Women, Race, and the Law in Early America (2024)

Race, Slavery, and the Law

The most important legal distinction for women and men in early North America was their status along the range of freedom and unfreedom. Scholars of prerevolutionary North America argue against neat conceptualizations of slavery and freedom in starkly oppositional terms; instead, they recognize that a range of multiple dependencies existed across the regions of early North America. In the earliest years of settlement, before the mid-17th century, Africans, Europeans, and Indigenous Americans understood human bondage as part of a continuum that might range from temporary to permanent. In order to understand the position of women under the law, it is useful first to discuss the variety of unfree statuses that coexisted across early America.

The three principal groups that populated early modern North America—Africans, Native Americans, and Europeans—all practiced varieties of slavery and captivity. In the earliest years of the settlement of British America, slavery was initially a fluid category, one not necessarily permanent, inheritable, or fixed. Rather, for both men and women, slave status encompassed the possibility of change through baptism and legal challenge; the same was true of New Netherland. Outside of these jurisdictions, in French, Spanish, and Native settlements, African- or Native-descended women in particular could alter their status through marriage, adoption, or work. Although the English settlements, as opposed to the French and Spanish, had few legal models for slavery aside from apprenticeship law, for the most part Europeans considered enslavement to be an acceptable legal status for cultural outsiders. Although Virginia law required Irish and other “aliens” to serve longer terms than English servants, lawmakers viewed Natives and Africans as pagans or captives taken in war, attributes that justified their permanent enslavement. Similarly, for some Indians and Africans as well, enslavable groups were war captives and others understood to be cultural outcasts; slaving defined who was included or excluded. Initially, Europeans did not restrict slavery to Africans and their descendants in America. In North America, Europeans traded Indian slaves—some two to four million from the late 15th to the early 19th centuries, many of whom were initially enslaved by other Native Americans.1

In contrast, a range of unfree statuses existed in Native communities across early North America. Although Native America was remarkably diverse in the centuries before European settlement, Indigenous communities had developed distinctly complex practices of captivity, treating prisoners as spoils of war, as slaves, or as hostages or pawns in intercommunity diplomatic interactions, and these norms crossed ethnic lines in the north. If these practices appear to have lacked what Europeans recognized as jurisprudence—a written body of laws, a corpus of legal theories, and a judiciary system—Native Americans engaged in what Katherine Hermes calls jurispractice; that is, they adhered to customs of acting legally, for instance using standard mechanisms and adhering to rules for resolving disputes, remedying wrongs, and punishing crimes. Within Native communities, slavery was governed by these legal structures and existed across a continuum that might range from temporary unfreedom to permanent bondage.2

A range of behaviors blurred the differences between enslaved and free, from Creek settlements in southern Georgia and Florida north to New France and across the continent to the Texas and New Mexico borderlands. In the southwest borderlands, Native communities before and after Spanish contact practiced a unique form of slavery in which women and children were captives and hostages. Because slavery was tied to kinship rather than labor, however, the captured women sometimes became cultural mediators despite their marginalization. Among Southern Indians, slavery was a status on the continuum of captivity. Cultural and political outsiders—prisoners of war, individuals traded as property, and even those who voluntarily came to Indian communities—were slaves who brought human capital and social standing to her or his master. Particularly in the southeast and the continental interior, where the balance of power remained on the side of Natives as opposed to Europeans, the former often defined captivity and slavery on their own terms. Captives were not necessarily either prisoners, property, or intended strictly for labor.3

Gender mattered within these varying statuses and definitions because women typically predominated as captives and assumed distinct roles that might range from pawns to agents. Within Native communities, women were often spared by their captors, while male prisoners were executed; this strategy “maximized the demographic benefits of slavery,” because in times of high mortality women’s reproductivity was the best way of rebuilding community populations.4 Along the eastern seaboard and up into New France, for instance, enslaved Indians were treated, much like their African counterparts, as chattel properties; they performed domestic, artisanal, field, sexual, and reproductive labor, even if their status remained uncertain and shaded into freedom. In New France, Native terminology equated slaves with domestic properties—“dogs”—and placed captives on the lowest rungs of membership in their adopting clans. Female captives among the Cherokee faced a similar range of possibilities. They could be married or adopted into clans; if these options were not available, however, they were kept as slaves who labored to support their masters and existed as social outsiders. French Louisiana provides yet another example; there, Indians relied in part on exchanging women captives in order to forge trade and diplomatic alliances. Such captives could easily become slaves. The Caddos traded captive Apache women to the French settlements; these women were desirable commodities as household servants and sexual partners, unwilling or otherwise, so slavery made Indian women sexually available to their captors, traders, and owners. In addition, women also served as hostages in diplomatic negotiations both between Native groups and Native and European power brokers. Moreover, among the widespread Native trade networks, exchanges of captives—again, predominantly women—were part of diplomatic strategies rather than sources of labor.5

Shortly after the 1650s, and in contrast to the range of unfreedom in Native America, laws in European settlements in northern, eastern, and southern North America, including the Caribbean, made slavery increasingly inflexible. In these regions, particularly in the mid-Atlantic and southern colonies, indentured servitude and slavery coexisted. The former was distinguished by its temporary character and retention of rights; servants, in theory, lost none of their legal protections as British subjects, though in practice they were dependent, bound, and coerced.6 While these labor systems coexisted and shared certain features, legislators worked assiduously to institutionalize the differences between indenture and slavery in law. Statutes tied slavery to racial difference, a condition specific to people of color—that is, to Africans, Indians, and mixed-race individuals like mulattos and mustees (having one-eighth black ancestry), as well as their descendants.

After 1650, Europeans across early America enacted a series of statutes that legally defined slavery as a permanent, heritable condition based on the maternal status of Africans and their descendants. Europeans continued to trade and purchase Indian slaves or enslave them as punitive retribution in the wake of wars, but late-17th-century British North Americans, for instance, began to establish some limits on Indian slavery. In New England, enslaved Indian captives did not necessarily transfer their status to their progeny, and some jurisdictions required legal permission before the children of enslaved Indian captives could be purchased or sold. New England prohibited Indian slavery after 1700, as Virginia had recently done, but Native American workers continued in various forms of unfreedom thereafter.7 Nonetheless, in both north and south, the law of slavery and the restriction of slavery to groups defined by race—Africans, Indians, and their descendants—was well established by the turn of the 18th century. Further elaboration of these codes would continue, of course, but the law of slavery, particularly in its connection to Africans and their descendants, remained fundamentally unaltered in European settlements across North America until the era of the American Revolution.

Women, Race, and Legal Status

The varied range of race and status across cultures and colonies is central to any consideration of women and the law in early North America for two reasons. First, the proportion of women who arrived as slaves exceeded that of those who arrived as free migrants. Probably four-fifths of all women who came to North America before 1800 were not European. In addition, women typically comprised between 40 and 49 percent of captives taken from the Gold Coast between 1662 and 1700; during those same years, they outnumbered men in the slave cargoes taken from the Bight of Biafra. Second, women often predominated among Native American captives. By 1708, for instance, one-third of Native Americans in South Carolina were enslaved, and Native women were three to five times more likely to be enslaved than their male counterparts. A similar predominance of women as captives can be found in New France in the north and New Spain in the south. While male captives were more likely to be executed, their female counterparts were more likely to be adopted into tribes because of their potential as reproductive, household, and domestic laborers. Women also predominated among free black populations in the upper south and cities like New Orleans, where urban markets allowed them to sell goods or services and purchase their manumission with the proceeds.8

Most of the women who came to early European settlements in North America did so as forced migrants from Africa, and their race and fertility were the foundational elements of the first slave laws enacted by Europeans. Across most of early North America, African slaves and their descendants inherited their enslaved status from their mothers. Although the number of laws governing slavery—and enslaved women—accumulated over the course of the colonial period, the legal doctrine of partus sequitur ventrem—progeny follows the womb—was one of the first, and it inextricably bound racial slavery to maternal identity. The doctrine first established the inheritability, and hence the permanence, of slavery as a legal status.9

The law not only defined who might be a slave in America—the progeny of enslaved women—it also encouraged owners to consciously view the fertility of their enslaved women as a form of market capital. For instance, Jennifer L. Morgan’s analysis of the estates and wills of Caribbean slave owners reveals that they clearly comprehended the potential value of African women’s reproductivity. Planters’ purchasing patterns reflect their efforts not only to build their workforce but also to do so in a way that provided opportunities for sexual relationships among their enslaved workers. In sharp contrast to the southern and Caribbean British colonies, enslaved people constituted a tiny fraction of New England’s population. Moreover, very much unlike their southern counterparts, northern slave owners in the colonial period did not prize fertility in their female slaves; since their children were likely sold—and sometimes infants were given away—because owners did not want the burden of supporting them, enslaved women may have attempted to avoid pregnancy.10

In addition to institutionalizing inheritable slavery in female reproductivity, the law also provided planters with economic incentives to encourage the fertility and reproductivity of their enslaved women. The law did not penalize owners who raped or otherwise sexually coerced their enslaved women. On occasions, masters sued those who had harmed, sexually or otherwise, their enslaved women in order to regain lost value. While enslaved women transferred their status to their progeny, other laws stripped them of their legal identity, leaving them no standing under the law. Enslaved women had no recourse for sexual harm, regardless of the status of the perpetrator, although the earliest colonial statutes universally instructed masters to provide adequate provisioning and reasonable treatment to their enslaved subjects. Rape and sexual coercion were difficult crimes even for a free woman to establish and gain convictions for in the colonial courts. Enslaved women endured coerced sex with masters, overseers, and other white authorities, but indictments were exceptionally uncommon and practically nonexistent, although theory it was possible to charge and convict a white man for raping an enslaved woman.11

Across European settlements, however, the law and experience of enslaved women varied with region. In New Spain and New France, masters appear to have been more accountable to their slaves under the law. Imperial legal codes, such as provisions of Spain’s Las Siete Partidas (Seven Part Code, probably written in the 13th century) and Recopilación de leyes de los reinos de las Indias (Compilation of the Law of the Kingdoms of the Indies, 1681) and France’s Code Noir (Black Code, initially written in 1685 but revised in 1724), regulated slavery as well as relationships between the enslaved and owners, enslaved and free people of color, and those of African and European descent. These jurisprudential codes were enforced but were also subject to local custom and influence, in which the Catholic Church and its ecclesiastical courts played a significant role. Beyond the stipulation that masters provide adequate food, clothing, and religious instruction, in New Spain the codes bore directly on women by requiring masters to honor marriage vows between slaves and keep enslaved couples together. For instance, the Code Noir stipulated that masters could not force slaves to marry against their will, sell wives and husbands away from one another, or separate parents from children. In addition, it provided a mechanism by which some enslaved women gained freedom through intermarriage, although it expressly prohibited marriage between enslaved women and free men. The law contained a proviso that if a man was unmarried “during his concubinage with this slave,” the couple could marry according to the church rules, and she and their children would be granted freedom. Such marriages remained relatively rare in the French period but gained recognition under Spanish rule. Similarly, under the Siete Partidas, ecclesiastical courts heard the complaints of enslaved wives who sought remedy or legal separation from abusive spouses. Moreover, enslaved couples occasionally successfully sued masters who failed to live up to the law in these regards.12

Not all women of African or Indian descent were enslaved, however, and the free black population, particularly in the upper South and urban areas, grew in numbers throughout the early period. A conservative estimate suggests that free blacks comprised up to 10 percent of the population in the upper South and were more numerous in urban jurisdictions such as Charleston, St. Augustine, and New Orleans. Women often predominated in the free black population. In the upper South, they outnumbered their free male counterparts by 2:1, and in New Orleans, for instance, where women comprised about half of the population of African descent, two-thirds of them were free. Like their European counterparts, free blacks were able to pursue and protect their rights under law; they could, for instance, own property, file lawsuits, make contracts, issue wills, and sue and be sued.13

Still, for mixed-race women in early America, their very ancestries meant that, while free, these women were differently marked by the legal system, and they occupied a status that differed from both their free white and enslaved black counterparts. In French Louisiana, free blacks could be returned to slavery and sold if they had been convicted of certain crimes (harboring runaways and theft, for instance) and were unable to pay their legal fines; in other jurisdictions, free black women were subjected to illegal trafficking.14 Across British North America, free blacks were legally designated as a debased class of people. In Pennsylvania in 1726, lawmakers required a bond on emancipated slaves, free blacks could be required to labor without pay, and free men of color could be sold into slavery if they married white women.15 In Virginia, a 1723 law for the most part barred manumissions. Free blacks purchasing a family member’s freedom would have to obtain the permission of the governor and council or ostensibly have to pay for their relative’s passage out of the colony.16 Across British North America, many free blacks were born as the products of mixed-race, out-of-wedlock unions, which meant that they became bound servants for their first two or three decades. By the terms of an early-18th-century Virginia law, children born to free women who had themselves been bound servants were required to serve the same amount of time as their mothers.17

In addition, when free women of color married enslaved men, those unions challenged early American understandings of household status in ways that the reverse (that is, when free men of color married enslaved women) did not. In a society in which patriarchal authority was enshrined in the law, free women of color who married enslaved men initially must have posed challenges to the logic of coverture. Under the law of domestic relations, a husband was vested in rights to his wife’s property and body upon marriage. There were limits, but husbands gained possessory rights to their wives’ personal and real property (including enslaved property); married women could not make contracts or buy or sell property, nor were they entitled to their own earnings without their husbands’ consent. This doctrine of coverture was at the time referred to as the law of “baron and feme,” meaning lord and woman rather than husband and wife. The challenge of the free wife with an enslaved husband was easily resolved, however: lawmakers extended coverture to mixed-status marriages and, when necessary, vested wives’ legal identities in the masters of their husbands.18

The need to distinguish among the various legal statuses of enslaved women, free women of color, and free women of European descent was evidenced early on in North American law. In mid-17th-century Virginia, for instance, statutes stipulated that adult women of color were to be taxed, like all men. However, adult white women were not taxed at all, with attempts to tax indentured white women proving unenforceable. These laws created some of the earliest statutory distinctions among free Virginia women and made race a “cornerstone” of womanhood. When confusion over the status of free black women arose a couple of decades later, a new law declared that, despite their freedom, they should not “be admitted to a full fruition of the exemptions and impunities” of English women. The taxes levied on women of color reflected the assumption that, unlike their white counterparts, free women of color were suitable for physically burdensome agricultural labor and occupied a debased position across colonial America. Further non-gender-specific legal disabilities followed in the early 18th century, when all free people of color were debarred from serving as witnesses in trials, except for those of slaves.19

From the fourth decade of the 17th century, then, the law was instrumental in shaping the meaning and experience of freedom along the lines of gender and race. Yet even for enslaved and free women of color, the law was rooted in time and place, in specific communities of real people. Local legal officials could and did on occasion acknowledge that marginalized individuals who, despite the seemingly strict statutory definitions of slavery and status, deserved redress in courts of law.

In contrast to enslaved and free African and Indian women and their descendants, female migrants from Europe were governed by the common law of coverture, plus specific colonial statutes that defined their access to property, the nature of their labor, and the contours of their speech. Regardless of their legal status along the continuum of enslaved and free, these women were able to use the courts to protect their interests in property as well as in attempts to safeguard their persons. For European women, upon marriage, a wife’s legal identity ceased to have a separate legal existence from her husband; in British law she was transformed from a feme sole (a single woman, a status that extended to widows) to a feme covert (a married woman), rendering her a legal dependent of her husband, unable, with important exceptions, to own property, make contracts, or collect wages. While these terms are specific to English law, French, Spanish, and Dutch law all placed greater or lesser restraints on married women, who were considered to be wards of their husbands. In contrast to the British model of coverture, for example, wives in Spanish America retained property rights during marriage; they retained legal control over their property and could will it independently of their husbands.20 While European women were legally disabled upon marriage, they had recourse to legal devices—prenuptial agreements, equity jurisdiction, feme sole trader status—that under certain circ*mstances ameliorated the harsh effects of the law. In addition, propertied women were accorded a degree of power based upon their rank; they were able to secure legal rights to act independently of their husbands, even when their marriages had disintegrated and the law provided no options for divorce.21

During the colonial period, European women in America remained entitled to the legal protections provided by imperial authorities, even when they occupied unfree statuses, such as indentured servitude. For instance, when masters or mistresses mistreated their indentured servant women physically or sexually or violated the terms of their labor contracts, the servants had a right to complain at the local court for redress; in some jurisdictions, their pleas met with remedies from the bench. Nevertheless, patriarchal models of authority prevailed, and despite their access to the courts, indentured women remained restricted by a series of laws that gave their masters extensive powers over them. They could not marry or travel while under contract, and if they ran away, became pregnant, or challenged their masters, they would be penalized with extra terms of service. While the law in Virginia, for instance, penalized masters who impregnated their servant women by freeing the latter, at the same time the statute averred that such women might be unfairly “induced to lay all their bastards to their masters” in order to gain their freedom. The statutory language is clearly indicative of class-based notions of dissolute sexuality. Indeed, the statutes enacted across imperial North America, like those iterated above, were devoted to creating and enforcing differences among women on the basis of not only race but class as well.22

Marriage

Native Americans understood a range of conjugal unions, only some of which paralleled the Western concept of marriage. Particularly, before contact with Europeans, when Native American law held sway, polygyny—the marriage of one man to several women—was a normal feature of many Native societies across the Americas, practiced mostly by elites. Most individuals in Indian communities engaged in monogamous unions with other individuals, but these could be dissolved at the discretion of either party. These marriages forged kin and clan associations, social bonds, and diplomatic alliances. However, where European trade networks, expansion, and settlements penetrated existing Native American communities, the colonizers attempted to align Native marital practices with their own laws. Marriage was central to European social and religious order, and in New England, New France, and New Spain, for instance, missionaries worked earnestly to persuade their converts of the superiority of European marriage; indeed, Native conjugal practices were a central institution that Europeans sought to control. In many cases, European and Indian conflicts over marriage reshaped gender roles of Native men and women.23

From the colonial southeast, across the continent, and in the southwest, marriage among Native Americans was a central instrument in brokering and fostering intercultural alliances. On imperial frontiers, for instance, intermarriage between European men and Indigenous women cemented diplomatic and economic alliances between Indigenous communities and European traders. Like their male counterparts, women indigenous to North America who married Europeans held a unique status, simultaneously within and outside the European legal systems. The French expression à la façon du pays—by the custom of the county—reflected the extent to which these marriages proceeded according to cultural convention rather than law. In a later period, some European men took advantage of this extralegality to dissolve these relationships when it suited them, something that would have been nearly impossible in marriages among whites. Nearer to European settlements, such customary marriages were also considered to be a means of assimilating enslaved Native American wives into the culture of their husbands, but it is important to recognize that these “marriages” usually rested on coercion rather than cooperation. As one scholar argues for New France, for captive Indigenous women, rising from slavery into freedom sometimes required “prolonged submission to what could be defined as serial rape.”24

Marital unions of enslaved men and women in British North America proceeded according to custom and generally carried no legal protections. However, in other European jurisdictions, marriages between slaves carried legal recognition. In 17th-century New Amsterdam, for instance, a group of enslaved men petitioned their owner, the Dutch West India Company, for their freedom and that of their wives. Their request was granted, but it came with significant qualifications and did not reflect the status of all New Netherland slaves. Those granted “half-freedom” were permitted to farm, but if they failed to pay an annual tax, they would be returned to slavery. Despite its limitations, the status of “half-free” helped to establish a more formal recognition of marriage. In addition, some enslaved women in New Netherland appear to have been successful in their requests for free status because of the value that whites placed on their domestic labor.25

In French and Latin America, slaves were often granted a limited legal personality with regard to marriage. While practices varied, several types of legally recognized marital arrangements seem to have been possible within and across the status of enslaved and free; occasionally, they were racially exogamous as well. Moreover, the legal recognition of marriages among slaves and between enslaved and free persons had the backing of ecclesiastical courts and the Catholic Church: depending upon jurisdiction, enslaved people could successfully sue masters who threatened to separate couples or families, for cruelty, and as well as to protect their property rights. Evidence from Latin America and French and Spanish Louisiana testifies to some official recognition of unions between slaves as well as between enslaved and free blacks, and, occasionally, between whites and blacks. When courts—usually ecclesiastical jurisdictions—ruled in favor of enslaved couples over masters, they upheld the legal primacy of marriage over slavery.26

In addition, in some jurisdictions marriage provided an avenue out of slavery. Despite its ban on interracial marriage, an early version of the Code Noir stipulated that concubines bearing children to unmarried free men would gain their freedom if the couple married. Although a later revision of the Code eliminated the legality of sex across the color line, interracial unions occurred, and some were sanctioned. Moreover, in comparison to English jurisdictions, the manumission policies under both the French and Spanish regimes were more liberal and defined for ex-slaves and free people of color. In particular, when the Spanish assumed power in Louisiana in 1769, slaves were able to make use of coaración, a legal mechanism that allowed them to purchase their freedom even when their masters were opposed. This accounted for half of all manumissions after the assumption of New Orleans. The conditions and legal regimes in Spanish settlements created a society in which racially mixed unions were tolerated and in which free blacks, and particularly the women who predominated among that population, enjoyed the possibilities of legal, social, and economic standing. Despite French and Spanish hostility towards free blacks, the imperial powers left unscathed many of their rights as subjects.27

The situation across colonial British America could not have been more different. Colonial statutes almost always proscribed marriage and sex between Europeans and African- or Indian-descended people, often under penalty of banishment.28 In many jurisdictions before the founding of the United States, these statutes were strictly enforced and offenders suffered penalties and punishments, but there were exceptions, particularly on the frontiers of settlement, where local custom sometimes tolerated such unions.29 Several types of marital unions existed among people of color across the early modern Americas. Some marriages had legal standing, others held tenuous claims to the law’s protection, and still others lacked legal sanction altogether. “Indian” or “Negro” marriages, as some colonists called them, were understood in various times and places as legitimate and legal, and Europeans likely recognized in them elements of what the English termed spousals or self-marriages. Extralegal, if locally recognized, unions seem to have predominated in regions such as the Chesapeake (as well as colonial Louisiana and Florida) and resulted from various causes, among them uneven sex ratios, the initial legal indeterminacy between slavery and servitude, religious attitudes, economic and political instability, and the mixing of Africans, Europeans, and Native Americans.

If free African- and Indian-descended women were able to marry under these terms, they could not expect that marriage would guarantee the protections and disabilities of coverture as their European counterparts did. Marriages between two enslaved spouses were denied legal protection altogether in British North America. Throughout the early modern Americas, political authorities tailored legal regimes, including the legalities of marriage, to reflect both imperial inheritance and the realities of New World settlements. The “Indian,” “Christian,” “Negro,” and “irregular” or common-law marriages found in 18th-century British North America did not carry the same legal protections that were evident in Latin America. Although religion often played a role in formalizing marriage among slaves in English colonies—the largest number of marriages occurred among slaves owned by ministers and deacons—ministers devised vows that emphasized masters’ full property rights over their slaves. At wedding ceremonies, enslaved couples or free persons of color marrying enslaved spouses were required to concede their owners’ right to sell and separate them.30

Marriage and slavery often existed in tension with one another as legal institutions, and many people of color attempted to negotiate the law’s conflicting aims, especially when one spouse was free and the other was enslaved and, as a result, their mixed-status marriage straddled the lines of freedom and slavery. Free black men in late colonial and revolutionary New England, for example, sought to exploit these competing tensions to their advantage. They sued the owners of their enslaved wives, arguing that their rights as husbands superseded the property rights of their wives’ masters and that the enslavement of wives deprived free black husbands of their rights. These legal strategies employed by plaintiffs set coverture against slavery and used the legal subordination of wives to husba claims that met with some success in the lower courts.31

Coverture positioned wives and husbands differently in marriage, of course. In late-18th-century New England, for instance, the rules of coverture were used to limit the rights of enslaved and free women. For instance, enslaved wives—despite the legal uncertainty of “Negro marriage”—could not sue for their freedom or file lawsuits on their own behalf because they were femes covert, although unmarried enslaved women could do so. In mixed-status marriages in which wives were free and husbands were enslaved, however, women could not consistently claim rights as heads of households and were forced to balance their rights as heads of households with their subordination as wives. Free women of color would need to carefully navigate the competing aims of masters, local courts, and statute law in order to keep their families intact. They would need to develop their skills as litigators and their legal acumen if they were to survive the shifting legalities of marriage and race occurring all around them.32

Crime

Although the association between women and the crime of witchcraft looms large in the contemporary imagination of early North America, women were far more likely to be accused of slander or defamation, sexual crimes, or running away than of felony witchcraft. In all of these cases, the crimes and their punishments intersected with and varied according to race and status under the law. Where women were the targets of defamation, for instance, the offending words typically cast aspersions on their sexual reputations and could also extend to accusations of interracial liaisons. For women, gossip was a way not only to judge others but also to enforce collective values. Slander was a major mechanism for women to exercise power in early modern America, a classic weapon of the weak; women had few other means to attack their enemies.33

Fornication outside marriage and bastardy, or out-of-wedlock pregnancy, predominated as crimes for which free women were prosecuted in early North America. In these and other cases involving free women’s bodies and reproductivity, legal testimony provided by midwives or matrons’ juries was used to establish paternity or the commission of a crime, such as infanticide. This was one of the few official functions of women before the colonial courts, one that recognized their legal expertise.

Prosecutions for fornication and bastardy occurred in the North American colonies throughout the colonial period. Some urban centers, such as Philadelphia and New Orleans, exhibited a relative tolerance for a range of sexual behaviors outside of marriage and an acceptance for unofficial marital practices; both of these spanned across class and race.34 The situation in New England and the Chesapeake was far different. In the former, a double standard—or the drive to hold women alone accountable for sexual infractions, rather than alongside their partners—emerged by the 18th century. Extramarital sex was punished with whippings or fines, even when the offending couple married, and, particularly in the early years of settlement, required public penance as well. Where servants were numerous, such as in the Chesapeake, lawmakers evidenced a concerted drive to prosecute their sexual crimes. Here, too, men were prosecuted alongside women; while the latter bore the brunt of punishments, the courts were interested in determining paternal identity in order to secure support for the child. Servant women who bore children out of wedlock in the time of their servitude were saddled with a year or two of extra service in order to pay for their misdeeds. Statutes in particular indicted the character of servant women who bore children out of wedlock. While they censured masters’ sexual relationships with their servant women, laws also cautioned that such women were likely to wrongly or falsely name their masters as the fathers of their out-of-wedlock children. Authorities also enacted particular punishments for white women who engaged in interracial sex, selling them into long-term labor contracts.

Prosecutions of sex crimes before the courts were shaped by racial considerations from nearly the beginning of settlement, and by the early 18th century some British colonial jurisdictions had written race-specific statutes punishing bastardy. In Virginia, mixed-race offspring of white women and men of color were sentenced to thirty years of service; similarly, the out-of-wedlock offspring of free women of color who had been servants in Virginia, for instance, were often bound over for similarly lengthy terms of service, typically thirty to thirty-one years. In the upper south, these laws effectively shaped the household polity for free blacks, creating a bound system of mixed-race, if nominally free, laborers. Many free mixed-race children became servants for at least the first three decades of their lives.35 Following English practice, local justices had discretionary powers to indenture the children of parents who were judged to be unable to provide for their offspring. As had been the case in England since the enactment of the 16th-century Statute of Artificers, it was perfectly acceptable to compel free individuals, if they were poor, to labor. Keeping family members together was less important to the law than forcing the poor to work.36

Unlike their free counterparts, enslaved women could not legally be construed to be mothers, because the legal status of slavery for the most part negated prosecutions for fornication and bastardy. In another point of contrast, enslaved women were subjected to plantation justice as well as the criminal justice system that lawmakers erected specifically for slaves. When they stood before the court as criminal defendants, African and Indian slaves and servants were more likely to be convicted than their European counterparts. Enslaved women were subjected to all manner of private punishments meted out by their masters or mistresses or, if tried in the separate slave courts established in Virginia and other slave colonies, they were convicted in a summary justice system and endured far more severe punishments than their free and European counterparts. Some evidence from after the period of the American Revolution suggests that local communities mitigated these punishments or more actively sought redress for enslaved women who had been convicted of crimes. In these cases, the abstraction of the law could be undercut by the concrete knowledge of communities, and cases, even those involving slaves, could hinge on local knowledge.37

Conclusion: Toward the American Revolution

Historians of early American women have argued for some time that the Revolution did not substantially alter the legal status of free women. The Revolution did not challenge coverture or alter the law of domestic relations, and, in fact, female subordination may have even been strengthened in the landscape of the early Republic. Legal changes in the wake of the Revolution did, however, liberalize complete divorce in the United States. While colonial statutes had allowed partial divorces in the form of legal separations (a mensa et thoro), only a few jurisdictions had offered absolute divorce (a vincula) either through the courts, as in Connecticut, or through private legislative act. Making divorce, albeit on the premise that one party was at fault, more widely available carried fairly radical implications for marriages involving free women.

The Revolution did, however, alter the landscape of slavery in the new United States. Northern states, where slavery was never as directly central to the labor system as it was in the south, began enacting gradual emancipation statutes in the wake of the American Revolution. Although in the southern colonies the earliest codes defining racial slavery were elaborated throughout the colonial period and remained in place through the Civil War, a wave of manumissions in the upper south followed in the wake of the American Revolution, when legislators briefly liberalized emancipation statutes. In the north, free women of color became involved in antislavery work; in the south, they became active petitioners and litigants in court, seeking to maintain or secure the freedom of themselves and their families. Yet, while slavery may have been dismantled or compromised in some jurisdictions, that did not quell racism. In contrast, the U.S. acquisition of Louisiana in 1803 introduced laws in the former French territory that hardened the boundaries between enslaved and free and limited the freedoms of its free black population. Manumissions were restricted to those above the age of thirty, and newly freed individuals were ordered to leave the territory. Marriages across status (between enslaved and free people) were outlawed, as were interracial unions. The lines of legitimate inheritance, previously much more expansive in Louisiana, were changed to strictly follow marriages. In addition, while Pennsylvania repealed its ban on interracial marriage in 1780, existing and new statutory laws against interracial marriage and sex were strengthened and spread through much of the new United States. Some Indian nations also enacted prohibitions against intermarriage with African Americans. The altered landscape of slavery in the aftermath of the American Revolution had some liberatory consequences for women of color, but its more repressive features are the ones that truly mark the institution through the eve of the Civil War.38

Discussion of the Literature

The earliest studies of women and the law in early America include Richard B. Morris, Studies in the Early History of American Law, With Special Reference to the Seventeenth and Eighteenth Centuries (1930); Julia Cherry Spruill, Women’s Life and Work in the Southern Colonies (1932); and Mary Ritter Beard, Woman as Force in History: A Study in Traditions and Realities (1946). A renewed concern for the topic remerged alongside feminism in the 1970s, and by the early 21st century the intersection of gender and the law had become an established subfield of both U.S. women’s history and early American studies. One early expression of the need to consider the gendered politics of law can be seen in Linda K. Kerber, et al., “Beyond Roles, Beyond Separate Spheres: Thinking about Gender in the Early Republic.”39 The intersection of the law with gender and racial formation in early America is a touchstone in Kathleen M. Brown’s influential review essays, “Brave New Worlds: Women's and Gender History”40 and “Beyond the Great Debates: Gender and Race in Early America,”41 as well as in her book Good Wives, Nasty Wenches, and Anxious Patriarchs: Gender, Race, and Power in Colonial Virginia.42 See also Sharon Block and Kathleen M. Brown, “Clio in Search of Eros: Redefining Sexuality in Early America”;43 Karin Wulf, “Women and Families in Early (North) America and the Wider (Atlantic)”;44 and Terri L. Snyder, “Refiguring Women in Early America.”45

The earliest works on early American women and the law focused almost exclusively on British America—mostly on New England—and the realms of women’s legal status, property, and domestic relations. These include Marylynn Salmon, Women and the Law of Property in Early America;46 Linda K. Kerber, Women of the Republic: Intellect and Ideology in Revolutionary America;47 Joan R. Gundersen and Gwen Victor Gampel, “Married Women’s Legal Status in Eighteenth-Century New York and Virginia”;48 Mary Beth Norton, Liberty’s Daughters: The Revolutionary Experience of American Women, 1750–1800;49 and Linda E. Speth, “‘More than Her Thirds’: Wives and Widows in Colonial Virginia.”50 Although not explicitly focused on legal history per se, legal status is foundational to the work of Lois Green Carr and Lorena S. Walsh, “The Planter's Wife: The Experience of White Women in Seventeenth-Century Maryland.”51 Historians have also evidenced an interest in crime, including, of course, witchcraft. See for instance Barbara S. Lindeman, “‘To Ravish and Carnally Know’: Rape in Eighteenth-Century Massachusetts”;52 John Putnam Demos, Entertaining Satan: Witchcraft and the Culture of Early New England;53 N. E. H. Hull, Female Felons: Women and Serious Crime in Colonial Massachusetts;54 and Carol F. Karlsen, The Devil in the Shape of a Woman: Witchcraft in Colonial New England.55

In the 1990s, historians began to consider women’s relations to the law from a variety of perspectives, focusing particularly on women’s appearances in court. Their work evidenced a concern for the larger implications of legalities for power relations in society, with work on the Chesapeake and New England still predominating. See for instance, Cornelia Hughes Dayton, Women Before the Bar: Gender, Law, Society in Connecticut, 1639–1789;56 Susan Juster, Disorderly Women: Sexual Politics and Evangelicalism in Revolutionary New England;57 Deborah A. Rosen, Courts and Commerce: Gender, Law, and the Market Economy in Colonial New York;58 and Kathleen M. Brown’s radical rethinking of women’s legal status in conjunction with changing race and class relations in Good Wives, Nasty Wenches, and Anxious Patriarchs: Gender, Race, and Power in Colonial Virginia.59 Mary Beth Norton offered a comparative examination of gendered power in the households and communities of 17th-century New England and the Chesapeake in Founding Mothers and Fathers: Gendered Power and the Forming of American Society.60 In Not All Wives: Women of Colonial Philadelphia,61 Karin A. Wulf shifted attention to the legal status of unmarried women in mid-Atlantic Philadelphia. Other works investigating women’s experiences in the courts include Kirsten Fischer, Suspect Relations: Sex, Race, and Resistance in Colonial North Carolina;62 Linda L. Sturtz, “Within Her Power”: Propertied Women in Colonial Virginia;63 Terri L. Snyder, Brabbling Women: Disorderly Speech and the Law in Early Virginia;64 Sharon Block, Rape and Sexual Power in Early America;65 and Clare A. Lyons, Sex Among the Rabble: An Intimate History of Gender and Power in the Age of Revolution, Philadelphia, 1730–1830.66 See also Holly Brewer, “The Transformation of Domestic Law.”67 Some studies focusing explicitly on marriage—particularly irregular marriage—include Richard Godbeer, Sexual Revolution in Early America68 and Carole Shammas, A History of Household Government in America.69

A growing literature on Indigenous women has provided a much-needed corrective to the predominance of Anglo America. Even more importantly, this material has fundamentally altered the geographical scope of early American history. Important titles include Sylvia Van Kirk, Many Tender Ties: Women in Fur-Trade Society, 1670–1870;70 Ann Marie Plane, Colonial Intimacies: Indian Marriage in Early New England;71 Sarah M. S. Pearsall, “‘Having Many Wives’ in Two American Rebellions: The Politics of Households and the Radically Conservative”;72 Susan Sleeper-Smith, Indian Women and French Men: Rethinking the Cultural Encounter in the Western Great Lakes;73 James F. Brooks, Captives and Cousins: Slavery, Kinship, and Community in the Southwest Borderlands;74 Ann Little, Abraham in Arms: War and Gender in Colonial New England;75 Juliana Barr, Peace Came in the Form of a Woman: Indians and Spaniards in the Texas Borderlands;76 Kathleen DuVal, “Intermarriage and Métissage in Colonial Louisiana”;77 Daniel Mandell, Tribe, Race, History: Native Americans in Southern New England, 1780–1880;78 Michelle LeMaster, Brothers Born of One Mother: British-Native American Relations in the Colonial Southeast;79 and Brett Rushforth, Bonds of Alliance: Indigenous and Atlantic Slaveries in New France.80 An instructive treatment of the Creek Mary Musgrove Bosomworth’s negotiation of European legalities can be found in Joshua Piker, The Four Deaths of Acorn Wheeler: Telling Stories in Colonial America.81

Similarly, the literature on enslaved and free women of color, both within and outside of British North America, has measurably deepened in recent years. Although not explicitly focused on early America, Deborah Gray White, Ar’n’t I a Woman: Female Slaves in the Plantation South, remains an indispensable starting point for the study of women and slavery. Jennifer L. Morgan concentrates explicitly on the early modern period in Laboring Women: Reproduction and Gender in New World Slavery.82 Works examining race and gender in southern Spanish and French North American and Caribbean possessions include Barbara Bush, Slave Women in Caribbean Society, 1630–1838;83 the essays collected in The Devil’s Lane: Sex and Race in the Early South, ed. Catherine Clinton and Michelle Gillespie;84 Jane Landers, Black Society in Spanish Florida;85 Jennifer M. Spear, Race, Sex, and Social Order in Early New Orleans;86 Emily Clark, The Strange History of the American Quadroon: Free Women of Color in the Revolutionary Atlantic World;87 Hilary McD. Beckles, Natural Rebels: A History of Enslaved Women in Barbados;88 Christine M. Walker, “Pursuing Her Profits: Women in Jamaica, Atlantic Slavery and a Globalising Market, 1700–60”;89 and Heather Miyano Kopelson, Faithful Bodies: Creating Religion and Race in the Puritan Atlantic.90

Primary Sources