly, however, the methods developed in this litigation were

12 13

Randall Kennedy, Interracial Intimacies: Sex, Marriage, Identity, and Adoption (New York: Pantheon Books, 2003), 22. Alfred Avins, “Anti-Miscegenation Laws and the Fourteenth Amendment: The Original Intent,” Virginia Law Review 52, no. 7 (1966): 5; Kennedy, Interracial Intimacies: Sex, Marriage, Identity, and Adoption, 22.

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ultimately used not only to ban racially heterodox marriages but also to secure what would become Jim Crow’s legal regime of racial segregation and inequality. So-called miscegenation suits have received significant attention from historians and legal scholars.14 They have studied how intimate relationships between people identified as racially different from each other formed, explored how the law defined those relationships, used them to trace the evolution of marriage as a legal category (especially in terms of its relationship to the state), and observed in them a basis for white supremacy.15 As debates over same-sex marriage intensified in the twenty-first century, analysis of miscegenation suits from the nineteenth and twentieth centuries took on new importance as relevant examples of state-sanctioned domestic inequality and, ultimately, as important precedents for the concept of marriage as a fundamental right.16 Rather than categorizing such suits as a prehistory of Loving v. Virginia (1967), the case that overturned antimiscegenation laws, or even Obergefell v. Hodges (2015), which affirmed marriage equality for same-sex couples, this chapter asks readers to consider miscegenation suits decided in the 1860s and 1870s solely in the context of Reconstruction-era efforts to achieve abolition.17 Observing the suits from this perspective reveals an important moment of flux in the 14

15

16

17

Peggy Pascoe notes that the word “miscegenation” was coined in 1864 by “two New York politicos” who wanted to replace “amalgamation” with a word that more accurately described the biological mixing of the races. Fears over racial mixing were heightened by the prospect of emancipation, which opened up the possibility for interracial marriage sanctioned by law. Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America; Peter Wallenstein, Tell the Court I Love My Wife (New York: Palgrave MacMillan, 2002); Kennedy, Interracial Intimacies: Sex, Marriage, Identity, and Adoption; Rothman, Notorious in the Neighborhood: Sex and Families across the Color Line in Virginia, 1787–1861; Peter W. Bardaglio, Reconstructing the Household (Chapel Hill: University of North Carolina Press, 1995); Hodes, White Women, Black Men: Illicit Sex in the Nineteenth-Century South. Lynn D. Wardle, “From Slavery to Same-Sex Marriage: Comity versus Public Policy in Inter-Jurisdictional Recognition of Controversial Domestic Relations,” BYU Law Review 2008, no. 6 (December 2008): 1855–1926; Andrew Koppelman, “Interstate Recognition of Same-Sex Marriages and Civil Unions: A Handbook for Judges,” University of Pennsylvania Law Review 153, no. 9 (2005): 2143–94; Goring, “The History of Slave Marriage in the United States.” Loving v. Virginia 388 U.S. 1 (1967); Obergefell v. Hodges 135 S. Ct. 1039 (2015).

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history of American abolition. For one, they underscore the possibilities of equal citizenship. If Reconstruction’s new legal regime allowed for the creation of interracial families, then statutes designed to restrict Black domestic rights would be nullified. For another, the suits reveal a moment with still-fluid ideas about the meaning of race. The discipline and doctrine of slavery had not yet been replaced by the draconian one-drop rule, which held that any amount of African ancestry defined a person as nonwhite. In this interregnum, we find freedpeople drawing on equal citizenship to vanquish racially specific restrictions on the right to form their families, doing battle with both their states and individual white Americans who sought to preserve the primary privileges of the antebellum slave society, namely, wealth accumulation and social standing. And we find many judges shedding any pretense of impartiality, motivated instead solely by personal prejudices. In no other type of case did judges express their racist beliefs with more abandon than in appeals of criminal suits related to interracial sex and marriage – especially those involving white women and Black men.18 The contrast between civil and criminal cases that raised questions over racial identity, and criminal prosecutions of mixed-race couples, could not have been more stark. Indeed, the more extreme response to mixed-race couples exposes both the tremendous potential of miscegenation cases either to advance or to undermine abolitionism in critical, and lasting, ways. In the end, judges operated in lockstep with state attorneys general to safeguard antimiscegenation laws and, by extension, white supremacy. They devised and accepted new legal rationales for deflecting any notion that antimiscegenation laws violated the Fourteenth Amendment. In so doing, they effectively prohibited interracial sex and marriage, stanching the flow of white wealth, privilege, and ultimately blood into mixed-race households. They also doomed abolition for good. 18

While relationships between Black men and white women were seen as more transgressive and threatening to American social well-being, historian Mary Frances Berry has found that “the sex of the black and white partners made little difference in reversal rates” when criminal miscegenation suits were appealed. Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America, 9; Mary Frances Berry, “Judging Morality: Sexual Behavior and Legal Consequences in the Late Nineteenth Century,” Journal of American History 78, no. 3 (December 1991): 839.

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Typically, civil suits related to a racially heterodox family evoked judicial responses similar to those seen in cases involving the Black family. They fell into two categories. The first involved mothers who sought to secure legitimacy for themselves and their children so they could inherit from a white patriarch. The second involved orphaned children born to white men and Black women who wanted to substantiate their claims as legitimate heirs. While civil suits like these arose less frequently than criminal cases, and involved the decisions of white men who had chosen to have marital-like relationships with Black women instead of the more scandalous alternative involving white women and Black men, rulings nevertheless had the potential to embolden freedpeople’s sense of and access to equal justice, to enrich them with financial resources that would enhance intergenerational wealth, and to promote social inclusion on equal terms – a prerequisite of abolition.19 White litigants recognized that the legitimization of mixed-race families might potentially remake the social order of the South, and they pushed back against the prospect. For example, when freedwoman Sally Catchings asserted herself as the legitimate wife and rightful heir of Augustus Catchings’ estate, the court-appointed administrator depicted her as little more than a charlatan attempting to get rich. He alleged that she had never before purported to be the wife of Augustus Catchings, but was “influenced to do so now by pretended friends to her.”20 Not only would Black “concubines” seek legitimacy after emancipation, he posited, but freedpeople of all stripes and in all manners would attempt to squeeze financial rewards from the fallen master class if given the chance. Black litigants in some civil suits attempted to use statutes and constitutional provisions intended to secure freed families in order to validate racially heterodox relationships. This had mixed results. In Dickerson v. Brown, the constitutional provision on which Mississippi abolitionist Justice Jonathan Tarbell relied was enacted to legalize the marriages of freedpeople “who have not been married

19 20

Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America, 41. Wilson v. Catchings, 41 Tex. 587 (1874), Transcript 10, Case file M-9038, box 2014383, Texas State Library and Archives, Austin, Texas.

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but are now living together and cohabitating” and to legitimize “their children, whether born before or after the ratification of this constitution.”21 But in 1873, Tarbell’s ruling effectively applied the rule to racially heterodox couples, who chose to marry.22 To rule otherwise, Tarbell concluded, would create “one [state] constitution for the whites, and another for the blacks, a distinction precluded by recent events.”23 By invoking the guarantees of the Fourteenth Amendment and Mississippi’s revised code, the opinion fully accepted racial equality under the law. Postbellum conditions in the South had prompted Tarbell to become an abolitionist. The New York native, and one of the few carpetbaggers serving on a southern judiciary, had not begun Reconstruction as a Radical. To the contrary, he cared little for the policies of men such as Thaddeus Stevens, Charles Sumner, or Benjamin Butler. But after witnessing racial violence and the futility of collaboration between political factions, Tarbell came to believe in both Black suffrage and the restriction of the rights of ex-Confederates.24 “If our friends in Congress and the north do not understand how it is that with free constitutions and civil rights bills loyal citizens are outlaws, denied the commonest rights, robbed and murdered with impunity,” Tarbell wrote, “then they owe it to truth and justice to come and see for themselves. If with the facts before them they turn us over to the power of rebels, traitors, and democrats, through so-called liberal measures, or preconceived theories, without regard to practical results, then God help us!-we are without remedy.”25 Holding on to the premises that underlay the state’s 1868 constitution and the Fourteenth Amendment, Tarbell’s commitment to the rule of law and his newly developed abolitionism suffused the Dickerson opinion. In the same year as Dickerson the Texas court adopted a similar position in Honey v. Clark. Unionist Moses Walker wrote the opinion for the case.26 Bishop Clark, Lorinda Ballard, and Nancy 21 22 23 24 25 26

Dickerson v. Brown 49 Miss. 357 (1873), 368. Dickerson v. Brown 49 Miss. 357 (1873), 368. Dickerson v. Brown 49 Miss. 357 (1873), 375. Harris, “The Creed of the Carpetbaggers: The Case of Mississippi,” 207. Tarbell, quoted in Ibid. “Moses B. Walker (1819–1895),” Justices of Texas 1836–1986, accessed September 16, 2021, https://tarltonapps.law.utexas.edu/justices/profile/view/109.

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Townsel presented themselves as the children of John C. Clark and his enslaved woman Sobrina.27 They claimed that they were entitled to the benefits and protection of the state’s constitutional provision that accepted as legal the unions of couples who continued to live together after emancipation, and conferred legitimacy on the children born to those couples.28 Echoing language used in the domestic cases of freedpeople, Justice Walker wrote that “but for the law of bondage,” the union “would have been regarded, in every sense, as a legal marriage.”29 With the removal of the disabilities that defined Sobrina’s servile status, and the enactment of a new constitutional provision that legalized couples “living together as man and wife, and who, by law were precluded the rights of matrimony,” the court “pronounced” their marriage valid “by the organic law of the State,” and deemed their children legitimate.30 Reliance on statutes designed to protect Black families, however, did not produce lasting success for racially heterodox families. Just one year after ruling in Honey, a restaffed Texas court overturned the decision, hoping to prevent “intercourse that was illegal and immoral.”31 Black petitioners’ other strategies proved more effective, including demonstrating that an enslaver moved his mixed-race family members to a free state with the specific intention of manumitting them. Robert L. Mathews of Warren County, Mississippi, took his family to Ohio. Caroline and Isaiah Mathews were the children of Mathews and Harriet, a woman he owned. Although, legally, both children shared their mother’s condition, Robert “claimed” Caroline and Isaiah “as his natural children,” and “was anxious to emancipate and set [them] free.”32 He spent several weeks in Ohio with his children before the family returned to Mississippi. When Mathews died in 1859, his children returned to Ohio, and remained there.

27

28 29 30 31 32

Honey v. Clark 37 Tex. 686 (1873), Texas State Library and Archives Commission, Supreme Court M-6614. The printed brief for the appellees spells the surname “Clarke,” whereas all other documents use “Clark” as the correct appellation. Texas Constitution of 1869, Article 12, section 27. Honey v. Clark 37 Tex. 686 (1873), 708, Texas State Library and Archives Commission, Supreme Court M-6614. Honey v. Clark 37 Tex. 686 (1873), 709. Clements v. Crawford 42 Tex. 601 (1874), 604. Mathews v. Springer 16 F. Cas. 1096 (1871), 1096.

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His will established a trust for his children, which his “heirs at law and next of kin” challenged because “the pretended emancipation” of the children amounted to “attempted frauds on the laws of the state of Mississippi.”33 Since enslaved children could not receive bequests, the court should deem the trust invalid, they argued. The federal court that ultimately heard the suit denied this claim.34 The children, “permanently domiciled in Ohio,” had been freed by their father, and were thus “entitled to hold all the rights and provisions made for them by the will.”35 In some instances, the unique law of a state made it possible for the children born to enslaved women and their enslavers to become legitimate heirs. In Tennessee, for instance, enslaved people might enjoy “inchoate rights” that activated upon their freedom.36 The court applied the doctrine in Bedford v. Williams. In his will, Tennessee slaveowner Benjamin P. Persons created a trust “for the ‘sole use, benefit and comfortable support’ of two colored women, called Letitia and Emily.”37 The court accepted that Emily “was the reputed daughter” of Persons and Leticia, “and that he publicly acknowledged her as such, and at all times manifested great tenderness and affection for her.” Tennessee law provided an exceptional middle ground between slavery and freedom for people whose enslavers had effectively manumitted them without getting the requisite sanction from the state for lawful emancipation (the state adopted a statute to monitor the development of a free Black population). The court noted that “in this intermediate state between freedom and slavery, or rather, as the law formerly existed, a qualified citizenship and bondage, he has an 33 34

35

36

37

Mathews v. Springer 16 F. Cas. 1096 (1871), 1097. The case was heard in federal court because of a diversity claim. The Mathews children resided in Ohio, while Springer, the executor of Robert Mathews’ will, lived in Mississippi. Mathews v. Springer 16 F. Cas. 1096 (1871), 1099. The same court ruled similarly in Berry v. Alsop 45 Miss. 1 (1871). In that case, too, an enslaver took his enslaved woman, Mary, and her children to Ohio for the purposes of emancipating them, then provided for them in his will. However, there is no indication that Jesse Alsop fathered the children or had a romantic relationship with Mary. See also Bonds v. Foster 36 Tex. 68 (1872). “Inchoate rights” functioned similarly to Louisiana’s “dormant rights.” Some enslaved couples in Tennessee enjoyed the retroactive legitimation of their marriages as a result. Bedford v. Williams 45 Tenn. 202 (1867), 203.

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inchoate right to freedom, and no one can interpose any objection to its assertion but the State.”38 As for Emily, the court determined that “there can be no doubt … the acts and conduct of” Benjamin Persons “would have been sufficient to have vested [her] with an inchoate right to freedom.”39 Similar to the dormant rights doctrine, the concept of inchoate rights “conferred upon [her] the legal capacity to support the trust in question,” once she became free.40 Emily counted among the lucky. The Tennessee Supreme Court became decidedly more conservative after the election of new justices in 1870, which helps account for its hardline stances in criminal suits thereafter. But in 1867, Emily could remain in Tennessee and take advantage of the “rights accrued to her.”41 James Taliaferro’s opinion in Cornelia Hart’s case stands out among civil suits as an abolitionist roadmap for protecting equal citizenship. Louisiana had a long and particular history of interracial affiliations, including plaçage, concubinage, and other forms of intermarriage between people of Anglo, French, Spanish, African, and Native American ancestry.42 Perhaps this unique past accounted for Cornelia Hart’s circumstances, but it was a commitment to abolition that led to her victory in the case. The voluminous archival record from her suit corroborated that the Harts had lived openly as a family in Shreveport, Louisiana, for a considerable amount of time before the end of slavery.43 Prior to her emancipation, Cornelia and Ephraim had five children (one of whom died in infancy), and they

38

39 40 41 42

43

Bedford v. Williams 45 Tenn. 202 (1867), 209. On the “inchoate right to freedom,” See also Charles C. Trabue, “The Voluntary Emancipation of Slaves in Tennessee as Reflected in the State’s Legislation and Judicial Decisions,” Tennessee Historical Magazine 4, no. 1 (1918): 52–54. Bedford v. Williams 45 Tenn. 202 (1867), 210, emphasis in original. Bedford v. Williams 45 Tenn. 202 (1867), 210. Bedford v. Williams 45 Tenn. 202 (1867), 210. Clark, The Strange History of the American Quadroon: Free Women of Color in the Revolutionary Atlantic World; Martin, “Plaçage and the Louisiana Gens de Couleur Libre”; Michelle Brattain, “Miscegenation and Competing Definitions of Race in Twentieth-Century Louisiana,” The Journal of Southern History 71, no. 3 (2005): 621–58. Hart v. Administrators 26 La. Ann. 90 (1874). Historical Archives of the Louisiana Supreme Court, The University of New Orleans, Earl K. Long Library, DSpace Repository. http://dspace.uno.edu:8080/xmlui/handle/123456789/41537 (accessed June 28, 2019).

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lived as a family in Caddo Parish until he died in 1869. She “was recognized in the community as his wife,” and, as Cornelia testified in language still used by family courts to help establish paternity, “Mr. Hart was in the habit of treating these children as his own before the world.”44 After emancipation appeared to remove any legal impediment to his family’s legitimacy, Ephraim had taken specific steps to ensure his family’s security. When he feared he would die from yellow fever in 1867, he consulted the family’s priest, Father J. Pierre, about how to do that. “After conversation with him (Hart) of serious import,” Father Pierre “celebrated the marriage between Ephraim C. Hart and Cornelia Hart,” which “was a lawful marriage before the Catholic Church.” The priest assured Ephraim that a marriage would mean the whole family would be protected by Louisiana law. After surviving his illness, Ephraim wanted to further ensure that “the children would be provided for,” and he once again turned to Father Pierre. This time, he had his children baptized. “He intended that they should have his property,” the priest testified.45 Upon his death, however, Ephraim’s relatives – a collection of brothers, sisters, nieces, and nephews – seemed to emerge out of nowhere to reap the financial benefits of their relative’s death. They refused to acknowledge the marriage or the right of Cornelia’s children to inherit. They contended that despite the cohabitation of their parents and their paternity, the Hart children were “persons of color and were conceived and born out of wedlock and while their mother a colored woman was a slave and incapable of contracting marriage” with E. C. Hart, “a white man” who never “legally acknowledged or legitimated” the children he had with Cornelia.46 Writing the opinion, Taliaferro noted that while the laws in effect at the time their children were born prohibited the Hart’s lawful wedlock, this “incapacity was removed … by the adoption of the fourteenth amendment to the Constitution.”47 It “made [Cornelia and

44 45 46 47

Hart v. Administrators 26 La. Ann. 90 (1874), Transcript 57. Hart v. Administrators 26 La. Ann. 90 (1874), Transcripts 57, 64–66, 69, 171, 173–176. Hart v. Administrators 26 La. Ann. 90 (1874), Transcripts 19–20. Hart v. Administrators 26 La. Ann. 90 (1874), 93.

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her children] citizens of the United States, and relieved them of all previous disabilities they labored under on account of race, color or previous condition of slavery, by annulling previously existing laws of the State creating such disabilities, and conferred upon and vested in them all the civil rights and privileges of white persons.”48 “Our law considers marriage in no other view than as a civil contract,” and citizenship entitled Cornelia Hart and all other freedopeople the right to make such an agreement.49 By accepting fully the Radical Republican premises of national citizenship, removing the legal disabilities of slavery under which Cornelia and her children once suffered, and maintaining that marriage was a civil contract like any other, the court confirmed that the racially heterodox Hart family was equal in law to any other. To be sure, civil litigation conveyed some moral outrage at the prospect of racial mixing, but it was more muted than the language offered by judges in criminal suits and did not reflect judicial consensus. Lawyers and judges typically argued that children born to enslavers and their “concubines” could never be legitimate heirs. In this case, however, the dissenting judge went further, claiming that that the births of such children were “the result of a sin.”50 Still, he agonized that visiting the depravities of the father on his children “seem[ed] hard,” but a white man “knew when he was begetting these children what the consequences would be to them. … If they suffer, it is from his fault, and not the laws, civil and moral, which he defied.”51 In contrast, the abolitionist ruling in Hart insisted that any such laws lost all power with the ratification of the Thirteenth and Fourteenth Amendments, and those antebellum statutes could not be considered when determining the outcome of post-emancipation litigation. Several factors help explain Black litigants’ success in civil litigation. For one, rulings depended on the specific justices sitting on the bench when a case arrived on the court’s docket. The complete restaffing of Tennessee’s judiciary, from Radical- to Redemption-oriented

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Hart v. Administrators 26 La. Ann. 90 (1874), 93. Hart v. Administrators 26 La. Ann. 90 (1874), 93–94. Hart v. Administrators 26 La. Ann. 90 (1874), 104. Hart v. Administrators 26 La. Ann. 90 (1874), 104.

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justices, certainly helps explain why the court upheld the inheritance of young Emily in 1867, but subsequently excoriated (as we will see) the notion of interracial marriage in criminal cases in explicitly racialized terms. Second, at least at the appeals level, many of the civil suits that considered the status of racially heterodox families originated from Louisiana and Texas, both of which had mixed legal heritages. The French, Spanish, and Mexican legal traditions that had shaped the customs of these states recognized legitimate racial mixing in ways that Anglo-American common law did not. In Texas’ Honey ruling, for example, the court noted that John and Sobrina began their matrimonial relationship while Texas remained a part of Mexico, which had not prohibited interracial marriage. The opinion stated that “it being customary for the people” of Mexico “to mingle the blood of different races in marriage, we see no reason whatever to preclude the presumption of marriage in ecclesium.”52 Other states, including Tennessee and Maryland, had unique legal heritages of their own that functioned similarly. Finally, testamentary arrangements that provided for Black wives and the children born of such unions arose out of circumstances firmly rooted in slavery. That is, the domestic arrangements predated emancipation, and thus appeared less like threats to the old order and more like remnants of a familiar, recognizable past. Rulings grandfathered in the mixed-race families formed in this antebellum past, but they did not necessarily sanction unfettered racial “amalgamation” in the postbellum present or future. Jurists may have been less inclined to overrule the prewar wishes of white men – masters – who expressly provided for persons they considered family.53 In this way, the opinions can be read as expressions of deference and respect for the race and gender of the testator, not as victories for the African American inheritors or for racial equality. Judges deferred to the will – and will – of the testator. Rulings like these aligned with other suits in which courts honored the bequests of white enslavers to freed people who lacked any familial relationship (or at least a provable relationship) to the testator at all, and reinforce the sanctity 52 53

Honey v. Clark 37 Tex. 686 (1873), 708–9. Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America, 41.

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of property rights.54 While they did not necessarily signal the broad adoption of abolitionism – that the end of slavery and extension of citizenship granted all citizens the right to form families of their own choosing – they nevertheless modify the grim picture that developed in most criminal miscegenation suits. Anxieties about interracial relationships and the children borne from them developed over generations of American slavery. Emancipation amplified those fears exponentially. During Radical Reconstruction, conservative congressmen failed to prevent the enactment of civil rights legislation or the adoption of the Fourteenth and Fifteenth Amendments. Many feared that equal citizenship would offer legitimacy to racially heterodox marriages and offspring.55 Politicians at the state level used the prospect of racial mixing as their justification for restricting or ignoring Black rights, just as they had done when their opponents supported efforts that threatened slavery prior to the Civil War.56 Judges often did the same. As Justice George Robertson wrote in his opinion in Bowlin v. Commonwealth (Chapter 5), allowing the federal government to regulate the lives of freedpeople – to enforce equal rights in particular – was just a step away from forcing states to “legalize intermarriages between the two races deteriorating to the Caucasian blood, and [destroy] the social and legislative decorum of States.”57 The extension of marriage rights to freedpeople provoked acute fears about racial mixing. Many assumed that people of different races wished to marry one another, despite assertions from Black and white

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Bardaglio, Reconstructing the Household, 187. This book does not consider this type of case, but many existed and were decided similarly. See, e.g., Hayley v. Hayley 62 N.C. 180 (1867), State Archives of North Carolina, Record Case Number 8865. As Martha Hodes has shown, anxieties over interracial relationships, particularly between Black men and white women, developed over time, in the context of racial slavery in the Americas. However, as activists such as Frederick Douglass and Ida B. Wells as well as scholars have shown, it became particularly virulent following emancipation. Hodes, White Women, Black Men: Illicit Sex in the Nineteenth-Century South, 1. Kennedy, Interracial Intimacies: Sex, Marriage, Identity, and Adoption, 22. Bowlin v. Commonwealth 65 Ky. 5 (1867), 9.

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community leaders that no such desire existed.58 Interracial coupling had long been regulated. Before the Civil War states replaced bans on interracial sex – remnants of the seventeenth and eighteenth centuries – with statutes prohibiting racially heterodox marriages.59 As historians have long understood, this legal shift reinforced white male access to the bodies of Black women (and sometimes men), while simultaneously preventing the extension of legitimacy to African Americans born as a result of the sexual violence (or, as in the case of Cornelia Hart, born under any other circumstance).60 Coupled with the doctrine of partus sequitur ventrem – the condition of the child follows the mother – white men could have sex with enslaved women without risking legal consequence and expand their wealth if the liaison produced a child – excusing or even incentivizing sexual abuse. It was unclear whether traditional bans on interracial wedlock would persist in freedom, or whether freedpeople would be entitled to enjoy liberalized marriage doctrine in ways never intended to apply to them. Doctrinally, marriage bans lacked a strong foundation in English common law, so effective prohibition required a statute.61 State laws sufficed prior to emancipation, but after the ratification of the Fourteenth Amendment, no one knew whether they would pass constitutional muster. The racially specific laws, many feared, violated the amendment’s equal protection clause. This was how Justice Taliaferro interpreted it in Hart. Worse still, patterns that had emerged in antebellum marriage law seemed to invite disaster. From the early nineteenth century, states encouraged marriage by making it increasingly easy to enter lawful unions.62 As 58

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Hartman, Scenes of Subjection: Terror, Slavery, and Self-Making in Nineteenth-Century America, 183–84; Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America, 31–32. Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America, 24–25. On the sexual violence experienced by enslaved men, see Thomas A. Foster, Rethinking Rufus: Sexual Violations of Enslaved Men (Athens: University of Georgia Press, 2019). Grossberg, Governing the Hearth, 129. Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America, 23. States went as far as recognizing a variety of different marriage ceremonies and customs, extending the practice of comity so that marriages performed out of state remained legal throughout the nation, and even recognizing marriages solemnized in other nations. State codes also began protecting common-law marriages as legitimate in this period.

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one Mississippi attorney noted in a brief for his African American client, “No particular form or ceremony is necessary to constitute marriage in this state. A marriage per verba de praesenti, by the parties themselves, is as good as though solemnized under a marriage license, by a clergyman or civil magistrate. … [A]nything that manifests a present desire or intention, then and there to constitute between the parties, the marital relations is sufficient.”63 Despite this antebellum trend toward marriage liberalization, immediately following the Civil War, former slave states quickly enacted or strengthened existing laws that banned racially heterodox marriages. Mississippi and South Carolina, which lacked interracial marriage bans before the war, enacted them in 1865. Alabama and Georgia codified their bans against mixed-race unions in their first postbellum state constitutions.64 Kentucky, Missouri, and North Carolina toughened their laws by increasing the punishment for offenders. Even western states and territories where slavery never existed, such as Idaho and Arizona, adopted antimiscegenation statutes for the first time. As a judge in North Carolina noted in support, the state had prohibited mixed-race marriages since 1839, and “late events and the emancipation of the slaves ha[d] made no alteration in our policy or in the sentiments of our people.”65 The court believed that the antimiscegenation statute had “the sanction of both races” and was “so well known, that we should not hesitate to declare the policy paramount to any doubtful construction.”66 Legislatures in some states overturned these laws during the Radical period, but they reappeared in code books quickly after conservative Redeemers retook control of southern politics. For example, South Carolina’s reform-minded statesmen repealed the state’s antimiscegenation statute in 1868, but the restaffed legislature enacted a new one in 1879.67 Like conservative lawmakers, judges in the former slave states continued to believe in the anthropological assessments of race provided by 63 64 65 66 67

Dickerson v. Brown 49 Miss. 357 (1873), H. H. Chalmers for appellants. Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America, 29–30. State v. Hairston 63 N.C. 451 (1869), 452. State v. Hairston 63 N.C. 451 (1869), 452–53. Kennedy, Interracial Intimacies: Sex, Marriage, Identity, and Adoption, 75–76; Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America, chap. 1.

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southern social theorists such as George Fitzhugh, who believed “the Negro is but a grown up child” and was “inferior to the white race.”68 Alabama justice Amos Manning asked rhetorically, “Who can estimate the evil of introducing into their most intimate relations, elements so heterogeneous that they must naturally cause discord, shame, disruption of family circles, and estrangement of kindred?”69 He thought it eminently right “that the law should absolutely frustrate and prevent the growth of any desire or idea of such an alliance.”70 Joseph E. Brown of Georgia pronounced that racial “equality does not in fact exist, and never can. The God of nature made it otherwise, and no human law can produce it, and no human tribunal can enforce it. … It could never promote peace, quiet, or social order in any State or community.”71 Similarly, Tennessee’s Justice John Sneed wrote, “The laws of civilization demand the races be kept apart in this country.” To allow otherwise would result in “a calamity full of the saddest and gloomiest portent to the generations that are to come after us.”72 In judicial opinions like these, racial animus substituted for sound doctrinal reasoning. In short, lawmakers, judges, and laypeople alike feared that without the regulatory structure provided by slavery, racial “amalgamation” could become the undoing of the entire white race. The attorney general for Tennessee, former Confederate congressman Joseph Brown Heiskell, admitted that antimiscegenation laws were designed specifically to curb racial degradation” of the white race.73 Protecting white purity secured the power of its supremacy, and prevented it from being corrupted by any “intermixture” with inferior races. In this way, miscegenation suits became referendums on whiteness, as well as assessments of equal rights (Figure 7.1). Judges knew that common social attitudes toward racial mixing alone would not substantiate rulings. More important, some lawyers and politicians believed that anti-miscegenation laws violated equal citizenship, and after the adoption of the Fourteenth Amendment could be struck down as unconstitutional. 68 69 70 71 72 73

Fitzhugh, Sociology for the South: Or the Failure of Free Society, 83, 84. Green v. State 58 Ala. 190 (1877), 194. Green v. State 58 Ala. 190 (1877), 195. Scott v. State 39 Ga. 321 (1869), 326. Lomas v. State 50 Tenn. 287 (1871), 310–311. See also State v. Bell 66 Tenn. 9 (1872), 11. Lonas v. State 50 Tenn. 287 (1871), 299.

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figure 7.1  Miscegenation Cartoon After the enactment of the Civil Rights Act of 1866, many feared that the extension of the right to contract to freedpeople would open the door to racially heterodox marriages. Collection of the Smithsonian National Museum of African American History and Culture.

At the state appeals court level, however, only a single ruling invalidated a racially specific marriage statute: In 1872, with an abolitionist at the helm, the Alabama court invalidated the state’s antimiscegenation statute in Burns v. State. Judge Benjamin Franklin Saffold had experienced the same change in views as other abolitionist judges, including James Taliaferro and fellow Alabamian Thomas Peters. Saffold, who grew up on his family’s successful plantation, had been a lifelong Democrat.74 But he had opposed secession, and changed his political allegiances. He served in the state’s constitutional convention in 1867 as a Republican, and remained a prominent party supporter even after Redemption occurred in Alabama.75 74 75

Saffold’s father Reuben also sat on the Alabama Supreme Court. Sarah Van Voorhis Woolfolk, “The Role of the Scalawag in Alabama Reconstruction” (PhD dissertation, Baton Rouge, Louisiana State University, 1965); Livingston, Smith, and Cauley, “A History of the Alabama Judicial System.” Saffold was so hated by Alabamians that his family members removed the markers from the

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While on the court, Saffold adhered to the promises of racial equality embraced in the Civil Rights Act of 1866 and the Fourteenth Amendment. In the Burns opinion, he proclaimed, “Marriage, is a civil contract” entered into by citizens.76 “The civil rights bill now confers this right upon the negro in express terms, as also the right to make and enforce contracts, amongst which is that of marriage with any citizen capable of entering into that relation.” Its “cardinal principle is now declared by the 14th amendment to the Federal constitution.”77 Despite being the only ruling to strike down an antimiscegenation law, Saffold’s opinion nevertheless points to the potential and contingencies of postbellum jurisprudence: In 1872, it remained possible that the Fourteenth Amendment could deliver on the promise of legal equality that abolitionists desired. But Saffold’s logic, shared by many abolitionists serving in state legislatures, became the target of a sustained attack by attorneys (often on behalf of their states) and judges committed to white supremacy. These judges helped forge a durable antimiscegenation doctrine for the postslavery nation that would ultimately defeat abolition. Four common strategies emerged to block the potential of the Fourteenth Amendment. First, despite historical evidence to the contrary, some judges and lawyers argued that marriage was more than a civil contract. This sidestepped any violation of the right to contract guaranteed by federal civil rights law by recategorizing marriage as a unique form of agreement. Second, some claimed that marriage existed purely as a domestic issue, and was thus beyond the reach of congressional regulation. Third, jurists differentiated between social and political or civil rights in ways consistent with antebellum traditions.78 The rights protected by citizenship, they maintained, did not include strict social equality – a phrase that had become shorthand

76 77 78

family graveyard because they feared his resting place would otherwise be desecrated. Jennifer Hale, Historic Plantations of Alabama’s Black Belt (Charleston, SC: The History Press, 2009), chap. 1. Burns v. State 48 Ala. 195 (1872), 197. Burns v. State 48 Ala. 195 (1872), 198, emphasis in original. Antebellum jurists defined social rights as “rights to exclude or discriminate against: they could not be mandated by law.” G. Edward White, Law in American History, vol. 2 (New York: Oxford University Press, 2016), 16; Brandwein, Rethinking the Judicial Settlement of Reconstruction, 65.

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for interracial sex. Fourth, because antimiscegenation laws affected whites and Blacks equally – both were prevented from marrying one another and incurred the same penalty for breaking the law – proponents argued that they did not violate federal civil rights law. This last strategy, later accepted by the Supreme Court of the United States, would most enduringly influence race-based policy. Many rulings in Reconstruction-era miscegenation suits relied on a mixture of these claims to justify upholding laws regulating miscegenation. When state officials discovered a mixed-race union, they typically charged the offending parties for violating statutes prohibiting such unions and/or with adultery and fornication. For example, in 1869, officials from Forsyth County, North Carolina, identified Wesley Hairston, a Black “yeoman,” and Puss Williams, a white “spinster,” as “lewd and vicious persons,” and charged them with adultery and fornication, “in contempt of the holy rites of matrimony … against the peace and dignity of the state.”79 In the same year, Georgia charged a Black woman, Charlotte Scott, with “cohabitating and having sexual intercourse with” French immigrant Leopold Daniels, in violation of the state’s criminal code. Both couples believed that their marriages were legal.80 The Hairstons, for instance, had obtained a marriage license from the clerk of the Guilford County Court of Pleas and Quarter Sessions, and “a regular minister of the Gospel,” had bound them in holy matrimony.81 To jurists who accepted the first argument, a marriage contract required something more than the agreement of the two people who wished to enter into it because it affected all of society. It also needed some kind of higher approval from the state, and was therefore something more than a basic civil contract. In Hairston, for example, the North Carolina court declared that marriage amounted to “more than a civil contract: it is a relation, an institution, affecting not merely the parties, like business contracts, but offspring particularly, and society generally.”82 The court upheld the state’s antimiscegenation law, 79 80 81 82

State v. Hairston 63 N.C. 451 (1869), North Carolina State Archives, Supreme Court Cases, Box 376. Scott v. State 39 Ga. 321 (1869). State v. Hairston 63 N.C. 451 (1869), North Carolina State Archives, Supreme Court Cases, Box 376. State v. Hairston 63 N.C. 451 (1869), 453, emphasis in original.

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nullified the Hairstons’ marriage, and declared them guilty of a criminal offense. Even in suits concerning Black litigants alone, judges sometimes made the same argument. As one Louisiana probate court judge determined in such a case, marriage required not only the private “consent of the parties,” but also “public intervention” in the form of state sanction.83 When it came to matrimony, statutes became increasingly assertive, establishing the state as an invisible third party in all unions. The second argument, that marriage was a domestic issue controlled exclusively by the state, bolstered attempts to define the marriage contract as unique. The Tennessee court, for example, accepted that marriage was “not a contract, but one of the domestic relations” controlled by the states. As such, it was not protected by any federal civil rights provision or the Fourteenth Amendment. Instead, marriage “is regulated and controlled by the sovereign power of the State” and therefore “is a question for the political power; and the police power, which is inherent in all governments, is to be exercised without question.”84 While the Tennessee court agreed that states owed due deference to federal law, “we are too prone to magnify the civic powers of a government which has so lately crushed a dozen great states by an exhibition of military power that might have defied the world, and lawyer and lawgiver, court and commonwealth, to bow without question to the civic will of the victor.”85 That, the court would not do. Exposing the racialized logic and antagonism that informed the ruling, and intimating that the state’s antimiscegenation law was designed to protect white Americans, the judge proclaimed that “they must not marry or be given in marriage with the sons and daughters of our people.”86 A ruling in a free state further strengthened the claim that marriage was a domestic institution entirely controlled by the states. In an 1874 article in the Southern Law Review, Huntsville, Alabama, lawyer

83

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Auguste and Joseph Pierre v. Auguste Fontenette et als., 25 La. Ann. 617 (1873), DSpace at the University of New Orleans: Earl K. Long Library Historical Archives of the Supreme Court of Louisiana. http://dspace.uno.edu:8080/xmlui/handle/123456789/ 41741 (accessed October 15, 2015). Lonas v. State 50 Tenn. 287 (1871), 309, quoting Maguire v. Maguire 37 Ky. 181 (1838). Lonas v. State 50 Tenn. 287 (1871), 303. Lonas v. State 50 Tenn. 287 (1871), 311, emphasis added.

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(and future U.S. Circuit Court judge) David Davie Shelby observed that northern states had also enacted antimiscegenation statutes, and that many had survived legal challenges since the Fourteenth Amendment’s addition to the Constitution.87 Shelby found the Indiana Supreme Court’s ruling persuasive and worth emulating in his state. In 1871, the Indiana court had ruled that the federal government had no authority over domestic institutions, including marriage, and upheld the state’s antimiscegenation law.88 Indiana provided a quintessential states’ rights argument. The fact that it came from a “free state” only added to its appeal and potential in former slave states. It relied on the view that the Fourteenth Amendment differentiated freeborn citizens from others. Indiana judge Samuel Buskirk wrote, “It is quite manifest that [the Fourteenth Amendment] did not refer to persons of the white race, for when persons of that race are born in the United States, they are by birthright citizens.” The amendment “confer[red] the right of citizenship upon persons of the African race, who had previously not been citizens.”89 While the Fourteenth Amendment made “all the citizens of the United States equal before the law,” it did not “enlarge the powers of the federal government, nor diminish those of the states.”90 The ruling substantiated that freedpeople existed in a distinct legal category, and that the federal government lacked the authority to protect all of their rights. Anticipating the ruling in the Slaughter-House Cases, the Indiana judge delimited federal jurisdiction to powers listed in the Constitution prior to the adoption of the Fourteenth Amendment, including

87 88

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D. D. Shelby, “The Thirteenth and Fourteenth Amendments,” Southern Law Review 3 (1874): 524–32. State v. Gibson 36 Ind. 389 (1871); Wallenstein, Tell the Court I Love My Wife, 64. Indiana had enacted an antimiscegenation statute in 1840, one of the earliest states to do so. Gibson involved the marriage of Black man Thomas Gibson and white woman Jennie Williams. On congressional concerns about federal control over contract rights, including to marriage, see Stanley, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation, 56–57. State v. Gibson 36 Ind. 389 (1871), 391. State v. Gibson 36 Ind. 389 (1871), 393. Buskirk also claimed that the Civil Rights Act only applied to the District of Columbia and to federally controlled territories. Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America, 55.

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regulating commerce with foreign nations and between states, prosecuting piracy on the high seas, raising and supporting armies and navies, establishing post offices, and so on. Marriage was not included in these powers, making matrimony a domestic matter outside the regulatory grasp of federal law.91 Buskirk wrote, “we deny the power and 91

The issue of comity – recognizing the marriages performed in other states – did arise in some antimiscegenation litigation. It appeared to challenge the assertion that marriage remained a purely domestic issue. However, in only one North Carolina suit did a court recognize a marriage performed in another state. More commonly, states refused to recognize such unions, noting that doing so would create a loophole in their antimiscegenation policy. For example, the Tennessee court used one suit to evaluate its comity practice with regard to marriage, and did not find in favor of tradition. While famed eighteenth-century jurist and author of Commentaries on American Law Chancellor Kent “says the contract of marriage is a stable and sound contract, of natural as well as municipal law,” a racially heterodox marriage amounted to “neither.” The Supreme Court of Virginia agreed. In 1878, it applied the same rule to a couple who married in Washington DC, then returned to Virginia, hoping to avoid the prohibition on interracial unions in their home state. State v. Bell 66 Tenn. 9 (1872), 11; Kinney v. Commonwealth 71 Va. 858 (1878). North Carolina’s State v. Ross was the only suit to accept the comity argument. While the court reiterated that North Carolina “has declared its conviction that marriages between [the races] are immoral and opposed to public policy,” it had to take into account circumstances “beyond the statutes of the State.” In this instance, white woman Sarah Spake moved to South Carolina in order to marry Pink Ross, who already resided there. She then lived with him there for three months before the couple returned to her home state. When Sarah moved and married, she relinquished her own lawful home, and assumed that of her husband. Because South Carolina considered the union of a Black man and white woman legal, and the couple lived in South Carolina as citizens of that state at the time of the marriage, the North Carolina court found that union “must be regarded as valid in this State” as well. Justice Rodman believed that “[w]e are under obligations of comity to our sister States. We are compelled to say that this marriage being valid in the State where the parties were bona fide domiciled at the time of the contract must be regarded as subsisting after their immigration here.” In this instance, the fact that the white woman had moved to join her Black partner worked in favor of the couple’s legal standing in North Carolina. She became a resident of South Carolina, which tolerated racially heterodox marriages between 1868 and 1879. Wallenstein, Tell the Court I Love My Wife, 154–55; State v. Ross 76 N.C. 242 (1877), 245, 247. Rodman drew a distinction between couples like the Rosses and those who lived in North Carolina, and only went to South Carolina to marry. It would not tolerate couples using the laws of one state to dodge the laws of the state in which they lived. Instead, Justice Rodman pronounced that “there is a personal incapacity which follows the parties wherever they go so long as they remain domiciled in North Carolina. And we conceive that it is immaterial whether they left the state with the intent to evade its law or not.” State v. Kennedy 76 N.C. 251 (1877), 252.

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authority of Congress to determine who shall make contracts or the manner of enforcing them in the several states.”92 Shelby persuaded Alabama’s attorney general, John W. A. Sanford, to adopt this approach. Sandford, a “die-hard states’ rights Democrat,” happily obliged. He used the strategy to overturn the abolitionist Burns precedent set by Safford in 1872. In 1877, the Alabama court ruled that marriage was among the rights the Fourteenth Amendment did not protect. Judge Amos Manning, once the wealthiest slaveowner in Mobile, held, “The regulation of these belongs to the States.”93 Alabama’s antimiscegenation statute remained on the books for another ninety years.94 The third rationale for supporting antimiscegenation statutes maintained that the Fourteenth Amendment protected basic “civil or political” rights, but did not guarantee social equality. During the antebellum period, no perfect agreement about the definitions of political, civil, and social rights existed, but the process of Reconstruction helped clarify their meanings.95 In basic terms, civil rights were commonly related to economics (to contract, inherit, sue, etc.), and were considered “basic and fundamental.” Political rights (or privileges) – namely, the right to vote – were granted by governments but were generally not considered “necessary for freedom.”96 Most people agreed about what constituted civil and political rights, but social rights were not so easily defined. The category generally included integration of public spaces – including accommodations,

92 93 94 95

96

State v. Gibson 36 Ind. 389 (1871), 402. Green v. State 58 Ala. 190 (1877), 196; “An Alabama Justice’s Death,” New York Times, September 19, 1880. Saffold’s ruling in Burns invalidated one antimiscegenation statute, but the Alabama legislature enacted another, hoping it would survive legal challenge. Mark Tushnet calls them the “three domains of equality.” Other scholars, such as Rebecca Scott, question their utility because none of the categories was perfectly defined or static in meaning over time. I find the typology useful in this study because jurists used the terms in contextually specific ways that make clear their intended meaning. Mark Tushnet, “The Politics of Equality in Constitutional Law: The Equal Protection Clause, Dr. Du Bois, and Charles Hamilton Houston,” Journal of American History 74, no. 3 (1987): 885; Rebecca J. Scott, “Public Rights, Social Equality, and the Conceptual Roots of the Plessy Challenge,” Michigan Law Review 106, no. 5 (2008): 777–804; Brandwein, Rethinking the Judicial Settlement of Reconstruction, chap. 3. Brandwein, Rethinking the Judicial Settlement of Reconstruction, 71.

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conveyances, and schools – but also the ability to enter an interracial marriage. Social rights existed in “a sphere in which ‘association’ took place” – where people met in public society – and were largely considered outside the purview of the law. Social rights, all but the most Radical believed, derived from one’s social standing and individual taste, not from law or government intervention.97 Social equality would further violate conventional knowledge that Black people were naturally inferior to white, raised considerable fears about compulsory racial mixing, and endangered white women who (the argument went) would become targets of Black men’s sexual advances.98 White people believed they possessed social rights by virtue of their race, which gave them access to a realm of privileged social interactions.99 Granting social rights to African Americans threatened to destroy that sacred space, but southern jurists did not believe new federal law or constitutional amendments required that they abandon a racially stratified society. In Hairston, for example, the North Carolina judge proclaimed that the Civil Rights Act of 1866 “by its terms has no application” in cases regarding interracial marriage because it was not “intended to enforce social equality.” Instead, the law only protected “civil and political rights.”100 The judge’s assessment reflected a commonly held political view. The conservative and “centrist” Republicans who secured the adoption of the Civil Rights Act never supported social equality.101 To the contrary, during the debate over the statute, antislavery senators William P. Fessenden (ME) and Lyman Trumbull (IL) assured their colleagues that the law would not invalidate existing antimiscegenation statutes.102 There was reason to believe that the senators’ promises similarly applied to the Fourteenth Amendment, as its framers had modeled

97

Ibid., 71–72. Ibid., 22; Barbara Young Welke, Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865–1920 (New York: Cambridge University Press, 2001). 99 Brandwein, Rethinking the Judicial Settlement of Reconstruction, 72. 100 State v. Hairston 63 N.C. 451 (1869), 453. 101 Brandwein, Rethinking the Judicial Settlement of Reconstruction, 31. 102 Nelson, The Fourteenth Amendment: From Political Principle to Judicial ­Doctrine, 133. 98

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section 1 after the Civil Rights Act of 1866.103 The Georgia court maintained that position in 1869. “Government,” Joseph E. Brown asserted in Charlotte Scott’s case, “has full power to regulate civil and political rights, and to give each citizen of the State, as our Code has done, equal civil, and equal political rights as well as equal protection of the laws. But government has no power to regulate social status.”104 In conformity with his views on state conquest, Brown also articulated that no federal law required states to allow persons of different races to marry. “The great mass of conquering people … have neither required of us the practice of miscegenation, nor have they claimed for the colored race, social equality with the white race.”105 Given how many demands the federal government had made of southern states since their defeat, Brown reasoned, they would have been explicit about granting social rights or permitting mixed-race marriages if it had intended to do so. In reality, Congress did not fully consider social rights until the debate over the Civil Rights Act of 1875, in which its newly elected Black members took part. Radical senator Charles Sumner proposed the law in 1870. He viewed the measure as an expansion – or “supplement” to the Civil Rights Act of 1866, and sought equal access to public accommodations, schools, jury service, churches, and cemeteries. The bill never garnered strong support, even from Republicans. Many thought it trespassed into a realm of social relations prohibited to government, and that it signaled the possibility of interracial coupling, which heightened anxieties about the degradation of white racial purity. Sumner and other Radicals, including the bill’s coauthor Benjamin Butler, insisted that integrating public accommodations counted as protecting civil rights, not as forcing social equality. Individuals chose their personal “companions,” but they should not have the right to “deny any human being … any right of equality.”106 Most disagreed. A less capacious version of the bill became law, but it likely would not have been enacted at all had it not been Sumner’s dying wish in 1874.107

103 105 106 107

Ibid. 104 Scott v. State 39 Ga. 321 (1869), 326. Scott v. State 39 Ga. 321 (1869), 326. Sumner, quoted in Brandwein, Rethinking the Judicial Settlement of Reconstruction, 66. Ibid., 62–67.

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The fourth argument, that anti-miscegenation laws did not discriminate based on race because they applied to white and Black people equally, shaped the doctrine that supported segregation. Black people could not marry white, and white people could not marry Black. As the North Carolina court noted, the state’s anti-miscegenation law “is no discrimination in favor of one race against the other, but applies equally to both.”108 Besides, according to one Alabama judge, equal citizenship under the Fourteenth Amendment did “not prohibit the making of race and color a constituent of an offense, provided it does not lead to a discrimination in punishment.”109 Over the following century, the same rationale would be used to support scores of Jim Crow statutes across the nation. The U.S. Supreme Court weighed in on marriage in two important suits. The first (see Chapter 6) was Hall v. United States. Decided in 1875, the facts of the case had nothing to do with marriage. But an aside in Justice Swayne’s opinion influenced the trajectory of postbellum domestic law. Swayne proclaimed that all contracts, including the contract of marriage, had to be determined “as if slavery had not been abolished.”110 In the context of marriages between freedpeople, this eliminated the possibility of retroactive legitimation of slave unions. But it also had the potential to influence the rulings in litigation over racially heterodox marriages. Swayne’s opinion appeared to lump marriage contracts into the same category as other contracts, just as Judge Saffold did in the Burns ruling. This view diverged with state court rulings that interpreted marriage as something more than a basic contractual arrangement. Most courts, however, ruled on miscegenation suits prior to the ruling in Hall. After 1875, other strategies for upholding antimiscegenation laws had already succeeded in court and could be used instead to avoid running afoul of Hall. Pace v. Alabama spoke directly to the legality of antimiscegenation statutes.111 The opinion, authored by Justice Stephen J. Field, spoke

108 109 110 111

State v. Hairston 63 N.C. 451 (1869). See also State v. Reinhardt 63 N.C. 547 (1869). State v. Ellis 42 Ala. 525 (1868), 526. Hall v. United States 92 U.S. 27 (1875). Pace v. Alabama 106 U.S. 583 (1883).

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explicitly to one of the common issues in state courts: whether or not the legislation violated the Fourteenth Amendment’s equal protection clause by specifying race.112 Field agreed with his state-level brethren. He affirmed that no “discrimination against either race” existed in such statutes, because the “punishment of each offending person, whether white or black, is the same.”113 The case affirmed the notion that laws could evade charges of racial discrimination or classification by appearing to apply to both races equally. Not decided until 1883, this verdict confirms that it took a considerable amount of time after emancipation, and a fair amount of legal experimentation, before this argument solidified and succeeded. Once it did, however, the rule prevailed until the 1960s. In 1964, the Court overturned Pace in McLaughlin v. Florida, a case that concerned the cohabitation of an interracial – but unmarried – couple.114 The Court’s 1967 decision in Loving v. Virginia finally invalidated statutes that banned the marriage of racially heterodox people.115 While judges almost unanimously agreed that white and Black people should not marry or have children with one another, they struggled to reach a consensus about how to determine an individual’s race. Opinions corroborate that legal definitions of race had not yet moved entirely beyond their antebellum formulations. Decided before the one-drop rule was cemented in American law, judges in these suits were still mired in the process of delineating the meaning of race and establishing new rules for racial classification in the postslavery nation. Joseph Brown’s 1869 ruling in Scott, perhaps more than any other suit of this kind, gestured toward the pseudo-science of eugenics that would later inform the rules of the Jim Crow era.116 In addition to calling racial mixing “unnatural” and “always productive of deplorable results,” Brown commented on the fitness of the children born to racially heterodox couples. “Our daily observation shows us, that 112 113 114 115 116

It also implied that marriage was not the same as other forms of contract. Pace v. Alabama 106 U.S. 583 (1883), 638–39. McLaughlin v. Florida 379 U.S. 184 (1964). The ruling invalidated Florida’s law that banned interracial cohabitation, not marriage. Loving v. Virginia 388 U.S. 1 (1967). Bardaglio, Reconstructing the Household, 185.

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the offspring of these unnatural connections are generally sickly and effeminate, and that they are inferior in physical development and strength, to the fullblood of either race.”117 This is the closest invocation of the one-drop formulation found in Reconstruction-era judicial rhetoric. But in context, it is arguably better understood as a reflection of the racial anxieties unleashed by the destruction of slavery, not as an early iteration of the legal doctrine that would ultimately prevail. Such beliefs had certainly not prevented slaveowners from extracting the physical or reproductive labor of enslaved people with mixed ancestry before emancipation; the worry arose only when slavery’s institutional structure ceased to provide the requisite underpinning for a racialized social order. More commonly, discussions about the risks of racial mixing tested established antebellum rules for race-based classification. Green v. State, for instance, arose only because residents of Butler County community began speculating about Julia Green’s race. J. Ransom Sermon testified that “he had a conversation” with Aaron Green, Julia’s Black husband, and “stated … that it was believed in the neighborhood that Julia Green was a white woman.” “To this,” Sermon continued, Aaron “made no reply.” Sermon then announced that he had been summoned as a “Grand Juror” for a case related to the marriage, and asked Aaron Green “if he could prove Julia Green was ever a slave.”118 Aaron Green responded that he could not verify Julia’s former status, and suspected that she could not either. In recounting this exchange, Sermon, somehow serving as both juror and witness, implied that Julia had never been enslaved, and therefore must have been white. But, Aaron Green noted, the presiding judge had not asked about Julia’s race when he issued the couple’s marriage license, suggesting that he had not perceived any barrier – racial or otherwise – to the union. In fact, no proof of Julia’s race actually exists in the extant court records. Though testimony established that Aaron Green was “a negro man,” evidence only implied Julia’s whiteness. The Alabama court nevertheless assumed the role of racial arbiter: Julia must have been white because neither she nor her husband could prove she had 117 118

Scott v. State 39 Ga. 321 (1869), 323. Green v. State 58 Ala. 190 (1877), Alabama Department of Archives and History.

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been enslaved, and only a previous condition of servitude could confirm her Blackness. Here, race and status were fused. Reconstructionera courts were still in the process of determining whether and how race ought to be established as legal fact. In this instance, Julia’s presumptive whiteness, determined by an absence of slave status, should have protected her and the rest of the white race from the degradation of racial mixing. In other suits, judges looked to heritable blood instead of status alone. Such opinions amounted to little more than exercises in racial calculus. When the Supreme Court of Virginia evaluated the marriage between a white man and Black woman, the court found that the woman, Rowena McPherson, had enough white ancestry to qualify her as white, regardless of former status. Testimony established that her great-grandmother possessed Native American and white ancestry. In an inverse of the one-drop formulation, the Virginia court determined that “if any part of the said residue of her [great-grandmother’s] blood, however small, was derived from any other source than the African or negro race, then Rowena McPherson cannot be a negro.”119 One drop of white or other blood effectively qualified her to all the benefits of that race, at least in terms of the state’s postbellum marriage law. We could attribute this ruling to the state’s legal history. Virginia had long permitted the generational acquisition of whiteness. Its antebellum statute, which the Reconstruction court referenced, permitted the classification of free persons with less than one-fourth “negro blood” as white. Furthermore, as historian Joshua Rothman has shown, Virginia courts had historically lacked the “motivation to take action against” interracial sex, “especially when conducted entirely in private.”120 However, other states’ laws also confirm a certain degree of judicial permissiveness when it came to ancestry. The Tennessee court, which consistently revealed its abhorrence of mixed-race unions, conceded that the state’s law only applied to those couples where one party was “descended from a negro to the third generation,” a typical antebellum standard for establishing whiteness.121

119 120 121

McPherson v. Commonwealth 69 Va. 939 (1877), 940. Rothman, Notorious in the Neighborhood: Sex and Families across the Color Line in Virginia, 1787–1861, 68. Lonas v. State 50 Tenn. 287 (1871), 312.

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One could become white with enough dilution of Black blood – the leap to Jim Crow extremes had not yet occurred. There still remained the possibility of reimagining racial designations, however remote it might have been. To be sure, laws from the antebellum era that defined whiteness by generations removed persisted as holdovers. They continued to enforce fictions of ancestry as determinants of race and, therefore, capacity. The idea that racial categories mattered, and that Blackness – or the addition of Blackness to whiteness – made people inferior was held by many as scientific fact in the mid- and late nineteenth century. But Reconstruction-era miscegenation suits presented jurists with an opportunity to ruminate about the meaning and construction of race, and to consider whether a revolution in the laws of citizenship called for the end of racial distinction – abolition – or whether perceived threats to biological or genetic purity constituted a justifiable consideration in lawmaking and judicial interpretation. They were, in short, reconsidering the meaning of Blackness and whiteness in a new world where slavery no longer served as the fundamental definitional referent for these categories. Criminal suits that upheld ancestry quantifications as a determinant of whiteness, and therefore suitability for marriage to a white person, ensured that the social scientific assumptions about race that developed alongside slavery would continue to play a role in legal outcomes, even absent the institutional structure of slavery itself. As Martha Hodes has shown, “[c]ategories of color,” instead of status of servitude, would ultimately have to “[bear] the entire burden for upholding the racial hierarchy.”122 During Reconstruction, however, these assumptions had not yet been overtaken by the notion that any amount of African heritage degraded a person beyond salvation. When freedpeople and their white partners took a stand against threats to their unconventional families, their liberty, and their newly acquired rights, they challenged the social order of slavery. Before the one-drop rule solidified and foreclosed other options, before Jim Crow achieved its stranglehold on the nation, before traditions of white patriarchy resolidified, litigants such as Cornelia Hart – openly

122

Hodes, White Women, Black Men: Illicit Sex in the Nineteenth-Century South, 147.

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in defense of love and family – compelled jurists of former slave states well beyond the limits of preexisting legal convention. In so doing they prompted a substantial deliberation about the extent to which equal citizenship would remake the region’s racial order, or even redefine race itself.123 By demanding social equality, in other words, their suits represented the most forceful demand for abolition heard in Reconstruction-era state courts. In some ways, suits that concerned mixed-race families shared a great deal with litigation concerning Black families. Both required a reckoning with the ways that slavery had shaped personal relationships, both considered whether previous enslavement precluded the equal exercise of domestic rights, and both asked whether Black freedom challenged preexisting doctrine and related social custom. And for a brief window of time, conceptions of race and family remained open to reinterpretation. Still, that promise existed in constant conflict with the desire to maintain and reinforce traditional white supremacy. As Wesley Hairston and Puss Williams, Aaron and Julia Green, and so many other racially heterodox couples found, those desires never waned, but the power of Radicals and other Republicans did. Thus, instead of delivering the Radical promise, the outcomes in criminal miscegenation suits produced the methods and arguments that would make discrimination and segregation legal, and they effectively prevented any more legitimate mixed-race heirs from being born. These very strategies found their ultimate success in the rulings of the U.S. Supreme Court in the 1880s and 1890s, which limited Black rights and sanctioned second-class citizenship based entirely on race. It was in deliberations about the acceptability – legal and social – of legitimate racially heterodox families that judges most firmly established the limits of equal citizenship. They determined that the Reconstruction Amendments removed the disability of former enslavement, but not the stain of race itself. 123

This contention stands in particular contrast to Peggy Pascoe’s claim that miscegenation trials from Reconstruction demonstrate the centrality of white male supremacy that would continue to motivate law and rulings throughout the twentieth century. In the context of legal Reconstruction, when white supremacy had not yet been totally naturalized in postbellum jurisprudence, these suits appear to be quite different. Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America, 45.

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8 Final Failure

As state courts contended with the legal legacies of slavery independently, the U.S. Supreme Court loomed in the background. It seemed all but impossible that slave contracts would be enforced in Texas but not in Georgia, or that freed families would be granted retroactive rights in Tennessee but not in Arkansas. Legal consistency demanded judicial review. With rulings in obscure cases as well as some of the most infamous suits ever heard by the Court, the tribunal took up that task. Here was the problem of abolition in an age of slavery at its starkest: What did it mean to eradicate slavery from life and law? Who had the authority to carry out that process? How would the justices of the Supreme Court respond to and interpret the meaning of Black freedom? This chapter examines a collection of suits decided by the U.S. Supreme Court that together privileged antebellum interpretations of doctrine over the promise of the Reconstruction Amendments, standardized the responses to post-emancipation litigation across state lines, and, ultimately, prevented abolition. The Court adopted the majority views developed at the state level as a blueprint for the edifice of Jim Crow. By compelling all states in the Union to abide by the same legal rules that limited the meaning of emancipation to freedom from bondage alone, the court denied slavery’s complete obliteration. Justices accepted that a constitutional transformation had occurred – that enslaved people were free and entitled to some rights, but they repudiated abolition – especially attempts to create 237

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social and material parity among all races – by invoking the customs and doctrines that had emerged largely out of slavery’s practice. In other words, they initiated the dynamic legal scholar Reva Siegel calls “preservation through transformation.” Siegel’s concept is useful for understanding the Supreme Court’s interpretation of Reconstruction’s thorniest legal questions. Like the  judges below them, justices of the Supreme Court conceded that  the Reconstruction Amendments and federal civil rights law required the recognition of Black freedom, but they did not accept that they had demolished the principal ideologies of the old slave regime – racial inequality chief among them.1 Instead, the Court continued to reify “the differences in material and dignitary privilege” of race in order to maintain traditional hierarchies that kept Black Americans at the bottom of American society.2 Judges accepted some changes to the law’s “rule structure and justificatory rhetoric,” including that persons could not be property, and they reassessed Black Americans’ place in society by recognizing the basic rights of freedom spelled out in the Civil Rights Act of 1866. But they did not abolish the larger set of customs and unequal relationships engendered by slavery.3 As a consequence, they ensured that freedpeople and their descendants enjoyed an incomplete form of citizenship. Collectively, rulings that maintained the bases for racial difference and discrimination stymied the uplift and incorporation that abolition demanded. They prevented the full destruction of the old slave regime and hindered any attempts to construct a new foundation for American law out of its ruins. Analysis of suits that tackled the same challenging questions as state courts, including lesser-known cases such as Texas v. White, alongside infamous ones, such as The Slaughter-House Cases, reveals that abolition’s failure rested on three main concepts: the denial of secession’s legality, the return of the distinction between state and federal citizenship, and the rejection of 1

2 3

Reva B. Siegel, “‘The Rule of Love’: Wife Beating as Prerogative and Privacy,” The Yale Law Journal 105, no. 8 (1996): 2178–87; Reva B. Siegel, “Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action,” Stanford Law Review 49, no. 5 (1997): 1113. Siegel, “‘The Rule of Love’: Wife Beating as Prerogative and Privacy,” 2178. Siegel, “Why Equal Protection No Longer Protects: The Evolving Forms of ­Status-Enforcing State Action,” 1116.

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social integration as a fundamental right of citizenship. Together, they built the jurisprudential foundation that subverted the potential of the Reconstruction Amendments and undergirded racial segregation. Often, we consider the 1896 ruling in Plessy v. Ferguson as the arrival of Jim Crow because it granted broad legal sanction to segregation and social inequality. But that traditional periodization of Reconstruction and the Jim Crow era is challenged and revised when we contextualize the Chase (1864–1873) and Waite Courts (1874–1888) as drawing from the ideological trends unfolding at the state level. In reality, the Court’s ruling in 1883’s Civil Rights Cases extinguished the prospects for postbellum abolition. This is not to say that the attitudes and practices that would come to define American apartheid emerged instantaneously, or that they instantly and completely restricted the possibility of equal rights – we know that Black voting and political mobilization, for example, continued well beyond Reconstruction’s political end in 1877.4 Rather, it is to say that jurists had fully committed to racial inequality well before 1896.5 Scholars have extensively analyzed the decisions reached in the Chase and Waite Courts.6 Some, including George Rutherglen, lament their infidelity to the Reconstruction Amendments’ original intent.7 Their authors, they argue, infused their “antislavery

4

See, e.g., Steven Hahn, A Nation under Our Feet (New York: Belknap Press, 2005). See also Siegel, “Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action,” 1119–21. 5 Scholars disagree about when Reconstruction ended and about when the racial apparatus that would become “separate but equal” was enshrined in American law. See, e.g., Douglas R. Egerton, The Wars of Reconstruction (New York: Bloomsbury Press, 2014); Edwards, A Legal History of the Civil War and Reconstruction; Brandwein, Rethinking the Judicial Settlement of Reconstruction; Nicholas Guyatt, Bind Us Apart: How Enlightened Americans Invented Racial Segregation (New York: Basic Books, 2016). 6 Hyman, A More Perfect Union; Hyman and Wiecek, Equal Justice under Law: Constitutional Development, 1835–1875; Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine. 7 Alexander Tsesis, “Antislavery Constitutionalism,” in Encyclopedia of the Supreme Court of the United States, ed. David S. Tenenhaus (New York: Macmillan Reference USA, 2008); Rutherglen, “The Badges and Incidents of Slavery and the Power of Congress to Enforce the Thirteenth Amendment”; Rutherglen, “State Action, Private Action, and the Thirteenth Amendment”; Wiecek, The Sources of Anti-Slavery Constitutionalism in America, 1760–1848; Randy E. Barnett, “Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment,” The Journal of

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constitutionalism” into the new amendments specifically to guarantee the fundamental rights of all people. The Court betrayed that promise, to disastrous ends. Others contend that the Constitution itself, which delineated a government of limited powers, restricted the revolutionary potential of Reconstruction. The language of new amendments, they suggest, intentionally blunted rather than dramatically expanded federal power to curb abuses against freedpeople or other citizens.8 As historian Michael Vorenberg has noted, the amendments were framed “in terms of what states could not do,” rather than “in terms of what Congress could do.”9 Still others, such as William Wiecek, interpret the Court’s work as the consequence of the justices’ firm commitment to common-law traditions over concerns about equity.10 These scholars claim that federal judges slotted new constitutional provisions into existing legal traditions; they did not remake those traditions to accommodate new amendments or the political imperatives that animated them.11 Given the patterns that emerged from state courts, this last interpretation is particularly compelling. Still, largely absent from existing literature is a focused study of how debates in state courts anticipated and informed the opinions of the nation’s highest tribunal. Few, if any, have addressed how rulings Legal Analysis 3, no. 11 (2011): 165–263; Richard L. Aynes, “On Misreading John Bingham and the Fourteenth Amendment,” Yale Law Journal 103 (1993): 57–104; TenBroek, Equal under Law (Originally Published as The Antislavery Origins of the Fourteenth Amendment (1951)). 8 Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment; Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine; Xi Wang, The Trial of Democracy: Black Suffrage and Northern Republicans, 1860–1910 (Athens: University of Georgia Press, 1997); Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution (New York: W.W. Norton & Company, 2020). 9 Vorenberg, “Imagining a Different Reconstruction Constitution,” 417; Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine, 49. Notably, Vorenberg does not believe that a change in phrasing would have altered the Supreme Court’s interpretation of the amendments; he argues that forces existed to undermine any “far-reaching change” the “constitutional text might have made.” 10 See, e.g., William M. Wiecek, The Lost World of Classical Legal Thought (New York: Oxford University Press, 1998). On equity in jurisprudence, see Peter Karsten, Heart versus Head: Judge-Made Law in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1997); Peter Charles Hoffer, The Law’s Conscience: Equitable Constitutionalism in America (Chapel Hill: University of North Carolina Press, 1990). 11 Vorenberg, “Imagining a Different Reconstruction Constitution,” 422.

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in suits seemingly unrelated to emancipation worked in concert with decisions about Black rights to subvert abolition’s success. For example, examining a case about the sale of state bonds alongside a suit that contributed to the postratification meaning of the Fourteenth Amendment reveals that the same connection between private law and Black citizenship that emerged at the state level pervaded the Court’s jurisprudence. Supreme Court rulings cemented that relationship, which limited the scope of the Thirteenth and Fourteenth Amendments, as settled doctrine. By expanding our perspective, it becomes easier to observe the justices’ options, where their strategies came from, and how those strategies allowed the Court to grant legal recognition of Black freedom while undermining the Reconstruction Amendments’ abolitionist potential. Questions about the legality of secession, its implications, and various responses to it emerged in state courts, legislatures, and constitutional conventions immediately following the Civil War. The U.S. Supreme Court began intervening in the discussions in 1869. Its ruling in Texas v. White ultimately directed the Court’s position on a broad set of questions. The suit came to the Court directly from the state of Texas. While under the authority of postbellum Unionist governor A.  J. Hamilton, the state sought to recover bonds worth $5 million. The bonds were originally acquired in 1851 as part of the Compromise of 1850, but a decade later they were sold by the state’s Confederate government to raise wartime funds.12 According to the Texas government installed after the Civil War, rebel traitors had stolen the bonds. Buyers had therefore obtained illegal goods and were obligated to return them to the legitimate government of Texas. The Supreme Court of the United States, however, had jurisdiction over the suit if, and only if, Texas had remained a state in the Union. If membership in the Confederacy had severed that tie, Texas had no standing to sue, and there would be no chance for the state to recoup its losses.13

12 13

Act of September 9, 1859, §I, cl. 49 9 Stat. 446 (1850); Nicoletti, Secession on Trial, 313. Brian McGinty, Lincoln & The Court (Cambridge, MA: Harvard University Press, 2008), 289.

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The case landed on the Court’s docket as a political grenade. Ruling on secession’s legality had direct implications for Congress’ ability to carry out its vision for Reconstruction. Since states could not be subject to federal military control, beholden to congressional demands, or denied representation in Congress, the Reconstruction Acts could be declared unconstitutional if the Court determined that Texas had not seceded.14 Writing for the majority, Chief Justice Salmon P. Chase attempted to straddle the statehood line. He declared secession a legal impossibility, while also affirming the legality of congressional Reconstruction. Ultimately for Chase, who chose to write the opinion for the difficult and polarizing case rather than assign it to another justice, Texas v. White presented an opportunity for the Court to comment on the nature of the Union, on Reconstruction as a federal project, and on the nation’s expanded citizenry. Despite their cool – and sometimes outright tense – personal relationship, Lincoln nominated Salmon P. Chase to the chief justiceship of the Supreme Court with little hesitation. Lincoln knew that questions about secession, war, and Reconstruction would come before the bench, and he believed Chase shared his positions on most of them.15 (He also did not want to run against Chase for president in the election of 1864.) Throughout his professional life, Chase had been a committed Free Soiler who favored the preservation of the Union and the halt of slavery’s expansion into western territories.16 Before joining Lincoln’s cabinet as secretary of the treasury (a post from which he resigned in July 1864), Chase had served as governor of Ohio and then as U.S. senator for the state. In the Senate, he helped develop the idea of the “Slave Power” and organized the antislavery coalition in Congress.17 14

15 16

17

Nicoletti, Secession on Trial, 314. On the legality of Congressional Reconstruction, See also Spaulding, “Constitution as Countermonument: Federalism, Reconstruction, and the Problem of Collective Memory”; Akhil Amar, “The Lawfulness of Section 5 – and Thus of Section 5,” Harvard Law Review Forum 126, no. 109 (2013): 109–121. McGinty, Lincoln & The Court, 234. See in particular Chase’s speech about the Compromise of 1850. Salmon P. Chase, Union and Freedom, without Compromise: Speech of Mr. Chase, of Ohio, on Mr. Clay’s Compromise Resolutions (Washington DC: Buell & Blanchard, 1850), https://hdl.loc.gov/loc.gdc/gdclccn.10025291. Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the Civil War, 73; Tsesis, “Antislavery Constitutionalism.”

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Lincoln’s assessment of Chase proved as accurate as his prediction about the issues that the Court would ultimately consider. To sustain the claim of an uninterrupted Union and the illegality of secession, Chase relied on the arguments Lincoln made before and during the Civil War. “The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States,” Chase declared in Texas. “The act which consummated her admission into the Union,” he continued, “was something more than a compact; it was the incorporation of a new member into the political body. And it was final.” All states would have had to agree to the dissolution of the Union, or a “revolution” – a Civil War that ended in Confederate victory – would have had to have succeeded in order for a state to leave the Union. The decision to secede could not be made unilaterally by a single state or a consortium of states. The Union was, and had always been, one “political body,” “as perpetual, and as indissoluble as the union between the original States,” which predated the Constitution itself.18 While Chase’s opinion confirmed that all states were permanent members of a perpetual union, he took care not to undercut Congress’ plans for Reconstruction. Invoking the guarantee clause, Chase insisted “authority” for Congressional Reconstruction “was derived from the obligation of the United States to guarantee to every State in the Union a republican form of government.”19 Some congressmen had also argued that the Constitution’s guarantee clause possessed tremendous power.20 Sumner called it a “sleeping giant” that gave Congress power over the states, while Lyman Trumbull and other Radicals contended that the Thirteenth Amendment “gave

18

19 20

Texas v. White 74 U.S. 700 (1869), 726, emphasis added. See also Michael Les Benedict, “Salmon P. Chase and Constitutional Politics,” Law and Social Inquiry 22 (Spring 1997): 482. Texas v. White 74 U.S. 700 (1869), 727; U.S. Const. Art. IV, §4. For those seeking to enact sweeping Reconstruction reforms, the clause appeared to provide the basis of congressional oversight without having to rely on ab initio. But there existed no clear definition of a “republican form of government,” and perhaps more important, the states might return to the Union fold once they reestablished such governments without undertaking significant reform. Benedict, Preserving the Constitution: Essays on Politics and the Constitution in the Reconstruction Era, 8.

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constitutional substance” to the clause by allowing Congress to ensure that post-emancipation state governments protected Black freedom.21 Chase’s invocation of the guarantee clause was more modest. Congress had the right to provide for a republican government, but the Constitution demanded the protection of states’ rights against an overly assertive federal government.22 While states may not have been entitled to representation in Congress because they lacked proper republican governments, and federal military intervention may have been required to stamp out lingering rebellious forces that might otherwise have prevented such a government from forming, states had to be restored to their rightful constitutional place once the stipulated conditions had been met.23 He believed the Reconstruction Acts abided by these terms; after all, they treated the states of the former Confederacy as states. In effect, Chase accepted a version of the “grasp of war” theory laid out by Richard Henry Dana in 1865. While rebellious states had not surrendered their statehood by attempting secession and then losing on the battlefield, they nevertheless remained in the “grasp of war” until Congress verified that they had established republican governments. The people of the state, Chase wrote, ensured that it “endured as a geographical entity” throughout the war.24 The wartime actions of a state’s legislature, chosen by the people, were valid as long as they did not aid in the illegal rebellion against the United States.25 The sale of state bonds to fund the war effort failed that test. Those belonged to the people of the state, and they had to be returned to them. Ultimately, Chase’s opinion in Texas managed to deliver partial victories to those in a range of ideological camps.26 21 22 23

24 25 26

Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, 232; Edwards, A Legal History of the Civil War and Reconstruction, 99. Benedict, Preserving the Constitution: Essays on Politics and the Constitution in the Reconstruction Era, 148. Harold M. Hyman, The Reconstruction of Salmon P. Chase: In re Turner & Texas v. White (Lawrence: University Press of Kansas, 1997), 143; Hyman, A More Perfect Union, 518. See Texas v. White 74 U.S. 700 (1869), 731–32. Hyman, The Reconstruction of Salmon P. Chase: In re Turner & Texas v. White, 149. Ross, Justice of Shattered Dreams: Samuel Freeman Miller and the Supreme Court during the Civil War Era, 161. Ibid., 160.

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He relieved southerners who feared their states might be downgraded to territories under complete congressional control, while simultaneously offering support to those in favor of the provisions spelled out in the Reconstruction Acts. Justices Noah Swayne, Samuel Miller, and Robert Grier rejected Chase’s reasoning.27 As many of their peers in state courts had asserted, and as the Supreme Court itself had claimed in 1863’s The Prize Cases, the Confederacy had behaved as a distinct nation made up of the seceded states, even if its gambit on independence ultimately failed.28 Justice Grier wrote, “Is Texas one of these United States? Or was she such at the time this bill was filed, or since? This is to be decided as a political fact, not as a legal fiction. This court is bound to know and notice the public history of the nation. If I regard the truth of history for the last eight years, I cannot discover the State of Texas as one of these United States.”29 Grier believed that the de facto status of the former Confederate states mattered more than any “legal fiction” concocted to prove that the Union was and had always been perpetual. To him, one had to ignore the horror and destruction of the war itself to think otherwise. As some state court judges similarly insisted, the Confederate States of America had been a separate nation because its people, in state conventions, had declared it to be so; Confederate leaders had raised an army, founded a separate government to support independence, and conducted international diplomacy.30 In truth, the ruling did not settle much about the constitutionality of secession. Instead, the court’s effort in Texas v. White was “halfhearted:” a “perfunctory pronouncement against the constitutionality of secession” that relied on the outcome of the Civil War: only because the Confederacy’s revolution had failed could the Court 27

28

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Grier wrote the most robust dissent about the existence of the Confederacy. Swayne wrote a concurring dissent, which Miller joined, that agreed with Grier on secession, and raised additional procedural issues that he thought ought to have been addressed. See in particular Andrew Jackson Hamilton’s dissent in the Emancipation Proclamation Cases, discussed in Chapter 4. Emancipation Proclamation Cases 31 Tex. 504 (1868), 544. Texas v. White 74 U.S. 700 (1869), 738. For a discussion of the postbellum southern mentality on the nature of the Confederacy, see Nicoletti, “The American Civil War as a Trial by Battle.”

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claim that Texas had not left the Union and secession was unconstitutional.31 The ruling merely aligned the court with the verdict of the Civil War reached on the battlefield.32 Beyond the matter of secession, however, the ruling accomplished a great deal. For instance, it allowed Chase, the long-time abolitionist, to declare that “the people” had come to include newly emancipated freedpeople.33 “The new freemen necessarily became part of the people,” he wrote, “and the people still constituted the State; for States, like individuals, retain their identity, though changed to some extent in their constituent elements. And it was the State, thus constituted, which was now entitled to the benefit of the constitutional guaranty.”34 The Civil War had not changed the status of any state in the Union, but it had greatly expanded and altered the composition of their citizenries. Chief Justice Chase was encouraged to reach this decision by none other than Texas court reporter and “scalawag jurisprudent” George Washington Paschal, who represented the state in its legal effort to recover the lost bonds.35 Paschal’s brief for the case was specifically designed to entice Chase.36 He suggested that the Court view Texas v. White as an opportunity to transform the issue from the legal status of the state into one about the rights of the people – newly defined.37 The proposal gave Chase exactly what he wanted. It provided a rationale that would force the new Texas government, if it wanted to be recognized and represented in Congress, to include Black citizens as part of the state’s body politic – just as Paschal had suggested in his headnotes to the Emancipation Proclamation Cases. The price of readmission to the Union, in other words, became the acceptance of emancipated people as rights-bearing legal subjects. The war had indeed become 31 33 34 35 36

37

Nicoletti, Secession on Trial, 8, 13, epilogue. 32 Ibid., 317. Hyman, The Reconstruction of Salmon P. Chase: In re Turner & Texas v. White, 148. On the responses to the ruling, see Nicoletti, Secession on Trial, epilogue. Texas v. White 74 U.S. 700 (1869), 728–29. Hyman, A More Perfect Union, 517. Chase and Paschal had similar professional trajectories. Both studied law as apprentices and clerked for prominent judges. Chase clerked for Judge William Wirt; Paschal served Joseph Lumpkin. Both men published digests of their respective states’ laws; Chase published for Ohio, while Paschal wrote for Texas. Hyman, The Reconstruction of Salmon P. Chase: In re Turner & Texas v. White, 144. Ibid., 146.

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one about Black freedom, not just one about the security of the Union. Chase attempted to use his ruling in Texas v. White to enshrine that principle in law – and to compel states to accept it – while simultaneously denying that secession could ever be lawful. In this way, Chase expected the ruling to further abolition, not undermine it. Instead, the Texas ruling did the opposite. It directed judges to work within the preexisting legal framework of the United States because, the Court determined, no great rupture had occurred. Chase’s opinion helped maintain a continuity of American legal rules, formed the basis for affirming the legitimacy of legal agreements made during the Confederate period, and promoted the immediate resumption of state and personal business. But most important – and contrary to Chase’s intent – it became the cornerstone for the assertion that matters involving slavery and the antebellum legal doctrines that supported them had been undisturbed by attempted secession or war. And in turn this became one of the requisites of abolition’s failure. Amid a flurry of litigation at the state level, the Supreme Court tackled the troublesome issue of slave contract enforcement in 1872 with decisions in White v. Hart and Osborn v. Nicholson. The ruling in Texas has garnered far more scholarly attention than these relatively obscure contract cases, but in reality, these suits belong in direct conversation with it. The Texas ruling undergirded the verdicts in both White and Osborn, illustrating the great importance of Chase’s decision in adjudication related to slavery. White v. Hart determined whether the provision of Georgia’s constitution of 1868 that banned the enforcement of slave contracts was valid.38 Justice Noah Swayne’s opinion for the case decided that it was not. The problem, the Supreme Court decided, was that Georgia’s state constitution had eliminated all remedies for enforcing the contract: “[N]ot a vestige was left. Every means of enforcement was denied, and this denial if valid involved the annihilation of the contract.” This “annihilation,” Swayne proclaimed, “is not valid.” “The proviso

38

“No court or officer shall have, nor shall the General Assembly give, jurisdiction to try, or give judgment on, or enforce any debt, the consideration of which was a slave or the hire thereof.”

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which seeks to work this result, is, so far as all preexisting contracts are concerned, itself a nullity. It is to them as ineffectual as if it had no existence.”39 As many state courts had already determined, the Supreme Court of the United States held that the constitutional provisions barring slave contract enforcement violated the contract clause of the Constitution. All such agreements were valid and enforceable if they had been made lawfully while slavery itself was legal. The ruling in White v. Hart necessarily depended on the court’s position on secession. The defendant in the case invoked Joseph E. Brown’s determination about state sovereignty to argue against enforcement. Between the end of the Civil War and Georgia’s readmission to the Union, Article 1, section 10 of the U.S. Constitution could not have applied because Georgia was not a state. In response to this claim, the Supreme Court merely cited the decision from Texas v. White: Attempted secession had not severed Georgia’s tie to the United States. The state had remained a perpetual member of the Union because its military pursuit had failed. Despite his dissent in Texas, Justice Swayne reiterated its ruling. “At no time were the rebellious States out of the pale of the Union” Swayne wrote. “Their rights under the Constitution were suspended, but not destroyed. Their constitutional duties and obligations were unaffected and remained the same.”40 Decided concurrently with White, Osborn v. Nicholson presented a variant of the contract issue – the warranty claim. As explored in Chapter 2, some litigants attempted to avoid payment for slaves after emancipation by contending that emancipation breached their warranties. Osborn made this type of claim. As to the matter of the contract itself, the court relied on their ruling from White v. Hart. But the thornier warranty issue required separate comment. On this matter, Swayne equated the loss of slave property to eminent domain, which the court determined “is not a violation of the covenant for quiet enjoyment.”41 Just as some state courts noted, Swayne encouraged 39 40

41

White v. Hart 80 U.S. 646 (1872), 654. White v. Hart 80 U.S. 646 (1872). A year later, Boyce v. Tabb invalidated a similar provision in Louisiana’s 1868 constitution. Boyce v. Tabb 85 U.S. 546 (1873). That ruling did not disturb the Wainwright precedent. Osborn v. Nicholson 80 U.S. 654 (1872), 657. Opponents to this view invoked the takings clause of the Fifth Amendment; property could not be seized without “just compensation.” VanderVelde, “The Labor Vision of the Thirteenth Amendment,” 444.

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the litigants to think of emancipation as the lawful taking of property by the government; such an action did not breach the warranty, as it never could have been foreseen or prevented by the seller.42 The bondsperson at the heart of the contract suit – Albert – had remained enslaved for the life of the institution in the jurisdiction in which he lived. That satisfied the warranty. Just as state courts had recognized, the Supreme Court conceded that a warranty might have protected against this taking if it included “a guaranty against the event which has caused it,” but this was not stipulated, as few suspected in March 1861 when the contract was executed that a civil war would destroy the peculiar institution.43 The opinion in Osborn overturned the unabashedly abolitionist ruling of Federal District Court judge Henry Clay Caldwell. Slavery had no sanction in natural law, Caldwell had claimed, and he insisted that courtrooms could no longer be used by those who had plied a “barbarous traffic” to recover their costs. Caldwell went further than any judge in state court to deny the enforceability of agreements for the sale or lease of enslaved people (Chapter 1). As incidents of slavery, he contended that such contracts violated the Thirteenth Amendment and section 4 of the Fourteenth Amendment. The alternative “interpretation,” Caldwell wrote, “would do violence to the whole spirit of the constitution, and it would be giving the high sanction of the constitution of the United States to a code of justice not much less

42 43

Eminent domain had been declared a legitimate state power by the Supreme Court in West River Bridge v. Dix (1848). In this case and others that dealt with the premise, however, just compensation for the expropriated property was necessary for the act to be deemed legal. In Mills v. St. Clair County (1850), the High Court ruled that it was up to the state legislatures and courts to protect individuals from violations of the “public use” and “just compensation” requirements of eminent domain. However, in the cases under review here, no compensation, be it just or unjust, for lost slave property would be forthcoming. Harry N. Scheiber, “Property Law, Expropriation, and Resource Allocation by Government: The United States, 1789–1910,” The Journal of Economic History 33, no. 1 (March 1973): 232–51; Horwitz, The Transformation of American Law 1780–1860, chap. 3. Walker v. Gatlin 12 Fla. 9 (1867), 15. Osborn v. Nicholson 80 U.S. 654 (1872), 658. It should be noted that prior to emancipation, slaves could also have been insured as property. Insurance might have covered the loss in the event that a warranty would not. However, few southerners insured their slaves, preferring instead to use their accumulated wealth to buy more slaves. See Levy, Freaks of Fortune: The Emerging World of Capitalism and Risk in America, chap. 3. See also Holmes v. Sevier 154 U.S. 582 (1872).

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a violation of right, reason, and justice than the slave code itself. … [T]his principle cuts its way through all vested rights and obligations of contracts based on slave codes.”44 Swayne might have been persuaded by such an argument. Another Lincoln appointee, Swayne had been born a Quaker in Virginia. His antislavery views prompted him to move to Ohio, where as a lawyer, he regularly defended fugitive slaves against reenslavement. By the mid-1850s he had become a Republican who opposed the expansion of slavery, and after the Civil War, he assiduously supported freedpeople’s rights. Even from the bench, he urged the state of Ohio to ratify the Fifteenth Amendment. But Swayne started out his adult life as a Jacksonian Democrat and represented corporations throughout his career as an attorney. Wealthy elites, including Samuel Tilden and William B. Ogden (president of the Union Pacific Railroad), supported his nomination to the Supreme Court precisely because Swayne had developed a reputation as a friend to American business.45 This aspect of Swayne’s personal background helps explain why he dissented in Texas – rejecting the idea that the Union had survived the war intact – but still used its rationale to support his opinions in White and Osborn, and why he did not accept the abolitionist vision of jurists like Caldwell.46 As strong as Swayne’s antislavery views had been, his longstanding commitments to liberal capitalism won out. Indeed, when Hall v. United States came before the Court, he relied on his opinion in Osborn to reiterate that in all instances of contract, “the destruction of the institution can have no effect upon the prior rights here in question.” In this particular instance, the position justified denying a freedman contract rights – which, Swayne incidentally noted, included the right to contract marriage. A Black man claimed he had been born a free man and was wrongfully enslaved. He had contracted “with his master” for cotton that was seized by the U.S. Army in April of 1863. He sued for its recovery. The Court denied

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Osborn v. Nicholson 18 F. Cas. 846 (1870), 856. McGinty, Lincoln & The Court, 106–7. Ibid.; Melvin I. Urofsky, ed., The Supreme Court Justices: A Biographical Dictionary (New York: Garland Publishing, Inc., 1994), 455; Ross, Justice of Shattered Dreams: Samuel Freeman Miller and the Supreme Court during the Civil War Era, 73.

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that Hall had been born free, and therefore rejected that he had the right to contract for the cotton while he was enslaved. Collapsing race and status, Swayne affirmed that “His color was presumptive proof of bondage.”47 With its rulings on contracts for enslaved people, the Supreme Court ensured that slavery would continue to be litigated, and its connection with capitalism would endure. In that sense, Swayne and the Court’s majority deemed the sanctity of contract, and private law rules in general, to be of greater importance than some states’ desire to eliminate one of the last vestiges of slavery from their statute books and courtrooms.48 More important, the rulings permitted their view of liberty of contract to trump the Radical vision for abolition. Though African Americans could no longer be enslaved and owned as property, the Supreme Court of the United States supported the notion that the contracts that assigned monetary worth to their bodies still retained their value when it recognized the property rights of former owners. Contracts for slaves, that is, did not count as incidents of slavery. There would be no wholesale rejection of elements of law that had supported slavery and its prior profitability. To this point, Chief Justice Chase vehemently dissented.49 Superficially, his position in these suits appears to have contradicted his opinion in Texas v. White. If the states of the former Confederacy had never legally seceded from the Union, then why would Article 1, section 10 not apply to contracts for the sale or lease of enslaved people? Once again, the answer lies as much in Chase’s personal history as an antislavery advocate as in his jurisprudence. To Chase, the rule of American law was continuous, and the protection of private contracts and property rights was sacrosanct – except when it came to matters connected to slavery.50 Like abolitionist judges at the state level, he rejected the protection of the right to property in persons, and he bristled at the notion that contract doctrine could be used to circumvent the Constitution’s dictates on slavery. 47 48 49

50

Hall v. United States 92 U.S. 27 (1875), 30. Ranney, In the Wake of Slavery, 60–61. Chase was near death in 1872, and the short dissent reflected the ailing chief justice’s condition. He had suffered a stroke in 1870. Hyman, The Reconstruction of Salmon P. Chase: In re Turner & Texas v. White, 151. Ibid., 148, 158.

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Slavery, Chase believed, had never been supported by the Constitution.51 He contended that the framers never intended the Constitution to protect slavery indefinitely; they considered freedom to be the natural right of all men.52 His interpretation of the Fifth Amendment supported this claim: It restricted Congress from depriving any person of life, liberty, or property without due process of law. This ensured that all people had the explicit right to liberty and could not be reduced to bondage without some kind of positive legal process, and, as an amendment, it superseded any proslavery clauses in the Constitution.53 Individual states could maintain slavery as a lawful institution, but it was the imposition of local law that made it legal, not any constitutional assurance or tenet in natural law. As many postbellum abolitionist judges ultimately agreed, slavery was a creature of positive law alone. As his long-standing ideology and judicial opinions illustrate, Chase did not view Reconstruction or the cases that he heard during the period as validating constitutional rupture. There was no need for him to envision the Reconstruction Amendments as revolutionary because they only made explicit what he believed to be the original intentions and values of the founders. If anything, the post-emancipation cases he heard as chief justice offered him the opportunity to deliver a constitutional restoration. As his friend Ohio Governor George Hoadly remarked, “By disposition and education

51

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Before the Civil War, Chase granted its statutory legality where it already existed, but did not accept its expansion as legitimate. Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the Civil War, 73. See also Hoang Gia Phan, Bonds of Citizenship: Law and the Labors of Emancipation (New York: New York University Press, 2013), 120–21; Tsesis, “Antislavery Constitutionalism”; Barnett, “Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment,” 210–17. Some abolitionists, including John Bingham, contended that slavery could continue to exist only in the original thirteen states, but not elsewhere; others argued it was unconstitutional everywhere. Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the Civil War, 75. Ibid., 76. This belief became the basis for part of the Liberty Party’s platform. The Radical Abolitionist Convention contended that even if the Constitution had proslavery clauses, the Fifth Amendment, “like a codicil to a will,” overrode them. Barnett, “Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment,” 244.

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[Chase] was a conservative. His function was not that of a destroyer, but a restorer.”54 Chase shared much with abolitionists, some of whom were framers of the Thirteenth Amendment itself, and others of whom sat on the benches of state courts. The new amendment affirmatively restored the natural right of freedom to all people; it did not confer or create any new rights. The view echoed what Swayne himself had written in United States v. Rhodes (1866), but had then come to reject just a few years later.55 With the ratification of the Thirteenth Amendment, Chase wrote, “the common law of all the States was restored to its original principles of liberty, justice, and right, in conformity with which some of the highest courts of the late Slave States, notably that of Louisiana, have decided, and all might, on the same principles, decide, slave contracts to be invalid, as inconsistent with their jurisprudence.”56 To be sure, when evaluating the legality of slave contracts, the Supreme Court faced the same difficult task and experienced the same judicial division as state courts. Their review of the suits exposed a conflict between notions of public interest and doctrinal tradition, and an amended federal Constitution. On the one hand, courts were presented with new state constitutions that barred the enforcement of such contracts, which had been approved by Congress and supposedly reflected the sovereign will of the people.57 Legislators struggled to revive lethargic economies and ease disorder within their communities and institutions and saw the bans as debt relief measures. On the other hand, the creditors to whom debts for slaves were owed and those wedded to antebellum commercial law saw them as violating the 54

55 56

57

George Hoadly, quoted in Benedict, “Salmon P. Chase and Constitutional Politics,” 472. This conservatism was lauded by Chase’s contemporaries, who were impressed by the chief justice’s ability to leave politics behind and assume a proper degree of “caution and restraint” when faced with cases that could have radicalized the American constitutional order. United States v. Rhodes 27 F. Cas. 785 (No. 16,151) C.C. Ky. (1866). Osborn v. Nicholson 80 U.S. 654 (1872), 663–64. Interestingly, Chase did not remark on the other contract cases entertained by the Supreme Court during his tenure. Only those related to slavery occasioned such impassioned remarks. Benedict, “Salmon P. Chase and Constitutional Politics,” 486–87. See especially Roman J. Hoyos, “A Province of Jurisprudence? Invention of a Law of Constitutional Conventions,” in Law Books in Action: Essays on the Anglo-American Legal Treatise, ed. Angela Fernandez and Markus D. Dubber (Portland, OR: Hart Publishing, 2012).

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basic principles of contract law and liberal economics. Over Chase’s strong objection, the latter view prevailed. By preserving slave contracts, the Supreme Court invented a form of doctrinal consistency by overlooking the agreements’ relationship with slavery.58 Rather than explore the possibility that slavery had become irrevocably intertwined with the law of contract, rendering these particular agreements (and only these) unenforceable, the nation’s high court saw the matter in starker terms. It required courts deal with post-emancipation contracts as they would any other contract. Slavery, defined narrowly as the property interest that had been vested in millions of African American bodies, was all that courts could safely invalidate without disrupting a multitude of other legal arrangements touched by slavery. The Court thus enshrined the narrow reading of the Thirteenth Amendment that had emerged in state courts, ensuring that not all facets of the peculiar institution would be eradicated. They recognized the transformation produced by emancipation, that is, but preserved elements of slavery’s capitalism that abolitionists sought to destroy. The cases that addressed the legality of secession or the enforceability of slave contracts operated retrospectively. They resolved issues that stemmed directly from the enactment of Black freedom. But other suits, particularly those that shaped emerging Fourteenth Amendment doctrine, functioned prospectively. These rulings set the terms by which Black citizenship would be understood and protected going forward. Suits that fell into both categories combined to determine the prospects for the total eradication of slavery from American law. At the Supreme Court, landmark decisions, including in the SlaughterHouse Cases, United States v. Cruikshank, The Civil Rights Cases, and ultimately Plessy v. Ferguson, must be understood as part of the Court’s process of determining whether a sociolegal regime free from

58

This contention – that the ruling sided with historical conceptions of contract doctrine – corroborates the findings of Howard Gillman. There is, however, more work to be done on the interconnection between rulings in post-emancipation slave contract litigation and the development of the liberty of contract doctrine that marked the Progressive era. Howard Gillman, The Constitution Besieged: The Rise & Demise of Lochner Era Police Powers Jurisprudence (Durham, NC: Duke ­University Press, 1995).

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the taint of slavery could be constructed in the United States. But rather than interpreting these seminal cases only as defining moments in Fourteenth Amendment jurisprudence, or as part of the origin story for Jim Crow, they should also be understood as representative of the ongoing struggles over abolition and individual rights – white and Black – that emerged in state courts during Reconstruction. Few questioned the federal government’s ability to end the practice of slavery through the amendment process (in contrast to emancipation by statute), or to define the rights of national citizenship.59 And neither the Thirteenth Amendment nor the Civil Rights Act of 1866 interfered with state citizenship or the relationship between the states and the federal government.60 But the Fourteenth Amendment, ratified in 1868, appeared to fundamentally alter the original compact of states by giving Congress the power to compel states to protect the rights of citizenship equally. No state, according to its dictates, could “abridge the privileges or immunities of citizens of the United States.”61 States, it seemed, would have to abide by and respect the rights of citizenship of all people for the first time. The Slaughter-House Cases offered the Supreme Court its first opportunity to consider the scope of the dictate, and like Texas v. White, it laid the foundation for the subsequent jurisprudence and became the second element of abolition’s failure. The Slaughter-House Cases concerned the Louisiana legislature’s decision to give a butchering monopoly to the Crescent City LiveStock Landing and Slaughter-House Company. The Court ruled that the monopoly – ostensibly established to protect public health – ­constituted a valid exercise of the state’s police power (the authority to protect the health and safety of society, sometimes at the expense of individual liberties). At the same time, Justice Samuel Miller’s opinion revived the distinction between state and national citizenship, and practically obliterated the privileges and immunities clause of the Fourteenth Amendment.

59 60

61

White, Law in American History, 2016, II:21. Section 2 of the Thirteenth Amendment gave Congress the power to ensure slavery did not return, but it did not fundamentally alter the bonds of federalism or give the federal government any powers over the rights of state citizenship. U.S. Const. Amend XIV, §1.

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The attorney representing the Butchers’ Benevolent Association, Joseph A. Campbell, challenged the state-sanctioned monopoly. The former Supreme Court justice, who had resigned his position on the nation’s highest court to serve the Confederacy, was not interested in arguing about the utility of the statute or Louisiana’s justification for enacting it. Instead, he sought to make the case a referendum on the Fourteenth Amendment itself.62 Campbell argued that the Louisiana law abridged the “privileges and immunities” of the butchers, infringed their due process right to conduct their trade without undue interference, and violated the amendment’s equal protection clause by giving preference to some butchers over others. Though he might have restricted his comments to the police power question alone (whether the state had the right to enact a sanitary law of this type to protect the general health and welfare of New Orleans’ residents), Justice Miller chose to directly address Campbell’s claims. First, Miller rejected the use of the Fourteenth Amendment as grounds for the suit. Contradicting the principle established in congressional debates and public venues that the amendment protected all citizens, Miller held that it had been adopted only to establish citizenship and protect the civil rights of Black Americans.63 Second, Miller wrote, the Fourteenth Amendment prohibited states from “abridg[ing] the privileges and immunities of citizens of the United States,” but they included only enumerated rights, such as access to ports and protection on the high seas. The privileges and immunities clause did not protect against the impairment of rights traditionally granted by one’s state, including the right to marry, contract, sue, and so on.64 The conclusion

62

63

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Richard L. Aynes, “Constricting the Law of Freedom: Justice Miller, The Fourteenth Amendment, and the Slaughter-House Cases. Freedom; Constitutional Law,” ­Chicago-Kent Law Review 20, no. 2 (1994): 633. Ibid., 644–46. Swayne specifically dissented on this point. “The protection provided was not intended to be confined to those of any particular race or class, but to embrace equally all races, classes, and conditions of men.” Slaughter-House Cases 83 U.S. 36 (1873), 129. Slaughter-House Cases 83 U.S. 36 (1873), 77–78. “Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared

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inevitably revived the antebellum distinction between national and state citizenship articulated in Dred Scott.65 It was to this point that Justices Field, Bradley, Swayne, and Chase dissented.66 After all, Justice Field noted, such a distinction rendered the Fourteenth Amendment “a vain and idle enactment, which accomplished nothing.”67 Ultimately, Field’s assessment proved portentous. By viewing the rights of national citizenship – all that the amendment protected from state interference, according to Miller – in such narrow terms, the Court limited the Fourteenth Amendment’s scope and, ultimately, the federal government’s authority to guarantee a broad range of civil rights for African Americans. Miller’s conclusion contradicted the animating ideology of the Fourteenth Amendment. Its text had been drafted largely by antislavery

65

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that Congress Shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States? [I]f the proposition of the plaintiffs in error be sound … [T]he effect is to fetter and degrade the State governments by subjecting them to the control of Congress in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character. … We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.” As Harold Hyman writes, “All the judges ignored congressional debates, that, arguably assumed in the Amendment’s first section national protection against state infringement of a very broad body of ordinary rights.” Richard Aynes notes that Miller drew the distinction by misquoting Article 4 – perhaps deliberately – to protect state rights, not national rights. Hyman, A More Perfect Union, 460; Aynes, “Constricting the Law of Freedom: Justice Miller, The Fourteenth Amendment, and the Slaughter-House Cases. Freedom; Constitutional Law,” 646–47. See also Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine, 163; Brandwein, Reconstructing Reconstruction; Aynes, “On Misreading John Bingham and the Fourteenth Amendment.” All four justices signed Justice Stephen Field’s dissent; however, Swayne and Bradley also wrote separate dissents of their own. Chase, who was quite ill by the time the case was decided, offered no separate remarks. Field’s dissent has become famous for its early articulation of the free labor, laissez faire principles that would become the hallmark of the Lochner era. Field saw the monopoly granted by Louisiana as class legislation, and believed the court should oppose it. Swayne and Bradley placed more emphasis on the expanded notion of national citizenship. They noted that the Civil War and the end of slavery produced “an expansion of the meaning of liberty to include the liberty of individuals against popular majorities,” and the Fourteenth Amendment had been “designed to remedy” any violation of this right. Brandwein, Reconstructing Reconstruction, 68–69. Slaughter-House Cases 83 U.S. 36 (1873), 96.

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members of Congress.68 The primary author of section 1, Ohio representative John Bingham, used the phrase “privileges and immunities” just as antebellum abolitionists had.69 Article IV of the Constitution also contains a “privileges and immunities” clause. Antebellum activists had maintained as early as 1834 that along with the full faith and credit clause and the fugitive slave clause, Article 4’s privileges and immunities clause functioned as “a compact” that required states to uphold a set of unenumerated rights, even though the antebellum Congress had no specific power to force them to do so.70 They understood the Constitution’s privileges and immunities clause as protecting fundamental and natural rights – also known as substantive rights – that were not derived from statutory law. For some, these included the protections outlined in the Bill of Rights.71 Unlike political rights, these could never be restricted or abridged by any authority.72 As an attorney, Chase himself had made this argument to the Supreme Court in 1847.73 The Fourteenth Amendment, according to the views of its antislavery authors, gave Congress the power to compel states to protect a much broader range of rights than ever before.74

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Wiecek, The Sources of Anti-Slavery Constitutionalism in America, 1760–1848; Tsesis, “Antislavery Constitutionalism.” Barnett, “Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment”; Aynes, “On Misreading John Bingham and the Fourteenth Amendment”; Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine, 9. Scholars who advocate this view have overturned the interpretation of Bingham and other abolitionists presented in Charles Fairman, “Does the Fourteenth Amendment Incorporate the Bill of Rights?” Stanford Law Review 2, no. 1 (December 1949): 5–138. Aynes, “On Misreading John Bingham and the Fourteenth Amendment,” 74–75. Some viewed the Civil Rights Act of 1866 as specifically giving Congress the requisite enforcement power. Ibid., 79–80. Barnett, “Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment,” 249–50, 253. Aynes, “On Misreading John Bingham and the Fourteenth Amendment,” 75; Jones v. Van Zandt 46 U.S. 215 (1847). This interpretation rejects the narrow reading of the privileges and immunities clause presented in Kurt T. Lash, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (New York: Cambridge University Press, 2014). More persuasive is Randy E. Barnett and Evan Bernick, “The Privileges or Immunities Clause Abridged: A Critique of Kurt Lash on the Fourteenth Amendment,” Notre Dame Law Review 95, no. 2 (March 2019): 499–589.

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This expansive interpretation of the Fourteenth Amendment was also espoused in the press and in the few legal treatises written about it. In fact, George Paschal published one such treatise while states were considering the ratification of the Fourteenth Amendment.75 In it, he claimed that section 1 applied the Bill of Rights to the states. “The new feature declared,” he wrote, “that the general principles which had been construed to apply only to the national government, are thus imposed upon the states.”76 Bingham approved of Paschal’s interpretation, and even Miller himself remarked that the treatise was “very valuable work.”77 By this reading, Miller’s interpretation of the Fourteenth Amendment in the Slaughter-House opinion was fundamentally faulty. Its framers did not intend the amendment to be limited to narrowly defined “national rights”; it protected the fundamental rights of all people from state actions and affirmatively incorporated the Bill of Rights.78 Justice Joseph P. Bradley and Noah Swayne in particular dissented from Miller’s opinion on these grounds. To Bradley, the amendment secured “certain fundamental rights,” explicit and “incidental,” “against violation by the States.”79 Swayne considered the new amendments to “rise to the dignity of a new Magna Charta.”80 Of course, the intent of some of the amendment’s authors was not necessarily identical to its interpretation by other congressmen who voted for it. As legal historian William Nelson finds, the amendment, at least for some, was better understood as part of an effort “to reaffirm the lay public’s longstanding rhetorical commitment to general principles of equality, individual rights, and local self-rule,” not as setting prescriptive legal rules.81 More to the point, judges were

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The other two were Timothy Farrar, Manual of the Constitution of the United States (1867) and John Norton Pomeroy, An Introduction to the Constitution Law of the United States (1868). George W. Paschal, The Constitution of the United States Carefully Defined and Carefully Annotated (Washington DC: W.H. & O.H. Morrison, 1868), 290. Miller, quoted in Aynes, “On Misreading John Bingham and the Fourteenth Amendment,” 87. Barnett, “Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment,” 254–55. Slaughter-House Case, 83 U.S. 36 (1873), 114, 116, 122. Slaughter-House Cases 83 U.S. 36 (1873), 129. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine, 8.

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under no obligation to accept – and often actively eschewed – original intent, especially when it threatened established legal principles.82 In this instance, the principle at stake was a central premise of the antebellum legal order: dual federalism. According to this model, states – not the federal government – protected the civil rights of individuals. Slaughter-House asked the court to consider something revolutionary: to shift authority for the protection of civil rights to the national government, at the states’ expense. Whatever the intent of the Fourteenth Amendment’s framers, this proposition proved to be too great of an innovation for Miller.83 Still, some scholarly reassessments of the landmark decision suggest that Miller did not believe that his ruling imperiled Black Americans living in the former slave states.84 Rather, he detested the recalcitrance of those who resisted all attempts at Reconstruction and charged that “southern whites had proven themselves unable to control their ‘fiendish hatred … for the negro.’”85 Like Taliaferro and some other judicial abolitionists, Miller had once owned slaves. But his views on race and racial equality had evolved by 1870. He advocated for both African American civil rights and suffrage, and believed Black Americans should be “treated as citizens with full political and legal rights.”86 Miller’s biographer suggests that these beliefs actually informed the ruling in Slaughter-House. By affirming Louisiana’s statute, Miller supported the interracial Louisiana legislature and its effort to improve sanitary conditions in the Crescent City, all while maintaining the purpose of the amendment (to grant citizenship to African Americans) and thwarting what he saw as the dangerous intent of his conservative colleagues (notably Justice Stephen J. Field) to turn the Fourteenth Amendment into a tool to “defend propertied elites.”87 Even if this assessment is correct – and it is far more charitable than most – Miller’s opinion did not need to comment on which

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Wiecek, The Lost World of Classical Legal Thought; Vorenberg, “Imagining a Different Reconstruction Constitution.” Michael Les Benedict, “Preserving Federalism: Reconstruction and the Waite Court,” The Supreme Court Review 1978 (1978): 39–79. White, Law in American History, 2016, II:33. Miller, quoted in Ross, Justice of Shattered Dreams: Samuel Freeman Miller and the Supreme Court during the Civil War Era, 164. Ibid., 165. 87 Ibid., 203.

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rights the amendment protected; it could merely have upheld the Louisiana statute as a valid exercise of the state’s police power and rejected the invocation of the Fourteenth Amendment as justification for overturning it. Instead, the opinion suggests that Miller did not want to revolutionize the law.88 He declined to use the Fourteenth Amendment to incorporate the Bill of Rights or protect substantive – that is, natural – rights for all Americans. (Justice Swayne’s dissent specifically considers this a fatal error of the opinion.) Instead, like the majority of other jurists navigating the perilous Reconstructionera waters, he remained wedded to his antebellum views about civil rights and federalism by arguing that Black freedom and citizenship alone animated the Reconstruction Amendments – despite evidence to the contrary.89 In Slaughter-House, no issue of racial discrimination arose; therefore, the amendment could have no bearing on the case. Ultimately, Miller sought to construct a middle ground between the extreme jurisprudence of the Dred Scott ruling that denied Black citizenship entirely and a full transformation of American law. He feared that the latter would make “the national government the primary defender of all the rights of all citizens,” at the expense of states’ rights, and would leave the Court as the “perpetual censor” of those rights.90 Like so many state court justices, he would not accept that the Reconstruction Amendments had transformed American law; expanded the role of the federal government in the protection of civil rights; or reshaped the relationship between the people, the states, and that government. He accepted, in other words, that Black Americans had become members of “the people,” but not that the

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A more conventional reading of Miller suggests he became antislavery, but was never an abolitionist or committed to racial equality. Aynes, “Constricting the Law of Freedom: Justice Miller, The Fourteenth Amendment, and the Slaughter-House Cases. Freedom; Constitutional Law,” 658. White, Law in American History, 2016, II:33. G. Edward White notes that Miller’s reading of the equal protection clause “was in accord with the way the clause was understood by many of Miller’s contemporaries.” See also Brandwein, Reconstructing Reconstruction, 78. Ross, Justice of Shattered Dreams: Samuel Freeman Miller and the Supreme Court during the Civil War Era, 207; Ronald Labbe and Johnathan Lurie, The Slaughterhouse Cases: Regulation, Reconstruction, and the Fourteenth Amendment (Lawrence: University Press of Kansas, 2003), 219; Brandwein, Reconstructing Reconstruction, 78; Slaughter-House Cases 83 U.S. 36 (1873), 78.

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federal government had acquired the authority to guarantee more than the limited set of preexisting, enumerated federal rights. Justices committed themselves to preserving their own version of doctrinal continuity and the federal relationship created by the Constitution in 1789, even as they acknowledged and claimed to respect the changes introduced by the Reconstruction Amendments and new federal civil rights legislation. The ruling in the Slaughter-House Cases echoed a common trend that had developed in state courts.91 State courts also regularly invoked the prerogative to define the rights of state citizens without federal interference. Kentucky’s Justice George Robertson and Delaware’s Justice Edward Gilpin nullified the Civil Rights Act of 1866, insisting that it permitted unconstitutional congressional intrusion into state affairs.92 Similarly, in some interracial marriage suits decided after the ratification of the Fourteenth Amendment, several judges maintained that marriage rights were state matters alone. The Slaughter-House ruling ensured that states would retain the sole authority to protect many civil rights, even if they chose to do so discriminatorily.93 Whatever antislavery beliefs might have informed Miller’s decision appear rather inconsequential when viewed in light of this statelevel trend. Like other judges, he denied that truly protecting Black freedom and equal citizenship – as recent treatments of SlaughterHouse would have us believe he desired – required the revolution he blocked. Perhaps this was inadvertent. It may have been that Miller would have preferred legal change to have taken place through other means. For instance, he supported ab initio, and dissented in Texas v. White as a result. Maybe he believed total congressional control of conquered Confederate territory afforded the best opportunity for Reconstruction’s success. But when he had the chance to produce that

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In contrast, federal courts upheld new civil rights laws as constitutional. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866–1876 (New York: Oceana Publications, Inc., 1985). See Bowlin v. Commonwealth 65 Ky. 5 (1867) and State v. Rash 1 Houston 271 (1867). Suffrage was another matter. The Fifteenth Amendment, judges later concluded, gave Congress the right to protect against racial discrimination in voting laws.

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revolution through other means after the Texas ruling foreclosed the possibility, he was unwilling to interpret the Fourteenth Amendment as an expansion of federal power over the states. According to one scholar, Miller found the “implications” of such an interpretation “so disruptive that [he] faltered in [his] pursuit” of preventing the return of “the old racial status quo.”94 In fairness, Miller and the other justices who joined his opinion did not know that their ruling would come to be used as the basis for rolling back the protection of Black rights. When the Court issued its Slaughter-House ruling in 1873, Louisiana had not yet fallen under control of the Redeemers, and federal efforts to rein in racial violence showed some promise. At that time, it may even have seemed reasonable to expect citizens to appeal successfully to their states for the protection of rights, especially since constitutions drafted during the Radical era contained provisions that banned discrimination. For example, Louisiana’s constitution of 1868, authored under the leadership of state supreme court justice Taliaferro, specifically protected against racial discrimination in public spaces, schools, and businesses.95 But if Miller and his fellow justices had examined trends developing in state courts – specifically the judicial willingness to nullify abolitionist-leaning state constitutional provisions and federal civil rights statutes – then they might have reassessed their faith in state governments. In the end, the effect of the Slaughter-House ruling remained the same. Whatever power the Fourteenth Amendment’s privileges and immunities clause might have had was summarily quashed in favor of allowing states to retain their traditional authority over civil rights. Salmon P. Chase had already learned the price of insisting on constitutional continuity. He believed that when he ruled in Texas that the Union had survived the Civil War intact, he had not imperiled the abolitionist cause that he had long supported. The Court’s rulings on slave contracts and Black citizenship proved him wrong, and he dissented in Slaughter-House as vociferously as his failing health allowed. Miller, in contrast, reached no such epiphany, further 94 95

Rogers M. Smith, Civic Ideals (New Haven, CT: Yale University Press, 1997), 333. Ross, Justice of Shattered Dreams: Samuel Freeman Miller and the Supreme Court during the Civil War Era, 207.

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challenging the notion that he was committed to protecting Black rights.96 Instead, he recommitted himself to the fundamental premise of Slaughter-House by ruling with the majority in subsequent cases that limited Black rights. United States v. Cruikshank, which emerged out of violence that erupted in Colfax, Louisiana, was one of them. A gubernatorial election dispute between Republicans and Democrats had devolved into a siege of a local courthouse. On Easter Sunday, 1873, white supremacists and Confederate veterans armed with rifles and a small cannon pitted themselves against freedpeople defending the legitimacy of the election. The Colfax Massacre, as it became known, quite literally determined who would control the law and the seat of justice in Grant Parish, Louisiana.97 Despite the brutal deaths of scores of African Americans (several of whom had attempted to surrender to the white assailants before being murdered) and a call by the national press for legal action against the perpetrators, local officials declined to prosecute those responsible for the massacre.98 Federal officials stepped in when it became clear that no charges would be forthcoming. Ninety-six men were indicted for violating the Second Enforcement Act (or Ku Klux Klan Act) of 1871, and although only three were convicted, the U.S. government had still successfully asserted its new authority to prosecute those who perpetrated racial terror. William Cruikshank was one of the three men (and the only one still living) convicted of violating the rights of two Black men – Levi Nelson and Alexander Tillman – by depriving them of the rights to exercise their constitutional right to “peaceably assemble” and of “life liberty and due process of law.” Cruikshank appealed the verdict. 96

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Stephen Ross argues that Miller believed protecting black voting rights would ensure African Americans were protected by their states. Though he concurred in both Cruikshank and later in the Civil Rights Cases, suggesting the limits of his racial tolerance, his decision in Ex Parte Yarbrough confirmed the justice’s insistence that the Enforcement Acts did lawfully protect against voting rights violations. By the time the court ruled in Yarbrough, however, the court had gutted other meaningful civil rights protections meant to curb racial violence and discrimination. Ex Parte Yarbrough 110 U.S. 651 (1884). Ibid., 250. Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, 437–38. The number of people killed is not known. Estimates range from 50 to nearly 300. See Ibid., 437; Charles Lane, The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction (New York: Henry Holt and Company, 2008), 265–66.

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The Supreme Court overturned Cruikshank’s conviction, in an opinion written by Chase’s replacement, Morrison Waite. The Cruikshank opinion relied on the distinction between state and national citizenship articulated in Slaughter-House. It reaffirmed that the Reconstruction Amendments would protect only a limited number of enumerated federal rights from state interference.99 Crucially, the Court also introduced the state action doctrine, holding that the Fourteenth Amendment provided no basis for protecting individuals from private action. It could be used only when statutes or state actors violated civil rights. Waite proclaimed, “The Fourteenth Amendment prohibits a State from depriving any person of life, liberty, or property without due process of law, but this adds nothing to the rights of one citizen as against another.”100 This conclusion violated established precedent. It directly contradicted Justice Story’s 1842 holding in Prigg v. Pennsylvania – which upheld the Fugitive Slave Act of 1793 and the right of slaveholders to recover their human property – that Congress did indeed possess the authority to protect the rights of individuals against private action.101 In this way, the Cruikshank ruling not only narrowed the power of the Fourteenth Amendment but also challenged previously established congressional power to intervene in state matters when a question over civil rights arose.

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Hyman and Wiecek, Equal Justice under Law: Constitutional Development, 1835– 1875, 488. The opinion stated, “The Government of the United States is one of delegated powers alone. Its authority is defined and limited by the Constitution. All powers not granted to it by that instrument are reserved to the States or the people. No rights can be acquired under the Constitution or laws of the United States, except such as the Government of the United States has the authority to grant or secure. All that cannot be so granted or secured are left under the protection of the States.” United States v. Cruikshank 92 U.S. 542 (1876), 551. United States v. Cruikshank 92 U.S. 542 (1876), 554. Waite’s ruling, including the articulation of the “state action doctrine,” had emerged from the Circuit Court opinion in the case, written by Joseph Bradley. According to one legal scholar, Bradley’s opinion “prefigured the full Court’s ruling in establishing three enormously important doctrines that continue to constrain civil rights enforcement today: the state action doctrine, the requirement of proving intentional discrimination, and the withholding of deference to Congress on the choice of ‘appropriate’ means to enforce the Reconstruction Amendments.” James Gray Pope, “Snubbed Landmark: Why United States v. Cruikshank (1876) Belongs at the Heart of the American Constitutional Canon,” Harvard Civil Rights-Civil Liberties Law Review 49 (2014): 408. Prigg v. Pennsylvania 41 U.S. 539 (1842); Ibid., 405–6.

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Functionally, Cruikshank established that racially motivated mob violence, already a hallmark of southern society, fell outside the bounds of federal jurisdiction. Only the states could intervene in disputes between citizens. “Sovereignty, for this purpose, rests alone with the States,” Waite wrote. “It is no more the duty or within the power of the United States to punish for a conspiracy to falsely imprison or murder within a State, than it would be to punish for false imprisonment or murder itself.”102 The ruling eviscerated the Ku Klux Klan Act, and destroyed the federal government’s ability to protect the safety of Black Americans.103 It returned control of the law to southern legislatures and judiciaries, where judges had already demonstrated their antagonism toward Black civil rights. Southern whites rejoiced in victory, while Black Americans faced a grisly future.104 When the court issued its verdict in Cruikshank in 1876, the direction of Reconstruction had become far clearer than it had been in 1873, when the Court decided Slaughter-House. Redeemers had regained political control of most former slave states and had begun adopting new constitutions that lacked their predecessors’ civil rights protections. State court judges installed according to the provisions of these new constitutions sanctioned their racially restrictive provisions. Any hope, then, that Black southerners could enjoy civil 102 103 104

United States v. Cruikshank 92 U.S. 542 (1876), 553–54. The court would protect black citizens from private actors who interfered with voting rights. See Ex Parte Yarbrough 110 U.S. 651 (1884). Pamela Brandwein argues that Cruikshank has been oversimplified and claims that federal civil rights enforcement remained a possibility even after the ruling. She focuses specifically on the ruling’s attention to voting rights under the Fifteenth Amendment. (The Fifteenth Amendment, according to Waite, was not an affirmation of suffrage as a right of citizenship. But the amendment did allow the federal government to protect voters against racial discrimination.) Brandwein suggests, “Acting on their understanding of the Court opinion, the Grant Administration deployed federal marshals in the 1876 election, and the Hayes, Garfield, and Arthur administrations brought cases that resulted in rights victories, putting election officials and Klansmen in jail. … The complex legacy of Cruikshank thus includes both the release of savage murderers and the communication of rules for federal rights enforcement … that Republican administrations perceived and later successfully acted upon.” Brandwein, Rethinking the Judicial Settlement of Reconstruction, 88. But even before the Supreme Court ruled, the Circuit Court ruling gave southerners reason to believe that they could continue to act with impunity. Racial violence increased as a result, and civil rights prosecutions decreased. See Pope, “Snubbed Landmark: Why United States v. Cruikshank (1876) Belongs at the Heart of the American Constitutional Canon,” 412–15.

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rights and equal citizenship or appeal to their states for protection had dimmed considerably. The justices of the Supreme Court doubled down on their postbellum preservation of dual federalism, and rejected both the intent of the Fourteenth Amendment’s framers and earlier precedents that granted Congress the power to enforce civil rights. Supreme Court justices increasingly contended that new citizens of the United States had few rights that the federal government – including the courts – could be bound to protect. Facing these dire straits, the power of Radicals in Congress faded.105 A divided Republican party managed to enact the Civil Rights Act of 1875 just before losing power. No previous congressional enactment had ever challenged traditional federalism more fully than this statute. It was, by all accounts, an “unprecedented exercise of national authority.”106 The law required equal access to public accommodations and transportation, and it banned any laws that limited jury service to whites only. While some Republicans hoped the law would secure greater social access and equality for Black Americans than any previous legislation or constitutional amendment had accomplished, others understood the “lame duck” statute as little more than a way to honor the memory of Charles Sumner and foil the newly elected Democrats on their way to Congress.107 In some ways, the statute was doomed from the outset. Republicans had not reached a consensus about whether the law was warranted or even constitutional.108 For one, it legislated social equality, which many saw as an issue of personal choice outside the bounds of proper lawmaking. For another, its enforcement depended on legal challenges brought by aggrieved Black Americans. But intimidated freedpeople facing overburdened federal courts meant that few suits emerged out of the law. It is no wonder that Eric Foner describes the law as “dead letter,” even before the Supreme Court reviewed it in 1883.109

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Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, 553–54. Ibid., 556. The final version of the law did not include its most controversial proposal: integrated public schools. Brandwein, Rethinking the Judicial Settlement of Reconstruction, 68. Ibid. Pamela Brandwein contends that had Sumner not died and Democrats not regained the House in the election of 1874, the bill would never have made it out of committee. Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, 556.

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The final verdict in the Civil Rights Cases formed the third and final element of abolition’s failure at the Supreme Court. It epitomizes crucial juridical developments, perfectly illustrates how ideological trends that emerged in state courts manifested themselves at the Supreme Court of the United States, and further underscores the judicial desire to maintain the façade of constitutional continuity. In one passage of the opinion, for instance, Justice Joseph Philo Bradley articulated the same slippery slope argument that Judge Robertson had made in Kentucky when evaluating the permissibility of Black testimony, and that jurists across the South had made in criminal suits related to racially heterodox marriages. If the Civil Rights Act of 1875 “is appropriate for enforcing the prohibitions of the amendment,” Bradley wrote, “it is difficult to see where it is to stop.”110 It was, the Court believed, without constitutional basis. Critically, the ruling also supported the successful strategy developed in criminal miscegenation suits, whereby “equality in the enjoyment” of rights, not a protection of “fundamental civil rights,” sufficiently satisfied the demands of the Fourteenth Amendment.111 Bradley agreed that the amendment did “not invest Congress with power to legislate upon subjects which are within the domain of State legislation.”112 Instead, “to declare that certain acts committed by individuals shall be deemed offences steps into the domain of local jurisprudence” without constitutional sanction.113 Hailing from New Jersey, Bradley was a conservative Republican who rose to legal prominence representing railroads. Before the Civil War, he had opposed slavery on Unionist terms. He likened slaveholders to businessmen who used enslaved rather than wage labor, and did not perceive them as a class of aristocrats. During the war, he opposed immediate abolition because it would have unleashed financial calamity in the slave states. Instead, he favored a plan of gradual

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Civil Rights Cases 109 U.S. 3 (1883), 14. Nelson, The Fourteenth Amendment: From Political Principle to Judicial ­Doctrine, 194. Civil Rights Cases 109 U.S. 3 (1883), 11. Civil Rights Cases 109 U.S. 3 (1883), 14. The court believed Congress possessed the power to enact “corrective” legislation only that specifically targeted state-based actions that were already taking place. For this reason, they upheld laws that barred jury disqualification based on race. See Ex Parte Virginia 100 U.S. 339 (1879).

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emancipation carried out by southerners themselves. After the ratification of the Thirteenth Amendment proceeded without any measure of gradualism, he feared the collapse of southern labor. Freedpeople, he thought, would not stay on their plantations and would demand wages too high for the rural South to support.114 Nevertheless, during Reconstruction, Bradley supported the Fourteenth Amendment, recognizing that preserving the nation required more than Black liberty alone.115 Bradley had dissented in the Slaughter-House Cases based on his view that the Fourteenth Amendment did in fact protect a broader panoply of rights than the majority opinion in that case allowed. But this interpretation had very specific limits. While he favored the protection of certain fundamental common-law rights – particularly those enumerated in the Civil Rights Act of 1866, Bradley never considered social equality among them.116 He did not believe that the amendment, or any government pronouncement, could require individuals to accept social integration of the races.117 Perhaps more important, Bradley had been troubled by what he considered to be federal overreach into state affairs well before 1883. 114 115 116

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Pope, “Snubbed Landmark: Why United States v. Cruikshank (1876) Belongs at the Heart of the American Constitutional Canon,” 418–19. Jonathan Lurie, “Mr. Justice Bradley: A Reassessment,” Seton Hall Law Review 16, no. 2 (1986): 347, 349–50. Bradley’s interpretation of the Civil Rights Act of 1866 in his dissent in United States v. Bylew lays out what he believed the equal rights of citizenship were: “to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property.” United States v. Bylew 80 U.S. 581 (1871). There has been some scholarly debate about Bradley’s jurisprudential evolution between Slaughter-House and the Civil Rights Cases. Some view his 1883 opinion as a “switch in time” sort of ruling, while others observe more consistency in legal thought. See, e.g., Michael G. Collins, “Justice Bradley’s Civil Rights Odyssey Revisited,” Tulane Law Review 70, no. 6 Part A (1996): 1979–2002. Here, I see the key distinction between the two cases as the type of right at stake. There is nothing particularly inconsistent with viewing Slaughter-House as involving a fundamental right that the privileges and immunities clause of the Fourteenth Amendment should protect and believing that upholding social rights fell outside the boundaries of its protection. Other scholarship has looked to Bradley’s Circuit Court opinion in Cruikshank, arguing that it holds several important clues into his interpretation of the Reconstruction Amendments. See especially Pope, “Snubbed Landmark: Why United States v. Cruikshank (1876) Belongs at the Heart of the American Constitutional Canon”; Brandwein, Rethinking the Judicial Settlement of Reconstruction.

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He articulated as much in his Circuit Court opinion in Cruikshank. In fact, Waite’s opinion in the Supreme Court’s review of the case was largely derived from Bradley’s lower court ruling – including the articulation of the state action doctrine. To allow Congress to interfere in private action, Bradley worried in the Circuit Court opinion, might lead to the enactment of “a general body of municipal law … to have effect in the several states” to benefit “a particular class of the community.”118 The identical concern motivated his stance in the Civil Rights Cases. The 1883 decision – and the Circuit Court opinion before it – did not consider the difficulties freedpeople faced in achieving equal citizenship. It also overlooked that racial inequality permeated the entire country, not just the former slaveholding republic. The consortium of suits that made up the Civil Rights Cases came from states across the nation – Tennessee, Missouri, New York, Kansas, and California. Yet in response to this increasingly national phenomenon, Bradley famously insisted that “[w]hen a man has emerged from slavery, and, by the aid of beneficent legislation, has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws.”119 In an ostensible appeal to colorblindness, Bradley required that freedpeople’s “rights as a citizen, or a man, are to be protected in the ordinary modes by which other men’s rights are protected,” not through the provisions of statutes specifically designed for his protection. But as criminal and civil domestic suits heard in state courts had already illustrated, legal interpretation and the insistence on maintaining certain stripes of doctrinal continuity actively – and continuously – prevented Black Americans (formerly enslaved or not) from shaking off all the “inseparable concomitants” of slavery. Emancipation had unmade the slave, but it had not abolished slavery. The impulses behind the decision in the Civil Rights Cases almost certainly informed the Supreme Court’s decision in Pace v. Alabama.120 Heard in the same term, it concerned the legality of 118 119 120

United States v. Cruikshank 25 F. Cas. 707 (1874), 711, 714. Civil Rights Cases 109 U.S. 3 (1883), 25. Pace v. Alabama 106 U.S. 583 (1883).

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Alabama’s antimiscegenation law. Politicians, state court judges, attorneys general, and public commentators commonly discussed social equality, or integration, in public accommodations and spaces as opening the door to racial “amalgamation” and degeneracy – once again, Robertson’s slippery slope. This became a foundation for arguments in favor of upholding states’ antimiscegenation statutes, but also for resistance to other attempts to secure equal public access as a civil right. The opinion in Pace, authored by Stephen J. Field, asserted that because Alabama’s laws – and its analogs in other states – prohibited both whites and Blacks from marrying each other and punished both races equally, it did not violate the equal protection clause of the Fourteenth Amendment. That same reasoning would be used to defend segregation in public spaces. Ultimately, the Pace ruling removed marriage from federal protection. It did not count as a guaranteed civil right or as an extension of the right to contract.121 The ruling in the Civil Rights Cases, handed down just months later, extended the list of rights that did not full under the Fourteenth Amendment’s protection. Bradley’s opinion in the Civil Rights Cases settled doctrinally the post-emancipation debate over the meaning of emancipation and citizenship. John Marshall Harlan, the lone dissenter in the case, was the only justice to appreciate that outcome. After considering the history of slavery in the United States, he concluded that “it is, I submit, scarcely just to say that the colored race has been the special favorite of the laws.” To the contrary, “the one underlying purpose of” the Civil Rights Act of 1875 was “to enable the black race to take the rank of mere citizens.” The end of slavery, Harlan insisted, required not only “to help the feeble up, but to support him after.”122 Harlan, who had been born into a prominent slaveholding family in Kentucky and who, as Kentucky’s attorney general, prosecuted Union officers for emancipating the enslaved people of that state, had come to demand abolition in terms that presaged Du Bois’ concept of uplift and incorporation.123

121 122 123

See also Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America, 69. Civil Rights Cases 109 U.S. 3 (1883), 61. Here, Harlan quotes Shakespeare’s Timon of Athens. See Palmer v. Commonwealth 65 Ky. 570 (1866).

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But these terms were not to be. The Civil Rights Cases fixed the unequal status of Black Americans in law by confirming that while the Thirteenth Amendment removed the slave’s property interest, neither it nor the Fourteenth Amendment remedied the unique legacies of former enslavement that encumbered Black citizenship.124 Joseph Bradley explicitly assented to ongoing discrimination based on race, and cemented the practice of delimiting the badges and incidents, or disabilities, of slavery that were worthy of the law’s removal. “Mere discriminations” based on color did not count among them. Echoing the language of jurists across the former slave states, he argued that the law could protect basic political rights, but it could not be used to enforce social equality – which included equal access to public accommodations – or force states to uphold an expansive set of fundamental rights. Bradley concluded, “It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make.”125 With that, he recognized that the Constitution had come to protect Black freedom, but he preserved race-based discrimination as acceptable legal practice. The move ensured that Black Americans would be consigned to a legal category that conflated race and former status, and cemented abolition’s failure. By the time the Supreme Court ruled in Plessy v. Ferguson in 1896, abolition had become a lost legal cause. The Supreme Court of the United States had already established that the meaning and authority of the Reconstruction Amendments – and the rights they protected – would be determined by judges who viewed them very differently than had their authors. The Court cemented a narrow reading of the Thirteenth Amendment that developed in contract litigation (perhaps anticipating the Gilded Age commitment to liberty of contract), and deferred to the rules of liberal capitalism without challenging their connection to slavery. That outcome was secured by the secession settlement: Determining that secession had not taken place as a matter of law closed off one strategy for upholding state bans on slave contract

124 125

Civil Rights Cases 109 U.S. 3 (1883), 25. Civil Rights Cases 109 U.S. 3 (1883), 24.

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enforcement. The Thirteenth Amendment would end enslavement, but it would not have the power to eradicate other aspects of slavery raised in postbellum private litigation. Similarly, the Court had whittled away the abolitionist promise of the Fourteenth Amendment well before 1896. Slaughter-House gutted the expansive potential of the privileges and immunities clause by distinguishing state and federal citizenship and limiting the rights that the Fourteenth Amendment protected to a small subset of enumerated national rights. Cruikshank not only restricted the federal government’s ability to protect freedpeople’s lives and limbs from violence perpetrated by private actors but was also the launching point for the intellectual work that would form the basis of Joseph Bradley’s devastating opinion in the Civil Rights Cases. In the 1883 case, the Court closed abolition’s pathway forward: Nothing in the Constitution prevented racial bias or private discrimination. Equal access to public spaces did not count as a fundamental right that could be protected by the federal government. The opinion in Plessy merely provided the standard for implementing segregation – what Harlan called in his dissent in the case “separate but equal.”126 Of the Thirteenth Amendment, the Court agreed that it was “too clear for argument” that it ended the practice of involuntary servitude – enslavement – but did no more.127 The heart of the verdict relied on the jurisprudence Bradley had developed, first in the Circuit Court decision in Cruikshank and then fully formed in the Civil Rights Cases, which made clear that only state action that violated the political rights of citizens ran afoul of the Fourteenth Amendment. Despite abolitionist lawyer Albion Tourgée’s claim that the law in question, which mandated the separation of races on railway cars, was discriminatory state action, the Supreme Court relied on the distinction between political and social rights that Bradley had enshrined in the Civil Rights Cases. “The argument” that segregation amounted to the pronouncement of inferiority “assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are 126 127

Plessy v. Ferguson 163 U.S. 537 (1896), 552. Plessy v. Ferguson 163 U.S. 537 (1896), 542.

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to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits and a voluntary consent of individuals.”128 The Court’s opinion readily acknowledged that the prospects for abolition had disappeared. So long as segregation laws applied to white and nonwhite persons equally – the argument that developed in state courts and was affirmed in Pace – no basis for legal challenge existed. Statutes that provided for the separation of the races already existed and had been sustained by courts. Public schools in the District of Columbia were segregated, and antimiscegenation laws were constitutionally enacted. Citing Gibson, the Court further buttressed its ruling by noting that “Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contract, and yet have been universally recognized as within the police power of the State.”129 The court would uphold the use of the states’ police power to protect the health, safety, and morals of Americans, and they determined that the prospect of racial mixing warranted such an intervention. In the most stinging rebuke to abolition, the opinion denied that the “assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. … If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.”130 The Reconstruction Amendments had not produced a constitutional revolution – at least not for Black Americans. Their provisions would not be used to facilitate their incorporation into American society, as abolition required. Instead, as Du Bois reminded readers in 1935, separate but equal “always” amounted to the “domination of blacks by white officials, white police and laws and ordinances made by white men.”131 Still, Plessy should be understood as the consequence of abolition’s failure, not its cause. The real innovation, as it were, in Plessy

128 129 130 131

Plessy v. Ferguson 163 U.S. 537 (1896), 551. Plessy v. Ferguson 163 U.S. 537 (1896), 545. Plessy v. Ferguson 163 U.S. 537 (1896), 551–52. Du Bois, Black Reconstruction, 695.

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came from its comment on the use of blood as a determinant of race, instead of generations removed. While the opinion did not offer any metrics for the quantum of blood that might constitute “non-white,” it did sanction the use of state laws to make such determinations. “[T]he proportion of colored blood necessary to constitute a colored person, as distinguished from a white person, is one upon which there is a difference of opinion in the different States, some holding that any visible admixture of black blood stamps the person as belonging to the colored race … others that it depends upon the preponderance of blood.”132 Race would be “determined under the laws of each State.”133 Soon thereafter, states that had not already done so began adopting the “one-drop rule,” heralding the arrival of a modern definition of race and the form of scientific racism – eugenics – that would dominate law, policy, and social thought for decades. Legal historian David Waldstreicher has recently written that “some concepts, like race itself, are precisely about how some people have made history by denying to others the possibility of change.”134 That is exactly how the Supreme Court used it in the decades following emancipation. They ensured that although racial identity in a post-Plessy America might be determined differently than it had been before and immediately after the Civil War, it would remain the basis for denying nonwhite Americans the full promise of abolition. In facing racial discrimination, little had changed for Black Americans.

132 133 134

Plessy v. Ferguson 163 U.S. 537 (1896), 552. Plessy v. Ferguson 163 U.S. 537 (1896), 552. David Waldstreicher, “The Changing Same of U.S. History,” Boston Review, November 10, 2021, https://bostonreview.net/articles/the-changing-same-of-u-shistory/. See also Amiri Baraka (formerly LeRoi Jones), “The Changing Same (R&B and New Black Music),” in Black Music (New York: Da Capo Press, 1967).

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Epilogue An Abolitionist Revision

In 1885, renowned southern author and Confederate army veteran George Washington Cable asked, “Is the freedman a freed man?” The son of wealthy slaveholders adored his native South, but, like James Taliaferro, he had come to consider slavery a “moral mistake” and detested the racism that permeated the old slaveholding republic, calling it “the surviving sentiments of an extinct and now universally execrated institution.” His clear-eyed view of the emerging New South, still defined by old racial attitudes, led him to answer his rhetorical question in a single, unequivocal word: “No.” Black Americans remained shackled to slavery’s past, even if they were no longer enslaved in law. The nation, Cable wrote, “acknowledges in constitutions and statutes” the freedperson’s “title to an American’s freedom and aspirations,” but it had yet to permit their realization. He was forced to conclude that “it is no longer whether constitutional amendments, but whether the eternal principles of justice, are violated.”1 The Civil War and Reconstruction had not resolved the American Paradox: a nation founded on liberty, equality, and

1

George Washington Cable, The Silent South: Together with The Freedmen’s Case in Equity and the Convict Lease System (New York: Charles Scribner’s Sons, 1885), 17, 36–37; Thomas J. Richardson, “George Washington Cable, 1844–1925,” in Encyclopedia of Southern Culture, ed. Charles Reagan Wilson and William Ferris (Chapel Hill: University of North Carolina Press, 1998), https://docsouth.unc.edu/southlit/ cablecreole/bio.html.

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inalienable rights still did not offer them to a substantial portion of its population. Abolition had failed. During Reconstruction, state court judges actively secured its failure by countering the revolution that postbellum Radicals intended to unleash. In decisions in otherwise mundane private law suits – related to contract, domestic law, and estates – they upheld antebellum commercial law doctrine, retrospectively defined the legal nature of the Confederacy, limited the scope of Congress’ power to carry out Reconstruction, established the ongoing legal importance of one’s status as a former slave, and denied social equality. They affirmed the superstructures that had supported and were inextricable from slavery itself. In so doing, they made permanent Du Bois’ “present past” for Black Americans by ensuring the legal conditions that allowed the violence, inequality, dishonor, and racism of slavery to continue ad infinitim, despite emancipation from enslavement. Judicial abolitionists attempted to achieve something very different. They engaged in a rigorous practice of exposing sites where slavery persisted, with the specific intent of eradicating all legacies of the peculiar institution from American life and law. With this proactive effort, they believed, the nation might successfully embark on the process of abolition. First, the badges and incidents of slavery, including the stain of race itself, had to be obliterated. The second step in the process, the construction of equal citizenship, depended on laying a foundation on level and solid ground, free from the damaging effects of bondage. Only then could the uplift and incorporation of freedpeople into American society be achieved. Their approach recognized that anything short of slavery’s total destruction would inflict lasting harm on freedpeople. One hundred and fifty years later, those fears appear prescient. Judicial abolitionists showed that slavery still lurked in the everyday, private litigation between white individuals, not necessarily (or only) in suits related directly to Black rights. Enforcing contracts and upholding other debts for enslaved people defied the Thirteenth Amendment’s directive to eliminate slavery, not just enslavement. In this context, the fatal blow to the amendment was delivered well before the punishment clause – the target of present-day abolitionists – was used to institute new, carceral forms of subjugation. Deference

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to antebellum commercial and domestic law doctrine, not an overtly racist agenda, undercut its power. This outcome preserved the firm connections between slavery, race, and capitalism that had advanced the profitability of slavery. The decision to maintain slavery’s capitalism further reinforced a central paradigm of the slave past: that white Americans were ­entitled to any value ascribed to Black persons, whether they remained defined as property or not. In other words, the traditional prerogatives of whiteness, themselves engendered by slavery, survived the Civil War and Reconstruction. Even when things might have appeared o ­ therwise, the majority of judges reified what legal theorist Cheryl Harris has called “status property” – the sociolegal benefits that accompanied w ­ hiteness.2 Whether or not they were awarded money or debt relief for slavery, white southerners continued to mobilize racial p ­rivilege to secure financial gains through exploitation, including wildly ­inequitable – and sometimes outright fraudulent – s­harecropping ­agreements; ­convict labor contracts; and, as recent scholarship has shown, even the trade of Black cadavers for use in white medical schools.3 These o ­ utcomes were, at least in part, the result of j­udicial manipulation of contract doctrine, which preserved slavery’s ­relationship with ­capitalism and commercial law doctrine instead of recognizing the total annihilation of property in persons. When addressing Black rights directly, judicial abolitionists voiced their concerns about ensuring legal equity and equality between freedpeople and freeborn people. Family law cases in particular presented judges with unprecedented legal problems that prevented legal equality. Issues of legitimacy could not necessarily be overcome by freedom and citizenship. Even with creative solutions, including the manufacture of retroactive rights, former enslavement precluded the equal enjoyment of domestic rights for some. The practical meaning of constitutional amendments and statutes could never have been guaranteed, but even if the amendments had been interpreted as capaciously

2 3

Cheryl I. Harris, “Whiteness as Property,” Harvard Law Review 106, no. 8 (June 1993): 1734–37. On the domestic cadaver trade, see especially Berry, The Price for Their Pound of Flesh: The Value of the Enslaved, from Womb to Grave, in the Building of a Nation, chap. 6.

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as some scholars argue Radicals intended, they never could have fully addressed slavery’s legacies.4 In this sense, the abolition promised after the Civil War was simply impossible to deliver. Even so, the adoption of judicial abolitionism during Reconstruction would certainly have gotten the nation closer to the uplift and incorporation of Black Americans as full and equal citizens. It laid out the methods for challenging areas of law shaped by slavery; revised their application; and, at the very least, established racial equality as a legal objective. Abolition, by this reading, becomes aspirational – something toward which the nation works, even if it can never be perfectly secured. But instead of making progress toward abolition, accretion has only worsened the harms caused by generations of rights denied: Wealth did not pass from fathers to children; extended networks of kin did not retain ownership of familial property; and race remained a badge of former servitude that justified the separate, unequal treatment of Black Americans. Institutionally, racial inequality has prevented equal access to the fruits of American capitalism, the legal system, and formal political participation.5 Over time, violence, discrimination, and segregation, which confined Black people to low-wage jobs and barred them from property ownership in affluent areas, has largely prevented the social mobility and wealth accumulation that white Americans have enjoyed. Even when the amendments were successfully used to advance civil rights in the mid-twentieth century – to strike down legal segregation, for instance – racial subjugation in its subtler forms did not end. De facto housing segregation, 4

5

See, e.g., TenBroek, Equal under Law (Originally Published as The Antislavery Origins of the Fourteenth Amendment (1951)); Wiecek, The Sources of Anti-Slavery Constitutionalism in America, 1760–1848; Pope, “Mass Incarceration, Convict Leasing, and the Thirteenth Amendment: A Revisionist Account”; Barnett, “Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment”; Alexander Tsesis, “Furthering American Freedom: Civil Rights & The Thirteenth Amendment,” Boston College Law Review 45, no. 2 (2004): 307–90; Alexander Tsesis, “Principled Governance: The American Creed and Congressional Authority,” Connecticut Law Review 41, no. 3 (2009): 679–742; Louisa M. A. Heiny, “Radical Abolitionist Influence on Federalism and the Fourteenth Amendment,” The American Journal of Legal History 49, no. 2 (2007): 180–96; Eric Foner, “The Strange Career of the Reconstruction Amendments,” Yale Law Journal 108, no. 8 (1999): 2003–9. Black Americans did use the courts to achieve some individual gains, but not necessarily to successfully challenge institutionalized racism. For Black success in post-emancipation courts, see especially Milewski, Litigating across the Color Line.

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wage gaps, unequal investment in education, and disproportionate policing, among other forms, remain endemic.6 The struggle for liberation continues, though the battlegrounds have changed. Today, abolitionists view the overthrow and replacement of the criminal justice system, including police, as the essential (though not the only) front in the ongoing war against racial inequality, subjugation, and oppression.7 The Thirteenth Amendment’s punishment clause, activists and scholars insist, created the legal possibility for reenslavement and disfranchisement through the conviction and imprisonment of Black and other nonwhite Americans. Abolitionists contend that the amendment continues to function in this way, even if the form of state-sanctioned subjugation has evolved over time – from convict leasing to mass incarceration. The criminal justice system, abolitionists argue, remains “the primary mode of governing Black, poor, and other communities of color in the United States,” and they view criminal law as the principal “scaffolding” that supports that regime.8 A deep analysis of abolition’s defeat in Reconstruction-era courtrooms must now inform and expand the modern struggle. Abolitionists should draw on more expansive evidence to make their case for a full reconceptualization of American life and law. The p ­ unishment clause of the Thirteenth Amendment and narrow readings of the Fourteenth Amendment comprise only a portion of the problem. They remain the most obvious sites of slavery’s s­ urvival, but not the most i­nsidious. To the contrary, abolition’s failure is not a story of continuity or r­ upture, revolution or ­ backlash. It is a story of steady, sometimes willful, ­creative resistance to the ­possibility of change. And its failure must be measured not only by the open denial of rights granted to freedpeople, but also by the quiet insistence on upholding the legal remnants of slavery in obscure, unexpected areas of law that do not fall clearly within the bounds of federal or constitutional law.

6

7

8

This very conundrum – that important rulings ended legal segregation but did not alleviate the harms of discrimination – formed the basis of Critical Race Theory’s development. In recent years, abolition has come to include police because “policing and mass-incarceration co-constitute each other.” Akbar, “Toward a Radical Imagination of Law,” 462. Ibid., 412.

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Abolition, that is, can never be achieved by traditional forms of civil rights litigation and activism alone; appealing to the promises of the Reconstruction Amendments will not provide the remedy.9 Rather, we must scour the American legal system for vestiges of ­slavery – those that are obvious and those that masquerade as race neutral in areas of law seemingly untouched by the peculiar institution. Only then can the construction of new, equitable structures of law and governance begin on a firm footing. In some ways, this objective overlaps with efforts to achieve reparative justice. Over the past decade, calls for reparations have intensified. Together, scholars, authors, public intellectuals, and activists seek an open accounting and full consideration of the legacies of slavery and ongoing racism.10 Notably, Ta-Nehisi Coates’ 2014 article “The Case for Reparations” centered the concept in

9

10

This conclusion aligns better with the positions of activists than legal scholars who argue that the Reconstruction Amendments can still be effective tools in the fight for abolition. Traditionally, the method of providing reparations has been the complication for those who favor them. Some, including late law professor Boris Bittker, have called for monetary payments. Others, including legal scholar Charles Ogletree, seek direct investment in Black communities in the form of job training, health care, and education. Katherine Franke, another legal scholar, advocates for the distribution of property to Black Americans funded by a tax on wealth passed to baby boomers from their parents – members of the so-called greatest generation, who benefitted disproportionately from New Deal social programs and postwar prosperity in the second half of the twentieth century. Some grassroots activists lay out a multifaceted approach that more fully integrates reparations with abolition. These include calls for the distribution of land, restoration of rights to the incarcerated, affirmative action, free mental and physical health care, cash payments, and the abolition of the existing carceral state accompanied by the concomitant development of equitable forms of policing, public protection, and social reform (a quintessential example of the deconstruction/construction abolitionist coupling). Boris I. Bittker, The Case for Black Reparations (Boston: Beacon Press, 1973); Charles J. Ogletree Jr., “Repairing the Past: New Efforts in the Reparations Debate in America,” Harvard Civil Rights-Civil Liberties Law Review 38, no. 2 (Summer 2003): 279–320; Katherine Franke, Repair: Redeeming the Promise of Abolition (Chicago: Haymarket Press, 2019); Chrissi Jackson, Reparations Handbook, 2021; Jewel Crawford, Wade W. Nobles, and Joy DeGruy Leary, “Reparations and Health Care for African Americans: Repairing the Damage from the Legacy of Slavery,” in Should America Pay? ed. Raymond A. Winbush (New York: HarperCollins Publishers, 2003).

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contemporary public discourse.11 Coates concludes that “until we reckon with our compounding moral debts, America will never be whole.” “Wholeness” connotes the ethical obligation to repent for the nation’s sins – as Coates suggests here – but also the legal obligation to repair specific harms. Only when both are addressed will the victims of slavery and its legacies be made whole. Indeed, the tangible harms produced by the denial of rights and the intangible damage produced by searing racism underwrite the call for reparations by both the National Coalition of Blacks for Reparations in America (N’COBRA) and the legal scholars who recognize the longterm consequences of abolition’s failure.12 Reparations alone, however, will not address the root causes of the harm. Instead, the findings of this book suggest that we must consider how the design and function of American law – private law especially – encourages judges to reward those who already wield power and defer to doctrinal precedent and established custom whose connections to slavery have been consistently obscured. Unless and until we challenge established practice in the realms of law that otherwise seem unrelated to slavery’s past, that is, we will never root out its insidious presence or racism’s social metastasis. Reconstruction-era judicial abolitionists have already pointed to the areas of law in which slavery remains imbricated. It lurks in the mundane – in the agreements that affect Black lives, but do not specifically include them; in the advancement of commercial capitalism that adheres to doctrine without regard to its provenance; in the labor agreements that trap workers into cycles of debt and despair; and in the development plans that disregard the history of the property on which new homes and businesses will be built. It is not enough to target state and federal statutes or argue points of constitutional law alone because slavery, racism, and inequity pervade far more deeply into American law. Abolition, then, demands that today’s lawyers and judges commence a legal reconstruction for the modern era that grapples not only with “racist statecraft,”

11 12

Ta-Nehisi Coates, “The Case for Reparations,” The Atlantic, June 2014. “The Harm Report,” N’COBRA, 2021, www.ncobraonline.org/harmreport/; Franke, Repair: Redeeming the Promise of Abolition, 5.

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as abolitionist scholar Dylan Rodríguez calls it, but also the nation’s deeply embedded racist law-craft.13 Courtrooms have never been the only site for abolitionist struggle. Activists and those in social justice organizations who wage battles on behalf of equality must continue their vital work. These groups must keep leading outreach and educational efforts within communities of color where they have established rapport and trust. But with a fuller picture of how and where slavery still permeates law and society, including spaces that appear unconnected to institutionalized racism, they, too, can expand and better tailor their efforts. In particular, members of nonwhite communities should know how to use the law – private law especially – to their own advantage. For example, people need to make wills to protect family assets and have confidence that courts will honor them. Efforts to identify descendants of families whose communal property has been stolen should be undertaken so that either repatriation or financial restitution might be paid to them. This process will also help identify actors, public and private, who have or continue to perpetrate the dispossession of nonwhite Americans and, wherever possible, hold them accountable.14 Americans must demand that the law itself finally be reconstructed after 150 years of delay. It must become a force for antiracism instead of a superstructure marked by the process of “preservation through transformation,” whereby the core tenets of American law have remained undisturbed despite the apparent accommodation of racial equality. That is not to deny the progress already made toward reaching a just and equitable future for all Americans. The U.S. Supreme Court has overturned a litany of discriminatory practices – including Jim Crow segregation, antimiscegenation laws, housing covenants, poll taxes, and more. It applies the highest level of scrutiny to racially specific statutes to ensure equal protection and due process. But that will never be enough. After all, these efforts still use whiteness as a normative referent, identifying any nonwhiteness as a special category. 13 14

Dylan Rodríguez, “Abolition as Praxis of Human Being: A Foreword,” Harvard Law Review 132, no. 6 (April 2019): 1581. This process is much easier in some circumstances than others. For instance, property in Manhattan Beach, California, known as Bruce’s Beach, will be returned to the descendants of its original Black owners who were dispossessed by the city more than 100 years ago. After a prolonged, highly publicized battle, California

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More important, none of these efforts, substantial as they may be, totally address the underlying cause of abolition’s  failure. That can and must change. By carefully excavating American law and excising slavery’s legacies, we can treat more than symptoms of racism alone. Undoubtedly, a tough road toward abolition lies ahead. But from Olaudah Equiano to Harriet Jacobs, Frederick Douglass to Ida B. Wells, Martin Luther King Jr. to Fannie Lou Hamer, Angela Davis to Patrisse Cullors, it has always been thus. As W. E. B. Du Bois wrote in Black Reconstruction, “This the American black man knows: his fight here is a fight to the finish. Either he dies or wins. … He will enter modern civilization here in America as a black man on terms of ­perfect and unlimited equality with any white man, or he will enter not at all. Either extermination root and branch, or absolute ­equality. There can be no compromise. This is the last great battle of the West.”15 With a more capacious understanding of the task at hand, we must fight that battle still.

15

governor Gavin Newsom signed a bill in September 2021 to allow the return of the property to the Bruce family. It formally acknowledges that the original taking was racially motivated and unlawful. But with heirs’ property, families have been dispossessed through legal means that appear colorblind, even though they were and are not. Moreover, identifying those with claims to the property is more difficult than in cases where a single person or couple clearly owned the property. See “Race, Reparations and Bruce’s Beach: What You Need to Know about the Story,” October 1, 2021, www.latimes.com/california/story/2021-10-01/brucebeach-black-family-descendants-what-to-know; Erica Werner and Troy McMullen, “Advocates Push Nationwide Movement for Land Return to Blacks after Victory in California,” Washington Post, December 6, 2021, www.washingtonpost.com/ business/2021/12/06/return-black-owned-land-movement/. Du Bois, Black Reconstruction, 703.

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Index

ab initio, 24, 29–30, 100n87, 117, 120–21, 125, 262 abolition. See contracts; emancipation; liberty; private law; property (slaves as); Reconstruction; specific abolitionists; specific Amendments; U.S. Supreme Court abolition constitutionalism, 14 abolition democracy, 7 abolition theory, 7 activism, 13, 15, 51–52, 110, 218n55, 281–83 Alabama, 106, 220, 270–71 Alabama (the courts of), 29, 45n24, 50, 68, 103–5, 159–62, 194–95, 222, 228 Alabama Constitutional Convention, 19–20 Alabama Supreme Court, 3 Alexander, Gregory S., 46n26 Amendments. See specific Amendments ancestry. See race (defining) Andrews, William, 33–35, 91n51 Andrews v. Page, 35 appellate courts, 9n19 Arizona, 220 Arkansas, 107, 169, 182 Arkansas (the courts of), 21, 27, 29, 169–70 Arkansas Constitutional Convention, 19 Aynes, Richard, 257n65

Banks v. Shannonhouse, 152 The Bankruptcy Act, 65 Bedford v. Williams, 213–14 Bell, John, 81 Berry, Mary Frances, 209n18 Berry v. Alsop, 213n35 the Bible, 154n17 Bill of Rights, 258–59, 261 Bingham, John, 252n51, 258–59 Bittker, Boris, 281n10 Black Codes, 168, 181–82, 188, 207 Black freedom. See emancipation Black radical tradition, 42 Black Reconstruction (Du Bois), 69–70 Boutwell, George, 3 Bowlin v. Commonwealth, 173, 218 Boyce v. Tabb, 37 Bradley, Joseph, 168, 257, 259, 265n100, 268–70, 272–73 Bramlette, Thomas, 83 Brandwein, Pamela, 266n104, 267n108 Brewer, Holly, 25n29 Bronson v. Kinzie, 22–23, 36 Brophy, Alfred, 172 Brown, Joseph E., 24, 29, 36, 99–101, 117, 124–27, 221, 230, 232, 248 Brownlow, William, 185n17 Buie v. Parker, 109–10 Burns v. State, 222, 228, 231 Buskirk, Samuel, 226–27 Butler, Benjamin, 102, 211, 230

307

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Index

308 Cable, George Washington, 276 Caldwell, Henry Clay, 3, 27–32, 36–37, 249–50 Calhoun, Andrew P., 56, 57, 58–62, 69, 136–37 Calhoun, Floride Bonneau Colhoun, 55–56, 57, 58, 60–62 Calhoun, John C., 38, 55, 62 Calhoun, Margaret, 59–61 Calhoun v. Calhoun, 55–56, 57, 58–62 Campbell, John A., 185 Campbell, Joseph A., 256 Cantelou v. Doe, 198n46 capitalism, 39–63, 66, 69–72, 135, 250–51, 278. See also commercial law carpetbaggers, 3, 18 Carrington, Adam M., 77n12 “The Case for Reparations” (Coates), 281–82 caveat emptor, 22, 46 chain gangs, 13n6 Chase, Salmon P., 12n4, 27, 81n23, 239–40, 242–47, 251–54, 257–58, 263–64 Cherokee Nation, 155 citizenship, 2, 5–6, 8–9, 130, 135, 146, 148, 150, 155, 158 and the courts, 171–74, 199, 223, 235, 254 equal, 209–11, 218, 221, 226, 235–36, 238–40, 261–63, 267, 270–72, 277 and family, 168–69 and legislation, 165–66 and marriage, 206 national, 168, 216, 238, 255, 257, 265, 273 qualified, 213–14 state, 168, 199, 238, 255, 257, 265, 273 and testimony, 163–65. See also civil rights; domestic rights civil death, 156 civil rights, 7–9, 14, 121, 146n112, 149, 158, 181, 224–30, 238, 260–67. See also citizenship; political rights; social rights Civil Rights Act, 37, 158, 164–68, 172–73, 225, 229–30, 238, 255, 262, 267–68

Civil Rights Cases, 168, 239, 254–55, 264n96, 268, 269n117, 270–73 Civil War: and abolitionist judges, 4–5, 105 and Black freedom, 50 and compensation, 83 and the courts, 113 and federal power, 111, 113, 116 as opportunity, 9, 154 the periodization of the, 99n79 to preserve the Union, 81–82 scholarly debate on the, 76 and scholarship, 113–14 and slavery commerce, 116, 130–33, 135, 144 and the southern economy, 38, 45, 53, 60, 67 and states’ rights, 78 as trial by battle, 126–27. See also conquered province theory; secession Clarke, Daniel, 16–17 Clemson, Anna, 61–62 Clemson, Floride, 61–62 Clemson, Thomas Green, 59, 61–62, 71 Clemson College, 62, 71 Coates, Ta-Nehisi, 281–82 Cobb, Thomas R.R., 153, 164, 172, 196 Coke, Richard, 190 Colfax Massacre, 264 comity, 219n62, 227n91 commercial law, 15, 22–24, 31–33, 35–36, 44, 135, 139, 253–54, 277–78. See also capitalism common law, 25n29, 32–33, 47n32, 180, 194, 219, 240, 253, 269 concubinage, 205n7, 206, 210, 214 the Confederacy, 24, 59, 112–46, 241, 244–45 Confederate Constitution, 26n31 Confederate currency, 18, 62, 113, 135–45 Confiscation Acts, 94n61, 130 conquered province theory, 24, 117, 124–28 Constitution of the United States, 12n4, 15, 25, 29, 82–84, 117–18, 123–24, 240, 248, 252, 258. See also Bill of Rights; contracts; guarantee clause; Reconstruction; specific Amendments

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Index Constitutional Union Party, 81, 110n120 continuous states. See perpetual statehood continuous union. See perpetual union contracts, 4; and abolition, 25, 29, 37, 40 Civil War, 114–15 clause (of the Constitution), 15, 17, 19, 21, 23, 31, 36, 69, 99, 122–23, 125, 135, 249 and Confederate currency, 136–45 and doctrine, 15, 21, 23–24, 30–31, 35–37, 39, 51, 157–58 impaired, 19, 22n24, 141n97 indenture, 35–36 and jurisdiction, 22 liberalized doctrines of, 21–22, 43 and litigation, 20–21, 24, 34–35, 46–50, 52–53, 60, 75, 105, 151, 196, 198 obligation of, 133–34 slave, 11–12, 15–37, 48, 51, 56, 58–60, 73, 96, 100, 111, 123, 125, 127–30, 139, 156, 247–51, 253–54, 263, 277 and the states, 19–21, 24, 27–30, 122–23, 139 and strict performance, 12 and the U.S. Constitution, 11 and Wainwright v. Bridges, 27, 128. See also debt relief; Thirteenth Amendment; warranties; specific cases Contubernium, 179 convict leasing, 13n6, 44, 71–72, 278 Cover, Robert, 26n31, 33 criminal justice system, 7–8, 13, 42n16, 280–81. See also racism critical race theory, 8n16, 280n6 Critical Resistance, 13n6 currency. See Confederate currency custody. See family law customary practices (of slaves), 185–87, 192–94, 196, 199–200 Dana, Richard Henry, 121, 128, 244 Davis, Adrienne, 206 Davis, Angela, 7 Davis, Jefferson, 92, 126n48 Dayan, Colin, 148–49 death (for the institution), 156 death (slavery as), 149, 151–53

309 debt relief: and Confederate currency, 136, 142–43 and Congress, 65 and contracts, 253 and estates, 60 and the Fourteenth Amendment, 28 litigation, 17–18, 38–39, 46, 52, 63–64, 134–35 and the middle class, 66 and the states, 27n34, 38–39, 62, 67–68, 98, 100 and Union policy, 133. See also contracts; homestead exemptions; property (slaves as); stay laws DeLarge, Robert C., 19 Delaware, 78, 106 Delaware (the courts of), 165–66 Dickerson v. Brown, 206, 210–11 District of Columbia, 106 domestic rights, 83, 176–85, 198, 209, 236. See also citizenship dormant rights theory, 179–80, 184, 187, 190, 193–97, 202 Douglas, Stephen A., 154 Douglass, Frederick, 218n55 Downs, Gregory, 76 Drake, Charles, 130–32, 135 Dred Scott v. Sandford, 81, 232, 257, 261 Du Bois, W.E.B., 6–8, 69–70, 72, 162, 174, 271, 274, 277, 284 economics. See debt relief Ellet, Henry Thomas, 91–92 Elliott, Robert B., 18, 20, 24 emancipation: and abolitionist judges, 77, 127–28, 154–57, 164, 172–73, 194–96, 214–15, 222–23, 251, 277–78 and capitalism, 40, 44, 59 compensated, 82–83, 120, 125 and Congress, 96–97 debt of, 161–62, 171–72 and enlistment laws, 78–79 and family, 191–92, 215 and forced consent, 74–75, 77–78 as a funeral pile, 147–48, 154 and generational wealth, 70 and Georgia, 100–101 gradual, 268–69 and Great Britain, 39n3, 152

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Index

310 emancipation: and abolitionist (cont.) and interracial relationships, 218, 221 and Kentucky, 82 laws, 11, 32, 79 and the laws of war, 96 and litigation, 8–9, 54–55, 147–48, 150–51, 158–64, 170–71, 183–90, 192–93, 198, 201, 206–17, 223, 235–36 and Maryland, 87, 92 the meaning of, 147–48 and military force, 95–99, 101–2, 104, 110, 129 and Mississippi, 91–92 and Missouri, 87, 88, 92 and North Carolina, 97n76 and political rights, 102 and property, 35, 38–39, 45–54, 59 reactions to, 50 resistance to, 105, 108 and state constitutions, 86–93 and the Supreme Court, 246–47, 249 and Tennessee, 88–92 and Texas, 93–95 the timing of, 77, 94–99, 102, 104–5, 107, 108–10, 112 and Unionists, 88–89 as the will of the people, 2, 77, 86–87, 92–93, 103, 111. See also dormant rights theory; former slave; liberty; property (slaves as); retroactive rights Emancipation Proclamation: and abolitionist judges, 77, 101, 103–4, 127–28, 135 and compensation, 83–84 and contracts, 30, 73–74 interpretations of the, 2, 93–98, 102–5 and slaves, 78–79 and the states, 78, 87–89 and wartime commerce, 131–34. See also Lincoln, Abraham Emancipation Proclamation Cases, 93–94, 112, 127, 147, 152, 154, 246 eminent domain, 49, 248 enlistment laws, 79–80 Enrollment Act, 83 Esmeir, Samera, 170 estates, 52–62, 203, 206. See also inheritance; plantations eugenics, 232–33

Ex Parte Yarbrough, 264n96 ex post facto, 49, 162, 177, 179–80, 199 family law, 168–70, 176–181, 186, 189–207, 210–17, 236. See also customary practices (of slaves); interracial relationships; marriage Farley, Anthony Paul, 42 federalism, 75–81, 92–93, 98, 101, 111, 116, 226–27, 243–44, 259–70. See also sovereignty; states’ rights Fessenden, William P., 229 Field, Stephen J., 231–32, 257, 260, 271 Fifteenth Amendment, 2, 5–6, 10n20, 37, 262n93, 266n104 Fifth Amendment, 80, 120, 125, 248n41, 252 Fitzhugh, George, 45, 221 Fletcher, Thomas Clement, 87 Florida, 21n21, 107, 123 Florida (the courts of), 49, 54 Florida Constitutional Convention, 19 Foner, Eric, 86, 267 forced separation, 59n83 forfeit rights, 118 formalism, 22, 33 former slave, 148, 150, 157–59, 161, 166, 174, 176 Fort Hill, 38, 55–56, 59–62, 71 Fourteenth Amendment: background on the, 2, 37 and citizenship, 5–6, 158, 173, 221, 231, 254–56, 272 and civil rights, 14, 168, 172, 207 and equal protection, 256 and family, 168 and federalism, 226–27 limiting the scope of the, 241, 273, 280 and marriage laws, 209, 219, 222–26, 228–32, 271 and private action, 265, 270 ratification of the, 216 section 4 of the, 28–29, 31, 83, 98n77, 249, 257n65, 258 and slave contracts, 28 support for the, 155 and the Supreme Court, 255–63, 267–69, 273. See also Bill of Rights Franke, Katherine, 281n10 Freedmen’s Bureau, 84, 86n35, 166, 186 freedom. See emancipation

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Index Freeman, Thomas J., 132–33 Fugitive Slave Acts, 45n24, 265 Garrett v. Brooks, 108–10 Garrison, William Lloyd, 12n4, 51–52 General Order No. 3, 95 General Order 100, 129 Georgia, 65, 100–101, 106, 186, 220, 248–49 Georgia (the courts of), 20, 24, 36, 68, 99–100, 124–25, 198, 223 Georgia Constitutional Convention, 19–20 Georgia Land & Lumber Company, 71–72 Gibbes, Rhoda Kilcrease, 53–54 Gillman, Howard, 254n58 Gilmore, Ruth Wilson, 7 Gilpin, Edward, 165, 167–68, 262 Girod v. Lewis, 180, 195, 196n42 Goodell, William, 164 Goodman, Paul, 64n103 Gorsuch, Allison Mileo, 35–36 Granger, Gordon, 95, 107 grasp of war theory, 121, 128, 244 Graves v. Keaton, 90–91 Greeley, Horace, 51–52 Green v. State, 233–34 Grier, Robert Cooper, 117, 127, 245 Gross, Ariela, 46, 157 Grossberg, Michael, 191 guarantee clause, 243–44 Hahn, Stephen, 191 Haitian Constitution, 15 Hall v. United States, 196–98, 200, 231 Hamilton, Andrew Jackson, 30, 104, 127–29, 241 Handy, Alexander Hamilton, 92 Harlan, John Marshall, 165, 271, 273 Harrell v. Watson, 97n76, 109 Harris, Cheryl, 278 Harris, William Littleton, 92 Hartman, Saidiya, 161–62, 205n7 Hart v. Administrators, 203–4, 206, 214–16 Hawkins, Alvin, 90 Heiskell, Joseph Brown, 221 Hoadly, George, 252–53 Hodes, Martha, 204, 218n55 The Homestead Cases, 66–67

311 homestead exemptions, 62–69, 72. See also debt relief Homestead Exemption Laws, 65n106 Honey v. Clark, 211–12, 217 honor, 45–48 Houston, Sam, 154 Hyman, Harold, 257n65 Idaho, 220 Illinois, 36 Ilsley, John, 52, 153 inchoate rights, 179, 184n16, 213–14 incidents of slavery, 16n13 Indiana (the courts of), 226–27 inflation, 136, 138n39, 141–42 inheritance: and exploitation, 5, 43, 278 land, 53–55, 62, 175–76, 179, 193, 201 law, 4, 33–35, 53–60, 176, 203–4 and legitimacy, 187–97, 203–4, 206, 210, 212–13, 215–17. See also estates An Inquiry into the Law of Negro Slavery (Cobb), 172, 196 integration, 6 interracial relationships, 203–21, 224–36, 262, 269, 274 Jim Crow, 5–6, 174, 201–2, 208, 231–32, 235, 237, 239, 255, 283. See also racism “John Brown’s Body,” 87 Johnson, Andrew, 88–89, 101–2, 118–21, 123, 126, 166, 206n9 Johnson, Walter, 46 Jones, Martha, 158 Judge, Thomas, 161 Juneteenth, 95, 110 Kaczorowski, Robert, 105 Kent, Chancellor, 227n91 Kentucky, 78–79, 81–86, 106, 141, 181, 220, 271 Kentucky (the courts of), 20, 49, 79–80, 86, 165–66, 176, 181, 188–89, 192–94 Kentucky Resolutions of 1798, 80 Kilcrease, William, 53–54 Klein, Diane, 156 Kleintop, Amanda, 28 Kreitner, Roy, 22n24 Kull, Andrew, 31 Ku Klux Klan, 6, 264, 266

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312 labor (Black), 70, 72, 166, 196, 268–69 law of belligerency, 116–17, 129 The Law of Contracts (Parson), 16n13 law of nations, 129 law of war, 116–17, 121n31, 129 Lee v. Simpson, 62 legal rules: and emancipation, 157, 159–63, 173, 237 and market dynamism, 23, 40 and slavery, 2, 6, 81, 148 and the Supreme Court, 247 Legal Tender Act, 137 Lewis, John, 54 Lewis, Susan, 54 lex loci contractus, 22, 26 liberty, 4–6, 9, 17, 79, 155–56, 252. See also emancipation Liberty Party, 252n53 Lieber, Francis, 129 Lincoln, Abraham, 133 and Andrew Johnson, 88–90 attacks against, 204n4 the authority of, 94n61, 96, 98–99 and the Constitution, 113 and George Robertson, 82–84 and Kentucky, 79n14, 81 legal strategies of, 116–17, 145–46 nominations by, 3, 242–43 and racism, 166–67 and Reconstruction, 118–19 and secession, 1 on slavery, 74 and the ten percent plan, 87–88 wartime policies of, 78. See also Emancipation Proclamation Lindsay, Livingston, 94–95, 102, 135 literacy, 182 Loring, Edward, 133 the Lost Cause, 28, 70, 78, 101 Louisiana, 40n8, 102, 107, 141, 143, 214–15, 217, 253, 255–64 Louisiana (the courts of), 2, 11, 20, 24–27, 37, 102–3, 128, 139, 148, 155, 180, 195–96 Louisiana Constitutional Convention, 19–20, 27 Loving v. Virginia, 208, 232 loyalty oath, 134 Lumpkin, Joseph Henry, 24n27, 155, 246n36 lynching, 13n6

Manning, Amos, 221, 228 Mansfield (Lord), 25–26, 153 manumission, 5, 153, 169n59, 213 marriage, 4–5, 10, 35n51, 80n18, 167–69, 176–97, 199–200, 203–12, 215–34, 262, 271. See also comity; customary practices (of slaves); family law; interracial relationships Marshall, John, 163 Martin, Bonnie, 58 Maryland, 87, 92, 106, 179, 217 Maryland Constitutional Convention, 16–17 masculinity. See honor McCay, Henry Kent, 100n87 McClure, John E., 29–30 McElvain v. Mudd, 45n24, 105 McLaughlin v. Florida, 232 McMath v. Johnson, 91, 96 McReynolds v. State, 183, 185 Mihm, Stephen, 144 Miller, Samuel, 245, 255–57, 259–64, 264n96 Mills v. St. Clair County, 248n41 miscegenation, 204n4, 206n9, 207–9, 218, 220–32, 235–36, 268, 271 Mississippi, 65, 92–93, 106, 182, 220 Mississippi (the courts of), 3, 68, 91–92, 96, 131 Mississippi Constitutional Convention, 19, 29, 91 Missouri, 87, 88, 92, 106, 132, 181, 220 Missouri (the courts of), 186–87 Moore, George, 172 morality, 4, 18, 26n31, 52, 69, 170–71, 276 Morrill, Amos, 94n61, 122, 138, 152, 154 mortgages, 56, 58–61, 67. See also property (slaves as) Morton, Oliver, 19–20 National Coalition of Blacks for Reparations in America (N’COBRA), 282 natural law, 17–18, 25–26, 31–33, 51, 101–2, 129, 153–55, 161, 170, 194–95, 249, 252–53 Neff, Stephen, 117 Nelson, William, 259 neoliberalism. See capitalism

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Index new history of capitalism, 41 New Orleans Riots, 2, 102 Newsom, Gavin, 283n14 New South, 70–71, 276 Nicoletti, Cynthia, 127 Non-Intercourse Act of 1860, 131n68 North Carolina, 65, 97n72, 106, 181–82, 220, 231 North Carolina (the courts of), 55, 68–69, 97n76, 109, 151, 170–71, 180n8, 224, 227n91 North Carolina Constitutional Convention, 19 Northwest Ordinance, 14 Obergefell v. Hodges, 208 Ogden, William B., 250 Ogletree, Charles, 281n10 one-drop rule, 209, 232–35 original intent, 259–60 Osborn v. Nicholson, 27, 28n36, 36, 248–50 Pace v. Alabama, 231–32, 270–71, 274 Page, Henry, 33–35 Palmer v. Marston, 27 Parson, Theophilius, 16n13 partus sequitur ventrem, 188, 219 Paschal, George W., 12, 73–74, 112, 147–48, 154–55, 246, 259 Pascoe, Peggy, 204n4, 208n14, 236n123 Patterson, Orlando, 149 Peace Democrats, 110n120 Pearson, Richmond, 96–97, 99n78, 115, 171–73, 180 Peck, E. Woolsey, 45n24 Penningroth, Dylan, 192 Pennsylvania Society for Promoting the Abolition of Slavery and for the Relief of Free Negroes, 178 perpetual statehood, 123–25, 135, 146 perpetual union, 118, 130, 243, 245 Peters, Thomas, 3, 30–31, 103–5, 128, 135, 156, 194–95 Phelps, Dodge, & Co., 72 Phillips, Wendell, 51 plantations, 38, 54. See also estates Plessy v. Ferguson, 239, 254, 272–75 political rights, 102, 167, 191, 223, 228–30, 258, 272. See also civil rights; social rights

313 poor man’s laws, 64n102 positive law, 25–26, 51, 102, 129, 153, 155, 157, 180, 252 preservation through transformation, 238, 283 Prigg v. Pennsylvania, 265 prison industrial complex. See criminal justice system private law: and abolitionism, 4–5, 8, 114, 151, 156, 282 and contracts, 22n24 and criminal law, 9 and emancipation, 150, 241 and everyday life, 6–7, 10 and racism, 8, 10, 42, 170 and sovereignty, 74–77, 81–82, 84, 92, 116. See also family law; inheritance; marriage privileges and immunities, 258, 269n117, 273 The Prize Cases, 117, 127, 245 Proclamation of Amnesty and Reconstruction, 87–88, 102, 134 property (slaves as): and abolition, 39 and the Constitution, 81 the constitutional right to, 26n32 and doctrine, 35 and Emancipation, 2 and fraud, 47n35 and humanity, 156 and insurance, 249n43 investments, 50, 53, 56, 59, 83 and Kentucky, 78 law, 4, 15–17, 30–32, 43, 51, 78, 80–84, 120n26, 152–53, 157–58, 160, 175–76 loss, 5, 19–20, 38–39, 53–54, 98, 201–2 movable, 42, 44, 51 and nullification clauses, 30, 37, 50–51 and risk, 44–45, 49–50, 151 and shared ownership, 193 and wealth, 38. See also debt relief; emancipation; mortgages; warranties Pryor, (Judge), 193 Pugh, Joseph B., 17 Quakers, 54n66 quanti minoris, 47n32

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314 race (defining), 232–36 racial capitalism, 44 racial violence, 8, 111, 211, 219, 264–66, 273, 279 racism: and anthropology, 220–21 and capitalism, 44, 71–72 common beliefs and, 4 and the courts, 8, 10, 170–74, 209, 220–23 and difference, 153, 159–60, 238 and social equality, 167 and the state, 166 systemic, 5, 8, 42, 44, 158, 278 and testimony, 163–65. See also Black Codes; criminal justice system; former slave; Jim Crow; Ku Klux Klan; miscegenation Radical Abolitionist Convention, 252n53 Radicals: and ab initio, 24, 118 and abolition, 37 and Black tradition, 42 and debt relief, 63 and equality, 167 and legislation, 5, 20, 32, 230, 278 opposition to, 3 Republican, 86–87, 132, 146 and slavery contracts, 15 rape, 205n7, 219 Reade, Edwin, 68–69 Reconstruction: and abolitionists, 2, 43, 78, 208–9 Acts, 17, 19–20, 37, 84, 86, 93, 99–101, 121n30, 122–23, 242, 244–45 Amendments, 2, 5–6, 14, 30–31, 76–77, 83, 86, 113, 172–73, 237–41, 252, 261–62, 265, 269n117, 272, 274, 281 and capitalism, 69–70 and class conflict, 66n110 Congressional, 17, 84, 122, 124, 146, 242–43, 262 and constitutionalism, 93 and contract law, 16, 21 and homestead exemptions, 64–65 and Kentucky, 84, 86 and legal authority, 113–14, 236n123 Military, 3n8, 17, 21, 84, 86–87 plans for, 118–21 Presidential, 20, 84 the promises of, 8

Radical, 84, 100, 172, 218 and Redeemers, 198n46, 220, 263, 266 reform, 243n20 and the Supreme Court, 242 wartime, 86, 88n46, 91, 102 Redemption, 93 redhibition, 47n32 Reeves, Reuben, 172 reparations, 42, 51–52, 62, 80, 82, 120, 281–83 retroactive rights, 4, 22, 26, 31–32, 177–82, 193–94, 197–200, 278 revolution, 76–77 Roberts, Dorothy, 14 Robertson, George, 80–85, 125, 165–68, 173, 218, 262 Robinson, Cedric, 44 Rodman, William, 171, 227n91 Rodríguez, Dylan, 283 Ross, Stephen, 264n96 Rothman, Joshua, 204, 234 Rubin, Anne Sarah, 120 rule of law, 4, 112, 211 Rutherglen, George, 32, 239 Saffold, Benjamin, 172–73, 222, 228, 231 Sanford, John W.A., 228 Scheiber, Harry, 39n7 Schofield, John, 97n76 scholarship, 8n16, 12, 14–15, 22n23, 28, 113, 115n10, 149, 183, 260 Scott, Rebecca, 228n95 secession: and abolitionists, 1, 124, 127 and Andrew Johnson, 119 and commerce, 133 and concessions, 121 and constitutional protections, 123 and contracts, 36–37, 120, 122, 125, 197 and Georgia, 99 and Kentucky, 79n14, 84, 120n28, 125 the legality of, 36–37, 92–93, 115, 119, 124, 126–27, 129, 238, 241–48, 251, 254, 272–73 and Louisiana, 128, 139 and Missouri, 132 opposition to, 154–55 the risks of, 137

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Index and southern judges, 145 and states’ rights, 24, 113, 115, 117–18, 121, 126–27 as state suicide, 117. See also Civil War Second Confiscation Act, 97 Second Enforcement Act, 264 segregation. See Jim Crow self-ownership, 40, 72 Seward, William H., 79–80, 116–17 sexuality, 170–71, 176, 204, 205n7, 206, 209, 219, 224, 229. See also interracial relationships Shackelford, James, 129, 184 Shaw, Lemuel, 25 Shelby, David Davie, 226, 228 Sheridan Philip, 93–94, 190n32 Siegel, Reva, 238 Simard, Justin, 23 A Sketch of the Laws Relating to Slavery in the Several States of the United States of America (Stroud), 16n13 Skinner, Benjamin, 54–55 Skinner, Thomas Harvey, 54n66 Slaughter-House Cases, 168, 226–27, 238, 254–65, 269, 273 Slave Power, 67, 242 slavery. See capitalism; citizenship; contracts; emancipation; forced separation; former slave; morality; mortgages; natural law; property (slaves as); racial violence; racism; Reconstruction; retroactive rights; specific Amendments Smith, George Washington, 190n32 Smithers, Daniel, 32 Sneed, John L.T., 204, 221 social death, 149, 149n5, 156 social justice, 283 social rights, 223, 228–30, 267, 269, 271–73. See also civil rights; political rights social status, 45–48, 50, 61, 70 Somerset v. Stewart, 25–26, 153, 155 The Souls of Black Folk (Du Bois), 72, 174 South Carolina, 106, 186, 199n48, 220 South Carolina (the courts of), 39, 55–61, 95, 123–24 South Carolina Constitutional Convention, 19–20, 29

315 Southern Homestead Act, 71 Southern Law Review, 226n87 southern theory, 118–19, 123, 127 sovereignty: and abolition, 2, 11, 25, 28, 75, 86–87, 91, 103, 111, 115 and citizen disputes, 266 and the Civil War, 76–77 Confederate, 111, 115–17, 121n31, 128–30, 131n68, 132, 137, 143, 146 and contracts, 253 and the courts, 123, 145 and currency, 136–37, 143 federal, 92–93, 98, 105, 110, 113 and Lincoln, 118–19 and Louisiana, 139 and private law, 74 state, 29–30, 77–78, 80–82, 84, 91–93, 124, 224, 248, 266. See also states’ rights Speed, James, 119 Spooner, Lysander, 12n4, 27, 81n23 Stanford, Leland, 126 Stanley, Amy Dru, 72 Stanton, Edwin, 79n14 Staples, Waller Redd, 98 states’ rights, 75, 78–84, 92–93, 101, 126n48, 166, 218, 225–28, 244, 262–68. See also federalism; sovereignty state suicide theory, 117 state supreme courts, 8–9. See also specific state supreme courts State v. Hairston, 223–24, 229 State v. Rash, 165 State v. Ross, 227n91 stay laws, 62, 68–69. See also debt relief Stevens, Thaddeus, 32, 117–18, 126–27, 211 Stevenson, Brenda, 205n7 Stikes v. Swanson, 194–95 Story, Joseph, 25, 265 Story, William W., 21–22 Stowe, Harriet Beecher, 18 Stroud, George M., 16n13 suffrage, 2, 4, 102, 167, 211, 262n93, 264n96, 266n104 Sumner, Charles, 20, 75, 117–18, 211, 230, 243, 267 Swayne, Noah, 27, 36–37, 165, 167, 196–98, 231, 245, 248–51, 253, 256n63, 261

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316 tabula rasa, 177 Taliaferro, James Govan, 1–5, 10–11, 15, 25–27, 30, 32, 51–52, 102–3, 128, 135, 155–56, 195–96, 214–16 Taney, Roger, 23, 52, 81 Tarbell, Jonathan, 3, 173, 210–11 Teitelman, Emma, 72 Tennessee, 87–90, 92, 107, 141, 217 Tennessee (the courts of), 90–91, 129, 182, 213–17, 225, 227n91, 234 Tennessee Supreme Court, 34 Ten Percent Plan, 87–88, 102, 119 testamentary arrangements, 217–18 testimony (Black), 268 Texas, 64n102, 95, 107, 110, 141–43, 181, 217, 241–46 Texas (the courts of), 29, 93–95, 104, 108–9, 135, 138, 190–91, 211–12 Texas Constitutional Convention, 19 Texas v. White, 129–30, 143, 238, 241–48, 250–51, 255, 262–63 theft, 159–60, 162–63 Thirteenth Amendment: and citizenship, 255, 255n60, 273 and Delaware, 78 and emancipation, 77 interpretations of the, 2, 4, 5n12, 6n13, 8, 12–17, 30–33, 43, 51–52, 80, 83, 94n61, 96, 128, 134, 154–56, 158, 165–66, 243–44, 249, 254, 272–73 and Kentucky, 78–79, 82–83 limiting the scope of the, 241 as necessary, 116 punishment clause of the, 13, 277, 280 ratification of the, 32–33, 79–80, 83, 86–87, 96, 159, 216, 253, 269 and Reconstruction, 2, 5, 12 and slavery contracts, 4, 7, 12–17, 19, 25, 28, 30, 36, 43, 73–74, 254. See also contracts Thorington v. Smith, 135n81, 144 Tilden, Samuel, 250 Timmins v. Lacy, 189n30, 191 Tourgée, Albion, 273 treason, 115, 119–20, 138–39 A Treatise on the Law of Contracts (Story), 21 Treaty of Amnesty, 155n19 Trumbull, Lyman, 229, 243 Tsesis, Alexander, 14 Tushnet, Mark, 228n95

Uncle Tom’s Cabin (Stowe), 18 Uniform Partition of Heirs Property Act, 201–2 United Daughters of the Confederacy, 71 United States v. Cruikshank, 254–55, 264–66, 269n114, 270n118, 273 United States v. Grossmayer, 131n68 United States v. Rhodes, 165, 167n53, 253 U.S. Supreme Court, 20–23, 27, 36, 45, 113, 236–44, 247–75, 283. See also specific cases; specific justices Utley, William, 84–85 Virginia, 64–66, 106, 141, 199n48 Virginia (the courts of), 21, 66–69, 123, 133–34, 227n91, 234 Virginia Constitutional Convention, 29, 66 Vorenberg, Michael, 12, 13n5, 240 Wainwright v. Bridges, 11, 25, 27, 30, 37, 102–3, 103n93, 128, 135, 155 Waite, Morrison Remick, 239–40, 265–66, 270 Waldstreicher, David, 275 Walker, Moses, 211–12 Warner, Hiram, 100n86 warranties, 46–50, 249. See also contracts; property (slaves as) Wells, Ida B., 218n55 West River Bridge v. Dix, 248n41 Whig Party, 1, 83 White, G. Edward, 261n89 White v. Hart, 36, 37n55, 100, 129–30, 248–50 Whitesides v. Allen, 176–77, 192–93, 201 Wiecek, William, 240 Williams, John C., 35, 152 Williams v. Arnis, 142–43, 143n104 Williams v. Johnson, 87n41 Williams v. State, 198 Wilson, Henry, 32 Wirt, William, 246n36 Witt, John Fabian, 121n30, 129 women, 46n25, 53–55, 205n7, 206–7. See also interracial relationships Woodfin v. Sluder, 151 Wright, Gavin, 39n4, 42, 53 Wright, Jonathan Jasper, 29 Yeaton v. United States, 163

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