On July 15, 1867, Daniel Allen achieved what had previously been impossible for him: he became a real property owner. Although 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.”Footnote 1 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 4,000,000 other enslaved persons who had been living in the American South.
Daniel Allen enjoyed his property only 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.” However, Daniel had left no will, and Jane Allen quickly contested the ownership of his property. 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. The lengthy court battle that ensued was complicated by the fact that the litigants, like Daniel himself, were former slaves. Jane Allen asked the court not to let the previous disabilities of bondage disqualify her children from the rights automatically enjoyed by freeborn Americans. In Whitesides v. Allen, the case that emerged from these circumstances, the Kentucky Court of Appeals ruled in Jane Allen's favor. They did so by granting Daniel Allen's children retroactive legitimacy, which allowed them to inherit the estate that their father had so carefully acquired.
This article explores a series of suits between freedpeople, such as Whitesides, in which marriage—the linchpin of familial legitimacy—put the disabilities of the slave past, rather than newly granted rights, at the center of the discussion about the meaning of freedom.Footnote 2 In each, a domestic conflict exposed the need to consider the previous actions and intentions of persons once deemed property. The suits reveal the uncertainty about the guarantees of emancipation and the legal fluidity of the Reconstruction era more broadly. In the legal no man's land created by unplanned emancipation, courts independently contended with one of slavery's remnants—the presumed illegality of the enslaved family—and had to settle whether and how the established laws and customs of domesticity could be applied to those formerly excluded from their protection.Footnote 3
Jurists, attorneys, and litigants alike found that although emancipation may have freed people from bondage and new statutes had granted them legal rights, including the right to form legitimate families, neither had completely abolished slavery. No action had yet provided a clear path for dismantling or replacing the antebellum legal framework(s) that had long maintained the institution, or for resolving the consequent lingering effects that slavery continued to have on the lives of African Americans.Footnote 4 Judges in particular quickly realized that they would have to participate in the process of abolition in order to resolve the intricate disputes of the formerly enslaved. In doing so, they engaged in a collective conversation that expressed a spectrum of legal thought about the ways and extent to which the law could address and define the status and rights of nearly 4,000,000 new citizen-subjects.
Judges articulated their postemancipation assignment in stark terms. They needed to determine whether freedpeople entered American society as tabula rasa juridical subjects without the official legal pasts needed to establish intimate domestic relations, or whether emancipation and subsequent citizenship imbued their previous lives as slaves with retrospective legitimacy.Footnote 5 This remained an open question throughout Reconstruction, as judges debated how to incorporate formerly enslaved people into civil society, when conceiving of them as legal subjects required more than recognizing basic freedom or acknowledging positive rights. Instead, this article argues, ending slavery was a complex process that included not only granting rights to freedpeople, but also subtracting the incapacities previously imposed by bondage so that certain rights might be applied retroactively. This became, as the cases show, a necessary part of the work done by state court judges before they could render verdicts in cases related to the newly free black family. Ultimately, their rulings blurred the line between slavery and freedom.
The notion that slavery had to be undone stands in contrast to the prevailing literature of Reconstruction. Traditionally, scholarship has emphasized the acquisition of citizenship rights, the ways freedpeople used courts to claim and assert those rights, and their importance to longer narratives about the eventual realization of equal citizenship in the twentieth century.Footnote 6 These accounts assume that basic freedom alone rendered former slaves fit to bear rights, suppose that granting rights alone was enough to make these actions possible, and describe the bestowal of rights as fixed in time. Postemancipation domestic law cases reveal that these assessments are incomplete depictions of the long legal transformation necessary for slaves to become full and equal legal subjects.
Certainly, the passage of federal civil rights legislation and the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments did a great deal to confer, articulate, and, in time, protect the rights of African Americans. However, actually doing the work necessary to abolish slavery, not just to free slaves, and to arrive at resolutions to the cases initiated by black litigants was far more complicated than is conventionally accepted. It also entailed stripping away the constricting disabilities that had prevented the enjoyment of those rights in the first place. Focusing solely on rights as newly granted obscures this important step in abolition, and it presumes that bearing rights alone was enough to relieve freedpeople of the burdens of their former bondage. It was not. Whereas the specific rights of citizenship might be universally defined and applied (as Congress intended of the Civil Rights Act of 1866, for example), the disabilities of slavery produced unique conditions and lasting consequences for newly free individuals, which could make exercising those rights difficult, or even undesirable. Herein lies the basis for legal conflicts heard in Reconstruction era courtrooms.
The incapacities, or disabilities, of slavery stemmed directly from the chattel principle that commodified persons as property.Footnote 7 As Orlando Patterson has noted, it was from the slave's status as property that “flowed, both in legal and in socio-economic terms, all the other manifold disabilities of the slave,” including the inability to own property, move freely, testify in court, or form legitimate domestic bonds.Footnote 8 Emancipation, therefore, required that the property interest that had been vested in slaves be fully excised. Then, the other incapacities that stemmed from enslavement could be addressed. Put another way, removing disabilities rendered former slaves capable of becoming legal persons qualified to bear and exercise rights that the state saw fit to bestow. Following this logic, judges, throughout Reconstruction and across the region, overlooked the realities of slavery as a lived institution. Instead, they reimagined slavery as a collection of legal disabilities imposed on a person that could simply be subtracted and summarily resolved, and thought that executing this process would ultimately and completely abolish slavery.Footnote 9
The rights related to family—marriage, custody, and inheritance—presented a particularly difficult juridical problem, because subtracting the property element was insufficient to eliminate the disabilities that prevented their enjoyment, even after they had been granted. Cases dealing with these issues are therefore particularly effective for illustrating the reasons why, as well as the ways in which, those disabilities were removed. Domestic rights, unlike voting or property rights, depended on a specific action—a lawful marriage—that took place sometime in the past. But the formerly enslaved, previously denied the ability to marry, bear legitimate children, or inherit from family members, would remain disadvantaged by the incapacities of their pasts unless some kind of legal accommodation were made.
That accommodation often came in the form of retroactive rights that granted ex post facto legal pasts to former slaves.Footnote 10 Some state courts relied on new state laws because they functioned retroactively, some had unique antebellum legal regimes that conditionally recognized slave marriages, while still others invoked the concept of “dormant rights” to resolve cases. All of these methods required the removal of the remaining legal disabilities of slavery, not simply the granting of new rights.Footnote 11
The last strategy—applying dormant rights—requires explanation. According to the theory, slaves had always possessed the rights of free people, but the institution of slavery had rendered them inactive, or dormant.Footnote 12 Ending the condition of bondage reanimated suppressed rights and applied them retroactively to the dormancy period (the term of enslavement). For example, a customary slave marriage became retroactively legitimate once husband and wife were free, because state recognition of the contract that bound them had only been suspended by the artificial application of the laws of slavery, not by any positive legal incapacity. Inclusion into lawful society rendered the marriage legal, both forward in time and backward. Only the unnatural application of slavery had prevented African Americans from exercising their inherent rights; emancipation had thus reinstated the proper and natural legal order of things.Footnote 13
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 slave marriage formerly recognized only through custom would immediately become lawful.Footnote 14 “Emancipation,” the opinion declared, “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.”Footnote 15
Prior to emancipation, judges outside of Louisiana rejected the dormant rights premise. They feared that it opened the door to recognizing a panoply of rights beyond marriage, and asserted that rights that were never, and never could have been enjoyed by bondspeople, could not be applied ex post facto. In 1858, for example, North Carolina Justice Richmond Pearson proclaimed the Girod ruling amounted to little more than a “fanciful conceit.”Footnote 16 Yet, postbellum judges across the South regularly cited the case when ruling on the domestic relationships of freedpeople. In other instances, jurists adopted the premise behind “dormant rights” without using it by name. Instead, they simply recognized retroactive rights.Footnote 17
Judges who invoked dormant rights theory or relied on the basic premise of retroactivity introduced an almost magical transfiguration that allowed them to imagine and conjure a legal past for former slaves and then apply pre-existing 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 in the past.Footnote 18 Nevertheless, the application of retroactive rights allowed postbellum judges a way to justify rulings that addressed the demands of freedpeople, and to promote social order by legalizing black households.Footnote 19
Undoubtedly, both acts—removing disabilities and acquiring rights—were intertwined; both were necessary for and mutually constitutive in establishing the status and place of freedpeople in postbellum American society. But they were nevertheless two distinct parts of that determination. In postemancipation slave cases, judges discovered that abolition required looking back in time before attempting to dismantle slavery in the present. Replacing it with something new would not alone suffice. In effect, judges who ruled on the domestic cases of formerly enslaved people did more than simply resolve the cases before them, they also attempted to employ a mechanism for abolishing slavery's remaining vestiges. Superficially, the method seemed promising; judges found ways to allow freedpeople to escape the burdens of their former bondage. In practice, however, this only worked successfully for some litigants. Others found themselves held to legal standards that they could not meet. Becoming a rights-bearing citizen subject fully liberated some former slaves, while it heaped new burdens onto others.
The State and Freedpeople's Unions
Immediately following the Civil War, African Americans existed in legal limbo. They were no longer considered property, but their citizenship and ability to form legal domestic bonds had not yet been fully defined.Footnote 20 In response, state lawmakers quickly enacted policies to address the personal relationships of freedpeople.Footnote 21 These provisions extended domestic legitimacy to—and state control over—newly emancipated persons. 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.Footnote 22
The new laws regulating black marriage were neither uniform nor problem-free. 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 pre-existing marriages with the state, sometimes for a fee. But most states simply enacted statutes that legitimized the unions between former slaves as long as the couple continued living together after emancipation.Footnote 23 These laws were sometimes retroactive, but not always; in Arkansas and Mississippi, for example, marriages were only considered valid from the moment the new marriage laws went into effect, as long as a couple continued cohabitating.Footnote 24 Furthermore, there was no guarantee that judges interpreting the new statutes would abide by the intentions of lawmakers who sought to grant retroactive legitimacy to black families.Footnote 25
As former slaves such as Jane Allen and others like her began seeking legal solutions to their domestic woes, 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 [former slaves] in their domestic relations growing out of their changed condition.”Footnote 26 But determining those rules was anything but straightforward, especially when criminal charges were brought against freedpeople for violating state marriage laws enacted prior to emancipation. For example, cases were brought against former slaves for bigamy, adultery, and fornication. Although these crimes were not new, such cases involving former slaves were entirely “novel.” Scholars have typically cited these criminal cases as evidence of the aggressive policing of black households by state officials, but some judges saw the suits as matters “of great importance, involving … the rights and privileges of free persons.”Footnote 27 They required judges to determine whether freedpeople could be held criminally liable for the relationships that they had begun while enslaved simply because they failed to meet new standards set by the state.
In an 1867 bigamy case, McReynolds v. State, the Tennessee Supreme Court contended with the complex web of new and unanticipated legal obligations and liabilities for freedpeople. Decided before the adoption of the Fourteenth Amendment and without the verdicts in other state courts to guide the judges’ assessments of freedpeople's rights, the Tennessee court relied on the premise of retroactive rights to reach its verdict. The case concerned the marriage of Solomon McReynolds and Eliza Elder, who had, according to the testimony of Eliza's mother, married in 1856 while they were both enslaved. The question of the case was simple: did this marriage acquire legal standing upon the couple's freedom from bondage? The existence of the couple's commitment was not in dispute. Eliza Elder and Solomon McReynolds had “stood upon the floor and raised their right hands and were married by” a slave preacher.Footnote 28 To Eliza's mother, Delpha, and presumably to Eliza herself, these acts had solemnized the union; the customary rites were performed, and their community recognized the couple as married. However, for unknown reasons, their union ended abruptly when Solomon McReynolds and Betsy Edrington obtained a marriage certificate from the Montgomery County Clerk's Office on January 17, 1867. Many former slaves established new relationships after emancipation; scholarship indicates that as many freedpeople separated as formally married.Footnote 29 However, existing records indicate that Eliza Elder did not anticipate her husband's departure from their shared home. It appears that she may have alerted the county to the second marriage.
In the initial trial, a jury sentenced McReynolds to 2 years of hard labor in the Nashville Penitentiary for breaking the state's bigamy laws.Footnote 30 He immediately appealed the ruling, using an argument that would be replicated by many other freedmen in subsequent years: he and Eliza could not have been married “for the reason that the slave could not contract.”Footnote 31 While enslaved, McReynolds’ assessment would have been unquestionably correct, but it was what happened after they became free persons that mattered. The two had not obtained a marriage license of their own, but neither had they stopped living together until Solomon entered into a new relationship.
Justice James O. Shackelford, writing for the Tennessee Supreme Court, turned first to new state law. In May 1866, the Tennessee legislature enacted a new Black Code that accepted continued cohabitation as legitimating customary unions.Footnote 32 But, Shackelford reasoned, it was also “necessary to look to the status and condition” of the litigants “and see what rights and privileges were accorded them” while they were enslaved.Footnote 33 The judge believed that a wedding, even between bondspeople, signaled something important: “the moral assent of the mind on the part of the slaves to a marriage.”Footnote 34 Moral assent was an important prerequisite of any common law marriage, and because it had been given in the case of Eliza Elder and Solomon McReynolds in the form of a wedding ceremony, and they had continued living together after emancipation, Tennessee law declared the couple married. The new statute bestowed retroactive and positive legal authority to marriages of the state's freed population.
Although the Tennessee Court did not specifically cite the Girod ruling, it clearly accepted the principle of retroactive rights. Both rulings relied on slaves’ “moral power to agree” as the basis for granting retroactive legitimacy.Footnote 35 The adoption of Tennessee's new Black Code, wrote Shackelford, declared “The marriage of such persons were 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.”Footnote 36 Echoing the language of dormant rights, the ruling maintained that once free from the previous incapacity of slavery, the moral assent given in 1856 imbued Solomon McReynolds with legal liabilities that were only and could only have been realized once emancipated. Although it would have been impossible to anticipate while enslaved, as a free person, he could not use the disabilities of slavery to avoid living up to those formerly dormant obligations. The case was remanded to the lower court for a new trial.Footnote 37
The ruling did not consider that Solomon McReynolds may have acted according to customary practice. For example, when it came to the possibility of ending a marriage, African Americans had developed different views from their white counterparts. Distinct from the problems associated with forced separation, the custom of enslaved African Americans permitted “divorce” when it was desired by and in the best interest of husband and wife. This stood 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.Footnote 38 In this way, formally recognizing a marriage took away a customary right enjoyed by married bondspeople. Whereas many white Americans saw these black customs as proof of racial inferiority and moral degeneracy, freedpeople understood their decision not to formalize an existing union as an equally valid assertion of freedom as obtaining a marriage certificate.Footnote 39 Either way, it was a personal decision that allowed former slaves to define freedom for themselves. It may very well have been that Solomon McReynolds believed that 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 had noted, marriage law, “with all the penalties and protection, is imposed upon and extended to the black race.”Footnote 40
Whereas McReynolds v. The State exemplifies postbellum criminal prosecution of black relationships, the 1870 Missouri case Sinai Johnson by her next friend Charlton H. Tandy v. Demus Johnson, illustrates the type of civil trial that arose when marriage law clashed with freedpeoples’ individual circumstances. On the one hand, the case seems like little more than part of the nasty—even sensational—divorce of Demus and Sinai Johnson.Footnote 41 Yet, the case is noteworthy for several reasons. First, it concerns an 1849 marriage between two people who were manumitted and lived together as a free couple long before 1865, and who managed to acquire some wealth during their time together. Yet, it bears all the hallmarks of a postemancipation ruling. Second, a seemingly unrelated third party, Demus's first wife, Elizabeth Jackson, had as large a stake in the outcome of the case as the two named litigants. Demus and Elizabeth had married prior to 1849, while both were enslaved, showing just how long the effects of bondage could reverberate in the lives of black Americans and in the legal system. In some ways, Johnson v. Johnson ended up determining whether or not this first marriage could take precedence over one that had lasted into freedom, and how the law should (or could) respond to unconventional familial circumstances of former slaves. Finally, the Missouri Supreme Court applied Girod directly, demonstrating the weight of dormant rights theory.
Testimony made abundantly clear that neither Demus nor Sinai wished to remain a couple, but they disagreed about the legal status of their union—or at least about what was required to dissolve it. In her 1868 Circuit Court petition, Sinai Johnson stated that she married Demus on August 30, 1849, and that they lived together at 48 Orange Street in St. Louis, Missouri until they separated in 1864. However, her testimony did not paint a particularly rosy picture of her time with him. She alleged that domestic violence had been a regular and well-known part of their lives.Footnote 42 Conversely, Demus contended their marriage soured because Sinai “had an awful temper” and “snapped at me whenever I talked to her.” An incident on May 11, 1864 served as the final straw for Sinai. She alleged that Demus “chased [her] with a hatchet and then raised a chair to strike her and threatened to kill her unless she left his house immediately.”Footnote 43 After the incident, Sinai did not return to her marital home.
Life as a single woman was difficult, and Sinai stated that she had trouble supporting herself. Citing “cruel and inhuman treatment,” Sinai Johnson sought a divorce and alimony from her estranged husband. Demus Johnson responded that no divorce or alimony could be granted because the couple had never been legally married. He remained enslaved when they wed, and was not manumitted for another year. Therefore, he posited that Sinai's suit amounted to little more than extortion, “wickedly contrived” to force him to “squander or give [her] his little … savings.”Footnote 44
Ultimately, with convincing evidence from her family members, Sinai won her suit in the Circuit Court of St. Louis. As “an innocent, and injured person,” she was entitled to a divorce and spousal support of $1,000.Footnote 45 Demus appealed the decision. His appeal rested on two arguments. First, his enslavement prevented a legal marriage. Second, when Demus wed Sinai, he “was already bound to the fullest extent of his power” to another woman, whom he had married while enslaved. He believed that if any marriage were to be lawfully recognized, it should be his first. While he was owned by Virginia planter R. B. Mason, Demus married Elizabeth (or Betsy) Jackson. The couple lived together on the Mason estate, and had three children. Approximately 10 years later, their “master took my wife and children to Texas … and I did not again see my wife for 25 years.” This, Demus claimed, Sinai knew when they wed; however, it did not concern her because Elizabeth was unlikely to ever return, and Demus had “given her up for dead.”Footnote 46
Remarkably, around the time that he separated from Sinai, Demus learned that Elizabeth and their children were alive and living in Kentucky. Immediately thereafter, Demus brought her and their children to Missouri, as he considered it his “duty to take care and provide for” them. At the time of the Circuit Court trial, Elizabeth was “very old and feeble,” but Demus was nevertheless living with her and once again “recognize[d] her as [his] wife.” Even if the law failed to identify it at the time, Elizabeth, he asserted, was his rightful “matrimonial partner.” Validating the second union “was immoral and contrary to public policy.”Footnote 47 Demus had not separated from Elizabeth or their children voluntarily; slavery had inflicted that upon them. In the aftermath of emancipation, Demus demanded the court repair the original union that slavery had violated. He contended the only important question the court had to answer in this case was: “Is the poor bond woman to be discarded and her children rendered illegitimate for the sake of the freewoman who married her husband, knowing at the time he had a wife living…? There can be but little doubt that the Court must hold Elizabeth, the mother of Defendant's children, the wife of his youth, and who adheres to him in his old age, who Defendant reclaimed as soon after his freedom as he learned that she was alive, to be his lawful wife.”Footnote 48 If the legal arguments failed to sway the justices of the Missouri Supreme Court, perhaps pulling at their heartstrings would.
Still, Demus’ bondage had ended 15 years prior to the end of slavery, and he and Sinai had lived together as husband and wife—both free—until 1864. Certainly, according to the brief from Sinai's attorney, this was sufficient to establish a legitimate common law household, if nothing else. The fact that Demus began living with Elizabeth only added insult to (allegedly literal) injury: “His living with Elizabeth before divorcement from [Sinai] is without the sanction of law. It is adultery, and itself a substantive cause for divorce.” Worse yet, Sinai claimed, it was fraudulent. “It was not until [Demus] saw a determination on the part of [Sinai] to assert her rights [to divorce and alimony] that he thought or cared for Elizabeth.” Sinai's brief further implored “Will this court hold [Sinai] was not his wife? … that after laying the best part of her life at his feet, and assisting him in accumulating his property; after patiently induring [sic] years of abuse and becoming crippled for life by his cruelty she is to be turned out of court branded as a vile mistress, the subject of contempt and scorn?”Footnote 49 The suit elicited emotional appeals from both sides.
The Missouri Supreme Court used the premise behind the dormant rights theory to reach a verdict in the case, and to deny Demus's appeal. One wonders whether the court would have entertained its application had the suit been decided prior to emancipation. It seems unlikely, given judicial resistance to it during the antebellum years. Instead, the judges may have concentrated on whether or not Demus had been enslaved when he entered a matrimonial relationship with Sinai. However, as it stood during Reconstruction, the court determined that Demus's status did not matter. There had been an apparent “moral assent of the mind” to the union given by both parties.Footnote 50 Similar to the ruling made in McReynolds, in which both litigants had undoubtedly been enslaved, the court in Missouri reasoned that once both parties became free persons, the dormant civil right to contract marriage activated. It did not matter whether Demus had been freed by manumission or by the end of slavery itself. With continued cohabitation, he transformed the original agreement (the “moral assent”) into a legally binding union. The court “perceive[d] no good reason for holding that the contract may not be assented to and ratified after the incapacity or disability is removed.”Footnote 51 The Missouri Supreme Court denied Demus's appeal, and affirmed both the divorce decree and $1000 of alimony.
In Johnson v. Johnson, slavery only invalidated the union between Demus and his first wife, Elizabeth. The court's opinion declared, “His 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.”Footnote 52 Yet this position was deeply problematic because it overlooked the very real incapacities inherent to the personal relationships of slaves and the common practices that developed as a result, including forced separation and serial marriage.Footnote 53 It is impossible to know whether Demus regarded Elizabeth Jackson as his legitimate wife sincerely, or whether, as Sinai's brief suggested, his concern for her was opportunistic. But practically speaking, it did not matter. Demus and Elizabeth resumed a matrimonial relationship once freedom made it possible to do so, and it was their union that he sought to validate. But the courts that heard Johnson v. Johnson chose not to consider that the practice of slavery had torn asunder a previous, well-established relationship. Jurists dismissed this fact because the law on the matter of slave marriages was clear: they did not have legal standing. Although the ruling made it possible for both Sinai and Demus to move on from their relationship, and for Demus and Elizabeth to reunite, the emotive entreaties of the briefs filed on behalf of each litigant disclosed that the lasting legacies of slavery were not so easily resolved.Footnote 54
The Black Family from Slavery to Freedom
The consequences of validating a marriage became important for more than just husbands and wives. It also mattered for their freed children, who lacked legitimacy at the time of their birth, and therefore had questionable claims to the rights that it afforded, including the right to inherit. At the core of the problem, paternity laws conflicted with partus sequitur ventrem, the doctrine that held that children born to enslaved mothers would share their condition.Footnote 55 In contrast with freeborn children, their paternity was irrelevant. When newly emancipated children became legal subjects, they had no legal pasts with which to assign or establish legitimacy or paternity.
Traditionally, fatherless children had occupied a legal purgatory where they were considered outside of any established household, and thus lacked the legal protections that legitimacy provided. Although nineteenth-century reforms had mitigated the consequences of illegitimate birth by making it easier both for single mothers to establish households of their own and for fathers to retroactively claim paternity, it was unclear at the end of the Civil War whether these doctrines would expand to include the black children who had been born to slave mothers. Without some remedy, emancipated children would otherwise be designated bastards—“the relative of no one”—under the law.Footnote 56
In one sense, addressing children's status was part of granting formerly enslaved people the same domestic rights that whites enjoyed. In another sense, however, the problem of paternity was also a problem for the state, which could have faced responsibility for thousands of newly “fatherless” children.Footnote 57 To address this, many of the Black Codes that legalized slave marriages also legitimized the children born to slave couples, in an attempt to grant them blanket amnesty that would simultaneously erase their former status as slaves and prevent their designation as bastards or dependents on the state. By including such provisions in their new codes, state legislatures attempted to ensure children were cared for in self-sustaining households rather than by the state itself.
Because the codes were so broad, however, complications inevitably arose, just as they had in marriage suits. The primary problem was that the rights of custody and inheritance depended on the assumption that children lived in traditional, and intact, households. Yet the effects of slavery and war—particularly death and displacement, nontraditional family structures, or most difficult, white paternity—often prevented the establishment of normative households and conventional paternal relationships. To address this problem, the parents of some children legally married other spouses once they had the opportunity to do so in order to create lawful households. Some savvy single parents went as far as registering marriages to “dead or missing” partners in order to grant their children legitimacy.Footnote 58 Relatives or other unrelated kin may have become the de facto guardians of children whose birth parents may have lived—or been sold—elsewhere, or who were no longer living.Footnote 59 Therefore, the postemancipation slave cases in which former slave children were involved were far more complex than the marriage suits described; they required an assessment of genetic paternity, evidence of a father's acceptance of his children, and the substantiation of a valid marriage.
The complicated dynamics of a former slave family were central to Timmins v. Lacy, a Texas case decided in 1867.Footnote 60 The Supreme Court of the state relied on the theory of dormant rights to sort them out. The apprenticeship of a black child to his former slave owners was the central feature of the case, but the legality of that apprenticeship depended on the status of the marriage between his formerly enslaved parents.Footnote 61 A new Texas law, adopted in 1866 to deal with “the sudden emancipation of four millions of illiterate people,” permitted apprenticeship with parental consent, or if deemed appropriate by local officials in order to care for indigent children.Footnote 62 Harry Pope apprenticed his son, Elkin, to Mary Timmins so that Elkin might “learn the vocation of farming.”Footnote 63 Elkin's mother, Sarah Lacy, protested this arrangement, noting that she and her husband Moses, were “the legal parents of … Elkin, and [were] legally and rightfully entitled to the care and control of their said child.” She implored, “Harry Pope…is not the legal father” of their son, and therefore had no right to consent to Elkin's apprenticeship.Footnote 64 Sarah Lacy based her claims on the fact that while enslaved, Elkin had remained with her after Harry Pope had been sold away.Footnote 65 Moreover, after emancipation, Sarah and Moses had the means to care for Elkin and for their four other children. They believed that there was no reason why their son should be apprenticed to a white guardian when they “ha[d] a comfortable home, with provisions amply sufficient for the support of themselves and family.”Footnote 66
Complicating matters further, believing that she had parental rights over her children, Sarah Lacy had hired her son out to G.W. Pearson. When Elkin and her other son, Chaff, began working for Pearson, Mary Timmins's son Robert, “went to Pearson's house with a double-barreled gun, and carried said children back” to the Timmins household, “claiming them under a contract.” Undaunted, the children quickly returned to their mother, only to be once again hauled off by Robert Timmins, “under an order from the [Cherokee] county court,” which had approved the initial apprenticeship. This case leaves plenty of room to speculate about the psychological damage and fear experienced by the Lacys and young Elkin Pope as a result of their dangerous encounter. But no such conjecture is necessary to see why in their arguments to the Texas Supreme Court, the Lacys implored that they simply be “let alone.”Footnote 67
Ultimately, the Texas Supreme Court found no evidence of a marriage between Sarah Lacy and Henry Pope. They therefore proclaimed Elkin Pope illegitimate because “there can be no lawful wedlock between parties who are under disability and cannot exercise the freedom of consent essential in any contract.”Footnote 68 Because Sarah and Harry had not sustained a marital union after becoming free, applying dormant rights was out of the question. The Texas Supreme Court would not resuscitate Harry Pope's claim to parental rights, and neither Elkin nor his siblings could be retroactively legitimated. “For most certainly emancipation can have this effect only in such connections as are existing between slaves at the time it takes place.”Footnote 69 Moreover, the justices believed that Harry Pope had in fact abandoned his family, leaving Sarah Lacy with full custody of her child. Because she had not granted her permission for the boy to be apprenticed, and because she had the means to care for him, the apprenticeship was invalid.
Harry Pope might have maintained a parental relationship with his son 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.Footnote 70 They chose to ignore that knowledge. Instead, the Timmins ruling likely reflected the justices’ acceptance of a liberalized law of bastardy that had consistently expanded the rights of mothers “to claim parental prerogatives.”Footnote 71 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.”Footnote 72 Even if the sitting justices rejected Hartwell's application to the Timmins case, historian Michael Grossberg notes that Southern justices often preferred rulings that conformed to “a sense of equity” and the idea that recognizing stable families—in whatever form—would reduce dependency and promote social integration.Footnote 73 The Texas court believed preserving the parental rights of Sarah Lacy best achieved those ends. The fundamental principles articulated in the Timmins ruling were ultimately codified in the Texas Constitution of 1869, which, like other analogous Black Codes, validated marriages of couples who continued to cohabit, and retroactively legitimated their children.Footnote 74 The provision did little for parents like Harry Pope.
The Alabama case, Stikes v. Swanson (1870), offered one of the clearest expositions on the concept of dormant rights and one of the strongest endorsements for its application found during Reconstruction. The case centered on the ability of freed children to inherit from their father, Cassius Swanson. Manumitted before the Civil War, Swanson had settled in Mobile, Alabama, where he amassed a “considerable estate,” which, notably, “consist[ed] of slaves and other property.” When Swanson died intestate in 1860, the settlement of his estate raised questions of succession. While enslaved, Swanson had married twice; Martin was his son with his first wife, and Abraham and William were the sons of his second wife, whom he had married after becoming widowed. All three of the children remained in bondage until slavery ended.Footnote 75 In settling the estate in 1868, the assigned administrator, Augustus Stikes, discovered that $556.18 remained for distribution to “persons entitled” to the sum. Martin, Abraham, and William Swanson claimed that they were the entitled persons.Footnote 76 Court records indicated that Cassius “always acknowledged and recognized the mothers of his children … as his wives, so long as they lived,” which was enough to satisfy the Probate Court of Mobile. It required the administrator of their father's estate to distribute the remaining sum to Cassius's sons.Footnote 77 Stikes appealed the ruling to the Alabama Supreme Court, questioning the validity of Cassius Swanson's marriages and the legitimacy of his children.
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. On these matters, Justice Thomas M. Peters determined, “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.”Footnote 78 Although slavery had stood in the way of 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 was enough to conclude that Cassius's marriages “would have been legal at common law,” and should, therefore, be understood as “legal natural marriages, jure divino,” by divine law.Footnote 79 Natural law—God's law—carried greater weight than any law of man, and emancipation had “restored the former slave to his natural rights.”Footnote 80 The Alabama Supreme Court's decision in Stikes condemned slavery fully by invoking the ever-present natural rights that slavery had artificially and immorally suppressed. “Justice,” Peters wrote, “is the law of laws,” and thus both of Cassius’ marriages should be considered legitimate.Footnote 81
Extending the disabilities of slavery, in the form of illegitimacy, into freedom hardly seemed like the justice freedpeople deserved.Footnote 82 Cassius Swanson's sons, therefore, “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 basis of which is now swept away forever.”Footnote 83 Citing Girod, the Alabama Supreme Court demanded that badges of previous servitude be eradicated fully. Martin, Abraham, and William emerged victorious. The court “restored their heritable blood” so that they would not have to trade the disabilities of slavery for those associated with illegitimacy.
The theory of dormant rights was not the only mechanism for fixing retroactive legality to black families. Kentucky used positive law to accomplish the same ends. In Whitesides v. Allen, the case that introduced this article, Jane Allen petitioned the court on behalf of her children, Fanny, Hardin, and Lucinda. She claimed that Daniel Allen's relatives had no rightful claim to property that her deceased husband had owned. Yet, Fanny Whitesides, Nelson Whitesides, Mark Allen, and Jake Sales had taken control of the property, and from February 8, 1868, “kept the plaintiffs out of possession.”Footnote 84 Jane Allen wanted to be sure that her children acquired the security of their father's property and the legitimacy of his name as they forged their free lives.
The defendants—Daniel's extended family members—pursued a familiar approach. They contended that Daniel and Jane had never been married, nor registered any union, as required by postbellum Kentucky code. If Daniel had wished to marry, he had had “ample time” to do so before his death, and yet he had not. Therefore, Daniel Allen's relatives denounced any claim to legitimacy by Jane Allen's children. “They ha[d] no information sufficient” to prove “that they [were] his children at all.”Footnote 85 Because the two had never lawfully wed, the children, even if they were Daniel's, had to be considered illegitimate. They had “no right to inherit from a reputed father.”Footnote 86
There are any number of reasons that could explain why Daniel and Jane did not marry according to the new Kentucky law. Not all former slaves felt the need to marry or remarry. Some freedpeople 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.Footnote 87 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.Footnote 88 For some, this decision was pragmatic. For others, ignorance may have 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.Footnote 89 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%, to as low as 7%.Footnote 90 Kentucky not only required marriages to be recorded by county registrars, it also required a fee to do so. Although the suit suggests they had the financial resources to comply, Daniel and Jane may have believed that they were already married, which offered little incentive to register or pay a fee to re-solemnize their union.
Daniel's relatives used their own familial relationship to bolster their claim. Also related by blood, they had lived with Daniel on his land prior to his death.Footnote 91 They had contributed to the improvements made to it, and their situation “would have continued had he lived.” The family members believed that their continued “possession and occupation” of the property “was their right.”Footnote 92 The “right” to which the defendants appealed was based on the belief that their family, as they conceived of and understood it, was the only legitimate one. The relationship between Daniel and his relatives was, in their minds, paramount over any other he may have formed while enslaved. However, testimony given in the Fayette County Circuit Court trial substantiated Daniel's domestic relationship with Jane and their children.
In their appeal, the lawyers for both sets of litigants zeroed in on the Kentucky Black Code that had required former slaves to register their marriages. The Whitesides’ brief looked to the portion of the law that required former slaves to register their marriages to render them valid, whereas the Allens’ submission argued that only the portion of the law that dealt with freed children's legitimacy mattered. Siding with the Whitesides would mean affirming that the Allen children were “bastards and incapable of inheriting.”Footnote 93 But, their brief argued, it would also give the state—through its Court of Appeals—the opportunity to send a strong message to ex-slaves about the social positions they now occupied as free persons, and the obligations that accompanied them. If the law were passed in the interest of preventing legal disputes over property and familial legitimacy by “strengthen[ing] the marriage ties,” then “[l]et this court of last resort announce 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.”Footnote 94 It is impossible to know whether or not the Whitesides understood these arguments, but their attorneys did. The brief tapped into the well-articulated fears held by lawmakers and white society more broadly by urging the state to flex its paternalistic muscle.Footnote 95
Despite these warnings, the Kentucky Court of Appeals upheld the original verdict in favor of Daniel and Jane Allen's children. “It is manifest,” 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.”Footnote 96 Although Jane and Daniel may have been guilty of violating the state statute requiring them to marry formally, the law did not punish their children for the infraction. Quite the opposite, section two of the Kentucky Act of February 14, 1866 stated, “the issue of customary marriages of negroes shall be held legitimate,” which gave the Allen children the edge in the case.Footnote 97 By writing a law that legitimized the children born to parents in a situation such as this one, the Kentucky government ensured that freed children were cared for by parents if at all possible, and that they were granted all the rights of children born to white couples, regardless of the status of their parents’ marriages.Footnote 98 Kentucky would not necessarily apply dormant rights to the marriages of former slaves, but it would grant retroactive legitimacy to the children born of those unions. The law and the ruling suggest that the state's greater interest lay in providing for children who might otherwise become a burden, not in marriages of adults who could presumably provide for themselves.
Remarkably, Louisiana, the state that introduced the theory of dormant rights, did not apply it during Reconstruction, although it had the chance to do so in Auguste and Joseph Pierre v. Auguste Fontenette et als., in 1873.Footnote 99 The case is important for two reasons. First, it demonstrates the growing centrality of the state in establishing a lawful marriage. Second, the dissent in the case powerfully illustrates the consequences of applying—or not applying—retroactive rights. The specifics of the case were somewhat complicated, but hardly atypical. Magdaleine Vincent had purchased her freedom prior to the Civil War, and as a free woman, managed to accumulate some property. Without any “descendants or ascendants,” she bequeathed her entire estate to Auguste Fontenette. When Magdeleine died in 1869, her nephews, former slaves Auguste and Joseph Pierre, objected to the will's execution, arguing that their rights of hereditary inheritance superseded the document: as undisputed living relatives, her estate should pass to them.
Auguste Fontenette maintained that heredity alone was insufficient for establishing legitimacy.Footnote 100 Instead, what made kinship, his attorneys argued, was not a blood relationship; it was the law. “They [were] not the heirs at law” because they were not “the legitimate issues of any marriage.” Their parents, Anna and Pierre, may have been married “under the eyes of the master and mistress,” but that could not translate into a sustainable legal claim. They were merely unrelated third parties, who had no standing to bring their suit.
In the initial trial ruling, Probate Court Judge Gabriel Fournet believed that Auguste and Joseph Pierre were indeed the nephews of Magdeleine Vincent. However, based on the status of their parents’ marriage, he agreed that they could not be legitimate heirs. He wrote, “An act of marriage cannot be entered into privately, with the single consent of the parties, and without the public intervention.” It was not enough that the couple had “the consent of their common master” and continued living together. No public act had made their parents “man and wife and entitle[d] their offspring to any of the rights of legitimacy.”Footnote 101 The state had to be an invisible party to any lawful union, and it was notably absent in the marriage of Anna and Pierre.
The brothers hoped to find a more favorable outcome at the Louisiana Supreme Court. The state's high court agreed that Auguste and Joseph were the nephews of Magdeleine Vincent, but would not concede that their hereditary relationship translated into a legal right to inherit. The court took up the question of dormant rights, but determined that the marriage of Auguste and Joseph's parents did not meet the Girod standard. The problem was not that Anna and Pierre were incapable of ever being considered legally married, it was that Anna had died prior to emancipation, and, therefore, before her “dormant rights” could be activated or such a union could be recognized by the state. Writing for the majority, Justice Philip H. Morgan asserted, “The marriage was dissolved before emancipation. The parties’ rights therefore, were not dormant; they were dead.” Unfortunately for Auguste and Joseph Pierre, “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.”Footnote 102 They had no legitimate right to inherit from their aunt because the court did not believe that their parents’ marriage could be retroactively validated.Footnote 103
Justice James G. Taliaferro, perhaps the most Radical-leaning jurist on the Louisiana bench, dissented in the case. Taliaferro had been a slave owner, but he condemned secession and worked throughout Reconstruction, both as president of the Constitutional Convention of 1868 and as justice of the Louisiana Supreme Court, to repudiate the Confederate legacies of his home state.Footnote 104 His dissent reflected his well-established views. First, he noted that Magdeleine Vincent had died in 1869, at which time she and her nephews were free persons with full civil rights, including the right to inherit.Footnote 105 Furthermore, it did not matter that Auguste and Pierre's mother had died prior to the end of slavery; her “heirs became legitimated and capacitated to receive” because her marriage to Pierre would have been deemed valid had she been living at the time of emancipation or had been free at the time of her death. Conceiving of Pierre as widowed seemed appropriate given the circumstances. The Girod ruling, at least to Taliaferro, not only permitted retroactive legitimization, it required it in this case.
Taliaferro's insistence stemmed from his consideration of a crucial problem. Rulings such as this one did not accommodate the needs of those whose domestic relationships did not or could not conform to traditional models. This hardly seemed like abolition. He believed that emancipation had ensured that “the disabilities” that had defined slavery had “ceased,” and he was willing to revive the “dormant rights” of a dead woman for the sake of her living children. To reject the claims of Auguste and Joseph Pierre was to allow some freedpeople to suffer lingering effects of slavery because of unlucky circumstances, while their peers could be unburdened by their pasts. For the end of slavery to be total, Taliaferro believed, this inequality could not exist.
In the end, Auguste Fontenette, Magdeleine's chosen heir and court-deemed legal inheritor, died before the Louisiana Supreme Court reached its decision. It is unclear who took possession of the property at that point. It may well have been acquired by Auguste and Joseph Pierre, but not because the Louisiana Court had deemed them the rightful inheritors.
Dormant Rights Denied
Ultimately, the possibility of using dormant rights remained open to state court judges throughout much of Reconstruction. However, the 1875 United States Supreme Court ruling in Hall v. United States appeared to nullify it for good. The case had nothing to do with the marriage or legitimacy of a freedperson. Instead, a black man sought compensation for labor he had contracted to a plantation owner before emancipation.Footnote 106 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 understood. 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.”Footnote 107 Customary slave marriages, the high court declared, remained without legal sanction unless and until they were validated by the state.
The case seems to appear in this story as a sort of deus ex machina. In reality, it aligned with the court's previous decisions on the enforcement of antebellum slave sale and hire contracts in postbellum courts.Footnote 108 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 laws in effect at the time of a contract's execution remained an inherent part of the agreement.Footnote 109 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 importantly, the Hall decision signaled an important step in the evolution of judicial understanding of lawful marriage. Specifically, it indicated the growing importance of the state in determining familial legitimacy, and suggested the role that postemancipation slave cases played in the turn toward this standard.Footnote 110
Whatever may have been the United States Supreme Court's rationale for including the aside about marriage in their ruling, the justices understood the past in very specific terms that did not include granting retroactive rights. “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.”Footnote 111 The court willingly looked to the past, but it would not retroactively grant rights that had not existed in it. Instead, they reinforced the illegality of all slave unions. Driving a final nail into the coffin of dormant rights, Swayne wrote, “The destruction of the institution can have no effect on the prior rights here in question.” Emancipation would not wash away the sins of slavery's past, and some state courts had to overturn previous rulings as a consequence.Footnote 112
Still, not even the United States Supreme Court fully settled the matter of retroactive rights. For one thing, the Hall ruling said nothing about the statutes or rulings that permitted the children born to slaves 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.”Footnote 113 The 1881 ruling reiterated opinions decided during the Reconstruction period, seemingly without concern for the Supreme Court's precedent.
Conclusion
When the Civil War ended, it became evident to politicians and civilians alike that the tenuous domestic relationships of newly freed African Americans had to be secured and protected if they were to become members of civil society. Domestic legitimacy was a marker of freedom. Consequently, state legislatures that convened in the immediate aftermath of the war began adopting Black Codes to attend to the new population of legal persons living within their borders. Legitimating black families at the state level had a multifaceted effect: it simultaneously imbued former slaves with domestic rights, helped prevent and alleviate dependency, and established a direct relationship between freedpeople and the state. Yet, no policy, state law, or adoption of federal constitutional amendments and legislation sufficiently addressed the monumental task of transforming all customary slave relationships into legal ones. As the cases in this article illustrate, marriages between freedpeople often continued to exist in legal purgatory, emancipated children resided in a comparable legal limbo, and unconventional networks of kin 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 it.
The cases prompted a reckoning with the particularly complex effects that generations of bondage had wrought on the lives and families of freedpeople. Finding an adequate way to grant legal sanction to formerly illegitimate families confounded jurists precisely because litigants carried their past status, or that of their kin, with them into postemancipation life, despite constitutional transformation and the ostensible acquisition of rights. It became clear that the lasting disabilities of slavery had to be removed before some rights could be granted and enjoyed; that is, before slaves could be fully transformed into citizens. Enacting such a metamorphosis required rethinking how the state bestowed rights and how they ought to be assured and protected, and, ultimately, a reconceptualization about how rights would come to be enjoyed by freedpeople. In some states, such as Kentucky, the state legislature adopted laws that guided courts. But for many postbellum Southern judges, subtracting disabilities by applying the theory of dormant rights or the basic premise of retroactive rights became the solution born of this reconsideration.
Subtracting slavery's disabilities also entailed a rethinking of the institution itself. Reconstruction era judges conceived of slaves as persons bound instead of as chattel property, so that subtracting disabilities could work its transformational magic. They assumed that the freedom delivered by the Thirteenth Amendment disintegrated the “double character” of slaves as both persons and property, and eliminated any legal tensions it had produced, leaving a free subject in its wake.Footnote 114 It created persons, formerly suspended in a state of slavery, to whom pre-existing law and legal principles could be applied. Slavery, in this rendering, was defined as little more than bundle of disabilities that could be removed bit by bit by using existing legal tools, once the crucial element that made a slave a slave (the property component) had been disconnected from the person.
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 were white Americans, which was precisely the goal of federal civil rights legislation enacted during Reconstruction.Footnote 115 Indeed, some state laws were explicitly crafted to make the marriages of freedpeople legally equal to those of white citizens.Footnote 116 Yet, this approach regularly neglected the consequences that enslavement had had on the shape of the black family and on the customary domestic ideals that black Americans 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 cases have shown, this produced an uneven jurisprudence in which 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 postemancipation litigation. Would Solomon McReynolds have married Eliza Elder if he had known of these legal liabilities? Would Daniel Allen have formally wed Jane upon their emancipation? Judges were not just determining winners and losers in these cases, they were applying retroactive rights that created ex-post facto legal obligations and set unattainable legal requirements for a particular subset of litigants. For some freedpeople, disabilities of one kind were replaced by another. The legacies of slavery played a significant role in determining that outcome.
Even with these consequences, it seems altogether likely that acknowledging retroactive rights held out the greatest possibility for defending the rights of most 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. It would have allowed the construction of families that comported with prior practices and long-standing custom. However, it is nearly impossible to imagine any realistic scenario in which plural marriage, extended kinship networks, or community-sanctioned divorce would have been countenanced in any part of the nation. Nor is it realistic to believe that granting amnesty to the slave past 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 would have carried legal weight. This seems more plausible than the first scenario; elements of it were put in place in the states that only recognized the marriages of former slaves after the adoption of specific legislation, and it was ultimately adopted by the United States Supreme Court in Hall.Footnote 117 This possibility, perhaps more than any other, 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 make the citizenship of former bondspeople equivalent to that of freeborn Americans—people who had a recognized legal history.
The middle ground on which many lawmakers and judges staked their claim required constructing methods for determining which former slaves would remain burdened by bondage, and which would benefit fully from their freedom. It is difficult to know for sure what motivated judges’ specific use of retroactive rights in postemancipation domestic law cases. As their personal biographies and written opinions divulge, it was almost certainly not a commitment to radical abolitionism. George Fleming Moore, the Texas Supreme Court justice who wrote the opinion in the Timmins case, was removed from the bench in 1867 after he was declared an “impediment to Reconstruction” by the military government of the state.Footnote 118 Similarly, when speaking of the enslaved black family, Justice Shackelford of Tennessee openly revealed his understanding of the nature of bondage in his opinion in McReynolds v. The State. He recalled wistfully, that slaves “were generally happy and contented in the humble condition; the cares of the future did not press upon them; their wants were supplied by their owners, and their children provided for.”Footnote 119
Yet neither were the judges so ideologically committed to slavery that they overlooked their duty to uphold the rule of law, even as laws themselves changed dramatically over the course of Reconstruction. Nor did they ignore the pleas and predicaments of the litigants before them. Although the politics of the era varied over time and by location, judges’ responses to the domestic cases of former slaves proved remarkably consistent. From the very beginning of Reconstruction until the Hall ruling in 1875, judges throughout the South ruled in ways that took seriously not only the new personhood but also the past intentions of former slaves. In so doing, they revealed something about the process of abolition. Deconstructing slavery required an examination of and reconciliation with the past, not just a reconstruction of society in the present. Subtracting the disabilities of slavery, by whatever mechanism, became the preferred judicial means of accomplishing this.
Still, judicial acceptance of retroactive rights also uncovers something about emancipation's limits to remake American law. Judges who used dormant rights saw it as a viable tool for solving their postbellum predicament, but, critically, also recognized that it was one that allowed them to preserve pre-existing jurisprudential rules and custom. It is true that some judges tried harder than others to ameliorate the legal limbo in which some former slaves found themselves, but none was willing to throw the antebellum baby out with the postbellum bathwater. They found a device that allowed them to continue practicing law as they had come to know and understand it, while simultaneously affording some former slaves the unburdened freedom that they had long desired.
Perhaps more important than determining precise judicial motivations is recognizing that the cost of this approach was paid by those black litigants unable to conform to pre-established rules and expectations, and considering what that means for our understanding of abolition more broadly. When we approach abolition as requiring 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 helped many former slaves find legitimacy, protected children, and validated families. 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 existed no remedy. No performance of legal acrobatics could alter, undo, or fully resolve the myriad ways that slavery continued to influence the lives of many freedpeople.
Amid the uncertainty created by the end of slavery, jurists and black litigants struggled to facilitate the transition from slave to citizen and to determine whether or not emancipation had created a rupture in the American legal order. Judges in Reconstruction era Southern courtrooms determined that it could be both. Many managed to provide the justice and familial legitimacy sought by freedpeople. They did so by blurring the boundary between slavery and freedom—by imagining a legal past for those who lacked one—in an attempt to make the families of formerly enslaved people equal in rights to those born free and white. For litigants like Jane Allen and her children, or the children of Cassius Swanson, judicial rulings confirmed that their former status as slaves would no longer restrict their lives as free persons. But for Solomon McReynolds, Demus Johnson, Auguste and Joseph Pierre, and countless others, there would be no such victory. They remained yoked to the same legal disabilities that had denied their personhood as bondspeople. For those like them, abolition remained incomplete.
