Slavery Depended on Matrilineal Descent, Not on the Color Line
On the other hand, Jefferson’s answer was perfectly accurate. Although slavery was linked to endogamous group membership in the popular mind, there was no legal connection between the two until 1802, as discussed below. In the century since the 1691 invention of the color line, many Americans had been members of the White endogamous group but had been slaves nonetheless, like Eston Hemings before his 1826 manumission. Conversely, many Americans had been members of the Black endogamous group but were free nonetheless, like Sally Hemings after Jefferson’s death. As Jefferson wrote, whether you were legally a slave had nothing to do with which side of the color line you were on. From the 1662 partus sequitur ventrem law until slavery’s end over two centuries later, the only factor that determined whether someone was legally born a slave was whether the mother was legally a slave at the time. No other factor entered the equation: not skin tone, not endogamous group membership, not ancestry, not region nor state, not anything but matrilineal descent ad infinitum and nothing more.14
|White Slaves, Lousiana|
The question was not trivial. Whether someone was slave or free had to be decided many times in the years between 1691 and 1800. Virginia alone imported about 45,000 African slaves between 1700 and 1750.15 This comes to about ten percent of all the slaves ever imported into British North America.16 Consequently, the number of Americans of African heritage exploded during this period. Members of the Black endogamous group went from 7 percent of Virginia’s population to 44 percent.17 Some of these individuals were recently imported slaves, and some were the children of slave mothers—also slaves under the law. But others had European mothers, and still others descended from African planters, shopkeepers, or indentured servants of the seventeenth century, from before the color line was invented. How did the courts decide who was legally a slave and who was free? They did it precisely as Jefferson had explained.
Eleven appealed court cases were held in British North America between 1770 and 1800 to determine whether someone was legally a slave. All followed partus sequitur ventrem. In every case, plaintiff and defendant alike tried to prove the individual’s status by tracing his or her matrilineal ancestry. In six of the eleven cases, the party arguing for freedom traced matrilineal ancestry to free British women.18 In three cases, ancestry was traced to Amerind women.19 The remaining two cases traced matrilineal ancestry to Spain and to China.20 In every case, the court’s ruling was based on whether the matrilineal ancestor had been legally free or slave. In no case was appearance or African ancestral blood fraction an issue. Indeed, in Higgins v. Allen, 1796 Maryland, a man’s ancestry was traced from his great-grandmother, a Scotswoman, who had married an African slave, and whose mulatto daughter also married an African slave, and whose granddaughter also married an African slave, giving birth to the individual in question—a man of overwhelmingly African ancestry and of utterly African appearance. And yet, despite his appearance, the court set him free due to his matrilineal descent from a free woman, however distant.21 The ancient principle of partus sequitur ventrem was thereafter applied without exception by every U.S. court until slavery was ended by the Civil War.
Nevertheless, although the ancient principle of partus sequitur ventrem was universally applied, it was sometimes inadequate in practice due to lack of evidence. One could be a slave by birth, without personally having been purchased or captured. Hence, a legitimate slaveowner might be unable to present a bill of sale. On the other side, government-recorded birth certificates would not be invented for another half-century, and so a person might be unable to document having been born free. According to Kenneth Stampp, freedom papers or travel passes were in use (and being forged by literate slaves) at least as early as 1833.22 But a runaway might discard a pass or forge freedom papers, and an avaricious slave-trader might claim that the freedom papers in a person’s possession were forged. Credible documents were scarce in the messy real world of the early republic. And so the question was, how could a court decide between someone claiming, without documents, to be held illegally and someone else claiming, also without documents, to be the other’s rightful owner? Which party had the burden of proof?
Looking backwards in time, American courts’ problem—how to resolve property in a person—had already been faced and solved previously by every slave-owning nation ruled by laws. According to British common law, in civil suits the burden of proof falls upon the plaintiff. But lawsuits over slave status were as likely to be brought by the slave as by the owner. A sense of fairness would seem to demand a more objective rule. In fact, colonial courts regarding slavery in British North America followed Spanish, not British precedent. Since 1265, Spanish law had upheld the doctrine that the burden of proof always lay upon the party arguing that someone was a slave. Spanish King Alfonso X had decreed that, since slavery was odious and contrary to Church teachings, it had to be supported by positive evidence. If an alleged slaveowner was unable to provide positive evidence, the person was to be freed. The alleged slave did not need to provide any evidence, except to contest evidence by the alleged owner. Spanish courts throughout the Americas followed this principle in theory.23 It was also followed throughout British North America until 1802.