Race, Law, and Authority in the Gilded Age and Progressive Era United States

Thursday, April 2, 2020, 12:45 PM - 2:15 PM

Type: Paper Session

Tags: African American; Asian American; Immigration and Internal Migration; Legal and Constitutional; Theory and Methodology


This panel examines the relationship of race to the exercise of several forms of legal authority from the late-nineteenth to mid-twentieth centuries. Xu shows how Gilded Age lawyers, Chinese immigrants, and African American Civil War veterans leveraged legal actors’ and state officials’ skepticism about legal advocacy for racial(ized) minorities in their efforts to challenge the racial status quo in legal challenges against the federal government. Funk examines the role that African American lawyers played in reforming Maryland state law in order to secure Black enfranchisement, prevent lynchings, and portray African Americans as legitimate political actors at the turn of the twentieth century. Taparata explores how Native Americans and African Americans used the Works Progress Administration’s Federal Writers’ Project to recollect their family members’ experiences as refugees during the Civil War, challenging emerging legal definitions of “refugee” that prioritized individuals crossing international borders and obscured refugee passages within US borders. Together, the papers on this panel apply comparative and critical race/ethnic studies approaches to several areas in the study of law’s relationship with society, including lawyering and the legal profession; access to meaningful legal representation; the relationship of law to governance, surveillance, and state building; and the formation of legal categories and the ways that everyday Americans relate to and contest them.

Papers Presented

Remembering Refugees: Memory, Law, and the Inequalities of Refugee Recognition in U.S. History

In the late 1930s a refugee’s son remembered a ghost story. Robert James, an African American cook from Little Rock, Arkansas, spoke with Samuel S. Taylor, an employee of the Works Progress Administration’s Federal Writers’ Project. James shared stories that his family had shared with him about their lives as slaves in the American South before emancipation. One of those stories described the experience of James’s mother during the Civil War. “I heard my mother say that her master and them had to refugee them to keep them from the Yankees,” James recalled. “She told a ghost tale on that. I guess it must have been true.” At the same time that James described his mother’s Civil War “refugee” ghost story, political and legal officials in the United States and around the world engaged in discussions about the responsibility of nation-states to harbor refugees fleeing persecution. After the end of World War II, those discussions began turning into domestic law and internationally codified agreements concerning refugees—most notably, the Displaced Persons Act, passed in the United States in 1948, and the United Nations’ 1951 Refugee Convention. These domestic and international policies defined “refugees” as people who have been persecuted or who fear persecution and have crossed an international border in search of protection. This newly codified association of international migration with the recognition of particular persecuted people as “refugees” had the effect of exorcising some stories of dispossession and displacement from the historical memory of the United States as a place of refuge. As James’s story about his mother reminds us, people who may not typically be remembered as refugees in American history—including slaves—have nevertheless been refugees in their lived experience and in their memory, even if they have not always been recognized as refugees by law and in political status. Using interviews with African Americans and Native Americans who participated in the Works Progress Administration’s Federal Writers’ Project as a point of departure, this paper engages the 2020 OAH theme of (in)equalities by exploring the gap between individual experiences of being a refugee and the law’s narrowly defined conception of who is—and who is not—a refugee. Following the lead of African Americans and Native Americans who shared memories of their ancestors’ experiences as refugees during the Civil War with WPA workers, the paper compares efforts that U.S. officials undertook to shelter refugee slaves and native refugees during the Civil War to emerging definitions of “refugee” in the mid-20th century. In doing so, it 1) interrogates the underlying inequalities that inform refugee recognition; 2) shows how the focus of U.S. refugee law on internationally displaced and persecuted people after World War II elides distinctly American histories of displacement and persecution within U.S. borders; and 3) works toward a retelling of U.S. refugee history committed to considering how the legacy of the nation’s foundational inequalities—settler colonialism and slavery—haunt U.S. refugee law and the country’s legacy as a place of refuge.

Presented By
Evan Taparata, University of Pennsylvania

Surveilling Unworthy "Brokers": Federal Agencies, White Lawyers for the Minorities, and the Search for Racial Management, 1873–1924

This research looks at the tension between two groups of Gilded Age white lawyers and the federal agencies that viewed them as unworthy “brokers” working to sabotage state efforts for racial management. It makes a comparison between immigration lawyers for the Chinese and pension lawyers for black Civil War veterans. In the general trend of an emerging administrative state, late nineteenth-century America witnessed an unprecedented expansion of federal departments overseeing immigration and welfare issues. A national movement excluding Chinese immigrants gave rise to organized state surveillance of immigration; meanwhile, the system of Civil War pension distribution also called for sophisticated examination of the eligibility of over 2 million Union veterans and their families, including over 180,000 African Americans. Immigration and pension bureaus were created to guard the racialized barriers against Chinese immigration and Civil War pension for African Americans. These barriers gave rise to lucrative niches in the marketplace for legal service. Driven by a mixture of personal, ideological, and financial reasons, a small but significant number of white lawyers chose to help these minorities and, for decades, served as a vital intermediary between federal bureaucracy and minority cultures. These lawyers’ work made them suspicious in the eyes of federal officials, especially when lawyers protested the officials’ arbitrary, prejudiced decisions. While many turn-of-the-century lawmakers championed racial hierarchy over racial justice, complaints about these lawyers flooded the reports, correspondence, and personal papers of federal employees. This paper argues that these complaints subjected lawyers to state surveillance. However, systematic surveillance also incorporated lawyers into the system and empowered the savvier ones to become integral players in several distinct ethnic worlds and promote meaningful dialogues between the state and minorities.

Presented By
Tian Atlas Xu, Catholic University of America

“The Partition Wall Between Him and Slavery”: African American Lawyers’ Anti-lynching and Anti-disenfranchisement Activism in Maryland

In October 1898, shortly before the midterm elections, Wright Smith, a south Baltimore African American politician accused of attempted assault on a white woman, was forcibly removed from an Annapolis jail and mercilessly lynched by a mob in the streets of the state capital. The Republican governor Lloyd Lowndes of Maryland condemned the lynching and offered a reward for the arrest of the lynchers. The governor and the Republican party faced pressure from African American leaders in the state but, even though they were dependent upon the African American vote, they ignored the pressure from their African American constituents. Black Baltimorean lawyer W. Ashbie Hawkins, as well as other members of Baltimore’s African American legal community, took the lead in fighting against both lynchings and the loss of political power and influence. In that year alone, Hawkins had led a committee to petition the governor to issue a reward for the capture of lynchers and had filed a writ of mandamus to allow African American congressional candidates on the ballot. It was no coincidence that Baltimore’s black lawyers simultaneously fought for antilynching measures and political influence; for, as various historians have noted, lynchings and the myth of the “black rapist” were used as political tools by Redeemers and other white supremacists to bring about the disfranchisement of African Americans. Racial violence and the fear of violence was initially used to limit the African American vote; the myths of male African American sexual violence led to statutory disenfranchisement. White supremacists in Maryland attempted to follow this route, which was successful in other former slave states, but the multiple times the “Poe Suffrage Amendment” was voted on in the first decade of the twentieth century to disfranchise African Americans in Maryland were all unsuccessful. This research explores the successful antilynching and antidisnfranchisement activism of black Baltimore lawyers in the late nineteenth and early twentieth centuries. In conjunction with the larger African American community, these lawyers pressured governors of Maryland and legislative bodies to change policies and procedures for the sake of preventing lynchings, combated the myth of the “black rapist” and white supremacists’ assertions concerning the unsuitability of African American men to partake in politics, and worked with immigrant communities in Baltimore to defeat the “Poe Suffrage Amendment.” While still facing tremendous racial animosity and prejudice, these lawyers enabled African Americans in Maryland to maintain the franchise and they contributed to a precipitous drop in lynchings in the state after the first decade of the twentieth century.

Presented By
Joe Funk, Catholic University of America

Session Participants

Chair and Commentator: Bernadette Pérez, Princeton University

Presenter: Joe Funk, Catholic University of America
Joe Funk is a Ph.D. Candidate at The Catholic University of America. His dissertation title is ‘“Men Who Have Themselves Suffered’: African American Lawyers of Baltimore, 1885-1937.”

Presenter: Evan Taparata, University of Pennsylvania
Evan Taparata is the Jack Miller Center Postdoctoral Fellow at the University of Pennsylvania's Andrea Mitchell Center for the Study of Democracy. He is currently at work on a book manuscript about the history of refugee law and policy in the United States from the American Revolution through World War II. In addition to publishing in academic journals like the Journal of American Ethnic History and non-academic venues like PublicRadioInternational.org, Taparata has contributed to several public history and digital humanities projects, including the #ImmigrationSyllabus and the Humanities Action Lab's States of Incarceration project. He received his PhD from the University of Minnesota's Department of History in 2018.

Presenter: Tian Atlas Xu, Catholic University of America
Born and raised in the ethnically homogeneous northeastern part of China, I am fascinated by the vitality of ethnic interactions in the American experience. This fascination brought me to pursue a PhD in American history in Washington, D.C., at the Catholic University of America. In a university shaped by immigration culture, my research has examined questions about anti-imperialism during the Spanish-American War, memory of African American military service, and most recently, white allies of ethnic minorities in the Gilded Age period. My dissertation examines the interactions between white attorneys, Chinese immigrants, and African American Civil War pensioners. I like to summarize my research interest in three phrases: ethnic encounters, legal intermediaries, and state building.