Ex Parte Tillman: History Makes Good Fiction

Ex Parte Tillman: History Makes Good Fiction

A Story Made for TV

In my last blog, Historical Backdrop: The Facts Beneath the Story, I wrote about Ben Tillman and his opposition to woman suffrage. I gave the bare-bone facts about the Tillman child custody case, which, ironically, created public outrage that led to a change in the child custody laws in South Carolina, as well as a surge in membership of suffrage organizations.

The story behind Ex Parte Tillman, which was heard before the Supreme Court of South Carolina in 1909, could easily be converted into a PBS Masterpiece Theatre Classic. It’s a story that’s begging to be told. But before I tell it to you, I need you to know that I’m basically re-telling an account that I read in South Carolina Women: Their Lives and Times, Vol. 2. The chapter is entitled “Lucy Dugas Tillman,” and it is written by Michele Grigsby Coffey. I’m listing other sources at the end of the blog, but the chapter by Coffey is the main source.

 The Marriage

In December, 1901, Benjamin Ryan Tillman, III, married Lucy Pickens Dugas. It was a wedding that brought together two of the most powerful families in South Carolina–families who were social opposites.

The bride was the granddaughter of  Francis W. Pickens, who had served in the U.S. House of Representatives for nine years before he became Ambassador to Russia under President Buchanan in 1858. Lucy’s mother Douschka, was born in Russia and the czarina served as her godmother.

By the time the Pickens returned to the United States, South Carolina had seceded. Francis W. was elected to lead his state, and served as Governor of South Carolina for the first two years of the Civil War.

Lucy’s grandmother, Lucy Holcombe Pickens, was a beloved figure who was pictured on numerous denominations of Confederate currency. The Holcombe Legion of the Confederate Army was named in her honor.

In addition to her “blue blood” pedigree, Lucy had inherited the profitable plantation of Edgewood, in Edgefield County, South Carolina, which made her financially independent.

The groom, known as “B.R.,” came from a family with a history of violence, in a county that was known as one of the most violent in the state. His grandfather was a drunken gambler who had been convicted of assault in 1841. His uncle George had been convicted of killing a man who accused him of cheating at gambling.

George Tillman practiced law from jail while serving the two-year sentence for manslaughter and was elected to the state senate while incarcerated, later serving several terms in Congress. A cousin, Jim Tillman, when he was Lieutenant Governor would in 1903, shoot and kill the celebrated editor of The State, N.G. Gonzales.

The groom’s father, Benjamin Ryan Tillman, was a controversial politician, who had been elected governor in 1890, with eighty percent of the vote, after a campaign based on white supremacist rhetoric. Although he was the wealthiest landowner in Edgefield Township, he portrayed himself as the champion of poor white farmers and tenants, whom he rallied against the Bourbon Democrats, like the Pickens family, mocking them as elitist planters, with their fancy manners and education.

The aristocratic family of the bride considered the Tillmans unsophisticated, despite the family’s wealth and power. One family member remarked that it was “a pity for our family to be mixed with theirs,” and another referred to the Tillmans as  a “fearfully vulgar set of people.”

Ben Tillman objected to the marriage because he thought that Lucy was prideful and elitist, although he admitted that she was a “beautiful and a winning young woman.”In the end, he deferred to his son’s “overwhelming love” of Lucy and supported B.R.’s decision to marry.

The Separation

The newlyweds settled into married life on Lucy’s family plantation in Edgefield and soon had two daughters, Douschka and Sara. They divided their time between Edgewood and an apartment in Washington, D.C., where B.R.’s father was serving as a senator from South Carolina. Senator Tillman, who chaired the Committee on the Five Civilized Tribes, appointed his son clerk of the committee.

B.R. became a heavy drinker and gambler. He used his clerk’s salary and the income from his wife’s plantation to support his habits. By 1907, everyone in the family was aware that B.R. had become an alcoholic.

Lucy contended that B.R.’s parents refused to recognize their son’s faults. When her mother-in-law, Sallie Tillman, intervened and demanded that B.R. spend additional time under the Tillmans’ supervision, she claimed that it was due to their desire to keep him away from her, and that they believed that B.R. had been driven to alcoholism by Lucy’s “arrogant…high spirit.”

After repeated efforts to reform her husband, Lucy left Washington and moved in with her sister and brother-in-law in Edgefield. Claiming that she and her daughters had suffered “cruel neglect and abuse,” she had a local attorney draft a custody agreement between her and her estranged husband.

In a contract filed December 5, 1908, Lucy and B.R. agreed to share guardianship of the children, alternating custody every three months. While B.R. was in Edgefield to sign the agreement, he became drunk and began wandering through the streets of the town, loudly proclaiming that Lucy had kicked him out of his own home. Lucy would later hold this against him at the custody trial.

The Reconciliation

After six months, at the request of her family and B.R.’s parents, Lucy agreed to return to Washington and to attempt to reconcile with her husband. For several months, they appeared to live together amicably in what was one of the happiest periods of their marriage.

On November 19, 1909, the progress that they had made began to unravel. Lucy became desperately ill, following what was probably a miscarriage. B.R. began drinking before the doctor he had called had time to arrive. Neighbors reported that B.R. refused to hire a nurse or to take care of Lucy himself.

On November 26, while Lucy was in bed recuperating from her illness, B.R. asked her to get up and dress the children so that he could take them to his parents’ apartment in the city. Lucy agreed and stated that it would be good for Douschka and Sara to spend the day with their grandmother, rather than their “incompetent Negro servant.”

B.R. returned to the apartment that evening without the children. He told Lucy that his mother had left for South Carolina with the girls, and that he was going to pack his suitcase and follow her.

Three days later, Lucy received a letter from B.R. with the keys to the apartment and a five hundred dollar check representing her portion of the rents from her plantation. Alone and ill, Lucy moved in with her neighbor, Mary Brady. Thus began what the newspaper in Columbia, The State, referred to as “one of the most interesting legal controversies in the history of the state.”

The Deeding Away of the Children

Almost immediately, B.R. changed his mind and begged Lucy to let him move back in their apartment and resume their relationship. Lucy refused and demanded that her children be returned to her.

On December 3, 1909, Lucy received a letter from Ben and Sallie Tillman’s attorney, J.W. Thurmond (the father of future Senator Strom Thurmond) informing her that B.R. had deeded her children to his parents by an existing state law which allowed the father to deed his children to another when it was determined he could not care for them himself.

B.R. had deeded his children to his parents until their twenty-first birthday, citing his own unfitness as a parent and claiming that Lucy had deserted him and his daughters.

Thurmond further explained that, although Senator Tillman had encouraged B.R. to deed the children to their grandparents, he and Sallie had no idea of “barring you the right for you to see and be with your two children as often as is convenient for them.”

He cautioned Lucy against taking legal action to reclaim her daughters, threatening that “such proceedings would only further estrange the relations between you and them…and you would be deprived of many privileges with the children that you would not otherwise enjoy.”

The Custody Battle 

Instead of caving in to the threats of her in-laws’ attorney, Lucy fought back. She retained her own counsel and petitioned the state supreme court to determine the custody of her children. Although it was an unusual move, Lucy filed her petition directly with the South Carolina Supreme Court.

Her attorney advised her that it was essential for the high court to assume original jurisdiction of the case for two reasons. First, it would be impossible to find impartial jurors in a trial that involved such influential families. Second, the fact that Sallie Tillman had transported Douschka and Sara across state lines when she returned with them to South Carolina, complicated issues of jurisdiction.

On January 24, 1910, the South Carolina Supreme Court accepted jurisdiction and Lucy’s petition to consider the custody of her children.

Lucy argued that the deed conveying her children to her husband’s parents should be overturned because she had not deserted B.R. She filed 176 affidavits attesting to her ability to care for her daughters physically, emotionally, and financially.

At first, Senator Tillman did not take Lucy’s lawsuit seriously, stating “Mrs. Tillman, Jr. now has no children under the law,” and saying that “however unwise the statute is or however wrong in principle, it is clear and plain that my son deeded those girls to me.”

However, he had underestimated the public reaction to a case, which quickly drew national attention, partly due to the notoriety of the participants and partly due to the curious nature of a state law allowing a father to deed his children away.

The Washington Post and the New York Times published numerous articles about the litigation and the details of the Tillman’s failed marriage. The State devoted regular space to the story, printing the major affidavits filed in court in their entirety, as well as numerous letters from women across the state, condemning Ben Tillman for denying Lucy her rights as a mother.

Even men who supported Tillman politically, criticized any law that would take children away from a mother who was capable of raising them.

Women came to Columbia from all over the state to observe the proceedings, to the point that the trial was delayed on the first day for lack of seating.

The doors of the courtroom were propped open so that the women who had been forced to stand could hear the testimony; and, despite the crowded conditions, they remained for the duration of the four-hour hearing.

The court decided the case neither on the basis of property rights, nor on the basis of the personal details of the Tillman’s lives together. Instead, it ruled that the existing law was unconstitutional in allowing one parent to deed away the children without the consent of the other, and that the rights of the children had been violated under the 14th amendment.

The justices argued that, as a rule, “a father’s right of custody over the children is superior to the mother.” In deeding the children to his parents, B.R. had declared himself unfit, and thus, custody would go to Lucy.

The court retained jurisdiction in any future custody matters involving the children and closed with the hope that “the children in the care of the mother, may touch and soften the hearts of both husband and wife, quicken in both the sense of love and duty and bring about a reconciliation and renewal of family life.”

The legal battles continued when Lucy successfully sued B.R. in the Edgefield Court for misappropriating fourteen thousand dollars of income from her plantation, Edgewood. B.R. made numerous pleas for the couple to reunite.

Divorce was unconstitutional in South Carolina until 1948, giving Lucy no other option than to remain married to B.R. as long as she lived in the state. Thus, she established residence in Ohio, and in 1912 filed for divorce in Cincinnati, citing”chronic drunkenness and shameful abuse.”

The divorce was granted and she immediately began the process of changing her last name back to Dugas, converted to Catholicism, and returned to her home at Edgewood.

Public Backlash 

Outrage over Lucy Tillman’s plight prompted many women to speak out for women’s rights. A resolution was made at the national meeting of the Federation of Women’s Clubs in New York, in February 1910, to send a letter to Governor Martin Ansel of South Carolina, condemning as “cruel and inhuman and against public policy” a state law that allowed fathers to have complete control over their offspring.

The South Carolina representatives to the convention were torn in their support of the resolution by the issue of states rights. Lillie Devereux Blake supported it, saying that the law was “a great blot on the otherwise sunny Southland.”

After Mrs. Simon Baruch called the resolution an example of northern women “overstepping the bounds of state authority,” it was sent back to the Resolutions Committee and was not raised again. However, the New York State Legislature drafted and delivered a resolution to both the governor and Senator Tillman, calling Tillman’s actions “degrading and insulting to all women.”

The Tillman case became a call to action for Eulalie Salley of Aiken, who became one of the most outspoken suffragists in the state, ultimately serving as president of the South Carolina Equal Suffrage League in 1919. Angered by the idea that a mother’s rights to her children could be so easily violated, Salley joined the Equal Suffrage League in 1910, and recruited twenty women in Aiken to join her, despite the fact that such a cause was considered quite radical in the South.

According to Salley, the Tillman case convinced women that they must demand both divorce and suffrage on two counts:  (1) Having no right to their own children was “the most dastardly thing in the world.” and (2) Some of the husbands in the community had threatened to deed away their own children as punishment for their wives attending the suffrage meetings.

The South Carolina State legislature responded to the Tillman case by signing into law the Gasque-Grayden bill on February 10, 1910, in the midst of a packed gallery, “including a number of ladies.” The bill was passed despite Ben Tillman’s attempts to use his political connections to defeat the legislation.

The law stated that both father and mother must agree to any deeding away of a child. Though the bill was passed overwhelmingly on a “wave of popular sentiment that swept the senate off it’s feet,” Senator John H. Clifton refused to vote on the grounds that it was morally wrong to deed children as property, even with both parents’ consent.

Impact on Ben Tillman’s Career

When Ben Tillman learned of the court decision to award custody to Lucy, he remained in Washington while his wife transported Douschka and Sara to their mother in Columbia. He issued a vengeful statement:

The Supreme Justices have lifted a great responsibility from me and shifted it to their own shoulders…When I am dead and gone, the character and type of women that my granddaughters will have become will show whether it was the best…I can only pray that God will shield them from the contaminating influences and examples of Lucy and her sister.”

Although Ben Tillman continued to be re-elected to the Senate until his death in 1918, his behavior surrounding the trial had weakened his reputation. Even Tillman’s political supporters claimed that his actions toward Lucy were in poor taste, and that fighting to keep the children from her was the worst mistake of his life.

Two local newspapers reported a plot to remove Tillman’s portrait from the speaker’s stand in the House of Representatives and throw it into the street in protest of his abuse of political and parental power.

Tillman also drew criticism for a comment he made during the trial, in which he admitted to giving his son a salary as clerk of the Committee on the Five Civilized Tribes for doing nothing. He was quoted in an article in the New York Times that the custody battle over his grandchildren “hurt him more than anything else in his public life,” and questioned whether he would ever be able to win another term in the Senate.

Nevertheless, after the divorce and Lucy’s religious conversion, Ben and Sallie Tillman appealed again to the South Carolina Supreme Court for custody of Douschka and Sara on the grounds that a divorced Catholic woman was unfit to raise children. The court refused to take the girls from the custody of their mother, but did grant B.R. limited visitation and required each of the parents to post five thousand dollar bonds to ensure that neither of them would remove the children from the state.

Again in 1914, B.R. and Ben Tillman prepared for their next lawsuit, demanding that the girls spend July and August with their grandparents while their father was out of the country.

At this point, B.R.’s brother Henry, who had represented him in the first three custody battles, questioned the wisdom of continuing the skirmishes. He reminded his brother that the children’s welfare was of top priority and expressed reservations over “my indulging as an attorney in what will likely be a personal attack on Lucy.”

Douschka and Sara Tillman spent most of their time with their mother at Edgewood. According to family members, they came to fear their drunken father and despise their overbearing grandfather. Senator Tillman appeared to regret the damage that the trial had done to his relationship with his granddaughters, writing a friend that “I have no idea the little girls will ever do other than hate me.”

Rationale for Tillman’s View on Women

Throughout his political career, Ben Tillman remained a vocal opponent of women’s rights, arguing that suffrage led to decreased birth rates and an increased number of deaths and divorces. He believed that women were unsuited for politics because “the laws of evolution have differentiated the functions of man and woman and disaster awaits the people who attempt to repeal the natural law.”

In an attempt to validate his position, he inserted into the Congressional Record, in 1913, the full text of an article entitled “The Mission of Woman,” written by a Southern minister by the name of Albert Bledsoe, and originally printed in 1871 in the Southern Review.

I am summarizing the article because it appears to be the rationale upon which Tillman’s concept of gender roles was based–not a far cry from some of the rhetoric used today by our fundamentalist brethren, attempting to keep women “in our places.” You can read the article in its entirety at


The “Mission” of Women

Bledsoe wrote that men and women were ordained by God to perform separate roles, “like twin stars, or like the sun and moon moving in their own appointed spheres or orbs.” Regarding woman suffrage, he warned:

Let not the sphere of woman be confounded with that of man and let not her soul be unsexed to do the work of man, unless indeed it be our object to subvert the order of nature to uproar the universal peace and pour the sweet milk of concord into hell. This thing was done in Rome. Let it not be done in America.

The consequences of granting women the right to vote, could easily be predicted, based on history:

The women of Rome succeeded in securing all ‘their rights,’ as they were called and the emancipation from the laws of God and nature are recorded in the annals of the Empire. 

According to Bledsoe, after women gained their rights, Roman marriage was no longer based on autocracy but on co-equal partnership–a “well organized social unit, a two-headed, self-fighting monster.” As a social contract which could be dissolved by either party, the obligations of marriage were treated with levity. As a result, the divorce rate increased dramatically, and the male birth rate was insufficient to replenish the armies.

In conclusion, the writer decried the increase in the divorce rate to 100,000 in 1912, as well as the 2.3% decrease in births in the “native white race” reported by the 1900-1910 census.

Your suffragette may say that her vote has nothing to do with the declining birth rate, and that such a right cannot militate against the highest ideals of motherhood. But mothering requires the very flowering of a woman’s days. If she is to bear and mature children under wholesome conditions, she must have the blessed quiet of a home free from the nerve strain of publicity.

Given that Ben Tillman embraced and promoted Bledsoe’s extreme brand of paternalism, his determination to maintain authority over the lives of his grandchildren at all costs is not surprising. Fortunately, his was not the final word, and as Michele Coffey notes in the conclusion of her chapter on this unusual story:

Ultimately, Lucy’s battle for the custody of her children highlighted the excesses of the paternalistic society of the South and served as an important rallying cry within a long and arduous battle for gender equality with the American family. 

Bledsoe, Albert Taylor, The Mission of Woman:An Article by Albert Taylor Bledsoe, LL.D, printed in the Southern Review, October, 1871 (Presented by Mr. Tillman on August 18, 1913–referred to the Committee on Printing).
Kantrowitz, Stephen, Ben Tillman and the Reconstruction of White Supremacy, UNC Press, Chapel Hill, 2000.
Spruill, Littlefield, and Johnson, ed. South Carolina Women: Their Lives and Times, Vol. II. UGA Press, 2010.

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