A DIFFERENT TYPE OF PROPERTY: WHITE WOMEN AND THE HUMAN PROPERTY THEY KEPT.

• Author: Goodwin, Michele
• Position: Annual Michigan Law Review Book Review Edition

INCIDENTS IN THE LIFE OF A SLAVE GIRL. By Harriet A. Jacobs. Boston: Thayer & Eldridge. 1861. (L. Maria Child & Jean Fagan Yellin eds., Harvard Univ. Press 1987). Pp. xxxiii, 306. $22.50.

THEY WERE HER PROPERTY: WHITE WOMEN AS SLAVE OWNERS IN THE AMERICAN South. By Stephanie E. Jones-Rogers. New Haven: Yale University Press. 2019. Pp. xx, 296. $30.

After a brief period of suspense, the will of my mistress was read, and we learned that she had bequeathed me to her sister's daughter, a child of five years old.

--Jacobs, pp. 7-8

Sexism and the abuse of male power, in part, define the American experience. Historically, sexism (1) (and racism) (2) pervaded legislative and judicial decisionmaking, shaping law and how we understand it. Laws that permitted marital rape and wife beatings buttressed those that forbade women from voting, becoming lawyers, and more. In this way, what male legislators imagined, male judges authorized. The reach of masculinity, domination, and power so permeates American thought that it obscures the ways in which women wield and abuse power--historically and in the present. This Review concerns the former, assessing the complicity of white women as power brokers, traffickers, and owners of enslaved African Americans during slavery. Taking seriously Harriet Jacobs's observation in 1861 that "the secrets of slavery are concealed like those of the Inquisition," this Review excavates the archives of American law to shine a light on an overlooked history relevant to how we understand women in American law and society. (3)

As such, this Review offers a compelling and complicated counterintuitive proposition. It challenges the archetypical accounts of sex, race, and slavery that claim white women played no meaningful role in the enterprise of slavery beyond passively managing antebellum households. It also challenges an alternative account of white women's involvement in slavery: that their only engagement was proximate to that of the white men in their lives. The latter, more reductive, account suggests that as white slaveholding men died, white women (spouses, mothers, and daughters) manumitted enslaved Black people who lived among them. (4) Both accounts suffer from historical inaccuracies and omissions. Failure to capture, chronicle, and understand these distinctions with greater nuance serves to conflate--at least at an epistemological level--white female abolitionists with white women who profited economically or symbolically from slavery (by means of stature in wealth and by means of race privilege in poverty).

In her detailed account of "the Southern Lady," Anne Firor Scott chronicles the skill white women exerted in buying and expanding plantations, as well as managing hundreds of enslaved Black people even in the wake of their husbands' deaths. She notes that many of these women were quite successful in purchasing land and establishing profitable plantations on their own throughout the South. In some instances, this included the "management" of several hundred enslaved Black people on plantations that produced sugar, cotton, and other agricultural staples. (5)

To be clear, not all white women possessed the economic capacity or desire to enslave Black people. Equally, however, it would be historically inaccurate to suggest that poor whites were more closely aligned with abolitionists simply because they did not own slaves. To the contrary, antebellum poverty and hardship, though often cruel, did not align with social and political opposition to slavery. Rather, poor whites participated in the broader social and economic structures of slavery. As Elizabeth Fortson Arroyo writes, poor whites sought their own "self-interest" and were cognizant of "what improvements in their lives they hoped to effect, and which other members of southern society could help or hinder them." (6)

As diaries, other empirical records, and legal cases show, slaveholding white women, particularly (although not exclusively) of the South, strategically fought to maintain slavery, engaging in litigation with banks, siblings, and others when ownership of their "property" came under threat. (7) And while most common depictions of Black human bondage involved sprawling plantations, slavery also included more modest acquisitions of Black people. Importantly, as owners and traffickers in enslaved Black people, white women were not passive participants in slavery--nor were they silent allies to the Black women whom they enslaved. (8)

Slavery became a critical part of white women articulating independence through law. By suing their husbands for "separation of property," white women secured paraphernal rights in their slaves. (9) Some states, such as Louisiana, provided for such litigation and vindication of white women's rights. (10) In fact, a close reading of legal archives also reveals the lengths to which slaveholding white women would exercise agency and dominion over enslaved Black people, including committing fraud, in order to preserve their claims to slaves. This included white women making false claims of ownership for slaves they did not legally possess or that their husbands unwillingly relinquished through means of seizure and bankruptcy due to unpaid debts. (11)

Importantly, such mistakes and omissions in recounting and recasting American history ignore structural, political, and economic benefits white women gained from their personal involvement in chattel slavery. (12) From ignoring or discounting white women in their actual roles and capacities in chattel slavery, a simplistic, homogeneous rendering emerges, which affects how we understand centuries of U.S. law, cultural attitudes, and social relations from the seventeenth century through slavery's abolition in the nineteenth century. Further, recognizing the realities of white women's roles in slavery serves in turn to acknowledge on a broader scale the suffering Black women and their families endured at the mercy of their sisters--quite literally in some instances. (13)

This Review closely examines Harriet A. Jacobs's Incidents in the Life of a Slave Girl and Stephanie E. Jones-Rogers's They Were Her Property: White Women as Slave Owners in the American South, (14) adding to the canon on American slavery generally by providing a more accurate woman-centered account of the social and legal orders of antebellum America. However, the value of this project and its lines of inquiry extend beyond slavery's past as it foregrounds internecine feminist battles of the twentieth century, including suffrage and Jim Crow, as well as social and legal challenges in the present. (15) In this way, the Review contributes to correcting an "interpretive inertia" that results "in the study of women's history" being sidelined. (16)

This Review advances three claims in its contribution to the relatively nascent legal study of white women and their legal and social involvement with slavery as purposeful participants. First, it stresses that the common erasure of white women as slaveholders renders their culpability and complicity in human chattel slavery imperceptible. Simply put, they become blameless and guiltless in an enterprise in which their involvement was far more than proximate and was in fact, in many instances, dominant. (17)

Second, scrubbing white women from the archives of antebellum history serves to deny not only their agency but also their capacities. In other words, removing white women as profiteers and commanders in slavery serves to erase the fact that some were successful, shrewd businesswomen, albeit in a horrid enterprise. Even those who "managed households" rather than large plantations wielded authority.

In troubling ways, this erasure both served to recast white women as disinterested in work and business, which defined Supreme Court jurisprudence on sex for many years, and contributed to the stereotype of white women as fragile, disempowered, weak, and vulnerable to lingering effect. (18) In recent decades, diligent efforts by historians correct inaccuracies in this record. (19)

Third, and perhaps most complicatedly, this Review argues that reading white women as passive or submissive participants in the business of antebellum slavery served to undermine their later employment attempts and business opportunities after slavery's abolition and through the 1900s. Contrary to the Supreme Court's patriarchal reading of women's capacities and destinies in Hoyt v. Florida, (20) Goesaert v. Cleary, (21) or Bradwell v. Illinois (22) white women clearly were not wedded or destined to domestic duties but had experience in financial management and business.

The Review proceeds in three parts. In the brevity necessitated by the Book Review format, Part I addresses slavery as an unmined and generally ignored legal subject, particularly in legal education. Part II describes and analyzes slavery from a different point of view, centering the experience of Black women and girls. It examines Harriet Jacobs's Incidents in the Life of a Slave Girl as a case study in American chattel slavery, as she and the women in her family were female owned. It further substantiates and contextualizes this Review's account of white women as holders and traders in human bondage.

Part III offers a more complex view of white women during the nation's founding and specifically the antebellum period. It brings to light slaveholding white women in the business and management of human capital. In their diaries, they confessed frustrations, anger, and stress, as well as joy at the birth of new slaves by whom they would profit. (23) Even as such historical accounts suffer for lack of nuance regarding sexual violence on slaveholding estates, the record of white women as capitalist businesswomen engaged in the enterprise of slavery becomes abundantly clear.

Recording this history of white women purchasing, leasing, holding, inheriting, disputing, and bequeathing enslaved Black...