The private law of race and sex: an antebellum perspective.

• Author: Davis, Adrienne D.

So long as individuals are authorized to dispose of their property as they choose, a society runs the risk that an inadequately socialized owner will disrupt the harmonious social relations that should order it.(1) --Mark V. Tushnet

Which of us has not narrowly escaped petting one of the pretty little mulattoes belonging to our neighbors as one of the family?(2) --Chief Judge Lumpkin, Supreme Court of Georgia, 1864

INTRODUCTION

1. Private Law and the Dead

   This is an article about private law, race, and sex. More specifically, it is about the succession of estates, sexual relationships, and the ways in which antebellum private law traced a delicate and often brutal dance around the issues of race, wealth concentration, miscegenation, gender roles and even, occasionally, the norms of formal equality.

   The focus on private law and, stranger still, wills and intestate succession, is an initially implausible, or at least an unfamiliar one in examining racial issues in this country. Scholarly and popular attention have understandably focused on public law and the living, rather than on private law and the dead. Thus there is an immediate understanding that the criminal prohibition of interracial marriages is something worthy of study. Loving v. Virginia(3) perhaps remains the Supreme Court's most eloquent statement about racism and its perpetuation. But private law seems more marginal; perhaps because it is assumed to be of secondary importance as compared to the direct invocation of state force.

   This article takes a different view of private law by examining nineteenth-century cases involving the fights of formerly enslaved women and their children to postmortem transfers of wealth.(4) Southern courts had to decide how status and race affected the doctrinal mechanisms that governed estate distribution, inheritance through intestate succession, and testamentary transfers through wills. In each of these cases, the legal characterization of the women's sexual behavior was a contested matter. In a line of pre- and post-Emancipation cases in Alabama, black families argued that the sexual relationships they formed under slavery ought to yield succession rights to estates, or what one state supreme court justice called "inheritable blood."(5) In a pair of South Carolina cases, white heirs challenged efforts by wealthy white men of the southern plantocracy to transfer via last will and testament large amounts of property to black women with whom they had sexual relationships and fathered children.(6) The disposition of these and other claims presented a fascinating raft of tensions in nineteenth-century law and society.

   The material effect of the particular types of cases featured here may seem of marginal impact, at least over the scale of an entire economy. Relatively few women who were enslaved ended up as parties to such suits. Yet I will argue that these case studies open a window on a more general economy of race, status, and sex operative in the antebellum and postbellum South.

2. Material Effects and Ideological Tensions

   Taking the case studies as its starting point, this article plots the doctrinal axes that governed estate disposition and the ideological and distributional consequences to which that legal matrix contributed. Probing the entitlements that stemmed from doctrinally conferred abilities and disabilities shows how apparently neutral laws regulating testamentary transfers and intestate succession regulated and negotiated the racial economics of sex. The article then contrasts pre- and post-Emancipation decisions, revealing a shifting, but essentially consistent framework at work in both periods. I compare the claims the law enabled and those it denied in both eras, giving close attention to the judicial rhetoric accompanying the rules.(7) In so doing, I try to illuminate the role of private law in negotiating and reconciling what sometimes appear to be contradictory imperatives of preserving private property and maintaining racial hierarchy, while maintaining the legitimacy of the legal system.

   As these case studies will emphasize, sexual bonds often generate economic relationships. It is the task of private law to determine which relationships will give rise to enforceable (or permissible) obligations, and which ones will not. Succession law sorts and ranks relationships that stem from sexual or companionate bonds between men and women, or biological ones between generations. The complexity of this shifting classificatory scheme is beyond the scope of this article; what is relevant to the inquiry here is the distinction drawn between those sexual or biological relationships that yield legal obligations and entitlements and those that do not. Feminists have long noted how legal determinations of this sort have historically operated to the economic and social detriment of women and their children.(8) While law denied property fights to many white women for failure to adhere to rigid norms of sexual propriety, for black women the regulation was complicated by disabilities of status (enslavement) and race.(9) By investigating efforts of the formerly enslaved to establish intestacy chains on behalf of their families, this article illustrates how the legal assignment of economic abilities and disabilities to sexual relationships distributed wealth not only between men and women, but also between whites and blacks. It also gives close attention to the ideological productions that accompanied the articulation of the rules of law.

   Like the inheritance conflicts, the testamentary transfer case studies also raise questions regarding how race and status affect the economic consequences of sexual relationships. In the instance of the wills, though, these concerns are complicated by their explicitly interracial dimension. The few other scholars who have noted the testamentary emancipations have approached them as romantic ruptures in the racist fabric of southern enslavement.(10) In fact, these wills provide a fascinating set of insights on something considerably more material than romance.

   Even under a simplistic and materialist analysis, their probate presents an obvious challenge to courts: to uphold property fights (in this case, testamentary freedom) without disrupting racial hierarchies. Southern antebellum culture(11) is typically represented as strongly committed to both racial hierarchy and private property. Usually, support for property rights strengthened racial hierarchies. But as these wills show, interracial liaisons in a racialist system raised the possibility of wealth transfers from whites to blacks. Such diversions of wealth would appear to threaten antebellum economic and social hierarchies predicated on race, gender, and (enslaved) status. Investigating how law managed the testamentary transgressions by elite white men of the very social norms and hierarchies that benefited their class yields greater understanding of the relationship of property to race, gender, and sex.

   Besides providing insight into the material effects of the law of wealth transfers as a whole, these wills raise other disturbing ideological and cultural questions: questions about the possibility of affection between the races, the actual extent of black-white sexual liaisons, and the morality of the fate of children born to such liaisons. To uphold the will would be to imply that a rational person could love a person of a different race and feel the impulse, perhaps even the moral imperative, to provide for their material comfort and practical support.(12) To refuse to give effect to the will would raise the specter that the state can overthrow the sovereign choices of the property-holder, declaring some appropriate and others forbidden.

   The legal doctrine tiptoes through this minefield, offering in the process some raw material for those who like to speculate more broadly about legal theory and the relationship of legal doctrine to social form.

3. Why These Cases?

   This article uses the private law contested in these case studies to offer further illumination of the antebellum regulation of sexual relationships, particularly those involving black women. It examines the social meanings of these wealth transfers by grounding them in what I describe as the antebellum sexual economy. Though other scholars may find the study interesting for its own sake, my hope is that it offers some insights into more contemporary issues: this, after all, is a study of the maintenance of race and gender hierarchies and an analysis of the racial impact of facially neutral doctrinal frameworks. Neither topic is of merely historical importance. It is my hope that this work and others like it might enrich the debate among feminists, gay rights activists, and the broader civil rights community about what is at stake in the legal characterization of companionate sexual relationships. In arguing for an expanded focus on the connection between sexual relationships and property rights, the article tries to expand on a rich tradition in feminism and critical legal theory: a challenge to the public/private armor that segregates family from market and sex from economics.

   This article at certain points will concentrate on sexual relationships between white men and black women, although many scholars identify interracial relationships between white women and black men as historically (and currently) more socially transgressive.(13) I chose to focus on white men and black women because I believe that it is these relationships that provide the greatest insight into racial fissures within southern ideology. I also focus on relationships that resulted in testamentary transfers, admittedly rare occurrences.(14) I do so for a reason. While more mainstream accounts of these testamentary transfers see them as romantic exceptions to the norm, I believe that they actually have much to tell us about the norm. By exposing most clearly the ligaments of legal...