In 1725, Jane Webb, a free woman of color, sued Thomas Savage, a slave owner and middling planter, in Northampton County Court, on the Eastern Shore of Virginia. Webb v. Savage was an unusual lawsuit, the culmination of over twenty years of legal wrangling between two parties who had an uncommon and intimate connection. The case originated in a 1703 contract between the pair, and at the time it was written, its terms, assumedly, were clear and mutually agreed upon. Two decades later, however, a tangled skein of circumstances obscured the stipulations of that original agreement. Over the course of those same years, the legal meaning of freedom for individuals like Jane Webb had fundamentally changed. Both fraught interpersonal relations and the evolution of race-based law mattered to the 1725 chancery case for one simple reason: Thomas Savage owned Jane Webb's husband.Footnote ¹ Despite the fact that Webb's spouse, named only in the records as Left, was enslaved, their marriage was legally recognized, and the seven children born to the couple, following the legal doctrine partus sequitur ventrum, took their free status as well as their surname from their mother.Footnote ²

Jane Webb's irregular marriage was only one example in a range of possible unions among people of color across the early modern Americas. Some of these marriages had legal standing, others held tenuous claims to the law's protection, and still others lacked legal sanction altogether. Irregular marriages could be found particularly wherever slavery – including Native American slavery—existed, and, similar to slavery, these unions varied by region and, depending upon their purposes, could reach across lines of race and status. On imperial frontiers, intermarriage between European men and Native American women cemented diplomatic and economic alliances between communities and traders. The French expression à la falcon du pays—the custom of the county—reflected the extent to which these marriages proceeded according to cultural convention rather than law. Nearer to European settlements, irregular marriages were also considered to be a means of assimilating enslaved Native American wives into the culture of their husbands.Footnote ³ Irregular unions occurred in regions such as the Chesapeake, Louisiana, and Florida as a result of, for example, uneven sex ratios, legal indeterminacy between slavery and servitude, religious attitudes, economic and political instability, and the mixing of Africans, Europeans, and Native Americans. Variations in marriage practices were also a feature of port and urban jurisdictions such as Charleston, St. Augustine, and New Orleans, particularly after 1769, when Spain directly encouraged the growth of the gens de couleur libres.Footnote ⁴ In short, irregular marriages flourished in societies with slaves and persisted as those regions evolved into fully fledged slave societies.Footnote ⁵

Throughout the early modern Americas, political authorities tailored legal regimes, including the legalities of marriage, to reflect both imperial inheritances and the realities of New World settlements. Irregular marriage was tolerated in England, for example, and in British North American settlements, marriage practices eventually encompassed unions across the status of slave and free, although they were proscribed across lines of race. Other forms of irregular marriage existed at the edges of European empire. In seventeenth-century New Amsterdam, for example, formal recognition was accorded to selected slave marriages. Some couples were later granted a status of “half-freedom” by the governor, a testimony to the potential benefits of an official, recognized union, even among slaves. The Code Noir and the Siete Partidas in force throughout early modern French settlements and Latin America, respectively, in theory granted slaves a limited legal personality, particularly with regard to marriage. Although actual practice varied, a variety of legally recognized marital arrangements seem to have been possible within and across status and, occasionally, race. 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, on the grounds of cruelty, and to protect their property rights. These types of legal protections were stronger in Spanish settlements in South America, although evidence from both Florida and New Orleans testifies to some official recognition of unions between slaves as well as between enslaved and free blacks, and, very occasionally, between whites and blacks.Footnote ⁶ In contrast, “Christian,” “Negro,” or common law marriages can be found among slaves and between enslaved and free persons of color in eighteenth-century New England, but they did not carry the same legal protections that were evident in Latin America. Although, in New England, religion played a role in formalizing marriage among slaves—the largest number of marriages occurred among slaves owned by ministers and deacons—ministers devised vows to 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 to their owners’ rights to sell and separate them.Footnote ⁷

As legal systems, marriage and slavery often existed in tension with one another. Many individuals in irregular marriages were forced 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.Footnote ⁸ Free black men in 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. In 1760, one plaintiff invoked coverture when he wrote to a member of the Massachusetts’ Governor's Council, explaining that he had married an enslaved woman and asking if he was therefore entitled to “‘[take her] a way and hold [her] by law.’” Another plaintiff similarly appealed to the law of domestic relations when he claimed damages because his wife's continued enslavement deprived him of his rights as a husband.Footnote ⁹ The legal strategies employed by both plaintiffs set coverture against slavery and used the legal subordination of wives to husbands as the basis for claiming freedom for the former.Footnote ¹⁰ In a parallel situation in Latin America, both husbands and wives challenged the right of their masters to separate them. When the court ruled in their favor, it upheld the legal primacy of marriage over slavery. In contrast, in New England, challenges to slavery based on marital rights featured only husbands as plaintiffs. Their lawsuits were based on their claims to the privileges of patriarchy, claims that met with some success in the lower courts.Footnote ¹¹

In mixed status-marriages in which wives were free and husbands were enslaved, however, women faced a very different set of legal tensions. They could not, as their male counterparts did, claim the rights of patriarchal privilege, even if they were heads of households. Coverture positioned wives and husbands differently in marriage: as dependants in marriage, wives simply could not claim proprietary rights to their enslaved husbands. In late eighteenth-century New England, for instance, the rules of coverture were used to limit the rights of enslaved and free wives of color: enslaved women could not sue for their freedom, although single and widowed female slaves could do so, and free black wives were prevented from filing lawsuits on their own behalf because the courts would not extend those rights to feme coverts.Footnote ¹² Before the Revolution free wives in mixed-status marriages had to balance their rights as heads of households with their subordination as wives.

For free wives of color, then, the law was neither simply repressive nor liberatory. As technically free persons, they could attempt to secure their legal rights in local courts, but they acted in the shadow of the harsh statutes of slavery and race-based law. Local legal officials and masters could, if they chose, tolerate and accommodate the rights of wives in mixed-status marriages, but, at the same time, statute law made it apparent that free blacks were to be made “sensible” of their legal, social, and political differences from Anglo-Americans.Footnote ¹³ By the third decade of the eighteenth century, the already circumscribed privileges claimed by free wives of color were diminishing, a fact that opened the door for considerable slippage between freedom and slavery for persons of color. Jane Webb learned this first hand when one of her daughters was sold as a slave and shipped north to New Hampshire.Footnote ¹⁴ In light of this constricted legal environment, free black women in mixed-status marriages would need to carefully navigate the competing aims of masters, local courts, and statute law in order to keep their households 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.

This article presents a case study of free women of color, such as Jane Webb, in mixed-status marriages in early Virginia. In the pages below, I analyze how these wives negotiated the complex and competing legalities of slavery, freedom, and marriage in early Virginia over the course of the long eighteenth century. In some ways, these irregular unions, although sanctioned in local legal jurisdictions, challenged coverture and compromised the law of slavery. My preliminary investigation has yielded a handful of women who married enslaved men on Virginia's Eastern Shore, from the late seventeenth through the mid-eighteenth century. The number of cases is small because the sources that document the lives of these women and their mixed-status marriages are sporadic, incomplete, and intensely local. Aside from county court, parish, and estate records from which historians have learned so much about the practical meanings of women's legal status in early America, little surviving evidence allows us to detail the experiences of free women of color.Footnote ¹⁵ Yet, their stories provide important perspectives on marriage and race in local legal jurisdictions before the Revolution, and also shed light on the rights consciousness of some of the most marginalized of early American women.Footnote ¹⁶

While this article considers a handful of cases and presents preliminary conclusions, Jane Webb's mixed-status marriage was not anomalous in the early British America. Like other forms of irregular marriage, mixed-status marriages were visible and regular in Southern jurisdictions from the colonial period through the eve of the Civil War. Moreover, Virginia—Jane Webb's home—is an ideal place to begin this study. The two counties that comprise Virginia's Eastern Shore—Accomack and Northampton—were home to the largest population of free blacks from the seventeenth century through the Civil War. Free blacks made up nearly 10% of the population during this period and they frequently used the local courts to guard against the erosion of their rights.Footnote ¹⁷ And, as was the case on the Shore and in much of the South through the antebellum years, free black women outnumbered their male counterparts by as much as 2:1, and approximately 10% of these women found official mates from the ranks of the enslaved. This figure arguably underestimates the actual numbers of such marriages, many of which remained informal, as free and enslaved spouses may have chosen unions without legal recognition.Footnote ¹⁸

Mixed-status unions were not unusual, then, and like irregular marriages generally across early America, they hold significance for us because they reflect how the legal apparatus and power of the state was brought to bear on individual households. These marriages also bring into sharp relief the legal strategies of free wives of color who claimed their rights as subjects, simultaneously acting as wives, mothers, and heads of households. Although these cases display women's attempts to negotiate local justice and counter the disabilities of statue law, they also show how magistrates and masters interpreted the legalities of coverture and slavery to support their own ends. Ultimately, they controlled how the law was construed. They tolerated irregular marriages because doing so allowed them to stabilize slavery and blur the distinctions between slavery and freedom in their favor. Most importantly, in considering the interplay between the free wives’ claims to rights and the law's repressive aims, this study of mixed-status unions—marriage on the margins—refines our understanding of what was possible for free women of color under the law in early America.

Three Perspectives on Mixed-Status Marriages in Early North America

When Jane Webb and Thomas Savage made their initial contract in 1703, they operated in the interstices of the law. No Virginia law expressly debarred a free black woman from marrying a slave although interracial marriage had been prohibited since 1691. What was Webb's status, legally speaking? How did it operate in reality? Webb v. Savage compels us to rethink our assumptions about women's experience under the law in early America. Just as the legal status of free wives married to enslaved men resisted any easy demarcation of either feme sole or feme covert, so, too, their stories have eluded us. The legal ambiguity represented by these wives provides a corrective to the now-classic formulations of women's relationship to early American law and society. To consider their experiences alongside those of goodwives, deputy husbands, fictive widows, republican mothers, or enslaved women allows us to comprehend not simply one more group in the range of women's experiences under the law but, rather, the disproportionate impact of the law on racially and economically disadvantaged women.Footnote ¹⁹ In the colonial period, the law operated mightily in the daily lives of free wives of color: they were taxed (unlike white women), their claims to their children were tenuous (because of their race and poverty), and their husbands’ owners claimed rights of mastery over these wives, too.

Relative to other early American women, free wives of color married to slaves lived their lives in a sustained dialogue with the early American courts. They did so out of necessity, using the law instrumentally to protect their own freedom and that of their families. Local legal institutions initially tolerated these mixed-status marriages and recognized the rights of wives as heads of their households, up to a point. Ironically, however, their legal activism on the local level drove the development of increasingly repressive statute laws. By the 1730s, laws restricted and curbed their freedom, fractured their family lineages, and positioned them closer to the status of enslaved rather than of free persons. Moreover, their indefinite position under the law was compounded by uncertainty about their race, as most of these free wives had mixed race parentage—African, Anglo, and/or Native American – which the law found difficult to sort out.Footnote ²⁰

I offer three perspectives from which to consider the free wives of enslaved men in early Virginia jurisdictions. First, I explore the ramifications of their anomalous position under the law. It likely was not immediately clear to anyone in early America how the doctrine of coverture encompassed the free wives of enslaved husbands. In pre-1750 Virginia, a free woman of color who married an enslaved man was understood to be a kind of permanent feme sole, despite her marriage. The customary legal subordination of a wife to a husband under the law of domestic relations was made more complicated. The somewhat reversed status of the wife and husband is precisely what made these marriages irregular, if legal: an enslaved husband lacked legal personhood under the law; his wife, although legally recognized as a feme covert, headed the marital household. These legal ambiguities were sources of vulnerabilities for wives in mixed-status unions; and such uncertainties required no small measure of legal acumen on the part of those wives.Footnote ²¹ Unlike the wife of a free man (regardless of race), who had little direct relationship to the polity during her marriage, or an enslaved woman, who had no legal identity, or an indentured female, who was temporarily unfree but did not lose the protections afforded by the Crown to its subjects, a free woman of color who married an enslaved man was the legal representative of her household. Wives in mixed-status marriages used the court instrumentally in order to secure their own rights, to safeguard the status of their children, and to protect their interests in private property. Through the first quarter of the eighteenth century, the rule of law in Virginia was sufficiently malleable to allow various actors—including free wives of color—to take advantage of it.Footnote ²²

A second perspective on mixed-status marriages can be found in the growing intolerance for these unions on the part of legal and political officials. Through the very early eighteenth century, masters, justices, and lawmakers in Virginia accepted—and may have even encouraged—these irregular marriages. By 1720, however, they had become less enthusiastic in their support for these unions. For one reason, these mixed-status marriages resulted in female-headed households whose lineages existed in tension with patriarchal models. It is worth noting that when free black men married enslaved women, no similar challenges existed, because any children born to the marriage would legally be slaves. Another reason for uneasiness stemmed from the fact that these mixed-status marriages challenged slavery and contributed to the growth of the free black population. Apart from slavery, the body of race-based law enacted by Virginia's legislators was aimed at curbing the liberties of this growing population of free people of color.Footnote ²³ Lawmakers increasingly worried about conspiracies fostered by combinations of enslaved and free blacks; households headed by women appear to have aggravated their anxieties.

A third perspective on mixed-status marrige can be found the changing strategies used by free wives of color to secure their rights under the law. Over time, justices and lawmakers sought to contain the problems posed by the households and lineages generated by the marriages between free women and enslaved men. In response, particularly after the Revolution, wives in mixed-status marriages adapted their legal strategies accordingly, shifting away from assertions and defenses of their rights in the local courts and toward toward a stance that reflected supplication and deference. Their language increasingly emphasized duty and responsibility and signaled their comprehension of a changing legal and political climate.

Each of these three perspectives allows us to see the role of local legal institutions in shaping the lives of free women of color in mixed-status marriages and the power of the law to intervene in early American households. The application of statutory, common, and customary law in local contexts is precisely where we must fix our sites if we are to understand the centrality of the law in shaping and propelling the lives of ordinary people. Early Americans, including wives in these irregular unions, encountered the power of the law in local courts and in the persona of local officials. Recently, Laura Edwards has argued for the importance of local and discretionary justice, as it was understood by ordinary people, in maintaining and sometimes contesting the social order in Southern jurisdictions in the newly formed United States.Footnote ²⁴ However, long before the American Revolution, for a variety of early Americans, local legal culture was also the center of face-to-face interactions with colonial legal regimes. As it had been in the English communities from which it sprang, local law was porous to the influence of many subjects. And, it was often driven by custom, that is, practices that were recognized as legally acceptable in local jurisdictions and that obtained the force of law, even when they were not positively stated in legal statutes or codes. The legal status of free women of color in mixed-status marriages was not reflected in statutory and common law, but rather, negotiated through custom in local courts.

When Jane Webb and Thomas Savage made their initial contract in 1703, neither local nor colonial legal officials could have predicted the course of litigation between the pair over the next twenty-odd years. Webb's position was complicated not only by her nontraditional if legal union, but by the attendant tensions between the law of marriage and that of slavery. Over time, the actions of local courts and the enactment of new laws weakened Webb's access to legal remedies. In response, she and her counterparts tailored their legal strategies in order to achieve their ends without transgressing the identities that the law was refashioning for them.

The “Free Wife of . . . a Manslave”

In early Virginia, neither the common law nor, for the most part, statute law adequately encompassed the irregularities presented by the marriages of free women of color to enslaved men. In recognizing these mixed-status marriages, courts acted partly on the basis of English legal precedent, partly on the absence of Virginia statute, and partly on evolving local custom. Prior to 1753, English law appears to have recognized various forms of irregular marriage, the most typical of which was probably espousals per verba de presenti (verbal espousals), by which a mutual agreement made in public or private became a binding marriage, as long as a couple acknowledged themselves as husband and wife living together in a harmonious household.Footnote ²⁵ In the British North American colonies, both North and South, this translated into a bifurcated system of marriage that reflected both English precedent and colonial exigencies. Legally recognized marriages were typical for middling Anglo- and European-Americans whereas informal, irregular, and “Negro” marriages predominated among poor whites and people of color, such as Jane Webb, who married across the free and enslaved divide.Footnote ²⁶ Irregular marriages predominated among whites in the early American Chesapeake because of scattered settlement, a shortage of ministers, and a wish by those marrying to avoid matrimony fees. Even those who sought formal marriages found doing so difficult and expensive. Because marriages between slaves and free people were rarely recorded, estimating their numbers and features becomes difficult. John Hope Franklin, for example, notes of nineteenth-century North Carolina that “many” free blacks who had enslaved spouses may have chosen not to marry formally.Footnote ²⁷

Virginia statute neither proscribed nor endorsed marriage between free and enslaved blacks. Statutes in the Old Dominion, of course, prevented interracial marriage and sex, regulated consanguinity, and stipulated the proper form for the solemnization of vows, but no colonial law expressly debarred free people of color from marrying enslaved persons. Yet, the law did distinguish between free women on the basis of race. By the terms of a 1643 law, all women of color (free or enslaved) over the age of 16 were taxed, as were men, whereas white women were either not taxed or, if they were indentured, attempts to tax them proved unenforceable. The 1643 law created the earliest statutory distinction among Virginia women, and, as Kathleen M. Brown argues, made race rather than class a “cornerstone” of womanhood in the colony. A couple of decades later, apparent confusion arose as to whether free women of color were exempt from taxation. A new statute in 1668 declared that they were to be taxed and added that free black women ought to “enjoy their freedome” but should not “be admitted to a full fruition of the exemptions and impunities” of English women.Footnote ²⁸ The taxes levied on women of color reflected their debased position in Virginia society.

However, aside from taxation, the legal standing of free women of color in early Virginia depended significantly upon custom in local jurisdictions. In some places, “freedome” came to encompass the right of free black women to marry enslaved men, and customary law, that is, locally recognized rules and practices, operated in the interstices of common law and statutes.Footnote ²⁹ In England and colonial America, for example, courts appear to have accepted irregular marriages via a husband's verbal espousal of his “lawful wife.” In mixed-status marriages, in contrast, evidence of express espousals is only implied.Footnote ³⁰ On Jane Webb's Eastern Shore, for instance, as long as a wife had some recognition of her marriage to her enslaved husband, that marriage was held as valid in the neighborhood. Custom was flexible enough to accommodate these colonial versions of irregular marriages, and some of them held the force of law in local Virginia courts. One might even be tempted to describe local custom as somewhat paternalistic, but doing so begs the question of who ultimately benefited from this flexibility.

As the legal heads of their families, how did free wives attain legal recognition of their mixed-status unions to enslaved men? Gaining legal recognition was critical in order to ensure the freedom of children born to the marriage, and it could be obtained variously, as illustrated by several instances from Virginia's Northampton County.Footnote ³¹ Sometimes marriages across status grew out of the court's recognition of a marriage within slavery. For example, in 1692 the court accepted the manumission of the enslaved Dolly, but they would not recognize the deed that intended to free “the Negro man Robin her husband.”Footnote ³² Although this mention may seem minor, it appears that it was enough to establish a legal, if irregular, marriage. Other free wives of color made contractual agreements and exchanged their labor for the right to marry. When free Jane Webb sought to marry the enslaved Left, she indentured herself to his master for 7 years in order to obtain permission to wed. A contract recorded the terms of this agreement, and from that point forward, at every court appearance—and there were many—Jane Webb made sure that her lawful marriage to Left was part of the court record. For example, in her 1722 petition to the court, she described herself as “Jane Webb . . . intermarry[ied] with the negroman named Left, manslave.”Footnote ³³

A generation later, in 1740, Webb's daughter, Elizabeth, and another free black woman named Abigail Stevens made similar indentures in order to marry enslaved men. However, this younger generation of women had to submit to lengthier terms of service in order to marry: Stevens and Webb indentured themselves for twelve and sixteen years, respectively, reflecting perhaps a waning acceptance for—if not an outright attempt to discourage—such marriages.Footnote ³⁴ The differing terms traded for marriage might have also reflected the demands of individual masters. In 1740, Susanna Collins agreed to serve 20 years to be married to “her Negro fellow Ceasar and to live with him until they shall be parted by death.”Footnote ³⁵ The verbal attestations recorded in court appear to be the only record of these unions; none of them are listed in the marriage register for eighteenth-century Northampton County.Footnote ³⁶

Colonial officials likely granted these marriages for at least some of the same reasons that women sought them. First, free wives of color were laborers who had little but their industry with which to bargain. In exchange for marriage, they returned to the ranks of servants but were also allowed to form free families. For the terms of their service, they would not head independent households. Instead, they would continue to live subordinately in a household headed by a master and/or mistress structured on patriarchal lines, details that likely met with the approval of local legal officials. And, there were more important trade-offs. In exchange for marriage, these free wives gained legitimacy for their children, and the court preferred legitimate children as well. While these wives served their labor contracts, however, it is not clear precisely who—mothers, masters, or some combination of the two—had responsibility for the support of those children. Yet, someone was responsible, and that, too, was appealing to local legal officials, who had no interest in supporting out-of-wedlock children. The justices had betrayed this disposition even in cases of interracial marriage. In 1689, before marriage across the color line was banned in Virginia, Sarah Beckett, “wife of Peter, slave” petitioned the court in order to establish the legitimacy of her child, that is, that the infant was born in wedlock; the court agreed that the child was “at her own disposal.” Similarly, prior to 1690, the English woman Hester Tate was married to “James, a negro slave,” and their several children were regarded as legitimate.Footnote ³⁷ A free wife's declaration in court, then, carried considerable legal power.

Express attestations to mixed-status marriage may have been a custom on Virginia's Eastern Shore particularly (although not only) for its free black population. In other eighteenth-century Virginia counties, evidence suggests that marital unions between free and enslaved blacks lacked the explicit legal recognition accorded to those on the Eastern Shore. In the Southside Virginia counties in the post-1750s, for example, it appears that indentured black women and enslaved men married, occupied the same households, and formed families together. However, because these women were issued grand jury presentments for out-of-wedlock pregnancy, their unions were not accorded the legal recognition given to irregular marriages in earlier years or in other places.Footnote ³⁸ Late into the eighteenth century, newspaper ads for runaways mention slaves such as Gabriel, who has a “free woman for a wife,” or Stepney Blue, who escaped with a “free Negro Woman named Easter Roberts . . . his Wife.”Footnote ³⁹ It is not clear whether these were legally recognized or culturally affirmed marriages. Outside of Virginia in other parts of British North America, across-status marriages lacked legal recognition and continued to be performed according to custom, in which a couple might join together in mutual consent without the blessings of the church. According to one Anglo-American minister, partners could break the marriage by mutual consent.Footnote ⁴⁰

Legal recognition of mixed-status marriages was critical. Failing to obtain legal recognition of the union—if only a simple mention in a court order book—risked the freedom of any children born to the marriage. Much was at stake. In effect, legal attestations of irregular marriage functioned as records of free black status throughout the entire colonial period, decades before free blacks were legally required to register their status. In Virginia and other Southern jurisdictions, for example, registration would not be required until 1793, during the great wave of manumissions that occurred in the wake of the Revolution.Footnote ⁴¹ However, nearly a century earlier, free black women understood the need to secure a legal record of their mixed-status marriages. Their actions complicate our understanding of the requirement that free blacks register their status. Most historians see free black registration as an oppressive system, and it surely was so. However, in the era before the Revolution, for a free black woman such as Dolly or Jane Webb or Abigail Stevens, who was the legal head of her family, registration was also a protective device. Even local courts seemed to have agreed. Sarah Driggus, wife of the enslaved Thomas Driggus, petitioned the Somerset County, Maryland court in 1688, representing herself and other unnamed free blacks, and asking to be excused from taxes because she was “born free.” The court agreed to her request but cautioned the petitioners to “bring a Certificate under the Ministers hands where they formerly did live or were borne that they are free Negroes and baptized.”Footnote ⁴² Long before statute law required registration of free blacks, wives in mixed-status marriages—as well as legal officials – understood the value of legal recognition in guarding the legitimacy and liberty of their families.

Laws enacted after the Revolution would indeed regulate and, in some jurisdictions, prohibit marriages between free and enslaved blacks. In his classic study, John Hope Franklin notes that North Carolinians did not restrict marriage between free and enslaved persons until 1787, and then, unsurprisingly, only to require that the master be paid a fee by the free spouse. In 1830, however, in response to the growing antislavery movement, a North Carolina law entirely prohibited marriage between free and enslaved blacks. Another means of restricting these irregular marriages was through manumission. As early as 1691, for example, Virginia law required freed slaves to leave the colony; in 1723 a new law restricted manumission to exceptional cases, subject to the governor's approval. These limitations were loosened after the Revolution, but a clamp down began anew in 1806, when, once again, newly freed blacks were required to leave the state. Therefore, if free blacks married slaves and wanted to keep their families intact, the law seemed to give them little recourse but to keep their spouses enslaved. Indeed, some free blacks purchased their spouses but did not free them. After Nat Turner's insurrection in 1832, a new law in the Old Dominion strictly limited a free black's acquisition of slaves to her or his “husband, wife, parent or descendent.” Marriages between free and enslaved blacks continued well into the antebellum period, but were forced to survive in an increasingly restrictive context.Footnote ⁴³

The “Perpetual Brand”

The anomalous position of free wives married to enslaved men challenged early American understandings of household governance in ways that other kinds of marriage simply did not. Despite their legal standing, these marriages did facilitate an orderly transmission of women and men into the traditional categories of husbands and wives. The resulting households, as Carole Shammas has argued about irregular marriage generally, failed to affirm patriarchal values or lodge property ownership in men.Footnote ⁴⁴ This can be illustrated simply by the family lineage: the children of Jane Webb, Susannah Collins, and Salley Chavus, for example, took their surnames from their mothers, a typical practice when women bore children out of wedlock. Moreover, the children of mixed-status marriages usually physically resided, along with their mothers, in the households of their fathers’ masters and mistresses. Given these circumstances, local courts acted in ways that both affirmed and diminished the authority of free wives of color as heads of households. The courts acknowledged their marriages and, therefore, the free and legitimate status of their children, which was no small thing. However, after 1720, Virginia's lawmakers developed doubts about sustaining these households headed by women.

Initially, Virginia's political and legal authorities may have tolerated irregular marriages because they believed that any kind of marriage exerted a stabilizing influence on enslaved men. They counted on marriage to root slaves and their free families to their owners’ households. However, in response to joint resistance by free and enslaved African-Americans, lawmakers reconsidered their acceptance of such unions. Rather than act as settling influences, on the contrary, free black wives, either inadvertently or directly, may have fostered combinations between enslaved and free persons of color that were perceived to endanger the public peace.Footnote ⁴⁵ In response, three empowered groups—masters, local legal officials, and the colony's lawmakers—sought to contain the threat posed by these households.

Local legal officials first sought to diminish the authority of free black wives through their interpretation of coverture. Treatises on domestic relations referred to coverture as the law of “baron and feme,” meaning “not husband and wife, but lord and woman.” Those same treatises encompassed all manner of household relations, not just those between husbands and wives but also those between masters and servants. In theory, the logic was all of a piece: all of these relations were subjected to the same structural hierarchies.Footnote ⁴⁶ When confronted with mixed-status marriages between people of color, Virginia's legal authorities reasoned that if a husband was enslaved, his wife's legal identity should be vested in his master. For example, when free Sarah King married the enslaved Thomas Driggus, the couple lived with his master. But, by the mid-1670s, she had left that household. The Northampton County court attempted to force her to return and ordered that she not “depart [from] the house of [her husband's master] without the leave and order of both her said husband and [his master].Footnote ⁴⁷ Local custom made the rights of the enslaved husband and his master remarkably equal: patriarchal rights were extended to both master and husband, despite that the latter was a slave.

Sarah Driggus took refuge in mobility. She chose, at least temporarily, to live separately from her husband, which meant living in a household apart from his master's watchful eye and control. She remained married to Driggus, however. When, in response to a 1688 rumor that Virginia lawmakers were about to enslave all free blacks, she fled to Maryland where she was described as a “negroe Woman & wife To Thomas [D]riggers Negro.” She successfully petitioned the Maryland court on behalf of a group of free black men and women who had fled Virginia, asking that they be exempt from taxes because they were free.Footnote ⁴⁸ Despite variations in local law, Driggus's legal skills translated effectively to Maryland's courts.

Local justices interpreted coverture with the intention of compromising the authority of free black wives and diluting their power over their households. Following English practice, magistrates had discretionary power to indenture those children whose parents’ “poverty” prevented them from giving their children “breeding,” which, as Holly Brewer has remarked was a very “flexible and broad category.” From the viewpoint of the law, it was, as it had been in England since the sixteenth-century Statute of Artificers, perfectly acceptable to compel the poor to labor. The integrity of poorer families – that is, keeping them together – was unimportant compared to the need to keep them off relief, compel them to work, and discipline their behavior.Footnote ⁴⁹ For example, in 1725, Thomas Savage wanted to indenture Jane Webb's two youngest children, but she refused. He then complained to the Northampton County Court that he had the “best right” to the Webb children because their mother had “no visible means to support [them, and as a consequence] they may be induced to take ill courses.”Footnote ⁵⁰ The justices agreed. In light of Webb's poverty, her husband's master had a superior claim to her children. Webb eventually agreed to the indenture, although before doing so she “decoyed away” her children, an action that parallels the periodic truancy practiced by enslaved women and reflects her increasing proximity to slavery.Footnote ⁵¹

Local justices and masters also initially condoned improvisations in legal custom because they understood that, ultimately, the common and statute law was on their side. Material disadvantage meant that free black children would likely become bound servants. The terms of service were specified by law, and those terms increased with every revision of the original statute—from 18, to 21, and, eventually, to 31 years of service.Footnote ⁵² Judicial paternalism may initially appear to account for this tolerance for mixed-status marriages, but a closer look reveals that English precedent, statute law, and local custom accommodated marriages between free and enslaved blacks for economic rather than paternalistic reasons. Given the legal disabilities and poverty of free black women as heads of households, their progeny would predictably become a cheap labor source for local planters. Even those planters who could not afford to purchase slaves could accept mixed-status marriages and feel certain that they would gain the labor of the children of those marriages for very long terms (from 21 to 31 years). Middling and small planters tolerated irregular marriages because they aligned such planters with the interests of the slave-owning class, even when, like Thomas Savage, those planters owned only a handful of slaves.Footnote ⁵³ The legal tolerance for mixed-status marriage served to strengthen the powers of small planters, undermine the (by the early eighteenth century, already diminishing) rights of free blacks, particularly those of free black women, and stabilize slavery.

Lawmakers and political officials also found ways to diminish the already limited economic power of free wives married to enslaved men. By the early 1720s, free women of color had become a source of concern to local planters and legal officials. One grievance from Northampton County illustrates how the local politics surrounding free black women drove the development of statute law. In November 1722, unnamed residents of the county petitioned the local court “complaining of the great Numbers of free Negros of which the women pay no Taxes.” They were responding to a 1705 revision in Virginia law that exempted free black women from taxable status, a statute that apparently Northampton had followed to the letter.Footnote ⁵⁴ A year after the grievance, in May, 1723, a revision lifted the exemption and stipulated that all women of color were to be taxed similarly to any male resident above the age of 16.Footnote ⁵⁵ The tax financially penalized free black women, regardless of whether their husbands were enslaved or free or whether they independently headed households. Both the grievance and statute served to once again set apart free black wives as a distinct legal group.

The timing of the Northampton petition and the statutory revision were not coincidental, and the motives behind them were not purely economic. By the early 1720s, authorities linked free black wives with political instability and alleged conspiracies between enslaved and free blacks. Masters, lawmakers and political leaders feared, rightly, that free blacks shared a common consciousness with slaves that would lead to joint rebellion. Irregular marriages amplified this concern. In 1722, for example, after an alleged plot by slaves and free blacks, the governor advocated preventing future uprisings by fixing a “perpetual brand upon Free-Negros & Mulattos [because] they always did, and ever will, adhere to and favour slaves.”Footnote ⁵⁶ In 1723, three new statutes did just as the governor wished. The first precluded manumission save for exceptional circumstances. The second, the law reinstituting a tax on all free women of color, compromised the ability of all free blacks to maintain their households by depleting its financial resources. And, the third law aimed directly at the threat posed by households headed by free black women: it stipulated that any children born to free women of color under 30- or 31-year indenture contracts were to serve their masters for equally lengthy terms of service.Footnote ⁵⁷ That meant that mothers would never gain meaningful legal control over their children. The “perpetual brand” on the progeny of free black women was both a virtual enslavement of those children and a near complete diminution of the authority of some free black women in their households.Footnote ⁵⁸

“The Humble Petition”

For free wives married to enslaved men, the legislation of the early 1720s translated into an increasingly restrictive set of legal rights and a far less flexible local court. Any latitude for legal maneuvering, even at the local level and in customary practice, was curtailed. In response, free wives went on the offensive, availed themselves of the legal remedy of petition, sued for redress in equity courts, monitored the labor contracts of their children, and, when necessary, reported on the legal infractions of their children's masters. In all of these endeavors they enjoyed uneven success. Their pursuit of remedies under the law reflects not only their attempts to protect their families, but also the ways in which they revised their legal strategies to negotiate a changing legal environment. Once again, Jane Webb provides us with an instructive example.

In 1722, nearly two decades after drawing up her contract with Thomas Savage, Jane Webb disputed with Savage about the terms of her children's service.Footnote ⁵⁹ When the eldest of her children, Dinah, reached the age of 18 and was not freed from indenture to Savage, Jane Webb petitioned the court for remedy. Her petition carefully employed several legal markers to remind the court of her family's free status.

In her petition, Webb established her own freedom (baptized and born of a white mother), her legal marriage (the liberty of intermarrying), and the freedom of her children (born in lawful wedlock). All of those legal markers make sense, and yet, the meaning of the last line of the petition is not immediately apparent. If we consider the events taking place in early Virginia, however, we can see understand the timing of Webb's petition. In this case, Webb's legal strategy was enacted against considerable odds. Jane Webb first filed this petition in August 1722. Thomas Savage deferred his appearance at that and each of the four subsequent monthly courts remaining that year. When he finally appeared in January of 1723, the Northampton County justices dismissed Jane Webb's petition against him as “frivolous.” Their ruling coincided with the passage of the statutes that taxed free black women, locked most of their children into service terms of 30 or 31 years, and made manumission impossible except by the governor's approval. These laws indeed achieved the governor's goal to fix a “perpetual brand” on free blacks by excluding them from “that great privilege of a freeman,” especially when the person who headed the household was a woman.Footnote ⁶¹

Arguably, Jane Webb knew about this pending legislation in the summer of 1722 and anticipated its formal enactment in 1723. As I take it, her use of the word “enslave” was a direct challenge to the extension of colonial power over her children. She believed that the justices, as agents of the colonial government, could and would retroactively adjust the Webb children's terms of service to fit the new 30- to 31-year requirement. According to Webb, they had already similarly extended her children's terms of service once before: when she sought to free her indentured children at the ages of 18, the court ruled that as the terms of service had been extended by statute law to 21 years, and that the Webb children were required to serve accordingly. If Thomas Savage also believed that such an extension of service was possible with the passage of the 1723 law, he delayed because he hoped to take advantage of the new statute.

It is also seems possible that Jane Webb held out the possibility that the local court would provide a remedy for her complaint and assuage her anxiety over the terms of her children's service and her family's future. She still believed she still had rights under the law. And therefore, in 1725, she initiated a suit in chancery—the court of last resort—and attempted to force Thomas Savage to honor the terms of the original contract made between them in 1703. According to Webb, the contract had four key provisions. First, in order to marry Left, Jane Webb re-entered indentured servitude and agreed to serve the Savage household for seven years, until 1711. Second, any children born to the marriage during those seven years would be similarly indentured to Savage until the ages of 18. Third, when Jane Webb's indenture ended in 1711, Left would be freed from slavery; and, fourth, any children born subsequent to 1711 would bear no obligation to Savage.Footnote ⁶² Savage admitted that he had lost the original contract; in Northampton, contracts were not consistently recorded in the court order books either, so no copy existed.Footnote ⁶³ The absence of the contract, however, did not prevent him from disputing the terms described by Webb. He produced two witnesses who claimed to have seen (and apparently had carefully read) the contract. They swore that “therein it was agreed that the said Jane was to serve seven years and all her children born in the life time of her husband Left should serve the said Savage . . . and that the said [contract] had the approbation of the Court.”Footnote ⁶⁴

In rebuttal, Jane Webb brought an unidentified free black to testify on her behalf. While this may seem unlikely, in 1725 statute law did not yet expressly debar the legal testimony of free blacks.Footnote ⁶⁵ Indeed, the Northampton justices deliberated on precisely the issue and remained “divided” for four months on accepting the testimony of free people of color.Footnote ⁶⁶ They eventually declined Webb's witness, a decision that demonstrates, again, how customary treatments of wives like Jane Webb would anticipate statutory law. In 1732, Virginia statute expressly prevented the use of “negro, mulatto, or Indian, slave or free” witnesses.Footnote ⁶⁷ With that decision, Jane Webb's direct remedies at the bar were nearly exhausted. Whereas the case illustrates her legal strategy and her legal consciousness, it also reflects the diminishing remedies at the bar available to free blacks in the first two decades of eighteenth-century Virginia.

By the mid-1720s, many free wives married to enslaved men found, as Jane Webb did, that asserting their rights as subjects of the Crown was unlikely to gain them legal remedies. Instead, their efforts reflected, in nuanced ways, the language of duty and responsibility over the direct claiming of rights. Consider the yearly tithable collection in Virginia counties. Local courts were especially anxious to establish accurate lists of all taxable persons in any given jurisdiction. Throughout the colonial period, definitions of which persons were taxable changed, but by 1723, everyone over the age of 16 was taxable, except for free white women. And it certainly was the case that individuals concealed their dependents in order to reduce their annual tax burden. In order to prevent them from so doing, Virginia law required households to provide a list of tithables to the tax collector. To enforce compliance, the statute also required that the lists be posted on the courthouse door for the “view and inspection of all that please.” Residents were encouraged to inform on any neighbors who concealed tithables. The law held out a significant incentive to informers: they would receive the fine of 1000 pounds of tobacco per concealed tithable, payable, of course, by masters.

The issue of tithable lists is relevant here because the children of free wives in mixed-status marriages would likely be tithable servants, and moreover, their mothers would have an intimate and detailed knowledge of the labor force composition in local jurisdictions. In the midst of her rancorous chancery suit with Thomas Savage in 1725, for example, Jane Webb moved out of his household and established her own domicile. However, she somehow missed the June deadline for listing her tithables—a critical lapse in her legal consciousness – and in September petitioned the court to request that she and her two daughters be added to the county rolls. In contrast, in 1732, Jane Webb informed the court that two neighbors—one was Thomas Savage's daughter and the other stood as a witness for Savage in the chancery suit—were the concealing tithables from the county. Those tithables were her children.Footnote ⁶⁸ Webb's petition and role as informant may seem like minor actions; however, taxation was a deeply important matter for local jurisdictions. Her approach to the court emphasized her duty as a subject to obey the law and inform. Who knew what might happen? In earlier years, concealed laborers had been forfeited to the informant.Footnote ⁶⁹ By the time Webb informed she would only gain money, but the act of informing alone would serve to put her children's masters on notice. It was a small but critical tool that she used to regulate the service terms of her children, and it was a strategy that could be used without directly claiming her rights. This was a new approach to local legal authorities, and it would characterize the remainder of her encounters with the local court.

The “Womb of Time”

I conclude this article by considering changes in the legal strategies used by free wives in mixed-status marriages who sought redress from the courts. Over time, they increasingly mixed the language of supplication, duty, and dependency with their claims to legal rights. In order to gauge this change, it is useful to step far forward in time, to the wave of manumission petitions that occurred in Virginia, North Carolina, and South Carolina in the wake of the American Revolution because they provide an opportunity to measure the changes in rights-based language. In comparison to the complaints, petitions, and lawsuits from the early decades of the eighteenth century, manumission petitions reflect the changes in legal tactics used by free wives of color to defend their marriages as well as the alterations in the legal environment in which they operated. As one historian has noted, these petitions constituted a “literary genre” comprised of elements that emphasized petitioners’ “obedience, humbleness, and worth to the community.” Women's petitions also appealed to patriarchal arrangements in marriage and the family.Footnote ⁷⁰

In the 1790s, a number of free wives in North Carolina petitioned the legislature requesting that their husbands be emancipated. The language of their petitions stressed the integrity of their marriages, both as economic entities and as labor units. Moreover, wives’ petitions stressed their husbands’ support, industry, and productivity as symbols of their spouses’ readiness to exercise patriarchal authority. In North Carolina, slaves could be manumitted for “meritorious” service, either by petition to the county court or by an act of the legislative assembly, but the law did not otherwise define merit.Footnote ⁷¹ Perhaps on the advice of their legal counsel, free wives described merit in gender-specific ways that emphasized responsibility, diligence, and dependence. In 1797, for example, Lovey Sampson's petition claimed that she had purchased her husband, David, only through the “assistance, industry, prudence, and economy” that he had provided. These attributes suggested not only that he deserved freedom, they also signaled his ability to head a household and her inability to have obtained his freedom without his help.

Other petitions by free black wives similarly appealed to male industry, female dependency, and the potential for a traditional orderly, male-headed household. For example, Margaret Moore requested that the legislature free her enslaved husband Jack because it was by his “industry, labour, and economy” that her stock of “cattle, hogs, & etc.” had increased.Footnote ⁷² Although we do not know for certain if Sampson or Moore's petitions were granted, it seems possible. One historian has concluded that manumissions occurred “with ease” during these years in North Carolina.Footnote ⁷³ However, for women in mixed-status marriages, the freedom of their families remained an uncertain prospect. As one petitioner noted prosaically in 1801, the “womb of time is not open to inspect what may hereafter be brought forth.”Footnote ⁷⁴ This uncertainty may in part explain the shift in the legal language used by free wives of color: an emphasis on dependency and industry over a declaration of rights would not challenge the social and racial order of the early Republican North Carolina.

Free wives married to enslaved men in post-Revolutionary Virginia used a similar frame in their petitions, appealing to patriarchal models, supplication, and industry. Manumission laws in the Old Dominion were tougher than those of North Carolina. Virginia restricted manumission in 1723 to those approved by the governor and council; restrictions were lifted in the wake of the Revolution, but by 1806, manumitted slaves were required to leave the state.Footnote ⁷⁵ Wives, therefore, were not just asking for the freedom of their husbands, they were also requesting permission for their spouses to remain in the state. In 1811, for example, Jemima Hunt purchased her husband with the intention of freeing him. Before she did so, she asked the state assembly to allow him to remain in Virginia. Her petition noted spousal industry, the integrity of their family unit, and their need to remain self supporting. Hunt argued that she had a “numerous family of children . . . who are dependent upon the daily labor of herself and her husband for support and without the assistance of her husband Stephen they must suffer or become burdensome to their county.” Hunt asked that the legislature allow Stephen to remain in Virginia after being freed and to “enjoy the privileges that other free people of colour are entitled to and as in duty bound.” Thirty members of her community signed in support of her petition.Footnote ⁷⁶ Hunt's plea was strategic in several regards: she asserted the centrality of labor and the intact family unit and warned lawmakers that her family could require state assistance if her husband was not allowed to stay in Virginia. Her petition balanced an emphasis on duty—that is, the labor with which Jemima and Stephen supported their children—with an assertion of entitlement to certain, if limited, privileges under the law.

Finally, even when free wives did not even seek to manumit their husbands, they could use legal instruments to protect their families and spouses. In 1811, free Sally Chavus of Charlotte County, Virginia made her last will and testament. In it, she distributed a loom, clothing, and a Dutch oven to her granddaughter and daughter-in-law. Whereas these domestic items were useful bequests for female relatives, Chavus left the more valuable part of her estate, which included real estate and cattle not to her son, but, rather, to the executors of her will. She desired that they use the estate to “let my old man and husband enjoy his liberty as a free man as far as the law at any time will admit, and further that they let him keep together all my estate that is not given away during his life.”Footnote ⁷⁷ On the chance that some law or mechanism would allow for her husband's manumission after her death, Chavus supplied the means of his support. Her will also stipulated that after her husband's death, any remaining estate be given to their children. Well into the nineteenth century, free black wives who headed households never assumed the certainty or the protection of the law in relation to the future of their families.

Local legal systems in the colonial era could be responsive to concerns of people traditionally marginalized from power, such as the free black wives in mixed-status marriages discussed in this article. Over time, however, out of necessity and in response to changing political contexts, both the legal strategies and the rights-based language used by these women underwent alteration. Rather than assert their rights and claim the protection of the local court, by the nineteenth century, free black wives in mixed-status marriages were more likely to also employ the legal language of dependency. They emphasized their connections to traditional patriarchal marital and familial arrangements, their economic productivity, and their desire to fulfill their own obligation to the state. In 1723, Jane Webb was direct with the court: when she asked the justices if they were intending to “enslave” her children, she was accusing them of violating her rights and those of her children. Jemima Hunt, I would like to suggest, was no less aware of governing legislation when she made her petition in 1811, as the law banishing emancipated slaves from the Old Dominion had been in force for 5 years. However, her petition noted that she had only been “been informed” of the law, a small but telling nuance of the years separating Webb and Hunt. Webb unabashedly admitted her legal knowledge, especially when recently enacted or even proposed laws disadvantaged her. Hunt suggests that she came to her knowledge of the law through passive means. This is a starkly different language of rights.

The stories of free wives of color in mixed-status marriages reflect their pursuit of legal remedies in the early American South and demonstrate what was possible for them under the law. In navigating the institutions of marriage, slavery, and freedom, their aims often directly conflicted with those of masters, local justices, and statute law. Yet, they used the courts instrumentally, favoring petitions, contracts, and chancery to claim their rights of subjects and protect the freedom of their families. Initially, their ability to succeed was a product of the ambiguity of their irregular marriages, their legal position as married women who headed households, customary practice in local jurisdictions, and the uncertainties of free black status in a slave society. Their power to achieve their ends also stemmed, as has been discussed, from their sharply attuned rights-consciousness. Over time, however, the repressive arm of the law struck back. Colonial and, later, state Southern legislators codified the law of slavery and, except for a brief respite after the Revolution, shaped the laws governing free people of color with the goal of eroding their numbers, rights, and independence. As a result, free women in mixed-status marriages could no longer successfully couch their pleas in the language of individual rights due to them as subjects. Instead, they would emphasize their dependency as women and shape their legal pleas in ways that underscored their obligations to the state. Although this project requires more work to determine how these findings hold up in a range of early American jurisdictions over time, it is clear that free wives of color in mixed-status marriages lived their lives in a sustained dialogue with early American law, which held a powerful grip on their households and families. Their stories also demonstrate the rights-consciousness of some of the most disadvantaged of early Americans. Ultimately, too, their strategies for claiming their rights in local courts, navigating changing custom, and negotiating shifts in statute law illustrate the realities and legalities of marriage on the margins of freedom in the early American South.