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Marriage on the Margins: Free Wives, Enslaved Husbands, and the Law in Early Virginia

Abstract

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. 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.

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1. The sources of information on Jane Webb are drawn from the court order books of Northampton County, Virginia, [hereafter NCO]; the Northampton County, Virginia, Free Negro and Slave Records; and Webb v. Savage, found in the Northampton County, Virginia Chancery Judgments. All of these and other Virginia county materials are found at the Library of Virginia. For other overviews of Jane Webb, see Snyder Terri L., “‘To Seeke for Justice’: Mastery, Servitude, and the Law in Early Virginia,” in Early Modern Virginia: Reconsidering the Old Dominion, ed. Coombs John C. and Bradburn Douglas, (Charlottesville: University Press of Virginia, 2011), 128–57; Deal J. Douglas, “A Constricted World: Free Blacks on Virginia's Eastern Shore,” in Colonial Chesapeake Society, ed., Carr Lois Green, Morgan Phillip D., and Russo Jean B. (Chapel Hill: University of North Carolina Press, 1988), 275–305; Deal J. Douglas, Race and Class in Colonial Virginia: Indians, Englishmen, and Africans on the Eastern Shore of Virginia During the Seventeenth Century (New York: Garland Publishing, 1993), 399405; and Paul Heinegg, Free African Americans of Virginia, North Carolina, South Carolina, Maryland, and Delaware. www.freeafricanamericans.com (April 5, 2011).

2. Assuming maternal names was routine in out-of-wedlock pregnancy. It is also the case that some slaves employed matrilineal naming practices, see Pierson William D., Black Yankees: The Development of an Afro-American Subculture in Eighteenth-Century New England (Amherst: University of Massachusetts Press, 1988), 92.

3. See for instance Barr Juliana, Peace Came in the Form of a Woman: Indians and Spaniards in the Texas Borderlands (Chapel Hill: University of North Carolina Press, 2007), 68108; DuVal Kathleen, “Intermarriage and Me'tissage in Colonial Louisiana,” William and Mary Quarterly 65 (2008): 267304; Sleeper-Smith Susan, Indian Women and French Men: Rethinking the Cultural Encounter in the Western Great Lakes (Amherst: University of Massachusetts Press, 2001), 38–53; Hall Gwendolyn Midlo, “African Women in French and Spanish Louisiana,” in The Devil's Lane: Sex and Race in the Early South, ed. Clinton Catherine and Gillespie Michelle (New York: Oxford University Press, 1997), 247–61; and Kirk Sylvia Van, Many Tender Ties: Women in Fur-Trade Society, 1670–870 (Norman: University of Oklahoma Press, 1983) passim.

4. On Virginia, see Morgan Edmund. S., American Slavery, American Freedom; The Ordeal of Colonial Virginia (New York: Norton, 1975); Deal, “A Constricted World, 275–305; and Deal, Race and Class in Colonial Virginia; and Brown Kathleen M., Good Wives, Nasty Wenches, and Anxious Patriarchs: Gender, Race and Power in Colonial Virginia (Chapel Hill: University of North Carolina Press, 1996). On New Orleans, see Hanger Kimberley S., Bounded Lives, Bounded Places: Free Black Society in Colonial New Orleans, 1769–1803 (Durham: Duke University Press, 1997), 8997; Spear Jennifer M., Race, Sex, and Social Order in Early New Orleans (Baltimore: Johns Hopkins University Press, 2010), 5968; and Ingersoll Thomas N., “Free Blacks in a Slave Society: New Orleans, 1713–1812,” William and Mary Quarterly 48 (1991): 173200.

5. Berlin Ira, Many Thousands Gone: The First Two Centuries of Slavery in North America (Cambridge: Harvard University Press, 1998), 710.

6. On New Netherlands, see Romney Susanah Shaw, “Intimate Networks and Children's Survival in New Netherland in the Seventeenth Century,” Early American Studies: An Interdisciplinary Journal 7 (2009): 294–95. On New Orleans, see n. 4 above. On Florida see Landers Jane, Black Society in Spanish Florida (Chicago: University of Illinois Press, 1999), 123–29; Jane Landers, “In Consideration of Her Enormous Crime: Rape and Infanticide in Spanish St. Augustine,” and Gould Virginia Meacham, “‘A Chaos of Iniquity and Discord’: Slave and Free Women of color in the Spanish Ports of New Orleans, Mobile, and Pensacola,” in Clinton and Gillespie, The Devil's Lane, 206–7; 232–46, respectively; and McKinley Michelle, “Fractional Freedoms: Slavery, Legal Activism, and Ecclesiastical Courts in Colonial Lima, 1593–1689,” Law and History Review 28 (2010): 749–90. See also Klein Herbert S., African Slavery in Latin America and the Caribbean, 1st ed., (New York: Oxford University Press, 1986).

7. For New England, see Adams Catherine and Pleck Elizabeth H., Love of Freedom: Black Women in Colonial and Revolutionary New England (New York: Oxford University Press, 2010); and Pierson, Black Yankees, 90–95, 114–16.

8. Throughout this essay, mixed-status marriages refer to those in which one spouse is free and the other is enslaved. On mixed-status marriages in early modern Lima, see McKinley Michelle A., “‘Such Unsightly Unions Could Never Result in Holy Matrimony’: Mixed-Status Marriages in Seventeenth-Century Colonial Lima,” Yale Journal of Law and the Humanities, vol. 22 (Spring 2010), 217–55.

9. Plaintiff is quoted in Adams and Pleck, Love of Freedom, 115–16 and also discussed in Kirsten Sword, “Wayward Wives, Runaway Slaves, and the Limits of Patriarchal Authority in Early America,” (PhD diss., Harvard University, 2002), 215–16.

10. The analysis of the legal strategy can be found in Sword, “Wayward Wives, Runaway Slaves, and the Limits of Patriarchal Authority in Early America,” 216; for similar legal strategies used by free black men in New England, see esp. 216–33.

11. On Peru, see McKinley, “Fractional Freedoms,” 761–66.

12. Adams and Pleck, Love of Freedom, 11, 58, 129–30, 137.

13. Virginia Governor William Gooch to Alured Popple, May 18, 1736, reprinted in Evans Emory G., “A Question of Complexion: Documents Concerning the Negro and the Franchise in Eighteenth-Century Virginia,” Virginia Magazine of History and Biography 71 (1963): 414.

14. Adams and Pleck, Love of Freedom, 136. See also, Dishman Robert B., “Breaking the Bonds: The Role of New Hampshire's Courts in Freeing Those Wrongly Enslaved, 1640–1740,” in Historical New Hampshire, 59 (Fall 2005), 8690. Although these studies identify her as the daughter of a white woman, Elisha is Jane Webb's daughter.

15. Studies that include discussions of free black women in pre-Revolutionary Virginia include Deal, “A Constricted World” and Deal, Race and Class in Colonial Virginia; Brown, Good Wives, Nasty Wenches, and Anxious Patriarchs; Norton Mary Beth, Founding Mothers and Fathers: Gendered Power and the Forming of American Society (New York: Knopf, 1997); and Snyder Terri L., Brabbling Women: Disorderly Speech and the Law in Early Virginia (Ithaca: Cornell University Press, 2003).

16. “Rights consciousness” or “legal consciousness” is used in this article to refer to an individual's belief that she has the right to use the law instrumentally to protect her interests; it is also meant to suggest her awareness of legal institutions, procedures, remedies and the terms of statutes. This differs from the more common meaning of “rights talk,” which refers to collective social groups or movements and their claims to what they perceive as constitutionally guaranteed rights. On the latter, see Hartog Hendrik, “The Constitution of Aspiration and ‘The Rights That Belong to Us All,’” Journal of American History 74 (1987): 1013–34 as a beginning point.

17. John Ruston Pagan, “Law and Society in Restoration Virginia” (Oxford University, D.Phil, 1996), 416–34; Morgan, American Slavery, American Freedom, 414–15, Table 4; and Timothy Breen and Stephen Innes, “Myne Owne Ground: Race and Freedom on Virginia's Eastern Shore, 1640–1676 (New York: Oxford University Press, 1980) 68–69; Eva Sheppard Wolf notes that the free black population on the Eastern Shore outstripped that of other Virginia counties by as much as 2–6%, see Race and Liberty in the New Nation: Emancipation in Virginia From the Revolution to Nat Turner's Rebellion (Baton Rouge: Louisiana State University Press, 2006), Table 1, p. 43. For the United States Census for 1800, see Historical Census Browser, University of Virginia Library, http://mapserver.lib.virginia.edu/php/county.php (April 23, 2011).

18. The ratios and numbers of free blacks in the pre-Revolutionary South are difficult to determine, but there is little doubt about the predominance of women among the free black population in early Republican and antebellum America. My research suggests that, whereas post-Revolutionary manumission was of course important, the disproportion was part of a much longer trend that began in the colonial period. The predominance of free black women in the population was also typical across the Americas. See Klein Herbert, African Slavery in Latin America and the Caribbean (New York: Oxford University Press, 1986), 227. For statistics on free black population, see Schweninger Loren, “The Fragile Nature of Freedom: Free Women of Color in the U.S. South,” in Beyond Bondage: Free Women of Color in the Americas, ed. Gaspar David Barry and Hine Darlene Clark (Urbana: University of Illinois Press 2004), 107 (percentage of female free black population), 106–24 (inclusive); Bogger Tommy L., Free Blacks in Norfolk Virginia, 1790–1860: The Darker Side of Freedom (Charlottesville: University Press of Virginia, 1997), 109; Kennedy Cynthia M., Braided Relations, Entwined Lives: The Women of Charleston's Urban Slave Society (Bloomington: University of Indiana Press, 2005), 2627, 95–110; Lebsock Suzanne, The Free Women of Petersburg: Status and Culture in a Southern Town, 1784–1860 (New York: Norton, 1984), 87111; and Hanger, Bounded Lives, Bounded Places, 94. Other studies of free blacks in the antebellum period include King Wilma, The Essence of Liberty: Free Black Women During the Slave Era (Columbia: University of Missouri Press, 2006); Berlin Ira, Slaves Without Masters: The Free Negro in the Antebellum South (New York: Pantheon, 1974); Jordan Winthrop, White Over Black: American Attitudes Toward the Negro, 1550–1812 (Chapel Hill: University of North Carolina Press, 1968); Franklin John Hope, The Free Negro in North Carolina, 1790–1860 (Chapel Hill: University of North Carolina Press, 1943); Jackson Luther Porter, Free Negro Labor and Property Holding in Virginia, 1830–1860 (New York: Russell and Russell, 1942); and Russell John H., The Free Negro in Virginia, 1619–1865, (Johns Hopkins University Studies in Historical and Political Science, XXXI, No. 3.) (Baltimore: Johns Hopkins University Press, 1913).

19. In the antebellum period, free black women controlled a significant portion of black wealth, particularly in cities, see Schweninger, “The Fragile Nature of Freedom: Free Women of Color in the U.S. South,” 107.

20. On issues of racial indeterminacy and the law in early America, see Gross Ariela, What Blood Won't Tell: A History of Race on Trial in America (Cambridge, MA: Harvard University Press, 2008), 11.

21. Feme Sole commonly refers to an unmarried woman but, as I use it here, also encompasses a married woman who manages a separate estate, engages in business on her own account, or otherwise acts independently with respect to her property; see the Oxford English Dictionary, 2nd ed. (1991) 5: 825. On the law of domestic relations, see Basch Norma, “Marriage and Domestic Relations,” in The Cambridge History of Law in America, Vol. 2. The Long Nineteenth Century, ed. Grossberg Michael and Tomlins Christopher L. (New York: Cambridge University Press, 2011); Brewer Holly, “The Transformation of Domestic Law,” in The Cambridge History of Law in America, Vol. 1. Early America, 1580–1815, ed. Grossberg Michael and Tomlins Christopher (New York: Cambridge University Press, 2008), 288323; Kerber Linda K., No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (New York: Hill and Wang, 1999), 347; and Salmon Marylynn, Women and the Law of Property in Early America (Chapel Hill: University of North Carolina Press, 1989), 380. On the clash between English and nonconjugal-centered households in early America, see Shammas Carole, A History of Household Government in America (Charlottesville: University Press of Virginia, 2002), 2021, 43–44.

22. Nelson William E., The Common Law in Colonial America, Vol. 1. The Chesapeake and New England, 1607–1660 (New York: Oxford University Press, 2008), 35.

23. By 1705, Virginia had enacted a comprehensive slave code and a separate justice system for slaves. Its main provisions were as follows. Slavery was inherited from the mother (1662); baptism did not alter the condition of slavery (1667); killing a slave was not accounted a felony (1669); and slaves were disallowed from carrying firearms and severely punished for striking a white (1680). A revision of the slave code allowed dismemberment and specified several penalties (as in loss of life) for outlying slaves and also erected a separate justice system for slavery (1705) and in 1723, all of the major provisions of slave law were reenacted. See Hening William Waller, The Statutes at Large, Vols II–IV (Charlottesville: University Press of Virginia, 1969), II: 170, 260, 270, 481–82; III: 86–87, 212, 229–35, 269–70, 447–62; and IV: 125–34. Statutes restricted the rights of free blacks with the intent of making them “sensible that a distinction ought to be made between [them and the English].” Some of these restrictions, such as holding public office (1705), voting (1723), or bearing arms in the militia (1755) did not apply to free black women; whereas other restrictions, such as prohibitions against owning white servants (1670), penalties for striking whites (1680), proscriptions against interracial sex and marriage (1691, 1705) and forced manumission of newly freed slaves (1691, 1723) effected free blacks regardless of their sex. Hening, The Statutes at Large, II: 280–81, 481; III: 86–87, 133–34, 251; and VI: 533.

24. Edwards Laura F., The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill: University of North Carolina Press, 2009).

25. Rebecca Probert has recently challenged the supposed frequency of informal marriage in England, see Marriage Law and Practice in the Long Eighteenth Century: A Reassessment (New York: Cambridge University Press, 2009). On the law of marriage in England, see Cressy David, Birth, Marriage and Death: Ritual, Religion, and the Life-Cycle in Tudor and Stuart England (New York: Oxford University Press, 1997), 233335; Stone Lawrence, Road to Divorce: England, 1530–1987 (New York: Oxford University Press, 1990), 5195; Ingram Martin, The Church Courts, Sex, and Marriage in England, 1570–1640 (New York: Cambridge University Press, 1987), 25168; and Gillis John R., For Better, For Worse: British Marriages, 1600 to the Present (New York: Oxford University Press, 1985), 84228. On colonial North America and the United States, see Grossberg Michael, Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1985), 6566; Cott Nancy F., Public Vows: A History of Marriage and the Nation (Cambridge: Harvard University Press, 2000), 3237; Hartog Hendrik, Man and Wife in America: A History (Cambridge: Harvard University Press, 2000), 9395; Godbeer Richard, Sexual Revolution in Early America (Baltimore: Johns Hopkins University Press, 2002), 126; and Shammas, A History of Household Government in America, 99–100.

26. Mandell Daniel R., “The Saga of Sarah Muckamugg: Indian and African American Intermarriage in Colonial New England,” in Sex, Love, Race: Crossing Boundaries in North American History, ed. Hodes Martha (New York: New York University Press, 1999), 75; Adams and Pleck, Love of Freedom, 103–26; and Sword, “Wayward Wives, Runaway Slaves, and the Limits of Patriarchal Authority in Early America,” 137–235.

27. Godbeer refers here only to cohabitating whites, see, Sexual Revolution in Early America, 38; 121–26; see also Franklin, The Free Negro in North Carolina, 185, n.92.

28. For the 1643 law, see Hening, The Statutes at Large, I: 242; for the 1668 law, see ibid., II: 267. A further revision in 1705 once again exempted free black women, see ibid., III: 258, but a 1723 revision not only reiterated their taxable status, it also made taxable all women who were married to free men of color, see ibid., IV: 133. For the “cornerstone” quote and a discussion of taxable law in relation to free women of color, see also Brown, Good Wives, Nasty Wenches, and Anxious Patriarchs, 116–28.

29. Walker David M., The Oxford Companion to the Law (New York: Oxford University Press, 1980), 327–28. For studies that argue for the importance of customary law in the colonial, early Republic, and antebellum South, see Snyder, Brabbling Women; Edwards, The People and Their Peace; and Palmer Vernon Valentine, “The Customs of Slavery: The War Without Arms,” American Journal of Legal History XLVIII (2006): 177218.

30. On verbal espousals in see Probert, Marriage Law and Practice, 21–130; Stone, Road to Divorce, Cressy, Birth, Marriage and Death, 267–275; Godbeer, Sexual Revolution in Early America, 126–28.

31. In the reverse situation, that is, when free black men married enslaved women, no recognition was required, because following the legal doctrine partus sequitur ventrum, children born to these unions would take their mothers’ status as slaves.

32. Doll and Robin, July 28, 1692, Northampton County Wills and Orders, No. 13, 1689–1698, f. 182.

33. Petition of Jane Webb, October 5, 1722, Northampton County, Virginia, Free Negro and Slave Records.

34. Declaration of Abigail Stevens to marry Cudgoe, slave of Matthew Harmenson, January 8, 1739/40, NCO No. 20 (1732–42), f. 382; Declaration of Elizabeth Webb to marry Ezekiel Moses, slave of Elizabeth Harmonson, February 13, 1739/40, NCO No. 20, 1732–42, f. 387.

35. Petition of Susannah Collins to marry Ceasar, August 12, 1740, NCO No. 20, 1732–1742, f. 408.

36. Nottingham Stratton, The Marriage License Bonds of Northampton County, Virginia, From 1706 to 1854 (Baltimore: Genealogical Publishing Co., 1974).

37. Petition of Sarah Beckett, June 29, 1689, Northampton County Virginia Wills and Orders, No. 12, 1683–1689, ff. 442–43. For Hester Tate, see Westmoreland County, Virginia Order Book, 1690–1698, ff. 40–44.

38. Nicholls Michael L., “Passing Through this Troublesome World: Free Blacks on the Early Southside,” Virginia Magazine of History and Biography 92 (1984), 55. Masters in Virginia occasionally gave limited recognition to slave marriages, see Brown, Good Wives, Nasty Wenches, and Anxious Patriarchs, 358–59. On New England, see Adams and Pleck, Love of Freedom, 110–11; and Sword, “Wives Not Slaves,” 219–22.

39. Gabriel, Virginia Gazette (Hunter): January 16, 1761; Stepney Blue, Virginia Gazette (Purdie & Dixon): September 29, 1774.

40. Mandell, “The Saga of Sarah Muckamugg,” 75; Adams and Pleck, Love of Freedom, 110–11; and Sword, “Wives Not Slaves,” 219–22.

41. Hening, The Statutes at Large, XIV: 440, 448. It was, according to statute, illegal to force free blacks into slavery, and laws explicitly addressed this as a criminal act punishable by death; see ibid., VIII: 133; XII:531; XIV: 127.

42. Archives of Maryland Online, vol. 91, p. 58, http://www.aomol.net/html/index.html (April 29, 2010). On Sarah Driggus, see Deal, “A Constricted World,” 280–84; Deal, Race and Class in Colonial Virginia, 295–304; and Berlin, Many Thousands Gone, 45–46.

43. On North Carolina, see Franklin, The Free Negro in North Carolina, 1790–1860, 184–85. On Virginia, see Jackson, Free Negro Labor and Property Holding in Virginia, 22–23.

44. Shammas, A History of Household Government in America, 20–21, 43–44, 99–100; see also Hartog, Man and Wife in America, 93–95.

45. On the idea that marriage might calm the restlessness of male slaves, see Sensbach Jon, A Separate Caanan: The Making of an Afro-Moravian World in North Carolina, 1763–1840 (North Carolina: University of North Carolina Press, 1998), 131. On the rise of African American consciousness in early Virginia, see Parent Anthony S., Foul Means: The Formation of a Slave Society in Virginia, 1660–1740 (Chapel Hill, 2006), 135196.

46. Kerber, No Constitutional Right to Be Ladies, 12–15; see also Kerber , “A Constitutional Right to Be Treated Like American Ladies: Women and the Obligations of Citizenship,” in U.S. History as Women's History, ed. Kerber Linda K., Harris Alice Kessler, and Sklar Katherine Kish (Chapel Hill: University of North Carolina Press, 1995), 21.

47. Emphasis mine. NCO No. 10, 1664–74, f. 122.

48. NCO No. 10, 1674–79, ff. 75, 191. Archives of Maryland Online, 91: 47, 58 (April 20, 2010).

49. Herndon Ruth Wallis and Murray John, eds., Children Bound to Labor: The Pauper Apprentice System in Early America (Ithaca: Cornell University Press, 2009); Sundue Sharon B., Industrious in Their Stations: Young People at Work in Urban America, 1720–1810 (Charlottesville: University Press of Virginia, 2009); Brewer Holly, By Birth or Consent: Children, Law, and the Anglo-American Revolution in Authority (Chapel Hill: University of North Carolina Press, 2005), 12, 273; and Kerber, No Constitutional Right to Be Ladies, 52–53. For the Statutes see Hening, The Statutes at Large, I: 336 (1664); and ibid., III: 447.

50. Petition of Thomas Savage, February 10, 1725, Free Negro and Slave Records, Northampton County.

51. On the truancy of enslaved women see Camp Stephanie M. H., Closer to Freedom: Enslaved Women and Everyday Resistance in the Plantation South (Chapel Hill: University of North Carolina Press, 2004), 3560; and White Deborah Gray, Ar'nt I a Woman? Female Slaves in the Plantation South (New York: Norton, 1985), 7475.

52. Brewer, By Birth or Consent, 273; and Hening, The Statutes at Large III: 447.

53. A tithable list taken in 1725 shows Thomas Savage in possession of five slaves; see Bell John B., Northampton County Virginia Tithables, 1720–1769 (Westminster: Heritage Books, 1994), 93.

54. NCO, No. 17 (1719–1722), f. 192. See also McIlwaine H. R., ed., Journals of the House of Burgesses of Virginia, 1712–14, 1715, 1718, 1720–22, 1723–26 (Richmond: The Colonial Press, 1912), 369.

55. Hening, The Statutes at Large, IV:133. The statute noted that “all free negros, mullattos, or Indians . . . male and female, above the age of sixteen years, and all wives of such negros, mullattos, or Indians . . . shall be deemed and accounted tithables.”

56. William Gooch to Alured Popple, May 18, 1736, in Evans, “A Question of Complexion,” 414. Note that Gooch is writing about legislation enacted in 1723. The governor also argued that as soon as they are manumitted, free blacks viewed themselves as “good [as persons] as the Best of [their] Neighbours.”

57. Hening, The Statutes at Large, IV: 133. The legislation applied to any woman of color obliged to serve until the age of 30 or 31 years, and stipulated that every child born during that term shall serve the master until it reaches the same age that the mother was obliged by law to serve (e.g., either 30 or 31 years). In 1765, the terms of service would be reduced to 21 years for males and 18 years for females because the former requirement of 31 years of age was thought to be “an unreasonable severity” to the children.

58. Later in Virginia and elsewhere in the South, oppressive legislation on free blacks emerged alongside the growth of slavery in the eighteenth century, see Olwell Robert, “Becoming Free: Manumission and the Genesis of a Free Black Community in South Carolina,” Slavery and Abolition, 17 (April 1996), 117.

59. The court order notes the indenture of Dinah, Daniel, and Frances Webb but does not specify a term other than “according to law,” March 21, 1710/11, NCO No. 15, f. 10.

60. Petition of Jane Webb, August 16, 1722, Northampton County, Virginia, Free Negro and Slave Records.

61. William Gooch to Alured Popple, May 18, 1736, in Evans, “A Question of Complexion,” 414.

62. Typically, children born out of wedlock served until the age of 21 (if female) or 24 years (if male), about 3 to 6 years longer than the terms of the Webb children. Those born to white women and fathered by black, Indian, or mixed race men were to serve until 30 years of age, about 9 years longer than Jane Webb served as a penalty for her own mixed race parentage. Neither law would not have applied to the Webb children (because their parents were married and both were mixed race or African–Virginian), but they do contextualize the indentures of the Webb children; on these and other statutes, see Hening, The Statutes at Large, III: 87–88, 453–54; IV: 133; and VIII: 134–5.

63. See, for example, John C. Coombs, Building the Machine: The Development of Slavery and Slave Society in Early Colonial Virginia,” (PhD diss., William and Mary, 2003), 157; and Doll v. Gascoinge, NCO No. 11, July 28, 1962, f. 182.

64. Jane Webb noted in her suit that Thomas Savage “hath taken the Indenture or Instrument of Writing into his Custody and hath Consealed the same” and that Webb “cannot come to the sight thereof,” see Webb v. Savage. On the Savage's statement and the witnesses’ testimony, see NCO, No. 18 (1722–29), f. 247.

65. In 1725, the prevailing law stipulated that “negroes, mulattoes and Indian servants, not being Christians” could not be witnesses at trials; this seems to have been variously interpreted and did not always exclude free blacks; see Hening, The Statutes at Large, III: 298.

66. Webb v. Savage. The indication that the justices were “divided” is on the docket on the reverse of the complaint; see also NCO, No. 18, (1722–1729), f. 28.

67. A 1705 statute prevented “popish recusants, convicts, negroes, mulattoes and Indian servants and others, not being Christians, shall be deemed and taken to be persons incapable in law, to be witnesses in any cases whatsoever” (Hening, III: 298). The 1705 statute equated “negros, mulattoes, and Indian servants” with non-Christians, although a number of slaves had, in the seventeenth century, gained their freedom because they were Christians. The 1732 statute refined the qualifications of witnesses on the basis of race, rather than status, stipulating that “no negro, mulatto, or Indian, either a slave or free, shall hereafter be admitted in any court of this colony, to be sworn as a witness, or give evidence in any cause whatsoever, except upon the trial of a slave, for a capital offence; in which case they shall be allowed to give evidence, except in trials of slaves,” see Hening, The Statutes at Large, IV: 327.

68. For the 1705 “Act Concerning Tithables,” see ibid., III: 258–60. For Webb's petitioning and informing, see NCO, 1725, ff. 205; NCO 1727, f. 297; and NCO 1732, f. 6.

69. Hening, The Statutes at Large, II: 187.

70. Wolf, Race and Liberty in the New Nation, 139 (quotation), 138–147. For similar language used in Rhode Island, see Sweet John Wood, Bodies Politics: Negotiating Race in the American North, 1730–1830 (Philadelphia: University of Pennsylvania Press, 2007), 249251.

71. The best discussion of the legal status of free blacks in North Carolina remains Franklin, The Free Negro in North Carolina, 19–34 and 58–120.

72. Petition of Lovey Sampson, 1797, Records of Slaves and Free Persons of Color, Pasquotank County, CR.075.928.9; and Petition of Margaret Moore, 1797, Records of Slaves and Free Negros, Craven County, CR.028.928.10, North Carolina State Archives [hereafter NCSA].

73. Franklin, The Free Negro in North Carolina, 22. We can see clear measures of success in other petitions. In 1801, Madelene St. Risque petitioned the court, explaining that she had “sometime past intermarried” with the enslaved Major and had subsequently purchased “all right and title” him. She requested simply—and without, as far as I can tell, giving further reasons—that they emancipate him, and her request was granted. See the Petition of Madelene St. Risque, Box 3 (Petitions) General Assembly, Session Records: November–December 1801, NCSA. See also the Petition of Mary Carter, September 1802, Records of Slaves and Free Negroes, Craven County, CR.028.928.10, NCSA.

74. Petition of Amelia Green, September 1796. Records of Slaves and Free Negroes, Craven County, CR.028.098.10, NCSA, and Petition of Amelia Green, December 1801, Records of Slaves and Free Negroes, Craven County, CR.028.098.10, NCSA.

75. Jackson, Free Negro Labor and Property Holding in Virginia, 13.

76. Petition of Jemima Hunt, Southampton County to the House of Delegates of the General Assembly of Virginia, December 9, 1811, reprinted in The Journal of Negro History, 13 (1928), 8889.

77. Will of Salley Chavus (variations, Chaves, Chavers), Charlotte County Virginia Will Book No. 3 with Inventories and Accounts, 1805–1814 (Microfilm Reel #17), ff. 184–85.

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