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9. Women and the Law
- Indiana University Press
- Chapter
- Additional Information
9 Women and the Law Whether criminals or victims of crime, Charleston women encountered the law differently based on the color of their skin, their social standing, and their economic status. Who and what they were not, as much as who and what they were, determined how the courts treated them. Judges and legislators (primarily men of the low-country master class) justi¤ed idiosyncratic treatment by declaring who was and was not a lady worthy of deference. Court of¤cials often appraised women of color as a lower order of female and, therefore, unworthy of the protection accorded ladies. White women of the laboring classes also usually fell short of behavioral expectations exempli¤ed by master-class women; the shortfall produced unfavorable court decisions, in which judges rhetorically colored women black by treating them as something less than true southern ladies. This unequal treatment reveals multiple strands of the mutually dependent legal status of women. In the process of meting out uneven justice to disparate groups of women, South Carolina courts were constructing gender as well as race, and this construction project was instrumental to slave society. Entwined, contrasting notions of “woman” proved essential to Charleston’s social organization and to South Carolina law because gender served as a principal model for social hierarchy . Municipal regulations, state statute law, and case law strove to maintain order, but the law upheld the master’s sovereignty over all his underlings. It codi¤ed the supremacy of male over female in addition to white over color. Jurists had a vested interest in perpetuating antithetical images of women because doing so justi¤ed idiosyncratic judgments, which, in turn, sustained the supremacy of the master class and forti¤ed slave society.1 Ironically, when slave women and free women of color committed nonviolent crimes like theft, they con¤rmed perceptions about their castes that reinforced Charleston society. Although theft constituted a form of rebellion and certainly inconvenienced other residents, “thieving negroe women” conformed to precisely that stereotype (thieving negroes) that infused daily life, statute, and case law: white people were honorable, but black people were devious and criminal . Charleston slave women and free women of African descent were more likely to be indicted for theft (which was second after assault in numbers of South Carolina prosecutions) than were white women of all classes. During the twenty-two-year period beginning in 1786, no women of European descent were indicted for theft.2 When women of color came to court, they confronted a confusing institutional morass, with separate courts (unless the person of color was a third party in an action between white people) and distinct punishments for slaves and free people of color. South Carolina’s black code—statutorily effective from 1740 until after the Civil War—restricted their testimony and other rights, outlined acceptable behavior for all people of African descent, and enumerated the disciplinary privileges of slave owners and non–slave owners alike. The 1740 slave code derived from Carolina’s seventeenth-century slave laws (the 1691 and 1696 acts “for the Better Ordering of Slaves”), themselves gleaned from Barbados’s statute laws and re®ective of the Caribbean origins of a substantial number of South Carolina colonists. Under this code, “negro courts,” or the Inferior Magistrates and Freeholders Courts, comprised one to two justices of the peace and two to ¤ve freeholders, depending upon the severity of the crime. These white men possessed the wherewithal to execute slaves and free people of color for more than a half-dozen offenses and to in®ict corporal punishment at their pleasure. This is not to argue the impossibility of justice for “Negroes.” Not all magistrates and judges were brutish and malevolent, and appellate courts did sustain appeals of judgments against slaves and free people of color. However, it remains true that special courts and harsher retribution underscored the subordination of Charleston’s slave women and free women of color and widened the chasm separating them from white women. Localism and notions of gender also infused court interpretations of black law as they did the state’s white law. Charleston’s power politics—the ideological and institutional constructions of power—emerged from South Carolina’s peculiar adaptation of English common law to slave society.3 The city’s slave women and free women of African descent also encountered a formidable web of extralegal authority buttressed by customary practice as well as Carolina’s separate penal code “for the better ordering and governing [of] negroes...