Mixed Race Studies

Virginia Bastardy Laws: A Burdensome Heritage

William and Mary Law Review
Volume 9, Issue 2 (1967)
Article 8
pages 402-429

Dominik Lasok, Professor of Law
University of Exeter

The theory that British settlers brought with them as much of the common Law of England as was appropriate to their circumstances in the New World, propounded by judges’ and scholars of the past, rings true because it is a general statement and flexible; and is hardly concerned with the quantum of the law actually adopted. Indeed no detailed evaluation has been attempted. It seems that such an evaluation would show that in some areas the connection between the colonies and the mother country should be a source of pride for both countries, but in others only an embarrassing and burdensome heritage. Virginia bastardy laws seem to fall into the latter category.

A comparative study of the law of bastardy of England and Virginia demonstrates a curious affinity at the source and throughout the evolution of the two systems. In some respects the law of Virginia outpaced that of the mother country, yet when English law took a turn towards a modern outlook during the fourth quarter of the last century the law of Virginia not only stopped in its tracks but, one might say, lapsed into the primitiveness of the common law doctrine…

…Marriage and Children’s Status

From the very start the inadequacy of the English law of marriage became manifest as it was necessary, as early as 1628, to make a proclamation forbidding marriage “without license, or asking in church.” In contrast the English, as we have noted earlier, muddled through the uncertainty of marriage laws and the mischief of clandestine marriage until the passing of Lord Hardwicke’s Act of 1753. Another mischief, that of the clandestine marriage of infants, which lingered in England well into the 20th century was soon brought to an end by the General Assembly, which provided that “… . minors under 21 cannot be married without consent of their parents or guardians given personally or by sufficient testimony. …”

Official registration of births, deaths and marriages was introduced in England as late as 1836. Prior to that date parish registers were the only reliable source of information on human pedigree, but the system was entirely voluntary. Official registration was introduced in Virginia by the General Assembly of 1631-1632. The duty of keeping appropriate registers was imposed upon the ministers of the Church and church wardens and backed by a penal sanction.

Having put the formalities of marriage on a sound legal basis the early Virginians laid foundations for a clearly definable status of the offspring. Thus where man and woman were united in matrimony in a public and solemn ceremony preceded by license or publication of banns, such ceremony being duly recorded, there was no reservation about the legal status of children born to such a woman. Subsequent invalidity of the marriage did not upset the status of children, but quite clearly offspring of concubinage could not benefit as the doctrine of common law marriage was purposely repudiated. Correspondingly children of “unmarried” mothers were illegitimate. Rebuttal of the presumption of legitimacy was not unknown as the records of 1640 show an instance of bastardizing a child born to a married woman by a simple device of a confession made under oath by the mother to a midwife. The child was, by virtue of the confession, adjudged to be of “another man.”…

Morality by the Act of the Assembly

The law was clearly set against extra marital relations. The early acts were very much concerned with the moral welfare of the individual. A church was instituted, whose ministers were to conform to the canons of the Church of England, whilst the faithful were liable to punishment for being absent from divine service.The orthodoxy of the Church of England and the uniformity of worship throughout the colony was later secured by law which ordered the ministers to preach the doctrine of the Church of England, the deportation of “popish priests,”  disablement of “popish recusants” from holding any offices ” and the suppression of Quakers.

The duty of bringing up children in Christian religion (of the recognized brand) was first imposed upon guardians of orphans, and later extended to “masters of families,”  who incurred penalties for failing to send their children “to be instructed and catechised” by the minister of the established church.

Where the preaching and positive enactments bidding the individual to lead a chaste and God-fearing life failed the law reacted with anger and severity. Stern measures, adopted from England, were to combat crime and repress adultery and fornication. Church wardens were charged with the presentment of such offenses not only from their own knowledge but also from information of others. To make sure that they did their duty a penalty was provided against the defaulter.

Clearly such measures were intended to strengthen the lawful family and discourage extra-marital commerce. But even so the stern arm of the law could not control the flesh absolutely. The minutes of the Judicial Proceedings of the Governor and Council of Virginia, dated September 17, 1630, reveal that one Hugh Davis was ordered to be “soundly whipped” before an assembly of Negroes and others for “abusing himself to the dishonor of God and shame of Christians by defiling his body in lying with a negro, which fault he is to acknowledge next Sabbath Day … .” ” No doubt the punishment and its execution was devised to purge and deter but the record reveals a deeper motive to be consummated in the doctrine and law against miscegenation.

Hugh Davis having expiated his crime seems to have incurred no liability to his partner. However, a certain Edward Grymes, “because he lay with Alice West,” was ordered to give security “not to marry any woman till further order from the Governor and Council.” Presumably Alice was a white woman as there is no mention of exemplary flogging and the lady’s name is revealed. Maybe incapacity to “marry any woman” (or should it be any other woman?) until further order imposed upon Grymes was a punishment of a kind, in which case Alice got off rather lightly; maybe it was a preventive measure to ensure that Alice was not left with a bastard child and without a prospect of marrying the child’s father. The absence of further record may perhaps be taken to mean a happy ending for all concerned.

Not so happy was the lot of an unnamed Negro woman who was ordered to be whipped, while her partner in crime, a certain Robert Sweet, was ordered to “… . do penance in Church according to laws of England for getting a negro woman with child …. ,, The reference to English law is obscure, to say the least, but here repression and racial discrimination can be seen at work in a sinister partnership…

…Marriage and the Status of Children

As in the previous period the formal validity of marriage took a substantial share of the legislation, but in addition the essential conditions of a valid marriage were also settled. Following the established principle marriage could be celebrated only by ministers of the recognized church “according to English law,” but unlike in England, the solemnities had to be preceded by a license issued from the civil authority or banns read in church. The sanction for non-compliance was severe. The officiating minister was liable to punishment, the pretended marriage was null and void, children of such a union were visited with the stigma of illegitimacy, and the parties themselves were liable to prosecution for fornication. Certificates for marriage of persons under age were valid only if issued by the clerk of the county where the parents or guardians were resident and the clerk could issue such certificates only with the personal consent of parents or guardians…

…Legislation concerned with the essential validity of marriage began characteristically with an “Act for suppressing outlying slaves.”  The measure was penal and repressive as the Act provided, inter alia, that “white man or woman, bond or free, intermarrying with a Negro, mulatto or Indian is to be banished for ever.” The foundation of the antimiscegenation law being laid down earlier the Act did not expressly pronounce upon the validity of such marriages, but there is no doubt that the sanction of nullity was written in the peremptory words of the statute…

…Servants, Bastards and the Poor

It is significant that a direct reference to illegitimate children should be found in the Act 0 dealing with the suppression of fornication among servants, and the poor law system. Thus the compass of the legislation tends to reflect the character of bastardy law as being concerned not so much with the legal status of the illegitimate child and his relations with his parents, but with bastardy as a social problem confined to servants and the poor.

During the 1661-621 session, the General Assembly decreed, in an Act against fornication among servants, that the child is bond or free according to the status of his mother; and that if there is a child as a result of fornication the mother must serve two years after her indenture or pay 2,000 lbs. of tobacco to her master in addition to a fine or physical punishment (whipping) for the offense. The reputed father had to put in a security to keep the child and so indemnify the parish, which was responsible for the upkeep of poor persons. Inadvertently the Assembly played into the hands of the unscrupulous masters who could thus derive a benefit of extra 2 years of service out of fornication with their female servants. This the Assembly sought to remedy a year later by providing that such a woman should be sold by the churchwardens of the parish where she lived at the time she gave birth to her child for two years after the expiration of her indenture, and that the money so raised should be employed for the benefit of the parish. The possibility of her being released must have been considered by the Assembly as they thought that such a provision would induce such women “… to lay all their bastards to their masters. . . .”  So, for the time being, the severity of the law focused on the mother and the child.

It was considered that the father’s punishment consisted in the keeping of the child which meant in practice that he had to defray the expenses incurred by the parish. However, it was not always possible to exact payment from the putative father especially if he was a servant. To meet this contingency the Act provided that the parish should keep the child during the father’s service, and that he would defray the expenses after the expiration of his indenture.”

The selling of the servant woman by the churchwardens must have proved rather cumbersome as in 1696 the law was brought back to the original. The penalty was halved as the woman was required to put in another year of service after the expiration of her indenture or pay 1,000 lbs. of tobacco to her master or mistress in addition to her punishment for fornication. The putative father was, as heretofore, required to provide a security “to keep the parish harmless.”

This law was substantially re-enacted in 1705 in an Act concerning servants and the rights and duties of masters. Furthermore it was provided that if the reputed father was free he had to give security to the churchwardens to maintain the child. It was enacted, for the first time, that he may be compelled to do so by order of the county court upon the complaint of churchwardens. By the same Act the county courts were invested with the jurisdiction to try “…. petty offences including fornication, bastardy and the like … .” Thus the English statute of Elizabeth I became reincarnated in the colony.

The previous law with regard to the reputed father being a servant was reinforced by like provision enabling the court to enforce its order. The Assembly turned also to the question of female servants getting illegitimate children by their masters. The law once more turned a somersault as it reverted to a formula once used and discarded, that is, that the mother would be sold for one year after the expiration of her indenture or by order of the court made to pay 1,000 lbs. of tobacco and the said fine or whatever she should be sold for would then be turned to the use of the parish. The master, if the father of the child, would as previously suffer punishment for fornication and pay for the upkeep of the child. In addition the indenture may be terminated by court order.

A stiffer penalty was provided for a woman servant (or a free woman) having an illegitimate child by a Negro or mulatto:

. . . And if any woman servant shall have a bastard child by a negro or mulatto, over and above the years service due to her master or owner, she shall immediately upon the expiration of her time to her then present master or owner, pay down to the churchwardens … 15 pounds current money in Virginia, or be by them sold for 5 years to the use of the aforesaid. And if a free Christian white woman shall have such bastard child by a negro or mulatto, for every such offence, she shall within one month after her delivery of such bastard child, pay to the churchwardens for the time being, for the use of the said parish 15 pounds current money of Virginia, or be by them sold for 5 years to the use of the aforesaid ….

The unfortunate child was to be punished too as the churchwardens were empowered to bind him “… to be a servant until he shall be of thirty-one years of age.”…

Read the entire article here.

“Freedom By A Judgment”: The Legal History of an Afro-Indian Family

Law and History Review
Volume 30, Issue 1 (February 2012)
pages 173-203
DOI: 10.1017/S0738248011000642

Honor Sachs, Assistant Professor of History
Western Carolina University, Cullowhee, North Carolina

Forum: Ab Initio: Law in Early America

On May 2, 1771, John Hardaway of Dinwiddie County, Virginia posted a notice in the Virginia Gazette about a runaway slave. The notice was ordinary, blending in with the many advertisements for escaped slaves, servants, wives, and horses that filled the classified section of the Gazette in the eighteenth century. Like countless other advertisements posted in newspapers wherever slaves were held, Hardaway’s advertisement read: “Run away from the subscriber, a dark mulatto man slave named Bob Colemand, 25 years old, tall, slim, and well made, wears his own hair pretty long, his foretop combed very high, a blacksmith by trade, claimed his freedom under pretense of being of an Indian extraction.”

Read or purchase the article here.

The Loving Story

Home Box Office (HBO)
2012-02-14, 21:00 EST

Nancy Buirski, Director and Producer

In June 2, 1958, a white man named Richard Loving and his part-black, part-Cherokee fiancée Mildred Jeter travelled from Caroline County, VA to Washington, D.C. to be married. At the time, interracial marriage was illegal in 21 states, including Virginia. Back home two weeks later, the newlyweds were arrested, tried and convicted of the felony crime of “miscegenation.” To avoid a one-year jail sentence, the Lovings agreed to leave the state; they could return to Virginia, but only separately. Living in exile in D.C. with their children, the Lovings missed their families and dearly wanted to return to their rural home. At the advice of her cousin, Mildred wrote a letter to Attorney General Robert F. Kennedy, who wrote her back suggesting she get in touch with the American Civil Liberties Union.

Two young ACLU lawyers, Bernard S. Cohen and Philip J. Hirschkop, took on the Lovings’ case, fully aware of the challenges posed at a time when many Americans were vehement about segregation and maintaining the “purity of the races.” In interviews filmed at the time, the two lawyers dissect the absurdities of the laws and the difficulties of trying a case over five years old. Today, Hirschkop recalls that Mildred was quiet and articulate, while joking that his initial impression of Richard was that he looked like a crew-cut “redneck.” As they came to know them, however, it became apparent that the couple was deeply committed to each other. With an eye towards taking their case to the highest possible court, Cohen filed a motion to vacate the judgment on the Lovings’ original conviction and set aside the sentence. Local Judge Leon Bazile denied the motion, stating that God had separated people by continents and did not “intend for the races to mix.” After the Virginia Supreme Court responded with similarly antiquated and racist sentiments, Cohen and Hirschkop seized the opportunity to take the case to the U.S. Supreme Court.

Although the odds of getting a case heard by the Court were slim, Cohen and Hirschkop learned that Loving v. Virginia would be heard on April 10, 1967. Aware that their case had the potential to set a landmark precedent, the two green lawyers (Hirschkop was only two years out of law school and had never argued before the Supreme Court) prepped in New York before heading to the famous Supreme Court building in D.C. In oral arguments heard on audiotape, the State compared anti-miscegenation statutes to the right to prohibit incest, polygamy, and underage marriage, claiming that children are victims in an interracial marriage. The plaintiff’s lawyers, by contrast, included legal arguments interspersed with references to sociology and anthropology. And though the Lovings chose not to attend, Cohen may have made the most compelling case by relaying to Chief Justice Warren and his fellow judges Richard’s simple message: “Tell the court that I love my wife, and it is unfair that I can’t live with her in Virginia.”

After a two-month wait, the U.S. Supreme Court ruled unanimously in favor of the Lovings on June 12, 1967. This precedent-setting decision resulted in 16 states being ordered to overturn their bans on interracial marriage. Alabama was the last holdout, finally repealing its anti-miscegenation law in 2000.

Virginia’s Caroline County, ‘Symbolic of Main Street USA’

The Washington Post
2012-02-10

Carol Morello

Bowling Green, Va. — Only a few easily overlooked markers note the importance of Mildred and Richard Loving in Caroline County, where five decades ago the sheriff rousted the white man and his black bride from their bed and carted them off to jail.

A small brass plaque in the county courthouse credits their landmark 1967 U.S. Supreme Court case, Loving v. Virginia, with overturning laws prohibiting interracial marriage. Their names are engraved on a granite obelisk, at the end of a list of prominent local African Americans. The county Web site devotes a page to their case.

Yet their legacy is everywhere in the small Tidewater towns and family farms that make up Caroline County, where a soaring number of people identify themselves as multiracial.

In the 2010 Census, 3 percent of Caroline County’s 28,500 residents were counted as of two or more races. Most are younger than 20. The phenomenon is both old and new.

Historical records show multiracial children in the county going back to slave-holding Colonial times. Today, their increasing ranks are part of a national trend that is changing the way people think and talk about race.

…Even in 1958, Caroline County was an unlikely place for an interracial couple to be arrested. An area known as Central Point had so many multiracial residents of white, black and Native American heritage that during segregation, their children all attended the county’s all-black high school. A major feature of Central Point is Passing Road — a name attributed in local lore to the many residents who could “pass” as white. Elderly residents of Central Point say they recall other interracial couples who had married out of state and lived quietly in the area….

…It’s not known how Mildred Loving, with her black and Native American heritage, identified herself in the 2000 Census. She died in 2008, 33 years after her husband died in a car crash. But in the 2010 Census, their daughter decided to check only one box when faced, like so many millions of other Americans, with boiling down a complex ancestry on a bureaucratic form.

“Native American,” said Peggy Loving Fortune, who is 52. “Just Native American.”…

Read the entire article here.

Film retells Lovings’ love story

The Free Lance-Star
Fredericksburg, Virginia
2012-02-06

Jonas Beals

Mildred and Richard Loving were probably the last people you would expect to make legal history, but in 1967 they won a U.S. Supreme Court case that nullified laws against interracial marriage in Virginia and the 15 other states that still banned miscegenation. And it happened in Caroline County.

Their story has become legend in certain legal and civil rights circles, but their historic ordeal is less well known to younger generations and people in other areas of the country. That’s about to change.

HBO will première “The Loving Story” on Valentine’s Day—Feb. 14.

The producers have been screening the film across the country, and on Saturday they brought it home. Friends, family and admirers packed the auditorium of the Caroline County Community Services Center. The screening ended with a standing ovation.

The documentary, directed by Nancy Buirski, is mostly made up of black-and-white footage shot by Hope Ryden in 1965 and black-and-white photos taken by Life magazine photographer Grey Villet, also in 1965…

Read the entire article here.

‘The Loving Story’ to premiere in Caroline County

The Free Lance-Star
Fredericksburg, Virginia
2012-02-04

Jonas Beals

Caroline County will get the red-carpet treatment Saturday evening.

HBO, Comcast and the American Civil Liberties Union of Virginia are hosting an invitation-only screening of the new HBO documentary “The Loving Story” at the Caroline County Community Services Center.

The film tells the story of Mildred and Richard Loving, an interracial couple from Caroline County who married in 1958, only to be arrested and convicted of violating Virginia’s anti-miscegenation laws. Their case eventually made it to the U.S. Supreme Court, where their victory ended laws against interracial marriage across the country…

Read the entire article here.

Unfixing Race: Class, Power, and Identity in an Interracial Family

The Virginia Magazine of History and Biography
Volume 102, Number 3 (July, 1994)
pages 349-380

Thomas E. Buckley, S.J., Professor of American Religious History
Jesuit School of Theology, Berkeley
Santa Clara University

This article is also available as a chapter in Martha Hode’s (ed.) Sex, Love, Race: Crossing Boundaries in North American History.

In November 1816 Robert Wright, a slaveholding farmer from Campbell County in the Virginia Piedmont, petitioned the General Assembly for a divorce. Because the state courts lacked jurisdiction over divorce in the early nineteenth century, the legislators regularly considered such requests. Wright’s petition, however, was unlike any other the assembly had ever received. According to Wright’s account, his marriage to Mary Godsey in 1806 had been a happy one. Describing his behavior toward her as ‘kind and affectionate,” Wright acknowledged that Mary had brought him “great domestic comfort, and felicity” until 1814, when William Arthur “by his artful, and insidious attentions” replaced Wright “in her affections.” The couple eloped in January 1815, taking with them some of Wright’s property including a female slave, but were caught in neighboring Bedford County. Wright reclaimed his possessions, and Mary consented “to return to the Home, and the Husband she had so ungratefully, and cruelly abandoned.” Despite her infidelity, Wright maintained that he had again treated his wife with affection, hoping “time… would reconcile her to her situation and restore her to Happiness.” His hopes proved illusory. Ten months later, Mary and William ran off to Tennessee. Charging her with desertion and adultery, Wright asked the assembly to pass a law ending their marriage.

Thus far the case was familiar. Tales of infidelity, desertion, and scorned love the legislators had heard before. What made Wright’s petition unique was his frank admission that as “a free man of color” he had married a white woman and so violated Virginia’s law forbidding interracial marriage. While avoiding a rhetorical style that was either defiant or obsequious, Wright defended the validity of his union and presented his case in matter-of-fact fashion. His free status apparently empowered him with a sense of personal worth and dignity and a claim to equal treatment that he was unafraid to assert publicly.  Equally noteworthy were the affidavits submitted with the memorial.  Defying the mores historians commonly ascribe to white southerners, more than fifty white citizens of Campbell County ignored Wright’s miscegenation, endorsed his request for a divorce, and testified to his good standing in their community…

Purchase the article here.

Why Race Isn’t as ‘Black’ and ‘White’ as We Think

The New York Times
2005-10-31

Brent Staples

People have occasionally asked me how a black person came by a “white” name like Brent Staples. One letter writer ridiculed it as “an anchorman’s name” and accused me of making it up. For the record, it’s a British name—and the one my parents gave me. “Staples” probably arrived in my family’s ancestral home in Virginia four centuries ago with the British settlers.

The earliest person with that name we’ve found—Richard Staples—was hacked to death by Powhatan Indians not far from Jamestown in 1622. The name moved into the 18th century with Virginians like John Staples, a white surveyor who worked in Thomas Jefferson’s home county, Albemarle, not far from the area where my family was enslaved…

…As with many things racial, this story begins in the slave-era South, where sex among slaves, masters and mistresses got started as soon as the first slave ship sailed into Jamestown Harbor in 1619. By the time of the American Revolution, there was a visible class of light-skinned black people who no longer looked or sounded African. Free mulattos, emancipated by guilt-ridden fathers, may have accounted for up to three-quarters of the tiny free-black population before the Revolution.

By the eve of the Civil War, the swarming numbers of mixed-race slaves on Southern plantations had become a source of constant anguish to planters’ wives, who knew quite well where those racially ambiguous children were coming from.

Faced with widespread fear that racial distinctions were losing significance, the South decided to define the problem away. People with any ascertainable black ancestry at all were defined as black under the law and stripped of basic rights. The “one drop” laws defined as black even people who were blond and blue-eyed and appeared white.

Black people snickered among themselves and worked to subvert segregation at every turn. Thanks to white ancestry spread throughout the black community, nearly every family knew of someone born black who successfully passed as white to get access to jobs, housing and public accommodations that were reserved for white people only. Black people who were not quite light enough to slip undetected into white society billed themselves as Greek, Spanish, Portuguese, Italian, South Asian, Native American—you name it. These defectors often married into ostensibly white families at a time when interracial marriage was either illegal or socially stigmatized…

Read the entire essay here.

Statistics On Miscegenation

Franklin Repository
1864-04-27
page 1, column 6

Source: Valley of the Shadow: Civil War Era Newspapers, University of Virginia Library

Summary: The Repository details the disproportionate number of “mulattoes” in the South relative to the North.

Full Text of Article:

There were 411,613 mulatto slaves in the south in 1840, of whom 69,979 were in Virginia; 43,281 in Kentucky, and 36,900 in Georgia. These numbers are considerably beyond the legitimate proportion of those States. There were also 176,739 free mulattoes in the United States in 1860, of whom 106,770 belonged to the south, and 69,969 to the free States. Of the free mulattoes Virginia contained 23,485, which number, added to her slave mulattoes makes a total of miscegenated population of 93,824. Her mulatto slaves alone exceeded the total number of mulattoes in the free States.

The whole number of mulattoes, slave and free, in the Union, in 1860, was 588,352, of whom 69,969 belonged to the free States, and 518,383 to the slave States—a number greater than the combined white population of Arkansas, Delaware and Florida—greater than the white population of Maryland—almost twice as great as that of South Carolina, and twice as great as the combined populations of Delaware and Florida. The mulatto population of Virginia alone exceeds the number of whites in Delaware or Florida.

(No Title)

Franklin Repository
1863-12-09
page 4, Column 4

Source: Valley of the Shadow: Civil War Era Newspapers, University of Virginia Library

Summary: Argues that “amalgamation” is common in the South and “very rare” in the North. A Southern correspondent concerned with the number of mixed marriages occurring wanted “amalgamation” outlawed. The Repository claims that the grooms are Southerners or foreigners because “amalgamation” is no stranger to a social system that includes slavery. In the free North, on the other hand, mixed marriages are “very rare.”

Full Text of Article:

A clerical correspondent writes us from the Southern coast protesting against the rapid tendency to amalgamation. He says that he has been called upon to perform the marriage service repeatedly where the bride was mulatto, quadroon or octoroon, and he calls upon Congress to arrest this unnatural mingling of the races, which, to use his own language, “threatens the annihilation of the white race in the United States.”

We beg our correspondent to quiet his fears on the subject. He cites some half a dozen cases to vindicate his apprehensions; but not one of them presents the union of a northern man with the southern negress. All the happy grooms were either southerners or foreigners, and they have been adopting no novel social system. Slavery has never fastened its desolation on any land without carrying the social evil of amalgamation with it; and the crime has been peculiar to the chivalric and opulent rather than to the lowly. Had our correspondent cast a thought as to the origin of the mulatto, quadroon and octoroon brides of whom he speaks, he might have cherished a reasonable suspicion that amalgamation is not just dawning upon the world, but has blotted and blurred the whole social organization of the South ever since slavery came with its endless train of crime.

In the North, where the negro race is free and not the legitimate prey of a brutal master’s lust, amalgamation is very rare, and embraces only the most abandoned of both sexes; and we regard the destruction of Slavery as the only hope of dealing a death-blow to that unnatural evil. Slavery has been its parent, its shield, its apologist and stripped it of its hideous moral deformity by bringing virtuous wives and daughters and sensual sons in daily contact with it; and when its great foundation is destroyed, the whole structure of social pollution will fall with it. The remedy is not in Congress, but in the moral tone of the people, and that seems to be progressing well toward a better and brighter Nationality, free from the blistering stains of both legalized and lawless mingling of the distance races of the Continent.