Colonial Law: When Did "White" Gain Legal Significance?

The invention of white people as a legal category in colonial law occurred in 1681, when colonial lawmakers created a classification of people who had never considered themselves a group before. This was a strategy used by colonial powers to maintain control and divide people within the colonies. The term white first appeared in a law controlling marriage, prohibiting marriages between a white person and a person of African descent. These laws were enacted by elite men to control the sexuality of white women and maintain their power and privilege within the colonies. The invention of whiteness was a crucial development in the history of racism and slavery in the colonies, and it had lasting impacts on the social and legal treatment of people of different races.

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The Barbados slave code

The concept of "white people" was invented in opposition to chattel slavery in the late 1600s in America. The Barbados Slave Code, passed in 1661, was the first comprehensive Slave Act in a British colony. Officially titled "An Act for the better ordering and governing of Negroes", the law provided a legal basis for slavery in Barbados and sought to standardize procedures for managing the island's growing slave population, which had tripled since 1640. The code described black people as "a heathenish, brutish, and uncertain, dangerous kind of people" and established that slaves would be treated as chattel property in the island's courts.

The Barbados Assembly reenacted the slave code with minor modifications in 1676, 1682, and 1688. The original copies of the 1661 Act have not survived, and the earliest versions available date from 1667, after the code had been amended twice. These amendments were made during a period of political upheaval in Barbados, which included a royalist coup led by Governor Humphrey Walrond, who had been appointed by King Charles II.

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The Virginia slave codes

One of the key provisions of the Virginia Slave Codes was the distinction between servants and slaves based on their religion and country of origin. According to the codes, all servants from non-Christian lands were to be considered slaves. Additionally, any servant brought into the country who was not a Christian in their homeland would be treated as a slave, with a few exceptions for Turks and Moors. This provision effectively made African slaves a distinct legal category, separate from white colonists and indentured servants.

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The invention of whiteness

The concept of "whiteness" is a social construct that was invented to justify the oppression and exploitation of people of colour during the colonial era. This idea of whiteness as a tool of power and unity has had a significant impact on history and continues to influence society today.

Before the 17th century, the notion of belonging to a "white race" did not exist. However, as European powers expanded their colonial empires, they implemented and refined racial categories to serve their interests. This invention of whiteness was a crucial development that occurred during the second half of the 17th century, particularly in the context of the emerging British empire.

In colonial Barbados, for example, 17th-century labour codes described indentured Europeans as "white," granting them more rights than enslaved Africans. This racial distinction was deliberately used as a tool of mastery, ensuring that the two groups would not unite against the wealthy planters. The term "white" gradually replaced "Christian" as the designation for European settlers in Caribbean and Latin American colonies.

Whiteness was also used as a form of social control, with the ruling classes in America creating the category of the "white race" to maintain domination over ordinary working people of all colours. This strategy was replicated in other colonies, where colonial officials treated white settlers as citizens with rights while suppressing and controlling Indigenous and enslaved people. The theme of whiteness as power persists even as the boundaries of whiteness shift, with the category of "white" being ill-defined yet fiercely protected by those who benefit from it.

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The distinction between slaves and indentured servants

The arrival of the first Africans in Virginia in 1619, predated the existence of "white people" in the region, according to historian Theodore W. Allen. Allen asserts that "white" people did not appear in colonial records until 60 years after this arrival. This assertion highlights a significant shift in the social and legal landscape of the time, setting the stage for the distinction between slaves and indentured servants.

Indentured servitude, a form of debt bondage, was prevalent in colonial America. It emerged from the need for cheap labour to work the land. Nearly two-thirds of British settlers and eighty percent of European immigrants to America were indentured servants. These servants entered into contracts, typically lasting four to seven years, in exchange for passage, room, board, and freedom dues. While indentured servants were subject to harsh conditions and punishments, they were not considered property, and their labour was under contractual ownership. Upon completing their term, they could gain freedom and sometimes receive a freedom package, including land, supplies, and new clothes.

On the other hand, slavery was a form of chattel slavery, where the bodies of enslaved Africans and their children were owned. They were denied basic rights and access to the court system. Enslaved people were not afforded the same opportunities for freedom as indentured servants and were often subjected to harsher punishments.

The shift from indentured servitude to racial slavery occurred as demands for labour increased, and landowners sought more profitable and renewable sources of labour. This transition marked a significant departure from the initial absence of "white" people in colonial records, as racial hierarchies became more entrenched.

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The intersection of sex, gender, class and power

The concept of "white people" was invented in 1681 by colonial lawmakers, marking the first time the word "white" appeared in colonial law. This term was used to classify people who had not previously considered themselves as a group. The invention of whiteness was a colonial strategy to create a racial hierarchy, with whites positioned above other groups. This was particularly evident in the context of slavery, where laws regulating relations between whites and blacks emerged as early as 1630, enforcing social and cultural separation.

The intersection of sex, gender, class, and power is evident in the colonial laws that sought to control the sexuality and marriage choices of women, particularly those of higher social classes. For example, in 1664, Maryland passed a law prohibiting English women from marrying slaves of African descent, with severe punishments for any woman who disobeyed. This law illustrates how elite men attempted to control the sexuality and reproductive choices of white women, using racial categories to maintain power and uphold the social hierarchy.

The invention of whiteness was also influenced by the development of the English slave trade and the need to distinguish between European indentured servants and enslaved Africans. Initially, the distinction was based on religious identity, with Christians considered legally superior to non-Christians. However, as some enslaved Africans began to convert to Christianity, colonial lawmakers had to devise new ways to maintain the racial hierarchy and justify the slave trade. This led to the invention of "whiteness" as a racial category, which was first used in colonial law in 1681 to regulate marriage between whites and people of African descent.

The intersection of sex, gender, class, and power is further evident in the enforcement of these laws, which often targeted women of higher social classes who disobeyed racial boundaries. While white men continued to have sexual relations with nonwhite women, the law was not enforced equally, with men deemed white often escaping punishment. This double standard illustrates the complex interplay of sex, gender, class, and power in shaping racial hierarchies and enforcing colonial control.

The invention of whiteness and its intersection with sex, gender, class, and power had far-reaching consequences, shaping the legal underpinnings of racism and influencing social and cultural relations for centuries. The legacy of these colonial laws can still be felt today, highlighting the ongoing need to address and dismantle the systemic inequalities and biases that stem from this historical context.

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