Excerpted From: Lauren Feldman, Creating Law Through Regulating Intimacy: The Case of Slave Marriage in Nineteenth-Century New York and the United States, 41 Law and History Review 119 (February 2023) (68 Footnotes) (Full Document)


LaurenFeldmanIntrinsic to the logic of the United States as a slave-holding nation was the idea that enslaved people could not form legalized marriages. Doing so would upset the delicate framework that held slavery together. If a man and woman had a legalized intimate attachment, a slave master's authority over their slaves would be disrupted. Contemporary legal norms regarded enslaved people as property, and provided that enslaved people did not possess the legal capacity to contract marriage that understandings of nuptials ostensibly required.

But in 1809, as part of New York's process of gradual emancipation, the state's jurists passed a law providing that all marriages contracted by individuals who had been or currently were enslaved would be considered legal matrimony. This law constituted a considerable transformation in the lives of enslaved people. Those living in bondage had the opportunity to have their two-person, intimate partnerships recognized by the state. Other enslaved individuals, who practiced different kinds of intimate arrangements, likely recoiled at the notion that New York state favored the formation of one particular kind of monogamous marital attachment. Simultaneously, this law incorporated many African Americans within the legal and financial obligations of Anglo-American coverture. Under this conception, a husband would be legally required to provide for his wife and any children that the marriage resulted in. Black people felt this change personally, but it also was important to New York officials who managed poor relief. New York state privatized financial support within African American families, rather than offering to these families land or financial support to establish themselves upon emancipation.

In addition to the sea change for the lives of enslaved people that this law evinced, New York's 1809 statute perpetuated new legal reasoning in New York--and in the nation more broadly--about individual states' capacity to regulate nuptials. American jurists during the early republic were deeply unsure about whether and to what degree they were empowered to legislate on the topic of matrimony. New York, for instance, did not pass a law specifying how a marriage would be conducted until 1827. Even for states with marital laws, judges frequently ruled quite leniently when couples claimed that they were wed. Jurists situated their debates over marital laws within a broad social rhetoric about the appropriate boundaries of legislation in the new republic. These deliberations were a key facet in a larger legal and social debate about how governance should work in early America. When would common-law precedent articulated and passed down by judges apply, and when would statutory regulation apply?

Ultimately, the 1809 slave marriage law would set a standard for how New York and the nation would continue to legislate on the topic of marriage. In 1827, New York passed the state's first law that specified what a marriage would consist of for all residents. More broadly, the 1809 law established an important precedent for how lawmakers continued to tie questions surrounding the management of financial claims on the state to questions about family. After Congress passed the Thirteenth Amendment abolishing slavery in 1865, Southern state governments cited New York's example and legalized freedpeople's marriages. In so doing, Southern states displaced obligations to support wives and children on to husbands, rather than offering structural remedies such as land or cash benefits. Through legalizing the marriages of slaves in 1809, New York jurists thereby instantiated standards surrounding both marital legislation and the linking of African American emancipation to matrimony more broadly. In the ensuing decades after federal emancipation, lawmakers across the states would continue to favor the marital family as the primary unit for the provisioning of financial support more generally, and increasingly passed laws governing nuptials. This article thus argues that American jurists worked out novel understandings about the state's capacity to legislate on the subject of matrimony through regulating the intimate lives of enslaved and newly freed individuals.

This article brings together three historiographies that scholars have not often treated collectively: those of slavery, state-building in early America, and a new field that I, in addition to contemporaries, am calling “the history of intimacy.” In terms of the historiography on slavery, this 1809 law has received scant scholarly attention. This article-length treatment of this statute, which overturns conventional historiographical understandings that the condition of Anglo-American bondage meant that those who were enslaved could not legally marry, contributes to new understandings of the nature of slavery itself and the processes of emancipation. With the 1809 law, New York jurists tied African American freedom to marriage while also not offering reparations, thereby privatizing liabilities for financial support within freed families. This statute was unique in the Anglo-American legal world at the time that it was passed, but it would come to set a standard for how other states would manage their emancipation procedures after the Civil War.

Second, this article contributes to the history of intimacy. Defining the term “history of intimacy” is no simple task, as the field has not as of yet coalesced under one title. Further, few historians have self-consciously applied the label themselves. In this milieu, I contend that the history of intimacy is a broadly defined intellectual project, building on existing literatures of marriage, family, and sexuality, to be taken on by scholars interested in historicizing how individuals have created and negotiated relationships in the past. It is not rigidly thematically distinct from extant scholarship on marriage and the family, but calls for new emphasis on different kinds of questions. It involves thinking broadly about how to denaturalize how relationships have been created in the past, and to value inquiring about all the possibilities and varieties that these connections may have entailed. This endeavor means examining both legal norms and lived behavior by ordinary people. This article contributes to this subfield through demonstrating how states newly came to develop legislative authority surrounding marriage in the nineteenth century, and instantiated racialized visions of monogamous marriage into their legal codes. Earlier historians of marriage have argued that states developed novel capacities about nuptial regulation after the Civil War, in response to the perceived Mormon threat surrounding polygamy and to encourage freedpeople to marry. I demonstrate how state jurists' regulation of the intimate lives of enslaved people in the early republic was central to this effort. Further, in line with other recent scholars of Black intimacy, this article takes seriously how Black people sometimes formed and created their intimate lives in ways that transcended the boundaries of the marital relationship or romantic coupledom, even and especially as state law came to favor one particular kind of monogamous, marital interaction.

Finally, this article contributes to the historiography of early American state-building by showing how matters surrounding intimacy were integral to early American debates about governance. There is a large and growing literature on the emergence of governance in early America. Much of this work has asked questions about what kind of state the United States government was developing in its fledgling years, as well as about the relative size and power of the federal government during this time as opposed to in later periods. In pursuing these threads, historians have produced abundant scholarship examining an array of institutions and processes from custom houses, to Native American regulation in the West, to marine hospitals and insurance. But historians of these topics have nearly uniformly avoided the topic of intimacy. This piece integrates the study of intimacy with this legal state-building literature. This article shows how questions surrounding the regulation of intimacy crucially constituted broader social and legal concerns about the appropriate boundaries of governance in the young United States. Further, New York politicians, and later federal politicians, came to actively construct a system of governance that favored the privatization of financial claims within families, rather than a different or broader vision of state support.

This article first presents an overview of the legal framework surrounding marriage in the early republic. Jurists debated questions surrounding a potential regulation of nuptials in broad language about the capacity of governance in early America. Then, the article transitions to discuss the passage and enactment of the 1809 slave law, particularly its impact on the lives of enslaved African Americans. Enslaved people had a range of responses to the statute. While some enslaved couples were eager to attain the status of legalized matrimony, other individuals, who practiced other kinds of intimate arrangements, were likely displeased with this turn of events. Finally, this article will explain the 1809 slave law's broader impacts on juridical conceptions about the power of the state to legislate on the topic of matrimony. Calling on New York's 1809 statute as precedent, jurists after federal emancipation replicated the logic of New York's law by legalizing freedpeople's marriages. These measures crucially helped to create the broader cruel governing logic surrounding Reconstruction. As in New York, the United States writ large did not offer reparations to African Americans, but rather privatized claims for financial assistance within the marital family, establishing a key standard for jurists' increasing encoding of marriage into the legal system for years to come.

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Going forward, the United States would continue on a path that further instantiated the primacy of the marital family within law over a more universalist vision of aid directly to citizens. The United States developed immigration policies that favored marital family unification. Jurists formulated early health insurance schemes around assumptions that medical costs would be borne within families. Economic policies continued to be predicated on the idea of two-adult households, where the man was the primary breadwinner.

There were always alternative ideas. African Americans advocated for broad-based reparation policies. Socialist activists of various kinds sought more direct aid from the state. But lawmakers increasingly inscribed into the legal code the family as the core unit of the polity. This series of decisions shaped the United States' character: the country prioritized the self-sufficiency of individual families, rather than creating a broad social safety net to protect and support all individuals it housed.

In the early republican United States, jurists deeply worried over whether they had the right to legislate on the topic of nuptials. In direct response to the process of gradual emancipation, and the potentiality of enslaved people making claims on the state, New York jurists demarcated a statutory boundary surrounding marriage for the first time. In so doing, New York jurists shaped a novel legal understanding that asserted a legislative prerogative to regulate the subject of matrimony, as well as spurred the growth of a political economy in the United States that banked on individual families' self-reliance. At the same time, these standards, passed in the age of gradual emancipation in New York, and then re-articulated by Southern states in the era of national emancipation, demonstrate the continued challenges that African Americans faced in reaping the same rights and privileges as white people in the United States, even at the very historical moments that seemingly offered ripe opportunities for a re-envisioning of racial relations.

Acknowledgments. The author gratefully thanks Martha S. Jones, Ronald G. Walters, Angus Burgin, Gautham Rao, Sarah Pearsall, Emma Teitelman, Evan Martino, and the anonymous reviewers of Law and History Review for providing very helpful feedback on earlier drafts of this article. She also is very appreciative of and indebted to the staff of the New-York Historical Society for providing access to their archive at a busy time after re-opening during the pandemic.

Lauren Feldman is a PhD student in history at Johns Hopkins University and a predoctoral fellow in the history of the Civil War Era at Penn State's Richards Center.