Legislating Reproduction and Racial Difference

The first enslaved Black people to be forcibly brought to the Virginia colony arrived in 1619. The population of enslaved people in the colony grew quickly in the following decades. Soon, some enslaved Black people had children with free white people, creating a generation of multiracial children who were not easily categorized as enslaved, free, or indentured. To put a stop to this status confusion, Virginia legislators passed laws codifying race-based slavery and passing enslavement from mother to child. The legislation specifically targeted women because it was difficult to prove who a child’s father was.

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. White wives, daughters, and servants of plantation owners did not count toward a plantation owner’s taxable people. The laws suggested 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. Many white women also worked in the fields as indentured servants. But this act encoded racial difference into law.

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 white men and enslaved women. This law made it profitable for white men to get the women they enslaved pregnant. This was also the legal foundation of the infamous “one-drop” rule, which was enacted in the United States in the 1800s. This law determined that any person with African ancestry anywhere in their family tree was automatically a Black person. This practice persisted in parts of the United States well into the 1900s.

The 1691 law made interracial marriage illegal. It also set up severe punishments for white women who gave birth to the children of Black men. The Virginia Assembly hoped this would put an end to white women giving birth to free mixed-race children. The punishment of indentured servitude allowed the system 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 in Loving v. Virginia in 1967.

• commodity: Something that can be bought or sold.
• Grand Assembly: The governing body in the 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.