‘Common Law’ S2 E3: The Road Not Taken After the Civil War
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‘Common Law’ S2 E3: The Road Not Taken After the Civil War


[MUSIC PLAYING] RISA GOLUBOFF: Hello
and welcome back to Common Law, a podcast
from the University of Virginia School of Law. I’m Risa Goluboff,
dean of the law school. LESLIE KENDRICK: And I’m
Leslie Kendrick, the vice dean. You may have heard this
season’s all about when law changed the world. We’ve been talking about
the power of legal action to make change. RISA GOLUBOFF: So far,
Leslie, we’ve talked mostly about how lawyers
and courts have helped make some positive
changes, like rolling back. America’s smoking habit
or expanding civil rights and civil liberties
during the Cold War and after World War II. But in this episode,
we’re talking about the power of law and
lawyers to hold back progress and to re-entrench
hierarchy and oppression. So during and immediately
after the Civil War, there was an
interesting experiment happening in the coastal
areas of the south where the Union Army
had captured territory and was in occupation. It might actually have
dealt a powerful blow to white supremacy and
bolstered the economic power of former slaves and
undermined the economic power of the white planters who
had previously owned them. But the experiment
really failed. And it was partly due to
the work of southern lawyers who very much wanted
to re-establish their way of life who were
not reconciled to the idea that slavery was over,
or that African-Americans would be landowners. And this is what the research
of UVA Law professor Cynthia Nicoletti is revealing. Cynthia is the author
of Secession on Trial– The Treason Prosecution
of Jefferson Davis, which won the Cromwell Book Prize. She’s now turned to a
new book project, which is exploring emancipation
and land redistribution to former slaves, focusing
on what happened in the Sea Islands, why it
mostly unraveled, and why black land
ownership in the south became a dream deferred. Cynthia, welcome to Common Law. CYNTHIA NICOLETTI:
Thank you for having me. RISA GOLUBOFF: So good to have
you, have this conversation. CYNTHIA NICOLETTI: It’s
a pleasure to be here. RISA GOLUBOFF: We
want to get to what happened in the Sea Islands. But first, can you tell us about
the Emancipation Proclamation and what comes after it? I think many people assume that
the Emancipation Proclamation ends slavery, but it doesn’t. CYNTHIA NICOLETTI: Sure, so
the Emancipation Proclamation goes into effect
January 1, 1863. President Lincoln issues
it as a war measure. And the idea here is that he
puts it into effect in places where the rebellion
is currently going on. So it’s supposed to free slaves
in places that are currently under Confederate control. The idea here being
that it’s touching places where if
slaves are freed, that’s going to help
the union war effort and help the union to win. RISA GOLUBOFF: But is it
possible to free slaves in places that are controlled
by the Confederate army? CYNTHIA NICOLETTI: Yeah,
so this is the rub. That’s the problem. So the Emancipation
Proclamation goes into effect ironically only in those
places where it can’t really be effective. RISA GOLUBOFF: So if
the proclamation is the thing that actually
creates emancipation, where do we go next? What happens after that? CYNTHIA NICOLETTI: Well,
so the proclamation isn’t effective on the date that
it’s actually put into effect, but it becomes so. So as the Union Army moves
into Confederate territory throughout the duration of the
war, wherever the army made inroads, slaves were
freed effectively when there was a strong
Union Army presence. LESLIE KENDRICK: But we wind
up with the 13th Amendment that abolishes slavery. And you could say,
do we even need that? Is that unnecessary if we’ve
got emancipation already? CYNTHIA NICOLETTI: Yeah,
so the answer is that, yes, we very much needed that. So the Emancipation
Proclamation is not the only measure that goes
into effect for emancipation during the war. There are various other ones. But both the
Emancipation Proclamation and various other
statutes under which the Union freed slaves of
participants in the rebellion are under legal attack. So there are lawyers challenging
the constitutionality of these various statutes. And the 13th Amendment
is really what puts those challenges to rest. So the amendment
wipes out all of the constitutional
challenges that could have been mounted against
the Emancipation Proclamation. LESLIE KENDRICK: So
tell us a little bit about the shaky
legal ground that was underneath the proclamation
and some other statutes that were from that time. CYNTHIA NICOLETTI: Sure, so when
Lincoln issues the Emancipation Proclamation, then there
are these arguments that even if the
federal government had the power to free slaves
under constitutional law, it might also have to
compensate slaveholders for the cost of slaves. So there is this
sense after the war, and actually during the war too,
that it’s not entirely clear that if somebody brings a
challenge to the Emancipation Proclamation that a court
won’t strike it down. RISA GOLUBOFF: But one
of the places where the Emancipation
Proclamation did have an impact
during the Civil War was the South
Carolina Sea Islands, where you have focused
your work and where the federal government actually
had control of the territory from early on. Tell us about that. CYNTHIA NICOLETTI: Sure, so the
way that I really got into this was first, I started looking at
the South Carolina Sea Islands for discussions
about emancipation. And what I found when I looked
there was lots of discussions from former slaves, from
former slaveholders, who are talking about
emancipation and talking about whether or not it’s actually
going to survive the war. They’re not entirely
clear on that. But they also were talking
about land redistribution. And actually, when
I started looking, they talked way more
about the possibility of land redistribution
after the war than the possibility of getting
compensation for former slaves or re-enslavement. And so it sort of dawned
on me that these two issues were very much connected
in the minds of people who are actually living
through both of these things at the time of the Civil War. RISA GOLUBOFF: And thinking
about land redistribution, it’s moving from the slave
holders and the plantation owners to the newly freed folks. So talk a little bit about how
you move from their property too to they’re now going
to be property owners. CYNTHIA NICOLETTI: Yeah,
so what I would say is that we tend to think
about land redistribution as one thing. So land gets redistributed as
you said from the former slave holder to the former slave. But that’s not actually the
way that it was considered. So if you take a
step back, and you think about this in a very
lawyerly way, which they did, land redistribution
actually has two aspects. One is land seizure, and
aspect two is land grant. So what are they doing when
they are redistributing land? They’re thinking about
a, how do they strip land from former Confederates? And then b, how do they
get land into the hands of former slaves? And I’ll say that that is not
a perfect one-to-one transfer. So they use various strategies
to try to strip land from former Confederates. And the most effective
one is the tax code. But other statutes are about
punishing Confederates. And so they seize land
from former Confederates. And then they think
about redistributing it as a separate process
to former slaves. LESLIE KENDRICK: I just have to
hear a little bit about this tax code hook and how that worked. [LAUGHTER] CYNTHIA NICOLETTI: Of course. I knew that would be
your favorite part. [LAUGHTER] So there’s a Tax
Act that’s passed in 1861. And what it does is it’s
actually property tax. And so it is
required at the time that the tax code tax each state
according to its population. And it turned out that when
they passed it in 1861, that they couldn’t
collect it in the states of the former Confederacy. And so they passed an
amending provision in 1862 where they say, if we can’t
collect the tax in your state because you’re in rebellion,
now, if you don’t pay the tax, we are going to put
a penalty of 50% of the tax on your property. And if you don’t pay the
tax plus the penalty, your land will be seized
and sold at auction. And so this was effective
at actually seizing much of the land in the
South Carolina Sea Islands because the union
was actually there. So what happens after
the army gets there? They send out tax collectors
into South Carolina. And so what these tax
collectors did was they sold the land at auction. And that’s how a lot of the
land actually gets seized. And that’s the part
of land redistribution that actually sticks
because it was sold pursuant to this tax act. Then the question becomes well,
OK, if you sell it at auction, how does it get into the
hands of the former slaves? And this is actually
a huge problem. Because along with the
former slaves, many of whom are in the South Carolina
Sea Islands, along with them come land speculators who now
look for passes from the union because they actually have
to get past the blockade to get to the Sea Islands
to try to buy land. And unsurprisingly, they are
able to outbid former slaves. And so what the
government does is they fight about this
for about a year about whether or not they
are going to make this land available at very
low prices to former slaves who are living on the land at
the price of $1.25 an acre, which is not randomly
picked out of the air. That’s the amount
that they were using for land sales in the west
for squatters, essentially. And so they do the same
thing in the Sea Islands. And some land is sold to
former slaves at low prices. But it’s actually a
much lower percentage than you might think
because a good deal of it got into the hands
of land speculators. LESLIE KENDRICK: And is that because
even at those low prices, former slaves don’t have the
wealth to acquire the land? Or is it just they didn’t
structure this in a way to privilege their claims? It wasn’t right of first
refusal from people who were living on the land
or something like that. So there was just no
chance the speculators were going to come along and get it? CYNTHIA NICOLETTI:
Yeah, it’s somewhere between those two stories. So what happens is that
they fight about this for a long period of time. And so there’s quite a conflict
in the Sea Islands particularly among the tax commissioners. If you do this exciting research
in the tax commissioner’s record, there is a split
in the tax commission where there are two tax
commissioners of the three who say, we are
tax commissioners. Our job as collectors of this
tax is to maximize revenue. I mean, that’s what you
do when you raise taxes. And so if we want
to maximize revenue, we want to sell the land at
the highest price possible, which means on the open market. We want speculators
to come in, and we want them to bid up the prices. And then there are people
who say, absolutely not. The goal here is
to put this land into the hands of
former slaves, which is going to require
that we set aside a good deal of the
land that’s going to be sold at these very
low prices of $1.25 an acre, which– so the idea here would be if
it’s 40 acre plots, if you can bid on it at
$1.25 an acre, you can get a livable plot for $50. That’s the idea. And so there’s this
question of whether or not they’re actually going to set
aside land for former slaves. And what I would say
is that they just go back and forth on
this, and so there’s not a concrete policy. Some of the sales, they
exclude speculators. Some, they do not. RISA GOLUBOFF: So what happens
with land redistribution in the Sea Islands
after the war? And just understanding
what happens there, help us understand
why those efforts ultimately failed on a larger scale? CYNTHIA NICOLETTI:
So there, I think we’re primarily looking at
former slaveholders who now– who fled the South Carolina
Sea Islands in early on in the war in
November of 1861. And these are some of the
richest people in the United States. This is the heart of
secessionist territory. These are people who
own huge plantations, large numbers of slaves. And after the war,
they are thinking about, what parts of
their pre-war life can they re-establish? And it turns out that
they sue and they petition Congress to
try to get money back for the lands that are
actually sold at the tax sales. And so they are
continuing this effort to try to get money back from
the federal government for 25 years. And there are lawyers
behind all of this. But there is one lawyer, this
guy William Henry Trescot from South Carolina,
who is, I would say, the main mover behind
a lot of the efforts to try to roll this back. He is actually a small
time planter himself from South Carolina. He’s from the Sea Islands. So he’s got a personal
stake in all of this. And he has two plantations, and
they are seized by the union. And so in fall of
1865, he becomes the, quote, “executive
agent” for the state of South Carolina. And his job is to go to
Washington to try to agitate, by whatever means he
possibly can put together, to get land back
for the planters. LESLIE KENDRICK: And what does
this look like on the ground in the Sea Islands? And is this why
the redistributions end up getting reversed
because of some of this? CYNTHIA NICOLETTI:
Yeah, so exactly right. So as I mentioned, there
are various parts of this. So a lawyer takes it all
apart, thinks about, oh, there are various statutes
undergirding all of this. And Trescot did this. And what I would say the most
effective prong of his campaign is any land redistribution that
was not based on the tax code, or land that was not actually
sold under the tax code, Trescot says all
of that land, which is now being held by
the Freedmen’s Bureau, he goes after that. And all of those land
seizures essentially evaporate because
of the campaigning he does in Washington
with the president and with Congress
in 1865 and 1866. RISA GOLUBOFF: It does then
raise the question, though, where are the lawyers on
the other side on the land redistribution question? So if you say on
emancipation, there was more political
will backing it up. And we foreclosed. But through the 13th Amendment,
the kind of arguments in the weeds. On the land redistribution
side, there’s not the political will
at the large scale, at the national scale. Where’s the government? Why aren’t they defending these? Is that who would
be defending them? Where are the lawyers who
might win on the other side? Or are the arguments just so bad
that they can’t possibly win? CYNTHIA NICOLETTI:
Yeah, so there’s not a concerted effort on the
other side in the same way. For instance, if you look at
debates about the Freedmen’s Bureau, active 1866, where
there are very strong voices in Congress for
land redistribution– so Thaddeus Stevens is
the biggest proponent of land redistribution. And he defends it again
and again in Congress. But he doesn’t actually
go into the weeds. And so Trescot did. South Carolinians did. And they really, I think,
thought about the whole puzzle. And I think that Stevens was
more of a big picture thinker. He’s a representative, and
he’s got a lot of other things he’s doing. He didn’t think about
it maybe the way a lawyer would if a
lawyer is planning a campaign of attacking
the overall policy. LESLIE KENDRICK: It’s interesting. One thing that occurs
to me is although it would have been very difficult
to effect redistribution on a larger scale,
and that would have required a great
deal of resources and, ultimately, force, that
would have had ongoing outcomes and effects for how much
power was necessary to enforce emancipation and
enforce equal protection sort of down the road
and that it’s interesting that it seems the
inability to marshal enough political and military– political will and military
force to affect redistribution then leaves you in a situation
where former slaves are much more vulnerable to the
types of oppression that follow. CYNTHIA NICOLETTI:
Yeah, one thing that’s really striking
about doing this research is how path dependent we are. So I think in 1865,
there’s this choice. How much military
authority is Congress going to put in the
former Confederacy? And how much of a wrench
do they want there to be? And how strictly do we
want to punish them? I mean, do we want to sort
of decimate their power? If they had done something
really strong at the beginning, then I think they’d be
set along a path where the amount of authority that
the federal government has to have over the white South
can diminish over time. And nobody really
takes that big leap. They think more incrementally
than we probably would want them to. But at the time, it seems almost
unthinkable, or very difficult for them. But I do think that in general,
we tend to think incrementally. We tend not to think, oh,
let’s think about remaking the entire society. This is the moment where– RISA GOLUBOFF: Yeah. And this is related, of course,
to your first book, which was about secession rather
than emancipation or land redistribution and thinking
about the relationship between the former
Confederacy and the union in the aftermath of the war. So will you just tell us
a little bit about that as a teaser before we finish? CYNTHIA NICOLETTI: Sure, so my
first book was about secession. And I guess I’ve
always been interested in the legal history
of the Civil War. And I guess I thought, why
not take on the big questions? [LAUGHTER] So if
there are two things that we know about the legal
history of the Civil War, we know that clearly,
it settled secession. And of course, we were
going to be one nation at the end of the Civil War. Secession was clearly
unconstitutional. And the second thing we
know about the Civil War is that it results
in emancipation. And that’s totally a no-brainer. And so I thought, why not
take these two questions on, and think about how
they actually happen, and whether or not they were
sort of predestined to happen? RISA GOLUBOFF: It’s a great book. [LAUGHTER] CYNTHIA NICOLETTI: Thanks. LESLIE KENDRICK: This is a
book that’s available. It was published by Cambridge
University Press in 2017. CYNTHIA NICOLETTI: Yes. LESLIE KENDRICK: And
we can look forward to your next book on
emancipation and land redistribution in the future. CYNTHIA NICOLETTI:
In the future. Not sure when in the
future, but in the future. RISA GOLUBOFF: Well, we’ll
look forward to it. It’s been a pleasure
talking to you, Cynthia. CYNTHIA NICOLETTI: Thank you. Thank you for having me. [MUSIC PLAYING] RISA GOLUBOFF: So Leslie,
most of my favorite themes in legal history came
out in that interview. [LAUGHTER] LESLIE KENDRICK: Yes, it
seemed like an interview tailor-made for you. And for you and Cynthia
to have the conversation was fun just to watch. RISA GOLUBOFF: So I think at the
broadest level, the question is, when the Civil
War ends and slavery ends, what is freedom going to mean? And what is the
opposite of slavery? One of the things that strikes
me in having this conversation is that there were certainly
some people, Thaddeus Stevens among them, who thought
economic power would be the key to really
transforming southern society, undermining white supremacy,
and enabling African-Americans to actually create real freedom
and, ultimately, I think, real equality. And so the failure of
land redistribution is this huge, as you were saying
before in your conversation, this just enormous
failure to create the basic economic
infrastructure that would enable equality and
freedom going forward. LESLIE KENDRICK: And it raises
questions too about positive versus negative
rights and the idea that you could have a
sort of negative right that, well, now, you’re
allowed to contract, and you’re allowed to own land. But if the conditions
aren’t in place to make that an actual
reality, then there’s a big piece of the
puzzle missing. And the opportunity to engage
in more affirmative provision of opportunity, that was there. And it didn’t happen. It never really happen. And the places
where it did happen, it was clawed back, partly
through the actions of lawyers. RISA GOLUBOFF: Yeah,
and there’s a kind of imbalance in the interests
and motivations of the two sides. So the lawyers that
Cynthia is talking about, this is their land. They want back this very
specific piece of land. And they’re going to fight
tooth and nail to get it. And to the extent that
the federal government is interested in
land redistribution– and that’s obviously
very qualified because whites in
the North also were invested in white
supremacy in many ways. But to the extent
that there were people who were interested,
they weren’t really focused just on the Sea Islands. They were trying
to figure out, how do you do this in
a large scale way? And there was a lot that
reconstruction didn’t do. And even after reconstruction,
that sets the stage then for peonage and involuntary
servitude and sharecropping and tenant farming
and Jim Crow that gets established in the decades
after reconstruction. And that doesn’t really end
until the modern civil rights movement really takes those on. LESLIE KENDRICK: That’s right,
and this area, this question of land redistribution,
it seems, now that we’ve talked about with
Cynthia, such an important part of that, that tenant farming and
those types of economic systems depend on a certain
distribution of property. But having a chance to
really focus on that issue and to hear some history of
that I’ve never heard before, it really adds a whole new
level to understandings of reconstruction and
narratives about reconstruction. And it’s a really
useful conversation. RISA GOLUBOFF: And I think
it’s important to remember that these were
not only arguments between white lawyers
over black land ownership, but these were arguments
in which African-Americans were making claims
on a regular basis. And all of this at
the back of, I’m sure, many of our listeners
minds is, how does this relate to reparations. And 40 acres and a mule, the
redistribution of that land is one way to create reparations
that really didn’t happen. And so I think there are
echoes of this that we can see. You see reverberating
all through history the lack of federal will and
the success of these really determined white
supremacist lawyers to ensure that African-Americans
did not get anything after slavery that they
deserved as a matter of the economic system and the
labor that they put into it. And so I think
we’re still talking about reparations in
part because of the story that Cynthia’s telling. [MUSIC PLAYING] With that food
for thought, we’ll wrap up this episode
of Common Law. We hope you join us next time
for more stories about when law changed the world. LESLIE KENDRICK: In the meantime,
don’t be a stranger. Leave us some stars or,
better yet, a short review on Stitcher, Spotify,
Apple Podcasts, or wherever you hear the show. Our website is
commonlawpodcast.com. You can find all our
past episodes there, including last season’s episodes
about the future of law, plus lots of background
information on all the topics we’ve been covering. You can always tweet
at us @commonlawUVA RISA GOLUBOFF: We’ll be back in a couple of
weeks with our next guest, Kimberly Robinson. She’s going to walk us through a
crucial 1973 Supreme Court case and what’s happened
in the decades since. KIMBERLY ROBINSON: I think it is a
surprise to most people that they don’t have
a constitutional right to education. LESLIE KENDRICK: Common Law comes to
you from the University of Virginia School of Law. Today’s episode was
produced by Sydney Halleman, Robert Armengol, and Mary Wood. The show’s recorded at
the studio of the Virginia Quarterly Review. I’m Leslie Kendrick RISA GOLUBOFF: And
I’m Risa Goluboff. See you next time. [MUSIC PLAYING]

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