Burnham, Margaret A. “An Impossible Marriage: Slave Law and Family Law,” 1987, 187–225. http://heinonline.org/HOL/Page?handle=hein.journals/lieq5&div=13&g_sent=1&collection=journals#195.
In An Impossible Marriage, Margaret Burnham highlights the inherent conflict in slave law and family law. Her premise is that 19th century laws concerning slaves and marriage were “molded and manipulated to serve the institution’s interests.” For example, slaves were legally unable to marry and could only do so with the permission of their masters. Thus, marriages between slaves were not legally binding and could be voided at any point at the behest of the master. In order to deny slaves the right to marry, the courts “wrote slaves out of family law by declaring them to be a different kind of human being” that lacks morals. Burnham states that the real reason slaves were prevented from marrying was expediency. The institution of marriage is one in which monogamy and permanence are implicit, thus inconsistent with master’s right to sexually control and exploit them as his property. Burnham further demonstrates the inconsistencies in family law and slave law through the treatment of children. While the state was inserting its new right to protect children via parens patriae, it simultaneously allowed for the cruel conditions of children born to a slave mother and non-slave father Throughout the book, Burnham conveys the dual identities slaves held in the eyes of the law: as humans and as chattel.
This book is recommended for those interested in the formation of law. It is a relatively easy and straightforward read and the introduction does a good job of summarizing the main points.