Indigenous people had what one historian has labeled jurispractices, while Europeans brought and created a jurisprudence of race and status that shaped treatments of women of color across imperial spaces. Scholars of prerevolutionary North America argue against neat conceptualizations of slavery and freedom in starkly oppositional terms; instead, they recognize that a range of multiple dependencies existed across the regions of early North America.
In the earliest years of settlement, before the midth century, Africans, Europeans, and Indigenous Americans understood human bondage as part of a continuum that might range from temporary to permanent. In order to understand the position of women under the law, it is useful first to discuss the variety of unfree statuses that coexisted across early America. The three principal groups that populated early modern North America—Africans, Native Americans, and Europeans—all practiced varieties of slavery and captivity.
In the earliest years of the settlement of British America, slavery was initially a fluid category, one not necessarily permanent, inheritable, or fixed. Rather, for both men and women, slave status encompassed the possibility of change through baptism and legal challenge; the same was true of New Netherland.
Outside of these jurisdictions, in French, Spanish, and Native settlements, African- or Native-descended women in particular could alter their status through marriage, adoption, or work.
Although the English settlements, as opposed to the French and Spanish, had few legal models for slavery aside from apprenticeship law, for the most part Europeans considered enslavement to be an acceptable legal status for cultural outsiders. Similarly, for some Indians and Africans as well, enslavable groups were war captives and others understood to be cultural outcasts; slaving defined who was included or excluded. Initially, Europeans did not restrict slavery to Africans and their descendants in America.
In North America, Europeans traded Indian slaves—some two to four million from the late 15th to the early 19th centuries, many of whom were initially enslaved by other Native Americans. Although Native America was remarkably diverse in the centuries before European settlement, Indigenous communities had developed distinctly complex practices of captivity, treating prisoners as spoils of war, as slaves, or as hostages or pawns in intercommunity diplomatic interactions, and these norms crossed ethnic lines in the north.
If these practices appear to have lacked what Europeans recognized as jurisprudence—a written body of laws, a corpus of legal theories, and a judiciary system—Native Americans engaged in what Katherine Hermes calls jurispractice; that is, they adhered to customs of acting legally, for instance using standard mechanisms and adhering to rules for resolving disputes, remedying wrongs, and punishing crimes.
Within Native communities, slavery was governed by these legal structures and existed across a continuum that might range from temporary unfreedom to permanent bondage. In the southwest borderlands, Native communities before and after Spanish contact practiced a unique form of slavery in which women and children were captives and hostages.
Because slavery was tied to kinship rather than labor, however, the captured women sometimes became cultural mediators despite their marginalization. Among Southern Indians, slavery was a status on the continuum of captivity. Cultural and political outsiders—prisoners of war, individuals traded as property, and even those who voluntarily came to Indian communities—were slaves who brought human capital and social standing to her or his master.
Particularly in the southeast and the continental interior, where the balance of power remained on the side of Natives as opposed to Europeans, the former often defined captivity and slavery on their own terms. Captives were not necessarily either prisoners, property, or intended strictly for labor. Female captives among the Cherokee faced a similar range of possibilities. They could be married or adopted into clans; if these options were not available, however, they were kept as slaves who labored to support their masters and existed as social outsiders.
French Louisiana provides yet another example; there, Indians relied in part on exchanging women captives in order to forge trade and diplomatic alliances. Such captives could easily become slaves. The Caddos traded captive Apache women to the French settlements; these women were desirable commodities as household servants and sexual partners, unwilling or otherwise, so slavery made Indian women sexually available to their captors, traders, and owners.
In addition, women also served as hostages in diplomatic negotiations both between Native groups and Native and European power brokers. Moreover, among the widespread Native trade networks, exchanges of captives—again, predominantly women—were part of diplomatic strategies rather than sources of labor. In these regions, particularly in the mid-Atlantic and southern colonies, indentured servitude and slavery coexisted.
The former was distinguished by its temporary character and retention of rights; servants, in theory, lost none of their legal protections as British subjects, though in practice they were dependent, bound, and coerced. Statutes tied slavery to racial difference, a condition specific to people of color—that is, to Africans, Indians, and mixed-race individuals like mulattos and mustees having one-eighth black ancestry , as well as their descendants. After , Europeans across early America enacted a series of statutes that legally defined slavery as a permanent, heritable condition based on the maternal status of Africans and their descendants.
Europeans continued to trade and purchase Indian slaves or enslave them as punitive retribution in the wake of wars, but lateth-century British North Americans, for instance, began to establish some limits on Indian slavery.
In New England, enslaved Indian captives did not necessarily transfer their status to their progeny, and some jurisdictions required legal permission before the children of enslaved Indian captives could be purchased or sold. New England prohibited Indian slavery after , as Virginia had recently done, but Native American workers continued in various forms of unfreedom thereafter. Further elaboration of these codes would continue, of course, but the law of slavery, particularly in its connection to Africans and their descendants, remained fundamentally unaltered in European settlements across North America until the era of the American Revolution.
Women, Race, and Legal Status The varied range of race and status across cultures and colonies is central to any consideration of women and the law in early North America for two reasons. First, the proportion of women who arrived as slaves exceeded that of those who arrived as free migrants. Probably four-fifths of all women who came to North America before were not European. In addition, women typically comprised between 40 and 49 percent of captives taken from the Gold Coast between and ; during those same years, they outnumbered men in the slave cargoes taken from the Bight of Biafra.
Second, women often predominated among Native American captives. By , for instance, one-third of Native Americans in South Carolina were enslaved, and Native women were three to five times more likely to be enslaved than their male counterparts. A similar predominance of women as captives can be found in New France in the north and New Spain in the south.
While male captives were more likely to be executed, their female counterparts were more likely to be adopted into tribes because of their potential as reproductive, household, and domestic laborers. Women also predominated among free black populations in the upper south and cities like New Orleans, where urban markets allowed them to sell goods or services and purchase their manumission with the proceeds.
Across most of early North America, African slaves and their descendants inherited their enslaved status from their mothers. Although the number of laws governing slavery—and enslaved women—accumulated over the course of the colonial period, the legal doctrine of partus sequitur ventrem—progeny follows the womb—was one of the first, and it inextricably bound racial slavery to maternal identity.
The doctrine first established the inheritability, and hence the permanence, of slavery as a legal status. For instance, Jennifer L. Moreover, very much unlike their southern counterparts, northern slave owners in the colonial period did not prize fertility in their female slaves; since their children were likely sold—and sometimes infants were given away—because owners did not want the burden of supporting them, enslaved women may have attempted to avoid pregnancy.
The law did not penalize owners who raped or otherwise sexually coerced their enslaved women. On occasions, masters sued those who had harmed, sexually or otherwise, their enslaved women in order to regain lost value.
While enslaved women transferred their status to their progeny, other laws stripped them of their legal identity, leaving them no standing under the law. Enslaved women had no recourse for sexual harm, regardless of the status of the perpetrator, although the earliest colonial statutes universally instructed masters to provide adequate provisioning and reasonable treatment to their enslaved subjects.
Rape and sexual coercion were difficult crimes even for a free woman to establish and gain convictions for in the colonial courts.
Enslaved women endured coerced sex with masters, overseers, and other white authorities, but indictments were exceptionally uncommon and practically nonexistent, although theory it was possible to charge and convict a white man for raping an enslaved woman. In New Spain and New France, masters appear to have been more accountable to their slaves under the law. These jurisprudential codes were enforced but were also subject to local custom and influence, in which the Catholic Church and its ecclesiastical courts played a significant role.
Beyond the stipulation that masters provide adequate food, clothing, and religious instruction, in New Spain the codes bore directly on women by requiring masters to honor marriage vows between slaves and keep enslaved couples together. For instance, the Code Noir stipulated that masters could not force slaves to marry against their will, sell wives and husbands away from one another, or separate parents from children.
In addition, it provided a mechanism by which some enslaved women gained freedom through intermarriage, although it expressly prohibited marriage between enslaved women and free men. Such marriages remained relatively rare in the French period but gained recognition under Spanish rule.
Similarly, under the Siete Partidas, ecclesiastical courts heard the complaints of enslaved wives who sought remedy or legal separation from abusive spouses. Moreover, enslaved couples occasionally successfully sued masters who failed to live up to the law in these regards. A conservative estimate suggests that free blacks comprised up to 10 percent of the population in the upper South and were more numerous in urban jurisdictions such as Charleston, St.
Augustine, and New Orleans. Women often predominated in the free black population. In the upper South, they outnumbered their free male counterparts by 2: Like their European counterparts, free blacks were able to pursue and protect their rights under law; they could, for instance, own property, file lawsuits, make contracts, issue wills, and sue and be sued. In French Louisiana, free blacks could be returned to slavery and sold if they had been convicted of certain crimes harboring runaways and theft, for instance and were unable to pay their legal fines; in other jurisdictions, free black women were subjected to illegal trafficking.
In Pennsylvania in , lawmakers required a bond on emancipated slaves, free blacks could be required to labor without pay, and free men of color could be sold into slavery if they married white women.
By the terms of an earlyth-century Virginia law, children born to free women who had themselves been bound servants were required to serve the same amount of time as their mothers.
In a society in which patriarchal authority was enshrined in the law, free women of color who married enslaved men initially must have posed challenges to the logic of coverture.
The challenge of the free wife with an enslaved husband was easily resolved, however: In midth-century Virginia, for instance, statutes stipulated that adult women of color were to be taxed, like all men. However, adult white women were not taxed at all, with attempts to tax indentured white women proving unenforceable.
The taxes levied on women of color reflected the assumption that, unlike their white counterparts, free women of color were suitable for physically burdensome agricultural labor and occupied a debased position across colonial America. Further non-gender-specific legal disabilities followed in the early 18th century, when all free people of color were debarred from serving as witnesses in trials, except for those of slaves.
Yet even for enslaved and free women of color, the law was rooted in time and place, in specific communities of real people. Local legal officials could and did on occasion acknowledge that marginalized individuals who, despite the seemingly strict statutory definitions of slavery and status, deserved redress in courts of law. In contrast to enslaved and free African and Indian women and their descendants, female migrants from Europe were governed by the common law of coverture, plus specific colonial statutes that defined their access to property, the nature of their labor, and the contours of their speech.
Regardless of their legal status along the continuum of enslaved and free, these women were able to use the courts to protect their interests in property as well as in attempts to safeguard their persons.
While these terms are specific to English law, French, Spanish, and Dutch law all placed greater or lesser restraints on married women, who were considered to be wards of their husbands.
In contrast to the British model of coverture, for example, wives in Spanish America retained property rights during marriage; they retained legal control over their property and could will it independently of their husbands. In addition, propertied women were accorded a degree of power based upon their rank; they were able to secure legal rights to act independently of their husbands, even when their marriages had disintegrated and the law provided no options for divorce.
For instance, when masters or mistresses mistreated their indentured servant women physically or sexually or violated the terms of their labor contracts, the servants had a right to complain at the local court for redress; in some jurisdictions, their pleas met with remedies from the bench. Nevertheless, patriarchal models of authority prevailed, and despite their access to the courts, indentured women remained restricted by a series of laws that gave their masters extensive powers over them.
They could not marry or travel while under contract, and if they ran away, became pregnant, or challenged their masters, they would be penalized with extra terms of service. The statutory language is clearly indicative of class-based notions of dissolute sexuality.
Indeed, the statutes enacted across imperial North America, like those iterated above, were devoted to creating and enforcing differences among women on the basis of not only race but class as well. Particularly, before contact with Europeans, when Native American law held sway, polygyny—the marriage of one man to several women—was a normal feature of many Native societies across the Americas, practiced mostly by elites. Most individuals in Indian communities engaged in monogamous unions with other individuals, but these could be dissolved at the discretion of either party.
These marriages forged kin and clan associations, social bonds, and diplomatic alliances. However, where European trade networks, expansion, and settlements penetrated existing Native American communities, the colonizers attempted to align Native marital practices with their own laws. Marriage was central to European social and religious order, and in New England, New France, and New Spain, for instance, missionaries worked earnestly to persuade their converts of the superiority of European marriage; indeed, Native conjugal practices were a central institution that Europeans sought to control.
In many cases, European and Indian conflicts over marriage reshaped gender roles of Native men and women.