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“Back into the Days of Slavery”: Freedom, Citizenship, and the Black Family in the Reconstruction-Era Courtroom

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

2. These and similar cases have been used to investigate many other issues. They corroborate the struggles of freedpeople as they forged legitimate families for the first time, reveal the ways in which the state attempted to control black Americans and the ways that freedpeople resisted that control, demonstrate the collective effort of freedpeople to claim and shape their citizenship, and reveal part of the larger narrative about formalizing marriage as a legal category regulated by the state instead of by custom. See, for example, Penningroth, Dylan, The Claims of Kinfolk: African American Property and Community in the Nineteenth-Century South (Chapel Hill: University of North Carolina Press, 2003); and Regosin, Elizabeth, Freedom's Promise: Ex-Slave Families and Citizenship in the Age of Emancipation (Charlottesville: University Press of Virginia, 2002).

3. Antislavery advocates had conceived of emancipation in the United States, but there existed no official legal plan for demolishing slavery. Instead, black freedom developed as federal policy out of wartime circumstances.

4. There was no universal law of slavery; there was instead “an interrelationship between slavery and the law” that varied by state. Morris, Thomas D., Southern Slavery and the Law, 1619–1860 (Chapel Hill: The University of North Carolina Press, 1996), 3.

5. Freedpeople may not have thought of themselves as tabula rasa juridical subjects. To the contrary, black litigants turned to the courts to resolve their domestic disputes precisely because they had previous legal experience and/or well-developed assumptions about the law. However, this article principally investigates the determinations made by Reconstruction era jurists. Their rulings shaped black lives going forward and illustrate the legal limits of abolition. Judges regularly overlooked the complicated realities of the antebellum past, and rejected the possibility that slaves could ever have been legal actors. Instead, they consistently reiterated that customary marriages of enslaved people could not have been recognized by antebellum law, which necessitated new tools in order to legitimize marriages in the postbellum period. Judges, when they turned to antebellum precedent at all, cited jurisprudence that defined slave unions as concubinage, only allowed to “promote domestic order, and to further pecuniary interest, or as an act of kindness.” Solomon McReynolds v. The State 45 Tenn. 18 (1867). Judges cited antebellum cases from both North and South that denied slaves marriage rights, along with legal treatises and commentaries (Thomas R. R. Cobb's An Inquiry into the Law of Negro Slavery in particular), and, in Texas and Louisiana, Roman law principles to justify their stances. Cobb, Thomas R. R., An Inquiry into the Law of Negro Slavery (Philadelphia: T. & J.W. Johnson & Co., 1858). Literature on enslaved and free black peoples’ extensive antebellum legal experience includes: Edwards, Laura F., The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill: The University of North Carolina Press, 2009); Gross, Ariela J., Double Character: Slavery and Mastery in the Antebellum Southern Courtroom (Athens, GA: University of Georgia Press, 2006); Morris, Southern Slavery and the Law, 1619–1860; Kennington, Kelly M., In the Shadow of Dred Scott: St. Louis Freedom Suits and the Legal Culture of Slavery in Antebellum America (Athens, GA: The University of Georgia Press, 2017); Twitty, Anne, Before Dred Scott: Slavery and Legal Culture in the American Confluence, 1787–1857 (New York: Cambridge University Press, 2016); VanderVelde, Lea S., Redemption Songs: Suing for Freedom before Dred Scott (Oxford: Oxford University Press, 2014); Welch, Kimberly M., Black Litigants in the Antebellum American South (Chapel Hill: The University of North Carolina Press, 2018); and Jones, Martha S., Birthright Citizens: A History of Race and Rights in Antebellum America (New York: Cambridge University Press, 2018). For scholarship on African Americans’ invocation of legal beliefs after emancipation, see especially Penningroth, The Claims of Kinfolk; Regosin, Freedom's Promise; Milewski, Melissa, Litigating Across the Color Line (New York: Oxford University Press, 2017).

6. Edwards, Laura F., A Legal History of the Civil War and Reconstruction: A Nation of Rights, New Histories of American Law (New York: Cambridge University Press, 2015); Penningroth, The Claims of Kinfolk; and Foner, Eric, Reconstruction: America's Unfinished Revolution, 1863–1877 (New York: HarperCollins, 1988).

7. Justice Bradley defined the incapacities of slavery in a paragraph of his opinion in the Civil Rights Cases (1883): “The long existence of African slavery in this country gave us very distinct notions of what it was, and what were its necessary incidents. Compulsory service of the slave for the benefit of the master, restraint of his movements except by the master's will, disability to hold property, to make contracts, to have a standing in court, to be a witness against a white person, and such like burdens and incapacities, were the inseparable incidents of the institution.” See also Johnson, Walter, Soul by Soul: Life Inside the Antebellum Slave Market (Cambridge, MA: Harvard University Press, 2001), ch. 1.

8. Patterson, Orlando, Slavery and Social Death (Cambridge, MA: Harvard University Press, 1982), 182.

9. This article only examines the work of judges on the benches of courts of appeal, and its conclusions do not necessarily apply to trial courts or Freedmen's Bureau tribunals, which may or may not have implemented formal legal rules to adjudicate the claims of freedpeople. Furthermore, I do not wish to imply that antebellum judges had settled on any single definition of slavery. I intend only to suggest that conceiving of slavery without having to consider the property interest of slave owners was unthinkable before emancipation. Defining antebellum slavery has been the source of significant scholarly debate. For example, Thomas Morris argues that no such determination existed because Southerners “failed to agree among themselves on a formal definition of slavery.” Walter Johnson points to the “complete confusion” created by slaves themselves as the reason slavery lacked clear legal meaning. Morris, Southern Slavery and the Law, 1619–1860, 424. Johnson, Walter, “Inconsistency, Contradiction, and Complete Confusion: The Everyday Life of the Law of Slavery,” Law & Social Inquiry 22 (1997): 405–33, at 430.

10. There were two notable exceptions. Mississippi and Arkansas did not recognize retroactive domestic rights. Goring, Darlene C., “The History of Slave Marriage in the United States,” The John Marshall Law Review 39 (2006): 335–37.

11. Northern states that abolished slavery also had to address the issues related to slave marriages; however, some managed to avoid the problems that arose for Southern courts in the aftermath of the Civil War. For example, an existing New York law recognized the marriages of enslaved people, including those of couples in which only one of the parties was enslaved. Hartog, Hendrik, Man and Wife in America (Cambridge, MA: Harvard University Press, 2000), 130. Alternatively, 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 blacks in Pennsylvania and in surrounding states. Newman, Debra L., “Black Women in the Era of the American Revolution in Pennsylvania,” The Journal of Negro History 61 (1976): 281. Nancy Cott notes that states that adopted gradual emancipation enacted statutes to recognize the marriages of remaining bondspeople. There were caveats, however. First, masters needed to approve any union into which one (or two) of their slaves entered, second, marriage was never construed to imply manumission, and third, slaves’ “rights” were never upheld if they contradicted the wishes of the master. Thus, the marriage rights of those on the pathway to freedom remained tenuous and dependent on individual circumstances. Cott, Nancy F., Public Vows: A History of Marriage and the Nation (Cambridge, MA: Harvard University Press, 2000), 33; and Grossberg, Michael, Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1985), 129–30. See, for example, 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).

12. The “dormant right” of slaves to marry has been discussed in Davis, Adrienne D., “The Private Law of Race and Sex: An Antebellum Perspective,” Stanford Law Review 51 (1999): 221–88; and Goring, “The History of Slave Marriage in the United States.” Neither article explores or explains the concept in the broader context of legal Reconstruction. During the antebellum period, Thomas R. R. Cobb noted the concept, but was somewhat befuddled by the idea. He noted that courts in Louisiana “seem to hold, that after manumission, the marriage contract becomes valid for all purposes.” Cobb, An Inquiry into the Law of Negro Slavery, 243.

13. The use of the concept signaled a curious but deliberate revival of the sort of natural rights jurisprudence that had marked the eighteenth and early nineteenth centuries, instead of the conception of positive rights that had come to replace it during the antebellum decades. See Somerset v. Stewart, 98 ER 499 (1772); and Cover, Robert M., Justice Accused: Antislavery and the Judicial Process (New Haven, CT: Yale University Press, 1984).

14. Scholarship from the antebellum era and the present day argues that dormant rights was a concept likely derived from the Roman slave custom contuberium. Cobb, An Inquiry into the Law of Negro Slavery; and Grossberg, Governing the Hearth.

15. Girod v. Lewis, 6 Martin 559 (1819).

16. Howard v. Howard, 51 N.C. 235 (1858). Although decided prior to the Civil War and the end of slavery, this case was analogous to many decided during Reconstruction. It rejected the concept of dormant rights because it implied that slaves had other rights. This conundrum had been resolved by the time the issue came up again during Reconstruction. However, Chief Justice Richmond Pearson, who wrote the opinion of the 1858 case, remained on the bench throughout most of Reconstruction. Perhaps unsurprisingly, the North Carolina court chose to leave the precedent intact; it did not ever apply “dormant rights” during Reconstruction. See also Edwards, Laura F., “‘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 (1996): 81124.

17. Alabama, Maryland, Missouri, and Texas all explicitly adopted the dormant rights model of Girod. Other states found different ways to offer retroactive legitimacy to slave marriages. As noted, these included positive law, state constitutional provision, or pre-existing state legal tradition. Goring, “The History of Slave Marriage in the United States,” 317–22.

18. Lewis v. Commonwealth, 66 Ky. 539 (1868), Kentucky Department for Libraries and Archives, Kentucky Court of Appeals #1972.

19. In some states, the leap was less arduous. For example, the Maryland legislature passed a statute in 1777 that made slave marriages quasi-legal. The law, adopted during Revolutionary fervor, granted “moral” benefits to slaves who married with the consent of their masters, which would become legal obligations if the slaves were freed. Louisiana used the Girod ruling in much the same way.

20. Integrating former slaves into American society was a priority for many people who shared the goal of facilitating the formation of traditional households. Undoubtedly, judges, policy makers, missionaries, and other concerned citizens wanted to find a place for refugee freedpeople within legitimate households. The prevailing assumption was that the black family could be defined normatively, which, these cases show, was not always possible. Some historiography reinforces this, when it, too, assumes that we can identify the black family during Reconstruction, even though it was still in the process of being defined by freedpeople themselves. For comments on the problematic use of “black family,” see Chateauvert, Melinda, “Framing Sexual Citizenship: Reconsidering the Discourse on African American Families,” Journal of African American History 93 (2008): 198222. See also Stevenson, Brenda E., “The Question of the Female Slave Community and Culture in the American South: Methodological and Ideological Approaches,” Journal of African American History 92 (2007): 7495; Edwards, Laura F., Gendered Strife and Confusion: The Political Culture of Reconstruction (Chicago: University of Illinois Press, 1997); and Hunter, Tera W., Bound in Wedlock: Slave and Free Black Marriage in the Nineteenth Century (Cambridge, MA: Harvard University Press, 2017).

21. The Texas Constitution of 1869 (Article 12, § 27) recognized the marriages of freedpeople. Prior to that time, the 1867 ruling in Timmins v. Lacy, detailed in the text of the article, was the standard for judging slave marriages. It applied the “dormant rights” model espoused in Girod. Maryland relied on its 1777 law that legalized slave marriages with masters’ consent. If slaves had married in such a fashion, their marriages were automatically deemed legal upon emancipation. Alabama passed several laws related to the marriages of freedpeople following the Civil War. The state legislature passed the “Act of November 30, 1867” to retroactively validate slave marriages. Prior to this, the state had enacted “An Ordinance of September 29, 1865” that made legal any marriage between freedpeople from that point forward. Kentucky passed “An Act in relation to the marriage of negroes and mulattoes,” Act of February 14, 1866, which legalized the marriages of former slaves once they registered their union. The act also legitimated children born to former slave couples. Section 2, Chapter 18 of the Virginia Act of February 27, 1866 legalized slave marriages. The Virginia act did not require any formal solemnizing of the union. The Virginia law was codified as Code of 1873, ch. 103 § 4, p. 941. South Carolina also enacted a law that did not require any formal ceremony. It adopted “An Act to Establish and Regulate the Domestic Relations of persons of Color, and to amend the law in relation to Paupers and vagrancy” on December 21, 1865. It passed a second law, Act of March 12, 1872, that differentiated between the “moral marriages” between slaves and relationships of “concubinage.” Those living in concubinage did not receive the sanction of South Carolina law. In North Carolina, An Act Concerning Negroes and Persons of Color or Mixed Blood, Act of March 10, 1866 validated the marriages of former slaves living together at the time the law was passed. It required couples to ratify their union before a public official, although failing to do so did not result in the nullification of the marriage, but rather rendered them liable to be charged with a misdemeanor. Florida enacted The Act of January 11, 1866, which required all black couples to be married by an “authorized person” within 9 months of the law's passage. The compulsory act (the only state to require one) was replaced by the Act of December 14, 1866, which legalized all marriages between former slaves who were still living together. The Arkansas legislature adopted “An Act to Legalize marriages of persons of color” on December 20, 1866 to validate the marriages of all African Americans who were living together as husband and wife, regardless of whether or not they had been enslaved or free prior to emancipation. It passed a second act on February 6, 1867, “An Act to declare the rights of persons of African descent” to legitimate African American children who were not living in families with married parents. In Mississippi, the Act of November 25, 1865, Ch 4, §3 legalized the unions of couples living together at the time the act was passed. Georgia adopted a similar law on March 9, 1866, which declared legally married those men and women who lived together as married couples (Title XXXI, No 252, 240). Like Mississippi, the Georgia law was not retroactive. Goring, “The History of Slave Marriage in the United States,” 317–38.

22. On customary practices, see Hunter, Bound in Wedlock, 30–35. On dependency see, for example, Bardaglio, Peter W., Reconstructing the Household: Families, Sex, and the Law in the Nineteenth-Century South (Chapel Hill: University of North Carolina Press, 1995); Edwards, Gendered Strife and Confusion; and Pascoe, Peggy, What Comes Naturally: Miscegenation Law and the Making of Race in America (New York: Oxford University Press, 2009).

23. Cott, Public Vows, 89–91; Gutman, Herbert G., The Black Family in Slavery and Freedom, 1750–1925 (New York: Vintage Books, 1976), 418; Peter W. Bardaglio, Reconstructing the Household, 133; and Goring, “The History of Slave Marriage in the United States,” 319 n104.

24. Goring, “The History of Slave Marriage in the United States,” 335–336. Mississippi's Supreme Court did not hear a case related to the domestic rights of former slaves until after Reconstruction, and critically, after the United States Supreme Court ruled in Hall v. United States. The relevant case is Andrews v. Simmons, 10 So. 65 (1891). Arkansas's statutes on freedpeople's rights to marriage and inheritance produced few disputes. During Reconstruction, the state's Supreme Court heard only one: Scoggins v. State, 32 Ark. 205 (1877).

25. For example, in Lewis v. Commonwealth, an 1868 case from Kentucky, the judge ruled specifically that the law regulating newly freed black families was not intended to be retroactive. Lewis v. Commonwealth, 66 Ky. 539 (1868).

26. Solomon McReynolds v. The State, 45 Tenn. 18 (1867), 20–21.

27. McReynolds v. State, 20; Berry, Mary Frances, The Pig Farmer's Daughter and Other Tales of American Justice (New York: Vintage Books, 1999); Hunter, Bound in Wedlock; and Grossberg, Governing the Hearth.

28. McReynolds v. State, 45. Tennessee Library and Archives, MT Box 266.

29. White, Deborah Gray, Ar'n't I a Woman?: Female Slaves in the Plantation South (New York: W.W. Norton & Company, 1999).

30. McReynolds v. State, Tennessee Library and Archives, MT Box 266.

31. Ibid.

32. The law stated, “That all free persons of color who were living together as husband and wife, in this State, while in a state of slavery, are hereby, declared to be man and wife, and their children legitimately entitled to an inheritance.” Michie, Thomas Johnson, ed., The Encyclopedic Digest of Tennessee Reports, vol. IV (Charlottesville, VA: The Michie Company, Law Publishers, 1907), 408; and McReynolds v. State, 25.

33. McReynolds v. State, 20.

34. Ibid., 22. Shackelford accepted the convention of slave marriages but declared that customary unions were “absolutely void” under established antebellum law.

35. Girod v. Lewis.

36. McReynolds v. State, 25. Emphasis added.

37. 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 first affiliated with the Whig Party and then with 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.” Brown, R. Ben, “The Tennessee Supreme Court During Reconstruction and Redemption,” in A History of the Tennessee Supreme Court, ed. Ely, James W. Jr. (Knoxville: The University of Tennessee Press, 2002), 103.

38. Laura F. Edwards, “‘The Marriage Covenant Is at the Foundation of All Our Rights,’” 111. Serial marriages were also common among both black and white Americans in the nineteenth century. Hunter, Bound in Wedlock, 279.

39. Frankel, Noralee, Freedom's Women: Black Women and Families in Civil War Era Mississippi (Bloomington: Indiana University Press, 1999), 80, 83, 91. Pension records corroborate that many couples “[w]ere comfortable with their community-sanctioned slave marriages,” and felt no need to have an official remarry them. Scholars also suggest that as many former slaves separated as married. White, Ar'n't I a Woman? 177–80; and Edwards, Gendered Strife and Confusion, 19.

40. McReynolds v. State, Tennessee Library and Archives, MT Box 266. Interestingly, Judge Shackelford missed the opportunity to invoke Tennessee's unusual history of recognizing slave marriages. The court in Andrews v. Page, a postemancipation slave marriage civil case decided in 1871, did not. The ruling noted that the chattel principle had never been fully consummated in the state; instead, it chose to acknowledge “inchoate” rights of slaves that included limited benefits of marriage if (and only if) a couple had their masters’ consent to wed. The opinion in Andrews presumed that there had been no specific prohibition against slave marriages in an effort to reduce ammunition for abolitionists and to protect the slave against “tyranny or cruelty of the master and all other persons.” The court described concerns about abolitionists as the state's primary concern, and attributed the state's reluctance to ban slave marriage outright as a response to the “unjust, unwarrantable, unconstitutional, and impertinent interference, of enthusiasts and intermedlers [sic] in other States with this domestic relation, [which] rendered it necessary for the State to guard against the effect of their incendiary publications, and to tighten the bonds of slavery by defensive legislation, against persistent and untiring efforts to produce insurrection.” Andrews v. Page, 50 Tenn. 653 (1871).

41. Her name is alternatively spelled Sina or Sinia. Census records indicate that the correct spelling of her name is “Sina.” I have used the most common spelling of the recorded opinion throughout. His name is sometimes spelled Demas.

42. Among other things, she alleged that Demus “broke her arm and shoulder” during the summer of 1862, which left her permanently “crippled.” Although she did leave him in 1862, “he made promises” that the abuse would stop, and she returned to the home they shared.

43. Johnson v. Johnson, 45 Mo. 595 (1870). Missouri State Archives 598/4.

44. Ibid.

45. Ibid.

46. Ibid.

47. Johnson v. Johnson, Brief for the Appellant, filed March 25, 1870.

48. Ibid.

49. Johnson v. Johnson, Brief for the Respondent, filed March 26, 1870.

50. Johnson v. Johnson, 599.

51. Ibid., 600.

52. Ibid., 601.

53. Hunter, Bound in Wedlock.

54. The rulings in Johnson and McReynolds justified the use of retroactive rights similarly. Both opinions argued that granting legitimacy to unions in which “moral assent” had been given at some point in time was harmonious with the common law of marriage more broadly. Slaves, after all, were not the only persons who suffered legal disabilities. The same reasoning would be applied to a marriage of someone deemed insane or underage. Such unions would be considered legitimate once the incapacity was resolved (by growing older or regaining sanity) and the couple continued living as man and wife. To the justices of the Missouri Supreme Court, what mattered for freed slaves, “lunatics,” and young people alike, was the “subsequent mutual acknowledgement of each other as husband and wife,” which, once the people involved were able to contract, served to “complete the act of matrimony so as to make them lawfully and fully married.” Johnson v. Johnson, 600–601. This is because, the Tennessee Court proclaimed, the couple performed “‘acts and conduct [that] recognized the validity of the marriage’” once capable of doing so. McReynolds v. State. Judge Shackelford citing Cole v. Cole, 37 Tenn. 57 (1857).

55. Virginia enacted the first such law in British North America in 1662. Other colonies quickly followed suit.

56. Grossberg, Governing the Hearth, 208.

57. On the specific anxieties associated with emancipating children, see Mitchell, Mary Niall, Raising Freedom's Child: Black Children and Visions of the Future after Slavery (New York: New York University Press, 2010).

58. Hunter, Tera W., To ’Joy My Freedom: Southern Black Women’s Lives and Labors after the Civil War (Cambridge, MA: Harvard University Press, 1997), 39.

59. Ibid, 37.

60. Timmins v. Lacy, 30 Tex. 115 (1867).

61. Relevant literature on apprenticeship includes: Zipf, Karin L., Labor of Innocents: Forced Apprenticeship in North Carolina, 1715–1919 (Baton Rouge: Louisiana State University Press, 2005); Alexander, Roberta S., North Carolina Faces the Freedmen: Race Relations during Presidential Reconstruction, 1865–67 (Durham, NC: Duke University Press, 1985); and Scott, Rebecca J., “The Battle over the Child: Child Apprenticeship and the Freedmen's Bureau in North Carolina,” in Growing Up in America: Children in Historical Perspective, ed. Hiner, N. Ray and Hawes, Joseph M. (Urbana: University of Illinois Press, 1985).

62. Paschal, George W., A Digest of the Laws of Texas, Fourth Edition, vol. II (Washington, DC: McGill & Witherow, 1874), 1192; and Paschal, George W. 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, vol. 30 (Washington, DC: W. H. & O. H. Morrison, 1870), 119–20. Quotation from the headnotes of Timmins v. Lacy, authored by court reporter George Paschal.

63. Timmins v. Lacy, Texas State Library and Archives, Box 201-4046, file M-3866. The Timmins case file 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 building in the 1970s.” 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 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, 30:123.

64. Paschal and Texas Supreme Court, Reports of Cases Argued and Decided in the Supreme Court of the State of Texas, XXX:124. Timmins v. Lacy.

65. It is unclear whether Sarah Lacy and Harry Pope had ever considered themselves married.

66. Paschal and Texas Supreme Court, Reports of Cases Argued and Decided in the Supreme Court of the State of Texas, XXX:124. Timmins v. Lacy.

67. Timmins v. Lacy, “Respondents Arguments,” Texas State Library and Archives, Box 201-4046, file M-3866.

68. Timmins v. Lacy, 135.

69. Ibid., 137.

70. John W. Payne, Jr., “Coke, Richard,” Handbook of Texas Online, June 10, 2010. https://tshaonline.org/handbook/online/articles/fco15 (accessed June 1, 2018); H. Allen Anderson, “Donley, Stockton P.,” Handbook of Texas Online, June 12, 2010. https://tshaonline.org/handbook/online/articles/fdo14 (accessed June 1, 2018); Thomas W. Cutrer, “Willie, Asa Hoxie,” Handbook of Texas Online, August 10, 2017. https://tshaonline.org/handbook/online/articles/fwi43 (accessed June 1, 2018); Charles Christopher Jackson, “Smith, George Washington,” Handbook of Texas Online, June 15, 2010. https://tshaonline.org/handbook/online/articles/fsm17 (accessed June 1, 2018); and “Moore, George Fleming,” Texas State Historical Association: Handbook of Texas Online, June 15, 2010. https://tshaonline.org/handbook/online/articles/fmo28 (accessed July 11, 2013). 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.

71. Grossberg, Governing the Hearth, 219.

72. Hartwell v. Jackson, 7 Tex. 576 (1850). Grossberg, Governing the Hearth, 203–4.

73. Grossberg, Governing the Hearth, 221.

74. Texas Constitution of 1869, Article 12, section 27. See also Goring, “The History of Slave Marriage in the United States,” 320 n106.

75. Court records say the children remained enslaved until emancipation. However, the Census of 1850 lists William and Abraham as members of Cassius's household in Mobile.

76. Stikes v. Swanson, 44 Ala. 633 (1870). How Cassius managed to accrue his wealth is unclear; the Census of 1850 lists him as a laborer.

77. Ibid., 634.

78. Ibid., 635. Emphasis added.

79. Ibid., 635–36.

80. Ibid., 636.

81. 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.”

82. 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,” May 7, 2010. http://www.archives.alabama.gov/judicial/peters.html (accessed August 8, 2017).

83. Stikes v. Swanson, 637.

84. Whitesides v. Allen, Kentucky Court of Appeals #7457. Daniel's family adopted the surname “Whitesides” after the Civil War.

85. Ibid.

86. Ibid.

87. Edwards, “‘The Marriage Covenant Is at the Foundation of All Our Rights,’” 108. Frankel, Freedom's Women, xi–xii. Laura Edwards notes that the marriage customs of slaves often shared much in common with those of poor whites. Edwards, Gendered Strife and Confusion, 54–56.

88. Frankel, Freedom's Women, 83, 91; and Edwards, Gendered Strife and Confusion, 19.

89. Frankel, Freedom's Women, 83.

90. Gutman, The Black Family in Slavery and Freedom, 1750–1925, 416.

91. Records do not indicate where Jane and her children lived.

92. Whitesides v. Allen, Kentucky Court of Appeals #7457.

93. Ibid.

94. Ibid.

95. Even during the Civil War, concerns over the status of black domestic relationships acquired a moral dimension. Missionaries and social reformers warned that “the honor, the dignity, the moral and religious character of the nation [were] at stake” if African Americans continued to live outside the bounds of lawful wedlock. The Freedmen's Bureau, which performed wedding ceremonies en masse, went so far as to issue a pamphlet called “Marriage Rules,” to help educate former slaves on “the sacred obligations of the marriage state.” Southern lawmakers in particular saw the regulation of marriage as a way for the state to exert authority over persons no longer under the control of masters. Legally sanctioned marriage would allow the state to intervene in the domestic relationships of freedpeople, and, as Laura Edwards has noted, help to “contain” the “irresponsibility indolence, and sexual promiscuity” of the black race. Slaves could be forgiven for their ways prior to emancipation because marriage and parental custody had been forbidden, but once free, reformers and other like-minded policy makers called for a rapid end to the “licentiousness” and “barbarism” of illegitimacy. Freedmen's Aid Society Letter to President Abraham Lincoln, quoted in Cott, Public Vows, 84. Schwalm, Leslie A., A Hard Fight for We: Women's Transition from Slavery to Freedom in South Carolina (Chicago: University of Illinois Press, 1997), 239; Cott, Public Vows, 85–86; and Litwack, Leon, Been in the Storm So Long: The Aftermath of Slavery (New York: Random House, 1979), 240. Prior to the Civil War, there had been some attempts to recognize slave marriages. The push was made as part of an “effort to humanize the slave code.” In North Carolina, for example, an 1855 proposal garnered praise, but was never adopted. Slaveholders knew that “reforms threatened the viability” of the institution and their power over it. The allowance for any legal recognition of slave marriages granted rights to slaves that might be the first in a long line of many that would erode the peculiar institution. Genovese, Eugene D., Roll, Jordan, Roll: The World the Slaves Made (New York: Vintage Books, 1976), 52; Grossberg, Governing the Hearth, 130; Edwards, “‘The Marriage Covenant Is at the Foundation of All Our Rights,’” 93; and Edwards, Gendered Strife and Confusion.

96. Whitesides v. Allen, 24. Emphasis in original.

97. Ibid.

98. According to Kentucky law, children who were not cared for by parents could be apprenticed. The black male population could also be taxed in order to “support their indigent poor and school their children.” Lewis v. Commonwealth.

99. 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). Judith Kelleher Schafer, Slavery, the Civil Law, and the Supreme Court of Louisiana (Baton Rouge: Louisiana State University Press, 1994).

100. Auguste Fontenette may also have been Magdeleine's nephew. Although no testimony attested to the fact, it is mentioned once in a petition prepared by Fontenette's attorney.

101. Pierre v. Fontenette et als., transcript. http://dspace.uno.edu:8080/xmlui/handle/123456789/41741 (accessed October 15, 2015).

102. Ibid., 618.

103. In essence, 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.

104. Despite being a slave owner himself, James G. Taliaferro vehemently opposed secession and did not sign the article of secession in Louisiana when he was called upon to do so at the secession convention in 1861. He held the title Associate Justice on the Louisiana Supreme Court from 1866 until his death in 1876, during which time he also served as president of the Constitutional Convention of 1868. This convention produced Louisiana's Radical Constitution, and Taliaferro ensured that the essence of one of his most important decisions, Wainwright v. Bridges, would be codified by the state's new governing document. To that end, articles 127, 128, and 129 of the Louisiana state constitution of 1868 repudiated Confederate contracts, currency, and debts. “Bibliographical/Historical Note.” Taliaferro (James G.) Family Papers. Baton Rouge: Special Collections, Hill Memorial Library, Louisiana State University Libraries, 4; and Wilson, Evelyn L., “Louisiana Supreme Court Justices: Profiles of Three Reconstruction-Era Justices,” Louisiana Bar Journal 61 (2013): 100.

105. Pierre v. Fontenette et als., 619.

106. Hall, the petitioner, claimed that he had been born to a free woman, and had been 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.” Hall v. United States, 92 U.S. 27 (1875).

107. Hall v. United States. Finkelman, Paul, “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, GA: University of Georgia Press, 1999).

108. Texas v. White, 74 U.S. 700 (1868); White v. Hart, 80 U.S. 646 (1872); Osborn v. Nicholson, 80 U.S. 654 (1872); and Boyce v. Tabb, 85 U.S. 546 (1873).

109. Ruling otherwise would have left postemancipation slave contracts without remedy, and violated Article 1, Section 10 of the United States Constitution, which barred the impairment of contracts.

110. Bardaglio, Reconstructing the Household; and Grossberg, Governing the Hearth.

111. Hall v. United States, 31.

112. 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.

113. Williams v. State, 67 Ga. 260 (1881), 262.

114. Gross, Double Character. For a conversation about the significant tensions inherent in slavery and the law, see Johnson, “Inconsistency, Contradiction, and Complete Confusion: The Everyday Life of the Law of Slavery.” In other postemancipation slave cases, particularly those related to the contract for sale or hire of a slave, judges debated how and if the Thirteenth Amendment had uncoupled the vested property interest from the emancipated person. Here, in domestic law cases, we find no such debate. Most state court judges, and ultimately the United States Supreme Court in the Civil Rights Cases, determined that this is precisely what the Thirteenth Amendment had done. See, for example, The Emancipation Proclamation Cases, 31 Tex. 504 (1868); Wainwright v. Bridges, 19 La. An. 234 (1867); and The Civil Rights Cases, 109 U.S. 3 (1883).

115. During the antebellum era, free blacks possessed only limited rights. Jones, Birthright Citizens: A History of Race and Rights in Antebellum America. The Reconstruction Congress sought to destroy citizenship difference based on race.

116. 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”; and Hunter, Bound in Wedlock.

117. For example, Mississippi and Arkansas codes granted the right to marry, but denied any retroactive benefits.

118. University of Texas at Austin Tarlton Law Library Digital Collections, “George Fleming Moore,” Justices of Texas 1836–1986. http://tarlton.law.utexas.edu/justices/profile/view/71 (accessed July 11, 2013).

119. McReynolds v. State, 20.

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Law and History Review
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