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Published online by Cambridge University Press: 21 April 2021
The scholarship on race and political development demonstrates that race has long been embedded in public policy and political institutions. Less noticed in this literature is how family, as a deliberate political institution, is used to further racial goals and policy purposes. This article seeks to fill this gap by tracing the foundations of the political welding of family and race to the slave South in the antebellum period from 1830 to 1860. Utilizing rich testimonial evidence in court cases, I demonstrate how antebellum courts in South Carolina constructed a standard of “domestic affection” from the everyday lives of southerners, which established affection as a natural norm practiced by white male slaveowners in their roles as fathers, husbands, and masters. By constructing and regulating domestic affection to uphold slavery amid the waves of multiple modernizing forces (democratization, advancing market economy, and household egalitarianism), Southern courts in the antebellum period presaged their postbellum role of reconstructing white supremacy in the wake of slavery's demise. In both cases the courts played a formative role in naturalizing family relations in racially specific ways, constructing affection and sexuality, respectively, to anchor the white family as the bulwark of white social and political hegemony.
1 The literature on institutionalization of race in politics is too vast to be listed. Representative examples of race in welfare policy include Lieberman, Robert C., Shifting the Color Line: Race and the American Welfare State (Cambridge, MA: Harvard University Press, 1998)Google Scholar; Roberts, Dorothy, Shattered Bonds: The Color of Child Welfare (New York: Basic Books, 2002)Google Scholar; Quadagno, Jill, The Color of Welfare: How Racism Undermined the War on Poverty (New York: Oxford University Press, 1994)Google Scholar; Ward, Deborah E., The White Welfare State: The Racialization of U.S. Welfare Policy (Ann Arbor: University of Michigan Press, 2005)CrossRefGoogle Scholar. In relation to race and political development, see, for instance, King, Desmond S. and Smith, Rogers M., “Racial Orders in American Political Development,” American Political Science Review 99(2005): 75–92CrossRefGoogle Scholar; Lowndes, Joseph E., Novkov, Julie, and Warren, Dorian T., eds., Race and American Political Development (New York: Routledge, 2008)Google Scholar; Katznelson, Ira, When Affirmative Action Was White: An Untold History of Racial Inequality in Twentieth-Century America (New York: W.W. Norton, 2006)Google Scholar; Fox, Cybelle, Three Worlds of Relief: Race, Immigration, and the American Welfare State from the Progressive Era to the New Deal (Princeton, NJ: Princeton University Press, 2012)Google Scholar; Bateman, David, Katznelson, Ira, and Lapinski, John S., Southern Nation: Congress and White Supremacy after Reconstruction (Princeton, NJ: Princeton University Press, 2018)Google Scholar. On the legacy of slavery in American Politics, see Acharya, Avidit, Blackwell, Matthew, and Sen, Maya, Deep Roots: How Slavery Still Shapes Southern Politics (Princeton, NJ: Princeton University Press, 2018)Google Scholar.
2 On racial embedment in policy as a result of political calculation and maneuverings, see, for example, Frymer, Paul, Uneasy Alliances: Race and Party Competition in America (Princeton, NJ: Princeton University Press, 1999)Google Scholar; Bateman et al., Southern Nation; Ira Katznelson, Fear Itself: The New Deal and the Origins of Our Time (New York: Liveright, 2013); Quadagno, Color of Welfare; Murakawa, Naomi, The First Civil Right: How Liberals Built Prison America (New York: Oxford University Press, 2014)Google Scholar; Weaver, Vesla M., “Frontlash: Race and the Development of Punitive Crime Policy,” Studies in American Political Development 21 (2007): 230–265CrossRefGoogle Scholar. On institutionalization of race: as the outcome of deliberate racism, see, for example, Michael K. Brown, Martin Carnoy, Elliot Currie, Troy Duster, David B. Oppenheimer, Marjorie M. Shultz, and David Wellman, Whitewashing Race: The Myth of a Color-Blind Society (Berkeley: University of California Press, 2003); Linda Gordon, Pitied but Not Entitled: Single Mothers and the History of Welfare (New York: The Free Press, 1994); Ian Haney-López, Dog Whistle Politics: How Coded Racial Appeals Have Reinvented Racism and Wrecked the Middle Class (New York: Oxford University Press, 2014); as the outcome of racially organized social attitudes, see Kenneth J. Neubec and Noel A. Cazenave, Welfare Racism: Playing the Race Card Against America's Poor (New York: Routledge, 2001); and as the result of partisan ideology, see Joseph Lowndes, From the New Deal to the New Right: Race and the Southern Origins of Modern Conservatism (New Haven, CT: Yale University Press, 2008); Desmond King and Rogers M. Smith, Still a House Divided: Race and Politics in Obama's America (Princeton, NJ: Princeton University Press, 2012).
3 Bonilla-Silva, Eduardo, Lieberman, Robert C., and Harris, Frederick C., “Racial Inequality after Racism: How Institutions Hold Back African-Americans,” Foreign Affairs 94, no. 2 (March-April 2015): 9–20Google Scholar; Frederick C. Harris and Robert C. Lieberman, eds., Beyond Discrimination: Racial Inequality in a Postracist Era (New York: Russell Sage Foundation, 2013).
4 On racial policy frames, see Roberts, Shattered Bonds; Ward, White Welfare State; Gordon, Pitied but Not Entitled. On “dog whistle politics,” see Haney-López, Dog Whistle Politics. On racial family-based assumptions in neoliberalism, see Tamara Metz, “Obergefell, Marriage, and the Noeliberal Politics of Care,” in Stating the Family: New Directions in the Study of American Politics, ed. Julie Novkov and Carola Nackenoff (Lawrence: University Press of Kansas, 2020), 45–71; Katzenstein, Mary Fainsod, Ibrahim, Leila Mohsen, and Rubin, Katherine D., “The Dark Side of American Liberalism and Felony Disenfranchisement,” Perspectives on Politics 8 (2010): 1035–54CrossRefGoogle Scholar; Joe Soss, Richard C. Fording, and Sanford F. Schram, Disciplining the Poor: Neoliberal Paternalism and the Persistent Power of Race (Chicago: University of Chicago Press, 2011); Gwendoline Alphonso, “‘One People, under One God, Saluting One American Flag’: Trump, the Republican Party, and the Construction of American Nationalism,” in American Political Development and the Trump Presidency, ed. Zachary Callen and Phillip Rocco (Philadelphia: University of Pennsylvania Press, 2020), 55–67.
5 Roberts, Shattered Bonds, 233–38. The Moynihan Report infamously highlighted the link between black matriarchal family structures and racial economic inequality: Daniel P. Moynihan, The Negro Family—The Case for National Action (Washington, DC: U.S. Government Printing Office, 1965), 29–43, accessed February 2021, https://babel.hathitrust.org/cgi/pt?id=uiug.30112039498768&view=1up&seq=9. Like Moynihan and unlike scholars of family in political development, political scientists who study race typically refer to the Moynihan Report and explanations centered on black family structure, marriage, and child-rearing practices as sociological and hence apolitical, demonstrating the ongoing tendency in political science to approach the family as outside the realm of politics, policies, and political development. See, for example, Robert C. Lieberman, “Legacies of Slavery? Race and Historical Causation in American Political Development,” in Race and American Political Development, ed. Joseph E. Lowndes, Julie Novkov, and Dorian T. Warren (New York: Routledge, 2008), 206–33, 210–11.
6 For theoretical approaches to family and state from a political development perspective, see Julie Novkov and Carol Nackenoff, “Introduction,” in Stating the Family: New Directions in the Study of American Politics, ed. Julie Novkov and Carola Nackenoff (Lawrence: University Press of Kansas, 2020); Burgess, Susan, “Introduction: Family, State, and Difference in Political Time,” Polity 48 (2016): 140–45CrossRefGoogle Scholar; McClain, Linda C., “The Family, the State, and American Political Development as a Big Tent: Asking Basic Questions about Basic Institutions,” Polity 48 (2016): 224–42CrossRefGoogle Scholar; Gwendoline Alphonso, Polarized Families, Polarized Parties: Contesting Values and Economics in American Politics (Philadelphia: University of Pennsylvania Press, 2018), 1–20; Priscilla Yamin, American Marriage: A Political Institution (Philadelphia: University of Pennsylvania Press, 2012), 7–13; Patricia Strach, All in the Family: The Private Roots of American Public Policy (Stanford, CA: Stanford University Press, 2007), 40, 21–35.
7 Nancy F. Cott, Public Vows: A History of Marriage and Nation (Cambridge, MA: Harvard University Press, 2000); Stephanie Coontz, The Way We Never Were: American Families and the Nostalgia Trap (New York: Basic Books, 1992).
8 Novkov and Nackenoff, “Introduction,” 2–5; Patricia Strach, “The Family,” in The Oxford Handbook of American Political Development, ed. Richard M. Valelly, Suzanne Mettler, and Robert C. Lieberman (New York: Oxford University Press, 2016), 1:1–18 (online edition).
9 Novkov and Nackenoff, “Introduction,” 3–4. Demonstrating how courts legally constructed interracial marriage as unnatural to uphold the foundation of post–Civil War white supremacy, see Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America (New York: Oxford University Press, 2009), 1–3; Alphonso, Polarized Families, 12–18; Strach, All in the Family, 39–40; Alison Gash and Priscilla Yamin, “State, Status, and the American Family,” Polity 48 (2016): 146–64.
10 The concept of nature, as referring to something unchanging or permanent, existing within the structure of reality and accessible by scientific inquiry and reason, has long served as a standard of right, legitimate, and appropriate state action in the American political lexicon since the Declaration of Independence. James Ceaser, Nature and History in American Political Development: A Debate (Cambridge, MA: Harvard University Press, 2004).
11 “Domestic affection” in this article refers to the bundle of affective bonds, nurturing, and caring attachments that came to be associated with family in the nineteenth-century ideology of domesticity (as discussed later in this article). This family affection was particularly considered as the affection of parents to children, but also between spouses. Perceived as altruistic, intuitive, and organically formed, family affection marked the intimate and unique character of family relations, as opposed to the instrumental relations of self-interest that were assumed to pervade the public spheres of work, markets, and politics. Affection thus operated as an important boundary between private and public spheres, serving as a gateway to regulate which sets of domestic arrangements and relations were considered legitimately “familial” in nature and deserving of special state protections and which were not.
12 As discussed further on in the article, affective bonds between masters and enslaved people were constructed at the margins of this framework of domestic affection: Whereas the master-enslaved relation was characterized by tender feelings (i.e., attachment, nurturance, devotion, and loyalty) that organically grew from everyday domestic interactions (like other family bonds), these were nevertheless perceived and framed as fundamentally economic in character, foregrounded in the economic utility of the enslaved people to the self-interest of the master. It is in the master-enslaved relation that we also see other limits of domestic affection as a legal construct at the time: Spouses were considered first as emotional intimates, and only secondarily as sexual partners, and thus affectionate family relations excluded social relations that were presumed to be centered on sex as also nonconsanguineous, nonmarital relations.
13 For instance, Justice Kennedy, writing the opinion for the landmark case Obergefell v. Hodges that extended constitutional protections to same-sex couples’ right to marry, relied on an affective understanding of marriage as an institution, insofar as marriage “fulfils yearnings for security, safe haven, and connection that express our common humanity.” (Obergefell v. Hodges, 135 S. Ct. 2584, 2599). Applauding the decision, President Barack Obama underscored the universality of affection as the basis of the decision, claiming “love is love”; see “Love Is Love”: Obama Lauds Gay Marriage Activists in Hailing ‘a Victory for America,’” The Guardian, June 26, 2015, accessed February 2021, https://www.theguardian.com/us-news/2015/jun/26/obama-gay-marriage-speech-victory-for-america.
14 By focusing on the dynamism of the courts in the context of the shifting impulses of the slave state in the antebellum period, I build on recent developments within the historiography of slavery that challenge previous depictions of slavery as static, fixed, and premodern and that is wholly separate from the larger modernizing—economic, social, and intellectual—forces engulfing the nation. As examples of this new scholarship, see Sven Beckert and Seth Rockman, eds., Slavery's Capitalism: A New History of American Economic Development (Philadelphia: University of Pennsylvania Press, 2016); L. Diane Barnes, Brian Schoen, and Frank Towers, eds., The Old South's Modern Worlds: Slavery, Region, and Nation in the Age of Progress (New York: Oxford University Press, 2011).
15 On the political and legal construction of interracial sexuality as unnatural as a rationale to uphold white supremacy and the racial integrity of the white family, see Julie Novkov, Racial Union: Law, Intimacy, and the White State in Alabama, 1865–1954 (Ann Arbor: University of Michigan Press, 2008); Pascoe, What Comes Naturally.
16 I identified cases by searching the classic index on judicial cases related to the law of slavery: Helen T. Catterall, Judicial Cases Concerning American Slavery and the Negro (St. Paul, MN: West, 1959). By close reading of the entire section on “South Carolina Cases” in Caterall (pp. 267–478), I identified the key terms associated with family and race that recurred in the case summaries and discussion, including “marriage,” “race,” “connexions,” “illegitimate,” “natural,” “slave family,” “husband,” “wife,” “children,” “mulatto,” “race,” and “free negro.” Then I used these terms to digitally search the index and then compiled the list of 122 relevant cases from the years 1800 to 1860. My goal was to focus on cases within the antebellum period, when paternalism was a central political ideology, but to also include, for the sake of comparison, cases occurring in prior decades. I chose to use Catterall's index so I could examine the connection between slavery and domesticity, how and in what contexts slavery was domesticized as a legal system, and the implications of the legal conjoining of household and slave ownership. I also coded each judicial case for key variables describing each case, paying attention to how, when, and which family frames or judicial standards were deployed.
17 Desmond King and Marc Stears, “How the U.S. State Works: A Theory of Standardization,” Perspectives on Politics 9 (2011): 505–18, at 509.
18 Ibid., 509–10 (emphasis in original). Within this framework, the distinction between state and society is more rightly understood as blurred and indistinguishable insofar as both may be actively involved, independently or in concert with one another, in generating standards that govern social and policy imagination.
19 Ceaser, Nature.
20 On the importance of natural law in judicial interpretation of the positive law of slavery, see Bernie Jones, Fathers of Conscience: Mixed-Race Inheritance in the Antebellum South (Athens: University of Georgia Press, 2009) 13; as an example of this in practice, see McLeish v. Burch, 3 Strob. Eq. 225 (S.C. 1849) at 241.
21 Ceaser, Nature, 23.
22 John Calhoun, “Speech on the Oregon Bill, June 27, 1848,” in Union and Liberty: The Political Philosophy of John C. Calhoun, ed. Ross M. Lence (Indianapolis: Liberty Fund, 1992), 565; also, John Calhoun, “A Disquisition on Government,” in Union and Liberty: The Political Philosophy of John C. Calhoun, ed. Ross M. Lence (Indianapolis: Liberty Fund, 1992), 45.
23 This would be an example of what Rogers Smith calls ascriptive Americanism, the political tradition in which national and civic identity is constructed around shared characteristics that are believed to be fixed by birth or nature and deemed to be irreducibly necessary for civic belonging (Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History [New Haven, CT: Yale University Press, 1997]).
24 Calhoun, “Speech on the Oregon Bill,” 565–66.
25 Bruce Dain, A Hideous Monster of the Mind: American Race Theory in the Early Republic (Cambridge, MA: Harvard University Press, 2002), cited in Ceaser, Nature, 206; Ronald Takaki, A Different Mirror: A History of Multicultural America (Boston: Little Brown, 1993) 71.
26 Ceaser, Nature, 46.
27 King and Stears, “How the State Works,” 509.
28 Ibid., 509–12.
29 Ibid., 511. I should add that the Southern state was also foundationally committed to gendered hierarchy; however, gender analysis is beyond the scope of this article.
30 Robin Einhorn, “Slavery,” Enterprise & Society 9 (2008): 491–506, 493.
31 Edmund Bellinger, A Speech on the Subject of Slavery (Charleston: Dan J. Dowling, Printer, 1835), 14, accessed February 2021, https://babel.hathitrust.org/cgi/pt?id=hvd.32044010071538&view=1up&seq=5.
32 J. W. C. Pennington, “The Fugitive Blacksmith: Or Events in the Life of James W.C. Pennington” (London, 1849), iv–vii, cited in Walter Johnson, Soul by Soul: Life Inside the Antebellum Slave Market (Cambridge, MA: Harvard University Press, 1999), 18. For an excellent work representing the emerging new economic history of American slavery that incorporates the voices of enslaved people to detail the commodification of enslaved people through every phase of their lives, see Diana Ramey Berry, The Price of Their Pound of Flesh: The Value of the Enslaved, from Womb to Grave, in the Building of a Nation (Boston: Beacon Press, 2017).
33 Johnson, Soul by Soul, 19.
34 See Bonnie Martin, “Neighbor-to-Neighbor Capitalism: Local Credit Networks and the Mortgaging of Slaves,” in Slavery's Capitalism: A New History of American Economic Development, ed. Sven Beckert and Seth Rockman (Philadelphia: University of Pennsylvania Press, 2016), 107–21; also, Joshua Rothman, “The Contours of Cotton Capitalism: Speculation, Slavery, and Economic Panic in Mississippi, 1832–1841,” in Slavery's Capitalism: A New History of American Economic Development, ed. Sven Beckert and Seth Rockman (Philadelphia: University of Pennsylvania Press, 2016), 122–45; Kathryn Boodry, “August Belmont and the World the Slaves Made,” in Slavery's Capitalism: A New History of American Economic Development, ed. Sven Beckert and Seth Rockman (Philadelphia: University of Pennsylvania Press, 2016), 163–78.
35 Alfred L. Brophy, “The Market, Utility, and Slavery in Southern Legal Thought,” in Slavery's Capitalism: A New History of American Economic Development, ed. Sven Beckert and Seth Rockman (Philadelphia: University of Pennsylvania Press, 2016), 262–76.
36 This article limits itself to the empirical assembly of white-centered domestic affection. An exposition of black economic utility and its interrelationship with domestic affection in the construction of natural raced family standards is the subject of my larger book project.
37 Enslaved women's financial value increased during childbearing years; see Diana Ramey Berry, “‘We'm Fus’ Rate Bargain’: Value, Labor, and Price in a Georgia Slave Community,” in The Chattel Principle: Internal Slave Trades in the Americas, 1808–1888, ed. Walter Johnson (New Haven, CT: Yale University Press, 2004), 55–71.
38 In the nineteenth century, increase (natural or forced) became the focus in potential buyer's calculations; see Berry, The Price of Their Pound of Flesh, 19. On enslaved women's reproductive labor and its centrality within the Atlantic slave trade, see Jennifer L. Morgan, Laboring Women: Reproduction and Gender in New World Slavery (Philadelphia: University of Pennsylvania Press, 2004); Jennifer L. Morgan, “Partus Sequitur Ventrem: Law, Race, and Reproduction in Colonial Slavery,” Small Axe 22, no. 1 (55) (2018): 1–17.
39 Stephanie E. Jones-Rogers, They Were Her Property: White Women as Slave Owners in the American South (New Haven, CT: Yale University Press), 20–21. For differences in the financial valuation of “breeding” women in the antebellum period, after the abolition of the African slave trade in 1808 as opposed to earlier periods, see Berry, The Price of Their Pound of Flesh, 21
40 Berry, The Price of Their Pound of Flesh, 78–83. For wide-ranging discussions on the rhetoric, experiences, memories, and contested historiography on the topic, see Gregory D. Smithers, Slave Breeding: Sex, Violence, and Memory in African American History (Gainesville: University Press of Florida, 2012). See also Ned Sublette and Constance Sublette, The American Slave Coast—A History of the Slave-Breeding Industry (Chicago: Lawrence Hill Books, 2016). On coerced wet-nursing, see Emily West and R. J. Knight, “Mothers’ Milk: Slavery, Wet-Nursing, and Black and White Women in the Antebellum South,” Journal of Southern History 83 (2017): 37–68.
41 Despite debate over the extent of consensus among Southern whites, by and large there is agreement among historians of the Old South that white supremacy formed the shared basis of Southern democratization efforts in the Jacksonian era, enshrining what George M. Frederickson has termed “herrenvolk equality,” that is, “equal citizenship for all white and a servile status for all blacks on the grounds that there were innate differences in group capacities for self-government” (George M. Fredrickson, White Supremacy: A Comparative Study in American and South African History [New York: Oxford University Press, 1981], 154). For a review of and contrary perspective on the herrenvolk thesis within the historiography of the Old South, see David Brown, “A Vagabond's Tale: Poor Whites, Herrenvolk Democracy, and the Value of Whiteness in the Late Antebellum South,” Journal of Southern History 79 (2013): 799–840, 802–805.
42 Domesticity was a new ideological orientation toward the (white, upper-class) family that accompanied the structural shift toward an industrializing economy, in which the white household or the domestic sphere was increasingly feminized and separated from the masculinized sphere of work. This view of domesticity was imbued with qualities of moral purity and affection and was privatized as an ideal refuge from the material, heartless, and often morally corrupt world outside; see Stephanie Coontz, Marriage, a History: From Obedience to Intimacy or How Love Conquered Marriage (New York: Viking, 2005), 164–65.
43 Calhoun, “Speech on the Oregon Bill,” 569.
44 Lacy Ford, Deliver Us from Evil: The Slavery Question in the Old South (New York: Oxford University Press, 2009), 526.
45 Stephanie McCurry, “Two Faces of Republicanism: Gender and Proslavery Politics in Antebellum South Carolina,” Journal of American History 78, no. 4 (1992): 1245–64.
46 See Ford, Delivery Us from Evil, 7–10.
47 See Johnson, Soul by Soul, 90.
48 Ford, Deliver Us from Evil, 525–26.
49 Non-slaveholding white households have been described as “only temporary steps in the natural commercial evolution toward slaveholding,” such that slaveholding is evidenced as the foremost coveted status that made a household truly white, elevating the social standing of a white family and rendering its male head worthy of political equality with other males; Johnson, Soul by Soul, 90–91.
50 Norma Basch, “Marriage and Domestic Relations,” in Cambridge History of Law in America: The Long Nineteenth Century, ed. Michael Grossberg and Christopher Tomlins (New York: Cambridge University Press, 2008), 245–79, at 264; Coontz, Marriage, 164, 166.
51 Calhoun, “Disquisition on Government,” 6–7.
52 Basch, “Marriage and Domestic Relations,” 246, 249.
53 Carole Shammas, A History of Household Government in America (Charlottesville: University of Virginia Press, 2002), 120–26. On romantic love as grounds for reconfiguration of marriage as an institution leading to (marginal) diminution of male headship rights in the family in the non-South through recognition of increased rights of illegitimate children, enhanced protections to women in the form of common-law marriages, and liberalization of fault divorce, see Basch, “Marriage and Domestic Relations,” 252–57. On the continued patriarchal nature of domestic relations law in the Old South, see Peter Bardaglio, Reconstructing the Household: Families, Sex, and the Law in the Nineteenth-Century South (Chapel Hill: University of North Carolina Press, 1995), 84. For the claim that manhood rights” prevailed in the South over the northern ideology of “domesticity,” see Rebecca Edwards, “Domesticity versus Manhood Rights: Republicans, Democrats, and ‘Family Values’ Politics, 1856–1896,” in The Democratic Experiment: New Directions in American Political History, ed. Meg Jacobs, William J. Novak, and Julian E. Zelizer (Princeton, NJ: Princeton University Press, 2003), 175–97. In contrast to Edwards, I am arguing instead that the conceptual separation of domesticity and manhood rights that she posits did not play out in judicial practice in the pre–Civil War era, but instead the courts tied manhood rights in the Old South to, and in some ways grounded such rights in, an ideology of domesticity and domestic affection.
54 “Report and Resolutions of a Public Meeting at Pendleton, 9 September 1835,” cited in Ford, Deliver Us from Evil, 515.
55 J. H. Hammond, Two Letters on Slavery in the United States (Columbia: Allen, McCarter & Co. The South Carolinian Press, 1845). On Hammond, see Craig Thompson Friend, “Sex, Self, and the Performance of Patriarchal Manhood in the Old South,” in The Old South's Modern Worlds, 246– 65, 246–47.
56 Henry Ward Beecher, “Narrative of His Trip to South Carolina,” Independent, May 11, 1865, cited in Ethan J. Kyle and Blain Roberts, Denmark Vesey's Garden: Slavery and Memory in the Cradle of the Confederacy (New York: New Press, 2018), 51.
57 Coontz, Marriage, 164–75. Parents interacted with children, and spouses engaged with one another, much more instrumentally and economically in colonial and early eighteenth-century America; see Nancy Cott, “Eighteenth-Century Family and Social Life Revealed in Massachusetts Divorce Records,” Journal of Social History, 10 (1976): 20–43.
58 The primary focus on white litigants in this narrative is related to the nature of the sources used in my research, namely, cases pertaining to the law of slavery that arose before the equity and law courts of South Carolina. Although there are a handful of cases involving free black litigants within my sample, enslaved blacks were not considered legal persons and so could not be parties to a civil suit. All criminal cases brought against them and against free people of color were tried in a separate court with limited formal protections, the Court of Magistrates and Freeholders, whose decisions and transcripts I did not examine. However, secondary literature evidences that romantic love and domestic affection were also extensively practiced by black families in the nineteenth century; see Terra W. Hunter, Bound in Wedlock: Slave and Free Black Marriage in the Nineteenth Century (Cambridge, MA: Belknap Press, 2017), 28–30.
59 Jones-Rogers, They Were Her Property, 2.
60 Teague v. Griffin, 2 Nott and McC. 93 (S.C. 1819), 95. Daughters often received personal property (such as enslaved people) since most real property often went to the son, even though primogeniture was not practiced in the United States as it was in England (Jones-Rogers, They Were Her Property, 2–3).
61 For a detailed analysis of the family ritual of gifting enslaved children and the centrality (in law and social practice) of fathers and paternal rights over the child's proprietorship, see Sarah Winter, “The Slave Child as ‘Gift’: Involutions of Proprietary and Familial Relations in the Slaveholding Household before Emancipation,” in Child Slavery before and after Emancipation: An Argument for Child-Centered Slavery Studies, ed. Anna Mae Duane (Cambridge, MA: Cambridge University Press, 2017), 50–74.
62 Miller v. Anderson, 4 Rich. Eq. 1 (S.C. 1851) at 3, italicized text added.
63 Miller, 4 Rich. Eq. at 4.
64 Jones-Rogers, They Were Her Property, 4, fn. 10, 210.
65 Jennie Fitts, in Jules Rawick, The American Slave: A Composite Autobiography, Supplement, Series 2, vol. 4, Texas Narratives, Part 3, 1352 cited in Jones-Rogers, They Were Her Property, 4. Through naming and disciplinary practices, including requiring young children to participate in whipping and other violent practices of control, practices of forced salutations compelling enslaved servants to refer to white infants and toddlers as Master and Mistress, white slaveholding fathers (and some mothers) involved their children intimately in the day-to-day governance and ongoing management of their enslaved servants.
66 Moultrie v. Jennings, 2 McMullan 508 (S.C. 1837) at 508.
67 Ibid., at 508.
68 Teague, at 95.
69 In a similar case, the Court of Appeals upheld the parol gift of an enslaved woman to a daughter despite the daughter's lack of possession of the enslaved woman, instead attributing daughter's “unwillingness to demand … immediate delivery of the slave, although she needed her so much” to “exhibiting a becoming filial delicacy” as opposed to implying doubt of title. Yancey v. Stone, 7 Rich. Eq. 16 (S.C. 1854).
70 M'Ginney v. Wallace, 3 Hill 254 (S.C. 1837) at 256.
71 Miller, 4 Rich. Eq. at 5.
72 Ibid., at 3–4 (emphasis added).
73 Eddings v. Whaley, 1 Rich. Eq. 301 (S.C. 1845) at 316.
74 Brashears v. Blassingame 1 N & MC. 224 cited in Eddings, 1 Rich. Eq. 301 at 309.
75 Johnson, Soul by Soul, 93. Courts also considered at length the role of patriarchal affections and resentments in providing for kin after their death, in cases of succession and wills of deceased (mostly) planters. A noteworthy case where patriarchal provision of providing for a wife and children was deemed a “moral and good consideration” involved the will of a highly reputed planter-testator, Charles Cotesworth Pickney, a founding father of South Carolina in SC No. 67, Pinckney v. Pinckney, 2 Rich. Eq. 218 (S.C. 1846) at 232.
76 Johnson, Soul by Soul, 94.
77 Ibid., 95.
78 Harley v. Platts, 6 Richardson 310 (S.C. 1853) at 311.
79 J. F. Smith to James Tutt, April 19, 1845, James Tutt Papers, cited in Johnson, Soul by Soul, 94.
80 Huger v. Huger, 9 Rich. Eq. 217 (S.C. 1857) at 226–27. Due to their reproductive capacity, enslaved black women were commonly the objects of such intergenerational financial planning, embodying a self-renewing, perpetual legacy of white patriarchal beneficence; see Jones-Rogers, They Were Her Property, 21.
81 Norma Basch, “Invisible Women: The Legal Fiction of Marital Unity in Nineteenth-Century America, Feminist Studies 5 (1979): 346–66; Kathleen S. Sullivan, Constitutional Context: Women and Rights Discourse in Nineteenth-Century America (Baltimore, MD: Johns Hopkins University Press, 2007).
82 Bardaglio, Reconstructing the Household, 31. During widowhood, common law allowed women a life interest in one-third of the family's real property and absolute ownership of one-third of personal property, but only if the estate was free of debts. If a husband died heavily indebted or insolvent, his wife lost all her personal property (and in some jurisdictions her real property as well).
83 Marylynn Salmon, “Women and Property in South Carolina: The Evidence from Marriage Settlements, 1730 to 1830,” The William and Mary Quarterly 39, no. 4 (1982): 655–85.
84 Jones-Rogers, They Were Her Property, xvii; see also Thavolia Glymph, Out of the House of Bondage: The Transformation of the Plantation Household (New York: Cambridge University Press, 2008), 4.
85 Jones-Rogers, They Were Her Property, xv.
86 It was common practice for a married woman, as slaveowner, to independently determine and use techniques of discipline and management of her enslaved property separate from the techniques of discipline used by her husband over his enslaved workers. In many instances, husbands honored their wives’ prerogatives to independently manage and discipline her enslaved workers; see King v. Aughtry, 3 Strob. Eq. 149 (S.C. 1849).
87 In re Susan Huff, 6 Rich. Eq. 39in. (S.C. 1851) at 393. For the South Carolina stance indicating concern with protecting women from male coercion, see Marylynn Salmon, “‘Life, Liberty, and Dower’: The Legal Status of Women after the American Revolution,” in Women, War, and Revolution, ed. Carol R. Berkin and Clara M. Lovett (New York: Holmes & Meier, 1980), 85–106.
88 In re Susan Huff, 6 Rich. Eq. 39in.
89 Ibid., at 393.
90 Salmon, “Women and Property in South Carolina,” 674, 684–85.
91 Regarding the impact of marriage settlements as a practice more common to wealthy households, Marylynn Salmon found that for marriage settlements in South Carolina from 1730 to 1830, 69 percent (316/456) of the estates included property worth more than £500 sterling, or more than five slaves, or more than one town lot with appurtenances, or a plantation of more than 300 acres. Twenty-eight settlements of more than ten slaves and hundreds of pounds sterling were common. One settlement included 100 slaves, another £50,000 sterling, and still another forty-four slaves and over 4,000 acres of land. A number of settlements included more than ten slaves, land, and at least one town lot with appurtenances—the traditional state of a wealthy South Carolina planter family (Salmon, “Women and Property in South Carolina,” 664).
92 Williams v. Prince, 3 Strobhart 490 (S.C. 1849).
93 Bardaglio, Reconstructing the Household, 87.
94 Vinyard v. Passalaigue, 2 Strobhart 536 (S.C. 1848) at 544–45, contains extensive discussion of South Carolina's “stern and enduring, but wholesome and essential” policy of no divorce, as an “inflexible rule of marriage” that “has its moral justification in the human mind and character.” Justice Richardson compares no-divorce state policy to proscriptions against emancipation both of which belie a fatalist view of human nature, “Bind a man down to any situation, without possible expectation of change, and he instinctively seeks how own happiness from that very situation, untoward as his lot may seem to other men” (Ibid., 545; emphasis in original).
95 Hair v. Hair, 10 Rich. Eq. 163 (S.C. 1858)
96 Ibid., at 169.
97 Ibid., at 165–66.
98 Ibid., at 164, 165.
99 Ibid., at 167.
100 Ibid., at 166.
101 Ibid., at 169.
102 Ibid., at 176.
103 Ford, Deliver Us from Evil, 146.
104 William Johnson, Nugae Georgicae: An Essay Delivered to the Literary and Philosophical Society of Charleston, South Carolina, October 14, 1815 (Charleston, SC: J. Hoff, 1815), 5; see also Ford, Deliver Us from Evil, 150. The paternalistic patriarch-planter ideal, despite being the furthest from the violent and extreme harsh dominion practiced by most slaveowners, was proclaimed as the preferred social ideal extensively in the South from the 1830s through the Civil War, “touted from the church pulpits, society hall lecterns and courthouse steps and published in plantation management handbooks, religious tracts, and occasional pamphlets” throughout the region. In the minds of most whites, says Ford, “paternalism as an ideology helped transform slavery into a domestic institution.” By so doing, paternalism also domesticized conceptions of masters and enslaved, and centered family, family affect, honor, pride, sentiment, and dynamics, at the core of master-slave relations (Ford, Deliver Us from Evil, 147). On perception of enslaved as childlike dependents rather than subjects, see Ford, Deliver Us from Evil, 146.
105 Elizabeth Fox Genovese, Within the Plantation Household: Black and White Women of the Old South (Chapel Hill: University of North Carolina Press, 1988), 292.
106 On perceptions of “faithful slaves,” see Micki McElya, Clinging to Mammy: The Faithful Slave in Twentieth-Century America (Cambridge, MA: Harvard University Press, 2007), 3; Fox Genovese, Within the Plantation Household, 291; Venetria K. Patton, Women in Chains: The Legacy of Slavery in Black Women's Fiction (Albany: State University of New York Press, 1999), 27. Judge Richardson in an 1850 decision in State v. Belmont (4 Strobhart 445, S.C. 1850 at 451) based his defense of slavery on the naturalized dependency of African Americans, claiming that “all history assures us that the negro race thrive [sic] in health, multiply greatly, become civilized and religious, feel no degradation, and are happy, when in subjection to the white race.” Naturalized suitability of blacks to conditions of servitude were contrasted against conceptions of Native Americans, “who never made valuable slaves but withered away in a state so alien to the red man's nature” (Ibid., 451–53). Naturalized black dependency was also used as ground to defend the humanity and appropriateness of public policy curtailing and prohibiting a master's right to emancipate his enslaved property; see, for example, Morton v. Thompson, 6 Rich. Eq. 370 (S.C. 1854), especially 372–73.
107 Johnson, Nugae Georgicae, 37.
108 Ford, Deliver Us from Evil, 147.
109 Edward E. Baptist, “Toward a Political Economy of Slave Labor: Hands, Whipping-Machines, and Modern Power,” in Slavery's Capitalism: A New History of American Economic Development, ed. Sven Beckert and Seth Rockman (Philadelphia: University of Pennsylvania Press, 2016), 31–61.
110 Three-fourths of enslaved people were estimated to be “field hands” or agricultural laborers. But the large estimate of household slaves is plausible only by adding the number of slaves owned by yeomen and slaves whose duties were strictly in the yard, such as gardeners and coach drivers, to the to the number of those whose duties were in the household (Glymph, Out of the House of Bondage, 2).
111 Sarter v. Gordon, 2 Hill Eq. 121 (S.C. 1835).
112 Ibid., at 126. The emerging liberal capitalist world of the nineteenth century centered largely on the notion of contract, and as legal historian Thomas Morris has amply demonstrated, “it was here [in the law of contracts] more than in successions law that the jurisprudence of slavery incorporated the norms of the market”; see Morris, Thomas D., Southern Slavery and the Law, 1619–1860 (Chapel Hill: University of North Carolina Press, 1996), 433–34Google Scholar. As a general rule as in the case of all other personal property, the remedial enforcement of contracts involving enslaved persons, whether husbands, wives, or progeny, was to quantify their complex humanity (and utility) into monetary damages based on their market price, a quantifiable measure of their individual worth. Awarding damages as an appropriate remedy rested on the principle of the interchangeability of enslaved blacks as servants or laborers similar to that of personal goods or chattels, seen as “often perishable and transient in nature and not always capable of being decreed in specie as land may be,” easily replaced by their market value as a complete measure of their worth and utility (ibid.).
113 Sarter, 2 Hill Eq. 121 at 134.
114 Ibid.
115 Ibid., at 130.
116 Ibid., at 133, 134.
117 Young v. Burton, McMul. Eq. 255 (S.C. 1841) at 265.
118 Ibid.
119 Ibid., at 266. For an equally assertive opinion on the right of a planter to specific delivery of his enslaved workers in the context of the paternalistic efforts and intentions of the master, see Eddings, Rich. Eq. 301 at 306–307.
120 Huger, 9 Rich. Eq. 217 at 238
121 Ibid., at 222
122 See Pease, William H. and Pease, Jane H., James Louis Petigru: Conservative, Southern Dissenter (Athens: University of Georgia Press, 1995), 105Google Scholar, for an interpretation stressing the economic indispensability of Jackey as motivating the family dispute.
123 Huger, 9 Rich. Eq. 217 at 238.
124 Johnson, Soul by Soul, 107.
125 See also for slave ownership as basis of family honor, albeit in a medieval European context, Blumenthal, Debra, Enemies and Familiars: Slavery and Mastery in Fifteenth-Century Valencia (Ithaca, NY: Cornell University Press, 2009), 122–53Google Scholar.
126 In the 1850s the courts grappled with several cases in which white men asserting dominion over enslaved blacks instead purportedly helped them escape through railroad, steamboat, and stage carriers. In these cases, the courts intricately assessed what behavioral and character displays of mastery could reasonably excuse common carriers from liability to the owner of the escapee, constructing class boundaries that separated “vagabond” behavior of some white men as contrary to masterly disposition and conduct; see Dr. Sill v. Railroad Co., 4 Richardson 154 (S.C. 1850) at 155, also 160–61 for descriptions of similar cases decided by Southern courts.
127 For constructions of slave masters within antebellum courtrooms as powerful, in control, and invulnerable, demonstrating a reputable expertise in slave management, see Gross, Ariela J., Double Character: Slavery and Mastery in the Antebellum Southern Courtroom (Princeton, NJ: Princeton University Press, 2000)Google Scholar. As an example of a case that pivoted on the depiction of deficient master as an over “indulgent,” “perfect idiot,” see Reeves v. Gantt, 8 Rich. Eq. 13 (S.C. 1855); in this case, the court acknowledged the “love” of an old master for his slaves despite his economic “imprudence” as peculiar to his individual circumstances and not implying incompetence. Older mistresses, on the other hand, had both gender and age operating against them when claiming autonomy over the fate of their enslaved workers and were doubly unsuccessful; see, for example, Owens v. Simpson, 5 Rich. Eq. 405 (S.C. 1853).
128 For categorization of judicial responses as affirming, tolerating, or disparaging of white masters who bequeathed property to enslaved female partners and their children in their wills, see Jones, Fathers of Conscience, 21–42.
129 See Floyd v. Floyd, 3 Strobhart 44 (S.C. 1848) for discussion of how (white) family-based likes, dislikes, attachments, and persuasions, however “unreasonable,” would not amount to “undue influence” to void a competent man's will when legally expressed (pp. 53–54).
130 Belcher v. McKelvey and Tucker v. Belcher, 11 Rich. Eq. 9 at 10.
131 Ibid., at 11.
132 Ibid., at 14.
133 Ibid., at 15.
134 Ibid., at 21.
135 Ibid.
136 Within common law, as practiced in South Carolina, nearest in blood and domestic relations were given greatest preference even over distant common-law heirs in determining the will distribution and construction; see Noble v. Burnett, 10 Richardson 505 (S.C. 1857).
137 On the overwhelming nonmarital, childless status of white fathers who bequeathed property or freedom to enslaved partners and/or their enslaved children, see Jones, Fathers of Conscience, 10, 28.
138 Slavery's defenders were apt to counter abolitionists’ claims of widespread interracial “licentiousness” perpetrated by white men on enslaved women by characterizing such conduct as exceptional cases of abuse of “natural instinct”; see, for example, Hammond, Two Letters, 15.
139 Jones-Rogers, They Were Her Property, 9.
140 Jolliffe v. Fanning, 10 Richardson 186 (S.C. 1856) at 192.
141 Ibid.
142 Ibid., at 200.
143 Ibid.
144 Ibid., at 200, 201.
145 Ibid., at 201.
146 Willis v. Jolliffe, 11 Rich. Eq. 447 (S.C. 1960), 493–94, 495.
147 Ibid., at 494.
148 “Testimony and Cross-Examination of Ary Woolley,” Willis at 498.
149 “Depositions of Dr. John G. Guigard,” Willis at 503.
150 “Testimony of Edward Harwood,” Willis at 503
151 Willis, 11 Rich. Eq. 447 at 515
152 Ibid., at 516.
153 Jones, Fathers of Conscience, 52.
154 In all other cases, master-fathers were expected to eschew “indulgence” of their natural enslaved children, and any affection or attachment thereto was viewed as delegitimizing their rights as masters, especially vis-à-vis third parties such as creditors or common carriers. See, for example, O'Neall v. Railroad Co., 9 Richardson 465 (S.C. 1856); Mallet v. Smith, 6 Rich. Eq. 12 (S.C. 1853); Morton v. Thompson.