The Hemingses of Monticello: An American Family (11 page)

The fictions and presumptions about bastardy and marriage served definite purposes in a legal system seeking easy ways to determine who was eligible to inherit property, who had the right to a child’s labor, and who could be held liable for support of a child. Efficient as they may have been, these fictions yielded answers that were not always truthful and certainly not always moral. Although they were tailor-made for the needs of the law, and not so perfect a fit for historical or biological conclusions, there is little doubt that they have come to represent what people take to be actual reality. They hover in the consciousness even when outside indicators suggest they should not be relied upon. If by law Hemings’s children had no father, as even extralegal convention would have it, John Wayles could not be their father unless he was willing to say he was.

There is a twist. This way of thinking does not apply to the black men who fathered children with enslaved women to whom they could not have been legally married because the absurdity of the fiction as a statement of actual reality would then be too patently clear. Applying the precepts of
filius nullius
to enslaved families would require pretending that from the late 1600s to 1865 no American slave ever knew who his or her father was, an idea that is nonsense on stilts. Why would slaves have known who their fathers were when those men were black, but not know when the man was white? Indeed, if the black man who fathered Elizabeth Hemings’s older children had been named, it is a safe bet that no question about his paternity would ever be raised. But when demonstrably mixed-race people speak of their white father or forefather, at most the white man is portrayed as the “alleged” father or the “said to be father,” as if there had been some white “Mr. Nobody” (“Mr.
Nullius
”?) out there impregnating all the enslaved women in America. Presenting the life of mixed-race individuals in slavery poses a great challenge precisely because there is such hesitancy about accepting their competence when they explain how they came to be mixed race. The reluctance to accept the prevalence of interracial sex, other than as a generalization, avoids the perceived “cost” or “hazard” of naming a specific white man.

What accounts for this hesitancy? It cannot be the difference in the assessment of the ability to know black fathers versus white ones. That makes no sense. Race is certainly a factor. In a world where even today saying that a white man has black children is the ultimate put-down in some quarters, it is not surprising that some might pause over the claim that a white man in history had done so.
⁸
One is saying something negative about the man, and there is always a higher standard for saying something “bad” about a person than for saying something “good.” Whole black family lines have been erased on that principle. Law, a powerful force, helps along the tendency to protect white slave owners against claims of paternity because it shapes our understanding of reality and what we are willing to accept as reality. People in history who, like John Wayles, were under the law’s protection during life tend to remain under the law’s protection—statutes, rules, presumptions, privileges, legal fictions, and all. People outside of the law’s protection, like Elizabeth Hemings, generally remain outside, particularly when aspects of their lives do not comport with the law’s strictures and fictions.

What we have in considerations of white male slave owner’s paternity of slave children is a version of Anglo-American law without its usual complement of Anglo-American equity. The doctrines of equity exist alongside law to help mitigate the harsh and unjust results that come from too strict adherence to legal rules. For example, when no formal documents exist to prove that individuals entered into a contract, but the circumstances strongly indicate that an agreement was made and that one party will be severely damaged if the contract is not recognized, equity allows stepping outside formalities to consider other evidence and, when possible, to do justice.
⁹

Law, not equity, lay at the heart of the American slave system. Under this regime of law with no equity, John Wayles’s power as a slave owner remains as potent as the power he held as a legal husband and father. Slave owners like Wayles, who could force others to see the world through their eyes, virtually guaranteed that their lives and interests would be seen as of paramount importance in the writing of history. And because Wayles was a legally married man—three times—no one would ever think to suggest that the children born of his legal marriages could have been the children of someone else, though that was certainly possible. Even to open that inquiry, other than in the most extreme circumstances, would provoke outrage. Historians might pause at suggesting that a white man might have fathered a child of his own race outside of marriage, a so-called bastard, whom he did not acknowledge. That, too, would be considered a “bad” thing, although one wonders what stake a historian could have in protecting a subject’s legal family against what could be legitimate, that is to say, historically and biologically accurate claims established through means other than a marriage license. One can understand a legal family’s interest: they want to keep “Daddy” or “Grand Daddy” and his legacy all to themselves. Deeply felt as that desire may be, it simply cannot be taken seriously as a matter of history.

What do we make of this in the context of Hemings’s life under eighteenth-century Virginia’s system of slavery? We know she lived in a slave society with rules of law specifically fashioned to make possible, and then to obscure whenever necessary, the nature of one group’s oppression of another. In ways that should be clear to modern observers, even if it was not to the people of the time, the law in that setting functioned essentially as a racket designed for the protection of whites. How does one begin to get at what was “real” or “true” in such a context? Playing along with the racket is an all too easy, wholly unworthy enterprise because it ratifies the view that “extralegal” blacks, like Elizabeth Hemings, deserve no protection and that “legal” whites, like John Wayles, are to be protected at all costs—even at the cost of all reason. This simply reenacts the world of master and slave in the pages of history. It is only through piercing the veil of southern society’s laws, including its fictions about family, that we can take the first step toward getting at the reality of black and white lives under slavery.

The law’s protection of John Wayles in his absolute ownership of Elizabeth Hemings rendered his connection to the children she had with him invisible for all official purposes. Nevertheless, law, despite its power, is not the only word on the subject. The children of white men like Wayles who grew up in cohesive family units, often within the household of their fathers, knew who their fathers were in the same way that most people throughout the ages have known, even without the benefit of Anglo-American law. In addition, although white families could hide behind the protections that law and legal fictions afforded, there was still such a thing as the social knowledge of parenthood.

From time immemorial, people have “known” who others’ parents were through a variety of extralegal ways, including reliance on a mother’s word, observations of physical resemblances that indicate a family connection, interpreting a man’s actions toward a set of children and their mother, overall reputation in the community for parenthood—in other words, through indicators that people pulled together to help them make sense of who was who in their world. The day-to-day experiences of life in a community, particularly small ones, give its members information about the nature of relationships among their neighbors. At times even the law (when seeking equity) has looked to these sources in the absence of a legal relationship between a man and a child to make judgments about the likelihood of a family connection.
¹⁰

As Joshua Rothman, a scholar of the operation of social life in Virginia during the eighteenth century, has noted, “interracial sex was ubiquitous in urban, town, and plantation communities throughout the state. Moreover…knowledge of precisely who participated in it was widely shared.”
¹¹
While some may quarrel with the term “ubiquitous,” there is no doubt that sex across the color line was a common part of life in Virginia. What is more, people were inclined to gossip about it. Why is easy to understand. People have always been interested in the lives of others, particularly in matters involving sex. And though some Virginians sought to replicate the lifestyles of the English gentry, they faced special circumstances in one area. Any illegitimate children fathered by an Englishman with a servant girl or other lower-status woman in England would be white. Unless the child looked like the man, his or her existence signaled nothing beyond that fact that they were alive. The presence of a mixed-race child signaled something more; the child all but announced that some white person and some black person had broken the taboo against interracial sex.

Rothman goes on to note, “Virginians, like white southerners elsewhere, tolerated and accommodated a wide array of sexual activity across the color line, ranging from viable and supportive interracial families that bound extended networks of free and enslaved blacks and whites across space and time to family-shattering rapes that exposed the routine abuse, violence, and ruthless power of racial slavery….”
¹²

That is not the story most often told about interracial sex in the South. If views about slavery have been frozen in a particular image of immediate pre–Civil War southern society, beliefs about interracial sex during slavery have been heavily influenced by the sexual panic and hysteria of white southerners in the post–Civil War era and well into the twentieth century. That sex across the color line inspired legal and social opprobrium very early on in Virginia does not mean that there was one, continuing response to it among the citizenry over the course of slavery’s existence.

It is often said that though the South lost the Civil War, it won the peace. As many scholars have noted, David Blight with particular force, as a gesture to promote national reconciliation southerners were given almost unfettered power to define their prewar identities and, most devastatingly of all for black people, their prewar identities as well. White southerners declared war on the black people in their midst—ushering in the era of Jim Crow and the terrorism of lynching, as well as other measures that grew out of a determination to reassert control through whatever means available over the people they had once held as items of property. Rewriting the story of slavery in the South was a necessary part of the process.
¹³

Southern racial laws and legal opinions, like those in Virginia which had determined whiteness by a formula of fractions—persons who were one-eighth black were legally white—and such evidentiary rules as “white by reputation in the community” fell by the wayside. The “one-drop rule” replaced them. The laws against interracial marriages became more uniform, while interracial sex itself was not outlawed. The historian Charles Robinson cites two reasons for the attention to interracial marriages and cohabitation as opposed to interracial sex. “First, Southern white patriarchs had long enjoyed interracial liaisons. By the time of the Redemption period informal interracial sex constituted a white male privilege…. Second, Southern whites focused their attention on formal interracial relationships because of their growing concerns about the effects of black freedom on white supremacy.” Sex itself was no threat. Legal marriages, and perhaps common law marriages, might give black partners property and some degree of power.
¹⁴
John Wayles’s great-grandson Thomas Jefferson Randolph shed light on the differing sexual mores during slavery, insisting in his unpublished memoirs, written after the Civil War, that any married white man who took up with a black woman “lost caste” with his cohort. He made this claim despite the fact that married men in his own family (he purported to identify them) had children with black women and remained respected members of the community.
¹⁵

Randolph’s postwar statement dovetails with the prewar assessment of his grandfather Thomas Jefferson’s close friend John Hartwell Cocke, who spoke frankly of the ways and preferences of white men in the Old South. Commenting upon Jefferson’s relationship with Sally Hemings in a private diary, Cocke said that Jefferson’s situation was common in Virginia: “bachelor and widowed slave owners” often took a slave woman as a “substitute for a wife.”
¹⁶
There was no suggestion that
unmarried
men lost caste for doing this. His was simply a resigned statement about the way men lived in Virginia’s slave society, as they have in every one that has ever existed. John Wayles had done exactly what Cocke described.

This is not to minimize white Virginians’ announced hostility toward sex across the color line. It was there. The legal response to it shows that very clearly. But it would be unwise to read late post–Civil War and twentieth-century responses to interracial sex back into the days of John Wayles and Elizabeth Hemings. Theirs was a different time. The forces driving the post-slavery and pre–civil rights response to black people in the South simply did not exist in their age. And there are important reasons why. To expose Wayles, or a man like him, would have required blasting through deeply held beliefs and customs about the sanctity of the right to private property. Who could come to the Forest and inquire about the paternity of the obviously mixed-race children living there? On what basis would they complain? As long as Wayles did not try to elevate Elizabeth Hemings and their children to the status of white people—by going through a marriage ceremony, drawing attention to the children by publicly claiming them as his heirs, or making other public attempts to insinuate them into white society or bestow attributes of white privilege onto them—he would be left alone to do with his property as he pleased. With blacks firmly under the control of slavery, there was no need to interfere with the way planters conducted their lives with the slaves on the plantation. As the historian Philip Schwarz has shown, except in the most extreme circumstances, such as murder or a slave’s intrusion upon the interests of a white person other than the master, slave owners in Virginia were the law in their realm.
¹⁷