Saturday, September 21, 2019

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Pathologizing Black Parenthood

As statutes governing legitimacy were legalizing slave marriages and shifting patriarchal responsibility to formerly enslaved fathers, apprenticeship laws were simultaneously pathologizing black parenthood. The Thirteenth Amendment to the United States Constitution was passed by Congress on January 31, 1865 and ratified on December 6, 1865. As early as January of 1866, states enacted legislation allowing court and county officials to bind out newly freed children whose parents were unable to care for them financially, less than one month out of slavery. Although laws governing the maintenance of poor white children were around prior to emancipation, after emancipation the law took on distinctly racial characteristics. The Georgia Supreme Court in Comas v. Reddish echoed many states as it articulated the purpose of apprenticeship laws in the emancipation era:

An Act to alter and amend the laws of this State in relation to apprentices, was evidently designed to make provision for that large class of persons in our midst (colored minors) who, by the results of the civil war, have been thrown upon society, helpless from want of parental protection, want of means of support, inability to earn their daily bread, and from age and other causes. It was the imperative duty of the Legislature to make provision for this portion of our people, to give them the full protection of the law, and prevent their becoming burdensome upon the industry of the country.

The spirit of this act is wise, just, and humane, and comprehends, alike, the white and black, without discrimination. It is, moreover, clear and perspicuous, and should be enforced in good faith; and under color of its provisions, public functionaries should be vigilant in preventing any one, under the name of master, from getting the control of the labor and services of such minor apprentice, as if he were still a slave.

Despite the court's nod to colorblindness and the purported equal application of the statute to Black and White children alike, the practice in Georgia and the former slave states was to apprentice minor children who had previously been enslaved to their former masters in the event that their parents were unable to provide for them materially and morally. Of course formerly enslaved mothers and fathers were indigent; they were property that owned no property, now in danger of being divested of their children as a result of their former condition of slavery. Prior to the end of slavery, apprenticeship laws provided that White orphans and wards of the state were taught trades or other skills so that they could support themselves. In emancipation, training Black children and their parents to support themselves took a back seat to assuring the financial well-being of the state and former slave owners. The Texas Supreme Court, in stating the intent of its legislature when enacting the apprenticeship laws posited:

The sudden emancipation of four millions of illiterate people, who had hitherto been slaves--a people without property, money, or book-learning--required some change of legislation. It is not to be denied, that the shock was a great one, and that it distracted the minds of many, and caused inventions, as to how the labor should be controlled for the benefit of the old masters. Although most men had long felt, few were willing to acknowledge, that slavery was a very expensive institution for the master.

More expensive still was post-emancipation life for former slave owners, without the free labor of an enslaved workforce. Thus, in litigation involving apprenticeship contracts for minor Black children, courts looked to statutes legitimating slave marriages to determine the rights of fathers to control their children. Children of fathers unable to legitimate them legally, that is those fathers like Moses in Livingston v. Williams, and Oscar in Branch v. Walker, were deemed bastards, even though fathers like Moses and Oscar were ready and able to acknowledge and care for them. Legally, the fathers of bastards had no rights to parent. The case of Harry Pope and his minor son Elkin is illustrative.

The case of Harry Pope and his minor son Elkin is illustrative.

Harry and Sarah Pope were married in the custom of the enslaved. During their cohabitation, Sarah gave birth to Elkin. Around 1859, Harry allegedly abandoned Sarah when she gave birth to another child by another man. The "abandonment" was as result of Harry's sale to another owner. Regardless, Harry visited his children when possible and continuously acknowledged Elkin. At the end of the Civil War, Harry contacted Mrs. Timmins, his, Sarah and Elkin's former owner, and allowed her to keep the children during 1866. Harry subsequently contracted for the children to remain with Mrs. Timmins under a contract of apprenticeship in 1867 and possibly 1868. As a condition of the apprenticeship agreement, Mrs. Timmins consented to give all of the children, including Elkin, 100 acres of land once they reached twenty-one, the age of majority.

Sarah also committed to hire herself and the children to Mrs. Timmins for 1866, but left the plantation with Moses Lacy in December of 1865, right after the Thirteenth Amendment was ratified. Sarah alleged that she took Elkin and another of her children with her, and hired them out to G.W. Pearson for 1866. However, the day after the children were delivered to Pearson, Mary Timmins' son Robert went to Pearson's house with "a double-barreled gun, and carried said children back to [Mrs. Timmins'] house." The Timminses alleged that the children were returned to them by force because Sarah had previously agreed by apprenticeship contract to bind the children to the Timminses. When Sarah left the Timmins plantation, she married Moses; Harry subsequently married another woman.

Although the court found that Sarah and Harry had entered into a marriage by custom or a contubernal relationship as slaves, and that Harry both acknowledged and recognized the children of their union, its opinion rested on the fact that Sarah and Harry were not cohabiting as husband and wife at the time of emancipation. Because Elkin remained with Sarah at emancipation, was under her control until Robert Timmins took him back by force, and Elkin returned to Sarah by his own volition as soon as he was able, the court deemed that Elkin was under Sarah's control. In affirming the lower court ruling to award Sarah and Moses Lacy custody of Elkin, the Texas Supreme Court waxed with certainty about the rights and obligations of fathers:

Surely it is not to be supposed that merely because the father, when discharging his duties as such, is regarded as the head of the family, may, after years of desertion and abandonment, during which he has left his wife to struggle unaided for their support, rob her, by means of this law, of the society of her children, and thus add to the injury already done her the severest blow which can be inflicted upon a woman, whatever may be her condition or sphere in life.

Thus, the court created another legal fiction. In this story Black fathers abandoned their families when unable to stop their separation from them by the ravages of slavery, and neglected their children when legitimacy laws prevented them from legitimating all of them.

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

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