Not Only Bastards, But Slaves
In 1662, the Virginia General Assembly gathered to craft legislation addressing what its members deemed were the colony’s pressing problems. All gathered were English. All gathered were men. All gathered were self-identified Christians. And all gathered were committed to the colony’s burgeoning racialized slavocracy.
These social locations and common commitment surfaced in a penal law the assembly passed about sexuality.
1662. Act XII. Children got by an Englishman upon a Negro woman should be bond or free according to the condition of the mother, and if any Christian shall commit fornication with a Negro man or woman, he shall pay double the fines of a former act.
The assembly’s penal decree about interracial sexuality is short but dense. It opens by discussing the children of socially polarized parents: Englishmen and Negro women. “Englishman” is a precise code for “a free-White-Christian-English-male.” “Negro woman” is less precise: It codes for “a Black-non-Christian-woman,” thus eliding the woman’s national or tribal heritage and leaving undesignated her social status as enslaved or free.
Having flagged the children of a socially asymmetrical couple, the penalty proceeds by stressing the limited application of normal English law. Traditionally, English law deemed that a child’s status followed their father’s status. The assembly refused to apply this paternalistic logic to the progeny of Englishmen and Negro women. The status of these children followed the maternal line: If their mother was free, they were free; if she was enslaved, they were enslaved. And at this point in colonial Virginia’s history, enslavement was perpetual by legal default. The socio-economic consequences of this law were enormous. As Judge and legal scholar A. Leon Higginbotham Jr. writes: “Once it was established that the black woman’s child took the mother’s status, the master class gained a crucial economic advantage—its labor force reproduced itself.” The thousands of illicit children of free White male slavers and enslaved Black women “were not only bastards, but slaves.”
The penalty’s midpoint introduces another social polarity: “Christian” and “Negro.” The former is the unmarked category “White Christian”; the latter is the unmarked category “Negro Heathen.” Hence, “Christian” is racially coded while “Negro” is religiously coded. And using this multi-layered discourse, the assembly decrees that fornication between any Christian and any Negro is profoundly immoral: It demands double the usual fine for fornication.
Law, gender, economics, race, sexuality, slavery, parents, progeny, and Christianity—the Virginia General Assembly crafted a penal code that put each in service of the colony’s growing slavocracy. It enriched and advantaged white slavers and the English empire while it plundered and shackled the African diaspora. Indeed, what was a doubled fine to a bastard-producing white slaver who could continue to grow his labor force through the Black women he owned? Given colonial Virginia’s racial demographics, the answer appears to be “not much.”
