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Review of in the Matter of Color by A. Leon Higginbotham

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Review of in the Matter of Color by A. Leon Higginbotham REVIEW In the Matter of Color. A. LEON HIGGINBOTHAM, JR. Oxford Univer- sity Press, New York, 1978. Pp. xxiii, 512. $15.00. Mark V. Tushnett Historical scholarship on race and slavery almost inevitably has contemporary political implications. Judge Higginbotham's book, although it deals in terms only with the law of race in the colonial period, is no exception. The preface notes the work's origin in an interchange with the President of Purdue University in 1944, in which Judge Higginbotham's protest against segregated housing for students was dismissed with a reference to the legality of segrega- tion.' As a black lawyer, Judge Higginbotham's attention returned to the role of law in ordering race relations, and he has written this book with the expressly political goal of "help[ing] us better under- stand the history we cannot escape and caus[ing] us to assume the responsibility we owe to our future. ' 2 It is far from clear, however, that Judge Higginbotham's political perspective, understandable though it may be as one held by a successful person within a liberal political system, is fully adequate to that goal. The book has three major parts, of unequal length. The bulk of the work consists of detailed recitations of the law of race in six colonies-Virginia, South Carolina, and Georgia in the South, Massachusetts, New York, and Pennsylvania in the North. The first part is imbued with a rather straightforward economic deter- minism: the law took the varying forms that it did because of the differing place slavery held in the social system of each colony, and as the economic importance of slavery grew or slacked off, the law supported the dominant economic form. The second part examines the case of Somerset,3 in which Lord Mansfield stated that slavery was "so odious, that nothing can be suffered to support it, but positive law," and thereby deprived defenders of slavery of recourse to traditional common law rules in their defense of slavery.4 This part is as deeply pervaded by a nearly pure idealism or intellectual t Associate Professor of Law, University of Wisconsin. ' A. HIGGINBORHAM, IN THE MATIrR OF COLOR vi-ix (1978) [hereinafter cited without cross-reference as Hmomis OTAM]. 2 Id. at 2. 98 Eng. Rep. 499 (K.B. 1772). rd. at 510. 1978] Review determinism as the first is by economic determinism. The final part consists of a chapter whose title indicates the perspective brought to bear on its subject: "The Declaration of Independence: A Self- Evident Truth or a Self-Evident Lie?"5 Here Judge Higginbotham the moralist, who is bound together with the intellectual determin- ist, emerges and engages in a polemic against Jefferson's hypocrisy and in an encomium to those blacks and whites who seized on the language of the Declaration as expressing the fundamental immo- rality of slavery. The economic-determinist view of the relation be- tween law and other aspects of colonial society developed in the book's first part is strikingly (at least in Judge Higginbotham's presentation) inconsistent with the view put forth in the last two parts. The reader is left with an unsatisfying sense of oscillation from one view to another. I will examine here the major divisions in Judge Higgin- botham's book, using his material to sketch out a perspective that is not driven from the pole of economic determinism to the pole of intellectual determinism-an oscillation, I suggest, that is related to the liberal assumptions about race and society Judge Higgin- botham holds. It should be said at the outset that it is, of course, a strength of the book that it lays the basis for an explanation that opposes the one offered by its author. I. THE ECONOMIC-DETERMINIsT THEME: THE ORIGINS OF AMERICAN SLAVERY A. Economic Determinism and the Legal Basis of Slavery Judge Higginbotham properly begins his study with Virginia, the first colony to use black slaves extensively. He provides a fuller account of all the statutes and the available cases involving race, servitude, and slavery than we have had before. The emergence of slavery-lifetime, hereditary, involuntary servitude-in Virginia has long posed a puzzle for scholars. The difficulty is this: slavery is a set of property relations, involving the ownership of one person by another; property relations such as ownership exist, it would seem, only as creatures of the law; yet the law in Virginia had very little to say about the particular set of property relations that consti- tutes slavery, although "servitude" was a recognized relationship. From 1619 on, we know, there were Africans held in a system that deserves the name of slavery, and that system sporadically makes its appearance in the law. For example, the Virginia legisla- 3 HIGGINBOTHAM at 371. The University of Chicago Law Review [45:906 ture in 1662 took a crucial step towards consolidating slavery by declaring that the status of children born of sexual relations be- tween Englishmen and black women would be determined by the status of the woman.6 As Judge Higginbotham says, this statute established a system in which the "labor force reproduced itself" despite widespread miscegenation.7 But this law, like others, was the product of what Judge Higginbotham calls the "piecemeal fash- ion" by which slavery and race relations worked themselves into the law. Full scale recognition of the institution of black slavery did not occur until the slave codes of 1680 and 1682.8 What Judge Higgin- botham calls the "maturation of the Virginians' legislative process," the "culmination [of] the beginning of the legislature's partnership with masters to ensure the total subjugation of the slave and colored population," did not occur until 1705. 9 For an extended period, then, slavery existed without compre- hensive legal regulation. This puzzle has elicited a variety of respon- ses from scholars. It provoked Oscar and Mary Handlin to under- take a major study that resulted in no resolution, but in an enumer- ation of the steps "by which the American environment broke down the traditional European conceptions of servitude.""0 Winthrop Jor- dan characterizes this early period as one of "unthinking decision," in which black servants were transformed into slaves by the dual operation of economic pressure and the availability of a convenient concept-a pervasive notion of "difference," reflected in the percep- tion of Negroes as "heathens" and "savages"-that could accomo- date black slavery without threatening the rights of white people.', Eugene Genovese, concerned primarily with slave society in a later period, passes over the problem in one paragraph.12 The problem is seemingly intractable because the evidence relating to it is so thin-not primarily because material has disappeared, "3 but be- cause the transformation of servitude into slavery, a process that in some sense ought to have involved the law, did not work its way into See id. at 44. Id. at 43-44. See id. at 38-40. 'Id. at 56. ' . HANDLIN, RACE AND NAONALITY IN AMEmCAN LirE 21 (1957) (originally published as Handlin & Handlin, Origins of the Southern Labor System, 7 WM. & MARY Q. (3d Ser.) 199 (1950)). " W. JORDAN, WHITE OvER BLACK 44-98 (1968). 22 E. GENOVESE, ROLL, JORDAN, RoLL: THE WoRLD THE SLAVES MADE 31 (1974). " See, e.g., HIGGINHOTHAm at 227 (noting destruction of Georgia opinions from period before 1776). 1978] Review statutes or court opinions.14 The thinness of the evidence does not seem to justify Judge Higginbotham's confident economic deter- minism, but can be used, like the curious incident of the dog in the night, as a clue to a better explanation. Judge Higginbotham's determinism comes through most clearly in his summary statements. In the introductory chapter, he writes, "a special lesson lies in tracing and trying to understand exactly how the American legal process was able to set its conscience aside and, by pragmatic toadying to economic 'needs,' rationalize a regression of human rights for blacks." 15 Evaluating New York law, Judge Higginbotham, implying the answer, asks: "When masters desired to be more lenient, the New York slave codes were not as severely restrictive on the discretion of the master. But was this greater moderation because the colony was less economically de- pendent on slave labor than were the more southern colonies?"" A final example is Judge Higginbotham's conclusion about Georgia, whose prohibition of slavery in 1735 was repealed in 1750: The purpose of the antislavery law had not been to aid the welfare of blacks, but merely to further what the trustees be- lieved were the social, economic, and military interests of whites.... Released from the restraints imposed by the trus- tees' authority, Georgia could follow what it believed were the true social and economic interests of the colony. The result was the imposition of a slave code ultimately as harsh as any found elsewhere in America.17 This economic determinism is occasionally qualified, as when Judge Higginbotham lists "a burgeoning moral and intellectual commit- ment to political and economic liberty" along with the "lack of economic dependence on the institution, an expanding white labor population, [and] a nonwhite population able and eager to sue for its freedom in the courts" as reasons for the increase in the numbers of free blacks in Massachusetts, 8 but the qualifications are not embedded in a fuller, less deterministic way of looking at things. The problem with the economic-determinist point of view, at least for the early period, is simply that the evidence will not bear 14 W. JORDAN, supra note 11, is especially careful in working around the paucity of evidence.
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