The Place of Miscegenation Laws within Historical Scholarship about Slavery 2

Allen Mendenhall

Miscegenation laws, also known as anti-miscegenation laws, increasingly have attracted the attention of scholars of slavery over the last half-century.  Scholarship on slavery first achieved eminence with the publication of such texts as Eric Williams’s Capitalism and Slavery (1944), Frank Tannenbaum’s Slave and Citizen (1946), Kenneth Stampp’s The Peculiar Institution (1956), Stanley Elkins’s Slavery: A Problem in American Institutional and Intellectual Life (1959), and Leon F. Litwack’s North of Slavery (1961).  When Winthrop D. Jordan published his landmark study White Over Black in 1968, miscegenation statutes during the era of American slavery were just beginning to fall within historians’ critical purview.  The Loving v. Virginia case, initiated in 1959 and resolved by the U.S. Supreme Court in 1967, no doubt played an important role in activating scholarship on this issue, especially in light of the Civil Rights movement that called attention to various areas of understudied black history. 

In Loving, the Supreme Court struck down Virginia’s miscegenation statutes forbidding marriage between whites and non-whites and ruled that the racial classifications of the statutes restricted the freedom to marry and therefore violated the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment.  In the wake of Loving, scholarship on miscegenation laws gained traction, although miscegenation laws during the era of American slavery have yet to receive extensive critical treatment.  Several articles and essays have considered miscegenation laws and interracial sex during the era of American slavery, but only a few book-length analyses are devoted to these issues, and of these analyses, most deal with interracial sex and miscegenation laws in the nineteenth-century antebellum period, or from the period of Reconstruction up through the twentieth-century.  This historiographical essay explores interracial sex and miscegenation laws in the corpus of historical writing about slavery.  It does so by contextualizing interracial sex and miscegenation laws within broader trends in the study of slavery.  Placing various historical texts in conversation with one another, this essay speculates about how and why, over time, historians treated interracial sex and miscegenation laws differently and with varying degrees of detail.  By no means exhaustive, this essay merely seeks to point out one area of slavery studies that stands for notice, interrogation, and reconsideration.  The colonies did not always have miscegenation laws; indeed, miscegenation laws did not spring up in America until the late seventeenth-century, and they remained in effect in various times and regions until just forty-four years ago.  The longevity and severity of these laws make them worthy our continued attention, for to understand miscegenation laws is to understand more fully the logic and formal expression of racism. 

  1. A.      The 1960s

In the 1960s, as the topic of slavery gained purchase as a subject of academic study, historical texts about slavery cast a wide net and tended to paint slavery in broad strokes (excuse the dual metaphors).  These texts were well received.  Jordan’s book, for instance, earned him the National Book Award, the Bancroft Prize, the Parkman Prize, and the Ralph Waldo Emerson Award from Phi Beta Kappa.  Other prominent books from this time include Jacobus tenBroek’s Equal Under Law (1965, originally published in 1951 as The Antislavery Origins of the Fourteenth Amendment) and David Brion Davis’s The Problem of Slavery in Western Culture (1966).  These early works on slavery covered a large geographical and chronological range.  As slavery received more and more critical attention, however, treatments of slavery became more focused, and historians began developing specific critical paradigms with and through which to analyze slavery.  Historians increasingly turned to economics, the influence of African culture upon slave life, the relationships between masters and slaves, and the role of gender and sexuality in slave life, all while narrowing their focus upon specific places and time periods—the Revolutionary era, for instance, or colonial Virginia.  Jordan himself does not elaborate on miscegenation laws because, I suspect, his book is one of the earliest detailed investigations of slavery in America.  His history therefore addresses all aspects of American slavery to try to provide as holistic an account of slavery as possible.  Early scholarship on slavery is, as I have suggested, broad and wide-ranging, and not until the 1970s and 1980s did scholars begin to hone in on more specific phenomena such as miscegenation laws.  Nevertheless, Jordan does devote an entire chapter (“Fruits of Passion”) by and large to the issue of miscegenation, thereby carving out a space for future scholarship on this issue. 

Jordan’s first sustained treatment of interracial sex in White Over Black addresses the question of whether, in Maryland and Virginia, “repugnance for intermixture preceded legislative enactment of slavery” (78).  In other words, did the creation and implementation of slave laws stigmatize interracial sexual unions, or were interracial sexual unions already a stigma that motivated slave laws?  Jordan concludes that “it is not possible to tell” which came first (78).  He makes an interesting distinction between “fornication” and “miscegenation,” treating the former as a sexual relationship and the latter as a sexual relationship resulting in the birth of a child (78).  This view of miscegenation seems to be unique to Jordan, since no other work of scholarship that I have read treats “miscegenation” as necessarily entailing childbirth.  Most treatments of miscegenation seem to involve cohabitation, marriage, the birth of mixed-race children, or sexual intercourse between whites and other races (e.g., blacks or Natives).  But Jordan treats that last example—sexual intercourse—as something besides miscegenation.  On one hand, Jordan’s take on miscegenation is understandable because most early court cases about miscegenation refer to “mulattos” and “mulattas” as if offspring or issue were fundamental elements—or perhaps the only proof or evidence—of miscegenation.  On the other hand, the race “mixing” targeted by miscegenation laws was also sexual mixing: something that could occur regardless of whether that “mixing” produced children.  This is not to say that Jordan is wrong.  The stigmatization of sexual mixing, after all, had to do with the potential for childbirth, and of course sexual intercourse often entailed childbirth.  But Jordan risks sounding misinformed or imprecise by not qualifying the reasons he distinguishes between fornication and miscegenation.  His distinction might relate to the distinction between the crimes of “fornication” and “miscegenation,” even though the former crime can be subsumed within the latter, and even though the former crime lacks racial criteria as part of its constituent elements.  Jordan comes across as meticulous throughout the book, but in this instance he either lapses into carelessness or fails to clarify his meaning.        

Jordan points out that in Virginia “free Negroes” were “barred from sexual relations with whites and occasionally (but by no means usually) assigned more severe punishments than white men for the same crime” (125).  In many ways, this double-standard does not seem surprising, except that later scholarship[1] suggests that interracial sex was less stigmatized, less taboo, and more common in Virginia in the mid-seventeenth-century than it was in the eighteenth- and nineteenth- centuries (43-44).  Jordan himself makes this point in the early pages of “Fruits of Passion” (136-142).  Jordan’s claim, which may seem predictable or commonplace to contemporary readers, is actually momentous because it lays the foundation for future scholarship dealing with the contradictory notion that although “[m]iscegenation was extensive in all the English colonies,” at the same time “[n]o one thought intermixture was a good thing” (137).  In fact, writing in the 1970s, historians like Peter Wood (Black Majority: Negroes in Colonial South Carolina from 1670 through the Stono Rebellion, 1974) address this contradiction, as well as interracial sex, from a similar angle as the one Jordan takes (see, e.g., Wood 98-99, 233-236).  Without Jordan’s groundbreaking labor, Wood and others may not have been able to undertake the issues they undertook because Jordan paved the way for “the Woodses” of the field to focus on more specific times, places, events, and practices.  At any rate, Jordan’s text is an impressive work, commendable for its breadth and scope and remarkable for its attention to detail and accessible prose.  Jordan’s persuasive argument that white racism predated the American Revolution and had its roots in English presuppositions has been challenged and reconsidered over the years, but it remains powerful and memorable and continues to be cited often and favorably.   

One of Jordan’s arguments that is not central to his thesis, but that signifies tellingly in the context of interracial sex and miscegenation laws, investigates the tension between the Euro-American desire for and simultaneous aversion toward blacks.  “Desire and aversion,” Jordan says, referring to white colonials’ sexual views of slaves, “rested on the bedrock fact that white men perceived Negroes as being both alike and different from themselves” (137, italics in the original).  Jordan adds that “[w]ithout perception of difference, […] no aversion to miscegenation nor tension concerning it could have arisen” (137).  The problem, for Jordan, is not explaining “desire,” but explaining “difference.”  In a sweeping generalization about human behavior, Jordan claims that the “sexual drive of human beings has always, in the long run, overridden the far stronger sense which men have of the difference between themselves and animals” (138).  By this reasoning, “aversion” flies in the face of the natural tendency of humans to be drawn together sexually despite perceptions of difference.  Put another way, the colonials were culturally underwritten or else socially constructed to believe that interracial sex was bad.  This cultural understanding, or misunderstanding, was “strong enough to force itself over the hurdles of the legislative process into the statute books” (139).  Although Jordan is unwilling to say conclusively whether slave laws preceded the stigmatization of interracial sex, he seems to favor the idea that, instead, stigmatization of sex brought about miscegenation laws.  Insofar as White Over Black explores early European and colonial reactions to black skin color and African traditions and mores, it would seem to lend critical context to future studies of interracial sex and miscegenation laws, which implicate cultural clashes occurring during initial African-European contacts.

  1. B.     The 1970s-1980s

James Hugo Johnston’s Race Relations in Virginia & Miscegenation in the South, published in 1970, is one of the most important texts about interracial sex and miscegenation laws during American slavery.  This book is unusual because it is a 1937 dissertation that went unpublished in book form until 1970.  To say that this book inaugurates trends in scholarship about slavery or interracial sex is to exaggerate the book’s importance.  Rather than appraising or assessing the massive stock of data that it lists and displays, the book degenerates time after time into a collection of large block quotations that are supposed to speak for themselves.  A major aim of the book seems to be to make available primary sources that in 1937 had not been available.  Instead of trying to explain interracial sex or miscegenation laws in ideological or even practical terms, this book, in particular the second section dealing with interracial sex, merely compiles several details, documents, and information without much in the way of critical commentary.  What to make of these details, documents, and information is left up to the reader.  For this reason, I would label the book a “documentary history.” 

When Race Relations in Virginia & Miscegenation in the South was published in 1971, the primary sources incorporated into the book had become more widely available, and therefore there was little need to publish many of the book’s passages, but the publisher (University of Massachusetts Press) probably went forward with the book because to date there had been no other book-length investigations of this weighty topic.  Although Johnston’s prose seems more descriptive than evaluative, and although he gathers more information than he analyzes, his book is commendable for its consideration of legislative and judicial documents, and for its status as one of a few books dedicated entirely to interracial sex and miscegenation laws under slavery.  Despite its obvious shortcomings, Race Relations in Virginia & Miscegenation in the South is probably the best starting point for researchers on interracial sex and miscegenation laws in the antebellum period and earlier.  Other books more adequately address interracial sex and miscegenation laws in later periods of American history, but this book stands apart (though not alone) in its attention to early American history—and more specifically to early Virginia history.                

An enormous book with a tremendous influence, Eugene Genovese’s Roll, Jordan, Roll, first published in 1972, attends to miscegenation with more detail than Jordan’s White Over Black, presumably because the work of previous historians like Jordan afforded Genovese wider latitude to undertake this issue with care, and because, in addition, interracial sex and miscegenation laws implicate Genovese’s focus on hegemony and paternalism.  Upon publication, Roll, Jordan, Roll generated wide acclaim and was awarded the Bancroft Prize.  It was praised for its breadth and criticized for its alleged “Eurocentricity.”  A Marxist critic interested in relations between the planter class, slaves, and lower class whites, Genovese was an established historian on slavery by the publication of this book, and his previous work, with its focus on ideology and political economy, left room for a fresh look at interracial sex and miscegenation laws as they pertained to power plays and economic interaction. 

According to Genovese, “The intimacy of the Big House and of the paternalistic master-slave relationship in general manifested itself as acts of love in the best cases, sadistic violence in the worst, and ostensible seduction and imposed lust in the typical” (413-14).  This statement offers a framework within which Genovese can explore interracial sex in light of cultural hegemony.  Genovese takes pains to correct scholarly records and to provide statistics about the number of mulatto children in the South (414-15).  He suggests that previous historians had overstated the number of mulatto children, thereby implying that those same historians had overstated the frequency of interracial sex in the South under slavery.  Genovese is right to question the methods and conclusions of earlier historians writing on interracial sex during American slavery, but his inferences—I do not think it is fair to call them “conclusions”—point out gaps in the relevant scholarship and call for further research on these matters rather than provide definitive statistics or summative analyses.   In any case, to articulate as accurate a narrative as possible, and to revise perceptions of slavery that, Genovese implies, were based on partisan or imprecise data, Genovese seeks to uncover how and why “miscegenation had a profound and in some respects devastating effect on southern life” (415).  Generally, Genovese succeeds in this examination, even if he reveals rather than fills lacunae in historical research.

Genovese offers four generalizations about miscegenation in the plantation South: (1) “Enough violations of black women occurred on the plantations to constitute a scandal and make life hell for a discernable minority of black women and their men”; (2) “[m]uch of the plantation miscegenation occurred with single girls under circumstances that varied from seduction to rape and typically fell between the two”; (3) “[m]arried black women and their men did not take white sexual aggression lightly and resisted effectively enough to hold it to a minimum”; and (4) “[m]ost of the miscegenation in the South occurred in towns and cities, not on the plantations or even farms” (415).  For the purposes of this essay, these four generalizations suffice to show the conclusions that Genovese draws after systematically evaluating and arranging historical data (although he offers these generalizations before he provides the analysis substantiating the generalizations).  Genovese does not scrutinize interracial sex or miscegenation laws with the same degree of care that he reserves for other issues, but that is excusable for a text devoted to the exploration of nearly all aspects of the slave system in the American South. 

Less excusable is Genovese’s overreliance on the perspectives of white Southern planters.  Although most scholarship on slavery had not incorporated black forms of agency and resistance or centered on black perspectives, Genovese could have presented interracial sex from the vantage point, say, of black women in light of then-new understandings of the concept of “rape.”  Furthermore, some historians—most notably Jown W. Blassingame in his book The Slave Community (1972)—had actually begun to reverse the supposition that masters enjoyed absolute dominance over submissive and docile slaves and to reconsider master-slave relationships while taking into account fugitive slave narratives and other forms of black narrative.  The take-home point from Genovese, with regard to interracial sex and miscegenation laws, is that history on slavery began to taper around issues—like miscegenation—previously glossed over by most historians save for Johnston.  Genovese’s Roll, Jordan, Roll remains extraordinary in its scope and controversial for its glorification, however measured, of slave masters, whom Genovese dubs “heroes” at one point in the text.   

In the mid-1970s, as I have suggested, scholarship on slavery began to narrow its focus on more specific times and places and to employ a variety of new methodologies to make sense of slavery and its legacies.  When Robert Fogel and Stanley Engerman published Time on the Cross: The Economics of American Negro Slavery in 1974, their use of quantitative data and cliometric or economic analysis, applied to the history of slavery, raised eyebrows and drew exacting criticisms.  This book appeared in print at roughly the same time as Peter Wood’s Black Majority, which also deals with miscegenation, albeit briefly, and which, more than Time on the Cross, sharpens its focus on specific eras and regions.  Both works were pioneering—Fogel and Engerman’s for its methodology and thesis about the profitability of slavery, and Wood’s for its turn away from “white readings” of slavery and towards readings that included black perspectives and acknowledged and explored slave agency (a major point of the book is that South Carolina slave owners sought out slaves from rice cultivating regions of Africa because those slaves had special skills and technical knowledge).  I will pass over Wood’s analysis of miscegenation because his methodology, compared to the methodology of Fogel and Engerman, does not depart dramatically from the methodology of earlier books on slavery.  Fogel and Engerman’s methodology, however, stands apart from the methodologies used by earlier historians and remains unusual even for historians today.  Time on the Cross is just as controversial as the conclusions it leads to, or perhaps controversial because of the conclusions it leads to, and my attention to Fogel and Engerman has to do above all with the original approach these men take.  

Arguably Fogel and Engerman’s most notorious position is that Southern slaves had a better quality of life than Northern industrial workers.  Meant as a reinterpretation of slave history, Time on the Cross makes other provocative claims: that slaves were not mistreated as often or as severely as historians had supposed, or that other historical accounts of slavery were unbalanced or misguided.  Perhaps the most lasting contribution of this book is not its scientific or pseudoscientific techniques, but its investigation of work and labor as suitable and revealing areas of study.  Before the publication of this book, few works considered the centrality of labor to the maintaining of slavery.  Several works at this time served as economic histories of slavery, but these works failed to address the perspectives of laboring individuals—that is, of the enslaved blacks whose very existence was bound up with commercialism.  Fogel and Engerman would not go so far as their Marxist predecessors (c.f., Williams and others interested in economic matters) in presenting history through the eyes of the oppressed or common person rather than the politically enfranchised or economic elite, but their attention to economics, considered alongside the Marxist works existing at this time, made possible redoubled efforts to understand economics and economic relations and their influence on slave life. 

Fogel and Engerman address miscegenation in one quick reference that seems to substantiate Genovese’s concern that statistics about miscegenation had been overstated or else taken out of context.  Fogel and Engerman address miscegenation, moreover, in the context of their study of the exploitation of black women.  Having concluded that reports about exploitation of black women constituted only a few hundred cases among a population of millions, and therefore that these numbers prove the infrequency as much as the frequency of such exploitation, Fogel and Engerman submit that “travelers to the South greatly exaggerated the extent of miscegenation because they came into contact with unrepresentative samples of Negro population” (132).  These samples, Fogel and Engerman assert, came from cities, where miscegenation was apparently more common, and not from plantations, where “relative isolation” meant that slaves there had “less contact with the freedmen and slaves of the urban areas” (132).  Fogel and Engerman determine that “during the twenty-three decades of contact between slaves and whites which elapsed between 1620 and 1850, only 7.7 percent of the slaves were mulattoes” (132).  This fact suggests that “on average only a very small percentage of the slaves born in any given year were fathered by white men” (132).  These conclusions and the interpretive strategies that lead to them are problematic for a number of reasons, not least of which is the authors’ reliance on census reports and other data that cannot be taken at face value or treated as meticulous reports on the conditions and realities of plantation life.    

Be that as it may, it is not my intention to recycle or belabor the many criticisms of Fogel and Engerman’s conclusions here—only to show the unique path that these men take to arrive at their conclusions.  Suffice it to say that I generally agree with critics of Fogel and Engerman who claim that Time on the Cross overemphasizes numbers without satisfactory regard for how those numbers came about, what those numbers conceal, and whether those numbers are accurate.  The quantitative methodology of Fogel and Engerman reveals something about the direction of history on slavery insofar as the study of slavery, as a field, appears to have begun incorporating economic methodologies—or other like methodologies—in the mid-1970s.  The study of slavery, in other words, was becoming more interdisciplinary and in some cases more “scientific” or “quantitative,” for lack of better terms. 

This trend in economic history may have influenced later scholarship refuting Genovese’s handling of the Old South as a pre-capitalist, seigniorial society inasmuch as the trend suggested, in no uncertain terms, that slavery was not only economically viable but also economically lucrative—that slavery was as much about maximizing profits as it was about racial ideology, feudalism, or survival.  Genovese himself collaborated with Engerman to produce the edition Race and Slavery in the Western Hemisphere: Quantitative Studies, which appeared in 1975 and which presented essays by twenty authors who employ quantitative methodologies to investigate disparate aspects of slavery and economics.  What is more, less than a decade after Race and Slavery in the Western Hemisphere, Elizabeth Fox-Genovese, the wife of Eugene Genovese, came out with Fruits of Merchant Capital: Slavery and Bourgeois Property in the Rise and Expansion of Capitalism (1983), a book that managed to tell a story and not just crunch numbers and compute statistics.  Elizabeth Fox-Genovese’s book represents a marriage of traditional historical methodology with more recent, economic, statistics-based methodologies, and this marriage is what makes her work important.

Slave studies around the time of the publication of Time on the Cross were becoming, it seems, less about broad narratives of slavery as an institution and more about particular foci—labor and economics, for instance—that explained or at least shed light on the broad narratives.  At the same time, criticisms of quantitative analysis picked up momentum and found illuminating expression in numerous articles and reviews, but most importantly, perhaps, in one book meant to counteract and call into question the econometrics and statistics-driven approach of Fogel and Engerman: Reckoning with Slavery: A Critical Study in the Quantitative History of American Negro Slavery (1976).  This book about a book demonstrates the frustration of several scholars with economic-based historical revisionism.  But as I have suggested, later scholarship of historians like Elizabeth Fox-Genovese succeeded in wedding the traditional with the economic and the narrative with the numbers.

That Fogel and Engerman’s project appears in print just two years after the publication of Genovese’s Roll, Jordan, Roll, which also calls into question statistics about mulattoes in the South and hence about interracial sex, suggests at the very least that miscegenation was still understudied at this point in time and that, in addition, statistics about miscegenation remained unsettled.  Fogel and Engerman should be applauded for drawing attention to miscegenation and like issues, but their conclusions about these issues cannot be accepted wholesale.  An overemphasis on statistics, however revealing of lacunae in the study of sexuality or miscegenation, is misleading and does not account for the realities that cannot be quantified because they were obscured, silenced, untold, or unknown and unknowable.  For instance, statistics about mulattoes cannot account for interracial sexual encounters that did not produce children or that resulted in abortions.  

If Genovese’s scholarship suggests that historians on slavery began turning their writing on slavery into more evaluative rather than descriptive exercises, hence seeking explanations for ideological assumptions about slavery rather than recounting the fact that there were ideological assumptions, then texts like David Brion Davis’s The Problem of Slavery in the Age of Revolution (1975) suggest that historians were beginning to confine their studies of slavery to more definite time periods.  Indeed, this book deals with roughly fifty years of history.  An extension of Davis’s earlier volume The Problem of Slavery in Western Culture, this book tells the story of how several disparate movements—evangelicalism, millennialism, Enlightenment rationalism and skepticism, and patriotism—combine to give force to the antislavery movement.  Davis’s work on the revolutionary era is dauntingly expansive, for it deals not just with the Revolution in America but with many revolutions, including the French Revolution, taking place in the Western world from 1770-1823.  Davis’s book, in short, is more particular about its coverage of time periods, but still ambitious—one might say overambitious because a text about revolutionary movements in England, France, and America is bound to leave out much material and to privilege certain regions or countries over others—about its coverage of geographic territory. 

Davis’s book does not deal with interracial sex or miscegenation laws.  It mentions the word “miscegenation” in a single footnote and the word “sex” just twice, both times to signify gender (by which I mean biological anatomy, not social construction) rather than sexual intercourse.  These absences notwithstanding, The Problem of Slavery in the Age of Revoluition appears in this historiographical essay because it is a landmark text that (perhaps unwittingly) supplies readers with information about the logic underpinning miscegenation statutes.   That logic concerned white suppression of black slaves to avoid slave revolts, which, many whites believed, would be intensified and more widespread if the number of mulattos increased throughout the South—if interracial sex was not banned outright.  Another seminal volume from the same year (1975) shares this logic and delivers critical analysis about miscegenation laws where such analysis was missing in Davis.  This volume is Edmund S. Morgan’s American Slavery, American Freedom, a text that in many ways complements The Problem of Slavery in the Age of Revolution.

American Slavery, American Freedom deals chiefly with slave experience in Virginia from the 1630s to the 1680s.  More precise in its attention to a fixed time and place than some of the most celebrated historical texts about slavery published before 1975, including some of those texts I have mentioned already, American Slavery, American Freedom describes miscegenation by way of other important topics.  Morgan suggests that up until the 1660s records on interracial sex do not seem to indicate indisputable racism (333).  After the 1660s, however, miscegenation laws seemed to reflect racist ideology.  Morgan discusses two court cases that, respectively, took place in 1656 and 1671 (334).  The second case played a role in Virginia’s creation of the miscegenation statute passed by the Virginia legislature in 1691 (334-35).  Under this statute, whites who married blacks, mulattos, or Indians were subject to banishment (335).  In 1705, the assembly revised the statute to impose a fine and six months of imprisonment rather than banishment (335).  It is important to contextualize Morgan’s comments about miscegenation within his broader interest in white solidarity dependent upon black slavery.  Miscegenation laws both reflected and galvanized white consensus about black bodies.  These laws also allowed the planter classes to forge a common identity motivated by fear and defined by racial distinctions.   

Morgan speculates that because the population of women in Virginia was small, the miscegenation statutes “were aimed at confining the affections of these rare white women to white men,” a speculation seemingly affirmed by statistics showing the number of white woman giving birth to illegitimate or mulatto children (336).  Morgan explains, “It would appear that black men were competing all too successfully for white women, even in the face of the severe penalties” (336).  Morgan extends his treatment of miscegenation laws elsewhere in the book, but although his analysis of interracial sex and miscegenation laws is more meticulous than the analysis of other historians who talk about interracial sex and miscegenation laws, he still treats interracial sex and miscegenation laws as peripheral issues.  That is to be expected in a book of this scope and length, and I am not indicting Morgan for passing over these issues, which are not central to his theses. 

What I am doing is calling attention to important areas of research that Morgan and other historians in the 1970s omitted probably because these areas were not yet a major part of the critical conversations about slavery that were taking place.  If Morgan succeeds in narrowing the general scholarship about slavery to a particular time and place, he does not signal an even sharper turn toward particular issues—such as interracial sex or miscegenation laws—within particular times and places.  Nevertheless, his book is a valuable and readable contribution to scholarship on slavery, and his references to miscegenation, however passing, suggest a growing interest in miscegenation laws that policed the black body and its relation to white bodies and whiteness.     

In the 1980s, scholarship on slavery did not fill the gaps in information about miscegenation and miscegenation laws, but it did create new vantage points from which to view slavery in all of its manifestations.  Orlando Patterson forged a sociological approach to slavery, to give just one notable example, but he mentions miscegenation only a few times in his landmark text Slavery and Social Death, which appeared in 1982 and which has been critiqued for, among other things, its analogy of slave labor to the arrangement between professional athletes and their “owners.”  Patterson uses this analogy to show that the definition of slavery need not involve a property aspect.  This now-infamous claim notwithstanding, Patterson’s book is telling and remarkable because it undertakes a global or transnational examination of slavery rather than focusing exclusively or mostly on American plantation life or on conditions in the West Indies and Brazil.  This trend in historiography did not do much to recover lost information about interracial sex and like issues; nor did it shift attention to interracial sex and like issues.  Indeed, not until the publication of Dorothy Sterling’s We Are Your Sisters: Black Women in the Nineteenth Century (1984), Deborah White’s Aren’t I a Woman? Female Slaves in the Plantation South (1985), and Elizabeth Fox-Genovese’s Within the Plantation Household: Black and White Women of the Old South (1988) did interracial sex and miscegenation laws receive the sort of treatment that they received in the work of, say, Eugene Genovese’s Roll, Jordan, Roll.

The declared objective of Aren’t I a Woman? is to “enrich our knowledge of antebellum black culture and to serve as a chapter in the yet unwritten history of the American black woman” (25).  This objective, so stated, offers a possible clue about why interracial sex and miscegenation laws received scant attention in the early decades of scholarship about slavery: the black woman had yet to be considered a worthy site of study in her own right.  Indeed, few feminist readings of the slave body had surfaced at this juncture, in part because so much documentary evidence about the everyday lives of slave women had gone missing or else been deliberately erased.  One would expect to find more evidence of interracial sex in court documents, but statistics are hard to come by because some interracial sex was non-consensual—it was rape—and from “emancipation through more than two-thirds of the twentieth century,” a time when slave scholarship first gained traction, “no Southern white male was convicted of raping or attempting to rape a black woman” (188).  Therefore, the misconceptions and silences surrounding the issue of slave womanhood have as much to do with concerted efforts at omitting or expunging records long after slavery as they do with omitting and expunging records while slavery was in its prime.  If contemporaries of slavery did not want to leave behind traces and documentation of the harsh realities that slave women faced, later historians and writers were no more eager to recover or inspect such traces and documentation.  That is why White treats black women as “invisible” (3) and as robbed of their femininity.  It is this very “de-feminization” that led black women to ask, almost two centuries ago, “Aren’t I a Woman?”   

As I have suggested, White’s book is a corrective to a dearth in literature about slave women and also about gender relations and their effect on class during American slavery.  By making the invisible visible, so to speak, White enabled future research and writing about interracial sex and miscegenation laws.  The 1990s saw an increase in attention to interracial sex and miscegenation laws, and that increase has multiplied even more during the last decade.       

  1. C.     1990s – Present

When Peter Kolchin published American Slavery: 1619-1877 (1993), a book intended to synthesize the most important historiographical information on slavery to date, miscegenation received only passing mention.  Kolchin does devote five telling pages to “interracial sex.”  He refers to James Henry Hammond, a South Carolinian slave master who carried out a longstanding affair with two of his slaves (120).  He points out, too, that the “close contact that existed between masters and slaves worked special hardship on slave women, who were vulnerable to sexual as well as labor exploitation” (124).  Both blacks and whites, for reasons ranging from decorum to embarrassment to communal acceptance to fear of punishment, often remained silent about miscegenation, but the fact of the matter was that interracial sex was prevalent (124).  That sexual matters were silenced should have some bearing on the way that we read and challenge the statistical approaches of Fogel and Engelman. 

As evidence of the prevalence of interracial sex, at any rate, Kolchin suggests that one South Carolina ideologue—William Harper—turned sex with black slave women into a virtuous activity that minimized the prostitution of white women and that, to that end, ensured the purity of white womanhood (124).  Kolchin is careful to point out that not all white-on-black sexual advances were unwanted, for there “were slave women who maintained long-term relations with white men that came close to common-law marriages” (124).  Furthermore, on rare occasions, “slave men had such relations with white women” (124).  Despite all that, Kolchin, pointing to Harriet Jacobs’s autobiography as a definitive source, explains that most “slaves who had sex with whites did so against their will, whether the victims of outright rape or of the powerlessness that made resistance to advances futile and the use of force in such advances unnecessary” (125).  In short, some white-black sexual relationships were based on mutual consent, and some even functioned as de facto marriages, but most of the time whites, occupying a unique position of power, coerced blacks into having sex.  Kolchin’s approach to historiography is helpful precisely because it allows us to understand the scope and focus of the burgeoning field, which, if Kolchin’s text were truly summative of scholarship up to this point, would seem to have failed to adequately evaluate sexuality in general or miscegenation in particular.  But as this historiographical essay has shown, scholars like Deborah White did address these issues, so what Kolchin leaves out of his synthesis says as much about his perception of the historiography as what he includes in his synthesis.  Put another way, Kolchin reveals that there are some areas of slavery studies with which he is either less familiar or less interested.     

A decisive turn in slave scholarship occurred not long after Kolchin’s synthesis of the historiography on slavery.  Most notably, the field began to explore issues of gender and class as interactive rather than mutually exclusive phenomena.  Genovese’s work enabled this scholarship, which had yet to find suitable articulation, by highlighting issues of gender in the domestic sphere (the threat of separating slaves from their wives and families comes to mind, as does the nostalgic-seeming commemoration of the “Mammy” figure) and by addressing issues such as interracial sex and marriage.  This development in the field did not supplant various foci on labor and work, but rather revised and extended those foci to account for the complicated but clarifying relationship between the human body and culture writ large.  In many ways, Ira Berlin’s Many Thousands Gone: The First Two Centuries of Slavery in North America, published in 1998, is the culmination of this development.  This book serves for my purposes as a representative text for the new direction of slave scholarship in the 1990s.  Many Thousands Gone acknowledges that slavery was not monolithic and homogenous over time and throughout space but rather conditional and organic, as different from one generation to the next as it was from one region to another.  Slavery, in short, did not share a common characteristic from time to time or place to place, but developed distinctive characteristics depending on various contingencies—technological advancements, economic changes, and so forth—which were calibrated by negotiations between masters and their slaves.  Importantly for my purposes here, this book, like many prominent texts on slavery during this decade, offers more-than-passing treatments of miscegenation without actually devoting so much as chapter length analyses to this phenomenon.  My interest in Berlin has to do above all with Berlin’s claims about the frequency and openness of interracial sexual unions.  These claims suggest that racial ideology and white supremacy intensified rather than diminished as the nineteenth-century approached.  

Berlin writes that marriage bans in the Chesapeake “indicate that some whites and blacks ignored the strictures against what Chesapeake lawmakers later termed ‘shameful’ and ‘unnatural’ acts and instead joined together as man and wife without regard to color” (44).  After all, what is the need for a ban if the activity to be banned is not a threat?  Berlin is interested in how “little stigma” accompanied marriages between whites and blacks—both black men to white women and white men to black women—in America during the seventeenth-century (44).  These racial attitudes in the Chesapeake would seem to suggest that racism was an outgrowth of the ideology of slavery after and alongside such eighteenth- and nineteenth- century phenomena as the banning of the international slave trade, westward expansion, the invention of the cotton gin, economic rivalries between North and South, and many other factors that combined to shape the rhetorical and cultural grounds for the slave system and hence to harshen slave conditions. 

According to Berlin, interracial relationships, sexual or otherwise, “revealed the large social expanse where black men and women interacted with white people, if not with full equality, at least with open recognition that power had many sources, of which descent was but one” (44).  It was not until the eighteenth-century, in fact, that white lawmakers began to heavily restrict black mobility and ensure the nearly unconditional dominance of the white planter class over blacks both free and enslaved, or once free and now enslaved (Berlin 123-125).  During this time, moreover, free blacks lost many if not most of the rights and liberties that they had previously enjoyed by law (Berlin 123-125).  Despite these increasingly prevalent and severe racial restrictions, many of the young blacks were of mixed racial origins and appeared lighter in color than their parents or grandparents (Berlin 124).  This trend shows that miscegenation happened occasionally (or more than occasionally, depending on what criteria one uses to register frequency) and was relatively widespread.  Even so, the “tawny color” of these mixed-race children indicated only “partial European ancestry,” and “most free people of color had no kinship to the new planter class, men and women who, in an earlier age, might have served as patrons and benefactors (Berlin 125).  Far more often than members of the planter class, white servants crossed racial lines to produce children of blended racial backgrounds (Berlin 125).  This observation signals another developing focus of historiographical scholarship that received its fullest treatment in Genovese’s Roll, Jordan, Roll and that influenced most if not all books thereafter: class.  Berlin’s treatment of interracial sex suggests that gender and class are, or can be, inextricably tied, and his book is indicative of the direction historiography had taken towards incorporating nuanced and specialized understandings of gender and class and their relation to slave agency and autonomy.  Examples of this direction can be found in such works as Catharine Clinton and Michele Gillespie’s The Devil’s Lane (1997).

The Devil’s Lane is a fascinating and curious edition consisting of seventeen essays.  It is a sort of invitation to scholars to “welcome more into the fold as well as the feud” of Southern history (xiii).  Clinton and Gillespie attempt to foreground issues of race, sex, and violence, which meant something very different to early colonials than they did to Americans in the nineteenth-century, who insisted on rigid rather than fluid racial and sexual categories.  Several essays in this collection take up interracial sex and miscegenation laws.  Peter Wallenstein’s essay “Indian Foremothers” implicates interracial sex by way of freedom suits brought by slave plaintiffs claiming that they had a maternal Native American ancestor.  That ancestry meant that the slave plaintiffs could be freed because they were not fully or legally black.  Diane Miller Sommerville’s essay “Rape, Race, and Castration in Slave Law in the Colonial and Early South” examines the treatment of black males in southern rape statutes.  Gillespie’s essay attends to Mary Musgrove, a mixed race leader of the Creek Nation.  Kimberly S. Hanger considers common law marriages between black women and white men in colonial New Orleans.  Likewise, Virginia Meacham Gould evaluates interracial sexual liaisons between black women and white men in colonial New Orleans.  Each of these essays is important in its own way, but none is as relevant for my purposes as Paul Finkelman’s essay “Crimes of Love, Misdemeanors of Passion.”

Finkelman’s essay demands special attention because it undertakes to explain miscegenation laws in Virginia during the late seventeenth-, eighteenth-, and early nineteenth centuries, precisely the time periods that I have already suggested are critical for understanding interracial sex and miscegenation laws during American slavery.  Finkelman argues convincingly that white Europeans succeeded in tying slavery to color once Africans began to convert to Christianity, thus delegitimizing paganism and heathenism as illegitimate bases for enslavement.  “If slavery was tied to color,” Finkelman submits, “then racial separation had to be maintained” (126).  “Otherwise,” he adds, “it would soon become impossible to tell the slave from their masters” (126).  This thesis recalls Jordan’s analysis of interracial sex in Virginia (Finkelman cites White Over Black several times) and provides an operative paradigm for other scholars to mimic and refine.  Finkelman certainly does not exhaust the issue of interracial sex and miscegenation laws in early Virginia; indeed, he merely skims the surface.  But what Finkelman does with sources about interracial sex and miscegenation laws in Virginia, other scholars could do with sources about interracial sex and miscegenation laws in different states.

The Devil’s Lane is pioneering and bold, but may seem wanting in continuity and connectedness insofar as the essays presented in it speak to vastly different topics and geographic spaces.  What links these essays is a revisionist focus on sexuality, a focus that at times seems to overemphasize the bizarre and spectacular (for example, the story of the communal persecution and bodily humiliation suffered by one transgendered Virginian, or the infanticide case involving the slave Juana Salom) at the expense of equally important information about everyday sex and sexuality.  Readers of this volume might come away with the impression that the Old South was little more than a sexual circus.  A focus on ordinary sexual relations would be more enlightening about the lives and thinking of most individuals, black or white, living through American slavery.  Sensational histories have their purposes, including the legitimate purpose to provoke and entertain, but their most important function is to point out the extremes to contextualize the ordinary.  A secondary goal of this book is to subvert mythic ideals about white womanhood in the Old South, but the overreliance on tumultuous stories and obscure sources works against this goal, as the book gradually comes across as a forced effort to insist that the extraordinary was ordinary and the abnormal, normal.          

Recent volumes examining interracial sex and miscegenation laws have proliferated.  Some of the books published in the last fifteen years that touch upon these subjects include Martha Hodes’s White Women, Black Men: Illicit Sex in the 19th-Century South (1997), Kirsten Fischer’s Suspect Relations: Sex, Race, and Resistance in Colonial North Carolina (2002), Joshua D. Rothman’s Notorious in the Neighborhood: Sex and Families across the Color Line in Virginia, 1787-1861 (2003), Jennifer L. Morgan’s Laboring Women: Reproduction and Gender in New World Slavery (2004), Hannah Rosen’s Terror in the Heart of Freedom: Citizenship, Sexual Violence, and the Meaning of Race in the Postemancipation South (2009), and Peggy Pascoe’s What Comes Naturally: Miscegenation Law and the Making of Race in America (2009), which deals with miscegenation laws and race from the end of the Civil War until their demise in the 1960s.  The books by Fischer and Rothman are arguably the best of these works because they are narrow in scope and focused in their analyses.  Despite the publication of these texts about gender and sexuality, there remains much work left to do, especially regarding miscegenation laws and interracial sex in the seventeenth-, eighteenth-, and early nineteenth- centuries.              

Miscegenation and miscegenation laws would seem to call for more attention than is accorded by most scholars of slavery, but the trajectory of historical scholarship on slavery would also suggest that a definitive, comprehensive treatment of interracial sex and miscegenation laws is already underway—or at least ripe for discussion.  As the field has pushed once-marginalized issues like gender to the center of its efforts, it also has turned to overlooked documents—court records, newspapers, records of traders, advertisements, and so on—to clarify and often qualify various assertions of earlier historians.  It is only a matter of time before seventeenth, eighteenth, and early nineteenth-century miscegenation laws receive extensive treatment.  As I have suggested, a number of articles and books has addressed miscegenation laws during the mid-nineteenth-century through their demise in the mid-twentieth-century, but now is a favorable time to expand that research to encompass miscegenation laws that inspired and produced later miscegenation laws and that codified racism as a state-sanctioned enterprise.  Limited source material will complicate our understanding of interracial sex and miscegenation laws during slavery.  No doubt many court cases, diary entries, recorded observations, and miscellaneous documents have gone missing or were destroyed.  Nevertheless, we have enough source material, I suspect, to make clear and compelling observations and arguments, and we should congratulate and encourage scholars who are doing just that.    

Works Cited

Berlin, Ira.  Many Thousands Gone: The First Two Centuries of Slavery in North America (The Belknap Press of Harvard University, 1998).

Blassingame, John W.  The Slave Community: Plantation Life in the Antebellum South (New York: Oxford University Press, 1972).

Clinton, Catharine and Michele Gillespie, eds.  The Devil’s Lane (Oxford University Press, 1997). 

David, Paul A. et al., Reckoning with Slavery: A Critical Study in the Quantitative History of American Negro Slavery (Oxford, UK: Oxford University Press, 1976).

Davis, David Brion.  The Problem of Slavery in Western Culture (Ithaca, N.Y.: Cornell University Press, 1966).

Davis, David Brion.  The Problem of Slavery in the Age of Revolution, 1770-1823 (Ithaca, N.Y.: Cornell University Press, 1975).

Elkins, Stanley.  Slavery: A Problem in American Institutional and Intellectual Life (University of Chicago Press, 1959).

Engerman, Stanley L. and Eugene Genovese, eds.  Race and Slavery in the Western Hemisphere: Quantitative Studies (Princeton: Princeton University Press, 1975).

Fischer, Kirsten.  Suspect Relations: Sex, Race, and Resistance in Colonial North Carolina (Ithaca: Cornell University Press, 2002).

Fogel, Robert William and Stanley L. Engerman.  Time on the Cross: The Economics of American Negro Slavery (Boston: Little, Brown and Company, 1974).

Fox-Genovese, Elizabeth. Fruits of Merchant Capital: Slavery and Bourgeois Property in the Rise and Expansion of Capitalism (New York: Oxford University Press, 1983).

Fox-Genovese, Elizabeth. Within the Plantation Household: Black and White Women of the Old South (Chapel Hill, NC: University of North Carolina Press, 1988).

Genovese, Eugene.  Roll, Jordan, Roll: The World the Slaves Made (New York: Pantheon Books, 1974).

Hodes, Martha.  White Women, Black Men: Illicit Sex in the 19th-Century South (Yale University Press, 1997).

Johnston, James Hugo.  Race Relations in Virginia & Miscegenation in the South (Amherst: University of Massachusetts Press, 1970).

Jordan, Winthrop D.  White Over Black (Chapel Hill, N.C.: University of North Carolina Press, 1968).

Kolchin, Peter.  American Slavery: 1619-1877 (New York: Hill and Wang, 1993).

Litwack, Leon F. North of Slavery: The Negro in the Free States, 179-1860. Chicago, IL: University of Chicago Press, 1961.

Morgan, Edmund S.  American Slavery, American Freedom: The Ordeal of Colonial Virginia (W.W. Norton & Company, 1975).

Morgan, Jennifer L.  Laboring Women: Reproduction and Gender in New World Slavery (Philadelphia, PA: University of Pennsylvania Press, 2004).

Pascoe, Peggy.  What Comes Naturally: Miscegenation Law and the Making of Race in America (Oxford University Press, 2009).

Patterson, Orlando.  Slavery and Social Death: A Comparative Study (Cambridge, M.A.: Harvard University Press, 1982).

Rosen, Hannah. Terror in the Heart of Freedom: Citizenship, Sexual Violence, and the Meaning of Race in the Postemancipation South (Chapel Hill, NC: University of North Carolina Press, 2009).

Rothman, Joshua D. Notorious in the Neighborhood: Sex and Families across the Color Line in Virginia, 1787-1861 (Chapel Hill, NC: University of North Carolina Press, 2003).

Stampp, Kenneth M. The Peculiar Institution: Slavery in the Ante-Bellum South (New York: Alfred A. Knopf, 1956).

Sterling, Dorothy.  We Are Your Sisters: Black Women in the Nineteenth Century (1984).

Tannenbaum, Frank.  Slave and Citizen (New York: Alfred A. Knopf, Inc., 1946).

tenBroek, Jacobus. Equal Under Law. New York: Collier Books, revised ed., 1965 (originally published as The Antislavery Origins of the Fourteenth Amendment, 1951).

White, Deborah.  Aren’t I a Woman? Female Slaves in the Plantation South (New York: Norton, 1985).

Williams, Eric. Capitalism & Slavery (Chapel Hill, NC: North Carolina University Press, 1994 [original 1944]).

Wood, Peter H.  Black Majority: Negroes in Colonial South Carolina from 1670 through the Stono Rebellion (New York: Alfred A. Knopf, 1974).

[1] C.f., Ira Berlin, whose work Many Thousands Gone appeared in 1998.  In an effort to address historical treatments of miscegenation chronologically—that is, by order of the historians rather than by order of the historical periods that the historians describe—I will save Berlin’s treatment of miscegenation until later in this essay.  I cite him here to show how important Jordan’s claim is because it anticipates other claims made by later historians.


  1. Pingback: The Place of Miscegenation Laws within Historical Scholarship about Slavery « The Literary Lawyer: A Forum for the Legal and Literary Communities

  2. Pingback: Within The Plantation Household

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s