Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia 77 Georgetown Law Journal 1988-1989

77 Geo. L. J. 1967 (1988-1989)
Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia

handle is hein.journals/glj77 and id is 1989 raw text is: ARTICLES
Racial Purity and Interracial Sex in the Law
of Colonial and Antebellum Virginia
A. LEON HIGGINBOTHAM, JR., AND BARBARA K. KOPYTOFF*
I. INTRODUCTION
There is probably no better place than Virginia to examine the origins of
the American doctrine of racial purity and the related prohibitions on inter-
racial sex and interracial marriage. Many people applaud Virginia as the
mother of Presidents (four of the first five Presidents were Virginians)' and
the mother of revolutionaries, such as Thomas Jefferson, George Washing-
ton, and Patrick Henry. Yet few stress that colonial Virginia was also the
mother of American slavery and a leader in the gradual debasement of
blacks2 through its institution of slavery.3 Virginia was also one of the first
colonies to formulate a legal definition of race4 and to enact prohibitions
against interracial marriage and interracial sex.5 For more than three centu-
* A. Leon Higginbotham, Jr., Judge, U.S. Court of Appeals (3d Cir.); B.A. 1949, Antioch Col-
lege; LL.B. 1952, Yale University; J.D. honoris causa 1983, Georgetown University, and Barbara
K. Kopytoff, Judicial Clerk to Judge Higginbotham, B.A. 1960, Swarthmore College; M.A. 1964,
Ph.D. 1973, University of Pennsylvania; J.D. 1987, Temple University, are equal co-authors of this
manuscript.
This Article is part of Judge Higginbotham's twenty-year research effort that will be presented in
two forthcoming volumes that attempt to define ten basic precepts of American slavery. This Arti-
cle focuses on one of those precepts: draw an arbitrary racial line and preserve white racial purity
as thus defined; tolerate sexual relations between white men and black women, punish them severely
between white women and non-white men, and always preserve white male sexual dominance. An-
other precept is the subject of an article by Higginbotham and Kopytoff. See Property First, Hu-
manity Second: the Recognition of the Slave's Human Nature in Virginia Civil Law, 50 Ohio St. L.J.
511 (1989).
1. These were Presidents Washington, Jefferson, Madison, and Monroe.
2. When we use the term black in this Article in reference to pre-Civil War Virginia, we mean
it to include all those who at that time were called Negroes or mulattoes. The two comprised a
single legal category, but a single term was not generally used in legal writing of the time. After the
Civil War, the term colored was used for both, and it has recently been replaced by black. See
1888 CODE OF VIRGINIA tit. 4, ch. VI, § 49 (defining colored persons and Indians).
3. See A.L. HIGGINBOTHAM, IN THE MATTER OF COLOR: RACE AND THE AMERICAN LEGAL
PROCESS ch. 2 (1978).
4. See Ch. IV, 3 LAWS OF VA. 250, 252 (Hening 1823) (enacted 1705) (mulatto defined as child,
grandchild, or great-grandchild of Negro (and presumably a white) or child of Indian (and presum-
ably a white)).
5. See Act XII, 2 LAWS OF VA. 170, 170 (Hening 1823) (enacted 1662) (fine for interracial sex
twice that for fornication); Act XVI, 3 LAWS OF VA. 86, 86-87 (Hening 1823) (enacted 1691)
(interracial marriage punished by banishment from Virginia within three months).

1967

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