Sex and Punishment: Four Thousand Years of Judging Desire (35 page)

At about the same time, boatloads of African slaves were being shipped to French territories in the Americas, with predictable results in terms of sexual relations with the colonists. In 1724, the French government instituted the colonial
Code Noir
, a landmark piece of official racism that tried to govern, among other things, sex between whites and slaves as well as other people of color. While French law was ambivalent about marriage between whites and natives, no such ambiguity existed in the
Code Noir
’s opposition to black-white and white-mulatto marriages—most likely because there was money to be made from intermixing with Native Americans, while intermarriage with people of African descent (whether enslaved or free) was seen as a drag on the slave-based economy. In colonial Louisiana, blackness signified enslavement while whiteness meant freedom. To tolerate marriages that muddied this equation was, from the French perspective, bad policy. Louis XIV was correct (if heartless) when he observed, in 1670: “Nothing . . . contributes more to the development of the colonies . . . than the laborious toil of the Negroes.” The
Code Noir
sought to keep these generators of wealth (and their offspring) enslaved and in their place.

THE RULES ON intermarriage were less strict in colonial Mexico, where the Catholic Church had authority over matrimonial questions. Church officials heard many native women’s complaints about their Spanish lovers’ broken marriage pledges—promises often made in bed. The women asked the priests to force the men to marry them, but the cases were sometimes resolved with simple cash payments. As sexually unrestrained women had lower “credit” than those considered “honorable,” and thus commanded less money in marriage cases, the men usually tried to portray the claimants as promiscuous. Women’s chances in court were also limited by their background and ethnicity. A wellborn Spanish woman was awarded one thousand pesos when she complained that her lover had refused to marry her, while a mulatto woman was awarded one-tenth of that sum in exchange for the virginity she had given to a white man.

In 1732, an unusual case arose in Mexico in which a free mulatto man sued a white woman to force her to marry him. The man claimed that they had already been living together for six years, despite her family’s dogged opposition to the union. He further testified that one night the woman’s male relatives had stormed into the lovers’ room and tried to castrate him. The woman agreed that they had lived together, but claimed that she had never had sexual relations with him because he had always been impotent. The court, no doubt swayed by the man’s race and the woman’s superior social position, ruled that her marriage promise was null and void. The fact that her family had attacked him was overlooked: Marriage between a mulatto man and a white woman was worse than an assault or a broken promise.

The colonial Venezuelan church’s approach toward interracial relationships was unusually harsh, especially after Bishop Mariano Martí arrived in 1770 to take control of its operations. To acquaint himself with the diocese, he took a thirteen-year tour of the region, during which he invited townspeople to tell him about “sinful” activities among their neighbors. The response was overwhelming. By the end of Martí’s sojourn, more than fifteen hundred people had been accused of misconduct. Many of the cases involved white men taking sexual advantage of slave and native women, with whom Martí occasionally sympathized. In one case, he ordered the rakish sons of a wealthy family, who had made no secret of their preying on local women, to find wives immediately and settle down. By making such an order, Martí tried to protect powerless females against the predations of the young men.

When sexual relations between slaves and nonslaves got out of hand, Bishop Martí usually made sure that the slave got the worst of it. For example, Sasimira, the domestic slave of Don Francisco Hidalgo, had already borne her master two children when Martí arrived. The bishop criticized Hidalgo for his indiscretions, but ordered Sasimira sold to another landowner. The children, who were the property of Hidalgo, stayed with their master/father. Similarly, when Martí learned that the slave Lucía had given her owner’s relative three children and become pregnant with a fourth, he had her auctioned off in another town. Yet another slave confessed to Martí that she had been having sex with her master, but emphasized that he had broken his promise to emancipate her. This was not unusual. Many slave women submitted to sex with their owners on the assurance that they would be freed someday in return. The poor girl most likely believed that Martí would sympathize with her and free her. He ordered her sold just as he had done with the others.
⁷

RACIAL BLENDING IN THE UNITED STATES

In the territories that would later congeal into the United States, the mingling of races was as pervasive as everywhere else. Wherever colonists touched down, children of mixed blood soon followed. Yet there has always been something unique about American interracial relations, something more charged and more contradictory than elsewhere in the New World. The American colonies deeply embraced slavery, so much so that the “peculiar institution” (to use a popular euphemism of the early nineteenth century) remained in place long after it had been abandoned elsewhere. Moreover, while slavery was technically abolished at the close of the American Civil War, in some ways the unequal treatment of nonwhites worsened afterward. It was not until 1967—more than a century after the war—that the U.S. Supreme Court finally struck down state laws barring interracial sex and marriage. Yet despite centuries of such restrictions, the United States had already hosted generations of people whose appearance testified to sex across racial lines. Were they black or white? Whose rights, or bondage, should they inherit? None of these questions were easily answered, especially when a person’s race brought with it freedom or enslavement.

The word “miscegenation” came into common use after the 1863 publication, in New York, of a pamphlet titled
Miscegenation: The Theory of the Blending of the Races, Applied to the American White Man and Negro.
The word for interracial sexual congress had heretofore been “amalgamation,” but the meaning was the same—as was the widespread contempt for mixed-race children. While abusing women of color was a white man’s virtual birthright, the products of black-white unions were generally to be treated as black, even if African American ancestry was many generations removed. In the early nineteenth century, American census workers went house to house looking for people whose characteristics showed signs of past racial mixing. If they found even “one drop” of black blood, the person was stripped of most basic human rights. Two centuries, one civil war, and dozens of civil rights laws later, the United States’ obsession with racial distinctions has not disappeared. The 2000 and 2010 census forms allowed people to check more than one racial box, but anyone who did so was automatically relegated to a “minority” category.

The aforementioned French
Code Noir
was instituted to manage the influx of African slaves into Louisiana, and forbade sexual relations between blacks and whites. (It also barred sex between free blacks and slaves.) Under Article 6 of the
Code
, white men living in “concubinage” with their slaves risked having their slave lovers, and any children they had had together, taken away. Additionally, any slaves who had borne children to whites lost the chance of ever being freed. The
Code
was much more restrictive than an earlier version of the law that had been put into place in Haiti by decree of Louis XIV. Under that rule, masters were permitted to marry slave mistresses who gave them children, provided that the marriage was a Catholic one. Once the marriage was performed, the slave and the children became free. That earlier rule produced numerous master-slave marriages, and with them a large population of free blacks with no interest in working on the plantations. It was not long before complaints arose that the policy was “ruining the plantations” and “causing considerable harm to the colony that depends principally on the labor of Negroes.” Louisiana’s
Code Noir
sought to change that policy. Whether it achieved its intended effects, we cannot know for sure. Certainly the number of slaves who gained freedom through intermarriage diminished but, equally, the fact is that whites continued to take advantage of slaves and to generate mixed-race children.
⁸

The English colonies focused on sexual relations between enslaved men and free white females, a much more volatile situation as it tapped into white fears of black men, whom Englishmen believed were irresistible to their wives and daughters. The “beastly” sexuality of black males was the cause of wonderment and fear. Black men were thought to have oversized genitals, abundant sexual appetites, and the capacity to spark the lust of white females like no one else. Englishmen worried that their women were prone to being “forgettful of their free Condition” by jumping into bed with black slaves. Maryland tried to prevent its daughters from entering into “shameful matches” with slaves as early as 1664, when it decreed that any white woman who married a slave would become a slave herself, serving her husband’s master until he died. The offspring of such unions also became “slaves as their fathers were.”

The goal of the Maryland law was to halt intermarriage, but it had the opposite effect. Slaves were valuable property, and their owners immediately saw the profit potential in breeding them with white women without sacrificing their daughters. In addition to slaves, many farms had white servants who had worked for a term of years. After the law was passed, planters encouraged and sometimes forced their white female servants and black slaves to marry and produce children, thus generating new generations of slave laborers. The first English governor of Maryland, Lord Baltimore, learned of this tactic upon discovering that his former white servant Eleanor Butler (“Irish Nell”) had been married off to an enslaved butler known as Negro Charles—and had therefore become a slave along with their children. To save Nell, Lord Baltimore convinced the legislature to repeal the law in 1681. From that point forward, it was illegal for masters to force their servants to marry slaves, and the children of any such unions were to be considered free.

Irish Nell’s own saga would take centuries to resolve, however, as the status of her descendants was continually in doubt. About a century after Lord Baltimore’s intervention, a Maryland court ruled that William and Mary Butler, who descended from Nell and Charles, were not entitled to their freedom. Rather, the court said, Nell became a slave when she married Charles and had had her children while the original antimiscegenation law was in force—thus her descendants should be enslaved as well. The same questions came up again in 1787, when William and Mary’s daughter sued for her freedom, but she was declared white enough to be free. Later slave masters complained of runaway mulatto slaves who claimed they were descendants of Irish Nell.

Maryland’s efforts to halt interracial mingling did not stop with marriage. Soon the state banned all sex between whites and blacks, and ruled that the offspring of interracial sex partners would be slaves. In essence, free white women could give birth to enslaved children if their partners were not purely white, while black women could only give birth to black children, even if the fathers were “English” through and through. In passing such harsh laws, Maryland joined with neighboring Virginia, which also took a hard line. As early as 1630, Virginia’s governor ordered Hugh Davis to be whipped for “abusing himself to the dishonor of God and shame of a Christian by defiling his body in lying with a Negro.” (The fact that the charge did not refer to a “Negress” could mean that Davis had been caught “lying with” a male, which, if true, would have been another factor in his harsh punishment.) Thirty-two years later, Virginia’s assembly imposed fines on interracial fornication, setting the penalties at twice as high as fines for illegal sex among whites. However, the risk of a fine rarely deters anyone’s sexual passions, and it apparently had little effect on interracial sex in Virginia. The legislature marched on with ever more severe laws, including a 1691 statute that became a milestone in racist lawmaking:

And for the prevention of that abominable mixture and spurious issue which hereafter may increase in this dominion, as well by negroes, mulattoes, and Indians intermarrying with English, or by other white women, as by their unlawful accompanying with one another, Be it enacted by the authoritie aforesaid, and it is hereby enacted, That for the time to come, whatsoever English or white man or woman being free shall intermarry with a negro, mulatto, or Indian man or woman bond or free shall within three months after such marriage be banished and removed from this dominion forever, and that the justices of each respective countie within this dominion make it their particular care, that this act be put in effectuall execution.

For nearly three centuries, the Virginia courts indeed took “particular care” in banishing interracial couples from the colony. Such punishments were enforced in one form or another until 1967, when the U.S. Supreme Court finally ruled that all antimiscegenation laws were unconstitutional. Virginia also punished clergymen who performed interracial marriages by hitting them where it hurt most: Any preacher who officiated over such forbidden unions was fined up to ten thousand pounds of tobacco—half of which would go to reward the person who had reported the crime.

For all its interest in keeping the “spurious issue” of all interracial sex out of Virginia, the colony’s efforts were concentrated on separating white women from black men. Virginia allowed white men to bed down with black women, and black women were permitted to have white men’s babies. The real fear was of white women coming under the spell of dark-skinned sex magicians against whom the masters of the colony felt they had no chance of competing. Punishment in Virginia for consorting across the color barrier became harsher as time passed, and was always imposed overwhelmingly against white women, their black partners, and their children.
⁹