Sunday, November 17, 2019

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"Black Parenthood as Lethal"

The right of Black parents to parent their children has remained highly contested since slavery. During slavery, slaves and their descendants were not permitted the legal right to marry, which was the only route to legitimate the children of their unions. To provide otherwise would have meant that slaves could not be treated as property, but as autonomous entities with the ability to control themselves and the fate of their families. Along with freedom, the passage of the Thirteenth Amendment to the United States Constitution ushered in new laws to formalize relationships between the formerly enslaved and their relations. The economic devastation of the Civil War on the South made it a legal imperative to shift the financial responsibility of slaves and their children from the White plantation patriarch to newly freed Black fathers. With freedom came the obligations of patriarchy. Southern states took several legal approaches to mint newly freed Black fathers with the patriarchal, financial, responsibility for those they had recognized as their wives and children during slavery, thus relieving former White plantation owners of the monetary burden of caring for the children they had fathered with enslaved women.

Just after Congress passed the Thirteenth Amendment to the U.S. Constitution on January 31, 1865, but before its ratification and adoption in December 1865, former slave states began enacting legislation to formalize familial relationships and legitimate the children of enslaved women, either by their symbolic "husbands" or by slave owners. Maryland and Virginia legitimated the children of couples who entered into marriage by custom during slavery despite any action the couples took after emancipation to marry or not. The Louisiana statute allowed either parent to legitimate a child born during slavery by acknowledging that child via declaration or by registering them in birth or baptismal rolls. The Georgia statute made all children born in slavery the legitimate children of their enslaved, now newly freed mothers-- but only of their formerly enslaved fathers if the mother and father were cohabitating at the time of the birth. Statutes enacted in Missouri, Maryland, Tennessee, North Carolina, South Carolina, Virginia, and Texas legitimated the children of parents who had cohabited during slavery. Alabama did the same by case law. The Missouri and Texas statutes went even further by requiring formerly enslaved couples to formalize their marriage through a legal ceremony before children could be legitimated. Florida and Kentucky did the same by case law.

At first glance these statutes appear to be innocuous and intended to legally cure the legal fiction of slave marriages, thereby legitimating the children of those unions. However, the cohabitation provisions of the statutes created inconsistencies with the reality of slavery and the ability of the enslaved to form the familial relationships recognized by law. Enslaved persons had limited autonomy over their bodies, their children's bodies, and the bodies of their fictive spouses. Slave families could be separated at any time through death, sale, or otherwise by the will of their masters, thus limiting the ability of enslaved spouses to cohabit and keep track of the location of their children. However, litigation over inheritance and legitimacy created a portrait of slave parents as lethal to the interests of their children, sketching enslaved fathers as irresponsible men who fathered children with multiple women through illicit relationships. Several cases serve to illustrate these inconsistencies.

The court in Branch v. Walker interpreted the cohabitation provision in the North Carolina statute legitimating enslaved children. At issue in Branch was the ability of the formerly enslaved father, Oscar Walker, to legitimate his children by two different women, Sarah Branch and Sukey (no last name), when Mr. Walker cohabited with each during slavery. Mr. Walker and Ms. Branch lived together until some time before 1860, when Ms. Branch's owner moved to another county and took her along. Per custom, Oscar was permitted to visit Sarah twice each year, and did so until December 1865. Mr. Walker also cohabited with Sukey on his master's plantation and together they had six children in the period of time before and during the Civil War. Upon emancipation, Oscar and Sukey lived together as husband and wife, and in accordance with the law legalized their union and their children in 1866. The two lived together until Oscar's death in 1869.

Conflict arose when both Sarah and Sukey's children claimed inheritance rights over the land Oscar had owned at his death. At trial, the judge instructed the jury that if Oscar and Sarah cohabited until Sarah's death and their children were born to them during that time, then Sarah's children were entitled to the land. Alternately, if Oscar and Sukey had cohabited until emancipation in 1866 and their children were born to them during that time, then Sukey's children were entitled to the land. The judge further instructed the jury that

there was no middle ground; that Oscar could have lived and cohabited with only one of them as man and wife; that a man could not live and cohabit, as man and wife, with two women at the same time; and that, if so living with Sarah, he could not so live with Sukey.

The jury awarded the land to Sarah's children.

Although the North Carolina Supreme Court in reviewing the case on appeal recognized that the cohabitation of enslaved family members was broken by sale or absences during the work week or longer, it found that the lower court judge erred only in failing to instruct the jury that the cohabitation between Oscar and Sarah or Sukey, respectively, be exclusive. Because the status of the children was dependent upon the cohabitation of the parents during slavery and the legalization of the marriage after emancipation, then only the children of one union could be legitimate. To decide anything else would be, in the court's words, to recognize polygamy.

The Texas Supreme Court also grappled with the inheritance rights of children born to multiple women but sired by the same father. v. Williams involved a dispute over property at the death of Moses Livingston. Mr. Livingston, the slave of Philip G. Smith until June 19, 1865, entered into a marriage by custom with the enslaved woman Fannie, whom Smith also owned. Moses and Fannie cohabited as husband and wife for about fifteen years, from 1850-1865, and had an undisclosed number of children during that time. At some point during Moses and Fannie's cohabitation, Moses began cohabiting with another slave on the Smith plantation, Malinda, without Mr. Smith's permission. Moses and Malinda also had an undisclosed number of children. Moses and Fannie lived together until shortly after emancipation in fall 1865, and for intervals after that until Fannie's death in 1872; Moses and Malinda lived together until her death in 1876. Based on the cohabitation patterns of Moses, Fannie, and Malinda, the trial court found that Malinda and Moses' only living child, George Livingston, was not entitled to inherit any portion of Moses's estate because he was not a legitimate heir.

In affirming the lower court's ruling, the Texas Supreme Court held that the Texas statute legitimating slave children could not do so when the parents of the children cohabited without the intention of becoming husband and wife. Key in the Court's determination was its statement on slave consent and marriage. However, slave consent to marriage only had legal effect when recognized by the master. Because Moses and Malinda carried on what the court described as a clandestine relationship outside their master's consent, then they could not be recognized as husband and wife. Malinda was not recognized as Moses' wife, so George could not be Moses' legitimate child or heir. Such legal reasoning does not take into account the actual circumstances under which George cohabitated with Fannie and Malinda. Again, enslaved persons had limited autonomy over their bodies. Numerous studies exist to show that slave masters bred slaves at will, and raped slave women who gave birth to the slave master's children. By allowing only those children from the union that the master recognized at emancipation, Moses' marriage to Fannie, to inherit from Moses, the court left George without the legal or financial protection of legitimacy conferred by his father.

As Branch and Livingston make explicit, statutes governing legitimacy and the courts' interpretation of these laws at emancipation did not encompass the complexity of familial relationships on the plantation. The laws did not force responsibility on slave masters for their children by rape, as slave marriages provided convenient cover in the form of a putative father, who could only "marry" with the consent of the master. To the extent that slave fathers had multiple families, statutes legalizing marriage and legitimating children only allowed for one set of children to be legitimated--those birthed by the mother with whom the father cohabited at emancipation. This legal fiction did not take into account the separation of slave families at death or by sale, and ultimately left children from the non-legal union unprotected and illegitimate with respect to accessing the financial resources of the patriarch living or dead. Perhaps most problematic was that these laws set up the unprotected, illegitimate children of slave unions to be recaptured by the former slave states through apprenticeship laws. The necessity of these laws hinged on the notion of "black parenthood as lethal." Best summarized by a former slaveholder: "The negro will not take care of his offspring unless required to it, as compared with the whites. The little children will die, they do die, and hence the necessity of very vigorous regulations ...."

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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