Virginia’s Act XII: Negro Women’s Children to Serve according to the Condition of the Mother

Explanation and Analysis of the Document

The House of Burgesses session of December 1662, which produced the statute known as Negro Women’s Children to Serve according to the Condition of the Mother, deliberated and acted on a variety of issues. Their discussions included matters concerning the construction of a new “James Citty,” or Jamestown, (Act XVI) and laws to deal with debtors in default (Act I). Among their most pressing concerns were those involving bound laborers. During that session alone, the burgesses approved six acts concerning the status of bound laborers.

Act XII, the sixth statute concerning bound servants passed by this body, made an African American child’s civil status—whether slave or free—inheritable from his or her mother. As with the other laws dealing with slaves and servants, it is altogether possible that this legislation, rather than being proactive, was passed in response to existing circumstances. As the wording of the act suggests, there had already arisen questions and at least one legal case concerning the status of children born to slaves. In January 1655 Elizabeth Key, a woman born in 1630 to an unnamed African servant and an English father, Thomas Key, filed suit for her freedom on the ground that her father had been a free man. (He had also been a burgess.) The Northumberland County Court ruled in her favor in July 1656.

Act XII is divided into two segments. The first portion deals with the status of children born to African and African American women in the Virginia Colony. The second section addresses the issue of sexual intercourse between Africans and Anglo-Americans. The opening clause of the act states: “Whereas some doubts have arisen whether children got by any Englishman upon a negro woman should be slave or free.” This suggests that the burgesses were aware that miscegenation, or sexual intercourse between individuals of different races, had occurred in the Virginia Colony and that laws concerning the civil status of the offspring of such unions were insufficient. Seventeenth-century English common law clearly delineated children as the recipient of their father’s civil status and further noted children as the responsibility of their sires. By the 1660s, Virginians had begun to question those precepts and their corresponding obligations when the female parent was of African descent.

The middle section of the statute begins with a formulaic statement: “Be it therefore enacted and declared by this present grand assembly.” Virtually every statute passed by the House of Burgesses in this period contained similar, if not identical, phrasing. However, it is the latter part of this section that puts forth the central premise of the act: “All children borne in this country shall be held bond or free only according to the condition of the mother.” It placed the offspring of “negro” mothers outside the normal boundaries of English law and made them special cases. It also absolved the fathers of those children of all responsibilities for them or claims to them. A father might have retained some claim over his child only in situations where the mother was free or he was the master of a mother who was his female bound servant. Otherwise, the paternal rights normally jealously guarded by English common law were to be negated when the mother was of African descent by designating the child as the property of the mother’s master. No person could claim responsibility for another’s chattels.

The last clause of the law calls attention to the perceived problem of sexual intercourse between persons of English and African descent: “And that if any christian shall commit fornication with a negro man or woman, he or she so offending shall pay double the fines imposed by the former act.” While Virginians of this era disapproved of any form of sexual intercourse outside traditional marriage, miscegenation was considered particularly repugnant, and this portion of the act is an explicit warning against such activity. Justices of the peace levied fines against those found guilty of acts of extramarital sex according to local customs that varied from county to county. Justices often required public penance by the offenders in church as well. In most cases the guilty couple shared responsibility for payment of the fine, or the male assumed the entire debt. In cases of miscegenation, however, the expectation was that the “christian,” a euphemism for an Anglo-American in the statute, would bear the full cost, regardless of his or her gender. Furthermore, it is implicit in the clause’s wording that the burgesses did not consider blacks to be Christians but rather heathens.