Abstract
Science informed American jurisprudence during the age of the Revolution. Colonials used science and naturalism to navigate the wilderness, define themselves against the British, and forge a new national identity and constitutional order. American legal historians have long noted the influence of science upon the Founding generation—in particular on figures like Jefferson—and historians of American slavery have mapped the influence of science upon early American racism as organized and standardized in slave codes. Building on the previous chapter, this chapter seeks to synthesize the work of American legal historians and historians of American slavery by showing how natural law jurisprudence, anchored in scientific discourse and vocabulary, brought about biological racism that enabled laws regulating black bodies. In so doing, this chapter offers sustained treatment of law and science and their mutual influence upon slave codes, especially miscegenation statutes. Historians of slavery have acknowledged but never fully explained this mutual influence. Focusing principally on Virginia during the age of Jefferson (1743–1826), this chapter argues that early Virginians of the planter class constructed the black body as biologically inferior to justify and facilitate laws that treated blacks as inferior. This process allowed planter class Virginians to initiate lower-class whites into communities of white racial solidarity while maintaining the ideology of paternalism, which held that white domination of blacks was necessary for blacks to enjoy a decent quality of life. This chapter presents the danger of focusing on abstractions such as reason or natural law absent some anchoring in pragmatic considerations involving concrete realities.
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Notes
- 1.
‘The American Revolution, as it ran its course from 1764 to 1776—from the first beginnings of resistance down to the Declaration of Independence and the creation of new colonial constitutions—was inspired by the doctrines of Natural Law’. Ernest Baker, Natural Law and the Theory of Society: 1500–1800, ed. Otto Gierke (Cambridge: Cambridge University Press, 1934), xlvi. See generally Raymond Whiting, A Natural Right to Die: Twenty-Three Centuries of Debate (Westport, CT: Greenwood Press, 2002), 109–18, and Clarence Manion, “The Natural Law Philosophy of the Founding Fathers,” in Natural Law and World Law: Essays to Commemorate the Sixtieth Birthday of Kotaro Tanaka, ed. Saburð Yamada (Tokyo: Yuhikaku, 1954), 117–32.
- 2.
See generally David Lieberman, “Mapping Criminal Law: Blackstone and the Categories of English Jurisprudence,” in Law, Crime and English Society, 1660–1830, ed. Norma Landau (Cambridge: Cambridge University Press, 2002), 159–62. See also David Brion Davis, The Problem of Slavery in the Age of Revolution (Ithaca, NY: Cornell University Press, 1975), 343–85. Davis explains this English phenomenon as follows: “In England there was no ‘fundamental shift in values’ that mobilized the society into revolution. There was no counterpart to the American need for self–justification. No new hopes or obligations arose from an attempt to build a virtuous republic. Such phrases as ‘created equal’, ‘inalienable rights’, and ‘the pursuit of happiness’—all of which appeared in classic liberal texts—were qualified by a reverent constitutionalism that looked to Saxon precedent to legitimize ideals of freedom. The notion of man’s inherent rights, when assimilated to the historical concept of British ‘liberty’, implied little challenge to traditional laws and authorities. And by the 1790s the very idea of inherent rights was giving way to radical and conservative forms Utilitarianism” (343).
- 3.
Thomas R. R. Cobb, a jurist from Georgia and an expert on slave laws, took pains to show how science validated the idea of slaves as naturally inferior and in need of white supervision. Consider this quote by Cobb: “The history of the negro race then confirms the conclusion to which an inquiry into the negro character had brought us: that a state of bondage, so far from doing violence to the law of his nature, develops and perfects it; and that, in that state, he enjoys the greatest amount of happiness, and arrives at the greatest degree of perfection of which his nature is capable. And, consequently, that negro slavery, as it exists in the United States, is not contrary to the law of nature .” Thomas R. R. Cobb, An Inquiry into the Law of Negro Slavery in the United States of America, Vol. 1 (Philadelphia: T. and J. W. Johnson, 1858), 51.
- 4.
Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789–1815 (Oxford: Oxford University Press, 2009), 403.
- 5.
Ibid., 405–8.
- 6.
Davis, Age of Revolution, 470.
- 7.
See generally David Brion Davis, The Problem of Slavery in Western Culture (Ithaca, NY: Cornell University Press, 1966), 3–28. For a synthesis of the historical scholarship on this point, see Peter Kolchin, American Slavery, 1619–1877 (New York: Hill and Wang, 1993), 63–92.
- 8.
Davis, Age of Revolution, 276.
- 9.
James Boswell, The Life of Samuel Johnson, LL.D. (New York: George Dearborn, 1833), 132.
- 10.
James Oakes, Slavery and Freedom: An Interpretation of the Old South (New York: Alfred A. Knopf, 1990), 73.
- 11.
Ibid., 130.
- 12.
James Hugo Johnston, Race Relations in Virginia and Miscegenation in the South, 1776–1860 (Amherst, MA: University of Massachusetts Press, 1970), 186.
- 13.
Anthony S. Parent Jr., Foul Means: The Formation of a Slave Society in Virginia, 1660–1740 (Chapel Hill, NC: University of North Carolina Press, 2003), 107.
- 14.
Winthrop Jordan, White over Black: American Attitudes Toward the Negro, 1550–1812 (Chapel Hill, NC: University of North Carolina Press, 1968), 149–50.
- 15.
Oakes, Slavery and Freedom, 130.
- 16.
Johnston, Race Relations, 168.
- 17.
Ibid., 172.
- 18.
Thomas D. Morris, Southern Slavery and the Law (Chapel Hill, NC: University of North Carolina Press, 1996), 25.
- 19.
George Fitzhugh, Sociology for the South: Or the Failure of Free Society (Richmond, VA: A. Morris, 1854), 264.
- 20.
Eugene Genovese, Roll, Jordan, Roll: The World the Slaves Made (New York: Pantheon Books, 1974), 26; Laura F. Edwards, The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill, NC: University of North Carolina Press, 2009).
- 21.
Edwards, The People and Their Peace, 30.
- 22.
Ibid.
- 23.
Johnston, Race Relations, 183.
- 24.
Ibid., 190.
- 25.
Genovese, Roll, Jordan, Roll, 26.
- 26.
Ibid.
- 27.
Ibid.
- 28.
Ibid.
- 29.
Ibid.
- 30.
Oakes, Slavery and Freedom, 74.
- 31.
Davis, Age of Revolution, 273.
- 32.
See generally Frey and Egerton. There were countless factors precipitating the American hysteria over preserving slavery. I mention just this one because of its relation to American efforts to forge a new, anti-British identity. Sylvia R. Frey, Water from the Rock: Black Resistance in a Revolutionary Age (Princeton, NJ: Princeton University Press, 1991); Douglas R. Egerton, Death or Liberty: African Americans and Revolutionary America (New York: Oxford University Press, 2009).
- 33.
“I advance it therefore as a suspicion only, that the blacks, whether originally a distinct race, or made distinct by time and circumstance, are inferior to whites in the endowments both of body and mind. It is not against experience to suppose, that different species of the same genus, or varieties of the same species, may possess different qualifications.” Thomas Jefferson, Notes on the State of Virginia (New York: Penguin Books, 1999), 151.
- 34.
Ira Berlin, Many Thousands Gone: The First Two Centuries of Slavery in North America (Cambridge, MA: Belknap, 1998), 9.
- 35.
Jefferson, Notes on the State of Virginia, 145.
- 36.
Johnston, Race Relations, 165.
- 37.
Jordan, White over Black, 429.
- 38.
Oakes, Slavery and Freedom, 29.
- 39.
Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson, 2nd ed. (New York: M. E. Sharpe, 2001), 134.
- 40.
Jefferson, Notes on the State of Virginia, 145.
- 41.
Genovese, Roll, Jordan, Roll, 31.
- 42.
Johnston, Race Relations, 183.
- 43.
See generally Annette Gordon Reed, Thomas Jefferson and Sally Hemmings: An American Controversy (Charlottesville, VA: University of Virginia Press, 1997); Annette Gordon Reed, The Hemingses of Monticello: An American Family (New York: W. W. Norton, 2008).
- 44.
Berlin, Many Thousands Gone, 78–79.
- 45.
Barbara K. Kopytoff and A. Leon Higginbotham, “Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia,” Georgetown Law Journal 77, no. 6 (1989): 1967.
- 46.
Paul Finkelman, “Crimes of Love, Misdemeanors of Passion: The Regulation of Race and Sex in the Colonial South,” in The Devil’s Lane: Sex and Race in the Early South, ed. Catherine Clinton and Michele Gillespie (Oxford: Oxford University Press, 1997), 124.
- 47.
“Marriage bans indicate that some whites and blacks ignored the strictures against what Chesapeake lawmakers later termed ‘shameful’ and ‘unnatural’ acts and instead joined together as man and wife without regard to colour. On the eastern shore of Virginia, at least one man from every leading free black family—the Johnsons, Paynes, and Drigguses—married a white woman. There seems to have been little stigma attached to such unions.” Berlin, Many Thousands Gone, 44.
- 48.
“In some measure, the tiny black population scattered across the landscape created a social demography that compelled interracial mixing. In many places, there were simply too few people of African descent to create a community with its own distinctive aspirations, ideals, and institutions. But the absence of such a community was more than just an artifact of the Chesapeake’s population dynamics. Many blacks and whites appeared to enjoy one another’s company, perhaps because they shared so much. Behind closed doors, far from the eyes of suspicious slaveholders, black and white joined together to drink, gamble, frolic, and fight … Inevitably, conviviality led to other intimacies.” Berlin, Many Thousands Gone, 44. For more on the commonness and complexity of miscegenation in the colonies in general and in Virginia in particular, see Jordan, White over Black, 136–78.
- 49.
Johnston, Race Relations, 184.
- 50.
Ibid.
- 51.
Ibid.
- 52.
Ibid., 185.
- 53.
Morris, Southern Slavery, 10.
- 54.
Quoted in Jordan, White over Black, 144.
- 55.
Quoted in Genovese, Roll, Jordan, Roll, 418.
- 56.
Oakes, Slavery and Freedom, 25.
- 57.
Ibid.
- 58.
Ibid.
- 59.
Egerton, Death or Liberty, 223–24.
- 60.
Oakes, Slavery and Freedom, 26.
- 61.
Genovese Roll, Jordan, Roll, 47.
- 62.
Brook Thomas, Civic Myths: A Law-and-Literature Approach to Citizenship (Chapel Hill, NC: University of North Carolina Press, 2007).
- 63.
Cobb, Inquiry, ccii.
- 64.
Ibid.
- 65.
Oakes, Slavery and Freedom, 130.
- 66.
Ibid.
- 67.
Genovese, Roll, Jordan, Roll, 46.
- 68.
Ibid.
- 69.
Morris, Southern Slavery, 17.
- 70.
Ibid.
- 71.
Ibid.
- 72.
Genovese, Roll, Jordan, Roll, 47.
- 73.
“This is how southern law put the slave outside of society. Without rights, the slave could form none of the basic economic, political, or personal relationships that together bring society into existence. Slaves could not hire out their labor; they could not enter into economic contracts; they could not own property; they could not participate in politics; they could not exercise the rights of marriage. The slave everywhere was the perpetual outsider; in the liberal South the slave was made an outsider through the specification of rights denied. Where the patriarchal ethos held that even the lowliest persons were part of an organically unified social hierarchy, the denial of rights placed the slave outside society altogether. Thus the inversion of liberalism was very different from a reversion to patriarchalism.” Oakes, Slavery and Freedom, 70.
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Mendenhall, A. (2020). Natural Law and Racist Jurisprudence in Early Virginia. In: The Three Ps of Liberty. Palgrave Studies in Classical Liberalism. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-39605-3_3
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