Family Money: Race and Economic Rights in Antebellum US Law and Fiction

Through the efforts of historians and literary critics over the last few decades, we now possess much greater understanding of enslaved women’s sexual exploitation. Under the law requiring the condition of the child to follow that of the mother, sexual violation of enslaved women without any economic responsibility on the part of white men, and indeed, often to their remuneration, was essentially sanctioned. Yet we have less understanding of a possibility that existed at the margins of slavery’s sexual economy: what if a sexual relationship between an enslaved woman and a white owner resulted in a bond that, in turn, led a southern patriarch to go against prevailing social and legal norms by financially providing for the woman, perhaps even including an effort to treat her financially as if she were his legal wife?¹

Rather than the fancy dresses, isolated cabins, and other accoutrement that notoriously accompanied enslaved women’s sexual abuse, I refer more specifically to white owners’ attempts to transfer property to their concubines. These property transfers usually occurred through the owner’s will, as he sought to move white wealth to enslaved persons who had been freed either before he died or by declaration in the will itself. Historian Dorothy Sterling notes the existence of nearly 100 such wills in the antebellum South (29). Efforts to transfer property holdings from whites to blacks raise issues more complex than the false payoffs and ugly bribery that, for example, Harriet Jacobs excoriates in her denunciation of Dr. Flint’s plan to build a sex cabin for her away from the main plantation in her well-known autobiography.² As the court cases and novels I discuss below disclose, these attempted property transfers hinge on more than owners’ bribery or romantic largesse. A crucial part of this story is the effort of black former slaves to claim white-owned property, to establish themselves as economic agents, and thereby demand what would legally be theirs as a wife or as a child but for the law’s refusal to attach legally enforceable rights to interracial coupling.

Antebellum inheritance laws regulating these and other wills’ bequests sorted and ranked relationships that stemmed from sexual bonds, determining who could own and dispose of property, who could be an heir, and even what forms property might take. Inheritance laws thus form a critical component of property law. According to legal scholar Cheryl Harris, property rights may seem self-evident or uncontroversial, but “[i]n creating property ‘rights,’ the law draws boundaries and enforces or reorders existing regimes of power. The inequalities that are produced and reproduced are not givens or inevitabilities, but rather are conscious selections regarding the structuring of social relations” (1730). Harris’s scare quotes around “rights” nicely capture the way language is used to naturalize the raw political choices that organize wealth distribution. In conflicts over inheritance, the political choices undergirding property law are fundamentally at issue. By analyzing how the law responded to white owners’ efforts to transfer property to people who themselves either recently had been, or in fact still were, legally classified as property, we can see interracial sexuality under slavery as more than an act of violence, on the one hand, or tabooed desire, on the other. Sexuality emerges instead as a contested and racialized ideological site, where wealth and its distribution could be made to seem natural and inevitable, but also where economic rights could be asserted and fought for.

This essay explores the imaginative dimensions of these interracial inheritance disputes in both law cases and literary works. The legal scenarios provided one avenue by which public economic policy permeated private life. The cases also supplied volatile material that several antebellum authors, including Harriet Beecher Stowe, Frank J. Webb, William Wells Brown, and Julia C. Collins, wove into racialized inheritance plots. Stowe, as I explain below, directly fictionalized one such case, while Collins, to give another example, simply made the disinheritance of a white planter who marries an enslaved woman the informing background of her 1865 novel, The Curse of Caste.

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