The Law That Legalized Rape and Absolved Men of Responsibility

“That which is born follows the womb”; also partus) was a legal doctrine passed in colonial Virginia in 1662 and other English crown colonies in the Americas, which defined the legal status of children born there; the doctrine mandated that all children would inherit the legal status of their mothers.

This legal doctrine made any child of an enslaved American woman an enslaved person. It meant any white fathers had no financial responsibility for their progeny. They were free to rape their slaves at will, as there were no laws against that either. With no concern for any children that might come from the forced union. There was a market for mulatto and octaroon children who would be purchased to work as domestics.

Some owners (Thomas Jefferson) used their half-white slaves as their concubines, finding them more attractive the closer they were to white. Sally Hemings was Jefferson’s wife’s half-sister, the product of her father raping an enslaved person. Then again, the master might sell their offspring to keep the peace with their wives, who might be annoyed at little slave children running around who favor their husbands.

English common law held that a child’s legal status followed the father, and men could be forced to provide at least nominal support for their illegitimate children. English courts preferred fathers to take responsibility, sometimes providing apprenticeships so the community didn’t have to care for the child. Those laws no longer apply across the ocean. The colonies went rogue and adopted new rules in 1662, freeing them of any responsibility for the tan slave children they created. It also kept the number of free black children low, as any child born to an enslaved woman was also enslaved.

The children of free white women and enslaved Black people were not talked about in good society. Those days, white women who weren’t sure what color the child might be could get a legal abortion. “Cottonwood” was a remedy known to enslaved people who sometimes refused to have children after being raped or as often as the masters would like. Some women would be forced to have over a dozen children if they survived, as death during childbirth was relatively common. The rare enslaved person would be offered their freedom if they produced enough children. Sometimes the dark child of a white woman was abandoned or given away. Usually just sold off, although technically, they were legally free.

There was a growing population of free blacks in America. By 1810, over 10% of blacks in the upper Northern states were free. In Virginia at the same time, just over 7% of blacks were free, primarily through manumission, but a few were born to white women. Then cotton increased the need throughout the south for labor, and suddenly, enslaved people weren’t being freed so much but sold. The price of domestic enslaved people had gone up because America had made importing enslaved people illegal. That move, spearheaded by our old friend Jefferson but envisioned in the Constitution (Article One: Section Nine), was about protectionism and making Virginia slaveholders who had excess enslaved people rich but harming South Carolina enslavers who had been importing cheaper enslaved people from Africa. To fully appreciate the impact of this law, you must fully understand the economics and history of forcible breeding and rape of the enslaved. Without this law, it might have been considered wrong.

Partus Sequitur Ventrem is a Latin term, but its application was uniquely American. The Founders codified into law a means to further dehumanize those who they enslaved, walking away from all responsibility—another lesson in American history.

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This post was previously published on Black History Month 365.

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