Intermarriage and the law, colonial style

Native intermarriage in colonial times

Reader Brad Pierce asks:

William Pierce Jr. married a woman who was 3/4 Indian. I have read or heard that this was not legal at the time with a possible implication that perhaps the Pierces were part Indian. … Marriage was about 1750.

John Rolfe and Pocahontas

Ah, yes. The good old antimiscegenation laws — laws that barred intermarrying or even relations between races.1 On the books in Virginia as early as 16622 and lasting in the Old Dominion in one form or another right up until they were struck down by the United States Supreme Court in 1967.3

The first statute passed in any of the colonies barring whites from having relations with those of other races was the 1662 Virginia statute:

WHEREAS some doubts have arrisen whether children got by any Englishman upon a negro woman should be slave or ffree, Be it therefore enacted and declared by this present grand assembly, that all children borne in this country shalbe held bond or free only according to the condition of the mother, And that if any christian shall committ ffornication with a negro man or woman, hee or shee soe offending shall pay double the ffines imposed by the former act.4

In 1664, Maryland became the first colony that expressly forbade interracial marriages.5 Virginia followed suit in 1691 and applied the ban to Indians:

And for prevention of that abominable mixture and spurious issue which hereafter may encrease in this dominion as well by negroes, mulattoes, and Indians intermarrying with English, or other white women, as by their unlawfull 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 other white man or woman being free shall intermarry with a negroe, mulatto, or Indian man or woman bond or free shall within three months after such marriage be banished and removed from this dominion forever, …6

Massachusetts joined the southern colonies by outlawing interracial marriages in 1705 but — like Maryland — its law spoke only to marriages between whites and blacks or mulattos.7

In 1705, however, the Virginia law was changed to leave out reference to Indians:

And for a further prevention of that abominable mixture and spurious issue, which hereafter may increase in this her majesty’s colony and dominion, as well by English, and other white men and women intermarrying with negros or mulattos, as by their unlawful coition with them, Be it enacted, by the authority aforesaid, and it is hereby enacted, That whatsoever English, or other white man or woman, being free, shall intermarry with a negro or mulatto man or woman, bond or free, shall, by judgment of the county court, be committed to prison, and there remain, during the space of six months, without bail or mainprize; and shall forfeit and pay ten pounds current money of Virginia, to the use of the parish, as aforesaid.8

North Carolina followed suit in 1715, but kept the provision as to Indians, providing that “no White man or woman shall intermarry with any Negro, Mulatto or Indyan Man or Woman under the penalty of Fifty Pounds for each White man or woman.”9 In 1741, the North Carolina act was amended to more closely track the earlier Virginia statute:

And for Prevention of that abominable Mixture and spurious issue, which hereafter may increase in this Government, by white Men and women intermarrying with Indians, Negroes, Mustees, or Mulattoes, Be it Enacted, by the Authority aforesaid, That if any white Man or Woman, being free, shall intermarry with an Indian, Negro, Mustee, or Mulatto Man or Woman, or any Person of Mixed Blood, to the Third Generation, bond or free, he shall, by Judgment of the County Court, forfeit and pay the Sum of Fifty Pounds, Proclamation Money, to the Use of the Parish.10

Other states joined in — Maine, Rhode Island and Washington specifically barring marriages between whites and Indians as well.11

But Virginia’s law, re-enacted in 1753, still only addressed black-white marriages:

And for a further prevention of that abominable mixture, and spurious issue, which may hereafter increase in this his majesty’s colony and dominion, as well by English, and other whit men and women, intermarrying with negroes or mulattoes, as by their unlawful coition with them, Be it enacted, by the authority aforesaid, and it is hereby enacted by the authority of the same, That whatsoever English, or other white man or woman, being free, shall intermarry with a negroe, or mulattoe man or woman, bond or free, shall, by judgment of the county court, be committed to prison, and there remain during the space of six months, without bail or mainprize, and shall forfeit and pay ten pounds current money of Virginia, to the use of the parish as aforesaid.12

Then and into the early years of the 19th century, many Virginians and many American leaders believed that it was good policy to encourage marriages with the native population, the aim being to assimilate the native population into white culture. Patrick Henry even pushed for legislation to encourage such marriages with financial rewards and free education for mixed-bloodd children.13

In fact, it was not until 1924 that Virginia again expressly barred marriages between whites and Indians and even then it declared that “persons who have one-sixteenth or less of the blood of the American Indian and have no other non-Caucasic blood shall be deemed to be white persons.” This so-called Pocahontas exception was expressly designed to accommodate descendants of the John Rolfe-Pocahontas marriage.14

In your case, Brad, everything I can find suggests that the marriage of William Pierce Jr. to Mary Stanton occurred in Orange County or Culpeper County, Virginia, around 1755. That’s certainly consistent with the deed of gift from Mary’s parents, Thomas Stanton Jr. and Lettice (Bryant) Stanton, of 117 acres to William “Peirce” for yearly rent of one peppercorn in 1757.15 Such a transaction could easily have been in recognition of their daughter’s marriage to William or even the birth of a first child.

And that takes it safely into the time period when it was legal for those considered white and those considered Indian to marry in Virginia. So no, you can’t draw any conclusions from the fact of that marriage as to whether the Pierce family also had Indian blood. You’ll need to look elsewhere for that evidence — with a DNA test of the Y-DNA of a direct male descendant as your best bet.


SOURCES

  1. Miscegenation being defined as “Mixture of races; marriage between persons of different races; as between a white person and a negro.” Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 778, “Miscegenation.”
  2. Act XII, Laws of December 1662, in in William Waller Hening, compiler, Hening’s Statutes at Law, Being a Collection of all the Laws of Virginia from the first session of the Legislature, in the Year 1619, 14 vols. (1819-1823; reprint ed., Charlottesville: Jamestown Foundation, 1969), 2: 170.
  3. Loving v. Virginia, 388 U.S. 1 (1967).
  4. Act XII, Laws of December 1662, in Hening, comp., Hening’s Statutes at Law, 2: 170 (emphasis added).
  5. “An Act Concerning Negroes & other Slaves,” Archives of Maryland, Proceedings and Acts of the General Assembly January 1637/8-September 1664, 1: 533-534; online version, Maryland State Archives (http://www.msa.md.gov/ : accessed 31 May 2012).
  6. “An act for suppressing outlying Slaves,” Laws of 1691, act XVI, in Hening, comp., Hening’s Statutes at Law,, 3: 86-87 (emphasis added).
  7. Massachusetts Acts and Resolves of 1705, chapter 10, § 4; digital images, State Library of Massachusetts (http://archives.lib.state.ma.us : accessed 31 May 2012).
  8. “An act concerning Servants and Slaves,” Laws of 1705, act XLIX, in Hening, comp., Hening’s Statutes at Law,, 3: 453-454).
  9. “An Act Concerning Servants & Slaves,” North Carolina Laws of 1715, chapter XLVI, § XVI, in Walter Clark, compiler, State Records of North Carolina, Vol. 23 (Goldsboro, N.C. : Book & Job, 1905), 65; online version, “Colonial and State Records of North Carolina,” Documenting the American South (http://docsouth.unc.edu/csr/ : accessed 31 May 2012), University of North Carolina, Chapel Hill.
  10. “An Act Concerning Marriages,” North Carolina Laws of 1741, chapter I, § XIII, in ibid. at 160.
  11. See generally Wikipedia (http://www.wikipedia.com), “Anti-miscegenation laws in the United States,” rev. 29 May 2012. And see Carlos A. Ball, “The Blurring of the Lines: Children and Bans on Interracial Unions and Same-Sex Marriages,” 76 Fordham L. Rev. 2733 (2008).
  12. “An Act for the better government of servants and slaves,” Laws of 1753, chap. VII, § XIV, in Hening, comp., Hening’s Statutes at Law,, 6: 361-362).
  13. See generally Kevin N. Maillard, “The Pocahontas Exception: American Indians and Exceptionalism in Virginia’s Racial Integrity Act of 1924,” Berkeley Electronic Press Legal Series (http://law.bepress.com : accessed 31 May 2012).
  14. Va. Code Ann. § 20-54, cited in Loving v. Virginia, 388 U.S. at 5, n.4.
  15. Culpeper County, Virginia, Deed Book C: 532-33, Stanton to Peirce, 19 April 1757; Library of Virginia Culpeper County microfilm reel 2, Richmond.
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