Before the Civil War, slaves and indentured servants were considered personal property, and they or their descendants could be sold or inherited like any other personalty. Like other property, human chattel was governed largely by laws of individual states. Generally, these laws concerning indentured servants and slaves did not differentiate between the sexes. Some, however, addressed only women. Regardless of their country of origin, many early immigrants were indentured servants, people who sold their labor in exchange for passage to the New World and housing on their arrival. Initially, most laws passed concerned indentured servants, but around the middle of the seventeenth century, colonial laws began to reflect differences between indentured servants and slaves. More important, the laws began to differentiate between races: the association of “servitude for natural life” with people of African descent became common. Re Negro John Punch (1640) was one of the early cases that made a racial distinction among indentured servants.35
Virginia was one of the first states to acknowledge slavery in its laws, initially enacting such a law in 1661.36 The following year, Virginia passed two laws that pertained solely to women who were slaves or indentured servants and to their illegitimate children. Women servants who produced children by their masters could be punished by having to do two years of servitude with the churchwardens after the expiration of the term with their masters. The law reads, “that each woman servant gott with child by her master shall after her time by indenture or custome is expired be by the churchwardens of the parish where she lived when she was brought to bed of such bastard, sold for two years. . . .”37
The second law, which concerned the birthright of children born of “Negro” or mulatto women, would have a profound effect on the continuance of slavery, especially after the slave trade was abolished—and on the future descendants of these women. Great Britain had a very structured primogeniture system, under which children always claimed lineage through the father, even those born without the legitimacy of marriage. Virginia was one of the first colonies to legislate a change:
Negro womens children to serve according to the condition of the mother.
WHEREAS some doubts have arrisen 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 borne in this country shalbe held bond or free only according to the condition of the mother, And that if any christian shall committ ffornication with a Negro man or woman, hee or shee soe offending shall pay double the ffines imposed by the former act.38
Most slave colonies or states enacted similar laws. After the slave trade officially ended, many slave owners tried to ensure that sufficient numbers of slaves were available to work their plantations. Slave women of childbearing age became more valuable. There are a number of court cases concerning slave women who either killed their masters who forced them to have sexual relations or killed the children rather than have the children enslaved.39
Miscegenation laws, forbidding marriage between races, were prevalent in the South and the West. Because English masters had had little regard for indentured servants of non-Anglo ethnic groups, they allowed and sometimes encouraged commingling of their servants. Being seen in public or bringing legitimacy to these relations, however, was not lawful. This is evinced by a court decision from 1630, the first court decision in which a Negro woman and a white man figured prominently. Re Davis (1630) concerned sexual relations between them, the decision stating, “Hugh Davis to be soundly whipt . . . for abusing himself to the dishonor of God and shame of Christianity by defiling his body in lying with a Negro, which fault he is to actk. next sabbath day.”40
Virginia passed its first miscegenation law in 1691 as part of “An act for suppressing outlying Slaves.”
And for prevention of that abominable mixture and spurious issue which hereafter may encrease in this dominion, as well by negroes, mulattoes, and Indians intermarrying with English, or other white women, as by their unlawfull accompanying with one another, Be it enacted by the authoritie 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 negroe, mulatto, or Indian man or woman bond or free shall within three months after such marriage be banished and removed from this dominion forever. . . .41
Another section of the law closed the loophole created by the 1662 birthright law, which mandated that children born of a free white mother and Negro father were technically free. This amendment stated that a free white woman who had a bastard child by a Negro or mulatto man had to pay fifteen pounds sterling within one month of the birth. If she could not pay, she would become an indentured servant for five years. Whether or not the fine was paid, however, the child would be bound in service for thirty years.
The laws that restricted slaves or indentured servants generally addressed the owners and penalized them for breaking the law. Laws governing slaves allowed masters to beat or kill them under certain circumstances. Nor could they go to court to seek redress. A person of color was not permitted to testify against a white Christian, as illustrated by the 1717 Maryland law:
II. Be it Therefore Enacted, by the right honourable the Lord Proprietary, by and with the advice and consent of his Lordship's Governor, and the Upper and Lower Houses of Assembly, and by the authority of the same, That from and after the end of this present session of assembly, no Negro or mulatto slave, free Negro, or mulatto born of a white woman, during his time of servitude by law, or any Indian slave, or free Indian natives, of this or the neighbouring provinces, be admitted and received as good and valid evidence in law, in any matter or thing whatsoever depending before any court of record, or before any magistrate within this province, wherein any christian white person is concerned.42
Against these overwhelming restrictions, there were a number of court cases in which slaves filed suit seeking their freedom or freed Negroes claimed property that had been inherited from their former owners. Elizabeth Freeman (1732/ 34-1829), a slave, presented her case for freedom in a Massachusetts court pro se in 1783 and won.43 In addition there were cases where the slave or freed person was the defendant; Celia, a Slave is a narrative account of such a trial in Missouri in 1855.44
White women were often involved in litigation concerning slaves through the workings of the dower laws. In some states women could inherit personalty but could only receive a life estate in real property.45 This situation created many problems, particularly if slaves were needed to make profits from the land. For example, if a woman chose to free her inherited personalty at death, her descendants would have no one to work the land unless they farmed it with paid workers or purchased new slaves. Frequently, wills or contracts that granted freedom or conveyed realty or personalty as dower were contested in court.
The laws and resulting court cases that involved slavery and indentured servants have had a major impact on America, its men and women alike, in both the past and the present. Through the years, the laws that the states passed became steadily more restrictive toward slaves, mulattoes, and freed Negroes. In 1850, the federal government's involvement deepened with the passage of the Fugitive Slave Act, responding to strong lobbying efforts by slaveholders wanting to counteract abolitionist forces.46 In the face of these all-encompassing laws, women with extraordinary courage fought for a better life. For example, Harriet Tubman (ca. 1821-1913) returned to the South nineteen times to bring more than three hundred fugitives to freedom, and Charlotte Forten (1837-1914), a free black woman from Philadelphia, went to South Carolina during the early Civil War to teach “the contrabands of war” (slaves who had escaped to Union lines).47
In 1865, the Thirteenth Amendment to the United States Constitution ended slavery and involuntary servitude. Nevertheless, many laws and judicial precedents that had been established before that date would not be changed until the mid- or late-twentieth century.
(source: Library of Congress)