Predatory Occasions

• In Event: Race and Gender Theories of Punishment, Predation, and Political Imagination

Abstract

This Article uses the labor dispute of Bill, Charles, Jupiter, Randolph, et al. v. William A. Carr (1866) to interrogate how the contract jurisprudence of the Freedmen’s Bureau calcified relations of indebtedness and obligation in the afterlife of slavery. It argues that freedmen’s right to contract, if an exercise of autonomy and will, was constrained by the administrative mandates of the Freedmen’s Bureau and the attending corporeal violence of the plantation economy. Legal theorists have explored how the Freedmen’s Bureau refashioned “work” as a constitutive freedom practice vis-à-vis pedagogical handbooks for freedmen, thereby grounding the normative foundations of contract law in liberalism. Moreover, critical legal scholarship has demonstrated that by obliging freedmen to sign wage-labor contracts under the veneer of equal justice, the Freedmen’s Bureau bound emancipated slaves to their former owners and plantations, which reinforced the arrangements of chattel slavery, or cultivated responsible, self-disciplined black labor in its absence.

This Article establishes that the emergence of ad hoc Freedmen’s courts in the US South sustained this order. With a burgeoning rights-based legal landscape during Reconstruction, the Freedmen’s courts enforced the terms of signed wage-labor contracts when breach-of-contract claims arose which, at times, provided civil relief such as unpaid wages to black laborers. But Bill et al (1866)—a rare legal archive consisting of the planter’s lawyers and laborers’ lawyer briefs, freedmen’s testimonies, and a judicial order—illustrates a more complex story ripe for theoretical reflection. As such, Bill et al (1866) is not analyzed for the purpose of appraising its holding or its application of modern contract doctrine. Rather, this Article argues that, as in the case of Bill et al (1866), the framing of contract law disputes in Freedmen’s courts made freedmen’s cases predatory occasions for race-making wherein the terms of blackness were recast to extend and sustain racial labor exploitation. This Article builds upon the foundation of other legal scholarship on Reconstruction but pans the focus away from public law (e.g., Black Codes) and towards the minutia of private law where the racialization of jurisprudence in the aftermath of Emancipation has largely gone undetected, particularly in the Freedmen’s courts. Furthermore, it offers a novel contribution to the discipline by reading case law as a genre of political thought and expands the traditional boundaries of political theory, as a subfield, in its exploration of the interplay of race, contract law, and legal liberalism.

Part I provides a detailed history on the Freedmen’s Bureau’s administrative activities in the South including, but not limited to, the dissemination of freedmen handbooks, the proliferation of wage-labor contracts, and the creation of ad hoc Freedmen’s courts. Part II performs a critical reading of Bill et al (1866), a contract dispute between fifty-six freedmen and their former plantation owner in a Freedmen’s court in Tallahassee, Florida. Beyond a mere doctrinal analysis, Part II reveals how its posture of liberal legalism deployed logics of racialization that overdetermined freedmen’s legal and political subjectivity. Part III draws out the broader implications of Bill et al (1866) and argues that these predatory occasions not only collapsed freedmen’s freedom claims with the demands of wage-labor capitalism and the plantation economy but also performed justificatory work for the hazardous legal terrain trekked by freedmen in the late nineteenth century.

Author

• Justin Brooks