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Slavery's Legal Afterlife, 1865-1877 by Giuliana Perrone

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Slavery's Legal Afterlife, 1865-1877 by Giuliana Perrone Litigating Emancipation: Slavery’s Legal Afterlife, 1865-1877 By Giuliana Perrone A dissertation submitted in partial satisfaction of the requirements for the degree of Doctor of Philosophy in History in the Graduate Division of the University of California, Berkeley Committee in charge: Professor Rebecca M. McLennan, Chair Professor Robin L. Einhorn Professor Bryan Wagner Professor Harry N. Scheiber Spring 2015 Copyright © 2015 by Giuliana Perrone All Rights Reserved Abstract Litigating Emancipation: Slavery’s Legal Afterlife, 1865-1877 by Giuliana Perrone Doctor of Philosophy in History University of California, Berkeley Professor Rebecca McLennan, Chair When litigants entered Southern courtrooms after the end of the Civil War, they encountered a tangled morass of unexpected legal questions related to the end of slavery. Though the need to face such problems was ubiquitous across the former slaveholding republic, each state contended with such matters uniquely, producing a series of different solutions to the same fundamental problems. Principal among them: Why were there so many legacies of slavery contested in court? How should the law treat slavery and former slaves after the supposed end of the peculiar institution? In what ways did litigants themselves help to shape the meaning of freedom? How complete was the abolition of slavery if the institution itself remained open to ongoing litigation? State courts and individual petitioners were forced to confront the altered legal terrain of the post-Civil War South and negotiate the precise meanings of the Thirteenth Amendment, the end of slavery, the transformation of the former slave states, and ultimately, the reunification of the United States. Evaluating the many responses to these issues exposes legal Reconstruction’s many possibilities; some would become the road not taken, while others set the standard for managing slavery’s remaining legal quandaries. In some courtrooms, jurists were committed to a total eradication of slavery and the laws that had once supported it, revealing Reconstruction’s fleeting potential to secure true freedom for four million former slaves. The outcomes of other cases reveal judges clinging to assumptions about race, law, and Southern society that reflected the antebellum past. As this dissertation shows, the more conservative route ultimately became the prevailing legal paradigm, but it took nearly ten years to arrive at this conclusion, challenging the notion that there was ever a fixed meaning or moment of emancipation. 1 TABLE OF CONTENTS Acknowledgements……………………………………………………………………………….. ii Introduction……………………………………………………………………………………… 1 “Legal Reconstruction” in Post-Emancipation Southern Courts Chapter One……………………………………………………………………………………. 13 Transformations of Southern Law Chapter Two……………………………………………………………………………………. 33 Thenceforward and Forever Free: Determining the Date of Emancipation in the Courts of the Former Slave South Chapter Three………………………………………………………………………………….. 58 The Ties that Bound: Exposing the Social Practice of Slavery in Post-Bellum Courts Chapter Four…………………………………………………………………………………… 94 The Price of Defeat: The Inherent Risk of Emancipation Chapter Five…………………………………………………………………………………... 129 The Problem of Emancipation in the Age of Slavery: The United States Supreme Court and the End of Legal Reconstruction Epilogue………………………………………………………………………………………...150 Slavery’s Legal Afterlife Bibliography…………………………………………………………………………………… 154 Appendix A…………………………………………………………………………………….. 168 Additional Cases Related to the Date of Emancipation i ACKNOWLEDGEMENTS Upon reflection, it is clear that working on this dissertation has not been nearly as solitary as it sometimes seemed. Indeed, this work has been a wonderfully collaborative effort. I received support and kindness from people across UC Berkeley, around the country, and across the ocean. To all of them, I am tremendously grateful. I owe a special thank you to my committee members at UC Berkeley. Robin Einhorn helped launch this project. When I was searching for a seminar paper topic many years ago, she encouraged me to read some slave cases, and “see what I could find.” When I found what I didn’t know I was looking for, she helped me – at every step of the way – transform it into dissertation worth writing. Bryan Wagner invited me into his class on Reconstruction literature, and let me stick around the English department for three more years. When I got stuck or hopelessly frustrated, a trip to Wheeler Hall was all it took to get back on track. Harry Scheiber opened the doors to the law school, and welcomed me in. He gave me the confidence and the reading recommendations necessary to write a legal history without a law degree. Rebecca McLennan, the chair of my committee, never let good enough be good enough. She taught my very first graduate class at Berkeley, and she has been pushing me to do better ever since. It is this work ethic, coupled with her unwavering support, that keeps me working to the eleventh hour. There is, after all, always one more revision to do after the last one. The Berkeley community is a rich and supportive one, and many other people have encouraged me during my time here. In the History Department Mark Peterson, Waldo Martin, and Brian DeLay always had just the right thing to say at just the right moment. The students and faculty of the Jurisprudence and Social Policy program have been similarly instrumental. David Lieberman’s course on legal history changed the way I thought about the relationship between law and history, and his continued support of my work has meant a great deal to me. The students and faculty who participated in the Center for Law and Society’s BELS fellowship program in 202-2013 read a draft of the first chapter I wrote. Their comments and suggestions were not only incredibly useful, they also reassured me that the project was actually a good one. Similarly, I owe my gratitude to the members of the Berkeley Legal History Workshop who read and commented enthusiastically on an early chapter draft. When Christopher Tomlins offered a course on slavery and the law, I leapt at the chance to take it. In addition to providing a wonderful forum for discussing an important body of literature, Chris and my fellow graduate students – Aaron Hall, Franklin Sammons, and Alexandra Havrylyshyn, especially – inspired, encouraged, and offered me excellent advice as I wrote the first draft of my final chapter. I spent two summers driving around the South to collect archival materials for this dissertation, which would have been impossible without the assistance of outstanding librarians and archivists. The Texas State Archive spoiled me. The archivists pulled all the records I needed, and some I didn’t even know I needed, and had them waiting for me before I arrived. Joe Leiziear worked tirelessly to find the records from the Maryland Court of Appeals. It took three trips to Annapolis, but he delivered. Ben Almoite and Gail Warren gave me an entire conference room at the Virginia State Law Library, and managed to calm my fears when the tornado alarm went off in the building. Jerome Reel, the Clemson University historian, saved me the trouble of searching the University Collection finding aid, because he already knew which boxes I would need. The librarians at the University of Richmond granted me access to their rare books collections without delay because they knew it was my last day in the city. The archivists at the State Archive of North Carolina and Tennessee State Archive took a great interest in my work, and helped me find exactly what I needed. ii Friends and family were just as important to this journey as mentors, colleagues, and archivists. The Vietnam War derailed my father’s plans to finish his own graduate degree in History, but much of my love for the subject comes from him. My first seminar discussions were held at our kitchen table, even before my feet could reach the floor. My mother has made me a better teacher, “stocked my larders” when she came to visit, and let me complain about everything even when nothing was actually wrong. I am lucky that my brother and I got to share the Bay Area for a while. I miss our Sunday dinners, and am looking forward to restarting the tradition soon. Shoelace the Shelter Cat adopted me during my first year of graduate school. He’s been pouncing my feet, warming my lap, and reminding me that life is hilarious ever since. Dario Avila, my roommate from UT, let me crash on his couch while I returned to do research in Austin. For two summers in a row, the Bovbjerg family let me use their home in Washington DC as my home-base. They fed me, cheered me on, and let me be when I inevitably fell asleep on the couch with their elderly cats, Chloe and Alex. Julia Shatz has been a wonderful friend, colleague, and one-time roommate. She saw me at my worst, encouraged me to be my best, and spent many summer afternoons with me laughing in the library. Alberto García Maldonado has been the best friend and colleague anyone could have. From en-hulkenings to Simpsons marathons, college football to World Cup fútbol, and bag after bag of potato chips, we won at grad school. This dissertation would not have been possible without Chris. He read more drafts than anyone with analytical sharpness and a careful eye. He drove all over Tennessee and South Carolina with me, and asked only for barbequed ribs in return. Those extra five pounds were totally worth it. While living across the International Date Line, he read my work while I slept, and made sure edited drafts were ready for me in the morning. While living in the same household, he just made everything easier, and better. I promise to repay you in kind, and also with hanger steak and mashed potatoes. In many ways, this dissertation is for Mimi. She didn’t live quite long enough to see it completed, but it was her support and unwavering certainty that I was “doing everything right” that often kept me going.
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