Academic journal article Journal of the Early Republic

A Crisis of Legitimacy: Defining the Boundaries of Kinship in the Low Country during the Early Republic

Academic journal article Journal of the Early Republic

A Crisis of Legitimacy: Defining the Boundaries of Kinship in the Low Country during the Early Republic

Article excerpt

What makes a family? Who decides? Recent scholarship on the history of slavery, racism, and the antebellum southern family has brought new evidence and interpretations to bear on the worlds made by white men, enslaved and free women of color, and the children they shared. In a society based on the chattel principle-the interchangeability of human beings as commodities-and the control of black women's productive and reproductive labor, conjugal choice was fragile. Within these hostile latitudes, social historians have written eye-opening studies of relationships between white men and women of color that empowered some African Americans to rise to positions of security and wealth, and have performed intensive, multigenerational research into families whose members crossed the color line.* 1

Legal paper-wills, trusts, manumissions-helped define these relationships. Testamentary freedom, the right of the testator (will drafter) to dispose of his wealth however he wished, even in socially unacceptable ways, fostered what Adrienne Davis calls a "private law of race and sex." It permitted masters to transfer property and status to African Americans in defiance of the formal laws and logic of slavery, while reinforcing the subordination of blacks and women. Private property rights became a public concern when legitimate heirs challenged these dispositions in court. In the tug-of-war between upholding the freedom of the will and condemning social deviance, state court judges were inconsistent. Some lauded these transfers, finding in them the fulfillment of paternal duties to dependents, while others overturned the wills, suspecting they were the product of undue influence by manipulative women of color. Courts also considered whether the plain fact of making a deviant will was proof of the testator's mental incapacity. But as a "vessel of truth," the last will and testament was more than a locus for the hegemonic power of the master class, the push-and-pull of private and public power, or the tenuous agency of African Americans. It provides a statement of intent that scholars should take seriously. As Kevin Maillard points out, "[a] surprising gap in the legal literature demonstrates a failure to contemplate race in wills as a presumptive indicator of family membership."* 2

Public policy, of course, held otherwise. The laws of intestate succession passed after the Revolution recognized a lineal family structure. If a property owner did not draft a will, his children inherited equal portions of his estate, subject to the dower rights of his wife. Children bom outside of marriage and unmarried sexual partners were entitled to nothing. By drafting a will, the testator used property ownership to define his own understanding of the boundaries of his household beyond the conjugal family defined by the early republican law of intestacy. "Legitimate" children could be divested in favor of siblings, friends, favored servants, mistresses, and sons and daughters bom out of wedlock. Indeed, the normative model of succession corresponded poorly to the "intense class cohesion and cooperation" of the elite families of Charleston, who consolidated political and economic power through horizontal "emotional attachments of kin," sharing wealth and opportunities for education, marriage, and business among siblings, cousins, and close friends.* * 3

Combining social and legal history, this article examines how kinship, property relations, and racism shaped an unusual sibling network among the Simons family of Charleston. Five Ashkenazic Jewish sons were bom in England and moved to the Low Country in the years surrounding the American Revolution, where they became wealthy merchants, land speculators, and slave owners. Like the planters they emulated, they had sexual relationships with free and enslaved women and maintained close economic ties with their mixed-race namesakes. Their choices in life unleashed troubling questions as they died, producing three interlocking inheritance disputes. …

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