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Atiba R. Ellis


Permission Requested: Atiba R. Ellis, Polley V. Ratcliff: a New Way to Address an Original Sin? , 115 West Virginia Law Review 777 (Winter 2012) (158 Footnotes)


      The past is never dead. It's not even past. --William Faulkner

      A remarkable thing happened in Wayne County, West Virginia, on April 6, 2012. Judge Darrell Pratt of the Circuit Court of Wayne County entered a decree declaring that the children of Mr. Peyton Polley--Harrison, Louisa, and Anna --who had been freed from slavery in 1849 and then kidnapped and forced again into slavery in 1851--“were, and are, FREE PERSONS as of March 22, This remarkable judgment ended a 160-year saga by giving a final resolution to this long-open case.

      As remarkable as this judgment is, what is more remarkable is the motivation behind it and what it could mean for how we think about race in twenty-first century America. The plaintiffs, through their next friend, Mr. James L. Hale, a fifth generation descendent of Harrison Polley, pursued this action to have a declaration on the record concerning the legal status of the Polley children. Indeed, the Court itself, on the record, stated that it granted a trial on this matter under its equitable powers under the nunc pro tunc doctrine to “set the record straight” about the history of the Polley family. This was not only litigation to remedy an omission from the judicial record; this litigation represented a kind of truth telling about the American history of slavery, a telling validated by the fact that it took place under the sanction of a court and was validated by entry of a final judgment. This Essay will argue that this kind of “Truth and Reconciliation” process can lead to a transformative result for the participants and for society by allowing us to reframe our conceptions of the legacy of American slavery.

      While writing this Essay, I told various friends, acquaintances, and colleagues about this singular happening--the trial of a Dred Scott-era kidnapping and emancipation case. Aside from the amazement people expressed, the story of the 2012 Polley v. Ratcliff litigation elicited reactions that ranged from befuddlement about what this case meant, to curiosity about the narrative, to amazement that a court would expend judicial resources on an irrelevant matter. In particular, several of my colleagues inquired about the legal theory behind the case; some asked what the plaintiffs in this case could expect to get out of this decision, if anything, especially in light of the fact that the Thirteenth Amendment to the U.S. Constitution ended slavery. Other colleagues wondered whether a follow-up suit for damages might be appropriate in light of the emancipation ruling.

      These different ways of seeing the Polley case lie at the heart of the argument this Essay will make. This Essay claims that Polley suggests a novel approach to thinking about our history of slavery in particular, and more generally, a way of having discussions about the American legacy of racism. The reactions I mentioned above revealed the three different lenses through which we currently look at this history: the lens of reparations for damages done during slavery; the lens of race-consciousness (even if there is nothing one can “do” about the past); and the lens of declaring the issue moot. This last view echoes the perspective announced in recent slavery reparation litigation-- that such claims are stale --and it echoes the post-racialism paradigm that such discussion is irrelevant.

      Yet, some, including the family of the plaintiffs and the Circuit Court Judge, believed that history needed to be clarified--that the record should be set straight for the benefit of the descendants and for society. This approach--a state-sanctioned airing of the history of racial oppression through the acknowledgement that the Polley children were indeed free persons who were kidnapped and treated as chattel, along with a validating judgment where the state acknowledges the truth of this claim--seems to suggest a lens distinct from racial awareness, reparations, or post-racialism. The Polley litigation is more akin to a Truth and Reconciliation approach to the history of slavery in the United States. This novel methodology could lead to a needed dialogue and transformation of understanding about race in twenty-first century America.

      This Essay is meant to record the history of the Polley case within the realm of legal academia and to inform scholars, lawyers, and the public about this remarkable case. This is not to say that this historical period has not been discussed at length. A number of scholars have discussed this period generally. However, to my knowledge, the history of the Polley case has not been discussed in detail in the law review literature--though several historians have noted the famous Polley case in the academic historical literature of the late antebellum period. More importantly, this Essay serves a second purpose--it will use this history as a lens on the question of what our societal response to slavery and racism has been over time and what it ought to be in the twenty-first century. It will contemplate whether this court's approach can begin a serious dialogue about race and reparations in the United States.

      This Essay will approach this task in the following manner. In Part II, it explores the history of the nineteenth century Polley case, and then analyzes the April 6, 2012, judicial opinion. Through its nunc pro tunc powers, the court sought to, in its words, “set the record straight” concerning the plight of the Polley family both as a historical matter and in light of the fact that succeeding generations of the Polley's descendants will bear the legacy of this decision. Part III of this Essay examines the broader context through which we read cases like Polley by briefly considering our approaches to analyzing the American legacy of slavery and racism. Part IV of this Essay considers the Polley decision as a different precedent for addressing the rifts of slavery. This Essay ponders whether the Truth and Reconciliation or truth-telling approach suggested in the Polley case is an appropriate use of governmental resources and whether this approach--or a variation on it--could be used to address other slavery-era wrongs more broadly. The ultimate question this Essay poses is whether this approach can open a new avenue of reconciliation and truth telling in relation to the history of slavery in the United States. This Essay argues that such a conversation may better and more mindfully inform the ongoing dialogue about reparations for racial subjugation in the United States.