Tag Archives: Virginia

Article Six

In 1783, the Reverend John Mason of New York complained that “from the Constitution of the United States, it is impossible to ascertain what God we worship, or whether we own a God at all.”

From the very beginning of the experiment called The United States of America, there were those who objected to our famous “separation of church and state.” These early detractors of religious freedom wanted certain churches, or Christianity in general, to have a preferred legal status, and objected to the Constitution’s religiously neutral stance.

One particular article in question was Article Six, which guarantees that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” This was a radical departure from the practice, for example, in Great Britain, where religious dissenters were barred from holding public office.

During the Virginia state conference to ratify the Constitution, an initiative was introduced to change the article’s wording to “no other religious test shall ever be required than a belief in the one only true God…” Although this change was rejected, religious conservatives continued to press for the inclusion of more doctrinaire, confessional language.

But although all of America’s founders believed in God, each in his own way, those who eventually carried the day were much more interested in fostering freedom than in saving souls.

When a group of Roman Catholics wrote to George Washington to inquire how religious minorities would be treated under his administration, his answer was similar to the one he gave to a Jewish congregation with the same question: regardless of religious orientation, all would be “equally entitled to the protection of civil government.”

(Kowalski 16-18)

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Howell v. Netherland

In 1770, a mixed-race man from Virginia, Samuel Howell, brought suit against his master to be freed from indentured servitude. His pro bono lawyer was future president Thomas Jefferson.

Howell’s enslavement was due to the law of partus sequitur ventrem. This ancient Roman law, adopted by Virginians, simply meant that whatever your mother was, you were. As punishment for having a black child out of wedlock, Howell’s white grandmother had been fined, and her child had been bound out for servitude until the age of thirty-one. That child, Howell’s mother, had borne Samuel Howell while she was still an indentured servant; under the law, it meant that her child would also be enslaved.

When Howell sued to gain his freedom, the 27-year-old Jefferson had been practicing law for only three years. By serving as Howell’s lawyer in this very weak case, Jefferson had to appear against his own beloved mentor and law teacher, George Whythe.

Jefferson, whose views on race are notoriously complicated, appears in this instance to have worked tirelessly in support of the natural rights of man, regardless of color. His brief in Howell v. Netherland contains his first known public comment on human rights.

Written five years before the Declaration of Independence, the brief includes the following statement:

“All men are born free and everyone comes into the world with a right to his own person and using it at his own will. This is what is called personal liberty, and is given him by the author of nature, because it is necessary for his own sustenance.”

Jefferson would use this idea to better effect in 1776; in this case, no one even got the chance to hear it. The judge immediately decided against Howell, cutting Jefferson off in midsentence. (Howell later solved his own problem by running away, aided with money given him by Jefferson.)

The legal brief also contains an intriguing statement about sex across the color line. Jefferson wrote that laws against such behavior were meant to “deter women from the confusion of species which the legislature seems to have considered an evil.” For a man as careful as Jefferson was about verbal precision, “seems to have considered” hints at some equivocation on his part about the inherent evils of race mixing. Although he would later profess other views, this is an important early statement about “confusion of species” from the man who would later become the father of Sally Hemings’ children.

(Gordon-Reed, 99-101)

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Martha Washington’s Black Sister

It was a not very well-kept Washington family secret that Martha Washington had a sister who was black.

Ann Dandridge was the daughter of Martha Washington’s father, John Dandridge, and an unknown slave of mixed African and Native American blood. After John Dandridge’s death in 1756, Ann, who was a young girl at the time, went to live with George and Martha at Mount Vernon and was kept by them as a slave.

Why didn’t Martha free her little sister from slavery? If she had felt any resentment towards her half-sister, Martha could easily have sold or otherwise gotten rid of her, yet she didn’t. She kept her around, lived with her, let her children play with her, but did not set her free.

To Martha, this may have seemed like benevolence. After all, there was no place in 1759 Virginia society for a free black Dandridge female. Ann’s choices in life would have been very limited. She could perhaps have obtained a position as a servant girl to a rich family, but no white man of any substance would have married her. If she had found a black husband, he would most likely have been a slave; her dark-skinned children would have been perpetually at risk of enslavement. Martha may have felt it best to keep Ann enslaved and under her own protection.

So Ann lived at Mount Vernon with her half-sister and brother-in-law. What she did there is unknown, but she probably spent much of her time knitting or sewing in the parlor along with the mistress of the estate and the female house slaves. To visitors she would have seemed just another mixed-race servant, perhaps the mistress’s favorite.

Martha’s “protective” ownership of Ann was not foolproof. Sometime around 1780, Ann Dandridge bore a son, William. It appears that Martha’s son, an unsavory character named Jacky Custis, exerted the rights of a master over a slave; he fathered a child with Ann, who was his aunt as well as his property. Ann’s son William was both grandson and nephew to Martha Washington.

After giving birth to the child of Jacky Custis, Ann married a slave named Costin. The couple had four daughters, all of them nieces of Martha Washington, and all of them born slaves-for-life of the Custis estate. Yet William, her first child and Martha’s grandson, was legally regarded as free, by request of the mistress herself.

Once George and Martha were both dead and Ann was in her forties, she came into the possession of Martha’s granddaughter, Eliza Custis Law.

Eliza and her husband, Thomas Law, were uniquely sensitive to the plight of mixed-race people, for Thomas, before marrying Eliza, had been an official of the East India Company, and had three half-Indian sons.

Upon inheriting ownership of Ann Dandridge in 1802, the Laws freed her almost immediately. Five years later, they emancipated all Ann’s children, her grandchildren, and William Costin’s wife.

(Wiencek 84-86, 282-290)

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Early Slavery in Virginia

Although slavery existed in Virginia from 1619, when the first Africans were brought to Jamestown, the outlines of the system took shape very slowly. Race-based slavery and racial prejudice seem to have evolved concurrently, in a chicken-and-egg relationship; neither was a factor at the beginning of Virginia’s slave system. In the earliest days, many “slaves” were white indentured servants, and as many as one-third of the black population was free.

The earliest African slaves had been baptized by the Spanish, and bore Christian names; the Jamestown colonists certainly put them to work, yet were reluctant to enslave these fellow Christians for life. Many of the early blacks therefore became “Christian servants” only for a limited period of time, or were set free for having accepted Christianity.

Eventually the Virginia Assembly began cracking down on this rampant application of Christian piety. In 1667 it ruled that the conferring of baptism had no bearing on whether someone was enslaved or free, and in 1682 it passed a law that any “negroes, moors, mulattoes, or Indians” imported to Virginia would automatically be considered slaves.

Many whites and blacks continued to resist these laws; masters persisted in freeing slaves. Moreover, whites and blacks persisted in marrying each other. After all, in seventeenth-century Virginia white indentured servants greatly outnumbered black slaves; these two disadvantaged groups naturally came into close contact with one another.

So in 1691 the Assembly passed a law that any master who freed a slave must pay to transport that freed slave out of the colony; in the same session it forbade white people to marry blacks, on pain of banishment.

One reason Virginia had so many white indentured servants was the British government’s policy of exporting surplus indigent, unemployed, and incarcerated Englishmen to America. This changed around 1700, when England began to require more cheap labor at home. As the supply of white laborers dwindled, Virginia had to make up the difference with slaves.

More and more Africans were imported to the colony, and laws regarding slavery became more and more strict. Low-caste white people became anxious to distinguish themselves socially from the rank of slaves, and began to disdain manual labor. By the mid-eighteenth century, Virginia society had changed to the extent that labor could no longer be hired; it needed to be purchased. By that time, it had become impossible to operate a plantation without the use of African slaves.

(Wiencek 41-45)

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