In the Matter of Color: Race and the American Legal Process 1: The Colonial Period

Race and the American Legal Process #1

by A. Leon Higginbotham

Focusing on the actions and attitudes of the courts, legislatures, and public servants in six colonies, Judge Higginbotham shows ways in which the law has contributed to injustices suffered by Black Americans

Genres: History, Law, Nonfiction, Social Justice, Race, American History, African American

544 pages, Hardcover

First published June 15, 1978

About the author

Aloysius Leon Higginbotham Jr. was an American civil rights advocate, historian, presidential adviser, and federal court judge. From 1990 to 1991, he served as Chief Judge of the United States Court of Appeals for the Third Circuit.

Reviews

[Jeremy Canipe · Rating 4 out of 5]

The late A. Leon Higginbotham, Jr. was a Federal judge and law professor. A brief consideration of his personal story may help explain the trajectory that led to this very fine book.

Born in 1928, in Trenton, New Jersey, Judge Higginbotham attended segregated schools, but, owing to his academic performance and his mother's efforts, he became the first African American admitted to the area's academic high school. Upon graduation at age 16, Mr. Higginbotham was admitted to Purdue University, but transferred to Antioch College due to the discriminatory treatment. In particular, in the preface, Judge Higginbotham recounted the story of the housing practices that led to Mr. Higginbotham and the few black students lacking heated sleeping quarters in the brutally cold winter.
Then, he went to Yale Law School, but was not able to obtain employment at any leading law firms due to race. He set an appointment with the university's president and stated his case. Yet, Purdue's president told him that the university was not required to provide equal access to heated university housing to black students. In short, such ill treatment stood out as the reason why a young man who had planned to become an engineer became a lawyer, a judge, and a law professor with a deep intellectual and personal interest in the American legal system's historical mistreatment of African Americans.

Turning to the book, as promised by the title, Judge Higginbotham focused a majority of his attention on the legal status of Africans and African Americans in a number of England's colonies in North America in the colonial era. He looked at the statutes and cases decided in Virginia, Massachusetts, New York, North Carolina, South Carolina, Georgia, and Pennsylvania. In each case, the trend was towards the limitation of legal rights for people of African descent and towards enslavement.

Some interesting highlights included (1) the movement from an ability to self-purchase under Dutch colonization to a closing of this escape hatch from enslavement under English rule in New York; (2) the entirely harsh beginning of racial slavery imported into South Carolina by Englishmen from Barbados; (3) the initial resistance to slavery in Georgia as a means to provide opportunity to poorer Englishmen in Georgia; and (4) the anti-slavery sentiment of Germans and Quakers in early Pennsylvania.

Another subject that I would like to learn more about was the brief mention of lawsuits seeking to limit the impact of gradual emancipation in Pennsylvania. Given that this book is now 41 years old, that might be a topic covered elsewhere.

Judge Higginbotham devoted substantial attention to the English experience with slavery in the 1700s and the Sommerset case, decided in 1772. What I found most helpful, both as a historian and as a lawyer, was his consideration of the methods of presentation and argument of the legal counsel on both sides of the case. Judge Higginbotham had better insight and appreciation of these choices due to his legal career.

He finished the book with a comparatively shorter consideration of Declaration of Independence. Most interestingly, and I think correctly, Judge Higginbotham arguee that the broad language of the Declaration of Independence has been able to serve as an inspiration for later actors seeking to expand the actual reach of liberty in the United States to people who had not, historically, enjoyed equal rights.

While there are limits to a focus on statues (what the legislature thinks are its society's views of the best public policy) and case laws (specific legal conflicts), there was much to think upon in Judge Higginbotham's book. Perhaps no longer ground breaking, The Color of Law is worth your time as a primer and as a picture of the thinking on race and law in American history from a man who labored to improve its future course.

[Joshua Bruner · Rating 4 out of 5]

Information that is rarely encountered elsewhere, this book introduced me to an realistic account of the "matter of color" in the United States. Described in detail is a history of racial defintion beginning at the precolonial times of the "new world". A must read for anyone interested in the history or current state of race relations in the U.S.

[Vanessa Holloway · Rating 5 out of 5]

Instant classic. Nothing touches it.

[Sierra Elise · Rating 5 out of 5]

This book extensively covers the slave laws, customs, and attitudes of the colonists in Virginia, Massachusetts, New York, Georgia, and Pennsylvania. He introduces Virginia as the leader of colonial chattel slavery. In 1705 Virginia enacted its first law codifying slavery and revised it several times throughout the rest of the century. Blacks were only allowed to testify in court against other Blacks, as they were considered closer to cattle than humans. Although slavery did not hold similar economic exploitatory value in Massachusetts as in the other colonies, the laws and power structure endorsed it, and the settlement protected the master class. New York was a unique case for colonial history in which the first forty years under Dutch rule, slaves enjoyed a variety of freedoms and privileges not afforded to any other colony’s enslaved Black enslaved population. However, by the mid-1600s, Britain assumed control, and slavery carried on similarly to other colonies. South Carolina was unique in its Barbodian influence, which never brought to question the morality of slavery. The colony built upon this, mandating statewide control over slaves and limiting the power of discretion a master could have with his slave. South Carolina allowed Black runaways to be put to death and enslaved people to suffer extreme bodily harm or even death while legally protecting the White perpetrators. Georgia had been the first colony to outlaw the institution of slavery and prohibited free Blacks from their colony in its’ early stages solely to protect the poor white residents. However, there were many documented cases of slavery existing without any punishment for violating the statutes of the colony. Eventually, by 1750, Georgia enacted a slave law and, in the following years, accepted shipments of slaves and harshened their stance on the practice itself. The last American colony discussed in the book is Pennsylvania, mainly because of how the unique demographic of the colony influenced its stance and timeline of chattel slavery. Higginbotham details the hypocrisies within the practice and legalization of slavery with the Quaker beliefs, arguing that the potential for profit and disdain for Blacks outweighed any grievances they may have had about its morality. The book then introduces slavery customs and laws in the colonial ruling country of England. The background leads into the famous case of James Sommersett, a slave who escaped slavery while abroad with his master in England and fought against the abduction to Jamaica to be sold back into slavery. Although this case did not have significant immediate effects, it was a monumental moment in history as it challenged the right to own and sell another man. The U.S. eventually separated from England, and upon writing the Declaration of Independence, the founding fathers included language that all men are to be created equal, which would also be used to challenge any legal justification for the disenfranchisement of African Americans.
This book leads well to thinking about how a new nation was built on the principles of equality of all men when half of a million Black people were owned by the only people who had any significant legal rights. Higginbotham does an excellent job of pointing out the juxtaposition of laws versus real practices within a colony. He disagrees with those who argue that the abolition of slavery had anything to do with a deep-seated empathy for Black slaves on a wide scale. He argues that while some may have been sentimental to the cruel livelihood of the Black population, much of earlier colonial law prohibiting slavery or loosening the restrictions of the practice was out of fear of revolt and protection of the White colonists.

[Maya · Rating 4 out of 5]

I was recommended this book by a professor. First off, I loved the author. He was my professor’s professor in law school. He went through so much and faced so much discrimination. I am so glad that - despite all of his challenges - he was still able to achieve so much! This book provides an in-depth analysis of the history of slavery in various states like New York, Pennsylvania, Georgia, and more. It was sad to read about but I also think it is so important to learn about.

[Roy Timpe · Rating 5 out of 5]

A very good book. Well researched and enlightening. It shows how institution of slavery was not monolithic. Each colony had unique implementations of slavery. It was a horrible institution, but given the choice you'd be slightly better off in New England or Pennsylvania as opposed to South Carolina.

[Sohum · Rating 5 out of 5]

In less able hands this would have been dry--but the late Judge Higginbotham was a talented writer, even if his historical conclusions are at times a little overstated. Still, this is a thorough legal account of slavery in the colonial period that I have not yet seen matched.

[César Hernández · Rating 3 out of 5]

higginbotham’s “In the Matter of Color” is a wonderful introduction to the importance of law and politics to the creation and maintenance of slavery in the united states of america, both before and after independence from Britain. higginbotham, a long-time federal judge, was as detailed in historical research as he was comprehensible in his legal analysis. the final product, published 30 years ago, is a rich summary of the legal formation of race and racism in the usa with at least one valuable digression—the somersett case—into english law.

divided into several chapters each devoted to a particular colony, the book lays out the key statutes and judicial opinions that provided the momentum and justification for enslavement. given the history of racism, higginbotham’s account is not limited to enslavement of black people. though, for obvious reasons, black people occupy the central role of his book, higginbotham ably sheds light on the slavery of indigenous people, non-christians, and other undesirables. most surprising was the short discussion of quaker enslavement. yes, the enslavement of quakers, those peace loving friends of well-deserved abolitionist fame.

this book, of course, should be appreciated for its contribution to the literature on race and the law that has increased exponentially since the 1970s. more detailed work has appeared since its publication, as have works presenting a more nuanced analysis. nonetheless, this book is not merely a relic of the past to be appreciated. it is still a wonderful introduction to the lingering effect of our legal system’s racist origins.