Conversation with Giuliana Perrone
In today’s Muster post, JCWE Book Review editor Megan Bever has a conversation with Dr. Giuliana Perrone. Dr. Perrone is an associate professor at the University of California, Santa Barbara and is the author of Nothing More than Freedom: The Failure of Abolition in American Law (Cambridge University Press, 2023)
One Reply to “Conversation with Giuliana Perrone”
Thanks to Megan Bever for an interview that calls attention to Giulianna Perrone’s brilliant book. My comment is designed to link Professor Perrone’s fascinating research with Robert Bland’s concern about how to teach the Civil War era.
I have found success introducing students to the complicated issues raised in the book by teaching a fictional case that attorney/author/judge Albion W. Tourgée imagined in his neglected With Gauge and Swallow, Attorneys (1889). Tourgée has one of the law firm’s lawyers, who immigrated from England, have his belief in the common law shattered when he takes a case in the South after the end of the Civil War. The lawyer, named Burill, had assumed that, even if the common law did not contain a remedy for slavery, it did not support it. For him, the law’s relation to slavery was the same as its relation to extralegal activity that “they call ‘business’ on the exchanges—stocks and produce and petroleum. . . . The law doesn’t encourage or protect it, . . . but the law doesn’t stop it.”. Research on his case, however, shatters his idol. The law “not only tolerated, but regulated, enforced, and strengthened” slavery.
Burill’s case forces readers to confront issues left unresolved because of three contradictory legal regimes: the antebellum Union, the Confederacy, and the postbellum Union. In 1857 a slave owner tried to take care of his black kin by side-stepping existing law and selling his children and their mother to someone who took them to New York and freedom. When the original owner died, he left his estate to the mother and children, but they could not take physical possession without being re-enslaved. During the Civil War, white relatives bought the estate when the Confederate government auctioned it for back taxes. After surrender, the blacks sued for ownership, but the white heirs claimed that the sale of the slaves was invalid for lacking consideration, rendering the will void because slaves could not own property. The lawyer’s Black clients maintained the validity of the will and contended that an auction by the Confederacy should not be recognized by US law. Nonetheless, in Texas v. White (1869), criticized in Tourgée “The Right to Vote” (1890), the Supreme Court ruled that because an indestructible Union consisted of indestructible states, southern states had never legally seceded. Thus, although states’ actions supporting rebellion were invalid, those “sanctioning and protecting marriage and its domestic relations, governing the course of descents, regulating and conveying the transfer of property, real and personal” were valid. Because slaves were property and considered a domestic relation, the plaintiffs’ claim would seem invalid. But wasn’t paying taxes and selling the property to put money in Confederate coffers aiding the rebellion?
Burill is convinced that the case will go to the Supreme Court. “The Dartmouth College case, the Chesapeake Canal case, the Dred Scott decision, the Legal Tender cases, and the Slaughter House cases, all put together, did not present as many nor as difficult constitutional questions as my case.” Tourgée, however, delays the case. In the delay Burill is asked to adjudicate a suit in equity that demonstrates Tourgée’s respect for honorable southern lawyers who disagreed with him politically. During the war another Southerner wanted to free his children but was legally forbidden from doing so. Before dying, he created a secret trust giving Esquire Bagster his children and financial support with the purpose of freeing them when possible. Bagster loyally invested the money in Confederate bonds, now worthless. Though still committed to the lost cause, Bagster feels he has betrayed his trust as a lawyer and brings suit against himself for recovery of the loss, which requires him to sell his home. Deciding in Bagster’s “favor,” Burill is so impressed with his honor that, called back to New York, he leaves the Southerner in charge of his case with $5,000 to cover costs. Bagster rightly calculates that his clients might lose and settles for more than they hoped for. To Burrill’s dismay the settlement keeps the Supreme Court from hearing his case.
Although the case is complicated, because Tourgée presents it in a way that attentive readers can understand, I find students able to engage it better than if I assigned them to read a trial transcript. Furthermore, because Tourgée leaves the case unresolved, after I guide students through the complexity of the issues, I get them to debate how they think the Supreme Court might have decided the case.
A final note, Professor Perrone mentioned that because marriages between the enslaved were not legally recognized, after emancipation there were cases in which freedpeople were accused of bigamy. Tourgée’s novel includes a figure based on Isaac Singer, the sewing machine mogul and famous bigamist. In the book the most loyal couples are either formerly enslaved whose marriages were not recognized or a mixed-race pair prosecuted for trying to marry.