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Law in Colonial Virginia

Racializing Slavery

In 1705, Virginia's General Assembly passed a law aimed at sorting out some of the confusion surrounding the colony's various forms of servitude. "All servants imported and brought into the Country...who were not Christians in their native Country...shall be accounted and be slaves."11 The language was still somewhat indirect—in referring to "Christians" Virginia's lawmakers tried to put a religious spin on their rationale for enslaving human beings. But for contemporaries the meaning was perfectly clear—any African imported into the colony was a slave, not a servant. "Christians," or Englishmen, could only be held to temporary servitude, not permanent and inheritable slavery.

The law added that mulattos within the colony—people of mixed African and European ancestry—were subject to this distinctive form of service assigned to Africans as well; they too could be held as slaves. But in adding this clarification, the law pointed to the problem surrounding Virginia's transition from indentured servitude to African slave labor—in breaking Virginia into two categories, free and slave, white and black, it was difficult to draw a sharp line between the two races. By the last decades of the seventeenth century, there already existed a sizable population of free blacks in the colony—men and women who had arrived as indentured servants, served out their terms, and were now free. Many of these also had children representing a native-born population of free blacks in Virginia. In addition, the sexual barrier between whites and blacks had been broken frequently over the years, resulting in a large population of mulattos. Many of these offspring of one white and one black parent were also status hybrids. That is, many had one free parent and one slave parent, or one parent who was a servant while the other was not.

In short, as Virginia attempted to clarify its new race-based institution of slavery—as it attempted to draw a clear and easily defended line between those subject to enslavement and those not—it had to confront the fact that Virginia's racial reality was no longer simply black or white.

Policing the Racial Boundaries

For the next several decades, policing Virginia's racial boundaries became an important goal within the colony. Recognizing that if the lines between the races grew too ambiguous, race-based slavery would be hard to defend, colonial lawmakers worked to strengthen the barriers between the races—between those who could be enslaved and those who could not. This was a multifaceted legal challenge—but some parts of it proved easier to accomplish than others. For example, trimming the legal power of free blacks was relatively simple; in 1705, they were forbidden to testify in court. This process of reducing Virginia's free black population (about 4% of the state's total population in 1750) to a subordinate legal status continued in 1723 when the Assembly passed a law that denied them the right to vote.

Other measures passed during these years were equally effective in sharpening the lines between the colony's black and white residents. After 1705, a master could no longer humiliate a white servant by stripping and then whipping him without permission from the justice of the peace. Black slaves, however, could still be stripped naked and then lashed at the whim of the master. Slaves, in fact, could be subjected to a whole list of punishments declared inappropriate for white servants during these years. Branding, burning, dismemberment—few checks were placed on the imagination of the slaveholder in punishing his slaves. William Byrd II, for example, employed a grotesquely unorthodox set of methods to discipline his slaves. One young boy was forced repeatedly to drink his own urine in order, supposedly, to break him of a habit of bedwetting. Other slaves were forced to wear a bit—much like a horse—in order to control their behavior.

Through these often brutal measures, white Virginians worked to redraw the racial lines that had been blurred during the seventeenth century. They established the fact that legally and politically, free blacks possessed far fewer rights than free whites, and that a black man could be treated—even tortured—in ways that a white could not. But the task of redrawing the racial lines grew more difficult when they confronted Virginia's growing population of mulattos—and the reality of interracial sex that lay behind it.

The colony began in 1705 by trying to define a mulatto. In that year, the Assembly declared that a mulatto was the child of one white parent and the "child, grandchild, or great grandchild of a negro."12 But defining those subject to this classification was just a small part of the problem; white Virginians wanted to stem the growing mulatto population, not just identify its members. This meant taking measures to curb the relationships that gave birth to this problematic class of people.

One answer was to criminalize interracial marriage—Virginia did that in 1691. Persons marrying someone of a different race were banished from the colony. But the great majority of mulatto children in Virginia were born illegitimate; that is, they were the offspring of unmarried couples. Reducing the mulatto population was therefore tied to curbing illegitimacy.

The Problem of Illegitimacy

Illegitimacy was an old problem in Virginia. Persons that were bound in service for several years were not allowed to marry, and consequently, both men and women often formed relationships that could not be legally recognized. Illegitimacy was also a problem within England's servant class. But in Virginia the problem was far greater. The colony's gender imbalance and the weakness of its community institutions and standards contributed to produce an illegitimacy rate that was two to three times higher than England's.

Virginia responded to illegitimacy during the seventeenth century in two ways. Out-of-wedlock parenthood was treated first as a moral failure and therefore punishments generally included a public confession and some form of penance. In addition, illegitimacy was treated as a public burden as the local government was stuck with the financial responsibility of caring for the little bastards. In order to compensate the colony for this burden, the courts aggressively tried to identify and fine the children's fathers.

But for the most part, the responsibility for the "crime" of bearing an illegitimate child fell upon the mother. The sex that led to pregnancy was always treated as consensual—even when the servant suggested that she had been raped. Ancient beliefs about female sexual weakness led the courts to routinely dismiss these accusations. Moreover, female servants who accused their masters of rape were often punished for damaging the reputations of the men they named. The court lengthened the terms of service owed to Henry Smith by two of his woman servants after they accused him of rape. Jane Williams was given twenty lashes when the court concluded that her accusation against her master was just a ploy to secure an early release from her contract.13

Illegitimacy, then, was a woman's problem—and until the second half of the seventeenth century, the racial character of the couple made little difference. But in 1662, as Virginians began to increase their use of African slaves, the law began to differentiate between single-race and biracial offenses. All forms of sexual misbehavior that involved biracial couples, including bearing an illegitimate child, were assessed double the fine. In 1691, the assembly went a step further and imposed even steeper penalties on women bearing mulatto children. And even the children of these biracial couples were punished. The courts routinely bound out illegitimate children as indentured servants in order to defray the cost of their upkeep. But whereas white children were held to contracts until they turned 24, mulattos were bound to service until the age of 31.

Given the penalties prescribed for illegitimacy, and especially for bearing a mulatto child, it is not surprising that some women chose to abort their pregnancies. Folk medicine prescribed a variety of herbal concoctions that promised to terminate an unwanted pregnancy. And apparently some women went a step further, killing their newborn after birth. How frequently this occurred is unclear—but it was common enough that in 1710 the Governor's Council proposed a law expressly criminalizing the murder of illegitimate children.

But try as they might to curb the problem of illegitimacy, Virginia's authorities could not reduce the number of mulattos born into their colony. In fact, despite all these attempts to more radically separate the races, the lives—and the sex lives—of blacks and whites grew, over the course of the eighteenth century, more interconnected.

Blended Lives

Interaction between the races was unavoidable given the critical role slaves played in the southern plantation economy. But beyond the countless daily interactions demanded by their services as cooks, maids, house servants, field hands, grooms, artisans, and nannies, slaves were integrated even more intimately into the lives of the whites among whom they lived. Most white children, certainly those raised on plantations, grew up playing with the children of their parents' slave laborers. Many of the same white children were also nursed during infancy by slaves—by 1750, the use of a slave wet nurse was commonplace.

For all their anxieties about racial mixing, Virginians seemed oblivious to the ways in which their lives and the lives of their slaves had grown intertwined. Usually it took an outsider—a northerner or foreign visitor—to point out the many ways in which whites and blacks had become so physically and socially intimate. One visitor was shocked, and labeled it a "monstrous fault," that so many southern babies were nursed by black slaves.14 Another pointed out that the interaction of black and white children was corrupting the behavior and even the speech of the young whites.

The "Secret" of Interracial Sex

And then there was the ongoing matter of sex.

Interracial sex remained the worst kept secret in Virginia throughout the eighteenth century. Despite the legal and moral prescriptions against it, sex between whites and blacks was commonplace. White women and black men occasionally formed relationships. In fact, one historian has suggested that in the first part of the eighteenth century, white women bore more mulatto children than did black women.15 But certainly by mid-century, far more interracial sexual relationships were between white men and black women. Nor were these relationships confined only to poor whites. Thomas Jefferson's long-term relationship with his slave Sally Hemings provides a reminder that even the most refined southern planter could engage in these affairs. And the fact that his slave mistress was the half-sister of his wife—Sally Hemings and Martha Wayles Jefferson were both fathered by Jefferson's neighbor John Wayles—reveals just how convoluted the sex lives of Virginia's planters had become.

But as common and as convoluted as it was, interracial sex was rarely acknowledged publicly. Certainly, the mulatto offspring of these unions were not. In only a handful of instances was a mulatto child ever acknowledged in the will of white planter during the eighteenth century. And only rarely was paternity cited in manumission petitions. In one study of six Virginia towns at the end of the eighteenth century, only six of 900 slaves manumitted were the acknowledged children of the manumitting owner.16

By the end of the colonial period, slavery was securely entrenched, and its racial basis was just as securely established. To most southerners, clarifying who could and could not be enslaved no longer seemed necessary. But this was not because Virginia's lawmakers had succeeded in re-drawing the line between black and white. By the end of the colonial period, Virginia's mulatto population was larger than ever (there were 400,000 mulatto slaves in America by the Civil War).17 Some still worried about it. Thomas Jefferson suggested that women bearing mulatto children should be forced to leave the state. But his anxieties about racial mixing were greater than those of most others. These others seemed content to defend an institution based on race even though race had become an incredibly cluttered identifier—even though a simply bifurcated understanding of race bore absolutely no relationship to southern realities.

No wonder slavery was dubbed a "peculiar institution."

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