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Professor Katherine Franke

Not Quite White

Professor Katherine Franke

The Civil War gave birth to a number of black “utopian” communities in which freed slaves were given land and the right to farm it as their own. However, what began as bold experiments to show the American public the value of free black labor were destroyed by new laws that entrenched rather than eviscerated racial difference. In this paper, Professor Katherine Franke explores how these laws set the freedmen on a path of dependency by tying them with legal bonds to whites hierarchically, an effect that lasted through Reconstruction and beyond.



In the evening of December 31, 1862, black people across the South gathered together for what they called “Freedom’s Eve” celebrations. They were counting down the minutes until President Lincoln’s Emancipation Proclamation took effect. At Beaufort, S.C., more than 5,000 blacks gathered and sang what one white observer called “the Marseillaise of the slaves.” At the stroke of midnight, blacks were, at least on paper, transformed from objects of enslavement to subjects of freedom.

For some slaves, however, a robust form of practical freedom had been experienced for more than a year. In November 1861, Union troops captured the strategic town of Port Royal, S.C., a first step in blockading the important ports of Charleston and Savannah, Ga. Plantation owners on Port Royal’s islands fled to the mainland, trying unsuccessfully to convince their slaves to follow them. Approximately 10,000 remained, now neither free nor enslaved. Captured by the Northern troops, they now possessed a new status: contraband property.

Control of the island cotton plantations and the contrabands was the responsibility of U.S. Treasury Secretary Salmon P. Chase, who held among the strongest anti-slavery views of anyone in Lincoln’s cabinet. Sec. Chase saw the seizure of Port Royal as a tremendous opportunity to demonstrate the value and productivity of free black labor. He enlisted Edward L. Pierce, a colleague who also held strong anti-slavery views, to oversee Port Royal. Both men would work to concentrate all their efforts on demonstrating the benefits and utility of free labor and “the success of a productive colony there would serve as a womb for [black] emancipation at large.”

This utopian experiment and others like it in the South provided a blueprint for what freedom, citizenship, and transitional justice could have looked like for African-Americans. Unfortunately, the black men and women of Port Royal would discover that the freedom they enjoyed was not only temporary, but every bit as peculiar as the soul-killing institution that Lincoln’s pen was designed to destroy.

The failure of blacks to achieve a lasting freedom even after the passing of the 13th, 14th, and 15th Amendents – which abolished slavery, granted U.S. citizenship and due process, and gave black men the right to vote – is often laid at the doorstep of post-war politics. These include a lack of commitment by President Johnson, the corruption and incompetence of the Freedmen’s Bureau, and a vicious backlash by Southern whites in the form of the Black Codes and Klan violence.

Yet it may be that these efforts to frustrate black equality and citizenship merely exacerbated a structural problem inherent in the government’s approach to black freedom in general. The aims and tactics of governance applied to freed men and women during the war years were at their core, and at best, tied to a notion of racial difference. At a time when freed men and women made ardent demands for land redistribution, reconstruction governance preferred an approach that nested both freedom and transitional justice for blacks in a web of legally mediated relationships - contract laborer/planter, tenant farmer/landowner, and husband/wife. In few places is this more apparent than in the community of Port Royal.



The practical demands of the war effort mandated that the plantations at Port Royal continue to produce both cotton and other edible crops to finance the fighting, but among black residents there was much resistance. So great was the slaves’ hatred of cotton that among the first things they did when their masters fled was to destroy cotton gins. Finally, a plan of cooperation was brokered between residents and Brigadier-General Rufus Saxton, military governor of the Sea Islands. Two acres of land were assigned to each working hand, plus an additional five-sixteenths of an acre for each child. Residents were permitted to raise corn and potatoes sufficient for their own use in exchange for working the government’s cotton fields. The government supplied the implements and seeds and paid 25 cents for a day’s work under a task system. Whether the freedmen would get the land they had farmed as slaves for so long was a question that remained in limbo.

As the war proceeded, plans were developed both at Port Royal and in Washington, D.C., for the allocation of the land confiscated from Confederate loyalists. Auctions were held as early as March 1863. Though freedmen pooled their resources to cooperatively purchase some acreage, in auction after auction much of the land went to Northern speculators. Many freedmen, based on what they had been told, believed that a significant portion of remaining land reserved by the government was designated for them. However, the handwriting was already on the wall. Discussions were being held among government officials on whether it was in the best interests of the freedmen to have them farm as tenants on government-owned land or be outright owners of the land themselves.

In many respects black men and women found themselves overwhelmed by law even before Reconstruction. Indeed, they evolved from a period of enslavement where their identities were over-determined by material resources/property and under-determined by law/rights, to a period after emancipation where their lives were over-determined by law/rights and under-determined by material resources/property. Gaining legal rights was by no means something African-Americans resisted, for indeed then, as now, rights are something that “we cannot not want.” But the imposition of rights, in the end, produced a tension that embodied Homi Bhabha’s notion of not quite/not white.

As soon as Northern troops arrived at Port Royal and other places in the South, black people voiced a desire for land as a form of reparation for slavery and as a practical approach to life after slavery. Give us a plot of land, and leave us alone, “for there is a prejudice against us in the South that it will take years to get over,” said a freedman to General William Tecumseh Sherman when he arrived at the South Carolina Sea Islands.

As Union victory became assured, the redistribution of Port Royal lands continued. President Lincoln issued orders that an auction take place in early 1864 in lots no greater than 320 acres. He included a special provision reserving a limited quantity of 20-acre lots for private sale to “heads of families of the African race” at a rate of $1.25 per acre. Gen. Saxton, however, knew that the size of the lots would place them well beyond the means of even the most enterprising freedmen. Under the president’s plan, less than half of the freedmen at Port Royal would receive small, 20-acre lots, while the overwhelming balance of the government’s property would fall into the hands of Northern speculators.

Gen. Saxton and his allies prevailed on President Lincoln to amend instructions for the auction, and the president agreed, issuing more favorable terms for the freedmen: a large tract of reserved acreage would be sold to those people who had resided on the land for the past six months or who were currently cultivating it. They had a preferred right to purchase up to 40 acres of land at a price of $1.25 per acre.

The hopes of Gen. Saxton and others that ex-slaves could successfully manage farms on their own was more than reasonable. The entrepreneurial spirit of many freedmen needed no cultivation from the Northern tutors who had come to teach them to be good capitalists. When a representative of the New York National Freedmen’s Relief Association sought to understand “Why, Sambo, do you work much harder now than you did for Master?” a freedman responded: “We used to work for the lash, now we works for the cash.”

Gen. Saxton also encouraged freedmen to pre-empt their claims by encouraging them to prepare their rounds for the coming harvest. “Freedmen, you should plow deep, plant carefully and in season, cultivate diligently, and you will reap abundant harvests.... It is expected that you will show in a free South that cotton is more of a king than ever.” Almost immediately, the South Carolina tax commissioners’ office was inundated with pre-emption claims signed with an “X” by freedmen.



Unfortunately, Gen Saxton’s aggressive tactics infuriated the tax commissioners who did not believe the instructions presupposed the sale of land to every freedman on the Sea Islands, but only to a deserving few. In the end, two of the three tax commissioners did not share Gen. Saxton’s view that the Port Royal properties would best be allocated to the freedmen, and they refused to accept the freedmen’s money or recognize their land claims.

After much wrangling both locally and in Washington, D.C., Sec. Chase reversed the amended auction instructions, including the pre-emption provision, and he instructed that the sale go forward as previously set out. As a result, the land was sold at an average of $11 per acre, well beyond the means of the freedmen, who lost control of their homesteads, their crops, and the land they had hoped to make their own. To make matters worse, they were forced to sign labor contracts with white land buyers at very low rates of pay.

However, one hope remained for the freedmen. On Christmas night in 1864, thousands of freed slaves poured onto the South Carolina Sea Islands, refugees from Gen. Sherman’s march to the sea. Meeting with Gen. Sherman to address the situation, freedmen expressed a strong desire for land and to be placed on that land until they were able to buy it. A few days later, the general issued his famous Special Field Order No. 15, reserving exclusively for black settlement the entire Sea Islands area, as well as a strip of land along the coast. On this land, Sherman ordered, “no white person whatever, unless military officers and soldiers detailed for duty, will be permitted to reside,” and the freedmen were left to their own control. In the following months, 485,000 acres were divided up among 40,000 freedmen. While Port Royal freedmen were elated, Gen. Saxton was skeptical about the integrity of these land grants: Sherman’s order promised only possessory titles.

On May 29, 1865, the freedmen’s fears about the national government’s commitment to their land claims without President Lincoln in the White House were realized in the form of President Andrew Johnson’s Amnesty Proclamation. Not only did it grant amnesty to all but the Confederate leaders, but it included “the restoration of all rights in property, except as to slaves.” The Freedmen’s Bureau attempted to have the freedmen’s land excluded from the proclamation, but without success. In August, President Johnson stepped in and instructed the bureau to restore land to pardoned Confederates. Almost immediately, Gen. Saxton’s office at Port Royal was overrun with planters seeking to get their land back. President Johnson also arranged for the bureau to come under the control of the occupying military command in the South. As a result, the military seized control of the land restoration process. Freedmen who refused to enter into labor contracts with former owners were forced to leave the islands.

In the end, the containment of African-American liberty within a “space of regulated freedom” became one of the principal techniques used by the U.S. government to create particularly governable subjects. The contours of the freedom enjoyed by these subjects were always dependent upon the requirements of production and output. White officials parried Freedmen’s demands for land with a modern response that what they needed was legal status, was rights, was law - not material resources. Law in the form of symbolic rights ended up bounding the terrain of freedom for African-Americans, and did so in a way that permanently entrenched a hierarchical relationship between labor and capital, governed and governor, black and white.

Had black freedom been constituted more by redistribution than recognition, we would, no doubt, have a different story to tell – one of land gained and land lost, of restrictions on use, if not territorialization of Blackness. This is all to say that black freedom might not necessarily have been better, in a normative or material sense, had ex-slaves experienced more resources than recognition. Rather, black people would merely have had a different set of tactics of racial and racist governance applied to them. In this sense one cannot claim that redistribution is in all cases to be preferred to recognition, but rather that both must be put to work to map the moral parameters of freedom and citizenship.

Professor Katherine Franke's Faculty Profile