Mixed Race Studies

Righteous Fathers, Vulnerable Old Men and Degraded Creatures: Southern Justices on Miscegenation in the Antebellum Will Contest

Tulsa Law Review
Volume 40 (2005)
pages 699-

Bernie D. Jones, Associate Professor of Law
Suffolk University

Although scholars have long addressed the role of legislators and local elites in policing the color line between black and white, antebellum jurists hearing will contests also played a special role, different from the roles they played in miscegenation prosecutions, but just as effective, nonetheless. State court justices, who heard cases involving bequests to the putative slave children of slaveholding elite men, exercised their power to police by deciding when the color line had been breached. In those cases, miscegenation between white men and slave women or free women of color was not the problem, however. Instead, the color line was breached in those cases when white men recognized and accorded slave women and their mixed-race children status through manumission and property. Official recognition by white relatives meant access to whiteness. Black personal freedom, combined with access to money and land, were threats to the social order of slavery and white supremacy. Free blacks were deemed uncontrollable and arrogant, particularly when they had money. They were perceived as a bad influence upon the bonded. In the eyes of many jurists, wealthy free black status was to be denied at all costs, for the benefit of the white social order, and the white relatives or creditors seeking to establish their claim to the decedent’s estate.

In this article, I explore the attitudes of antebellum jurists towards slavery, miscegenation, and the transfer of property from elite white men to black slave women, free women of color, and their mixed-race children, as found in antebellum will contests. This article is a historical study, in which I do a case-by-case analysis and categorization of the language used by state high court justices of the South in describing the white men who left wills that gave property to black women and their children. Although these cases have been studied by historians and legal scholars in other contexts, reading these cases for the purpose of discovering judicial narratives on miscegenation has not been the focus on inquiry. As a result, scholarship on the full flavor of judicial responses to slavery is missing.

Read the entire article here.