The mysterious reference in the statute to the great damage which befalls the master of the
negro who marries an English woman hints at some consequence to the status of the slave which
resulted from marrying a free woman prior to the statute. One may speculate that marriage, a
religious ceremony, provided evidence that the slave was Christian and thus gave ground for
litigation over slave status, whatever the outcome of the suit. Another possibility is that marriage
with a free white woman made the slave less amenable to control and direction by his master. This
could be partly psychological and partly a function of claims through the wife of ownership of
property. Whatever the reason, the statute served to perpetuate the gulf between slave and servant,
and thus between blacks and whites.

The statute's application to female indentured servants is difficult to parse. They would be
born free, so the language applied even if they were indentured at the time of their marriage to a
slave. Thus, it appears that the provision that the woman became the servant of the master of the
slave could lead to the loss of services to the woman's master. Given the physical separation of the
dwellings in that era, the experience may have been that intermarriage took place between servants
and slaves of the same master, so the Assembly did not focus on the potential for a master of a male
slave to conspire with the slave to marry a servant of another master in order that the slave's master
acquire the rights to that servant. Perhaps the master had sufficient control over his female servant
to prevent such marriages, or the statute was understood to make the woman serve her husband's
master only after her own term of service expired. In any event, the Assembly was shortsighted in
not recognizing yet another problem, that masters would connive at a marriage between their female
indentured servants and their slaves in order to extend greatly the time of service for the servant.

The statute was very limited as an anti-miscegenation measure. It did not deal with sexual
relations outside of marriage. (Fornication was already a punishable offense regardless of the race
of the parties.)108 Judges had discretion in the penalty to be applied and may have been more severe
with interracial coupling although the available early records cast no light on this. Laws in 1658 and
1662 dealt with "servants that have bastards" by requiring an extension of service to repay the master
for time lost; however, the status of the mulatto issue of unmarried white women was not
considered.109 There was no prohibition on marriages between slaves and white males, but there may
have been no occasion to deal with the issue. A master could, of course, free a slave before marrying
her, and other men would be extremely reluctant to be tied to a wife who was another man's slave.
Even if such marriages existed, men were not in short supply and thus such marriages would not
engender concern over protecting scarce resources. The more significant problem was the status of
a mulatto child bom to a slave. The statute appears to make the status of a child bom to a female
slave follow that of the father - "Slaves as their fathers were." This language assumes that the father
would be a slave and does not deal with the status of a child born of a slave mother and free father.
As a practical matter, the child would probably have the status the slave's master desired. No
litigation similar to Key's case on status following the father's free position has been found in
Maryland. The emphasis in reading the statute was probably placed on the language stating that
children born of a slave shall be a slave, with the words "as their fathers were" being descriptive for
the usual case rather than prescriptive.

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