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Teri A. McMurtry-Chubb



Excerpted from: Teri A. McMurtry-Chubb, In Search of the Common Law Inside the Black Female Body, 114 Northwestern University Law Review Online 187 (December 18, 2019) (51 Footnotes) (Full Document)


TeriMcMurtryChubbMississippi and Louisiana plantation master Haller Nutt was a shrewd manager of his acquired property. The owner of over one hundred enslaved persons by 1843, Nutt was meticulous in his management of their health through various medical directives that he created, compiled, and issued to his overseers. One such tome, “Directions to in Treatment of the Sick,” instructed overseers on how to treat various ailments the enslaved suffered, including those related to enslaved women's reproductive health. Nutt instructed:

If a woman miscarries, which should never be the case in a well organized plantation, they should be treated as one that had given birth to a mature child, but allowed a longer time to stay in the house--kept longer in bed and nursed more carefully.--When women miscarry there is something wrong--she has been badly managed--worked improperly--or she has been to blame herself and should be seriously punished for it when she gets well.

Women should be carefully attended to--and such as are in the family way should avoid ploughing--and such heavy work as fit only for men--women in [sic]family way are generally more free from disease than others, and when they are sick require particular attention--and all that is generally necessary is to keep their bowels open with castor oil--and sometimes require bleeding, which is shown by their pulse.

When women complain of too much bleeding, you must attend to them--the regular and healthy courses [menses] last about one week--Enquire how long it has continued on her .... The women who were the subject of Nutt's prescribed care were his property. They were valuable for both their physical and reproductive labor, the latter more valuable as indicated by his admonition that enslaved women avoid plowing and other labor-intensive “men's work” when they were “in the family way.” Nutt's directives pertain directly to “female sexual and reproductive anatomy as it relates to what individuals experience, focusing on liberties and prerogatives recognized by the law” very definition of autonomy that is the subject of Professor Anita Bernstein's impressive and expansive book, The Common Law Inside the Female Body. Bernstein is aware of the legacy of slavery in this country, but her present account does not consider the different ways in which the common law historically resided (and continues to reside) in the Black female body. In slavery, the Black female body had no liberty or prerogatives recognized by the law. Bernstein writes:

Overall I find myself struck more by the differences, the disanalogy as it were, between oppression of persons brought to the American continent in chains from Africa and their descendants, on one hand, and oppression of women in the United States on the other, than the similarities. Unjust deprivations of fundamental rights--to vote, sue, own property, enter into contracts, and choose one's employer and employment--certainly did connect otherwise different antebellum experiences, but this book has enough to report and assess without turning the enormity of slavery into a collateral topic. Bernstein goes on to briefly explore, in about two and a half pages, some “parallels between slavery and [the doctrine of] coverture as they relate to the common law inside the female body.” She makes clear that her work will grapple almost exclusively with the contradiction of coverture and the concept of “condoned self-regard,” the ability to put oneself first, as a foundational tenet of common law. A key problem with this approach, however, is that enslaved persons were not genderless. Populations of enslaved women resided in the United States under the oppression of brutal slave regimes. Enslaved women, Black women, were deprived of the fundamental right to possess themselves because they were the property of slave mistresses and masters. Perhaps most importantly, the doctrine of coverture (espoused by William Blackstone and interpreted and expanded by judges) was part of a larger common law paradigm for family governance of which the plantation was necessarily a part.

[. . .]

As scholars engage Professor Bernstein and her perspective on the common law, they must continue to wrestle with its antithetical approaches to slavery and freedom--especially when the common law “freedom” is the right to put oneself first. If, as Bernstein argues, the common law inside the female body encompasses “freedom from much more than freedom to,” then a change in perspective is warranted for the common law inside an enslaved Black female body held as property, raped, and bred at the whim of slave masters and mistresses, with no control over the children she birthed. This history invites inquiry into what common law can reside in the modern Black female body for which the promise of formal equality remains elusive. The search for the common law inside the Black female body begins a search for a fuller, deeper, richer understanding of the common law as it affects us all.

Visiting Distinguished Professor of Law, UIC John Marshall Law School; Professor of Law, Mercer University Walter F. George School of Law.

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