IN THE MATTER OF COLOR: Race and the American Legal Process: The Colonial Period

Leon Higginbotham, a federal judge and vice chairman of the Eisenhower Commission on Violence, offers the first of a projected multi-volume study of the law and black Americans; one indeed hopes for improvement. What little is presently understood about colonial slave codes is derived from scholarly articles and more general, book-length analyses Winthrop Jordan, Carl Degler, Peter Wood, and Edmund S. Morgan; and despite Higginbotham's obvious labors, the reader had best stick with such sources. The research is inconsistent; though Higginbotham examined key statutes and decisions, these materials alone give no sense of the social fabric. There is only one citation from the William and Mary Quarterly, the most prominent journal on colonial America, while other seminal works such as Craven's White, Red and Black (1971) are not acknowledged. By concentrating on six colonies, moreover, Higginbotham provides too much detail for specific cases and blurs continuities in colonial slave law. More importantly, the author operates in contradiction of his own view of the law's meaning in society. He recognizes, after Holmes, that judges are prisoners of ""experience,"" that laws merely codify behavior or an ideal type of behavior. Yet, incredibly, he begins and concludes his work by speculating that the law and its draftsmen could have fashioned a different, more humane social order. When has the law not reflected dominant social norms? Higginbotham is left describing rather than accounting for the legal instruments of a heinous subjugation of one people by another. He rightly points to shifts in colonial attitudes towards slavery; notes the very early attempts to free a few slaves; and demonstrates that despite earlier dates of emancipation, northern colonies continued to legally sanction prejudice. Still, the weaknesses of the author's ambitious endeavor remain, and a book that could have been vitally important is simply disjointed and dull.