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.

Miscegenation: The Courts and the Constitution

William and Mary Law Review
Volume 8, Issue 1 (1966)
Article 7
pages 133-142

Cyrus E. Phillips IV

MISCEGENATION: THE COURTS AND THE CONSTITUTION

Miscegenation is generally defined as the interbreeding or marriage of persons of different races, but the term will here be used in reference to miscegenetic marriages only. That is, this paper will concern itself only with the aspects of the marriage laws of various states that relate to miscegenation. The purpose of this paper will be to show the antecedents of miscegenation in the American legal system, the methods of constitutional justification of miscegenation statutes in state courts, and the change in regard to their validity given by the federal judiciary.

BACKGROUND

Prohibitions against miscegenation date back to the earliest colonial times, and the first record of sanctions imposed for this act in the Virginia colony appears in Hening’s extract from the judicial proceedings of the Governor and Council of Virginia:

September 17th, 1630. Hugh Davis 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.

That prohibitions against miscegenation have been widespread in the United States can be seen in the fact that they have appeared in the statutes of some forty states. Of these forty, twenty-three have repealed their statutes, half of these having been repealed within the last two decades as a result of the movement for Negro equality as well as the publicity occasioned by a 1948 decision of the California Supreme Court which struck down that state’s miscegenation statute.

Nontheless, it is indeed surprising that seventeen states still retain their miscegenation statutes. Of these seventeen states, six make express provisions in their constitutions either forbidding the passage of laws validating such marriages or else maling them void ab initio. Miscegenation is an entirely statutory crime, generally considered to be of the grade of a felony, the penalty for which ranges up to imprisonment for ten years and fines up to $2,000.

All miscegenation statutes contain general provisions against the intermarriage of Negroes and Caucasians, but others have expanded their scope to include Malays, American Indians, Mestizos, and Half-breeds. Although these statutes in the main do not prohibit intermarriage between members of races other than white, all prohibit intermarriage between a white person and a member of the designated non-white group or groups.

And just as the groups with which intermarriage is prohibited vary from state to state, so also does the definition of “Negro.” One state classifies a Negro as any person of one-eighth or more Negro blood, while others define Negroes as any person of Negro descent to the third generation inclusive.”‘ Two states include every person in whom there is any ascertainable Negro blood within the prohibited group. That these statutes are an anomaly in this period of constitutional and social reform is readily apparent. Nevertheless, their antecedents run deep in the American legal system…

Read the entire article here.

Thus the effectiveness of a public policy argument in defense of miscegenation statutes stands on very weak ground today. The mind of the modern Supreme Court was well expressed by Mr. Chief Justice Vinson in Shelley v. Kraemer, when he stated: “Equal protection of the laws is not achieved through indiscriminate imposition of equalities.”

Edmund L. Walton Jr., “Present Status of Miscegenation Statutes,” William and Mary Law Review, Volume 4, Issue 1, (January, 1963): 33.

Present Status of Miscegenation Statutes

William and Mary Law Review
Volume 4, Issue 1 (January 1963)
Article 4
pages 28-35

Edmund L. Walton Jr., Founder
Walton & Adams, P.C., Reston, Virginia

With the influx of so called “civil rights” cases in recent years it seems that a reappraisal of state legislation and constitutional prohibitions concerning intermarriage of persons of different races is in order.

A total of twenty-four states currently have prohibitions against miscegeneous marriages, fourteen more have repealed such laws, and the supreme courts of two states have held that their miscegenation statutes are in violation of the Fourteenth Amendment of the United States Constitution but one of these reversed itself five years later. The highest courts of twelve other” states have affirmed the constitutionality of their respective statutes.  The Supreme Court of the United States has once had the opportunity to rule upon the question in recent years but sidestepped the issue.

The statutes, while varied in scope and legal consequences for violation are unanimous in condemning marriage between Negroes and whites. Three representative statutes are those of Virginia, Maryland, and Arkansas. Both Maryland and Virginia have criminal penalties as well as civil prohibitions and both declare the parties to a miscegenous marriage to be felons. Arkansas declares such a marriage to be illegal and void.” Virginia prohibits the marriage of whites with colored persons;  Arkansas, white persons with Negroes or mulattoes; and Maryland forbids any intermarriage between members of the white, Negro or Malayan races. Virginia describes a “white person” as one with no other admixture of blood other than white or one-sixteenth or less American Indian blood.

The challenge of the constitutionality of these and other state miscegenation statutes has been made and met in the state courts, but as yet the United States Supreme Court has not seen fit to make a final judgment. What are the major factors to be discussed and when will the court meet the challenge?…

Read the entire article here.