All in the Family: The Black Household in Reconstruction-Era Southern Courts

Even before the end of the Civil War, newly-freed African Americans began securing their families. Army chaplains performed mass weddings, and freedpeople scoured contraband camps looking to reunite with long-lost loved ones. In the immediate aftermath of war, state legislatures adopted statutes to legalize black families for the first time, but these hastily constructed “black codes” failed to address the panoply of problems African Americans faced as they transitioned from pieces of property to legal persons.

As a result of this turmoil, nearly 700 cases related to slavery were heard in Southern state courts during Reconstruction. A substantial subset of them concerned the complications and complexities of creating free families. This paper focuses on these cases in particular, and examines the ways in which the shadow of slavery loomed over them. States charged former slaves with adultery for failing to register customary marriages, mothers sought custody of their children, and extended kin demanded legal support for their claims to inheritance. Such suits were complicated by the fact that many of the litigants were former slaves.

This paper demonstrates that former slaves both resisted official attempts to shape their families and turned to courts to exercise their right to create and define their own households, as they saw fit. More importantly, it argues that in the absence of precedent, positive law, or federal policy, judges often invented legal pasts for freedpeople in order to resolve cases.