Legislating Reproduction and Racial Difference in Virginia2021-05-25T16:24:11-04:00

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Legislating Reproduction and Racial Difference

The Virginia colony laws collected here demonstrate how the colonial government used legislation about women to shore up race-based slavery.

Content Warning: This resource alludes to sexual assault.

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Summary

Be it also enacted and confirmed that there be ten pounds of tobacco per poll and a bushel of corn per poll paid to the ministers within the several parishes of the colony for all tithable persons, that is to say, as well for all youths of sixteen years of age and upwards, as also for all negro women at the age of sixteen years. The Virginia Grand Assembly states that taxes must be paid for every man over the age of 16, and all black women over the age of 16.

Act I, Laws of Virginia, March 1643 (Hening, Statutes at Large, 1: 242).

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Whereas some doubts have arisen whether children got by any Englishman upon a Negro woman should be slave or free, be it therefore enacted and declared by this present Grand Assembly, that all children born in this country shall be held bond or free only according to the condition of the mother;  The Virginia Grand Assembly states that children inherit the status of their mother. If she is free, they are born free; if she is enslaved, they are born enslaved.
and that if any Christian shall commit fornication with a Negro man or woman, he or she so offending shall pay double the fines imposed by the former act. Any white person who is caught having sex with a black person will have to pay a fine.

Act XII, Laws of Virginia, December 1662 (Hening, Statutes at Large, 2: 170).

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And for prevention of that abominable mixture and spurious issue which hereafter may increase in this dominion, as well by negroes, mulattoes, and Indians intermarrying with English, or other white women, as by their unlawful accompanying with one another,  The Virginia Grand Assembly wants to stop the birth of mixed-race children.
Be it enacted by the authority aforesaid, and it is hereby enacted, that for the time to come, whatsoever English or other white man or woman being free shall intermarry with a negro, mulatto, or Indian man or woman bond or free shall within three months after such marriage be banished and removed from this dominion forever and that the justices of each respective county within this dominion make it their particular care, that this act be put in effectual execution,  Interracial marriage is declared illegal. Any white person who marries a person of another race will be banished from the colony.
and be it further enacted, That if any English woman being free shall have a bastard child by any negro or mulatto, she pay the sum of fifteen pounds sterling, within one month after such bastard child shall be born, to the Church wardens of the parish where she shall be delivered of such child, and in default of such payment she shall be taken into the possession of the Church warders and disposed of for five years, If an unmarried white woman gives birth to the child of a black man, she will have to pay large fine or work for the church without payment for five years.
and the said fine of fifteen pounds, or whatever the woman shall be disposed of for, shall be paid, one third part to their majesties for and towards the support of the government and the contingent charges thereof, and one other third part to the use of the parish where the offense is committed, and the other third part to the informer,  Any fines collected for the birth of illegitimate mixed-race children will be split equally between the government, the local church, and the person who reported the crime.
and that such bastard child be bound out as a servant by the said Church wardens until he or she shall attain the age of thirty years,  Any illegitimate mixed-race children will be forced to work as indentured servants for the church until they are 30 years old.
and in case such English woman that shall have such bastard child be a servant, she shall be sold by the said church wardens, (after her time is expired that she ought by law to serve her master) for five years, and the money she shall be sold for divided as is before appointed, and the child to serve as aforesaid. If the mother of an illegitimate mixed-race child is an indentured servant, she will have to serve out her contract with her first master, and then serve an additional five years for the church.

Act XVI, Laws of Virginia, April 1691 (Hening’s Statutes at Large, 3: 87).

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Background

The first enslaved people were brought to the Virginia colony in 1619. The population of enslaved people grew quickly in the 1600s. Over time, lawmakers became concerned with reinforcing the idea of difference between the dark-skinned people who were enslaved, and the white-skinned people who were their masters. Much of the legislation targets women, because their ability to have children meant they could affect the status of future generations.

By legislating the outcomes of women’s sexual relationships, the Virginia Assembly hoped to divide the two races for generations to come.

About the Document

These three laws outline the way the Virginia Grand Assembly tied race to slavery in the 1600s. The 1643 law introduced the idea of legal racial difference by making the labor of all black women, enslaved or free, a taxable commodity, while white wives, daughters, and servants of plantation owners did not count toward a plantation owner’s taxable people. This was inspired by the idea that black women labored in the fields and white women did not. In reality, white women often worked alongside their husbands and enslaved people, because all hands were needed to keep a plantation profitable, and there were many white women working in the fields as indentured servants. But this act made the idea of racial difference law, and that idea would grow over time.

The 1662 law stated that children of enslaved women were automatically born enslaved. This was to clear up the confusion over what to do with the mixed-race children born as the result of sexual relations between a white master and an enslaved woman. This law made it profitable for white men to get their female slaves pregnant. Any children born would make the owner richer. This was also the legal foundation of the infamous “one-drop” rule that any person with African ancestry anywhere in their family tree was automatically a black person, which persisted in parts of the United States well into the twentieth century.

The 1691 law made interracial marriage illegal, and set up severe punishments for white women who gave birth to the children of black men without being married. The Virginia Assembly hoped this would put an end to white women giving birth to free interracial children, while also allowing them to get more years of free labor out of any white woman who broke the law. Interracial marriage remained a crime in Virginia until the Supreme Court decision of Loving v. Virginia in 1967.

Vocabulary

  • bastard: Child born to unmarried parents.
  • bond: Enslaved.
  • bushel: A measure for dry goods equal to 64 pints.
  • commodity: Something that can be bought or sold.
  • default: Failure to pay a fine or loan.
  • disposed of: Put to work.
  • dominion: The territory governed by the Virginia Grand Assembly.
  • fornication: The crime of sexual intercourse between unmarried people.
  • Grand Assembly: The governing body in Virginia colony.
  • illegitimate: Unlawful
  • indentured servant: A person under contract to work for another person for a definite period of time without pay, usually in exchange for transport to a new place.
  • legislating: Creating laws
  • mulatto: A person with one black and one white parent.
  • parish: County.
  • poll: Election.
  • spurious: Illegitimate.
  • sterling: Silver.
  • tithable: Taxable.
  • warder: Officer.
  • youths: Young men.

Discussion Questions

  • Why was the differentiation between white and black women in the 1643 tax code an important moment in history?
  • Why were the planters of Virginia concerned about the birth of mixed-race children?
  • Why did laws about racial difference center on women? What implications would these laws have for the entire society?
  • Why did women bear the brunt of punishments for breaking these laws?
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