Fathers of Conscience: Mixed Race Inheritance in the Antebellum South (review)

Afro-French painter Jules Lion's antebellum New Orleans portrait of Ashur Moses Nathan and his son came immediately to mind upon reading the title of Bernie D. Jones's book Fathers of Conscience: Mixed-Race Inheritance in the Antebellum South. The portrait features Nathan, a Jewish immigrant from the Netherlands, in a fatherly embrace with Achille, his handsome free son of color. Largely as a consequence of such interracial familial ties, New Orleans possessed the wealthiest class of African American property holders in the United States in 1836 with 855 free persons of color paying taxes on $2,462,470 worth of property.

For the cover of Fathers of Conscience, Jones chose Thomas Satter-white Noble's The Price of Blood (1868). The painting depicts a wealthy white slaveholder in the act of selling his mixed-race son in a scene strewn with paper money and gold coins. The portrait is curiously at odds with the book's title. Even more surprising is Jones's assertion that "Louisiana was not much different from other southern states" in matters related to the rights of slaves and free blacks named as beneficiaries in wills (p.19). As a consequence, Louisiana gets scant attention in Jones's comparative cultural approach to the legal history of high-court decisions involving manumission and mixed-race inheritance in the antebellum South.

Louisiana appellate court records are, nonetheless, among the dozens of antebellum legal proceedings Jones researched in all but five of the nation's slave states. Her thought-provoking study focuses primarily on cases in Kentucky, Mississippi, and South Carolina. The litigation involved widowed, slaveholding white men whose substantial bequests to enslaved women and their mixed-race children were contested by white relatives. Her main interest centers on judges who ruled in favor of the right of a testator to bequeath freedom and property to the children they sired by their slaves. In accordance with an Anglo-American jurisprudence grounded in the primacy of property rights, the judges in these cases resisted political and social pressures to suppress such bequests. To do otherwise, they reasoned, "would destroy property rights and imperil everyone's right of ownership" (p. 154). Thus, white male slaveholders' personal property rights trumped statutory protection of human property in chattel slavery. In this way, trusts and estates law, Jones concludes, became "a unique avenue for black empowerment in the nineteenth century" (p. 155).

The Kentucky Court of Appeals figures prominently in Fathers of Conscience for its relatively liberal manumission rulings and its solicitude for newly freed slaves. Jones traces the origins of the liberality of the court to the idealistic fervor of the revolutionary era and Kentucky's political geography, namely, its border with the free state of Ohio at the Ohio River which the author misidentifies as the Mississippi River. Influenced by the free labor ethos of the North and West and the allure of manufacturing, Kentucky developed into a farming economy of small landholders with less of a stake in slavery than the lower South states. Statesman Henry Clay of Lexington, Jones emphasizes, forged his state's Whig coalition into one of the party's main southern strongholds.

Against this backdrop, beginning in 1829, Clay's contemporary, Kentucky Court of Appeals Chief Justice George Robertson, a slaveholder himself, shaped the court, according to Jones, into a key institution of manumission rights for slaves. Seeking to steer a "middle ground" between abolitionists and their proslavery opponents, Robertson described slavery as a "curse imposed on our ancestors when in colonial subjection." Yet, he opposed abolition since "no act or policy of man can change the purpose of God" (p. 85). Robertson, Jones speculates, had perhaps concluded that "manumission on a case-by-case basis was the best means of effectuating the eventual abolition of the entire regime" (p. 86).

Jones describes how the court continued to support manumission over enslavement even in the increasingly...