Book Review by Robert J. Cottrol and Raymond T. Diamond
For most of American history, the legal status of black people was separate and clearly not equal to the status enjoyed by whites. In the Matter of Color, by A. Leon Higginbotham, explores the origin of the laws which governed slavery in the American colonies. His work examines fundamental issues in legal and social history, and raises new questions about the law's role in determining the future of race relations in this society.
In the Matter of Color is the first volume of a series which will examine the legal underpinnings of racial injustices in America. The study begins in 1619, the year blacks arrived in Virginia, and will end with the enactment of the Civil Rights Act of 1964. This first work explores the early American legislative and judicial acts which formed the basis for the legal treatment of slaves and their descendants. Higginbotham attempts to determine the origin of slavery in English colonial America by comparing the development of English slave law with that of the American colonies.
In examining the treatment of slavery in colonial America, Higginbotham undertakes separate analyses of the laws of six representative colonies. Among the colonies studied are Virginia, South Carolina, and Georgia, colonies which showed increasing degrees of harshness and severity in determining the character of slavery, and Massachusetts, New York, and Pennsylvania, which demonstrated an ambivalence regarding slavery.
While this has a certain symmetry, three slave and three free states, one might have wished for a much broader study. There are other states with interesting histories of race relations that deserve exploration: Rhode Island, a New England colony that in the seventeenth century attempted to outlaw slavery and the foreign slave trade, only to become in the eighteenth century a state with thriving plantations worked by slave labor; North Carolina, whose laws were among the first to allow free Negroes to vote, a tradition which continued until 1835; New Jersey, where there is evidence that some slaves were legally permitted to vote in general elections; or Maine, New Hampshire and Vermont, which by the end of the eighteenth century accorded their small black population almost total de jure equality with the white population. Interesting as these possibilities are, Judge Higginbotham's state selections are sufficiently descriptive to allow analysis of the law's response to demographic and economic conditions and the role of the non-English settlement in developing the law of slavery and race. Together, the six states Higginbotham has chosen present a picture of our young nation groping from uncertain treatment of slavery toward two different legal and social viewpoints. Insofar as Higginbotham's description of the early development of slavery goes, it is accurate. The questions this essay raises are whether that description is complete and what issues it leaves for further study.
The remainder of this essay is divided into four parts, the first of which will suggest that Higginbotham's analysis is incomplete as a history of the law of slavery. The second part of this essay will suggest that Higginbotham's examination of the origins and development of English law relating to slavery overlooks the virulence of English xenophobia as a factor in the American approbation of slavery as a legitimate status under law. The third part will suggest the types of data that would assist in making Higginbotham's analysis complete. The final section will consist of a brief conclusion offering suggestions as to what In the Matter of Color portends for the work of future historians.
About the Author
Robert J. Cottrol. Assistant Dean of Arts and Sciences and Lecturer in History, Georgetown University; A.B., Ph.D., Yale University.
Raymond T. Diamond. A.B., J.D., Yale University; Member of the Bars of Louisiana and the District of Columbia.
Citation
56 Tul. L. Rev. 1107 (1982)