In the end, the Anglo-Virginians introduced a form of chattel slavery unknown in their home countrya system of bondage based upon race. This was indeed a brave new world. Proceeding on an ad hoc basis, the colonists put together rules and customs to accommodate the new society taking shape. There was no direct precedent from their home country for doing what they did; in fact, it required them to break rather quickly with one important long-held tradition and understanding that they had carried with them across the Atlantic Ocean. That fateful deviation from English traditionone that would set the course of Elizabeth Hemings's life and the lives of her descendantswas the Virginia colonists' decision to abandon the English tradition that determined a person's status by the status of the father. In England you "were" what your father "was." A person could be born free or as a member of a group of "unfree" people who existed during various points in English historyfor example, a villein (serf) attached to the land of a lord or to the lord himself. Inventing the rules of slavery, in 1662, Virginians decided to adopt the Roman rule partus sequitur ventrem, which says that you were what your mother was. This important departure from tradition had enormous consequences for the progress of slavery and the mapping of Virginia's racial landscape. Why take this route? Although the preamble to the legislation states the impetus for the law"doubts have arisen whether children got by an Englishman upon a Negro woman should be slave or ffree"there is no language explaining exactly why, in the context of Virginian colonial society, the ways of ancient Rome should emerge as superior to the more readily available and familiar English tradition. There are some reasonable speculations.
One way to think about it is to imagine what might have been the course of slavery in Virginia had the colonists followed their English tradition. White men, particularly the ones who made up the House of Burgesses, the legislature in colonial Virginia, were the masters of growing numbers of African women, owning not only their labor but their very bodies. That these women sometimes would be used for sex as well as work must have occurred to the burgesses. Inevitably offspring would arise from some of these unions. Even white males who owned no slaves could contribute to the problem by producing, with enslaved black women, children who would be born free, thus destroying a critical component of the master's property right: the ability to capture the value of the "increase" when female slaves gave birth.
That exact situation was at issue in 1655, when a mulatto woman, Elizabeth Key, who later married her lawyer, successfully sued for her freedom on the basis of the fact that her father was English. This case, and probably others that never made it to court but would have been part of the social knowledge of the community, caught the burgesses' attention, and they acted to close this possible escape route out of slavery for one potentially large category of people of African origin: the children of white fathers and enslaved mothers. The law passed in the wake of Key's case actually had two componentsthe new rule determining status through the mother and a provision for doubling the fine for mixed-race couples who engaged in sex over those levied against unmarried same-race couples. The historian Warren M. Billings, who was the first to do extensive work on the case, saw the law as a strong anti-race-mixing measure. "Writing a seldom used civil law doctrine, partus sequitur ventrem, into the statute indicates the depth of the lawmakers' desire to prevent miscegenation." While the double fine reflects a wish to discourage mixed-race sex, the same cannot be said for partus sequitur ventrem. The doctrine assured that white menparticularly the privileged ones who passed the law, who would not likely have been haled into court for fornication even with white womencould have sex with enslaved women, produce children who were items of capital, and never have to worry about losing their property rights in them.
Excerpted from The Hemingses of Monticello © Copyright 2008 by Annette Gordon-Reed. Reprinted with permission by W. W. Norton. All rights reserved.
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