By Karin Wulf

Through partus sequitur ventrem, the law of maternal heritable slavery, enslavers created lineages of enslavement that enriched themselves and their heirs at direct cost to generations of African and African-descended people. Translated as something like “the offspring follows the womb,” partus made women the vessels of slavery itself as the British enslaved their children. As Jennifer Morgan has written in her recent, prize-winning book, Reckoning with Slavery, for women “to be enslaved meant to be locked into a productive relationship whereby all that your body could do was harnessed to accumulate capital for another” ^[1] Enforcing partus was a key feature of systemic, centuries-long violence to individuals, families, and communities.^[2]

But an important feature of the power of partus in the British American context has been missing: as law, it was limited and even uncertain. Partus was not pervasive law in eighteenth-century British American colonies. In 1662, the Virginia legislature staked out the position that is recognizable today as partus: “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.”^[3] Children whose mothers were enslaved would be enslaved. Children whose mothers were free would have grounds to argue for their freedom, though whether they were positioned to make that case depended on a variety of scarce resources. In Maryland, heritability was law, but by descent from either a mother or father who was enslaved. Partus became law in New York for “all and every Negro, Indian Mulatto and Mestee Bastard Child & Children” in 1706; South Carolina echoed Virginia’s law in 1740; and Georgia followed suit in 1754.^[4] But that’s where it ended. This has not gone completely unnoticed; as legal historian Christopher Tomlins observed, initially “Virginia embraced matrilineal heritability in isolation.”^[5] Still, the presumption that partus was so foundational to American slavery means that even scholars may be startled to learn just how limited it was– legally. 

It wasn’t only statute law that was missing. Though heritable slavery, and maternal heritable slavery in particular, had been part of complex European civil and common law traditions, scholars have long debated both the origins and the extension of laws of slavery –including partus– as adapted and applied to the societies of the Atlantic slave trade. As Lee Wilson demonstrates in her recent book on slave law in South Carolina and across the British empire, and as many scholars of slavery have argued, British common law of property was adapted to fit slavery, and enslaved people were recognizable as property at every level and type of court. In other words, it was not only statute that would make slavery law, but court actions, and the courts were consistent on behalf of treating enslaved people as property.^[6]

Yet courts were not at all consistent about partus and about the status of enslaved women’s children– or at least the scholarship thus far hasn’t shown that. Instead, we see a much more varied, perhaps even weaker and certainly contested, application of partus. For example, William Thomas’s A Question of Freedom tracks a complex series of court actions by enslaved families who fought for their freedom and highlighted their descent from free women in the course of which the very question of how exactly Maryland’s laws of heritable slavery would be faced – and were mostly dodged or narrowly determined.^[7]

As brief windows of manumission opened (notably in Virginia in the 1780s) and more freedom suits were filed and contested (as in the cases Thomas details), but also as slavery’s geography and legal reach became enmeshed with the American antebellum empire and with abolition, the ground shifted again. Partus was addressed in the context of both inheritance and freedom cases (manumission and freedom suits). In the United States more–but far from all–southern states enacted partus laws in the nineteenth century and more judicial decisions around inheritance and freedom disputes took up some of the particular issues of partus directly.^[8] In 1849, Virginia’s legislators, for example, finally stepped in to clarify that if a woman was made free by virtue of an enslaver’s will, then her children born from the moment of the testator’s death would also be free.^[9]

Does it matter that partus was not law across much of colonial British America? After all, it was assertive law in Virginia longest. Virginia was the largest colony by total population and by population of enslaved people, and the proud contributor to the new nation of not only its first but four of its first five presidents–all of them enslavers. Thomas Jefferson revealed the full horror of slavery’s reach into families in so many ways, not least in enslaving his own children with Sally Hemings. In 1820, he made plain the purpose of partus: in a letter to his son-in-law, John Wayles Eppes, Jefferson noted that “I consider a woman who brings a child every two years as more profitable than the best man of the farm. what she produces is an addition to the capital, while his labors disappear in mere consumption.”^[10]The energy that white, powerful Virginians invested in creating a legal architecture that advantaged them at the expense of enslaved people would fuel America’s deeply entrenched racism for centuries.

Partus wasn’t the only coercive practice enslavers used to attack and disrupt intimacy and kinship among enslaved people.^[11] More pervasive and consistent than partus were laws that regulated, mostly disallowing, marriage by enslaved people or by people across legally constructed categories of color and freedom status. As a legal structure, marriage was meant to cement gender hierarchies, but clashed with racial hierarchies when the competing claims of husbands and enslavers to enslaved women and children could not be reconciled.^[12] Laws against marriage prevented children of enslaved mothers, or most children of Black mothers or fathers, from being legally legitimate. New York’s early eighteenth-century law, for example, had emphasized that “bastard” children would follow their mother’s status; because their mothers and fathers could not marry, there was no possibility of a woman’s children notbeing construed as illegitimate.

Most importantly, many enslavers’ ambitious and broad practice of partus seemed to regularly exceed the law. It was as if the question was resolved; as if not only the children of an enslaved woman but all of her potential children, too —her “increase” — was theirs to own and to distribute as they would any property. Thomas Morris put it succinctly in his analysis of Southern Slavery and the Law: “Slaveowners behaved as if they could bequeath unborn children.”^[13]And in New England, where marriage among enslaved people was encouraged for a time, historian Lorenzo Greene was even more succinct, arguing that where partus was concerned, “custom and tradition achieved the same end” as law.^[14] Every time an enslaver in a colony or state without a clear statute or precedent invoked a right to a woman’s children (the euphemism of “her increase”), they underscored their power to act beyond the law. 

Partus was said to be, assumed to be, and in a few places–albeit very important places–was the law. Yet, in most places in the colonial British Americas, it was not the law, but the assumption, assertion, hubris, and the powerful privileges of enslavers that made and kept children enslaved if their mothers were enslaved. Creating lineages of slavery to match their own lineages of property, they confirmed the central tenets of inheritance in the British Americas, with violently opposing consequences. Slavery and slave law was no coherent monolith that became undone by the nineteenth century and emancipation; slavery was a violent institution constantly in search of making itself secure. We know this. But partus’s role in this complex picture is crucially important as we discern the centrality of gender and family, intimacy and kinship, at the center of both slavery itself and of enslaved people’s regular, persisting efforts to employ legal and other levers to make freedom rather than slavery the premise of their lives.

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Karin Wulf is Beatrice and Julio Mario Santo Domingo Director & Librarian of the John Carter Brown Library, and Professor of History at Brown University. A historian of gender, family, and politics, she is finishing Lineage: Genealogy and the Power of Connection in Early America for Oxford University Press.

Title image: Hening’s Statute’s. Source: Encyclopedia of Virginia, https://encyclopediavirginia.org/1448-130aa14e39d5a5a/

Further Readings:

Jessica Marie Johnson, Wicked Flesh: Black Women, Intimacy, and Freedom in the Atlantic World. University of Pennsylvania Press, 2020.

Nicole Saffold Maskiell, Bound by Bondage: Slavery and the Creation of a Northern Gentry. Cornell University Press, 2022.

Jessica Millward, Finding Charity’s Folk: Enslaved and Free Black Women in Maryland. University of Georgia Press, 2015.

Jennifer L. Morgan, “Partus Sequitur Ventrem: Law, Race, and Reproduction in Colonial Slavery,” Small Axe 55 (March 2018): 2-17.

William G. Thomas, A Question of Freedom: The Families Who Challenged Slavery from the Nation’s Founding to the Civil War. Yale University Press, 2020.

Endnotes:

^[1] Jennifer L. Morgan, Reckoning with Slavery: Gender, Kinship, and Capitalism in the Early Black Atlantic (2021), 5.

^[2] Diana Paton has summarized the expansive impact of assumptions about maternal heritability that pervaded other imperial contexts; based on Roman law and then instantiated in Portuguese, Spanish, and French American colonies, the appropriation of women’s reproduction to perpetuate slavery was just one more manifestation of the gross gendered and racial hierarchies in law and society. Paton, “Gender History, Global History, and Atlantic Slavery: On Racial Capitalism and Social Reproduction,” American Historical Review (June 2022): 726-754.

^[3] William Waller Hening, ed., The Statutes at Large; Being a Collection of All the Laws of Virginia from the First Session of the Legislature, in the Year 1619 (New York: R. & W. & G. Bartow, 1823), 2:170. The Latin was added in a compilation of the laws in the early nineteenth century. Online at the Encyclopedia of Virginia: https://encyclopediavirginia.org/entries/negro-womens-children-to-serve-according-to-the-condition-of-the-mother-1662/

^[4] For New York’s 1706 law: https://cdm16694.contentdm.oclc.org/digital/collection/hhs/id/521

^[5] Christopher Tomlins, Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1680-1865 (Cambridge University Press, 2010), 458. Tomlins carefully unpicks the transmission of Virginia’s law from a putative origin in Barbados and from the Roman tradition to point out its peculiarity.

^[6] Wilson, Bonds of Empire: The English Origins of Slave Law in South Carolina and British Plantation America, 1660-1783 (Cambridge University Press, 2021). Wilson’s careful analysis of how enslaved people were treated by the law as chattel does not address partus except in a footnote about the 1740 statute. Similarly, Claire Priests’s important study of how colonial then American property law came to privilege creditors focused on the treatment of slaves as property (that could be deployed to or seized to satisfy debts). Priest, Credit Nation: Property Laws and Institutions in Early America (Princeton University Press, 2021). Holly Brewer, in her focus on the origins of legal logic and legality as residing with the restored monarchy (and their connection with the Royal Africa Company), does not clarify or address substantially the question of partus: Brewer, “Slavery, Sovereignty and “Inheritable Blood”: Reconsidering John Locke and the Origins of American Slavery,” American Historical Review see pp. 1049 and 1071-1072; “Creating a Common Law of Slavery for England and its New World Empire” Law and History Review 39:4 (2021), 764-834.

^[7] William G. Thomas III, A Question of Freedom: The Families Who Challenged Slavery from the Nation’s Founding to the Civil War(Yale University Press, 2020). Thomas points out that Maryland’s complex legal landscape included an unusually heavy reliance on the common law, and thus the judiciary’s findings in particular cases and circumstances. Enormously consequential decisions he points to include the exclusion of hearsay testimony for lineages in freedom suits.

^[8] Thomas Morris, Southern Slavery and the Law, 1619-1860 (University of North Carolina Press, 1995), 47-48.

^[9] Morris, Southern Slavery and the Law, 1619-1860, 411. For earlier cases that raised these questions, Diane J. Klein, “Emacipation Unlocke’d: Partus Sequitur Ventrem, Self-Ownership, and No “Middle State” in Maria vs. Surbaugh,” University of Maryland Law Journal of Race, Religion, Gender and Class 20: 1 (2020): 73-111.

^[10] “Thomas Jefferson to John Wayles Eppes, 30 June 1820,” Founders Online, National Archives, https://founders.archives.gov/documents/Jefferson/03-16-02-0052. [Original source: The Papers of Thomas Jefferson, Retirement Series, vol. 16, 1 June 1820 to 28 February 1821, ed. J. Jefferson Looney et al. Princeton: Princeton University Press, 2019, pp. 64–68.] Accessed via Founders Online: https://founders.archives.gov/documents/Jefferson/03-16-02-0052

^[11] As Jennifer L. Morgan and others have argued. Morgan notes that “slavery intended to rob people of the capacity to “have family represent something other than the expansion of someone else’s estate., Reckoning with Slavery: Gender, Kinship, and Capitalism in the Early Black Atlantic (2021), 5.

^[12] Tera Hunter, Bound in Wedlock: Slave and Free Black Marriage in the Nineteenth Century (Harvard UP, 2017), see esp. p. 17: “Above all marriages had no legal footing between slaves because of the primary right of the master to control his property as he saw fit.” Daina Ramey Berry describes an illustrative example of an enslaved woman’s experience of intimacy, marriage, and children across sales and separations. See The Price for their Pound of Flesh: The Value of the Enslaved, from Womb to Grave, in the Building of a Nation (Beacon Press, 2017), 16-17.

^[13] Morris, Southern Slavery and the Law, 89.

^[14] Lorenzo J. Greene, The Negro in Colonial New England (Kennikat Press, 1942), 126.