I recently went to a lecture entitled “Race, Law and Women’s Rights” given by Professor Gloria Brown-Marshall, Associate Professor at John Jay College (CUNY). In the talk, Professor Brown-Marshall wove a vibrant tapestry of the interaction of American law and African Americans, in particularly African American women, from the 17th century to the present.
I was particularly struck by the contrast of two early events she mentioned from the fledgling Virginia colony. They show how quickly Blacks’ outsider status, wed with greed for free labor, shaped the American legal system. But to me, perhaps naively, the contrast of the two also represents a crossroads that shows what might have been. The development of a legal system that placed African Americans entirely outside the Family of Man – and the legacy therefrom, with which we are still dealing –was not inevitable.
The first case involved a young woman, Elizabeth Key, whose mother was a slave and whose father was a white Englishman who freely acknowledged his paternity and her free status by virtue of his parentage. Upon deciding to return to England, he entered into a contract with another white colonist, which subjected Ms. Key to a nine year period of indenture. At the end of her indenture, she sued for her freedom, based on contract law and the fact that she was a Christian and her father a free Englishman. She won at trial but lost on appeal to the colony’s highest court. She then appealed to the House of Burgesses, which, in 1656, overruled the courts and upheld the end of her indenture and her free status.
The second event occurred just five years later. In 1662, the House of Burgesses reversed itself and ignored the precedents of English common law, decreeing that the status of a mother determined the freedom or slavery of her offspring. Every year thereafter for at least the next decade, the legislature passed additional legislation that distinguished a person’s status by his or her skin color and buttressed the foundation of hereditary chattel slavery.
One could argue that even if a father’s status continued to determine the status of his offspring, that would still have led to the same end. White men would have denied their paternity and their children would remain slaves. Perhaps, that is true. But by making the paternity of a child totally irrelevant, particularly given the patriarchy of the period, the ruling cemented the worst of all possible outcomes – hereditary bondage and the total indifference of the judicial system to sexual and paternal irresponsibility of white men toward black women and children.