Southern Free Women of Color In the Antebellum North: Race, Class, and a “New Women’s Legal History”
Akron Law Review
Volume 41, 1Number 3 (2007-2008)
Bernie D. Jones, Associate Professor of Law
- I. Configuring Race, Gender, and Class in American Legal History
- II. African-American Women in the Antebellum United States: Enslaved and Free Women Facing the Law
- III. Formulating an Abolitionist Law Practice: John Jolliffe
- IV. Conclusion
In thinking about the status of Southern slave women newly freed in the antebellum North, it is important to think about the ways in which they experienced race, gender, and class. According to Deborah Gray White, “[they] were slaves because they were black, and even more than sex, color was the absolute determinant of class in antebellum America.”1 These women were “[black] in a white society, slave in a free society, woman in a society ruled by men [as] female slaves [they] had the least formal power and were perhaps the most vulnerable group of antebellum Americans.” This was their reality, as a result of cultural and social practices founded in law. Legal elites developed as far back as the colonial period, a law of slavery based upon hierarchical notions of humanity seen as “natural.” Blacks were inferior to whites, and it was natural that they should be enslaved, as a matter of organic law. Southern social and economic demands necessitated this legal order.
In order to conceptualize race, gender, and class in American legal history today, it is important, first of all, to explain and discuss these topics within the contours of American legal thought. Race, gender, and class can be indicators of hierarchy and status in American society, especially when they are modulated through the institutional practices of politics and law. Within the realm of American legal thought over the past century, though, American lawyers have struggled with the extent to which they believed the law was indeed about power and politics. The following diagram, figure 1, “American Legal Thought, Late 19th Century into Today,” lists the various schools of thought which have been significant, and demonstrates the relationships among them…
…If anything, the Black laws indicate further the significance of race and class in “women’s legal history,” highlighting the ways in which black women could be disempowered as a matter of law. Mixed-race slave women were not always privileged by their ties to whiteness. If they had been enslaved, they could be returned to slavery if the relatives who owned them would deny them freedom, and when they were “free people of color,” they could be denied access to public education if they did not look “white enough.” A light-skinned mixed-race slave woman, Matilda Lawrence, from Missouri, accompanied her slave owner father in 1836 on trips into the North. She expressed an interest in becoming free, but he refused to manumit her. Easily passing as a white woman, she escaped into Cincinnati and found employment. Her father hired a professional slave catcher to capture her. Upon being apprehended, she was charged as a fugitive under the Act of 1793, and eventually removed from Cincinnati.
Not only did the Black laws threaten blacks’ interest in freedom and escaping from slavery, but it also denied them the chance to have their children educated in the public schools. These were for white children only. Thus, black children were to be educated privately. But those mixed-race black children who appeared “white” could go to school with whites, as happened in the case of the Williams family, headed by an octoroon man married to a white woman. He was of 1/8 black ancestry—one of his eight great-grandparents was black. Socially, the couple was taken to be white by all who knew them, but when they hoped to enroll their children in a local public school, they were barred, until the Ohio Supreme Court clarified what it meant to be “white.” Whiteness was not limited to ancestry, but to appearance. The children appeared white, their parents lived in a white world; for the purposes of school enrollment, the children were white.
The cases brought by formerly enslaved free women of color and their children for inheritances did not involve the drama of communities caught between abolitionist fervor and pro-slavery sentiment as found in the fugitive slave cases and the earlier cases which challenged the Black laws. It is of great significance, then, that these cases escaped the public scrutiny that the other cases generated, and as a result, have not been the focus of scholarly inquiry. They provide, however, another view of what abolitionist law practice entailed. The women were struggling to be defined as “free.” State institutions in their home states had carefully defined and proscribed definitions of “family” which did not include them. The relatives of the white men to whom they had biological ties never saw them as “family,” but saw them instead as property to be owned. Thus, lawyers and testators had to be resourceful at using legal institutions and doctrines…
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