by John Bailey
He shook his head. No, no, she is Mary, the slave. That is her name.
Eva, her voice rising in anger, retorted that the woman was Salomé. And she was free. Belmonti appeared to be enjoying himself. He again offered Eva coffee; again she refused. No, she didn’t want biscuits either. He shrugged, then explained at length why it was best for Mary to remain where she was. Her life was nice with him, he said. When he had purchased her from Mr. Miller, he had said that since she looked as white as anyone, she could easily run away. He might have freed her, but Miller had told him that it was the law that she would have to leave the country, so he couldn’t. Mary was happy with him. She bought the meat and vegetables, she cooked, and she served in the cabaret. Why should she want to be German?
TWO
THE CHILDREN OF SLAVES
One man—who to my inexperienced eyes seemed as white as myself … —got up from his seat as I passed, and asked me to buy him; “I am a good gardener, your honor,” he said, with an unmistakable brogue. “I am also a bit of a carpenter, and can look after the horses, and do any sort of odd job about the house. “
“But you are joking,” said I; “you are an Irishman?”
“My father was an Irishman,” he said.
At this moment the slave-dealer and owner of the depot came up.
“Is there not a mistake here?” I inquired. “This is a white man.”
“His mother was a nigger,” he replied. “We have sometimes much whiter men for sale than he is. Look at his hair and lips. There is no mistake about him.”
Charles Mackay, describing his visit to a slave depot in New Orleans, 18577
By the 1840s, slavery had existed in America for over 200 years and, through interbreeding, there were a significant number of slaves who weren’t pure African. Newspaper advertisements seeking the return of runaways described them in an array of colors ranging from deep black, through brown, tan, olive, bronze, and yellow, to pink and white. These were slaves born of liaisons between Europeans, American Indians, and Africans—but there was no equality about this; in almost every case, they were children born as a result of white men forcing themselves on subjected women.
The abolitionist writer L. Maria Child made white-looking slaves her particular field of study, and in 1860 she shocked her Northern readers by revealing a number of instances where persons with white skins were held as slaves. Over many years she had painstakingly collected items from the newspapers of the South, and published them under the censorious heading: Southern Proofs that Slavery is a Parental Relation. From the many examples she found, three are reproduced here:
Ranaway from me, a negro woman, named Fanny. She is as white as most white women; with straight light hair, and blue eyes, and can pass herself for a white woman. She is very intelligent; can read and write, and so forge passes for herself. She is very pious, prays a great deal, and was, as supposed, contented and happy. I will give $500 for her delivery to me.—JOHN BALCH, Tuscaloosa, Alabama, May 29, 1845.
$25 REWARD. Ranaway from the plantation of Madame Duplantier, a bright mulatto, named Ned, about thirty-five years old; speaks French and English. He may try to pass himself for a white man, as he is of a very clear color, and has sandy hair. From the New Orleans Picayune, Sept. 2, 1846.
A steamer, on her way from this place to Natchez, had, on her last trip, forty-seven slaves on board. Our informant states that among these was a beautiful young girl of thirteen, who, he learned with astonishment and pity, was a slave; as hopelessly in slavery as the blackest of her companions, all of whom were in charge of traders, on their way to New Orleans. The girl was nearly white, with straight hair, blooming complexion, attractive shape, and gentle bearing. She is the daughter of a merchant on the Missouri river, whose well-known intention was to emancipate her. But he died, and his executors, or heirs, thought it would not do any longer to bring her up together with the merchant’s other daughter, her white sister; therefore she has been sold away into the South.—The St. Louis Democrat, Mo., Feb. 1860.8
A cruel sort of unnatural selection was taking place—if, over many generations, masters tended to choose white-looking women for their sexual encounters, the offspring would be even whiter, with the result that people one-eighth African, or even one-sixteenth, one thirty-second, or one sixty-fourth, remained in bondage. In Georgia, Chief Justice Lumpkin of the Supreme Court, in the course of writing one of his opinions, mused about how easily one could be embarrassed by assuming that a white-skinned person was freeborn:
A mistress and her maid recently received Episcopal confirmation together, kneeling side by side at the same altar, boarding at the same hotel, where the latter was received and treated as a white woman by the inn-keeper and his female guests, when the latter turned out to be a mulatto, and was promptly hurled from her position of social equality. A man, at the beginning of this war, dropped into a village of one of our counties in Middle Georgia, and becoming rather famous for his pugilism, he was chosen an officer in one of the volunteer companies enlisting for the military service. His status was never questioned, until, accosted rather familiarly by his fellow-servant, who had known him long and intimately, an investigation was had, and Sambo was returned to his owner. Which of us has not narrowly escaped petting one of the pretty little mulattos belonging to our neighbors as one of the family?9
To most Southerners the presence of people with pale skins in slave gangs was accepted as a matter of course. In Louisiana the Creole slavocracy created an extensive vocabulary for the grades of miscegenation: a mulatto came from the paring of a white and an African, a quadroon from a white and a mulatto, a griffe from a mulatto and an African, a metif from a white and a quadroon, a marabon from a mulatto and a griffe, a sacatra from a griffe and an African, a meamelouc from a white and a metif, and a sang-melee from a white and a meamelouc.10
The universal rule of the South was that if the mother was a slave, so was her child. The law was contained in the Latin tag of partus sequitur ventrem. Literally, it meant: “that which is brought forth follows the womb.” If the mother was a slave, then the child was a slave. This wasn’t the ancient common law of England where the status of the child followed the father, and confined partus sequitur ventrem to contests about the ownership of animals. Maryland in the seventeenth century, assuming that slaves weren’t animals, briefly followed the common law, but quickly abandoned it. A moment’s consideration suggests why. If it wasn’t for partus sequitur ventrem, a slave woman who became pregnant to a white man could demand freedom for her child. Masters who raped their female slaves would soon find themselves surrounded by bastards claiming to be free. A slaveowner would be at risk of losing the harvest of his female slaves’ children to the white overseer he had hired, or to any passing white man who seduced one of his female slaves.
Partus sequitur ventrem was a rule calculated to perpetuate slavery through generations—bondage was transmitted like a birth defect, from mother to daughter, then to her daughter, and to her daughter, in perpetuity. Two cases show how it worked in practice.
In 1824 the Virginian Court of Appeals decided the case of Maria v Surbaugh. Such was the stature of the Virginian court that judges in most of the slave states subsequently followed its reasoning. The facts were simple enough. Mary’s owner wrote a will freeing her on her thirty-first birthday. Unfortunately for Mary, she had a long wait—she was only three when her owner died. By the time she was thirty-one, she had been sold several times and had given birth to four children. Under Virginian law Mary was free, but what of her children? Mary’s owner argued that the children were his property, because when they were born she was still a slave. The court agreed, saying: “The sole inquiry then, is, whether, at the time of the birth of the children the mother be in fact slave or free, without regard to what may be her future state…”11
In another case, a court in Kentucky considered the will of Job Johnson, which read: “I give unto Margaret Johnson, my beloved wife, the negro girl Lytha, to wait upon her
as long as she lives,… and then she shall be free.” Margaret Johnson lived for many years, and while Lytha waited upon her, she gave birth to seven children. Eventually, on Margaret’s death, Lytha became free, but her seven children did not. Said the court: “The children having been born when their mother was a slave, are themselves slaves, according to the maxim partus sequitur ventrem. “12
Partus sequitur ventrem also served to solve the tricky legal problem of ownership of a child when the mother belonged to one master and the father to another. The rule produced the fair result (at least between slaveowners) that, since the master of the mother had to bear the cost of feeding her during pregnancy, he should reap the benefits. Or as Thomas R.R. Cobb, in his influential An Inquiry into the Law of Negro Slavery in the United States of America, put it: “From principles of justice, the offspring, the increase of the womb, belongs to the master of the womb.”13
Another consequence of partus sequitur ventrem was to gut the role of fathers. It mattered not whether the father was a slave or free man, white or black—the offspring of slaves belonged to the owner of the mother. Children could be sold, hired, or sent out of the state without their fathers’ knowledge. A free man who married a slave woman had to live with the possibility that their children could be taken from them at any time. As a judge in Kentucky once dryly observed, “The father of a slave is unknown to our law.”14
Even if a free father was prepared to acknowledge his children, it made no difference. Lewis Young, a free man of color, owned several tenements, a substantial farm, and a number of slaves, including his own wife. When his two children came forward to claim their inheritance, they found that William F. Cleaveland, described in the judgment as “the friend of Lewis Young” who “frequently advised him in matters of business,” had seized all of their father’s property. The court ruled there was nothing Lewis’s children could do about it. Since their father had neglected to free their mother, they were slaves and were incapable of inheriting anything. “A slave can have no standing in a court of chancery in this State,” said Judge Ligon.
He cannot hold property, and consequently cannot litigate the title to it. … His person, his labor, and his earnings belong to his master, and are held or enjoyed by the slave only by permission of the master … [The children of Lewis Young] come here under a false title, claiming to be free persons, when in fact they are slaves, and by this suppression of their status, they seek to litigate in this court in fraud of its jurisdiction.15
In another case, this time in South Carolina, a white man, John Fable, was described as a foreigner who “settled in Charleston some years ago” and “had two [illegitimate] colored children by a female slave.” Unfortunately, the mother of his children was held in servitude by another, with the result that Fable’s children were not his. By his will, Fable directed that his executor should purchase one of them, if practical, out of the funds of the estate.* This his executor was willing to do, and the child’s owner was willing to sell. The problem was that Fable’s brother and sister, whom he hadn’t seen for years, arrived from Philadelphia, determined to upset the will. They succeeded. Freeing slaves was forbidden, said the court, and a father’s dying wish made no difference.16
The obverse of partus sequitur ventrem was that a free woman could not give birth to a slave child. In 1788, John Fitzgerald of Virginia wrote a deed liberating Mary Shaw, but “reserving to myself, my heirs, etc, nevertheless, an absolute right and claim to all such children or children, which the said Mary Shaw may hereafter bring, or may have born of her body.” Thirty-nine years later, Fitzgerald’s daughter, acting on the authority of this deed, seized one of Mary Shaw’s children. The Virginian Court of Appeals ruled that she couldn’t do this:
When a female slave is given to one, and her future increase to another, such disposition is valid, because it is permitted to a man to exercise control over the increase and issue of his property, within certain limits. But when she is made free, her condition is wholly changed. She becomes a new creature; receives a new existence; all property in her is utterly extinguished; her rights and conditions are just the same as if she had been born free. … A free mother cannot have children who are slaves. Such a birth would be monstrous both in the eye of reason and of law.17
The rule that a free woman couldn’t give birth to a slave applied even if the father was a slave. Her children were free, but the father’s role as a parent was stillborn—or, as was pithily expressed by a judge in 1822,“the free mother … shall have the exclusive custody and control of them, as though their father were dead.”18
One of the more pernicious consequences of partus sequitur ventrem was its ability to reach out, years after a woman was emancipated, to drag her offspring back into slavery. It even had the power to skip generations and enslave the grandchildren of freed slaves. This is what happened to the grandson of a slave named Polly.
In 1805, John Moring signed a deed freeing Polly—not immediately, but after she had served him for nine years. During those nine years, Polly had a daughter. Eventually the day of deliverance arrived and John Moring released Polly, who took her daughter with her in the walk to freedom. In 1830, Polly’s daughter had a son. Then, in 1838—that is, fourteen years after Polly was freed—John Moring returned to seize Polly’s grandson and immediately sell him into slavery. The child was eight years old. What possible grounds could Moring have had for thinking that he could take an eight-year-old boy from the home of his mother and grandmother, both living free in North Carolina?
Moring’s claim was based on the partus sequitur ventrem rule, but with a sting in its tail. His argument was that when Polly’s daughter was born, Polly was still his slave; thus, Polly’s daughter became his. Polly was later freed, but that made no difference to the status of Polly’s daughter. And because Polly’s daughter was his slave, her child was his slave as well.
Chief Justice Ruffin of the North Carolina Supreme Court heard the appeal. In the years prior to the Civil War, Ruffin was regarded as one of the true intellectuals of the Southern bench and his views carried weight far beyond his own state. He was charming, well read and religious. He was also logical and unflinchingly in support of slavery. As Ruffin approached the task of deciding the fate of Polly’s grandson, he was seemingly well aware of the difficulties of balancing compassion and jurisprudence:
There is a natural inclination in the bosom of every judge to favor the side of freedom, and [to have] a strong sympathy with … persons … who have been allowed to think themselves free and act for so long a time as if they were; and, if we were permitted to decide this controversy according to our feelings, we should with promptness and pleasure announce our judgment for the plaintiff [Polly’s grandson]. But the court is to be governed by a different rule, the impartial and unyielding rule of the law.
And what was the impartial and unyielding rule of the law that was forcing the hand of the chief justice? It was partus sequitur ventrem— which meant that:
… the plaintiff’s mother was born a slave, and so, consequently, was he. With this conviction it becomes our duty to affirm the judgment; consoling ourselves that the sentence is not ours but that of the law, whose ministers only we are.19
So an eight-year-old boy was sold to a slave trader, Moring became a little richer, and Chief Justice Ruffin concluded that he was powerless to intervene.
Although partus sequitur ventrem was followed in most slave states, increasingly judges and the legislators felt uncomfortable with its ability to pluck children from the families of free blacks and turn them into slaves.* Louisiana moved to lessen the rule’s more obnoxious effects by enacting in 1838 that a child “becomes free at the time fixed for her [the mother’s] enfranchisement.”20 A few other states followed, but only in a halfhearted way. Laws in Virginia (1849), Kentucky (1852), and North Carolina (1854) said, in effect, that children born during a mother’s wait for liberty were free—but if the owner wanted to clearly write that the children should remain as sla
ves, that direction would be upheld.
A few weeks after Belmonti’s refusal to release Mary Miller, Eva Schuber was awoken one morning by the sound of feet scraping on the front steps of her house. She lay in bed listening intently, then she heard a tentative knock. She rose and hurried along the corridor and slid open the latch. There stood Mary Miller clutching a canvas bag. The two women looked at each other.
Can you make me free? asked the slave.
Eva stared at her in surprise, then, in a wave of emotion, pulled her into a tight embrace. Oh yes, yes, Salomé. You shall be free.
As tears of joy tumbled down Eva Schuber’s face, she nuzzled into the sweetness of her goddaughter’s neck and vowed that she would never rest until she had fulfilled that promise.
THREE
THE YEAR WITHOUT SUMMER
What a wonderful country! What a future is still in store for you! How everything ferments and boils and germinates and sprouts and blossoms and ripens into fruit!
Friedrich Gerstäcker, describing America to those in Germany, 1850s21
They would rather live like slaves in America than citizens of Weinsberg; even if they were facing death they would not change their decision, because they can not live under the present conditions.
A report to the King of Württemberg, conveying the views of immigrants, 181722
For five seasons the winters came early, the summers seemed cooler, and the harvest was brought in later. Snow that should have melted by May lingered on the hilltops, ponds retained a sheen of ice until June, and frozen drifts remained wedged on the dark side of gullies, to be made deeper by the first snows of autumn. In July, ice storms shriveled the buds on trees. In August, when the oats, rye, and wheat should have been ripening, piercing winds rippled across the fields. And in September, farmers standing in their blackened gardens found themselves peppered with sleet.