- Race, Blood, and Gender in Southern Law
The catalyst for this ambitious canvass of southern law was Peter Bardaglio’s realization that antebellum codifiers typically placed master-slave relations under the rubric of domestic relations. Their taxonomy provides the analytical framework for his study. In Bardaglio’s view, the readiness of southern lawmakers to cluster provisions for the master-slave relationship together with those for husband-wife, parent-child, and guardian-ward attests to their perception that the relationships were connected. His objective is to trace those connections as they were played out in southern law over the course of the nineteenth century. In particular, he aims to assess the extent to which the legal regulation of the family and sexuality was shaped by the institution of slavery and then reshaped by the advent of emancipation. Accordingly, the Civil War divides this book quite literally into two parts, with the postwar segment depicted in evocative, Old Testament imagery as the time “after the flood.” Yet Bardaglio also balances the changes unleashed by the war with evidence of how the legacy of slavery cast its shadows on the legal culture of the postwar South.
As this outline suggests, Bardaglio’s probe of southern law at the nexus of race and gender is an entry point for investigating southern exceptionalism. His endnotes are a testament to scholarly controversy over how the white southern family compared to its northern counterpart, and if, in fact, it had a northern counterpart. To telescope the debate among historians into starkly reductive terms, the conflict pivots on whether individualism, liberalism, and romantic love penetrated the planter household of the South as it did the bourgeois household of the North to undermine the power of husbands and fathers, or whether male heads of southern households continued to rule their families in relatively autonomous fashion. 1 The dichotomy between bourgeois and patriarchal models of familial relations provides only one way of framing the issues Bardaglio pursues here. Reconstructing the Household owes as much to Michael Grossberg for its conceptualization of the issues as it does [End Page 412] to the social and women’s historians of the Old South. Indeed, it is Grossberg’s pathbreaking study of American family law that supplies the baseline, so to speak, from which Bardaglio charts southern deviations. 2
Tracing trends in family law over the course of the nineteenth century, Grossberg identified the emergence of a republican concept of domestic relations in which the bonds of matrimony and parenthood were broadly redefined. Jurists, he argued, actively refined and consolidated this republican model of family governance into a new and distinctive body of American law that invested both wives and children with independent legal personalities. The legal individuation of family members clearly represented a decline in paternal authority. Yet if women gained a foothold in the new legal order in their roles as wives and mothers, it was not without judicial mediation. Power, Grossberg observed, also passed from the head of the household to the members of the judiciary, who, in the process of becoming the public custodians of the family, became what he identified as “a judicial patriarchy.”
Bardaglio asserts from the start that Grossberg’s overview of family law is problematic for the slaveholding South. As the North moved toward a contractual and egalitarian model of domestic relations, the South, he insists, clung to an organic and deferential model in which slavery was the “linchpin” for sustaining a hierarchical domestic order. Thus where Grossberg cites the emergence of an individualism that was shaped by the exigencies of market relations, Bardaglio finds the persistence of a corporatism that was sustained by needs of chattel slavery. And where Grossberg highlights the drive toward rationality and judicial control in the legal ordering of the family, Bardaglio underscores the rule of the fathers in the critical realm of “race, blood, and gender” (p. xv).
Bardaglio’s thesis is amply supported by the sort of evidence he has assembled. Covering...