Creating Law through Regulating Intimacy: The Case of Slave Marriage in Nineteenth-Century New York and the United States
Keywords:
marriage law, slavery, enslaved people, newly freed individuals, New York, gradual emancipation, legalized marriage, juristsAbstract
This article argues that American jurists fashioned new understandings about the capacity of states to legislate about marriage through regulating the intimate lives of enslaved and newly freed individuals. This article does so through analyzing the creation and impact of a little-studied 1809 law in New York that legalized the marriages of enslaved people—while individuals were still enslaved—as part of the state's process of gradual emancipation, which occurred from 1799 to 1827. In New York, by legalizing enslaved people's marriages, jurists privatized financial liabilities within soon-to-be freed families. The law stood at odds with national juridical understanding about marital regulation. Jurists in the early republic were uncertain about whether states could legislate about matrimony. Southern states after the Civil War then cited and replicated New York's logic in legislating to legalize the marriages of freedpeople, similarly privatizing financial claims within families. In the cases of both New York and national emancipation, jurists, in choosing privatization, foreclosed possibilities for a different or broader vision of state support for freedpeople, such as reparations. After making marital laws about slavery, both New York and Southern states created and/or tightened their marriage laws, further inscribing understandings of the marital family into American governance. This piece contributes to historiographies of slavery, the American state, and intimacy.
References
1
“An Act to enable certain Persons to take and hold Estates within this State, and for other Purposes” (passed February 17, 1809). All laws cited in this piece can be found in the relevant year of the “Session Laws Library” for the state in question, located in the HeinOnline database.
2
Of Husband and Wife, Chap. VIII, “Of the Domestic Relations” (passed December 4, 1827).
3
When using the term “the state,” I refer broadly to government functions, and the people who perform them. See, Canaday, Margot, The Straight State: Sexuality and Citizenship in Twentieth-Century America (Princeton: Princeton University Press, 2009), 4–7CrossRefGoogle Scholar. As this article demonstrates changes surrounding the nature of the state over time, I add nuance and flesh to this working definition throughout this article.
4
Some notable excellent historiographical literature has briefly touched on this law. See, for example, Hunter, Tera W., Bound in Wedlock: Slave and Free Black Marriage in the Nineteenth Century (Cambridge, MA: Harvard University Press, 2017), 74–78Google Scholar; Sarah Levine-Gronningsater, “Delivering Freedom: Gradual Emancipation, Black Legal Culture, and the Origins of Sectional Crisis in New York, 1759-1870” (PhD diss., University of Chicago, 2014), 129–36; Goring, Darlene C., “The History of Slave Marriage in the United States,” The John Marshall Law Review 39 (2006): 314–15Google Scholar; Hartog, Hendrik, Man and Wife in America: A History (Cambridge, MA: Harvard University Press, 2000), 129–30Google Scholar; and Vivienne L. Kruger, “Born to Run: The Slave Family in Early New York, 1626-1827” (PhD diss., Columbia University, 1985), especially 347–65.
5
See, for example, Deborah Gray White, Ar'n’t I a Woman? Female Slaves in the Plantation South (New York: W.W. Norton, 1999 [originally published 1985]); Gutman, Herbert G., The Black Family in Slavery and Freedom, 1750-1925 (New York: Pantheon Books, 1976)Google Scholar; Burnham, Margaret A., “An Impossible Marriage: Slave Law and Family Law,” Law and Inequality 5 (1987): 187–225Google Scholar; Jacqueline Jones, Labor of Love, Labor of Sorrow: Black Women, Work, and the Family, from Slavery to the Present (New York: Basic Books, 2010 [originally published 1985]); Edwards, Laura F., Gendered Strife & Confusion: The Political Culture of Reconstruction (Champaign: University of Illinois Press, 1997)Google Scholar; Stanley, Amy Dru, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation (New York: Cambridge University Press, 1998)CrossRefGoogle Scholar; Perrone, Giuliana, “‘Back into the Days of Slavery’: Freedom, Citizenship, and the Black Family in the Reconstruction-Era Courtroom,” Law and History Review 37 (2019): 125–61CrossRefGoogle Scholar; Franke, Katherine M., “Becoming a Citizen: Reconstruction Era Regulation of African American Marriages,” Yale Journal of Law & the Humanities 11 (1999): 251–309Google Scholar; and Boucai, Michael, “Before Loving: The Lost Origins of the Right to Marry,” Utah Law Review 1 (2020): 69–176Google Scholar. The Anglo-American world's proscription on legal slave marriages differed from the colonial law of other empires, including that of France, Spain, and Portugal, which did have precedents for legal slave marriage. See, for instance, White, Sophie, Voices of the Enslaved: Love, Labor, and Longing in French Louisiana (Chapel Hill: Omohundro Institute/University of North Carolina Press, 2019)CrossRefGoogle Scholar; and Hunter, Bound in Wedlock, 83.
6
Although all other Northern states abolished slavery in the antebellum period, and many even before New York did, none enacted statutes legalizing the marriages of enslaved or freed people. Black couples legally married or assumed legal marital responsibilities only when freed, according to extant conceptions of matrimony in their respective states. Pennsylvania, during its process of gradual emancipation, did impose a fine on owners who separated enslaved spouses by more than 10 miles. See that state's “An Act to Explain and Amend an Act, Entitled, ‘An Act for the Gradual Abolition of Slavery’” (passed March 29, 1788).
7
For scholars and their works that I would suggest constitute historiography on intimacy, see, for example, Emily Alyssa Owens, “Fantasies of Consent: Black Women's Sexual Labor in 19th Century New Orleans” (PhD diss., Harvard University, 2015); Treva B. Lindsey and Jessica Marie Johnson, “Searching for Climax: Black Erotic Lives in Slavery and Freedom,” Meridians: Feminism, Race, Transnationalism 12 (2014): 169–95; and Chelsea Schields, “Closer Ties: The Dutch Caribbean and the Aftermath of Empire, 1942-2012” (PhD diss., The City University of New York, 2017). George Morris recently published a very fascinating piece about the historiography of intimacy in modern British history; “Intimacy in Modern British History,” The Historical Journal 64 (2021): 796–811. Jacqueline Allain also recently published a brilliant article deploying intimacy as an analytic to understand the affective ties of Maria Griffin, an enslaved woman in nineteenth-century Virginia; “Maria Griffin, et al.: Slavery's Intimate World,” Journal of Women's History 34 (2022): 15–35.
8
See, for example, Cott, Nancy F., Public Vows: A History of Marriage and the Nation (Cambridge, MA: Harvard University Press, 2000)Google Scholar; Grossberg, Michael, Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1985)Google Scholar; Dubler, Ariela R., “Governing Through Contract: Common Law Marriage in the Nineteenth Century,” The Yale Law Journal 107 (1998): 1885–1920CrossRefGoogle Scholar; and Halley, Janet, “What is Family Law? A Genealogy: Part I,” Yale Journal of Law & the Humanities 23 (2011): 1–109Google Scholar.
9
See, for example, Johnson, Jessica Marie, Wicked Flesh: Black Women, Intimacy, and Freedom in the Atlantic World (Philadelphia: University of Pennsylvania Press, 2020)CrossRefGoogle Scholar; Morgan, Jennifer L., Reckoning with Slavery: Gender, Kinship, and Capitalism in the Early Black Atlantic (Durham, NC: Duke University Press, 2021)Google Scholar; and Holden, Vanessa M., Surviving Southampton: African American Women and Resistance in Nat Turner's Community (Champaign, IL: University of Illinois Press, 2021)CrossRefGoogle Scholar.
10
See, for example, Balogh, Brian, A Government Out of Sight: The Mystery of National Authority in Nineteenth-Century America (New York: Cambridge University Press, 2009)CrossRefGoogle Scholar; Novak, William J., The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996)Google Scholar; John, Richard R., Spreading the News: The American Postal System from Franklin to Morse (Cambridge, MA: Harvard University Press, 1995)CrossRefGoogle Scholar; Rao, Gautham, National Duties: Custom Houses and the Making of the American State (Chicago: The University of Chicago Press, 2016)CrossRefGoogle Scholar; Saler, Bethel, The Settlers’ Empire: Colonialism and State Formation in America's Old Northwest (Philadelphia: University of Pennsylvania Press, 2014)Google Scholar; and Ericson, David F., Slavery in the American Republic: Developing the Federal Government, 1791-1861 (Lawrence: University Press of Kansas, 2011)Google Scholar. For a useful overview of this scholarship, see the forum, Ariel Ron and Gautham Rao, eds., “Taking Stock of the State in Nineteenth-Century America,” Journal of the Early Republic 38 (2018): 61–118.
11
A wonderful recent essay collection connects the history of the state to the history of intimacy from the Civil War to the present. See, Margot Canaday, Nancy F. Cott, and Robert O. Self, eds., Intimate States: Gender, Sexuality, and Governance in Modern US History (Chicago: University of Chicago Press, 2021).
12
There is a wide array of literature on Reconstruction. For just a small sampling of these texts, see, for example, Foner, Eric, Reconstruction: America's Unfinished Revolution, 1863-1877 (New York: Harper & Row, 1988)Google Scholar; Glymph, Thavolia, Out of the House of Bondage: The Transformation of the Plantation Household (New York: Cambridge University Press, 2008)Google Scholar; Hunter, Tera W., To ‘Joy My Freedom: Southern Black Women's Lives and Labors after the Civil War (Cambridge, MA: Harvard University Press, 1997)Google Scholar; and Edwards, Gendered Strife & Confusion.
13
See, for example, Parker, Kunal M., Common Law, History, and Democracy in America, 1790-1900: Legal Thought before Modernism (New York: Cambridge University Press, 2011)CrossRefGoogle Scholar; and Brown, Elizabeth Gaspar, British Statutes in American Law, 1776-1836 (Ann Arbor: The University of Michigan Law School, 1964)Google Scholar.
14
Lord Hardwicke's Act, passed in England in 1753, required that marriages receive government sanction, either by license or with the publishing of banns. However, this law did not apply to the British colonies, including what would become the United States. See, Rebecca Probert, Marriage Law and Practice in the Long Eighteenth Century: A Reassessment (New York: Cambridge University Press, 2009).
15
See, for example, Cott, Public Vows; Grossberg, Governing the Hearth; and Dubler, “Governing Through Contract.”
16
NY Const. of 1777; NJ Const. of 1776; Del. Const. of 1776; and Maryland Const. of 1776. See also, for example, Parker, Common Law, History, and Democracy.
17
Zephaniah Swift, A System of the Laws of the State of Connecticut, vol. 1 (Windham, CT: John Byrne, 1795-6), 1.
18
Henry St. George Tucker, Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia (Philadelphia: William Young Birch and Abraham Small, 1803), appendix, 3–6; 411–12. See also, for example, Tapping Reeve, The Law of Baron and Femme (New Haven: Oliver Steele, 1816).
19
Swift, A System of the Laws of the State of Connecticut, vol. 1, 189–90; and Reeve, The Law of Baron and Femme, 196–99.
20
Other works that touch on some aspects of court cases affirming common-law marriage include Grossberg, Governing the Hearth; and Dubler, “Governing Through Contract.”
21
See, for example, Vaigneur v. Kirk, 2 Des. 640 (1808); Baker v. Eliza Metzler, Ant. N.P. Cas. 193 (1807); Fetts v. Foster, 3 N.C. 102 (1799); and Crozier v. Gano, 1 Bibb 257 (1808).
22
See, for example, Morton J. Horwitz, The Transformation of American Law, 1780-1860 (Cambridge, MA: Harvard University Press, 1977).
23
Whitehead v. Clinch, 3 N.C. 3 (1797).
24
James Kent, Commentaries on American Law (New York: O. Halsted, 1826–30).
25
Fenton v. Reed, 4 Johns. 52 (1809). For other cases that cite Fenton, see, for example, Town of Londonderry v. Town of Chester, 2. N.H. 268 (1820); Chambers v Dickson, 2 Serg. & Rawle 475 (1816); and Jackson ex dem. Van Buskirk v. Claw, 18 Johns. 346 (1820).
26
See, for instance, Votes and Proceedings of the Senate of the State of New-York, at their First Session, Held at Kingston, in Ulster County, Commencing September 9th, 1777 (Kingston, NY: John Holt, 1777), 160; Journal of the House of Assembly of the State of New-York, The Second Meeting of the Thirteenth Session (New York: Francis Childs and John Swaine, 1790), 66; and Albany Gazette, January 23, 1797. It should be noted that early republican jurists reasoned that divorce fit within this contractual understanding of marriage. To twenty-first century eyes, divorce reads as a statutory remedy that exists alongside marriage under the same umbrella of “family law.” This was not the case in the early republic. Rather, jurists rationalized that divorce existed as a remedy to liberate a party from a marriage contract that had been broken, as opposed to an undue legislative intervention in the marriage contract itself. See, for example, Hartog, Man and Wife in America, 70. Jurists’ fashioning of marriage as a contract was a conceit that was far from ironclad, both conceptually and legally. The idea that marriage was a contractual relationship obscured the fact that the parties entering into the marriage were, in general, of vastly different social statuses. Differences in status based on gender permeated almost every aspect of early American life, and indelibly affected the marital relationship. Further, unlike most other contracts, matrimony conferred an array of unbreakable financial and legal understandings, whether the parties knew about them and agreed to them, or not.
27
“An Act to enable certain Persons to take and hold Estates within this State, and for other Purposes.” My read of the case law is that this statute was passed about 2 weeks after the Fenton ruling, but I have been unable to confirm this point.
28
On slavery in New York more generally, see, for example, David N. Gellman, Emancipating New York: The Politics of Slavery and Freedom, 1777-1827 (Baton Rouge: Louisiana State University Press, 2006); Shane White, Somewhat More Independent: The End of Slavery in New York City, 1770-1810 (Athens: University of Georgia Press, 1991); and Levine-Gronningsater, “Delivering Freedom.”
29
Town of Eastchester, New York, Book of Coloured People, 1795-1822, Westchester County Archives, 20; Kruger, “Born to Run,” 323; Hunter, Bound in Wedlock , 38–39; Sarah M.S. Pearsall, Polygamy: An Early American History (New Haven: Yale University Press, 2019), 115–49; Addenda - March 21, 1797, Journal of John Baxter of Flatlands, Long Island, Volume I, 1790-1804, ARC.257, Brooklyn Historical Society, 124; July 27, 1805, James Hawxhurst papers, 1713-1851, MssCol 3440, New York Public Library; Cyrus Bustill to Samuel Delaplaine, November 5, 1790 and October 12, 1791, Samuel Delaplaine papers, 1770-1839, New-York Historical Society. Thank you to Tal Nadan of the New York Public Library for double-checking the date of the Hawxhurst citation for me. For claim about the majority of enslaved wedded couples living separately, see, Kruger, “Born to Run,” 322. Other historians have also written about the rich array of non-marital relationships that Black people formed during the time of slavery. See, for instance, Johnson, Wicked Flesh; and Holden, Surviving Southampton.
30
See, for example, Gellman, Emancipating New York; White, Somewhat More Independent; Levine-Gronningsater, “Delivering Freedom”; and Paul J. Polgar, Standard-Bearers of Equality: America's First Abolition Movement (Williamsburg, VA and Chapel Hill, NC: Omohundro Institute/University of North Carolina Press, 2019).
31
The 1788 law and subsequent related statutes specified that if an owner could not guarantee that an enslaved person would be financially self-sufficient, the owner would have to provide security to the locality in order to manumit the enslaved person, and/or would be liable for the individual's maintenance, if need be, thereafter. See, for example, “An Act concerning slaves” (passed February 22, 1788); “An Act concerning slaves and servants” (passed April 8, 1801); Manumission Book: Huntington, 1800-1824 (Town of Huntington, NY: 1980); Records of the New-York Manumission Society, 1785-1849, vol. 2, New-York Historical Society.
32
“An Act for the gradual abolition of slavery” (passed March 29, 1799). In 1817, jurists passed another law stating that enslaved people born before 1799 would be freed in 1827, effectively setting an end date for slavery in New York; “An Act relative to slaves and servants” (passed March 31, 1817). The details surrounding gradual emancipation were hotly contested, and New York jurists revised the laws surrounding manumission multiple times throughout the period of 1799–1827. See, for instance, “An Act concerning slaves and servants” (passed April 8, 1801); “An Act to amend the Act, entitled ‘An Act concerning Slaves and Servants’” (passed March 31, 1807); and “An Act concerning Slaves and Servants” (passed April 9, 1813). For more on the details of these debates and legal changes, see, for example, Levine-Gronningsater, “Delivering Freedom.”
33
See, for example, Helen Zunser Wortis, A Woman Named Matilda: And Other True Accounts of Old Shelter Island (Shelter Island, NY: Shelter Island Historical Society, 1978); Helen Zunser Wortis collection, 1977.351, Brooklyn Historical Society; and New York State Comptroller's Office, “Audited accounts of payments made by overseers of the poor for support of children born to slaves, 1799-1820,” A0827, New York State Archives.
34
See, for instance, Journal of the Assembly of the State of New-York: At their Twenty-Fourth Session, Began and Held at the City of Albany, the Fourth Day of November, 1800 (Albany, NY: Loring Andrews, 1801), 178; Journal of the Senate of the State of New-York: At their Twenty-Fourth Session, Began and Held at the City of Albany, the Fourth Day of November, 1800 (Albany, NY: Loring Andrews, 1800), 141–42; Journal of the Assembly of the State of New-York: At their Twenty-Fifth Session, Began and Held at the City of Albany, the Twenty-Sixth Day of January, 1802 (Albany, NY: John Barber, 1802), 6, 23 78; Journal of the Assembly, of the State of New-York, at their Twenty-Seventh Session, Begun and Held at the City of Albany, the Thirty-First Day of January, 1804 (Albany, NY: John Barber, 1804), 29–30, 232–35.
35
See, for example, “An Act for the settlement and relief of the poor” (passed April 17, 1784); and “An Act for the better settlement and relief of the poor” (passed March 7, 1788).
36
See, for example, A New Conductor-Generalis: Being a Summary of the Law Relative to the Duty and Office of Justices of the Peace, Sheriffs, Coroners, Constables, Jurymen, Overseers of the Poor, &c. &c…By A Gentleman of the Law (Albany, NY: D. & S. Whiting, 1803), 64–76; and Town of Huntington, Records of the Overseers of the Poor–Part 2, 1805-1861, Index (Huntington, NY: Town of Huntington, 1986).
37
Quoted in William Hamilton, “An Address to the New York African Society, for Mutual Relief, delivered in the Universalist Church, January 2, 1809,” Schomburg Center for Research in Black Culture, New York Public Library; and Lawrence, George, An Oration on the Abolition of the Slave Trade, Delivered on the First Day of January, 1813, in the African Methodist Episcopal Church (New York: Hardcastle and Van Pelt, 1813), 10Google Scholar. For broader context, see, for example, Wilder, Craig Steven, “The Rise and Influence of the New York African Society for Mutual Relief, 1808-1865,” Afro-Americans in New York Life and History 22 (1998)Google Scholar; and Rury, John L., “Philanthropy, Self Help, And Social Control: The New York Manumission Society And Free Blacks, 1785-1810,” Phylon 46 (1985): 231–41CrossRefGoogle Scholar.
38
“An Act to enable certain Persons to take and hold Estates within this State, and for other Purposes.”
39
Yoshpe, Harry B., “Record of Slave Manumissions in New York During the Colonial and Early National Periods,” The Journal of Negro History 26 (1941): 91CrossRefGoogle Scholar, 97; and Certified copy of bill of sale by Stephen Lush to Thomas Allicott, August 23, 1815, New York State Library.
40
“An Act to enable certain Persons to take and hold Estates within this State, and for other Purposes.”
41
See, for instance, Hunter, Bound in Wedlock; Pearsall, Polygamy, 115–49; and Penningroth, Dylan C., The Claims of Kinfolk: African American Property and Community in the Nineteenth-Century South (Chapel Hill: University of North Carolina Press, 2003)Google Scholar.
42
See, Levine-Gronningsater, “Delivering Freedom,” 129.
43
Journal of the Assembly, of the State of New-York: At their Thirty-Second Session, Begun and Held at the City of Albany the First Day of November, 1808 (Albany, NY: Solomon Southwick, 1808); and Journal of the Senate, of the State of New-York: At their Thirty-Second Session, Begun and Held at the City of Albany the First Day of November, 1808 (Albany, NY: Solomon Southwick, 1808).
44
The historian Vivienne Kruger fascinatingly shows how, after 1809, some churches changed their recording practices surrounding the marriages of enslaved people. She argues that some churches ceased explicitly noting that individuals were enslaved in marriage records and excluded writing their masters’ names in the records. In her words, “With blacks no longer labelled in terms of legal status, slave marriages per se disappeared, replaced simply by unions between black persons”; Kruger, “Born to Run,” 359.
45
Overseers of Marbletown v. Overseers of Kingston, 20 Johns. 1 (1822).
46
Anthony E. Kaye deploys runaway slave advertisements in a similar way in his book, Joining Places: Slave Neighborhoods in the Old South (Chapel Hill: University of North Carolina Press, 2007). Shane White recently published an excellent essay about the kinds of information that might be gleaned from runaway slave advertisements in New York City, although he does not focus on intimate relationships. See, White, Shane, “The Allure of the Advertisement: Slave Runaways in and around New York City,” Journal of the Early Republic 40 (2020): 611–33CrossRefGoogle Scholar.
47
Evening Post, July 31, 1809; and Evening Post, July 6, 1814. See also, for example, American Citizen, February 7, 1810; Mercantile Advertiser, May 30, 1812; Commercial Advertiser, May 27, 1814; and Evening Post, June 16, 1814.
48
See, for example, Jones, Martha S., Birthright Citizens: A History of Race and Rights in Antebellum America (New York: Cambridge University Press, 2018)CrossRefGoogle Scholar; Harris, Leslie M., In the Shadow of Slavery: African Americans in New York City, 1626-1863 (Chicago: University of Chicago Press, 2003)Google Scholar; and White, Somewhat More Independent.
49
Commercial Advertiser, October 1, 1811.
50
Albany Register, March 20, 1810; and Mercantile Advertiser, June 29, 1814. See also, for example, Republican Watch-Tower, April 13, 1810; Columbian, September 19, 1810; and Columbian, November 25, 1811.
51
New-York Gazette, October 13, 1810; and Albany Gazette, April 12, 1813.
52
Of Husband and Wife, Chap. VIII, “Of the Domestic Relations” (passed December 4, 1827).
53
See my forthcoming dissertation.
54
See Thomas R. R. Cobb, An Inquiry into the Law of Negro Slavery in the United States of America, vol. 1 (Philadelphia: T. & J. W. Johnson & Co.; Savannah, GA: W. Thorne Williams, 1858), 242–43; and Goodell, William, The American Slave Code In Theory and Practice…(London: Clarke, Beeton, and Co., Foreign Booksellers, 1853), 78Google Scholar.
55
Tom and Charity had ceased cohabitating together prior to their emancipation; Malinda v. Gardner, 24 Ala. 719 (1854). See also, Minor v. State, 7 George 630 (1859); and Holmes v. Johnson, 42 Pa. 159 (1862).
56
See, for example, Foner, Reconstruction; Franke, Katherine, Repair: Redeeming the Promise of Abolition (Chicago: Haymarket Books, 2019)Google Scholar; Berry, Mary Frances, My Face is Black is True: Callie House and the Struggle for Ex-Slave Reparations (New York: Alfred A. Knopf, 2005)Google Scholar; and McDaniel, W. Caleb, Sweet Taste of Liberty: A True Story of Slavery and Restitution in America (New York: Oxford University Press, 2019)Google Scholar.
57
I relied heavily on Giuliana Perrone's excellent article “‘Back into the Days of Slavery’” to identify these provisions. See page 133–34, footnote 21 of that piece. Specifically, see, for example, Tex. Const. of 1869, art. XII, §27; Florida—“An Act to establish and enforce the Marriage Relation between Persons of Color” (passed January 11, 1866); Florida—“An Act Legalizing the Marriage of Persons of Color” (passed December 14, 1866); Alabama—“An Ordinance Relative to marriages between freedmen and freedwomen” (passed November 30, 1867); “An Act to amend and re-enact the 14th section of chapter 108 of the Code of Virginia for 1860, in regard to Registers of Marriage; and to legalize the Marriages of Colored Persons now cohabiting as Husband and Wife” (passed February 27, 1866); Georgia—“An Act to prescribe and regulate the relation of Husband and Wife between persons of color” (passed March 9, 1866); Mississippi—“An Act to confer Civil Rights on Freedmen, and for other purposes” (passed November 25, 1865); Arkansas—“An Act to legalize marriages of persons of color” (passed December 20, 1866); and Arkansas—“An Act to declare the rights of persons of African descent” (passed February 6, 1867).
58
See, for instance, Stanley, From Bondage to Contract.
59
For the Virginia and South Carolina laws, respectively, see, “An Act to amend and re-enact the 14th section of chapter 108 of the Code of Virginia for 1860…”; and “An Act Legalizing Certain Marriages, and for Other Purposes Therein Mentioned” (passed March 12, 1872).
60
South Carolina—“An Act to Establish and Regulate the Domestic Relations of Persons of Color, and to Amend the Law in Relation to Paupers and Vagrancy” (passed December 21, 1865); and Georgia—“An Act to prescribe and regulate the relation of Husband and Wife between persons of color.”
61
This notion that slaves had latent rights that the legal system could retroactively apply after emancipation is the legal concept of “dormancy.” See, Perrone, “‘Back into the Days of Slavery’”; and Goring, “The History of Slave Marriage in the United States.” The early republican New York antecedents of “dormancy” have been heretofore largely unstudied.
62
Davenport v. Caldwell, 10 S.C. 317 (1878); Jackson, ex dem. The People, v. Lervey, 5 Cow. 397 (1826).
63
Marbletown v. Kingston.
64
Brown v. Cheatham, 91 Tenn. 97 (1892). This Tennessee case was then cited in Coleman v. Vollmer, 31 S.W. 413 (1895), a Texas case that affirmed the validity of a marriage that an enslaved couple had first contracted while in bondage. For more on the coercive nature of Reconstruction-era slave marriage laws, see, for example, Franke, “Becoming a Citizen.”
65
For instance, in 1875, the United States Supreme Court ruled as an aside in a labor compensation case, Hall v. U.S., that the marriages of enslaved people were null and void at common law, citing Jackson v. Lervey among other cases. In so doing, the court left open the idea that state statutes could legalize slave marriages. Southern jurists then cited Hall v. U.S. in several subsequent state proceedings that validated freedpeople's marriages. However, as Perrone writes, Hall's oblique reference did not provide a definitive ruling on the subject of slave marriage, and not all states cited it in their case law. Some states that cited Hall also cited early republican New York legal cases. See, Hall v. U.S., 92 U.S. 27 (1875); Perrone, “‘Back into the Days of Slavery.’” See also, for example, Davenport v. Caldwell; Scott v. Raub, 88 Va 721 (1891); and Jennings v. Webb, 8 App.D.C. 43 (1896). Postbellum jurists also sometimes cited Girod v. Lewis, an 1819 Louisiana case that argued that the marriages that enslaved people had contracted would entail civil effects upon emancipation. See, 6 Martin 559 (1819). See also, for example, Johnson v. Johnson, 45 Mo. 595 (1870). However, these cases do not speak directly to the specific claims that I am making, about Southern states asserting new rationale about their capacity to legislate on the topic of nuptials, which relied on New York's precedent. In sum, I am not claiming that the New York cases were the only cases that postbellum jurists cited to justify the legalization of freedpeople's marriages contracted during slavery. However, Southern jurists called out New York cases in especially prominent ways, and New York established the earliest state precedent for making laws legalizing enslaved people's marriages.
66
See, for example, Cott, Public Vows; and Grossberg, Governing the Hearth.
67
See, for example, Cott, Public Vows; Canaday, The Straight State; Martha Gardner, The Qualities of a Citizen: Women, Immigration, and Citizenship, 1870-1965 (Princeton: Princeton University Press, 2005); Jennifer Klein, For All These Rights: Business, Labor, and the Shaping of America's Public-Private Welfare State (Princeton: Princeton University Press, 2003); and Robert O. Self, All in the Family: The Realignment of American Democracy Since the 1960s (New York: Hill and Wang, 2012).
68
See, for example, Berry, My Face is Black is True; McDaniel, Sweet Taste of Liberty; Brinkley, Alan, The End of Reform: New Deal Liberalism in Recession and War (New York: Alfred A. Knopf, 1995)Google Scholar; Brick, Howard, Transcending Capitalism: Visions of a New Society in Modern American Thought (Ithaca, NY: Cornell University Press, 2006)Google Scholar; and Cohen, Lizabeth, Making a New Deal: Industrial Workers in Chicago, 1919-1939 (New York: Cambridge University Press, 1990)Google Scholar.
