The Private Law of Race and Sex: An Antebellum Perspective

Abstract

In this article, Professor Adrienne D. Davis traces the interaction of race, sex, and estate law in the antebellum and postbellum South. Through a close analysis of intestate succession and testamentary transfers involving the formerly enslaved, she unearths the role of private law in reconciling and preserving both property rights and racial hierarchy. The article centers on a series of historical case studies involving the rights of formerly enslaved women and their children to postmortem transfers of wealth. While the law of private property generally served to reinforce racial hierarchy, these cases involved the use of property rights -- specifically, testamentary freedom -- to transfer wealth from whites to blacks. Furthermore, honoring the postmortem transfers in such cases could be read as moral tolerance or approval of the underlying interracial liaisons. Southern courts moved gingerly through this terrain of race, gender, and property rights, struggling to maintain racial hierarchy while reaffirming the system of private property. Through these case studies, the article illuminates more generally the nature of the antebellum sexual economy. With this historical study as an illustration, Professor Davis concludes that private law may play at least as significant a role as public law in the construction, recognition, and reinforcement of racial and sexual relationships.