The private law of race and sex: An antebellum perspective

In this article, Professor Adrienne D. Davis traces the interaction of race , sex, and estate law in the antebellum and postbellum South. Through a clo se analysis of intestate succession and testamentary transfers involving th e formerly enslaved, Professor Davis unearths the role of private law in re conciling and preserving both property rights and racial hierarchy. The art icle centers on a series of historical case studies involving the rights of formerly enslaved women and their children to postmortem transfers of weal th. While the law of private property generally served to reinforce racial hierarchy, these cases involved the use of property rights-specifically tes tamentary freedom-to transfer wealth from whites to blacks. Furthermore, ho noring the postmortem transfers in such cases could be read as moral tolera nce or approval of the underlying interracial liaisons. Southern courts mov ed gingerly through this terrain of race, gender, and property rights, stru ggling to maintain racial hierarchy while reaffirming the system of private property. Through these case studies, Professor Davis illuminates more gen erally the nature of the antebellum sexual economy. With this historical st udy as an illustration, she concludes that private Imv may play at least as significant a role as public law in the construction, recognition, and rei nforcement of racial and sexual relationships.