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INTERRACIALISM aNTERRACIALISM Black-Wh ite In term arriage in Am erican History, Literatu re, an d Law Ed ited by Wern er Sollors 1 2000 1 Oxford New York Ath en s Au cklan d Ban gkok Bogota Bu en os Aires Calcu tta ´ Cap e Tow n Ch en n ai Dar es Salaam Delh i Floren ce Hon g Kon g Istan bu l Karach i Ku ala Lu m p u r Mad rid Melbou rn e Mexico City Mu m bai Nairobi Paris Sa o Pau lo Sh an gh ai Sin gap ore Taip ei Tokyo Toron to Warsaw ˜ an d associated com p an ies in Berlin Ibad an Cop yrigh t 2000 by Oxford Un iversity Press, In c. Pu blish ed by Oxford Un iversity Press, In c. 198 Mad ison Aven u e, New York, New York 10016 Oxford is a registered trad em ark of Oxford Un iversity Press. All righ ts reserved . No p art of th is p u blication m ay be rep rod u ced , stored in a retrieval system , or tran sm itted , in an y form or by an y m ean s, electron ic, m ech an ical, p h otocop yin g, record in g, or oth erw ise, w ith ou t th e p rior p erm ission of Oxford Un iversity Press. Library of Con gress Catalogin g-in -Pu blication Data In terracialism : Black-w h ite in term arriage in Am erican h istory, literatu re, an d law / ed ited by Wern er Sollors. p . cm . In clu d es bibliograp h ical referen ces an d in d ex. ISBN 0-19-512856-7; ISBN 0-19-512857-5 (p bk.) 1. In terracial m arriage—Un ited States—History. 2. Miscegen ation —Un ited States—History. 3. Racially m ixed p eop le— Un ited States—History. 4. Miscegen ation —Law an d legislation — Un ited States—History. 5. Miscegen ation in literatu re. 6. Racially m ixed p eop le in literatu re. I. Sollors, Wern er. HQ1031.I8 2000 306.84'6'0973—d c21 99-32521 9 8 7 6 5 4 3 2 1 Prin ted in th e Un ited States of Am erica on acid -free p ap er In memoriam A. Leon Higginbotham, Jr. (February 25, 1928–December 14, 1998) Acknowledgments I am indebted to T . Susan Chang and to the anonymous readers at Oxford University Press for their encouragement in the planning stages for this volume, to Norma McLemore for superb copyediting, and to Will Moore for seeing the manuscript through the production process. I am grateful to Jessica Hook and Erica Michelstein for excellent research and editorial assistance and to Larry Benson, Lawrence Buell, and Derek Pearsall and the Hyder E. Rollins Publication Fund at Harvard University for defraying a substantial part of the permission fees. An NEH Fellowship allowed me to complete this edition. T he essays collected in this volume have been selected from a growing body of work on the subject, work to which reference is made in many footnotes and in the suggestions for further reading. It should particularly be emphasized that numerous helpful and some excellent monographs have been written on the topic, yet that this collection contains only essays, and no excerpts from published books. T he editor wishes to thank Randall Kennedy and Jamie Wacks for the right to publish new work, to the University of Massachusetts Press for the right to include an essay by Du Bois that was not printed in his lifetime, and to the various copyright holders for permission to reprint previously published copyright materials: Carter G. Woodson, ‘‘T he Beginnings of Miscegenation of the Whites and Blacks,’’ Copyright 1918. By permission of the Journal of N egro History and the Association for the Study of African-American Life and History, Inc. William D. Zabel, ‘‘Interracial Marriage and the Law.’’ Copyright permission of the author and the Atlantic Monthly. Eva Saks, ‘‘Representing Miscegenation Law.’’ Copyright of Raritan Quarterly. 1965. By 1988. By permission A. Leon Higginbotham, Jr., and Barbara Kopytoff, ‘‘Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia.’’ Copyright 1989. By permission of A. Leon Higginbotham, Jr., and with permission of the publisher, Georgetown University and the Georgetown Law Journal. Randall Kennedy, ‘‘Miscegenation Laws and the Problem of Enforcement.’’ Published here for the first time by permission of the author. Jamie L. Wacks, ‘‘Reading Race, Rhetoric, and the Female Body in the Rhinelander Case.’’ Published here for the first time by permission of the author. Peggy Pascoe, ‘‘Miscegenation Law, Court Cases, and Ideologies of ‘Race’ in T wentieth-Century America.’’ Copyright 1996. By permission of the author viii Acknowledgments and the Organization of American Historians, publisher of the Journal of American History. T erms from the Oxford English Dictionary (2nd edition, 1989). By permission of Oxford University Press. Sidney Kaplan, ‘‘T he Miscegenation Issue in the Election of 1864.’’ Copyright 1949. By permission of the Journal of N egro History and the Association for the Study of African-American Life and History, Inc. Reprinted from Sidney Kaplan’s American Studies in Black and White: Selected Essays, 1949–1989 (Amherst: University of Massachusetts Press, 1991). Copyright 1996 by the University of Massachusetts Press. Sterling A. Brown, ‘‘Negro Character as Seen by White Authors,’’ Journal of N egro Education 2 (1933): 179–203. Copyright 1996 by Howard University. All rights reserved. Penelope Bullock, ‘‘T he Mulatto in American Fiction,’’ Copyright permission of Phylon, Clark Atlanta University. 1945. By Jules Zanger, ‘‘T he ‘T ragic Octoroon’ in Pre–Civil War Fiction,’’ American Quarterly 18 (1966): 63–70. Copyright T he American Studies Association. Reprinted with permission of the Johns Hopkins University Press. William Bedford Clark, ‘‘T he Serpent of Lust in the Southern Garden.’’ Copyright 1974. By permission of the author. William L. Andrews, ‘‘Miscegenation in the Late Nineteenth-Century American Novel.’’ Copyright 1979. By permission of the author. Arthur P. Davis, ‘‘T he T ragic Mulatto T heme in Six Works of Langston Hughes.’’ Copyright 1955. By permission of Phylon, Clark Atlanta University. Langston Hughes, ‘‘Introduction’’ to Mark T wain’s Pudd’nhead Wilson. Reprinted by permission of Harold Ober Associates, Inc. Copyright 1959 by Bantam Books. Copyright renewed 1987 by George Houston Bass. Simone Vauthier, ‘‘Of African Queens and Afro-American Princes and Princesses: Miscegenation in Old Hepsy.’’ Copyright Presse de la Sorbonne Nouvelle, Paris, 1980. By permission of the author and the publisher. ‘‘Othello in America: T he Drama of Racial Intermarriage,’’ by T ilden G. Edelstein, from Region, Race, and Reconstruction: Essays in Honor of C. Vann Woodward, by James M. McPherson and J. Morgan Kousser. Copyright 1982 by Oxford University Press. Used by permission of Oxford University Press. ‘‘Jean T oomer and American Racial Discourse,’’ by George Hutchinson, from Texas Studies in Literature and Language 35.2, pp. 226–250. Copyright 1993 by the University of T exas Press. All rights reserved. Published with the permission of the author. Acknowledgments ix Glenn Cannon Arbery, ‘‘Victims of Likeness: Quadroons and Octoroons in Southern Fiction.’’ Copyright 1989. By permission of the author. Karen Sanchez-Eppler, ‘‘Bodily Bonds: T he Intersecting Rhetorics of Feminism ´ and Abolition.’’ Copyright 1988 by T he Regents of the University of California. Reprinted from Representations 24 (fall 1988), pp. 28–59, by permission of publisher and author. Eduardo Gonzalez, ‘‘American T heriomorphia: T he Presence of Mulatez in Cirilo ´ Villaverde and Beyond,’’ in Do the Americas Have a Common Literature?, ed. Gustavo Perez Firmat (Durham, N.C.: Duke University Press), pp. 177–193. Copy´ right 1990, Eduardo Gonzalez. All rights reserved. Reprinted with permission. W. E. B. Du Bois, ‘‘Miscegenation,’’ reprinted from Against Racism: Unpublished Essays, Papers, Addresses, 1887–1961, by W. E. B. Du Bois, ed. Herbert Aptheker (Amherst: University of Massachusetts Press, 1985). Copyright 1985 by the University of Massachusetts Press. Robert K. Merton, ‘‘Intermarriage and the Social Structure: Fact and T heory,’’ Psychiatry. Copyright 1941. By permission of the author. Hannah Arendt, ‘‘Reflections on Little Rock.’’ Copyright 1955. By permission of Lotte Kohler, T rustee, Hannah Arendt Literary T rust. William H. T urner, ‘‘Black Man/ White Woman: A Philosophical View,’’ reprinted from Doris Y. Wilkinson, Black Male/ White Female: Perspectives on Interracial Marriage and Courtship (Cambridge, Mass.: Schenkman, 1975), 170–175. By permission of the author and Doris Y. Wilkinson. Joel Perlmann, Reflecting the Changing Face of America: Multiracials, Racial Classification, and American Intermarriage (Publications of the Jerome Levy Institute, no. 35, 1997). Reprinted by permission of the author and of the Jerome Levy Economics Institute. Every effort has been made to trace all copyright holders, but if any have been inadvertently overlooked the publisher will be pleased to make the necessary arrangement at the first opportunity. Contents Introduction 3 Part I T he History of ‘‘Miscegenation’’ and the Legal Construction of Race LAWS AND DECISIO NS T he Virginia ‘‘Act to Preserve Racial Integrity’’ of 1924 23 ‘‘Marriage and Divorce’’ in 1913 Arizona 24 Pace v. State of Alabama, 1883 24 Loving v. Commonwealth of Virginia, 1967 26 ESSAYS What Is a White Man? 37 Charles W. Chesnutt T he Beginnings of Miscegenation of the Whites and Blacks 42 Carter G. Woodson Interracial Marriage and the Law 54 William D. Zabel Representing Miscegenation Law 61 Eva Saks Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia 81 A. Leon Higginbotham, Jr., & Barbara K. Kopytoff T he Enforcement of Anti-Miscegenation Laws 140 Randall Kennedy Reading Race, Rhetoric, and the Female Body in the Rhinelander Case 162 Jamie L. Wacks Miscegenation Law, Court Cases, and Ideologies of ‘‘Race’’ in T wentieth-Century America 178 Peggy Pascoe xii Contents Part II Literature A MISCEGENATIO N VO CABULARY AND THE CO INING O F AN AMERICANISM T erms from the Oxford English Dictionary 211 T he Miscegenation Issue in the Election of 1864 219 Sidney Kaplan THE ‘‘TRAGIC MULATTO ’’ AND O THER THEMES O F INTERRACIAL LITERATURE American Literary T radition and the Negro 269 Alain Locke From ‘‘Negro Character as Seen by White Authors’’ 274 Sterling A. Brown T he Mulatto in American Fiction 280 Penelope Bullock T he ‘‘T ragic Octoroon’’ in Pre–Civil War Fiction 284 Jules Zanger T he Serpent of Lust in the Southern Garden 291 William Bedford Clark Miscegenation in the Late Nineteenth-Century American Novel 305 William L. Andrews CASE STUDIES AND CLO SE READINGS T he T ragic Mulatto T heme in Six Works of Langston Hughes 317 Arthur P. Davis Mark T wain’s Pudd’nhead Wilson 326 Langston Hughes Of African Queens and Afro-American Princes and Princesses: Miscegenation in Old Hepsy 330 Simone Vauthier Othello in America: T he Drama of Racial Intermarriage 356 Tilden G. Edelstein Jean T oomer and American Racial Discourse 369 George Hutchinson LITERATURE IN CO NTEXTS Victims of Likeness: Quadroons and Octoroons in Southern Fiction 393 Glenn Cannon Arbery Bodily Bonds: T he Intersecting Rhetorics of Feminism and Abolition 408 Karen Sanchez-Eppler ´ American T heriomorphia: T he Presence of Mulatez in Cirilo Villaverde and Beyond 437 Eduardo Gonzalez ´ Contents xiii Part III Social T heory and Analysis Statistics of Black-White Intermarriage Rates in the United States 461 Miscegenation 461 W. E. B. Du Bois Intermarriage and the Social Structure: Fact and T heory 473 Robert K. Merton Reflections on Little Rock 492 Hannah Arendt Black Men-White Women: A Philosophical View 502 William H. Turner Reflecting the Changing Face of America: Multiracials, Racial Classification, and American Intermarriage 506 Joel Perlmann For Further Reading 535 Index 537 INTERRACIALISM Introduction A marriage between a person of free condition and a slave, or between a white person and a negro, or between a white person and a mulatto, shall be null. 1786 Virginia bill, drafted by Thomas Jefferson ( Jefferson 557, bill 86) I What is American about American culture? Many readers inside and outside of the United States are now suspicious of this line of questioning, for does it not exaggerate what distinguishes this country from other countries, and is this not an ‘‘exceptionalist’’ approach that stylizes the United States as unique? We have become skeptical of sweeping views of American history and literature that isolate the frontier or mobility, notions of virgin land and abundance, or peculiar forms of pastoralism as the distinguishing features of the United States. Instead, we have turned toward internationalist approaches and toward the study of regions and ethnic and gender groups to avoid generalizations about the United States. One theme that has been pervasive in U.S. history and literature and that has been accompanied by a 300-year-long tradition of legislation, jurisdiction, protest, and defiance is the deep concern about, and the attempt to prohibit, contain, or deny, the presence of black-white interracial sexual relations, interracial marriage, interracial descent, and other family relations across the powerful black-white divide. Many fears have been attached to the formation of the otherwise ideal American social institution: the heterosexual family. T hus a complicated area defined only by the racial difference of bride and groom was designated where family founding was considered ‘‘null and void,’’ and children of interracially married couples were deemed illegitimate. T his focus on marriage, children, legitimacy, property, and family created a paradox in American society, idealizing the concept of family while destroying certain families. T he powerful black-white divide was mirrored in other interracial relationships. Prohibitions of other forms of interracialism in the United States, critics Eva Saks, Peggy Pascoe, and Randall Kennedy observe in this volume, have existed for long periods of time. Anti-miscegenation laws came to include, in various states, American Indians, Chinese, Japanese, Hawaiians, Filipinos, and other groups—but all such laws restricted marriage choices of blacks and whites, making the blackwhite divide the deepest and historically most pervasive of all American color 3 4 Interracialism lines, even though the percentage of blacks among America’s people of color is now declining (a fact Joel Perlmann’s essay illuminates). And, though growing, the rate of intermarriage between blacks and whites has remained significantly lower than that of other racial minorities—less than one in ten for black men and one in twenty-five for black women. Such facts suggest, as the Census demographer Roderick Harrison writes, ‘‘that the black-white color line is still with us, and that the integration of blacks is going to be a different story than the assimilation of Asians and Hispanics’’ (Fletcher 1998:2). Some readers might expect to see the definition of ‘‘forbidden couples’’ expanded here to gay and lesbian partners. While miscegenation laws may no longer exist, many legal decisions surrounding interracial marriages have reemerged as possible precedents in debates surrounding same-sex marriages (see Koppelman 1988). T he resounding congressional support for the 1996 ‘‘Defense of Marriage Act’’ (which passed the House 342 to 67 and the Senate 85 to 14) suggests that legislative bodies are still far from ready to extend marital legal benefits to homosexual partners. Yet the thrust of the historical prohibitions of interracial marriage justifies a concentrated discussion of the forbidden heterosexual couple on the following pages: the homosexual couple was generally prohibited, regardless of race (though racial difference may have intensified community reaction against homosexuals, as A. Leon Higginbotham, Jr., and Barbara K. Kopytoff suggest in an early Virginia case). T he heterosexual couple, however, was designated as legitimate or criminal only according to the racial sameness or difference of the contractants.1 And whereas many countries have prohibited homosexuality, and most still deny a right to homosexual marriage, the case of a three-century-long curtailment of what many motherlands and colonies permitted, and what all democracies have tended to view as an elementary human right, marks a strong idiosyncrasy of the English colonies and the American republic. T hese contexts justify this collection’s focus on black-white heterosexual marital, sexual, and family relations in the United States. While many countries have practiced brutal forms of ethnic discrimination, accompanied by hate literature and inhumane laws (including marriage prohibitions for certain spans of time), few people around the world have shared the peculiar ways in which black-white marital relations were prohibited in several English colonies on the American continent (starting with Maryland in 1661). T hey would be startled to learn that, in a great number of American states— often the majority—such prohibitions survived the Revolution, the Civil War, two world wars, the League of Nations, and the first few presidencies of the United Nations, before being declared unconstitutional by the Supreme Court only on June 12, 1967, in the Loving v. Commonwealth of Virginia decision (in- 1. Andrew Koppelman stresses that sexual sameness and difference is constructed in a parallel way when he cites and comments on Justice T raynor’s statement in Perez v. Sharp (which held miscegenation statutes to be unconstitutional): ‘‘A member of any of these races [one might substitute ‘‘either of these sexes’’] may find himself barred by law from marrying the person of his choice and that person to him may be irreplaceable’’ (p. 162). Introduction 5 cluded in this volume). Even the representation of interracial relations was restrained at times, from Southern states’ disputes about interracial themes in books (see William D. Zabel, in this volume) to the infamous American ‘‘Motion Picture Production Code’’ of 1934 that urged filmmakers to uphold the ‘‘sanctity of the institution of marriage and the home,’’ but simultaneously stated: ‘‘Miscegenation (sex relationship between the white and black races) is forbidden’’ (Kydd 1996: 55–56). And even the word used to describe interracial sexual and marital relations, miscegenation, is an Americanism. Sidney Kaplan’s essay in this volume reveals how the word was coined by two New York journalists in an 1863 pamphlet, a political hoax designed to hurt abolitionists and Republicans who were invited to endorse it. Derived from Latin miscere and genus, the made-up word that faintly echoes the term for the European class mismatch, misalliance, and replaced amalgamation. It became a catchall term, used in phrases like ‘‘miscegenation law’’ that are hard to translate into some other languages. Could the question of what is American about American culture be answered with ‘‘prohibiting black-white heterosexual couples from forming families and withholding legitimacy from their descendants’’? II Constructing miscegenation law was a difficult task for lawmakers and judges. Although they may have invoked a divine or natural order, the ramifications of drawing a line between legal and illegal families were mindboggling and led to some absurd situations, many of which are illuminated in the essays in this book. One line of argument was to stress equality as well as difference (as in ‘‘separate but equal’’), but at least to the twenty-first century ear this emphasis reveals the inherent paradox. In Green v. State (1877), for example, the Alabama Supreme Court ruled in defense of interracial marriage bans: Manifestly, it is for the peace and happiness of the black race, as well as of the white, that such laws should exist. And surely there can not be any tyranny or injustice in requiring both alike, to form this union with those of their own race only, whom God hath joined together by indelible peculiarities, which declare that He has made the two races distinct. (Lombardo 1988:426) At the same time, the state’s right to meddle in private matters (patterned on the state’s right to prohibit incest) had to be intensified in order to make such ‘‘peace and happiness’’ possible. And when challenged in Pace v. State of Alabama, the U.S. Supreme Court ruled in a remarkable decision of 1883 (included in this collection), thirteen years before Plessy v. Ferguson, that punishing interracial couples more harshly than intraracial couples for ‘‘fornication or adultery’’ did not constitute racial discrimination. T he ‘‘punishment of each offending person’’ in the interracial relationship, ‘‘whether white or black, [was] the same.’’ Since both ‘‘T ony Pace, a negro man, and Mary J. Cox, a white woman,’’ had received the same sentence of two to seven years’ penitentiary or hard labor, and since the offense ‘‘cannot be committed without involving the persons of both races,’’ the 6 Interracialism Supreme Court felt that the State of Alabama had not used racial discrimination. T his was ‘‘equality’’ with a vengeance. Since the racial difference between the partners alone constituted a crime with such severe punishments, a whole science of drawing the color line and of ‘‘reading race’’ emerged (leading to the rise of experts and to strange legal proceedings even in civil cases such as the one Jamie Wacks analyzes in her essay in this collection); it was developed heterogeneously in different states. Contrary to many assertions, the so-called one-drop rule (according to which any African ancestry, no matter how far removed, made an American ‘‘black’’) was never widely applied, and many contradictory racial definitions coexisted. George S. Schuyler points out in ‘‘Who Is ‘Negro’? Who Is ‘White’?’’ (1940) that a person with less than one-eighth ‘‘Negro blood’’ may marry a ‘‘white’’ person, say, in Nebraska, North Dakota, Maryland, Louisiana, Missouri, Mississippi, or South Carolina, where he is not legally a ‘‘Negro,’’ and receive the sanction of law and society; but that marriage will be null and void in Arizona, Montana, Virginia, Georgia, Alabama, Oklahoma, Arkansas, and T exas. (p. 54)2 T hese definitions changed over time. As Higginbotham and Kopytoff and Kennedy show in this book, problems would necessarily emerge with the enforcement of such acts. Defining someone as ‘‘one-fourth’’ or ‘‘one-eighth’’ meant that one could argue that proof of ‘‘full-blooded’’ Africanness had to be given for the decisive ancestor from whom counting proceeded (see Ferrall v. Ferrall in the essays by Saks and Kennedy in this book). Virginia’s 1924 ‘‘Act to Preserve Racial Integrity’’ (reprinted in this collection) extended racial definition to an almost mystical level by suggesting that ‘‘the term ‘white person’ shall apply only to the person who has no trace whatsoever of any blood other than Caucasian’’ (see Sherman 1988). T his version of the one-drop rule, modeled on membership in an aristocracy, came late from one of the first states to prohibit interracial marriages, and it specifically excluded American Indian ancestry. T he Louisiana Supreme Court had to arrive at the following statement in 1908: ‘‘that a negro is necessarily a person of color; but not that a person of color is necessarily a negro’’ (Daggett 1953:20; see Domınguez 1986:30). T he definition of a ‘‘white person’’ ´ (examined by Charles Chesnutt in this book) had its correspondent problems, exemplified in the tautological procedure of the Texas Criminal Statutes of 1906: ‘‘All persons not included in the definition of ‘negro’ shall be deemed a white person within the meaning of this article’’ (art. 347; see Jenks 1916:678). Such definitions were of great significance not only in the area of criminal law but also 2. See also W. A. S. 1927, 862–863n: ‘‘Some of the statutes prohibit marriages between white persons and persons of African descent (Georgia, Oklahoma, T exas), or between white persons and persons of negro blood to the third generation (Alabama, Maryland, North Carolina, T ennessee), or between white persons and persons of more than one-fourth (Oregon, West Virginia), or one-eighth (Florida, Indiana, Mississippi, Nebraska, North Dakota), or one-sixteenth (Virginia) negro blood; other statutes in more general terms prohibit marriages between white persons and Negroes or mulattoes (Arkansas, Colorado, Delaware, Idaho, Kentucky, Louisiana, Missouri, Montana, Nevada, South Carolina, South Dakota, Utah, Wyoming).’’ Introduction 7 for civil lawsuits surrounding property disputes, in which the factor of one family member’s race could decide whether a divorce settlement or an annulment was in order (as in the Rhinelander case, here analyzed by Jamie Wacks), or whether an inheritance had to be shared. As more races entered the range of prohibitions, the formulations became more and more complex, and Arizona became famous for passing a law in 1913 (on which Kennedy, Zabel, and Pascoe reflect, and which is reprinted in this volume) that had very curious side effects. As Roger D. Hardaway writes in ‘‘Unlawful Love: A History of Arizona’s Miscegenation Law’’: By extending the prohibition against interracial marriage to descendants of ‘‘persons of Caucasian blood’’ and to descendants of ‘‘negroes, Mongolians or Indians,’’ the [Arizona] law [of 1913] placed a person of mixed Indian-white blood, for instance, in an untenable position. As the descendant of a white person, he could not legally marry a Negro, a Mongolian, and Indian or anyone descended from a member of these races. Conversely, as a descendant of an Indian, he could not marry a white person or anyone descended from a white person. He could not even marry someone who, like himself, was of mixed Indian-white ancestry. In short, he could not legally marry anybody! (Hardaway 1986:379) T his was, however, an inadvertent exception, for very few laws were enacted prohibiting the intermarriage among members of different non-white races in the United States. ‘‘Racial integrity’’ usually referred only to the ‘‘purity’’ of (or the intended purification of) the white race. Virginia Judge Leon M. Bazile (who originally sentenced Mildred and Richard Loving in the case that led to the landmark U.S. Supreme Court decision of 1967) argued, ‘‘Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. T he fact that he separated the races shows that he did not intend for the races to mix’’ (the verdict is cited and overturned in Loving v. Commonwealth of Virginia, in this volume). It took such an amazing amount of legislative and judicative energies to translate this supposed divine plan into legal reality that the theory of human-made differences has seemed more plausible to scholars. III T he exceptional legal pressures on black-white interracialism in the United States become more apparent when one considers international contexts. As W. E. B. Du Bois shows in his essay ‘‘Miscegenation’’ (included in this book), interracial relations apparently did not constitute a historically deep-seated or pervasive taboo throughout the world. And Frank Snowden reports in his excellent book Blacks in Antiquity, ‘‘No laws in the Greco-Roman world prohibited unions of blacks and whites’’ (Snowden 1970:195). Bernard Lewis comments on the Muslim world, ‘‘T he voice of Islamic piety on miscegenation is clear and unequivocal—there are no superior and inferior races and therefore no bar to racial intermarriage’’ (Lewis 1990:85). Is the American prohibition then part of the modern world of the Af- 8 Interracialism rican slave trade? Here Carl Degler makes an important point. Degler noted that while ‘‘Portuguese law forbade marriage between whites and Negroes or Indians’’ in colonial Brazil, ‘‘the church and the society accepted such unions informally’’ (Degler 1973:213, 216). Patricia Seed offers an assessment of a related situation in Mexican history: T here, at first, ‘‘interracial sexual contact took place primarily outside marriage,’’ but in the eighteenth century ‘‘a dramatic increase occurred in interracial marriage’’ (Seed 1988:146). Prohibition was also highly uncommon in the non-English slaveholding colonies that would become part of the United States. ‘‘One of Antonio de Ulloa’s acts in his first year in office as first Spanish governor of Louisiana was to grant permission to a Frenchman to marry a Negro woman,’’ Virginia Domınguez (1986:25) writes about a 1768 case. T he French ´ Code noir for most of the time it was in effect did not prohibit interracial marriage, but penalized couples for having sex outside marriage (a fact Carter G. Woodson emphasized in his pioneering essay, ‘‘T he Beginnings of Miscegenation of the Whites and Blacks,’’ which is included in this book). Given these policies of other colonies, one wonders whether the English colonies might have inherited an English idiosyncrasy. But apparently this was not the case either. George Schuhmann writes explicitly that there ‘‘was no prohibition of interracial marriage at common law or by statute in England at the time of the establishment of the American Colonies’’ (Schuhmann 1968:70; see also Applebaum 1964:50, Getman 1984:125, and Saks, p. 61, in this volume). One must accept J. A. Rogers’s conclusion that although ‘‘any prohibition of marriage between white and black at all began in the New World,’’ the ‘‘United States is the only country in the New World which has carried its law against the marriage of white and black from its colonial period into its national one’’ (Rogers 1941– 1944:3.15). Of course, there have been occasional restrictions on black-white relations in other countries, perhaps most notably in the apartheid era of South Africa. Even that case was modeled on U.S. segregation (see Higginbotham and Kopytoff, p. 138n245, in this volume) and lasted a much shorter time than American bans of interracial marriage: the legal prohibition of racially mixed marriages was in effect in the South African Union for less than forty years, from 1949 (when the ‘‘Immorality Act’’ was passed) to 1985 (when apartheid was officially ended).3 Legalized hostility to miscegenation may well have stamped and defined American culture, yet this hostility appears not to have been determined by the culture, and a cultural-relativist approach to the issue would be difficult to sustain. First, numerous cultural practices violated the legal norms, some of which led to legal consequences, including Supreme Court decisions, that are analyzed in part I of this book; laws, after all, rarely prohibit what humans do not practice. Second, numerous Americans raised their voices against these laws, and their 3. Another example of proscribing interracial marriages, inspired in part by the racial laws of the United States (see Krieger 1936) were the so-called Nuremberg laws enacted by German fascists. In his 1935 essay on ‘‘Miscegenation’’ (included in this volume) W. E. B. Du Bois argued that the ‘‘moral and physical problems of race mixture are tense and of present interest chiefly in Germany, South Africa and the United States.’’ Introduction 9 pronouncements anticipated the verdict of future ages. A Massachusetts act of June 22, 1786, stipulated: ‘‘T hat no person by this Act authorized to marry, shall join in marriage any white person with any Negro, Indian or Mulatto, on penalty of the sum of fifty pounds . . . ; and that all such marriages shall be absolutely null and void’’ (Massachusetts 1893:10). Yet Lydia Maria Child and William Lloyd Garrison—as well as William Ellery Channing and forty-two other Bostonians (see Johnston 1970:335ff.) campaigned against the Massachusetts intermarriage ban so successfully that it was repealed in 1843. Child expressed her fear in 1839 that ‘‘posterity will look back with as much wonder at the excited discussions on this subject as we now do to the proceedings of learned lawyers and judges, who hung witches for raising a storm’’ (Child 1982:110–111). Garrison was equally prophetic in questioning the state’s right to interfere with the private realm of marriage when he argued in 1843, ‘‘It is not the province, and does not belong to the power of any legislative assembly, in a republican government to decide on the complexional affinity of those who choose to be united together in wedlock; and it may as rationally decree that corpulent and lean, tall and short, strong and weak persons shall not be married to each other as that there must be an agreement in the complexion of the parties’’ (Washington 1970: 84).4 Charles Chesnutt, whose 1889 survey ‘‘What Is a White Man?’’ this collection includes, also argued prophetically about these laws: ‘‘Some day they will, perhaps, become mere curiosities of jurisprudence; the ‘black laws’ will be bracketed with the ‘blue laws,’ and will be at best but landmarks by which to measure the progress of the nation.’’ T hese opinions, voiced by cultural ‘‘insiders’’ at a time when interracial marriage was banned in the majority of states, were just as strong as were those phrased by foreign observers. Lord James Bryce called the American intermarriage 4. Garrison’s example foreshadows an antiapartheid allegory written more than a century later, E. V. Stone’s ‘‘T he Kingdom of Ethnaria’’ (Cape T own, 1959): Once upon a time there was a kingdom of Ethnaria, but all was not well, for it was discovered that the great virtues of the people, such as pride, selfishness, arrogance, hatred and greed, were in danger of being watered down or even lost altogether, through indiscriminate marriage and association. As a first step, it was decreed that all long-nosed people should be kept separate from their less endowed fellows, as the nation was in danger of losing the ability to look down its nose. Again, the long-sighted members of the community were to be kept free from association with the short-sighted, the tall from the short, the blue-eyed from the browneyed, the hairy from the glabrous, the freckled from the clear, the bow-legged from the knockkneed, the left-handed from the right-handed, and the stout from the thin. Step by step the policy was enforced. Each group had its separate area, and although there were some attempts made to evade the law, marriage between the groups was kept to a minimum, while the King had emblazoned on its coat of arms the legend, Divided we stand; united we fall. T he only thing that remained to be done in order to perfect the system, was to separate the male from the female. In spite of pessimistic warning that this would result in the death of the nation, it was agreed by the King, in consultation with the Monarch, that those who criticised the plan were just agitators, and that if the ship should go down, it would do so with its colours flying. Once upon a time there was a kingdom of Ethnaria. 10 Interracialism ban ‘‘one of the least defensible of all laws’’ in 1888 (Rogers 1988:80); and T ocqueville’s traveling companion Gustave de Beaumont wrote in 1835: ‘‘Intermarriages are certainly the best, if not the unique, means of fusing the white and the black races. T hey are also the most obvious index of equality’’ (Beaumont 1958 [1835]: 245). Many other observers voiced criticism or expressed incomprehension of these laws. As Randall Kennedy’s essay illuminates, even Southern courts were at times keenly aware of the exceptional nature of the antimiscegenation statutes. T hus a South Carolina court ruled in 1873 that, while it considered interracial marriages as ‘‘immoral’’ and ‘‘revolting,’’ it realized that this was not ‘‘the common sentiment of the civilized and Christian world’’ since many European countries and U.S. states did not prohibit interracial marriage. Naturally, the institution of literature—the topic of part II of this book—could not help but become part of the debate. Whether an interracial marriage was portrayed as successful or considered impossible had important political consequences, and Beaumont himself used the form of a novel to make his argument against the American custom of banning intermarriage. In this remarkable work, Marie, ou l’esclavage aux etats-unis, the hero, Ludovic, understands American race ´ prejudice in terms of a perverted sense of antiaristocratic sentiment, telling Nelson, the white father of Marie, his beloved mixed-blood bride-to-be: ‘‘If your custom is not to admit the transmission of honors by blood, then why does it sanction inherited infamy? One is not born noble, one is born ignominious! Now, you must admit that these are horrid prejudices!’’ Yet Ludovic assumes that the institution of marriage could not possibly be affected by those prejudices when he tells Nelson: ‘‘However, a white man, if such was his wish, could marry a free woman of color,’’ and the following dialogue ensues: N elson: No, my friend, you are mistaken. Ludovic: What power could hinder him? N elson: T he law. It contains an express prohibition, and declares such a marriage null. Ludovic: A hateful law! But I shall defy that law. (Beaumont 1958 [1835]:63) Many American novels, plays, and poems participated in the debate, from Dion Boucicault’s The Octoroon—in the American version of which the titular heroine Zoe poisons herself, but in the English versions of which the white hero George Peyton gets to marry her (see Degen 1975)—to William Dean Howells’s novel An Imperative Duty and Mark T wain’s Pudd’nhead Wilson, and from William Faulkner’s Absalom, Absalom! to Allen T ate’s The Fathers. Many essays in the present collection, especially those in part II, examine this literature, ranging from Lydia Maria Child, Harriet Beecher Stowe, and Mary Denison to Mark T wain, Charles Chesnutt, and Jean T oomer. I would like here merely to add a few more examples. In Epes Sargent’s novel Peculiar (1864), a Northern divine is invoked with the argument: ‘‘What a strange reason for oppressing a race of fellow-beings, that if we restore them to their rights we shall marry them! (p. 149). Madame Delphine tells Pere Jerome in George Washington Cable’s In Old Creole Days ` Introduction 11 (1879), ‘‘ ’tis not Miche Vignevielle w’at’s crezzie. . . . T is dad law! Dad law is ´ crezzie! Dad law is a fool’’ (p. 6). And in William S. Henry’s novel Out of Wedlock (1931), Reverend Nathaniel Pius asks Pastor Edward Jones: ‘‘Do you believe it impossible for God to join in the bond of holy wedlock a white man to a Negro woman?’’ Jones answers: ‘‘No, I don’t believe it impossible, but it is improbable that he does it in T exas’’ (pp. 31–32). T he laws banning interracial marriages are often thematized, and at times (for example in Frank Webb’s The Garies and Their Friends and Pauline Hopkins’s Contending Forces) become plot-constitutive in American literature. T oday, creative work in literature and film continues to revisit a debate it still considers alive at the cultural level: one only has to think of John Gregory Brown’s Decorations in a Ruined Cemetery, Danzy Senna’s Causasia, Spike Lee’s Jungle Fever, and James Ivory’s Jefferson in Paris. A final example comes from a pioneer of interracial studies, J. A. Rogers, in whose 1917 novel, From ‘‘Superman’’ to Man, the Negro Pullman porter Dixon combines the kinds of arguments advanced by Beaumont and Garrison and memorably pronounces that the ‘‘right to select one’s mate is one of the most ancient, most sacred of individual rights, and when the state interferes in this, except in the case of the mentally unfit, it but adds humor to the witticism—‘T his is a free country’ ’’ (Rogers 1988:80). T his character in Rogers’s little-known 1917 novel anticipates Hannah Arendt’s 1959 argument as well as Justice Warren’s 1967 Supreme Court decision in Loving v. Commonwealth of Virginia, both of which are included in this book. It is telling that the German-Jewish refugee Arendt prefaced her ‘‘Reflections on Little Rock’’ with the comment, ‘‘Like most people of European origin I have difficulty in understanding, let alone sharing, the common prejudices of Americans in this area.’’ In her essay she firmly insisted: T he right to marry whoever one wishes is an elementary human right compared to which ‘‘the right to attend an integrated school, the right to sit where one pleases on a bus, the right to go into any hotel or recreation area or place of amusement, regardless of one’s skin or color or race’’ are minor indeed. (p. 496, this volume.) T hat essay was so controversial in 1959 that Commentary, which had commissioned it, refused to publish it, and when it finally did appear in Dissent, it was accompanied by an editorial disclaimer and two sharp rebuttals, one of which called Arendt an ‘‘ardent champion’’ of intermarriage; in the subsequent issue of Dissent, Sidney Hook wrote that Arendt gave ‘‘priority to agitation for equality in the bedroom rather than to equality in education.’’ Yet eight years later Chief Justice Warren virtually adopted Arendt’s (or shall we say, Rogers’s porter Dixon’s?) arguments when, in ending the era of ‘‘miscegenation’’ laws, he stated: ‘‘Marriage is one of the basic civil rights of man, fundamental to our very existence and survival. . . . Under our Constitution, the freedom to marry or not to marry, a person of another race resides with the individual and cannot be infringed upon by the State.’’ Just as laws shaped and gave themes to literature, literature may also have affected the realm of the law. 12 Interracialism IV T he present collection calls attention to the significance of black-white interracialism and its repression by bringing together for the first time pioneering, provocative, informative, and outstanding work on this topic in American history, literature, and law.5 More than thirty years after the end of this form of American exceptionalism, at a time when American black-white intermarriage rates are dramatically on the rise—though still comparatively low (see Farley, forthcoming)— the time is right to examine the strange ramifications of this fear of mixing, particularly odd in a melting-pot culture. At the same time, while the collection specifically focuses on the United States, its findings should interest a much broader audience concerned about the past and future of race relations and civil rights in many lands in this new century. T he collection is divided into three major sections, focusing on history and the law, literature, and social theory. T hese divisions are necessarily loose, as there is an interdisciplinary spirit at work here. Many of the legal essays also draw on literature, and some of the others on law; and several essays in part I and part II are significant theoretically and could have been included in part III. T he collection concludes with a short list of further readings, all book-length works. T he volume provides essential information to students and general readers and should stimulate more research. T his book is about interracialism in American history, law, and literature; it would be desirable to find more work done on interracialism in areas including the visual arts (Dalton 1992, 1993; and Wilson 1991) or film (Cripps 1993a, b; and Kydd 1996),6 and to find the interdisciplinary thrust of the work presented here expanded and extended in future studies. Many shared themes emerge in this book. It concerns an area of inquiry in which even the most descriptive essays indicate a moral agenda. T he political nature of interracialism becomes apparent in many contributions; one indication of it is the frequency of references to American presidents in connection with interracial concubinage and marriage plots, and with interracial descendants. T he essays in this volume allude to T homas Jefferson’s position toward egalitarianism that was paradoxically undercut by his role as a slaveholder and his possible relationship with Sally Hemings (at the center of media attention in 1998 in connection with public belief in the certainty of DNA evidence, but the subject of American fiction since the days of William Wells Brown’s Clotel, or the President’s Daughter). It is possible that the author of the Declaration of Independence had a son who could not vote or serve on juries; they mention the rumor that 5. Except where indicated, the essays are reprinted in their entirety here; and the reader interested in pursuing further some of the issues raised on these pages will appreciate that the full notes of the original essays are included here. T he different disciplinary backgrounds make for different systems of annotation, but lawyers, literary critics, and historians will be happy to find that the essays in their own disciplines have not been reformatted and homogenized to another citation system. 6. Interracial films in the United States alone include The Birth of a N ation (1915), Scar of Shame (1927), Imitation of Life (1934 and 1959), Anna Lucasta (1949 and 1958), Lost Boundaries (1949), Pinky (1949), Raintree County (1957), Shadows (1960), One Potato, Two Potato (1964), Guess Who’s Coming to Dinner (1967), Hairspray (1988), Jungle Fever (1991), and Jefferson in Paris (1995). Introduction 13 Andrew Jackson had to protest that he had a half-brother who was sold as a slave. T he essays report that John T yler’s daughter tried to reach foreign soil with her secret lover, before being captured and sold into slavery by her own father, the president; they quote from Lincoln’s horrified recoiling at the possibility of interracial marriage in a debate with Douglas; they refer to Andrew Johnson’s concubine, and even to the integration supporter Harry T ruman who recited the cliched question, ‘‘Would you want your daughter to marry a Negro?’’, assuming ´ that the answer of a white journalist would have to be ‘‘no.’’ In a country in which a person of color (or a woman of any race) has yet to become president, these stories of presidents—and of their mothers, brothers, sons, and daughters— are steps in the unfinished process of imagining the country as a multiracial family, of fully living up to the ideal of fraternite.7 T he reader repeatedly wonders ´ whether legislators were trying to establish ‘‘racial purity’’ when they invoked a supposedly longstanding racial order they were merely preserving. ‘‘Racial integrity’’ often appears as goals for the future, and not as the legacy of a past. Essayists must report their findings in contexts the reader can understand. T hese contexts range from historical excavation to psychoanalysis, from internationally comparative and contrastive approaches to new historicist models of investigation, and from century-old pathbreaking explorations of what would now be called ‘‘whiteness studies’’ to recent work informed by a focus on the human body. Written from a variety of perspectives, and published over the course of over a century, these essays by literary critics, professors of law, historians, sociologists, philosophers, poets, and journalists combine the seriousness of rigorous archival work with some of the urgent and painful questions that have led to the rise of cultural studies. Interracialism: Black-White Intermarriage in American History, Literature, and Law presents important work on the three centuries of legalized opposition to interracial family structures in the United States. T his book constitutes a progress narrative, as the Loving v. Commonwealth of Virginia Supreme Court decision of 1967 removed the legal underpinning of an American peculiarity that would currently find few intellectual defenders. Yet if the problem of the twentieth century was, as W. E. B. Du Bois predicted in 1903, ‘‘the problem of the color-line’’ (p. vii), what is the problem of the twenty-first century? Has the United States permanently abolished a legal framework that for centuries isolated it from other countries, a framework that critics have compared to fascist laws? Or is the country merely entering, as Peggy Pascoe warns, a period of a new ideology—that of ‘‘the deliberate nonrecognition of race’’—with its own, perhaps even more sinister consequences? Is the problem of the twenty-first century the problem of color blindness? Or do Americans still have to struggle out of the shell of the old racial ideology of which so many aspects remain? Joel Perlmann compellingly identifies the ‘‘bizarre’’ assumption of all current U.S. Census projections (including those about ‘‘the browning’’ of America) ‘‘that a child born to an interracial couple 7. See the collection Sally Hemings and Thomas Jefferson: History, Memory, and Civic Culture, ed. Peter S. Onuf and Jan Ellen Lewis (Charlottesville: University Press of Virginia, 1999). 14 Interracialism today will take the race of the mother and that, starting tomorrow, neither that child nor any other American will marry across race lines.’’ Is the lasting legacy of ‘‘miscegenation law’’ that too many people and institutions focus inappropriately on race? Or is it that not enough people and institutions recognize race in the United States? Interracialism asks readers to address this question; and much depends on how they will answer it. References Applebaum, Harvey M. 1964. ‘‘Miscegenation Statutes: A Constitutional and Social Problem.’’ Georgetown Law Journal 53:49–91. Beaumont, Gustave de. 1958. Marie [1835]. Engl. trans. Barbara Chapman. Stanford: Stanford University Press. Cable, George Washington. 1893. ‘‘Madame Delphine’’ [1879]. In Old Creole Days. New York: Scribners. Child, Lydia Maria. 1982. Selected Letters, 1817–1889. Ed. Milton Meltzer and Patricia G. Holland. Amherst: University of Massachusetts Press. Cripps, T homas. 1993a. Slow Fade to Black: The N egro in American Films 1902– 1942. 2nd ed. Oxford: Oxford University Press. ———. 1993b. Making Movies Black: The Hollywood Message Movie from World War II to the Civil Rights Era. Oxford: Oxford University Press. Daggett, Harriet Spiller. 1953. Legal Essays on Family Law. Baton Rouge: Louisiana State University Press. Dalton, Karen C. 1992. ‘‘Currier & Ives’s Darktown Comics: Ridicule and Race.’’ Presented at the Museum of the City of New York, 2 May. ———. 1993. ‘‘Caricature in the Service of Racist Stereotypes: Evolution of Nineteenth-century Caricatures of African Americans.’’ Delivered at American Antiquarian Society Seminar in American Art History, 23 February. Degen, John A. 1975. ‘‘How to End The Octoroon.’’ Educational Theatre Journal 27: 170–178. Degler, Carl N. 1973. N either Black N or White: Slavery and Race Relations in Brazil and the United States [1971]. Repr. New York: Macmillan. Domınguez, Virginia R. 1986. White by Definition: Social Classification in Creole ´ Louisiana. New Brunswick, N.J.: Rutgers University Press. Du Bois, W. E. Burghardt. 1903. The Souls of Black Folk: Essays and Sketches. Chicago: A. C. McClurg. Farley, Reynolds. 1999. ‘‘Racial Issues: Recent T rends in Residential Patterns and Intermarriage.’’ In Diversity and Its Discontents: Cultural Conflict and Common Ground in Contemporary American Society, ed. Neil J. Smelser and Jeffrey C. Alexander. Princeton: Princeton University Press, 1999. Fletcher, Michael A. 1998. ‘‘Mixed Marriages Give U.S. Melting Pot New Life.’’ International Herald Tribune (December 30): 2. Gaines, Francis Pendleton. 1925. The Southern Plantation: A Study in the Development and the Accuracy of a Tradition. New York: Columbia University Press. Getman, Karen A. 1984. ‘‘Sexual Control in the Slaveholding South.’’ Harvard Women’s Law Journal 7.1 (spring): 115–152. Introduction 15 Henry, William S. 1931. Out of Wedlock. Boston: Richard G. Badger. Hodes, Martha, ed. 1999. Sex, Love, Race: Crossing Boundaries in N orth American History. New York: New York University Press. Jefferson, T homas. 1950. The Papers of Thomas Jefferson. Vol. 2, ed. Jackson Boyd. Princeton, N.J.: Princeton University Press. Jenks, Albert E. 1916. ‘‘T he Legal Status of Negro-White Amalgamation in the United States.’’ American Journal of Sociology 21 (March): 666–678. Johnston, James Hugo. 1970. Race Relations in Virginia and Miscegenation in the South, 1776–1860. Amherst: University of Massachusetts Press. Koppelman, Andrew. 1988. ‘‘T he Miscegenation Analogy: Sodomy Law As Sex Discrimination.’’ Y ale Law Journal 98.1 (November): 145–164. Hardaway, Roger D. ‘‘Unlawful Love: A History of Arizona’s Miscegenation Law.’’ Journal of American History 27 (winter 1986): 377–390. Krieger, Heinrich. 1936. Das Rassenrecht in den Vereinigten Staaten. Neue Deutsche Forschungen, Abt. Staats-, Verwaltungs-, Kirchen-, Volkerrecht und ¨ Staatstheorie, vol. 6. Berlin: Junker und Dunnhaupt Verlag. ¨ Kydd, Elspeth. 1996. ‘‘ ‘T ouched by the T ar Brush’: Miscegenation and Mulattos in Classical Hollywood Cinema.’’ Ph.D. diss., Northwestern University. Lewis, Bernard. 1990. Race and Slavery in the Middle East: An Historical Enquiry. New York: Oxford University Press. Lombardo, Paul A. 1988. ‘‘Miscegenation, Eugenics, and Racism: Historical Footnotes to Loving v. Virginia.’’ University of California Davis Law Review 21.2 (winter): 421–452. Massachusetts, Acts and Laws of the Commonwealth of. 1893. Repr. Boston: Wright and Potter. Nelson, John Herbert. 1968. The N egro Character in American Literature [1926]. Repr. College Park, Md.: McGrath. J. A. Rogers. 1941–1944. Sex and Race. 3 vols. New York: Helga M. Rogers, n.d. (vols. copyright 1941, 1942, and 1944 respectively). ———. 1988. From Superman to Man [1917]. Repr. St. Petersburg, Fla.: Helga M. Rogers. Sargent, Epes. 1864. Peculiar: A Tale of the Great Transition. New York: Carleton. Schuhmann, George. 1968. ‘‘Miscegenation: An Example of Judicial Recidivism.’’ Journal of Family Law 8: 69–78. Schuyler, George S. 1940. ‘‘Who Is ‘Negro’? Who Is ‘White’?’’ Common Ground 1 (autumn): 53–56. Seed, Patricia. 1988. To Love, Honor, and Obey in Colonial Mexico: Conflicts over Marriage Choice, 1574–1821. Stanford, Calif.: Stanford University Press. Sherman, Richard B. 1988. ‘‘ ‘T he Last Stand’: T he Fight for Racial Integrity in Virginia in the 1920s.’’ The Journal of Southern History 54.1 (February): 69– 92. Snowden, Frank M. 1970. Blacks in Antiquity. Cambridge, Mass.: Belknap Press of Harvard University Press. Stone, E. V. ‘‘T he Kingdom of Ethnaria.’’ Africa South 3.1 (Cape T own, 1959): 47–48. 16 Interracialism W.A.S. 1927. ‘‘Intermarriage with Negroes—A Survey of State Statutes.’’ Y ale Law Journal 36 (April): 858–866. Washington, Joseph R., Jr. 1970. Marriage in Black and White. Boston: Beacon Press. Wilson, Judith. 1991. ‘‘Optical Illusions: Images of Miscegenation in Nineteenthand T wentieth-Century American Art.’’ American Art 5.1 (summer): 89–107. PART I T he History of ‘‘Miscegenation’’ and the Legal Construction of Race T his collection begins with the texts of selected laws (Arizona and Virginia) and the momentous Supreme Court decisions of Pace v. State of Alabama (1883) and Loving v. Commonwealth of Virginia (1967) that mark the modern trajectory of legal thinking about black-white interracialism. T he essays that follow span more than a century. T he legally trained writer Charles W. Chesnutt (whose oeuvre of interracial literature is briefly discussed in this collection by Penelope Bullock and William L. Andrews and is mentioned by several others) provides a provocative survey of the heterogeneous definitions of ‘‘What Is a White Man?’’ in different states in the 1880s. His dwelling on the particularly liberal definition of whiteness in South Carolina, where ‘‘reputation and reception into society’’ and ‘‘admixture of blood’’ mattered (perhaps to increase the number of whites), has particular resonance for Chesnutt, whose novel The House Behind the Cedars, published a decade later, had a plot that was clearly affected by this issue. Carter G. Woodson, the founder of African-American history, offers the first scholarly, comparative, and informative account of ‘‘T he Beginnings of Miscegenation of the Whites and Blacks,’’ first published in 1918, in an essay that juxtaposes legislative prohibition with stories of lived lives, culled from a variety of sources. It is an essay that established a field, and from which much later work drew its inspiration. William D. Zabel’s essay on ‘‘Interracial Marriage and the Law’’ (originally published in Atlantic Monthly in 1965) is valuable for a different reason: two years before Loving v. Commonwealth of Virginia, Zabel reviews the legal situation surrounding interracial marriage historically, with a focus on legal absurdities (including the Arizona law) in order to make a strong case for the Supreme Court to strike down these laws. Even though the issue might prove to be ‘‘incendiary to some whites and insignificant to most Negroes,’’ he finds that no laws are ‘‘more symbolic of the Negro’s relegation to second-class citizenship.’’ Part I continues with essays from the 1980s and 1990s, decades after the Supreme Court decision had declared the miscegenation statutes unconstitutional. Clearly animated by cultural studies approaches, Eva Saks’s ‘‘Representing Miscegenation Law’’ (1988) is both a provocative survey and a Foucault-inspired institutional analysis of the laws and decisions prohibiting interracial sex and marriage. T ellingly, her far-ranging essay is framed by a literary focus on Dion Boucicault’s Octoroon (followed by references to Othello, Absalom, Absalom!, and Pudd’nhead Wilson). It calls attention to the origin of the word miscegenation, emphasizes the paradoxes in decisions including Pace v. State of Alabama, Loving v. Commonwealth of Virginia, and the politics of the ‘‘miscegenous body’’ in the legal establishment of ‘‘race.’’ Saks also highlights the modern connections with eugenicism and fascism. In ‘‘Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia,’’ the renowned legal scholars A. Leon Higginbotham, Jr., and Barbara K. Kopytoff offer a magisterial, in-depth survey and the most thoroughly researched analysis of the legal situation in Virginia up to the Civil War, with a forward glance beyond that period and up to the ‘‘Racial Integrity Law’’ of 1924. T he authors review legislation and judication in their historical contexts and offer provocative new readings of frequently cited cases—such as the 1630 whipping of Hugh Davis ‘‘for abusing himself to the dishonr of God 20 Interracialism and shame of Christianity by defiling his body in lying with a negro.’’ Since the gender of the Negro is not identified the ‘‘extremely strong language may have reflected the Council’s revulsion at a homosexual relationship’’ (p. 102n98). Higginbotham and Kopytoff include consensual sex and rape cases and view the concepts of racial purity, interracial sex, and interracial marriage as being ‘‘at the root of American racism that has entangled almost every aspect of American society.’’ Law professor Randall Kennedy surveys, in ‘‘T he Enforcement of AntiMiscegenation Laws’’ (part of a forthcoming book), an entire series of theoretically significant practical issues that were raised when laws were tested in actual cases, ranging from problems in classification and the knowledge of racial identity to problems of proof and questions of comity, and focusing especially on divorce and annulment cases. Kennedy treats the messiness of racial classification, the heterogeneity of policies in different states, and the surprising refusal of most courts to grant husbands annulments on racial grounds—a fact that flies in the face of what one would expect from the logic of white supremacy. ‘‘Reading Race, Rhetoric, and the Female Body in the Rhinelander Case,’’ Jamie Wacks’s examination of a New York high-society case, is an in-depth study of one of the most remarkable modern interracial annulment attempts. Working with the trial transcript (previously considered lost), Wacks shows narrative patterns and the prurient and voyeuristic extremes to which legal experts could go in order to determine ‘‘race,’’ or a husband’s knowledge of his wife’s race, in courtroom proceedings. In ‘‘Miscegenation Law, Court Cases, and Ideologies of ‘Race’ in T wentieth-Century America,’’ the historian Peggy Pascoe takes her point of departure from Kirby v. Kirby and from other cases that challenged miscegenation laws, with a focus on Arizona. She reviews the decline of an old racist ideology and attempts to trace the rise of what she heretically terms ‘‘modernist racial ideology’’ according to which granting public recognition to racial categories was considered the same as racism itself. Many of the essays mention briefly, or analyze in depth, some of the same cases, so that part I offers different perspectives on not only the most famous rulings, but also on such cases as Ferrall v. Ferrall, In re Monks Estate, Kirby v. Kirby, or the quoting of Hitler’s Mein Kampf in Perez v. Sharp. LAWS AND DECISIO NS T he Virginia ‘‘Act to Preserve Racial Integrity’’ of 1924* 1. Be it enacted by the General Assembly of Virginia, T hat the State Registrar of Vital Statistics may as soon as practicable after the taking effect of this act, prepare a form whereon the racial composition of any individual, as Caucasian, negro, Mongolian, American Indian, Asiatic Indian, Malay, or any mixture thereof, or any other non-Caucasic strains, and if there be any mixture, then the racial composition of the parents and other ancestors, in so far as ascertainable, so as to show in what generation such mixture occurred, may be certified by such individual, which form shall be known as a registration certificate. T he State Registrar may supply to each local registrar a sufficient number of such forms for the purposes of this act; each local registrar may personally or by deputy, as soon as possible after receiving such forms, have made thereon in duplicate a certificate of the racial composition as aforesaid, of each person resident in his district, who so desires, born before June fourteenth, nineteen hundred and twelve, which certificate shall be made over the signature of said person, or in the case of children under fourteen years of age, over the signature of a parent, guardian, or other person standing in loco parentis. One of said certificates for each person thus registering in every district shall be forwarded to the State Registrar for his files; the other shall be kept on file by the local registrar. Every local registrar may, as soon as practicable, have such registration certificate made by or for each person in his district who so desires, born before June fourteen, nineteen hundred and twelve, for whom he has not filed a registration certificate or a birth certificate. 2. It shall be a felony for any person wilfully or knowingly to make a registration certificate false as to color or race. T he wilful making of a false registration or birth certificate shall be punished by confinement in the penitentiary for one year. 3. For each registration certificate properly made and returned to the State Registrar, the local registrar returning the same shall be entitled to a fee of twentyfive cents, to be paid by the registrant. Application for registration and for transcript may be made direct to the State Registrar, who may retain the fee for expenses of his office. 4. No marriage license shall be granted until the clerk or deputy clerk has reasonable assurance that the statements as to color of both man and woman are correct. * From Ivan McDougle, Mongrel Virginians: The Win Tribe (Baltimore: Williams & Wilkins, 1926), 203–205. 23 24 Laws and Decisions If there is reasonable cause to disbelieve that applicants are of pure white race, when that fact is stated, the clerk or deputy clerk shall withhold the granting of the license until satisfactory proof is produced that both applicants are ‘‘white persons’’ as provided for by this act. T he clerk or deputy clerk shall use the same care to assure himself that both applicants are colored when that fact is claimed. 5. It shall hereafter be unlawful for any white person in this state to marry any save a white person, or a person with no other admixture of blood than white and American Indian. For the purpose of this act, the term ‘‘white person’’ shall apply only to the person who has no trace whatsoever of any blood other than Caucasian; but 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. All laws heretofore passed and now in effect regarding the intermarriage of white and colored persons shall apply to marriages prohibited by this act. 6. For carrying out the purposes of this act and to provide the necessary clerical assistance, postage and other expenses of the State Registrar of Vital Statistics, twenty per cent of the fees received by the local registrars under this act shall be paid to the State Bureau of Vital Statistics, which may be expended by the said bureau for the purposes of this act. 7. All acts or parts of acts inconsistent with this act are, to the extent of such inconsistency, hereby repealed. ‘‘Marriage and Divorce’’ in 1913 Arizona* All marriages of persons of Caucasian blood, or their descendants, with negroes, Mongolians or Indians, and their descendants, shall be null and void. Pace v. State of Alabama, 1883† Constitutional Law—Equal Protection of the Law— Crimes between Different Races. When one of two sections of a Code prescribes generally a punishment for an offense committed between persons of different sexes, and the other prescribes a punishment for offenses committed by persons of different races as well as different sexes, the two sections are consistent with each other, * From Revised Statutes of Arizona, ed. and annotated by Samuel L. Pattee (Phoenix: McNeil, 1913), 1310. † From 106 U.S. 583; 1 S. Ct. 637; 1882 U.S. Pace v. State of Alabama 25 and the latter section is not obnoxious to the fourteenth amendment to the federal constitution as denying ‘‘to one person the equal protection’’ of the laws. In Error to the Supreme Court of Alabama. Section 4184 of the Code of Alabama provides that ‘‘if any man and woman live together in adultery or fornication, each of them must, on the first conviction of the offense, be fined not less than $100, and may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than six months. On the second conviction for the offense, with the same person, the offender must be fined not less than $300, and may be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than 12 months; and for a third or any subsequent conviction with the same person, must be imprisoned in the penitentiary or sentenced to hard labor for the county for two years.’’ Section 4189 of the same Code declares that ‘‘if any white person and any negro, or the descendant of any negro to the third generation, inclusive, though one ancestor of each generation was a white person, intermarry or live in adultery or fornication with each other, each of them must, on conviction, be imprisoned in the penitentiary or sentenced to hard labor for the county for not less than two nor more than seven years.’’ In November, 1881, the plaintiff in error, T ony Pace, a negro man, and Mary J. Cox, a white woman, were indicted under section 4189, in a circuit court of Alabama, for living together in a state of adultery or fornication, and were tried, convicted, and sentenced, each to two years’ imprisonment in the state penitentiary. On appeal to the supreme court of the state the judgment was affirmed, and he brought the case here on writ of error, insisting that the act under which he was indicted and convicted is in conflict with the concluding clause of the first section of the fourteenth amendment of the constitution, which declares that no state shall ‘‘deny to any person the equal protection of the laws.’’ J. R. Tompkins, for the plaintiff in error. H. C. Tompkins, for the defendant in error. FIELD , J. T he counsel of the plaintiff in error compares sects. 4184 and 4189 of the Code of Alabama, and assuming that the latter relates to the same offence as the former, and prescribes a greater punishment for it, because one of the parties is a negro, or of negro descent, claims that a discrimination is made against the colored person in the punishment designated, which conflicts with the clause of the Fourteenth Amendment prohibiting a State from denying to any person within its jurisdiction the equal protection of the laws. T he counsel is undoubtedly correct in his view of the purpose of the clause of the amendment in question, that it was to prevent hostile and discriminating State legislation against any person or class of persons. Equality of protection under the laws implies not only accessibility by each one, whatever his race, on the same terms with others to the courts of the country for the security of his person and property, but that in the administration of criminal justice he shall not be subjected, for the same offence, to any greater or different punishment. Such was the view of congress in the re-enactment of the civil-rights act, after the adoption 26 Laws and Decisions of the amendment. T hat act, after providing that all persons within the jurisdiction of the United States shall have the same right, in every state and territory, to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, declares that they shall be subject ‘‘to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.’’ 16 St., c. 114, § 16. T he defect in the argument of counsel consists in his assumption that any discrimination is made by the laws of Alabama in the punishment provided for the offense for which the plaintiff in error was indicted when committed by a person of the African race and when committed by a white person. T he two sections of the Code cited are entirely consistent. T he one prescribes, generally, a punishment for an offense committed between persons of different sexes; the other prescribes a punishment for an offense which can only be committed where the two sexes are of different races. T here is in neither section any discrimination against either race. Section 4184 equally includes the offense when the persons of the two sexes are both white and when they are both black. Section 4189 applies the same punishment to both offenders, the white and the black. Indeed, the offense against which this latter section is aimed cannot be committed without involving the persons of both races in the same punishment. Whatever discrimination is made in the punishment prescribed in the two sections is directed against the offense designated and not against the person of any particular color or race. T he punishment of each offending person, whether white or black, is the same. Judgment affirmed. Loving v. Commonwealth of Virginia, 1967* Proceeding on motion to vacate sentences for violating state ban on interracial marriages. T he Circuit Court of Caroline County, Virginia, denied motion, and writ of error was granted. T he Virginia Supreme Court of Appeals, 206 Va. 924, 147 S.E.2d 78, affirmed the convictions, and probable jurisdiction was noted. T he United States Supreme Court, Mr. Chief Justice Warren, held that miscegenation statutes adopted by Virginia to prevent marriages between persons solely on basis of racial classification violate equal protection and due process clauses of Fourteenth Amendment. Convictions reversed. 1. Marriage Marriage is social relation subject to state’s police power. * From 388 U.S. 1; 87 S. Ct. 1817; 1967 U.S. Loving v. Commonwealth of Virginia 27 2. Marriage Under Fourteenth Amendment, power of state to regulate marriage is not unlimited. U.S.C.A.Const. Amend. 14. 3. Constitutional Law Mere equal application of statute containing racial classifications is not sufficient to remove classifications from Fourteenth Amendment’s proscription of all invidious racial discriminations. U.S.C.A.Const. Amend. 14. 4. Constitutional Law Fact of equal application of statutes containing racial classifications does not immunize statutes from heavy burden of justification which Fourteenth Amendment requires of state statutes drawn according to race. U.S.C.A.Const. Amend. 14. 5. Constitutional Law Equal protection clause of Fourteenth Amendment requires consideration of whether classifications drawn by any statute constitute arbitrary and invidious discrimination. U.S.C.A.Const. Amend. 14. 6. Constitutional Law Clear and central purpose of Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in states. U.S.C.A.Const. Amend. 14. 7. Constitutional Law At very least, equal protection clause of Fourteenth Amendment demands that racial classifications, especially suspect in criminal statutes, be subjected to most rigid scrutiny, and, if they are to be upheld, they must be shown to be necessary to accomplishment of some permissible state objective, independent of racial discrimination which it was object of Fourteenth Amendment to eliminate. U.S.C.A.Const. Amend. 14; Code Va.1950, §§ 1–14, 20– 50, 20–53, 20–54, 20–57 to 20–59. 8. Constitutional Law Restricting freedom to marry solely because of racial classifications violates central meaning of equal protection clause. U.S.C.A.Const. Amend. 14. 9. Constitutional Law Miscegenation Miscegenation statutes adopted by Virginia to prevent marriages between persons solely on basis of racial classification violate equal protection and due process clauses of Fourteenth Amendment. Code Va.1950, §§ 1–14, 20–50, 20–53, 20–54, 20–57 to 20–59; U.S.C.A.Const. Amend. 14. 10. Marriage Marriage is one of basic civil rights of man. 11. Constitutional Law Fourteenth Amendment requires that freedom of choice to marry not be restricted by invidious racial discrimination. U.S.C.A.Const. Amend. 14. 12. Marriage Freedom to marry, or not marry, person of another race resides with individual and cannot be infringed by state. U.S.C.A.Const. Amend. 14. Philip J. Hirschkop, pro hac vice, by special leave of Court, Bernard S. Cohen, Alexandria, Va., for appellants. R. D. McIlwaine, III, Richmond, Va., for appellee. 28 Laws and Decisions William M. Marutani, Philadelphia, Pa., for Japanese American Citizens League, as amicus curiae, by special leave of Court. Mr. Chief Justice WARREN delivered the opinion of the Court. T his case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment.1 For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment. In June 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the Lovings returned to Virginia and established their marital abode in Caroline County. At the October T erm, 1958, of the Circuit Court of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia’s ban on interracial marriages. On January 6, 1959, the Lovings pleaded guilty to the charge and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. He stated in an opinion that: Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. T he fact that he separated the races shows that he did not intend for the races to mix. After their convictions, the Lovings took up residence in the District of Columbia. On November 6, 1963, they filed a motion in the state trial court to vacate the judgment and set aside the sentence on the ground that the statutes which they had violated were repugnant to the Fourteenth Amendment. T he motion not having been decided by October 28, 1964, the Lovings instituted a class action in the United States District Court for the Eastern District of Virginia requesting that a three-judge court be convened to declare the Virginia antimiscegenation statutes unconstitutional and to enjoin state officials from enforcing their convictions. On January 22, 1965, the state trial judge denied the motion to vacate the sentences, and the Lovings perfected an appeal to the Supreme Court of Appeals of Virginia. On February 11, 1965, the three-judge District Court continued the 1. Section 1 of the Fourteenth Amendment provides: All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Loving v. Commonwealth of Virginia 29 case to allow the Lovings to present their constitutional claims to the highest state court. T he Supreme Court of Appeals upheld the constitutionality of the antimiscegenation statutes and, after modifying the sentence, affirmed the convictions.2 T he Lovings appealed this decision, and we noted probable jurisdiction on December 12, 1966, 385 U.S. 986, 87 S.Ct. 595, 17 L.Ed.2d 448. T he two statutes under which appellants were convicted and sentenced are part of a comprehensive statutory scheme aimed at prohibiting and punishing interracial marriages. T he Lovings were convicted of violating § 20–58 of the Virginia Code: Leaving State to evade law.—If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in § 20–59, and the marriage shall be governed by the same law as if it had been solemnized in this State. T he fact of their cohabitation here as man and wife shall be evidence of their marriage. Section 20–59, which defines the penalty for miscegenation, provides: Punishment for marriage.—If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years. Other central provisions in the Virginia statutory scheme are § 20–57, which automatically voids all marriages between ‘‘a white person and a colored person’’ without any judicial proceeding,3 and §§ 20–54 and 1–14 which, respectively, define ‘‘white persons’’ and ‘‘colored persons and Indians’’ for purposes of the statutory prohibitions.4 T he Lovings have never disputed in the course of this 2. 206 Va. 924, 147 S.E.2d 78 (1966). 3. Section 20–57 of the Virginia Code provides: Marriages void without decree.—All marriages between a white person and a colored person shall be absolutely void without any decree of divorce or other legal process. (Va.Code Ann. § 20–57 [1960 Repl. Vol.].) 4. Section 20–54 of the Virginia Code provides: Intermarriage prohibited; meanings of term ‘‘White persons.’’—it shall hereafter be unlawful for any white person in this State to marry any save a white person, or a person with no other admixture of blood than white and American Indian. For the purpose of this chapter, the term ‘‘white person’’ shall apply only to such person as has no trace whatever of any blood other than Caucasian; but 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. All laws heretofore passed and now in effect regarding the intermarriage of white and colored persons shall apply to marriages prohibited by this chapter. (Va.Code Ann. § 20–54 [1960 Repl.Vol.].) T he exception for persons with less than one-sixteenth ‘‘of the blood of the American Indian’’ is apparently accounted for, in the words of a tract issued by the Registrar of the State Bureau of 30 Laws and Decisions litigation that Mrs. Loving is a ‘‘colored person’’ or that Mr. Loving is a ‘‘white person’’ within the meanings given those terms by the Virginia statutes. Virginia is now one of 16 States which prohibit and punish marriages on the basis of racial classifications.5 Penalties for miscegenation arose as an incident to slavery and have been common in Virginia since the colonial period.6 T he present statutory scheme dates from the adoption of the Racial Integrity Act of 1924, passed during the period of extreme nativism which followed the end of the First World War. T he central features of this Act, and current Virginia law, are the absolute prohibition of a ‘‘white person’’ marrying other than another ‘‘white person,’’7 a prohibition against issuing marriage licenses until the issuing official is satisfied that the applicants’ statements as to their race are correct,8 certificates of ‘‘racial composition’’ to be kept by both local and state registrars,9 and the carrying forward of earlier prohibitions against racial intermarriage.10 Vital Statistics, by ‘‘the desire of all to recognize as an integral and honored part of the white race the descendants of John Rolfe and Pocahontas * * *.’’ Plecker, T he New Family and Race Improvement, 17 Va.Health Bull., Extra No. 12, at 25–26 (New Family Series No. 5, 1925), cited in Wadlington, T he Loving Case; Virginia’s Anti-Miscegenation Statute in Historical Perspective, 52 Va.L.Rev. 1189, 1202, n. 93 (1966). Section 1–14 of the Virginia Code provides: Colored persons and Indians defined.—Every person in whom there is ascertainable any Negro blood shall be deemed and taken to be a colored person, and every person not a colored person having one fourth or more of American Indian blood shall be deemed an American Indian; except that members of Indian tribes existing in this Commonwealth having one fourth or more of Indian blood and less than one sixteenth of Negro blood shall be deemed tribal Indians. (Va.Code Ann. § 1–14 [1960 Repl.Vol.].) 5. After the initiation of this litigation, Maryland repealed its prohibitions against interracial marriage, Md.Laws 1967, c. 6, leaving Virginia and 15 other States with statutes outlawing interracial marriage: Alabama, Ala.Const., Art. 4, § 102, Ala.Code, T it. 14, § 360 (1958) ; Arkansas, Ark.Stat.Ann. § 55–104 (1947) ; Delaware, Del.Code Ann., T it. 13, § 101 (1953); Florida, Fla.Const., Art. 16, § 24, F.S.A., Fla.Stat. § 741.11 (1965) F.S.A.; Georgia, Ga.Code Ann. § 53– 106 (1961) ; Kentucky, Ky.Rev.Stat. Ann. § 402.020 (Supp.1966) ; Louisiana, La.Rev.Stat. § 14: 79 (1950) ; Mississippi, Miss.Const., Art. 14, § 263, Miss.Code Ann. § 459 (1956) ; Missouri, Mo. Rev.Stat. § 451.020 (Supp.1966), V.A. M.S.; North Carolina, N.C.Const., Art. XIV, § 8, N.C.Gen.Stat. § 14–181 (1953); Oklahoma, Okla.Stat., T it. 43, § 12 (Supp. 1965); South Carolina, S.C.Const., Art. 3, § 33, S.C.Code Ann. § 20–7 (1962) ; T ennessee, T enn.Const., Art. 11, § 14, T enn.Code Ann. § 36–402 (1955) ; Vernon’s Ann.T exas, T ex.Pen.Code, Art. 492 (1952) ; West Virginia, W.Va.Code Ann. § 4697 (1961). Over the past 15 years, 14 States have repealed laws outlawing interracial marriages: Arizona, California, Colorado, Idaho, Indiana, Maryland, Montana, Nebraska, Nevada, North Dakota, Oregon, South Dakota, Utah, and Wyoming. T he first state court to recognize that miscegenation statutes violate the Equal Protection Clause was the Supreme Court of California. Perez v. Sharp, 32 Cal.2d 711, 198 P.2d 17 (1948). 6. For a historical discussion of Virginia’s miscegenation statutes, see Wadlington, supra, n. 4. 7. Va.Code Ann. § 20–54 (1960 Repl.Vol.). 8. Va.Code Ann. § 20–53 (1960 Repl.Vol.). 9. Va.Code Ann. § 20–50 (1960 Repl.Vol.). 10. Va.Code Ann. § 20–54 (1960 Repl.Vol.). Loving v. Commonwealth of Virginia 31 I In upholding the constitutionality of these provisions in the decision below, the Supreme Court of Appeals of Virginia referred to its 1955 decision in Naim v. Naim, 197 Va. 80, 87 S.E.2d 749, as stating the reasons supporting the validity of these laws. In N aim, the state court concluded that the State’s legitimate purposes were ‘‘to preserve the racial integrity of its citizens,’’ and to prevent ‘‘the corruption of blood,’’ ‘‘a mongrel breed of citizens,’’ and ‘‘the obliteration of racial pride,’’ obviously an endorsement of the doctrine of White Supremacy. Id., at 90, 87 S.E.2d, at 756. T he court also reasoned that marriage has traditionally been subject to state regulation without federal intervention, and, consequently, the regulation of marriage should be left to exclusive state control by the T enth Amendment. [1, 2] While the state court is no doubt correct in asserting that marriage is a social relation subject to the State’s police power, Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654 (1888), the State does not contend in its argument before this Court that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment. Nor could it do so in light of Meyer v. State of Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), and Skinner v. State of Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). Instead, the State argues that the meaning of the Equal Protection Clause, as illuminated by the statements of the Framers, is only that state penal laws containing an interracial element as part of the definition of the offense must apply equally to whites and Negroes in the sense that members of each race are punished to the same degree. T hus, the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications do not constitute an invidious discrimination based upon race. T he second argument advanced by the State assumes the validity of its equal application theory. T he argument is that, if the Equal Protection Clause does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of constitutionality would thus become whether there was any rational basis for a State to treat interracial marriages differently from other marriages. On this question, the State argues, the scientific evidence is substantially in doubt and, consequently, this Court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages. [3, 4] Because we reject the notion that the mere ‘‘equal application’’ of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment’s proscription of all invidious racial discriminations, we do not accept the State’s contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose. T he mere fact of equal application does not mean that our analysis of these statutes should follow the approach we have taken in cases involving no racial discrimination where the Equal Protection Clause has been arrayed against a statute discriminating between the kinds of advertising which may be displayed on trucks in New York City, Railway Express Agency, Inc. v. People of State of New York, 336 32 Laws and Decisions U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949), or an exemption in Ohio’s ad valorem tax for merchandise owned by a non-resident in a storage warehouse, Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959). In these cases, involving distinctions not drawn according to race, the Court has merely asked whether there is any rational foundation for the discriminations, and has deferred to the wisdom of the state legislatures. In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race. T he State argues that statements in the T hirty-ninth Congress about the time of the passage of the Fourteenth Amendment indicate that the Framers did not intend the Amendment to make unconstitutional state miscegenation laws. Many of the statements alluded to by the State concern the debates over the Freedmen’s Bureau Bill, which President Johnson vetoed, and the Civil Rights Act of 1866, 14 Stat. 27, enacted over his veto. While these statements have some relevance to the intention of Congress in submitting the Fourteenth Amendment, it must be understood that they pertained to the passage of specific statutes and not to the broader, organic purpose of a constitutional amendment. As for the various statements directly concerning the Fourteenth Amendment, we have said in connection with a related problem, that although these historical sources ‘‘cast some light’’ they are not sufficient to resolve the problem; ‘‘[a]t best, they are inconclusive. T he most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among ‘all persons born or naturalized in the United States.’ T heir opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect.’’ Brown v. Board of Education of T opeka, 347 U.S. 483, 489, 74 S.Ct. 686, 689, 98 L.Ed. 873 (1954). See also Strauder v. State of West Virginia, 100 U.S. 303, 310, 25 L.Ed. 664 (1880). We have rejected the proposition that the debates in the T hirty-ninth Congress or in the state legislatures which ratified the Fourteenth Amendment supported the theory advanced by the State, that the requirement of equal protection of the laws is satisfied by penal laws defining offenses based on racial classifications so long as white and Negro participants in the offense were similarly punished. McLaughlin v. State of Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964). [5, 6] T he State finds support for its ‘‘equal application’’ theory in the decision of the Court in Pace v. State of Alabama, 106 U.S. 583, 1 S.Ct. 637, 27 L.Ed. 207 (1883). In that case, the Court upheld a conviction under an Alabama statute forbidding adultery or fornication between a white person and a Negro which imposed a greater penalty than that of a statute proscribing similar conduct by members of the same race. T he Court reasoned that the statute could not be said to discriminate against Negroes because the punishment for each participant in the offense was the same. However, as recently as the 1964 T erm, in rejecting the reasoning of that case, we stated ‘‘Pace represents a limited view of the Equal Protection Clause which has not withstood analysis in the subsequent decisions Loving v. Commonwealth of Virginia 33 of this Court.’’ McLaughlin v. Florida, supra, 379 U.S. at 188, 85 S.Ct. at 286. As we there demonstrated, the Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination. T he clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States. Slaughter-House Cases, 16 Wall. 36, 71, 21 L.Ed. 394 (1873); Strauder v. State of West Virginia, 100 U.S. 303, 307–308, 25 L.Ed. 664 (1880); Ex parte Virginia, 100 U.S. 339, 344–345, 25 L.Ed. 676 (1880); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948); Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). [7] T here can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race. T he statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated ‘‘[d]istinctions between citizens solely because of their ancestry’’ as being ‘‘odious to a free people whose institutions are founded upon the doctrine of equality.’’ Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774 (1943). At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the ‘‘most rigid scrutiny,’’ Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194 (1944), and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. Indeed, two members of this Court have already stated that they ‘‘cannot conceive of a valid legislative purpose . . . which makes the color of a person’s skin the test of whether his conduct is a criminal offense.’’ McLaughlin v. Florida, supra, 379 U.S. at 198, 85 S.Ct. at 292, (Stewart J., joined by Douglas, J., concurring). [8] T here is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. T he fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.11 We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. T here can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause. 11. Appellants point out that the State’s concern in these statutes, as expressed in the words of the 1924 Act’s title, ‘‘An Act to Preserve Racial Integrity,’’ extends only to the integrity of the white race. While Virginia prohibits whites from marrying any nonwhite (subject to the exception for the descendants of Pocahontas), Negroes, Orientals, and any other racial class may intermarry without statutory interference. Appellants contend that this distinction renders Virginia’s miscegenation statutes arbitrary and unreasonable even assuming the constitutional validity of an official purpose to preserve ‘‘racial integrity.’’ We need not reach this contention because we find the racial classifications in these statutes repugnant to the Fourteenth Amendment, even assuming an even-handed state purpose to protect the ‘‘integrity’’ of all races. 34 Laws and Decisions II [9] T hese statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. T he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. [10–12] Marriage is one of the ‘‘basic civil rights of man,’’ fundamental to our very existence and survival. Skinner v. State of Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942). See also Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654 (1888). T o deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. T he Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry or not marry, a person of another race resides with the individual and cannot be infringed by the State. T hese convictions must be reversed. It is so ordered. Reversed. Mr. Justice ST EWART , concurring. I have previously expressed the belief that ‘‘it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor.’’ McLaughlin v. State of Florida, 379 U.S. 184, 198, 85 S.Ct. 283, 292, 13 L.Ed.2d 222 (concurring opinion). Because I adhere to that belief, I concur in the judgment of the Court. ESSAYS What Is a White Man?* CH ARL ES W. CH ESN U T T T he fiat having gone forth from the wise men of the South that the ‘‘all-pervading, all-conquering Anglo-Saxon race’’ must continue forever to exercise exclusive control and direction of the government of this so-called Republic, it becomes important to every citizen who values his birthright to know who are included in this grandiloquent term. It is of course perfectly obvious that the writer or speaker who used this expression—perhaps Mr. Grady of Georgia—did not say what he meant. It is not probable that he meant to exclude from full citizenship the Celts and T eutons and Gauls and Slavs who make up so large a proportion of our population; he hardly meant to exclude the Jews, for even the most ardent fireeater would hardly venture to advocate the disfranchisement of the thrifty race whose mortgages cover so large a portion of Southern soil. What the eloquent gentleman really meant by this high-sounding phrase was simply the white race; and the substance of the argument of that school of Southern writers to which he belongs, is simply that for the good of the country the Negro should have no voice in directing the government or public policy of the Southern States or of the nation. But it is evident that where the intermingling of the races has made such progress as it has in this country, the line which separates the races must in many instances have been practically obliterated. And there has arisen in the United States a very large class of the population who are certainly not Negroes in an ethnological sense, and whose children will be no nearer Negroes than themselves. In view, therefore, of the very positive ground taken by the white leaders of the South, where most of these people reside, it becomes in the highest degree important to them to know what race they belong to. It ought to be also a matter of serious concern to the Southern white people; for if their zeal for good government is so great that they contemplate the practical overthrow of the Constitution and laws of the United States to secure it, they ought at least to be sure that no man entitled to it by their own argument, is robbed of a right so precious as that of free citizenship; the ‘‘all-pervading, all conquering Anglo-Saxon’’ ought to set as high a value on American citizenship as the all-conquering Roman placed upon the franchise of his State two thousand years ago. T his discussion would of course be of little interest to the genuine Negro, who is entirely outside of the charmed circle, and must content himself with the acquisition of wealth, the pursuit of learning and such other privileges as his ‘‘best friends’’ may find it * From Charles W. Chesnutt, ‘‘What Is a White Man?’’ The Independent 41. 2113 (May 30, 1889): 5–6 (693–694). 37 38 Chestnutt consistent with the welfare of the nation to allow him; but to every other good citizen the inquiry ought to be a momentous one, What is a white man? In spite of the virulence and universality of race prejudice in the United States, the human intellect long ago revolted at the manifest absurdity of classifying men fifteen-sixteenths white as black men; and hence there grew up a number of laws in different states of the Union defining the limit which separated the white and colored races, which was, when these laws took their rise and is now to a large extent, the line which separated freedom and opportunity from slavery or hopeless degradation. Some of these laws are of legislative origin; others are judge-made laws, brought out by the exigencies of special cases which came before the courts for determination. Some day they will, perhaps, become mere curiosities of jurisprudence; the ‘‘black laws’’ will be bracketed with the ‘‘blue laws,’’ and will be at best but landmarks by which to measure the progress of the nation. But today these laws are in active operation, and they are, therefore, worthy of attention; for every good citizen ought to know the law, and, if possible, to respect it; and if not worthy of respect, it should be changed by the authority which enacted it. Whether any of the laws referred to here have been in any manner changed by very recent legislation the writer cannot say, but they are certainly embodied in the latest editions of the revised statutes of the states referred to. T he colored people were divided, in most of the Southern States, into two classes, designated by law as Negroes and mulattoes respectively. T he term Negro was used in its ethnological sense, and needed no definition; but the term ‘‘mulatto’’ was held by legislative enactment to embrace all persons of color not Negroes. T he words ‘‘quadroon’’ and ‘‘mestizo’’ are employed in some of the law books, tho not defined; but the term ‘‘octoroon,’’ as indicating a person having one-eighth of Negro blood, is not used at all, so far as the writer has been able to observe. T he states vary slightly in regard to what constitutes a mulatto or person of color, and as to what proportion of white blood should be sufficient to remove the disability of color. As a general rule, less than one-fourth of Negro blood left the individual white—in theory; race questions being, however, regulated very differently in practice. In Missouri, by the code of 1855, still in operation, so far as not inconsistent with the Federal Constitution and laws, ‘‘any person other than a Negro, any one of whose grandmothers or grandfathers is or shall have been a Negro, tho all of his or her progenitors except those descended from the Negro may have been white persons, shall be deemed a mulatto.’’ T hus the colorline is drawn at one-fourth of Negro blood, and persons with only one-eighth are white. By the Mississippi code of 1880, the color-line is drawn at one-fourth of Negro blood, all persons having less being theoretically white. Under the code noir of Louisiana, the descendant of a white and a quadroon is white, thus drawing the line at one-eighth of Negro blood. T he code of 1876 abolished all distinctions of color; as to whether they have been re-enacted since the Republican Party went out of power in that state the writer is not informed. Jumping to the extreme North, persons are white within the meaning of the Constitution of Michigan who have less than one-fourth of Negro blood. What Is a White Man? 39 In Ohio the rule, as established by numerous decisions of the Supreme Court, was that a preponderance of white blood constituted a person a white man in the eye of the law, and entitled him to the exercise of all the civil rights of a white man. By a retrogressive step the color-line was extended in 1861 in the case of marriage, which by statute was forbidden between a person of pure white blood and one having a visible admixture of African blood. But by act of legislature, passed in the spring of 1887, all laws establishing or permitting distinctions of color were repealed. In many parts of the state these laws were always ignored, and they would doubtless have been repealed long ago but for the sentiment of the southern counties, separated only by the width of the Ohio River from a former slave-holding state. T here was a bill introduced in the legislature during the last session to re-enact the ‘‘black laws,’’ but it was hopelessly defeated; the member who introduced it evidently mistook his latitude; he ought to be a member of the Georgia legislature. But the state which, for several reasons, one might expect to have the strictest laws in regard to the relations of the races, has really the loosest. T wo extracts from decisions of the Supreme Court of South Carolina will make clear the law of that state in regard to the color-line. T he definition of the term mulatto, as understood in this state, seems to be vague, signifying generally a person of mixed white or European and Negro parentage, in whatever proportions the blood of the two races may be mingled in the individual. But it is not invariably applicable to every admixture of African blood with the European, nor is one having all the features of a white to be ranked with the degraded class designated by the laws of this state as persons of color, because of some remote taint of the Negro race. T he line of distinction, however, is not ascertained by any rule of law. . . . Juries would probably be justified in holding a person to be white in whom the admixture of African blood did not exceed the proportion of one-eighth. But it is in all cases a question for the jury, to be determined by them upon the evidence of features and complexion afforded by inspection, the evidence of reputation as to parentage, and the evidence of the rank and station in society occupied by the party. T he only rule which can be laid down by the courts is that where there is a distinct and visible admixture of Negro blood, the individual is to be denominated a mulatto or person of color. In a later case the court held: T he question whether persons are colored or white, where color or feature are doubtful, is for the jury to decide by reputation, by reception into society, and by their exercise of the privileges of the white man, as well as by admixture of blood. It is an interesting question why such should have been, and should still be, for that matter, the law of South Carolina, and why there should exist in that state a condition of public opinion which would accept such a law. Perhaps it may be attributed to the fact that the colored population of South Carolina always outnumbered the white population, and the eagerness of the latter to recruit their ranks was sufficient to overcome in some measure their prejudice against the Negro blood. It is certainly true that the color-line is, in practice as in law, more 40 Chestnutt loosely drawn in South Carolina than in any other Southern State, and that no inconsiderable element of the population of that state consists of these legal white persons, who were either born in the state; or, attracted thither by this feature of the laws, have come in from surrounding states, and, forsaking home and kindred, have taken their social position as white people. A reasonable degree of reticence in regard to one’s antecedents is, however, usual in such cases. Before the War the color-line, as fixed by law, regulated in theory the civil and political status of persons of color. What that status was, was expressed in the Dred Scott decision. But since the War, or rather since the enfranchisement of the colored people, these laws have been mainly confined—in theory, be it always remembered—to the regulation of the intercourse of the races in schools and in the marriage relation. T he extension of the color-line to places of public entertainment and resort, to inns and public highways, is in most states entirely a matter of custom. A colored man can sue in the courts of any Southern State for the violation of his common-law rights, and recover damages of say fifty cents without costs. A colored minister who sued a Baltimore steamboat company a few weeks ago for refusing him first-class accommodation, he having paid first-class fare, did not even meet with that measure of success: the learned judge, a Federal judge by the way, held that the plaintiff’s rights had been invaded, and that he had suffered humiliation at the hands of the defendant company, but that ‘‘the humiliation was not sufficient to entitle him to damages.’’ And the learned judge dismissed the action without costs to either party. Having thus ascertained what constitutes a white man, the good citizen may be curious to know what steps have been taken to preserve the purity of the white race, Nature, by some unaccountable oversight having to some extent neglected a matter so important to the future prosperity and progress of mankind. T he marriage laws referred to here are in active operation, and cases under them are by no means infrequent. Indeed, instead of being behind the age, the marriage laws in the Southern States are in advance of public opinion; for very rarely will a Southern community stop to figure on the pedigree of the contracting parties to a marriage where one is white and the other is known to have any strain of Negro blood. In Virginia, under the title ‘‘Offenses against Morality,’’ the law provides that ‘‘any white person who shall intermarry with a Negro shall be confined in jail not more than one year and fined not exceeding one hundred dollars.’’ In a marginal note on the statute-book, attention is called to the fact that ‘‘a similar penalty is not imposed on the Negro’’—a stretch of magnanimity to which the laws of other states are strangers. A person who performs the ceremony of marriage in such a case is fined two hundred dollars, one-half of which goes to the informer. In Maryland, a minister who performs the ceremony of marriage between a Negro and a white person is liable to a fine of one hundred dollars. In Mississippi, code of 1880, it is provided that ‘‘the marriage of a white person to a Negro or mulatto or person who shall have one-fourth or more of Negro blood, shall be unlawful’’; and as this prohibition does not seem sufficiently emphatic, it is further declared to be ‘‘incestuous and void,’’ and is punished by the What Is a White Man? 41 same penalty prescribed for marriage within the forbidden degrees of consanguinity. But it is Georgia, the alma genetrix of the chain-gang, which merits the questionable distinction of having the harshest set of color laws. By the law of Georgia the term ‘‘person of color’’ is defined to mean ‘‘all such as have an admixture of Negro blood, and the term ‘Negro,’ includes mulattoes.’’ T his definition is perhaps restricted somewhat by another provision, by which ‘‘all Negroes, mestizoes, and their descendants, having one-eighth of Negro or mulatto blood in their veins, shall be known in this State as persons of color.’’ A colored minister is permitted to perform the ceremony of marriage between colored persons only, the white ministers are not forbidden to join persons of color in wedlock. It is further provided that ‘‘the marriage relation between white persons and persons of African descent is forever prohibited, and such marriages shall be null and void.’’ T his is a very sweeping provision; it will be noticed that the term ‘‘persons of color,’’ previously defined, is not employed, the expression ‘‘persons of African descent’’ being used instead. A court which was so inclined would find no difficulty in extending this provision of the law to the remotest strain of African blood. T he marriage relation is forever prohibited. Forever is a long time. T here is a colored woman in Georgia said to be worth $300,000—an immense fortune in the poverty stricken South. With a few hundred such women in that state, possessing a fair degree of good looks, the color-line would shrivel up like a scroll in the heat of competition for their hands in marriage. T he penalty for the violation of the law against intermarriage is the same sought to be imposed by the defunct Glenn Bill for violation of its provisions; i.e., a fine not to exceed one thousand dollars, and imprisonment not to exceed six months, or twelve months in the chain-gang. Whatever the wisdom or justice of these laws, there is one objection to them which is not given sufficient prominence in the consideration of the subject, even where it is discussed at all; they make mixed blood a prima-facie proof of illegitimacy. It is a fact that at present, in the United States, a colored man or woman whose complexion is white or nearly white is presumed in the absence of any knowledge of his or her antecedents, to be the offspring of a union not sanctified by law. And by a curious but not uncommon process, such persons are not held in the same low estimation as white people in the same position. T he sins of their fathers are not visited upon the children, in that regard at least and their mothers’ lapses from virtue are regarded at least as misfortunes or as faults excusable under the circumstances. But in spite of all this, illegitimacy is not a desirable distinction, and is likely to become less so as these people of mixed blood advance in wealth and social standing. T his presumption of illegitimacy was once, perhaps, true of the majority of such persons; but the times have changed. More than half of the colored people of the United States are of mixed blood; they marry and are given in marriage, and they beget children of complexions similar to their own. Whether or not, therefore, laws which stamp these children as illegitimate, and which by indirection establish a lower standard of morality for a large part of the population than the remaining part is judged by, are wise laws; and whether or not the purity of the white race could not be as well preserved by the exercise of virtue, and 42 Woodson the operation of those natural laws which are so often quoted by Southern writers as the justification of all sorts of Southern ‘‘policies’’—are questions which the good citizen may at least turn over in his mind occasionally, pending the settlement of other complications which have grown out of the presence of the Negro on this continent. T he Beginnings of Miscegenation of the Whites and Blacks* CART ER G . WOOD SON Although science has uprooted the theory, a number of writers are loath to give up the contention that the white race is superior to others, as it is still hoped that the Caucasian race may be preserved in its purity, especially so far as it means miscegenation with the blacks. But there are others who express doubt that the integrity of the dominant race has been maintained.1 Scholars have for centuries differed as to the composition of the mixed breed stock constituting the Mediterranean race and especially about that in Egypt and the Barbary States. In that part of the dark continent many inhabitants have certain characteristics which are more Caucasian than negroid and have achieved more than investigators have been willing to consider the civilization of the Negro. It is clear, however, that although the people of northern Africa cannot be classed as Negroes, being bounded on the south by the masses of African blacks, they have so generally mixed their blood with that of the blacks that in many parts they are no nearer to any white stock than the Negroes of the United States. T his miscegenation, to be sure, increased toward the south into central Africa, but it has extended also to the north and east into Asia and Europe. T races of Negro blood have been found in the Malay States, India and Polynesia. In the Arabian Peninsula it has been so extensive as to constitute a large group there called the Arabised Negroes. But most significant of all has been the invasion of Europe by persons of African blood. Professor Sergi leads one to conclude that the ancient Pelasgii were of African origin or probably the descendants of the race which settled northern Africa and southern Europe, and are therefore due credit for the achievements of the early Greek and Italian civilizations.2 * From Carter G. Woodson, ‘‘T he Beginnings of Miscegenation of the Whites and Blacks.’’ The Journal of N egro History 3.4 (October 1918): 335–353. 1. MacDonald, Trade, Politics and Christianity in Africa and the East, chapter on inter-racial marriage, p. 239; and The Journal of N egro History, pp. 329, 334–344. 2. Report of First Race[s] Congress, 1911, p. 330 [probably G. Spiller, ed., Papers on Inter-Racial Problems Communicated to the First Universal Races Congress Held at the University of London, July 26– 29, 1911 (London: P. S. King & Son, 1911) —Ed.]; MacDonald, Trade, Politics, and Christianity, p. 235; and Contemporary Review, August, 1911. The Beginnings of Miscegenation 43 T here is much evidence of a further extension of this infusion in the Mediterranean world. ‘‘Recent discoveries made in the vicinity of the principality of Monaco and others in Italy and western France,’’ says MacDonald, ‘‘would seem to reveal . . . the actual fact that many thousand years ago a negroid race had penetrated through Italy into France, leaving traces at the present day in the physiognomy of the peoples of southern Italy, Sicily, Sardinia and western France, and even in the western parts of the United Kingdom of Great Britain and Ireland. T here are even at the present day some examples of the Keltiberian peoples of western Scotland, southern and western Wales, southern and western Ireland, of distinctly negroid aspect, and in whose ancestry there is no indication whatever of any connection with the West Indies or with Modern Africa. Still more marked is this feature in the peoples of southern and western France and of the other parts of the Mediterranean already mentioned.’’3 Because of the temperament of the Portugese this infusion of African blood was still more striking in their country. As the Portugese are a good-natured people void of race hate they did not dread the miscegenation of the races. One finds in southern Portugal a ‘‘strong Moorish, North African element’’ and also an ‘‘old intermixture with those Negroes who were imported thither from Northwest Africa to till the scantily populated southern provinces.’’4 T his miscegenation among the Portugese easily extended to the New World. T hen followed the story of the Caramarii, the descendants of the Portugese, who after being shipwrecked near Bahia arose to prominence among the T upinambo Indians and produced a clan of half-castes by taking to himself numerous native women.5 T his admixture served as a stepping stone to the assimilation of the Negroes when they came. T here immigrated later into Brazil other settlers who, mixing eagerly with the Amerindians, gave rise to a race called Mamelucos who began to mix maritally with the imported Negro women. T he French and Dutch too in caring for their offspring by native women promoted the same. ‘‘T hey educated them, set them free, lifted them above servitude, and raised them socially to the level of the whites’’6 so that today generally speaking there are no distinctions in society or politics in Brazil. Commenting on this condition in Brazil, Agassiz said: ‘‘T his hybrid class, although more marked here because the Indian is added, is very numerous in all cities; perhaps, the fact, so honorable to Brazil, that the free Negro has full access to all privileges of any free citizen, rather tends to increase than to diminish that number.’’ After emancipation in Brazil in 1888, the already marked tendency toward this fusion of the slave and the master classes gradually increased.7 3. 4. 5. 6. 7. Report of First Races Congress, 1911, p. 330. Johnston, The N egro in the N ew World, p. 98. Ibid., p. 78. Ibid., pp. 98–99. Authorities consider the Amerindians the most fecund stock in the country, especially when mixed with an effusion of white or black blood. Agassiz, A Journey in Brazil in 1868. 44 Woodson T he Spaniards mixed less freely with the Negroes than did the Portugese but mixed just the same. At first they seriously considered the inconveniences which might arise from miscegenation under frontier conditions and generally refrained from extensive intermingling. But men are but men and as Spanish women were far too few in the New World at that time, the other sex of their race soon yielded to the charms of women of African blood. T he rise of the mixed breeds too further facilitated the movement. Spaniards who refused to intermingle with the blacks found it convenient to approach the hybrids who showed less color. In the course of time, therefore, the assimilation of the blacks was as pronounced in some of the Spanish colonies as in those which originally exhibited less race antipathy. T here are millions of Hispanicized Negroes in Latin America. Many of the mixed breeds, however, have Indian rather than Negro blood.8 Miscegenation had its best chance among the French. Not being disinclined to mingle with Negroes, the French early faced the problem of the half caste, which was given consideration in the most human of all slave regulations, the Code N oir.9 It provided that free men who had children from their concubinage with womenslaves (if they consented to such concubinage) should be punished by a fine of two thousand pounds of sugar. But if the offender was the master himself, in addition to the fine, the slave should be taken from him, sold for the benefit of the hospital and never be allowed to be freed; excepting, that, if the man was not married to another person at the time of his concubinage, he was to marry the woman slave, who, together with her children, should thereby become free. Masters were forbidden to constrain slaves to marry against their will. Many Frenchmen like those in Haiti married their Negro mistresses, producing attractive half caste women who because of their wealth were sought by gentlemen in preference to their own women without dot. Among the English the situation was decidedly different. T here was not so much need for the use of Negro women by Englishmen in the New World, but there was the same tendency to cohabit with them. In the end, however, the English, unlike the Latins, disowned their offspring by slave women, leaving these children to follow the condition of their mother. T here was, therefore, not so much less miscegenation among the English but there remained the natural tendency so to denounce these unions as eventually to restrict the custom, as it is today, to the weaker types of both races, the offspring of whom in the case of slave mothers became a commodity in the commercial world. T here was extensive miscegenation in the English colonies, however, before the race as a majority could realize the apparent need for maintaining its integrity. With the development of the industries came the use of the white servants as well as the slaves. T he status of the one differed from that of the other in that the former at the expiration of his term of service could become free whereas the latter was doomed to servitude for life. In the absence of social distinctions between these two classes of laborers there arose considerable intermingling growing 8. Johnston, The N egro in the N ew World, p. 135. 9. Code N oir. The Beginnings of Miscegenation 45 out of a community of interests. In the colonies in which the laborers were largely of one class or the other not so much of this admixture was feared, but in the plantations having a considerable sprinkling of the two miscegenation usually ensued. T he following, therefore, was enacted in Maryland in 1661 as a response to the question of the council to the lower house as to what it intended should become of such free women of the English or other Christian nations as married Negroes or other slaves.10 T he preamble reads: ‘‘And forasmuch as divers freeborn English women, forgetful of their free condition, and to the disgrace of our nation, do intermarry with negro slaves,11 by which also divers suits may arise, touching the issue of such women, and a great damage doth befall the master of such negroes, for preservation whereof for deterring such free-born women from such shameful matches, be it enacted: T hat whatsoever free-born woman shall intermarry with any slave, from and after the last day of the present assembly, shall serve the master of such slave during the life of her husband; and that all the issues of such free-born women, so married, shall be slaves as their fathers were.’’ ‘‘And be it further enacted: T hat all the issues of English, or other free-born women, that have already married negroes, shall serve the master of their parents, till they be thirty years of age and no longer.’’12 According to A. J. Calhoun, however, all planters of Maryland did not manifest so much ire because of this custom among indentured servants. ‘‘Planters,’’ said he, ‘‘sometimes married white women servants to Negroes in order to transform the Negroes and their offspring into slaves.’’12a T his was in violation of the ancient unwritten law that the children of a free woman, the father being a slave, follow the status of their mother and are free. T he custom gave rise to an interesting case. ‘‘Irish Nell,’’ one of the servants brought to Maryland by Lord Baltimore, was sold by him to a planter when he returned to England. Following the custom of other masters who held white women as servants, he soon married her to a Negro named Butler to produce slaves. Upon hearing this, Baltimore used his influence to have the law repealed but the abrogation of it was construed by the Court of Appeals not to have any effect on the status of her offspring almost a century later when William and Mary Butler sued for their freedom on the ground that they descended from this white woman. T he Provincial Court had granted them freedom but in this decision the Court of Appeals reversed the lower tribunal on the ground that ‘‘Irish Nell’’ was a slave before the measure repealing the act had been passed. T his case came up again 1787 when Mary, the daughter of William and Mary Butler, petitioned the State for freedom. Both tribunals then decided to grant this petition.13 10. Brackett, The N egro in Maryland, pp. 32–33. 11. Benjamin Banneker’s mother was a white woman who married one of her own slaves. See T yson, Benjamin Banneker, p. 3. 12. Archives of Maryland, Proceedings of the General Assembly, 1637–1664, pp. 533–534. 12a. Calhoun, A Social History of the American Family, p. 94. 13. Harris and McHenry Reports, I, pp. 374, 376; II, pp. 26, 38, 214, 233. 46 Woodson T he act of repeal of 1681, therefore, is self explanatory. T he preamble reads: ‘‘Forasmuch as, divers free-born English, or white women, sometimes by the instigation, procurement or connivance of their masters, mistresses, or dames, and always to the satisfaction of their lascivious and lustful desires, and to the disgrace not only of the English, but also of many other Christian nations, do intermarry with Negroes and slaves, by which means, divers inconveniences, controversies, and suits may arise, touching the issue or children of such free-born women aforesaid; for the prevention whereof for the future, Be it enacted: T hat if the marriage of any woman-servant with any slave shall take place by the procurement of permission of the master, such woman and her issue shall be free.’’ It enacted a penalty by fine on the master or mistress and on the person joining the parties in marriage.14 T he effect of this law was merely to prevent masters from prostituting white women to an economic purpose. It did not prevent the miscegenation of the two races. McCormac says: ‘‘Mingling of the races in Maryland continued during the eighteenth century, in spite of all laws against it. Preventing marriages of white servants with slaves only led to a greater social evil, which caused a reaction of public sentiment against the servant. Masters and society in general were burdened with the care of illegitimate mulatto children, and it became necessary to frame laws compelling the guilty parties to reimburse the masters for the maintenance of these unfortunate waifs.’’15 T o remedy this laws were passed in 1715 and 1717 to reduce to the status of a servant for seven years any white man or white woman who cohabited with any Negro, free or slave. T heir children were made servants for thirty-one years, a black thus concerned was reduced to slavery for life and the maintenance of the bastard children of women servants was made incumbent upon masters. If the father of an illegitimate child could be discovered, he would have to support his offspring. If not this duty fell upon the mother who had to discharge it by servitude or otherwise.16 As what had been done to prevent the admixture was not sufficient, the Maryland General Assembly took the following action in 1728: Whereas by the act of assembly relating to servants and slaves, there is no provision made for the punishment of free mulatto women, having bastard children by negroes and other slaves, nor is there any provision made in the said act for the punishment of free negro women, having bastard children by white men; and forasmuch as such copulations are as unnatural and inordinate as between white women and negro men, or other slaves. Be it enacted, T hat from and after the end of this present session of assembly, that all such free mulatto women, having bastard children, either within or after the time of their service, (and their issue,) shall be subject to the same penalties that white women and their issue are, for having mulatto bastards, by the act, entitled, An act relating to servants and slaves. 14. Hurd, Law of Freedom and Bondage, VI, pp. 249–250. 15. McCormac, White Servitude in Maryland, p. 70. 16. Act of Assembly, Oct., 1727. The Beginnings of Miscegenation 47 And be it further enacted, by the authority aforesaid, by and with the advice and consent aforesaid, T hat from and after the end of this present session of assembly, that all free negro women, having bastard children by white men, (and their issue,) shall be subject to the same penalties that white women are, by the act aforesaid, for having bastards by negro men.17 Virginia which faced the same problem did not lag far behind Maryland. In 1630 the Governor and Council in Court ordered Hugh Davis to be soundly whipped before an assembly of Negroes and others for abusing himself to the dishonor of God and shame of a Christian by defiling his body in lying with a Negro, which he was to acknowledge next Sabbath day. In 1662 the colony imposed double fines for fornication with a Negro, but did not restrict intermarriage until 1691.18 T he words of the preamble give the reasons for this action. It says: 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 other white women, as by their unlawful accompanying with one another, Be it enacted by the authoritie aforesaid, and it is hereby enacted, T hat for the time to come, whatsoever English or other 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 perticular care, that this act be put in effectuall execution. If any free English woman should have a bastard child by any Negro or mulatto, she should pay the sum of fifteen pounds sterling, within one month after such bastard child should be born, to the church wardens of the parish where she should be delivered of such child, and in default of such payment she should be taken into the possession of the said church wardens and disposed of for five years, and such bastard child should be bound out as a servant by the church wardens until he or she should attain the age of thirty years, and in case such English woman that should have such bastard child be a servant, she should be sold by the church wardens (after her time is expired that she ought by law to serve her master) for five years, and the money she should be sold for divided as before appointed, and the child should serve as aforesaid.19 It was further provided in 1753 that if any woman servant should have a bastard child by a Negro or mulatto, over and above the year’s service due to her master or owner, she should immediately upon the expiration of her time, to her then present master, or owner, pay down to the church wardens of the parish wherein such child should be born for the use of the said parish, fifteen pounds current money of Virginia, or be sold for five years to the use aforesaid; and if a free Christian white woman should have such bastard child by a Negro, or mulatto, 17. Dorsey, The General Public Statutory Law and Public Local Law of State of Maryland, from 1692– 1839, p. 79. 18. Ballagh, White Servitude in the Colony of Virginia, pp. 72, 73. 19. Hening, The Statutes at Large, I, pp. 146, 552. II, 170; III, pp. 86–88, 252. 48 Woodson for every such offence, she should within one month after her delivery of such bastard child, pay to the church wardens for the time being, of the parish wherein such child should be born, for the use of the said parish, fifteen pounds current money of Virginia, or be by them sold for five years to the use aforesaid; and in both the said cases, the church wardens should bind the said child to be a servant until it should be of thirty-one years of age. And for a further prevention of that ‘‘abominable mixture, and the spurious issue, which may hereafter increase in this his majesty’s colony and dominion as well by English, and other white men and women, intermarrying with Negroes or mulattoes, as by their unlawful coition with them’’ it was enacted that whatsoever English, or other white man or woman, being free, should intermarry with a Negro, or mulatto man or woman bond or free, should by judgment of the county court, be committed to prison and there remain during the space of six months, without bail or main-prize, and should forfeit and pay ten pounds current money of Virginia, to the use of the parish as aforesaid. It was further enacted that no minister of the Church of England, or other minister or person whatsoever, within that colony and dominion, should thereafter presume to marry a white man with a Negro, or mulatto woman, or to marry a white woman with a Negro or mulatto man, upon pain of forfeiting and paying for every such marriage, the sum of ten thousand pounds of tobacco.20 It developed later that these laws did not meet all requirements, for there were in subsequent years so many illegitimate children born of such mothers that they became a public charge.21 T hose of Negro blood were bound out by law. According to Russell, ‘‘In 1727 it was ordered that David James a free negro boy, be bound to Mr. James Isdel ‘who is to teach him to read ye bible distinctly also ye trade of a gunsmith that he carry him to ye Clark’s office & take Indenture to that purpose.’ By the Warwick County court it was ‘ordered that Malacai, a mulatto boy, son of mulatto Betty be, by the Church Wardens of this Parish bound to T homas Hobday to learn the art of a planter according to law.’ By order of the Norfolk County court, about 1770, a free negro was bound out ‘to learn the trade of a tanner.’ ’’22 In making more stringent regulations for servants and slaves, North Carolina provided in 1715 that if a white servant woman had a child by a Negro, mulatto or Indian, she must serve her master two years extra and should pay to the Church wardens immediately on the expiration of that time six pounds for the use of the parish or be sold four years for the use aforesaid.23 A clergyman found guilty of officiating at such a marriage should be fined fifty pounds. T his law, according to Bassett, did not succeed in preventing such unions. T wo ministers were indicted within two years for performing such a marriage ceremony. ‘‘In one case the suit was dropped, in the other case the clergyman went before the Chief 20. 21. 22. 23. Hening, Statutes at Large, VI, pp. 360–362. Meade, Old Churches and Families of Virginia, I, p. 366. Russell, Free N egro in Virginia, pp. 138–139. Bassett, Slavery and Servitude in N orth Carolina, p. 83. The Beginnings of Miscegenation 49 Justice and confessed as it seems of his own accord. . . . In 1727 a white woman was indicted in the General Court because she had left her husband and was cohabiting with a negro slave. . . . So far as general looseness was concerned this law of 1715 had no force. Brickell, who was a physician, says that white men of the colony suffered a great deal from a malignant kind of venereal disease which they took from the slaves.’’24 By the law of 1741 therefore the colony endeavored to prevent what the General Assembly called ‘‘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.’’ It was enacted that if any man or woman, being free, should 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 should, by judgment of the county court forfeit and pay the sum of fifty pounds, proclamation money, to the use of the parish.25 It was also provided that if any white servant woman should during the time of her servitude, be delivered of a child, begotten by any Negro, mulatto or Indian, such servant, over and above the time she was by this act to serve her master or owner for such offence, should be sold by the Church wardens of the parish, for two years, after the time by indenture or otherwise had expired.26 T he miscegenation of the whites and blacks extended so widely that it became a matter of concern to the colonies farther north where the Negro population was not considerable. Seeking also to prevent this ‘‘spurious mixt issue’’ Massachusetts enacted in 1705 that a Negro or mulatto man committing fornication with an ‘‘English woman, or a woman of any other Christian nation,’’ should be sold out of the province. ‘‘An English man, or man of any other Christian nation committing fornication with a Negro or mulatto woman,’’ should be whipped, and the woman sold out of the province. None of her Majesty’s English or Scottish subjects, nor of any other Christian nation within that province should contract matrimony with any Negro or mulatto, under a penalty imposed on the person joining them in marriage. No master should unreasonably deny marriage to his Negro with one of the same nation; any law, usage or custom to the contrary notwithstanding.27 T here was much social contact between the white servants and the Negroes in Pennsylvania, where the number of the latter greatly increased during the first quarter of the nineteenth century. T urner says a white servant was indicted for this offence in Sussex County in 1677 and a tract of land there bore the name of ‘‘Mulatto Hall.’’28 According to the same writer Chester County seemed to have a large number of these cases and laid down the principle that such admixture should be prohibited, 24. Ibid., pp. 58–59. See also N atural History of N orth Carolina, p. 48; and Hawk’s History of N orth Carolina, II, pp. 126–127. 25. Potter, Revised Laws of N orth Carolina, I., p. 130. 26. Ibid., I, p. 157. 27. Massachusetts Charters, etc., p. 747; Hurd, Law of Freedom and Bondage, VI, p. 262. 28. T urner, The N egro in Pennsylvania, pp. 29–30. 50 Woodson ‘‘For that hee,’’ referring to a white man, ‘‘Contrary to his Masters Consent hath . . . got wth child a certaine molato wooman Called Swart anna.’’ ‘‘David Lewis Constable of Haverford Returned a Negro man of his And a white woman for having a Bastard Childe . . . the Negroe said she Intised him and promised him to marry him: she being examined, Confest the same: the Court ordered that she shall receive T wenty one lashes on her bare Backe . . . and the Court ordered the negroe never more to meddle with any white woman more uppon paine of his life.’’29 Advertising for Richard Molson in Philadelphia in 1720, his master said, ‘‘He is in company with a white woman named Mary, who is supposed now goes for his wife’’; ‘‘and a white man named Garrett Choise, and Jane his wife, which said white people are servants to some neighbors of the said Richard T ilghman.’’30 In 1722 a woman was punished for abetting a clandestine marriage between a white woman and a Negro. In the Pennsylvania Gazette, June 1, 1749, appeared the notice of the departure of Isaac Cromwell, a mulatto, who ran away with an English servant woman named Anne Greene.31 T he Assembly, therefore, upon a petition from inhabitants inveighing against this custom enacted a prohibitory law in 1725. T his law provided that no minister, pastor or magistrate or other person whatsover who according to the laws of that province usually joined people in marriage should upon any pretence whatever join in marriage any Negro with any white person on the penalty of one hundred pounds. And it was further enacted that if any white man or woman should cohabit or dwell with any Negro under pretense of being married, such white man or woman should be put out of service as above directed until they come to the age of thirty-one years; and if any free Negro man or woman should intermarry with a white man or woman, such Negro should become a slave during life to be sold by order of the justice of the quarter sessions of the respective county; and if any free Negro man or woman should commit fornication or adultery with any white man or woman, such Negro or Negroes should be sold as a servant for seven years and the white man or woman should be punished as the law directs in cases of adultery or fornication.32 T his law seemed to have very little effect on the miscegenation of the races in certain parts. In Chester County, according to the records of 1780, mulattoes constituted one fifth of the Negro population.33 Furthermore, that very year when the State of Pennsylvania had grown sufficiently liberal to provide for gradual emancipation the law against the mingling of the races was repealed. Mixed marriages thereafter became common as the white and the blacks in the light of the American Revolution realized liberty in its full meaning. T homas Branagan said: T here are many, very many blacks who . . . begin to feel themselves consequential, . . . will not be satisfied unless they get white women for wives, and are 29. 30. 31. 32. 33. Ibid., p. 30. The American Weekly Mercury (Philadelphia), August 20, 1720. The Pennsylvania Gazette, June 1, 1749. Statutes at Large, IV, p. 62. T urner, The N egro in Pennsylvania, p. 31. The Beginnings of Miscegenation 51 likewise exceedingly impertinent to white people in low circumstances. . . . I solemnly swear, I have seen more white women married to, and deluded through the arts of seduction by negroes in one year in Philadelphia, than for eight years I was visiting (West Indies and the Southern States). I know a black man who seduced a young white girl . . . who soon after married him, and died with a broken heart. On her death he said that he would not disgrace himself to have a negro wife and acted accordingly, for he soon after married a white woman. . . . T here are perhaps hundreds of white women thus fascinated by black men in this city, and there are thousands of black children by them at present.34 A reaction thereafter set in against this custom during the first decade of the nineteenth century, when fugitives in the rough were rushing to that State, and culminated in an actual campaign against it by 1820. T hat year a petition from Greene County said that many Negroes had settled in Pennsylvania and had been able to seduce into marriage ‘‘the minor children of the white inhabitants.’’35 T his county, therefore, asked that these marriages be made an offence against the laws of the State. Such a marriage was the cause of a riot in Columbia in 1834 and in 1838 the members of the Constitutional Convention engaged in a heated discussion of the custom.36 Petitions were frequently sent to the legislature asking that this admixture be penalized by law, but no such action was ever taken. Relying upon public opinion, however, the advocates of racial integrity practically succeeded. Marriages of whites and blacks eventually became so odious that they led to disturbances as in the case of the riot of 1849, one of the causes of which was that a white man was living with a Negro wife.37 T his was almost ineffective, however, in the prevention of race admixture. Clandestine intermingling went on and tended to increase in enormous proportions. T he conclusive proof of this is that in 1860 mulattoes constituted one third of the Negro population of Pennsylvania. Persons who professed seriously to consider the future of slavery, therefore, saw that miscegenation and especially the general connection of white men with their female slaves introduced a mulatto race whose numbers would become dangerous, if the affections of their white parents were permitted to render them free.38 T he Americans of the future would thereby become a race of mixed breeds rather than a white and a black population. As the lust of white persons for those of color was too strong to prevent this miscegenation, the liberty of emancipating their mulatto offspring was restricted in the slave States but that of selling them remained.39 T hese laws eventually, therefore, had their desired effect. T hey were never intended to prevent the miscegenation of the races but to debase to a still lower 34. Branagan, Serious Remonstrances, pp. 68, 69, 70, 71, 73, 74, 75, 102; Somerset Whig, March 12, 1818, and Union Times, August 15, 1834. 35. Journal of Senate, 1820–1821, p. 213; and American Daily Advertiser, January 23, 1821. 36. Proceedings and Debates of the Convention of 1838, X, p. 230. 37. The Spirit of the Times, October 10, 11, 12, 13, 17, 19, 1849. 38. Harriet Martineau, Views of Slavery and Emancipation, p. 10. 39. Hart, Slavery and Abolition, p. 182; Censuses of the United States. 52 Woodson status the offspring of the blacks who in spite of public opinion might intermarry with the poor white women and to leave women of color without protection against white men, who might use them for convenience, whereas white women and black men would gradually grow separate and distinct in their social relations. Although thereafter the offspring of blacks and whites did not diminish, instead of being gradually assimilated to the type of the Caucasian they tended to constitute a peculiar class commonly called people of color having a higher social status than that of the blacks but finally classified with all other persons of African blood as Negroes. While it later became a capital offence in some of the slave States for a Negro man to cohabit with a white woman, Abdy who toured this country from 1833 to 1834 doubted that such laws were enforced. ‘‘A man,’’ said he, ‘‘was hanged not long ago for this crime at New Orleans. T he partner of his guilt—his master’s daughter—endeavored to save his life, by avowing that she alone was to blame. She died shortly after his execution.’’40 With the white man and the Negro woman the situation was different. A sister of President Madison once said to the Reverend George Bourne, then a Presbyterian minister in Virginia: ‘‘We Southern ladies are complimented with the name of wives; but we are only the mistresses of seraglios.’’ T he masters of the female slaves, however, were not always the only persons of loose morals. Many women of color were also prostituted to the purposes of young white men41 and overseers.42 Goodell reports a well-authenticated account of a respectable Christian lady at the South who kept a handsome mulatto female for the use of her genteel son, as a method of deterring him, as she said, ‘‘from indiscriminate and vulgar indulgences.’’43 Harriet Martineau discovered a young white man who on visiting a southern lady became insanely enamored of her intelligent quadroon maid. He sought to purchase her but the owner refused to sell the slave because of her unusual worth. T he young white man persisted in trying to effect this purchase and finally informed her owner that he could not live without this attractive slave. T hereupon the white lady sold the woman of color to satisfy the lust of her friend.44 T he accomplishment of this task of reducing the free people of color to the status of the blacks, however, was not easy. In the first place, so many persons of color had risen to positions of usefulness among progressive people and had formed connections with them that an abrupt separation was both inexpedient and undesirable. Exceptions to the hard and fast rules of caste were often made to relieve the people of color. Moreover, the miscegenation of the races in the South and especially in large cities like Charleston and New Orleans had gone to the extent that from these centers eventually went, as they do now, a large 40. Abdy, N orth America, I, p. 160. 41. Child, Anti-slavery Catechism, p. 17; 2 Howard Mississippi Reports, p. 837. 42. Kemble, Georgian Plantation, pp. 140, 162, 199, 208–210; Olmstead, Seaboard States, pp. 599– 600; Rhodes, United States, I, pp. 341–343. 43. Goodell, Slave Code, pp. 111–112. 44. Harriet Martineau, Views of Slavery and Emancipation, p. 13. The Beginnings of Miscegenation 53 number of quadroons and octoroons,45 who elsewhere crossed over to the other race. White men ashamed of the planters who abused helpless black women are now trying to minimize the prevalence of this custom. Such an effort, however, means little in the face of the facts that one seventh of the Negroes in the United States had in their veins any amount of Caucasian blood in 1860 and according to the last census more than one fifth of them have this infusion. Furthermore the testimony of travelers in this country during the slavery period support the contention that race admixture was common.46 So extensive did it become that the most prominent white men in the country did not escape. Benjamin Franklin seems to have made no secret of his associations with Negro women.47 Russell connects many of these cases with the master class in Virginia.48 T here are now in Washington Negroes who call themselves the descendants of two Virginians who attained the presidency of the United States. T he abolitionists made positive statements about the mulatto offspring of T homas Jefferson. Goodell lamented the fact that Jefferson in his will had to entreat the legislature of Virginia to confirm his bequest of freedom to his own reputed enslaved offspring that they might remain in the State of their nativity, where their families and connections were.49 Writing in 1845, the editor of the Cleveland American expressed regret that notwithstanding all the services and sacrifices of Jefferson in the establishment of the freedom of this country, his own son then living in Ohio was not allowed to vote or bear witness in a court of justice. T he editor of the Ohio Star said: ‘‘We are not sure whether this is intended as a statement of actual fact, or of what might possibly and naturally enough be true.’’ The Cincinnati Herald inquired: ‘‘Is this a fact? If so, it ought to be known. Perhaps ‘the Democracy’ might be induced to pass a special act in his favor.’’ The Cleveland American, therefore, added: ‘‘We are credibly informed that a natural son of Jefferson by the celebrated ‘Black Sal,’ a person of no little renown in the politics of 1800 and thereafter, is now living in a central county of Ohio. We shall endeavor to get at the truth of the matter and make public the result of our inquiries.’’50 45. Featherstonaugh, Excursion, p. 141; Buckingham, Slave States, I, p. 358. 46. Writing of conditions in this country prior to the American Revolution, Anne Grant found only two cases of miscegenation in Albany before this period but saw it well established later by the British soldiers. Johann Schoepf witnessed this situation in Charleston in 1784. J. P. Brissot saw this tendency toward miscegenation as a striking feature of society among the French in the Ohio Valley in 1788. T he Duke of Saxe-Weimar-Eisenach was very much impressed with the numerous quadroons and octoroons of New Orleans in 1825 and Charles Gayarre portrayed the same con´ ditions there in 1830. Fredrika Bremer frequently met with this class while touring the South in 1850. See Grant, Memoirs of an American Lady, p. 28; Schoepf, Travels in the Confederation, II, p. 382; Brissot, Travels, II, p. 61; Saxe-Weimar, Travels, II, p. 69; Grace King, N ew Orleans, pp. 346–349; Fredrika Bremer, Homes of the N ew World, I, pp. 325, 326, 382, 385. 47. Ibid., XXII, p. 98. 48. See Russell, Free N egro in Virginia, p. 127. 49. Goodell, Slave Code, p. 376. 50. The Liberator, December 19, 1845. 54 Zabel A later report of miscegenation of this kind was recorded by Jane Grey Swisshelm in her Half a Century, where she states that a daughter of President John T yler ‘‘ran away with the man she loved in order that she might be married, but for this they must reach foreign soil. A young lady of the White House could not marry the man of her choice in the United States. T he lovers were captured and she was brought to His Excellency, her father, who sold her to a slave-trader. From that Washington slave-pen she was taken to New Orleans by a man who expected to get twenty-five hundred dollars for her on account of her great beauty.’’51 Interracial Marriage and the Law* WIL L IAM D . ZABEL In the past decade, the law and the Supreme Court have done a great deal to ensure the equality of all races and to guarantee equal civil rights. But in the area of interracial marriage, the statutes of nineteen states continue to deny the individual the freedom to marry the person of his choice. The vagaries of these statutes and the failure of the Supreme Court to act are here set forth by William D. Zabel, a practicing lawyer in N ew Y ork. When a reporter asked former President Harry S. T ruman if interracial marriage—miscegenation—would become widespread in the United States, Mr. T ruman said, ‘‘I hope not; I don’t believe in it.’’ T hen Mr. T ruman asked the reporter that hackneyed question often spouted at anyone advocating racial integration, ‘‘Would you want your daughter to marry a Negro?’’ T he reporter responded that he wanted his daughter to marry the man she loved whoever he might be. ‘‘Well, she won’t love someone who isn’t her color,’’ the former President continued, and, as if he had not said enough, added that racial intermarriage ran counter to the teachings of the Bible. T he question of miscegenation can make a man like T ruman, whose past support of integration in other respects is not open to question, appear unthinking if not bigoted. T he fact of interracial marriage can cause a young Radcliffeeducated ‘‘liberal’’ to refuse to attend the wedding of her only brother, or a civilized, intelligent judge to disown and never again speak to his daughter. How many persons are repelled or at least disconcerted at the mere sight of a Negrowhite couple? Perhaps their number tells us how far we are from achieving an integrated society. 51. Swisshelm, Half a Century, p. 129. * From William D. Zabel, ‘‘Interracial Marriage and the Law.’’ Atlantic Monthly (October 1965): 75– 79. Interracial Marriage and the Law 55 If usually tolerant and rational persons can react this way, it is not surprising that many experts consider the fear of miscegenation the strongest reason for the desire of whites to keep the Negro permanently segregated. Next in importance in the ‘‘white man’s rank order of discrimination,’’ according to Gunnar Myrdal in his classic study, An American Dilemma, are other social conventions, the use of public facilities, political franchise, legal equality, and employment. On the other hand, the social and legal barriers to miscegenation rank at the bottom of the Negro’s list of grievances; quite naturally, he is more concerned with obtaining a job, decent living accommodations, and an education than with marrying ‘‘your daughter.’’ A recent Ford Foundation study of more than seven hundred Negro families in Chicago concluded: ‘‘T here is no evidence of a desire for miscegenation, or even interest in promoting it, except among a tiny minority.’’ Even though the Negro has finally attained equality under the law in most areas of American life, a Negro and a white still cannot marry in nineteen states having antimiscegenation statutes—mostly Southern and ‘‘border’’ states, but also including Indiana and Wyoming. No other civilized country has such laws except the Union of South Africa. T he United States Supreme Court has never ruled on the constitutionality of these statutes. In 1954, a few months after its historic decision prohibiting segregation in public schools, the Court refused to review the case of Linnie Jackson, a Negro woman who had been convicted under the Alabama miscegenation statute. Later, in 1956, the Court again avoided the issue, dismissing an appeal in a miscegenation case from Virginia. T his dismissal was termed ‘‘wholly without basis in law’’ by a leading authority on constitutional law, Professor Herbert Wechsler of the Columbia Law School, because there was no appropriate legal reason for avoiding the decision. In December, 1964, the Court upset the conviction of Connie Hoffman, a white woman, and Dewey McLaughlin, a Spanish-speaking merchant seaman from British Honduras. T hey had violated a Florida criminal law punishing extramarital cohabitation only if the offending couple were a Negro and a white person. T he Court invalidated this statute as a denial of equal protection of the law guaranteed by the Fourteenth Amendment but refused to express ‘‘any views about [Florida’s] prohibition of interracial marriage.’’ T he Court may again be confronted with this question in a case instituted by a white construction worker and his part-Negro wife, Richard and Mildred Loving. T hey are seeking to have the Virginia miscegenation law declared unconstitutional so that they and their three children may reside in the state from which they have been banished. T he Lovings have no connection with the civil rights movement and are not represented by attorneys of a Negro civil rights organization. Both had spent all their lives in Caroline County, Virginia, south of Fredericksburg. T hey were married in Washington, D.C., in 1958 and returned to Virginia. Five weeks later, they were charged with the crime of marrying each other, and because of this crime were convicted and sentenced to one year in prison. But Virginia County Circuit Judge Leon M. Bazlie suspended the sentences and provided instead that the Lovings leave Virginia ‘‘at once and do not return together or at the same time’’ for twenty-five years. 56 Zabel Should the Supreme Court avoid deciding this question because Negroes as a group are not concerned with it and because a decision of unconstitutionality might harm the civil rights movement? Before concluding that such a decision ought to be avoided if possible, or alternatively, how the question ought to be decided, we should consider the history and content of the miscegenation laws. T he use of laws to ban marriages between persons of different races developed primarily in this country as an outgrowth peculiar to our institution of slavery. Neither the common law of England nor its statutes provide precedents for America’s miscegenation laws. A Maryland statute of 1661 is generally considered the first miscegenation law in America, even though it did not prohibit interracial marriage and was motivated not by a theory of racial superiority, but by economic considerations. Socioeconomic conditions in the colonial period encouraged racial mingling. T here was a severe shortage of Negro women in the colonies, and to a lesser extent, of white men of the same social class as the white female indentured servants. T here indentured servants and Negro slaves, who often worked together in the fields and lived near each other in similar tenant huts, intermixed and intermarried. By the general custom of the time, a child of such a marriage would be a freeman because he acquired the status of his mother. ‘‘And forasmuch as divers freeborn English women . . . do intermarry with negro slaves’’ by which ‘‘a great damage doth befall the master of such negroes,’’ the Maryland statute was passed to stop such marriages by making the female miscegenator a slave for the lifetime of her husband and all children of such marriages ‘‘slaves as their fathers were.’’ According to some historians, after this law was passed, plantation owners encouraged or forced white women, usually indentured servants, to marry Negroes in order to increase the number of slaves. Lord Baltimore, shocked by this practice, had the law changed in 1681 to penalize any master encouraging an interracial marriage and to make such women and their issue free. Masters stopped encouraging these marriages, but they still occurred. And the children of the interracial couples were the financial burden of the masters during their minority because they were the legal children of male slaves. Such children were, however, freed upon reaching maturity. New laws became necessary to compel the servant girls to reimburse the masters for the cost of supporting these children. T hese laws did not achieve their purpose, and so, finally, all Negro-white marriages were prohibited. In 1691, Virginia passed a law prohibiting miscegenation to prevent ‘‘spurious issue.’’ Any white person marrying a Negro was to be banished from Virginia forever. Considering the banishment of the Lovings in 1959, Virginia’s policy has not changed much since 1691. Eventually, miscegenation laws were passed in nearly all the colonies, including Massachusetts in 1705, which also was one of the first states to repeal its law, in 1843. During the nineteenth century as many as thirty-eight states prohibited interracial marriages. In the period surrounding the Civil War, nine states repealed their statutes. But through the years, Southern states made their laws harsher, Georgia and Virginia going so far as to require all citizens to register and identify their Interracial Marriage and the Law 57 ‘‘race’’ although never establishing a practical means for enforcing the requirement. By 1951, there remained in effect twenty-nine miscegenation statutes. T en states since 1951 have repealed their statutes. Of these, most were Western states, such as South Dakota (1957), Colorado (1957), Nevada (1959), Nebraska (1963), and Utah (1963), acting at least partially in response to the Negro social revolution. All nineteen states with miscegenation laws prohibit Negro-white marriages. Other ‘‘races’’ which have been included in the various laws are Mongolians, Chinese, Japanese, Africans, Malayans, American Indians, Asiatic Indians, West Indians, mulattoes, Ethiopians, Hindus, Koreans, mestizos, and half-breeds. T he laws border on burlesque. T he Arizona law, repealed in 1962, at one time so defined a mulatto that he could not marry anyone, even another mulatto; then it was changed so that a mulatto could marry an Indian but could not marry a Negro, a Caucasian, or another mulatto. Who is a Negro under such laws? T here is no uniform definition, so it is difficult to know. T he different definitions create racial chameleons. One can be Negro in Georgia because he had a one-half Negro great-grandmother, and by crossing the border into Florida, become a white because Florida makes him a Negro only if he had a full Negro great-grandmother. T he most common definition uses an unscientific percentage-of-blood test usually classifying a Negro as ‘‘any person of one-eighth or more Negro blood.’’ If a blood test is to be used and one-eighth Negro blood, whatever that means, makes you Negro, why does not one-eighth white blood make you white? Alabama, Arkansas, Georgia, and Virginia make anyone a Negro who has any ascertainable trace of Negro blood. T he Delaware, Kentucky, Louisiana, West Virginia, and Wyoming laws provide no definition of a Negro, and T ennessee has two conflicting definitions. Oklahoma and T exas prohibit marriages between whites and Africans or descendants of Africans without defining an African. It should not be surprising that in the usual case a jury may decide that a person is a Negro from his appearance—a test authorized by statute in Missouri. Neither the statutes nor science provides a method to determine whether a person is one eighth Negro or one of the other statutory formulas of fractionalized racial membership. T erms such as ‘‘octaroons,’’ ‘‘quadroons,’’ and ‘‘half-breeds’’ are misleading except in a fictional or social sense. Genes are not transmitted in predetermined or culturally labeled quantities as the draftsmen of these statutes thought. Detailed genealogies might be used to try to make the statutory racial calculus workable. But even where genealogies are available, they may be unreliable or insufficiently informative on the racial composition of the greatgrandparent whose blood allegedly makes the accused a Negro. After all, from one third to three fourths of U.S. Negroes have some Caucasian ancestry. In short, the statutory definitions of Negro are sometimes contradictory, often nonexistent, and usually a combination of legal fiction and genetic nonsense nearly impossible to apply as a practical matter. None of the statutory definitions seems sufficiently precise to meet the constitutional requirement of due process which nullifies a criminal statute that is so vague that men of common intelligence must guess at its meaning and differ about its application. 58 Zabel And the penalties under these statutes can be quite severe—ten years imprisonment in Florida or North Carolina. Georgia, South Carolina, and other states impose criminal penalties upon anyone issuing a license to a miscegenetic couple or performing their marriage ceremony. Virginia levies a fine on anyone performing such a marriage ceremony ‘‘of which the informer shall have one half.’’ Because these laws make the proscribed marriages void, a spouse may be prevented from inheriting from his or her mate by other heirs who prove the forbidden interracial nature of the marriage; spouses have even lost the right to workmen’s compensation benefits otherwise payable. In many states, children of such marriages are declared illegitimate and are thereby prevented from inheriting under intestacy laws. Mississippi, not surpassed in its crusade to maintain segregation, has a unique law supplementing its ban on interracial marriage, making a crime the publication for ‘‘general information, arguments or suggestions in favor of social equality or of intermarriage between whites and Negroes,’’ and punishing the violator by imprisonment or fine or both. T his law could be invoked against me for writing this article, or the Atlantic Monthly for printing it. T he rule voiding miscegenetic marriages creates another disturbing problem. A mixed couple legally marries in a state where their marriage is valid, and later, quite innocently, enters a state with a miscegenation statute. T his couple would be subject to criminal prosecution for miscegenation, fornication, or cohabitation in the state which will not recognize the validity of their marriage even though it was valid where celebrated. Delaware, Louisiana, Mississippi, T ennessee, and T exas actually declare such marriages invalid by statute. Is it not alarming to know that in 1965 the new U.S. congresswoman from Hawaii, who is of Japanese descent, and her Caucasian husband could be criminally prosecuted under Virginia law if they were to reside there while Congress is in session? T hese laws are completely contrary to the undeniable trend in this country to ensure Negroes equality under the law. T hey continue to exist even though the Fourteenth Amendment was intended to eliminate racial discrimination fostered by state legislation. Yet, surprisingly, fifteen state supreme courts and several lower federal tribunals have upheld these laws. Only the Alabama Supreme Court in 1872 (which reversed itself in 1877) and the California Supreme Court in 1948 have declared miscegenation statutes unconstitutional. What are the legal issues? How does a state justify making a marriage between two competent, consenting adults a crime solely because one is Negro and the other white? Some decisions without any reasoning sanction the statutes simply by referring to ‘‘laws’’ of nature or of God which interdict amalgamation of the races. In an early decision, the Missouri Supreme Court approved a miscegenation law because of the ‘‘well authenticated fact’’ that the issue of miscegenetic marriages ‘‘cannot possibly have any progeny and such a fact sufficiently justifies those laws which forbid the intermarriage of blacks and whites. . . .’’ T his ‘‘fact’’ is pure fiction. Interracial Marriage and the Law 59 Other courts have reasoned that these laws do not discriminate by race because whites and Negroes are treated equally in that both races are prevented from intermarrying. T his so-called ‘‘equal application’’ theory is supported by reference to a now discredited 1883 decision by the U.S. Supreme Court affirming a conviction of a Negro man and white woman for fornication even though the penalty was more severe than for the commission of the same act by two whites or by two Negroes. But the decisive question is not whether different races, each considered as a group, are treated equally. Races do not marry, individuals do; and the Fourteenth Amendment protects the personal right of an individual to marry. When a Negro is denied the right, solely because he is a Negro, to marry a white woman who wishes to marry him, the law discriminates against him and denies him a fundamental right solely because of his race, just as it denies the same right to the white woman. Defenders of miscegenation laws maintain that the right to marry is subject to regulation by the state, and that the state has the power to ban miscegenetic marriages in order to prevent the violence and tension that will result from their legalization. Even if violence were certain to occur, this fact would not justify the statutes. No court should accept the reasoning that race tension can be eradicated by perpetuating by law the irrational prejudices that cause the tension. T his reasoning not only is circular but also suggests that local law officials are unwilling or unable to maintain order—clearly not a rational basis to support a law depriving persons of constitutional rights. In fact, racial violence is almost nonexistent in areas where miscegenation is common, as in Brazil and Hawaii. Virginia’s highest court, in sustaining a miscegenation statute in 1955, emphasized the state’s legislative purpose ‘‘to preserve the racial integrity of its citizens’’ and to prevent the creation of ‘‘a mongrel breed of citizens.’’ Assuming racial purity to be a legitimate purpose, the only race kept ‘‘pure’’ is the Caucasian, because these laws do not prohibit, for example, Negroes from marrying Mongolians. If racial purity is a desirable goal, then why are only Caucasians protected, and why should a ‘‘pure Negro’’ be allowed to marry a person who is seven eighths Caucasian and only one eighth Negro? T his occurs not from a lack of logic or from ignorance, but because these laws are designed to preserve the purity of the majority Caucasian race—which in itself is one aspect of their larger, unexpressed goal of preserving what many think of as our ‘‘white American culture.’’ Of course, the maintenance of racial purity is a meretricious basis for these laws. T here is no evidence to support the existence of so-called ‘‘pure’’ races. Even the idea of a pure race has been termed a subterfuge to cloak ignorance of the phenomenon of racial variation. Race mixture has occurred extensively throughout history. Often courts have accepted, either explicitly or implicitly, two erroneous assumptions in order to find a rational basis for the laws: (1) the white race will be harmed by intermixing because of its innate superiority over the Negro race and (2) the progeny of Negro-white marriages are inferior. T here is no scientific evidence to sustain the assumption that the white race is innately superior to the Negro race. One can still find ‘‘studies,’’ such as those 60 Zabel by Carleton Putnam in 1961 and W. C. George in 1962 (commissioned by the Alabama legislature), to support the theory of an inferior race. Most serious students of anthropology do not even consider this question a present problem for research, agreeing that the races of the world are essentially equal in native ability and capacity for civilization and that group differences are for the most part cultural and environmental, not hereditary. As for the progeny of racial intermixing, there is not a single anthropologist teaching at a major university in the United States who subscribes to the theory that Negro-white matings cause biologically deleterious results. On the contrary, some conclude that because of a certain hybrid vigor, interracial marriage may be desirable and the offspring superior, citing the Hawaiian population, among others, to support this view. In addition to their ‘‘scientific’’ arguments, defenders of the laws maintain that a state has an obligation to protect both the couples and their children from the psychological harm of social adjustments necessitated by miscegenation. Upholding the Louisiana miscegenation law in 1959, that state’s supreme court stressed, without citing factual or other authority, that a state could prohibit miscegenetic marriages to protect the children of such marriages from ‘‘a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.’’ (T he quoted language used by the Louisiana court, with, I think, a touch of sarcasm, was taken from the 1954 U.S. Supreme Court decision prohibiting segregation in public schools.) Even if one assumes there are findings of fact to support the legislature’s judgment that miscegenation will cause social harm, must the U.S. Supreme Court bow to its judgment? T he Court, consistent with its appropriate function in our political system, has developed a salutary presumption in favor of the constitutionality of state legislation. But if a law discriminates solely on the basis of race, then the Court considers the law constitutionally suspect and requires the state to justify the racial classification by some overriding legislative purpose. T here may yet be racial classifications which are constitutional, such as the use of different mortality tables for whites and Negroes or the keeping of racially segregated public records for statistical purposes. Nevertheless, the guarantee of equal protection of the laws must mean at the very least that there can be no valid legislative purpose for a state law which denies two competent, consenting adults the right to marry because of the color of their skins or the imagined racial composition of their blood. No legal scholar of note considers these laws constitutional nor thinks that a declaration of their unconstitutionality will require a new interpretation of the meaning of the Fourteenth Amendment. T oday interracial marriage is opposed because of social considerations by the majority of both Negroes and whites. Even those who approve in principle would find it difficult to advise their sons or daughters to enter into such a marriage knowing the unavoidable social problems which confront an interracial couple. However, the number of interracial marriages does seem to be increasing. Andrew D. Weinberger, a New York lawyer who has studied miscegenation, estimates that there are one million such couples in the country, including a large Representing Miscegenation Law 61 number of light-skinned Negroes who pass for white and whose marriages— estimated at 810,000—are not generally known as mixed marriages. He estimates known mixed marriages at 190,000. Neither their number nor the personal reasons for these interracial marriages may be significant. It may be significant that many leading Negroes in public life are partners in mixed marriages, including Edward W. Brooke, Republican Attorney General of Massachusetts, the highest Negro public officeholder in the United States, and James Farmer, national director of CORE. More mixed marriages will occur as integrated education spreads, and generally, these laws will be no obstacle. For example, after the disclosure of the marriage of Charlayne Hunter, the first Negro girl to enter and graduate from the University of Georgia, to a white Southerner and fellow student, they left Georgia and now reside in New York City. Although an argument can be made that the Supreme Court would make a serious error if it now struck down these laws, it misstates the question to ask whether a decision should be deferred because the issue is incendiary to some whites and insignificant to most Negroes. In their apparent lack of concern about the existence of these laws, Negro spokesmen may underestimate both their symbolic meaning and their psychological force in the states which have such laws. Consider the efforts in Alabama to remove Garth Williams’ book for children, The Rabbits’ Wedding, from the shelves of the public libraries because the picture of the two little rabbits who ‘‘were wed and lived together happily in the big forest; eating dandelions’’ indicated that one was white and the other black. White racists point to these laws to support their appeal to the ultimate superstition fostering racial prejudice—the myth that Negroes are innately inferior to whites— and to demonstrate that even the Supreme Court (by its silence) still deems the Negro inferior in his right to enter into the most private and personal of relationships. T here are no laws more symbolic of the Negro’s relegation to secondclass citizenship. T he fact that legislation cannot end prejudice does not mean that laws which foster it should continue to exist. T he elaborate legal structure of segregation has virtually collapsed with the exception of the miscegenation laws. Whether or not the Supreme Court was wise to avoid this question in 1954, it should now invalidate these laws. A free society cannot tolerate legalized racial prejudice, unsupported by reason or morals and capable of causing incalculable hurt to those designated inferior by law. Representing Miscegenation Law* EVA SAKS Blood kin to both ‘‘the Quadroon’’ in Uncle Tom’s Cabin (1850) and to The Quadroon (1856) by novelist and former slave overseer Mayne Reid, Dion Boucicault’s The Octoroon, or, Life in Louisiana (1859) descended on Broadway with some * From Eva Saks, ‘‘Representing Miscegenation Law.’’ Raritan 8.2 (fall 1988): 39–69. 62 Saks success. In Boucicault’s play on the Great White Way, the heroine Zoe, a Louisiana octoroon whose gentlemanly white father, Judge Peyton, had tried to adopt her and set her free, discovers upon his death that she is not a legal owner of her father’s plantation but instead is part of it, and is to be sold along with it to satisfy the debts of the estate. T hough Zoe looks white, she cannot marry her dashing cousin, young Master Peyton, because Louisiana miscegenation law makes a crime of the union of a white and an ‘‘octoroon.’’ Instead of becoming mistress of T errebonne plantation, the fair Zoe is auctioned off for twenty-five thousand dollars to the villainous Jacob M’Closky, who murders Judge Peyton’s favorite male slave and is photographed while doing so by a ‘‘good Indian,’’ who is falsely accused of the murder. Eventually, of course, money arrives from England to pay off the Peytons’ creditors, the murderer is identified when his photographed image turns up in the Indian’s satchel, and the plantation is saved—but not before Zoe takes poison, turns white, and dies. American Jurisprudence (1941) defines the crime of miscegenation as ‘‘intermarrying, cohabiting, or interbreeding of persons of different races.’’ In The Octoroon, it is miscegenation law that blocks Zoe’s escape from the status of property to the contract of marriage. T he octoroon’s oscillating identity between property owner and owned property dramatizes the chief tensions of American miscegenation law: the gap between social and legal definitions of race and property; the power of legal language to construct, criminalize, and appropriate the human body itself, as Zoe was appropriated by law to her father’s estate; and the ongoing crisis of representation entailed in litigating a crime in which legal definitions contradict physical signs and social codes, and the exacerbation of this problem in subsequent generations. Miscegenation law, as Boucicault recognized, occupied a central position in the American family romance, both because it governed the marriage contract, which had legal implications for inheritance and legitimacy, and because it upheld the purity of the body politic through its constitution of a symbolic prohibition against the dangerous mixing of ‘‘white blood’’ and ‘‘black blood,’’ casting social practices as biological essences. Underwritten by the social sciences, miscegenation laws dramatically inscribed—and sometimes diverged from—the taboos of the body politic. Emphasizing these issues, I will analyze the American case law of miscegenation from the first reported case in 1819 through the last, which arose in 1970, after the United States Supreme Court held miscegenation statutes unconstitutional in Loving v. Virginia (1967). Although miscegenation jurisprudence was dynamic, constantly interacting with historical events, miscegenation cases have a relative autonomy from other social definitions of miscegenation. T his autonomy, along with their internal cohesiveness and cross-references, allow them to be analyzed as a genre: miscegenation discourse. T his autonomous discourse also had normative effects. T here were three major causes for the autonomy of miscegenation discourse. First, it was autonomous because any given state’s number of miscegenation cases was extremely limited. State courts were forced to refer frequently to cases from other states. All state miscegenation cases therefore drew on the same written sources. Representing Miscegenation Law 63 Second, it was autonomous because it so frequently lacked external physical referents: the crime that it defined and punished was a crime of ‘‘blood,’’ a metaphor that miscegenation law itself helped to invent and promote. T he central criminal element of miscegenation was a difference in blood which existed only as a figure of speech: ‘‘white blood’’ and ‘‘black blood,’’ which were mutually constitutive, and equally fictitious. In miscegenation law, judges not only presented descriptions reflecting physical facts (in mimetic language referring to objects both concrete and external to the case), but also composed new versions of social phenomena, in and as metaphor (in semiotic language). T he legal, semiotic discourse of miscegenation was not mimetic; it did not describe visible material objects but instead provided signs of representation, like ‘‘blood.’’ T hird, and related to the second, miscegenation law was autonomous because law’s version of race and ownership could completely contradict the social meaning of these terms. The Octoroon dramatizes the conflict that ensues when the social owner is the legally owned, the social white is legally black, and the social family is legally no family at all. Because the deviance of social form from legal form makes social form an unreliable sign of legal form (and vice versa), this deviance causes a crisis of representation. Moreover, the subjects at stake in miscegenation, which were destabilized by this crisis, are among those most central to social life: language, family, property, and race. Judges in miscegenation discourse used semiotic representation to create a new property in race: the metaphor of ‘‘blood,’’ which functioned as title. However, this so-called new property held by the white family was ultimately subject to the same paradox complicating the old property: how does good title originate? What comes first—title or possession? How does title come to be the authoritative representation of property, trumping social expectations, as in The Octoroon? Because legally defining property is a problem of representation, defining the new property of blood in miscegenation law’s criminal bodies replays this problem on a new stage: how do courts represent the body, when possession of whiteness deviates from legal title to it? If blood is the signifier and signified of race, to what can judges refer to ‘‘prove’’ that something is the authoritative representation of blood? If race is a source of property rights, how are courts to adjudicate the rights of the products of miscegenation, offspring who are legal subjects of mixed blood and ambiguous race? An anxiety about representation, the body, ownership, and reproduction is the characteristic property of miscegenation discourse, and this conflict of representation is embodied in the cases’ recurring symbol, what I call the miscegenous body. T his symbol stands for the threatening clash and conjunction of difference: of black and white, of owner and owned, of property and the body, and of legal and social forms of representation itself. In this corporate form, every body is deviant and criminal. In this image, the human body often stands for the national body. However, the national body also comes to stand for the human body in the imagery of Southern state court jurisprudence, a jurisprudence which simultaneously elaborated the state court’s relation to the federal government and the white body’s relation to the black’s. T he confusing question of which term represents which is 64 Saks a central problematic of the representations of miscegenation; this circularity is compounded by the problematic status of the body in the Southern state legal culture, in which the body of black Americans was only a Constitutional amendment removed from property. Whether the national body was conceived as a single human body, or whether the miscegenous human bodies were seen as a microcosm of the national body—‘‘the little society composed of man and wife’’ of T ocqueville’s Democracy in America—the jurisprudence of miscegenation was the site for working out political issues of Federalism and race, and the human body the fractured medium of this struggle. T he word miscegenation was coined in 1864 by crusading N ew Y ork Daily Graphic editor David Croly, in his political pamphlet Miscegenation: The Theory of the Blending of the Races, Applied to the White Man and the N egro. However, the criminalization of interracial relations, especially marriage, had begun in the colonial period. Maryland passed this country’s first miscegenation statute in 1661. T his statute criminalized marriage between white women and black men. Unlike most British colonial law, the miscegenation statute had no English statutory or common law precedents (although Joseph Bishop’s Commentaries (1852) would analogize an 1841 Kentucky miscegenation decision to an English opinion nullifying the marriage of a countess and her footman). T he statute’s genealogy instead includes moral and economic concerns: moral concerns of the parent country, England, which stemmed from the popular white mythology that blacks descended from the Ham of Genesis, and that their blackness was a punishment for sexual excess; economic concerns of Maryland and Chesapeake Bay, where marriage between a white woman and a black slave would produce legally free children, thereby depriving the slaveowner of potential slaves—a reduction in the stream of future earnings capitalized in the black body. Subsequent antebellum miscegenation statutes criminalized interracial sex and interracial marriage; such sex was, like all extramarital sex, prohibited as fornication but generally accepted (by the dominant culture) when occurring between white men and black women. Statutes prohibiting interracial marriage did not (arguably, nor were they meant to) deter white men from engaging in sex with black women, especially with their slaves; in fact, there were positive economic incentives for slaveowners to do so, since the progeny of interracial intercourse with white fathers would become the white fathers’ property. Yet all Southern states passed statutes criminalizing interracial marriage, as did many Northern states. The Octoroon dramatizes this moral economy, in which the same characters who accept the prohibition against miscegenous marriage also enact the acceptability of the miscegenous sex which produced the Octoroon. As T ocqueville described this peculiar code: ‘‘T o debauch a Negro girl hardly injures an American’s reputation; to marry her dishonors him.’’ Miscegenation law, which during slavery kept interracial children slaves, and after slavery bastardized them, originated as much in concerns about identifying the rights of (and in) future generations as in moral concerns. T his is the law of the Octoroon’s father, Judge Peyton; its focus is at least as much on ‘‘intermarrying’’ and ‘‘interbreeding’’ as on ‘‘cohabiting.’’ Miscegenation was a topic to which legislators paid increasing attention in the nineteenth century. T his attention was heightened in mid-century, from 1840 Representing Miscegenation Law 65 through Reconstruction. (T hat legislators and judges paid increasing attention to the regulation and punishment of miscegenation at this time does not mean that interracial sex and marriage as social practices actually increased in frequency; the centrality of these practices to legal discourse was instead a sign that their relation to power was changing. T he extent of uncoerced miscegenation before this period is a debated issue.) At the federal level, the framers of the Fourteenth Amendment endlessly discussed ‘‘miscegenation’’ and ‘‘amalgamation,’’ as recorded in the Congressional Globe of the Fortieth Congress (1869). At the state level, there was an increase in the passage and enforcement of miscegenation laws. In substance, the federal government’s Civil War amendments (1865–1870) and Civil Rights Acts (1866 and 1875) threatened the white South with the potential legal legitimation of interracial sex and intermarriage; in structure, these federal legal initiatives threatened the sovereignty of the individual Southern state courts that adjudicated miscegenation cases, since the empire of federal power was expanding through the United States Constitution, congress, and judiciary. T his put the state court judges of miscegenous bodies—white men charged with upholding state criminal law against federal constitutional challenges—on the defensive on many levels: sexual, economic, professional, and political. Six Southern states actually incorporated prohibitions of miscegenation into their post–Civil War constitutions. However, in the post-Reconstruction period, even the United States Supreme Court was prepared to contract the federal government’s power over race relations. T hey held in Pace v. Alabama (1882) that the Alabama Code’s punishment of interracial fornication more harshly than intraracial was constitutional under the Equal Protection clause of the Fourteenth Amendment because it punished the black and white parts of the miscegenous body equally; the following year, they struck down the Civil Rights Acts. Pace was both a rehearsal and an important symbolic antecedent for the ‘‘separate but equal’’ rhetoric of the United States Supreme Court’s decision upholding the constitutionality of segregated passenger trains, Plessy v. Ferguson (1896). T hus did the crime of miscegenation play its symbolic part in maintaining the alienated status of American blacks. T he social sciences were both cause and effect of these legal changes. T he nineteenth century marked the popularization of theories of heredity and eugenics descended from Darwinism. As Foucault notes in The History of Sexuality, blood achieved a new pseudoscientific status, while heredity would play an important role in the new disciplines of criminology and penology. T he word ‘‘eugenics,’’ which has Greek roots suggesting the ‘‘production of fine offspring,’’ was introduced in 1883 by Galton, who drew on theories of Aryan superiority expounded in Gobineau’s Essai sur l’inegalite des races humaines (1853); Gobineau transposed ´ ´ the idea of ‘‘race’’—which had entered the English language in the sixteenth century to denote differences between species in anthropology and classificatory biology—from a linguistic to a physical group, and added the idea of a pure Aryan race. For the first time, ‘‘race’’ denoted a physical group within the human species. Furthermore, individual identity and subjectivity were constituted by fractions of blood: a person of one-eighth negro blood was an octoroon. (T he very terms of the legal reification of blood as race—octoroons, quadroons, griffes—disappeared along with the culture and the laws that recognized them; describing someone as 66 Saks one-eighth black is now understood in both the scientific and the popular culture as having neither biological nor genetic meaning, but instead embodies a pragmatic recognition of how someone’s ancestors were socially defined.) T heories of heredity begin to appear in miscegenation jurisprudence in Reconstruction, underwriting the modern institutionalization of blood and race. Social Darwinism, employing biology’s survival mechanism to explain and justify social conditions, offered a philosophy of human hierarchy compatible with the general biologization that supported miscegenation laws. From the turn of the twentieth century, xenophobia and racism combined to contribute to the currency of eugenics. Furthermore, an entire social science literature of hereditary deviance—a deviance of the blood—upheld the discipline and punishment of the dangerous miscegenous body in the interest of racial purity: Havelock Ellis’s The Criminal (1891), Lombroso and Ferrero’s The Female Offender (1895), T redgold’s Mental Deficiency (1914), Goddard’s The Criminal Imbecile (1915). Despite intermittent challenges to their constitutionality, miscegenation statutes were upheld by both state and federal tribunals until the Supreme Court decided Loving (1967), and these courts invoked the authority of science and social science. Indeed, when the California Supreme Court decided Perez v. Sharp (1948), making theirs the sole state court ever to hold miscegenation statutes unconstitutional, they rejected the normative claims of eugenics yet continued to rely on science and social science as authority, to support their assertion of racial equality. Shortly after its school integration decision in Brown v. Board of Education (1954), which relied on current social science findings, the U.S. Supreme Court avoided these issues in N aim v. N aim (1955), in which they dismissed an appeal from the Virginia Supreme Court’s decision which upheld miscegenation statutes against an Equal Protection challenge; by holding that N aim was ‘‘devoid of a properly presented federal question,’’ the Supreme Court allowed Virginia to continue to exercise its ‘‘state’s right’’ to ‘‘preserve racial integrity,’’ as the Virginia judge had phrased it. In McLaughlin v. State (1963), the Supreme Court held that a Florida statute punishing interracial fornication more severely than intraracial fornication was unconstitutional but refused to address the more sensitive issue of interracial marriage, before Loving. Miscegenation jurisprudence demanded an inversion of traditional moral categories: while punishing interracial fornication more severely than intraracial fornication, it punished interracial marriage most severely. As the legal creation of a property relation, and the institution where reproduction was legitimated, marriage was the subject policed most vigilantly by miscegenation law. In slave states, the relative property rights of blacks and whites were clear. As summed up by T heodore Rosengarten in Tombee: Portrait of a Cotton Planter: Nothing but a white man’s conflicting claim could limit a master’s property rights in a Negro. . . . Chief of all property rights was the right to transfer ownership— to sell, deed, or bequeath title in a Negro to another white person. In this social system, wealth was land and slaves. T he Civil War and its legal offspring, the Civil War amendments and the Civil Rights Acts, upset this effectively feudal economy altogether. Representing Miscegenation Law 67 White property was assaulted by five related developments of the immediate postwar period. First, Confederate money became worthless. Second, white southerners lost their property in slaves, as law turned blacks from living personal property into legal persons. T hird, land values dropped, both in absolute price and as valued relative to the growing industrial wealth of the North. Fourth, Lincoln and his successors intimated that major land redistribution might be undertaken by the federal government; preliminary steps towards land redistribution were taken by General Banks in wartime Louisiana, and General Sherman’s famous Field Order No. 15 specifically allocated forty-acre plots to freed slaves. Land distribution was the logical extension of emancipation: ‘‘If you had the right to take the Master’s niggers, you had the right to take the Master’s land too,’’ reasoned one freedman quoted in Eric Foner’s Reconstruction: America’s Unfinished Revolution, 1863–1867. Fifth, the value of white skin dropped when black skin ceased to signify slave status. However, this racial devaluation could be reversed if white blood could internalize the prewar status of white over black. Drawing on the social sciences as then understood, miscegenation jurisprudence was instrumental in stabilizing white property. In substance, it prevented the creation of legal homes and families and legitimate social exchange between blacks and whites by preventing marriage. T his had critical legal consequences for the common law morality that held that ‘‘the bastard had no inheritable blood.’’ (T he fact that the bastard had none of his parents’ blood for the purpose of inheritance did not mean he had none for the purpose of heredity.) Even statutes passed to relieve the plight of illegitimate offspring did not necessarily address the problems of descent created by miscegenation laws. Interpreting wrongful death acts designed to allow illegitimate ‘‘children’’ to inherit from their parents, Southern state courts frequently refused to designate illegitimate offspring as ‘‘children’’ within the meaning of the statutes; this was apparently because the offspring in question were ‘‘mulatto,’’ suggests James Macauley Landis in Statutes and the Sources of Law (1934). In imagery, state miscegenation cases emphasized the family, the home, the estate, and the state (as opposed to the federal) power. Above all, it created a symbol of race—blood—which was as independent from the visible as legal title was from possession. Moreover, it created an autonomous legal regime of ‘‘blood,’’ which could conflict with the social regime of race. Miscegenation law responded in varied ways to the assault on white property represented by the abolition movement and, later, the Civil War Amendments. On the political level, states passed stricter miscegenation statutes during Reconstruction. On a substantive level, genealogy was made the determinant of race, thereby marking former slaves permanently as black and, within the values of miscegenation, as a genetic underclass. T his marking had important consequences in the civil laws governing property and property owners. And miscegenation law responded on a rhetorical level, using the metaphor of blood to signify race. By choosing the internal, biological res of blood, miscegenation jurisprudence transformed race into an intrinsic, natural, and changeless entity: blood essentialized race. (T he reification of race as ‘‘blood,’’ in the late nineteenth century, is part of a general judicial tendency of the period to hypostatize legal concepts, creating 68 Saks formalistic legal doctrines which were segregated from their factual and political context.) According to its theoretical founding fathers, property is a right, not a thing. T his translates, in the context of miscegenation, into its negative: for blacks, their property-in-race was not the negation of a thing but the negation of a right. Miscegenation jurisprudence turned a right back into a thing by injecting it into the body as blood, where it became the signifier of the body’s legal rights; in Reconstruction, miscegenation law internalized the feudal economy the Civil War had supposedly ended. Miscegenation law used blood to control the legal legitimation of social unions and the legal disposition of property to the children of these unions; in doing so, it raised the classical issue of property in a new form: is blood a thing or a right? Is blood visible in possession, or invisible until written by the law as title? T he substantive element of cohabitation required courts to describe property while recounting the incriminating facts (for example, by describing where the defendants slept). T hese descriptions suggest the courts’ prudishness regarding the parties’ relationship. More importantly, they reveal that the legally significant facts were precisely those that would affect the disposition of property rather than people. In the judges’ representations, property was not merely a backdrop for the moving bodies; instead, the human body was a medium for the transmission of property (through marriage and inheritance). T he problem of representing the race of parties has turned into the problem of representing property. If property itself is the legal system of representation based on title, a threat to this system of representation was a threat to property rights. Miscegenation, which threatened the existing distribution of property and of blood (law’s title to race), was therefore a crime by people against property. Miscegenation rhetoric attempted to stabilize property in race by investing white blood with value and arresting its circulation in the body politic. In so doing, miscegenation law constituted the human body as property. T he white race became a leading figure on the legal stage in this period, as did the corporation, which was held a legal ‘‘person’’ under the Fourteenth Amendment by the Supreme Court in Santa Clara Co. v. Southern Pacific Railroad (1886). But the corporation was property treated by law as a person, whereas the body in miscegenation was a person treated as property through the legal regime of blood, fractional holdings, and inheritance. T o the law, a black person was not represented by a perceptible physical phenomenon like black skin, but instead consisted in black blood. Blood could not be proved empirically, any more than the ‘‘event’’ of miscegenation could be narrated in terms of the human actors: because the word blood was a displacement and appropriation of the human, it could not be portrayed as human. Legal race, as determined by legal blood, perpetuated the prewar economy of the human body, in which the body could be alienated because it was potentially another form of property. Because sexual and marital choices are among the most intimate choices citizens make, and because choice as an ideal was sacrosanct in a legal culture based on contract and consent, courts had to stretch to provide rationalizations for their intervention in miscegenation cases. T hey therefore represented themselves as the Representing Miscegenation Law 69 paternalistic protectors of impoverished whites, on whom the courts bestowed the new property of race. As the court put it in Green v. State (Ala. 1877): [It] is . . . a fact not always sufficiently felt, that the more humble and helpless families are, the more they need this sort of protection. T heir spirits are crushed, or become rebellious, when other ills besides those of poverty are heaped upon them. Interracial sex and marriage had the potential to threaten the distribution of property, and their legal prohibition was an important step in consolidating social and economic boundaries. Despite its concern with delineating boundaries between bodies and property, miscegenation jurisprudence failed to draw a critical boundary: that separating the human subject from property. In State v. Treadaway (La. 1910), the relatively lenient Louisiana court held that an ‘‘octoroon’’ was not ‘‘a person of the negro or black race’’ for the purposes of a criminal miscegenation prosecution because of the absence of statutory definition of ‘‘octoroon’’; in doing so, the court presented a hypothetical situation which expressed this double anxiety over propertyin-the-person: For instance, a notice that all negroes were to be driven out of New Orleans would no doubt set everyone wondering at what point the color line was to be drawn. In this jurisprudence, the boundary of property-in-the-person (‘‘the color line’’) is confused with the boundaries of real property, on which the first boundary is based (‘‘out of New Orleans’’). T his is the same conflict of representation dramatized when the Octoroon, a person, becomes part of the property of her father. T his conflict appears here, again, as a potential discrepancy between where law would set the ‘‘color line’’ and where society would set it, a discrepancy that turns the relationship of people to property into a problem of conflicting representations. T his discrepancy between the legal and the social definition of race appears in the cases that discuss the legal institutions of marriage and the family. T he marriage contract is law’s mechanism for the transmission of property. It also formalizes the parties’ social relation; it represents to the world their relationship to property and to each other. Cases discussing marriage and family make explicit how social ‘‘race’’ and social ownership conflict with legal definitions. Occasionally, a court adjudicated a conflict over property based on this gap between legal and social signifiers of race. In the 1910 North Carolina case of Ferrall v. Ferrall (N.C. 1910), a man tried to evade making a property settlement with his wife by voiding his marriage retroactively; his defense to her suit for alimony was that she was ‘‘negro within the prohibited degree.’’ Apparently their marriage had initially been permitted because his wife was socially or visibly white. Mr. Ferrall sought to use the autonomous discourse of miscegenation law to defeat the social code which had accepted his wife as white. T he court refused to deprive the wife of her social position as white, rejecting her husband’s attempt to invoke the legal rule of ‘‘blood’’ to trump the legal rule of marriage: 70 Saks Years ago the plaintiff married a wife who, if she had any strain of negro blood whatever, was so white he did not suspect it until recently. She has borne his children. . . . T he plaintiff by earnest solicitation persuaded the defendant to become his wife in the days of her youth and beauty. She has borne his children. Now that youth has fled and household drudgery and child-bearing have taken the sparkle from her eyes and deprived her form of its symmetry, he seeks to get rid of her, not only without fault alleged against her, but in a method that will not only deprive her of any support while he lives by alimony, or by dower after his death, but which would consign her to the association of the colored race which he so affects to despise. . . . T he law may not permit him thus to bastardize his own children. Focusing on the woman’s literal and figurative labor (‘‘household drudgery,’’ ‘‘child-bearing’’), the court treats ‘‘blood’’ as a form of property that accrues over time, based on an individual’s labor—almost a pension. Consistent with its holding, the court portrays the wife as an active subject, and vindicates her personhood by recognizing her rights. Moreover, the court refuses to employ law’s autonomous, scientistic test of race, blood, and instead allows social judgments to prevail. Here, the law is mimetic: it reflects and enforces a prior, external social arrangement, rather than imposing its own semiotic system of adjudicating property rights through the metaphor of blood. T he boundaries of the culture are not the boundaries of the law. In defining boundaries, the law might refer to social codes, as in Treadaway—‘‘Few in all likelihood would understand that many people who have the appearance, education, and culture of white [would be included in a decree banishing negroes]’’—or the law might rely on a higher authority: ‘‘[God] intends that they shall not overcome the natural boundaries He has assigned to them,’’ as in Gibson v. State (Ind. 1871). T he family law in Ferrall suggests a larger theme of miscegenation: white blood allowed courts to conceive all whites as members of a family. Because the entire white family shared ‘‘race-as-property,’’ blood was therefore a form of collective property. However, this only exacerbated the task faced by miscegenation law: defining the boundaries of this extended family, and making this property stable by making it inalienable. T racing the defendant’s genealogy became the equivalent of a title search, the search for an authoritative legal representation of race. However, it also led to the same problem besetting any title search: how did title originate? In the context of race, this metaphorical title to blood, if traced back far enough, revealed the actual, historical fact of legal title: the ‘‘title in a Negro’’ which could be sold, deeded, or bequeathed to another white person, in the transfer of ownership that was ‘‘chief of all property rights.’’ Blood therefore revealed itself as part of a social rather than biological pattern. While this historical origin explained the social status of blacks, it absolutely challenged the legal and ‘‘scientific’’ myth that the boundary between the races was natural, ahistorical, and biological. It was, like other property boundaries, like the legal family itself, the positive creation of the law. Blood was merely law’s representation, one that tried to render natural and scientific that which was instead legal and metaphorical. Representing Miscegenation Law 71 T he flux in blood and the problem of its representation resulted in an anxiety about family. Where were family boundaries? Where did they begin and end, and what combinations of blood were appropriate? Was the appearance of a family sufficient to guarantee its legal status? Bell v. State (T enn. 1872) revealed the pressure that was on the legal system’s semiotic system of representation: Extending the rule [of recognizing out-of-state marriages to a miscegenation context] . . . we might have in T ennessee the father living with his daughter, the son with his mother, the brother with the sister, in lawful wedlock, because they had formed such relations in a State or country where they were not prohibited. T he T urk or Mohammedan, with his numerous wives, may establish his harem at the doors of the capitol. T his problematization of family was reflected in this suggestive and typical association of miscegenation and incest. T his conjunction appears as frequently in state criminal codes, which usually listed miscegenation next to incest as two crimes of ‘‘blood,’’ as it does in Faulkner’s Absalom, Absalom! T he strange affinity of the taboo of ‘‘too different’’ with ‘‘too similar’’ was affirmed by an antebellum Mississippi statesman quoted in Eugene Genovese’s Roll, Jordan, Roll: ‘‘T he same law which forbids consanguinous amalgamation forbids ethnical amalgamation. Both are incestuous. Amalgamation is incest.’’ T he taboo of too different (amalgamation/ miscegenation) is interchangeable with the taboo of too similar (incest), since both crimes rely on a pair of bodies which are mutually constitutive of each other’s deviance, a pair of bodies in which each body is the signifier of the deviance of the other. Neither body can represent the norm, because each is figured as deviance from an other. (T his complex of anxiety and taboo also evokes the jurisprudence of sodomy, another area of the law in which a pair of bodies constitutes deviance upon conjunction. Because they are too similar to each other, and too different from the ‘‘norm,’’ the bodies of sodomy are legally Other. ‘‘Miscegenation was once treated as a crime similar to sodomy,’’ notes one dissent in Bowers v. Hardwick [U.S. 1986].) Bell’s hysterical defense of the home was highly selective: it called for a fortification of the white house, not the American home. According to Herbert G. Gutman’s The Black Family in Slavery and Freedom 1750–1925, black Reconstruction legislators attempted to promote the values of legitimate and respectable interracial domesticity by lobbying for the legalization of interracial marriage and inheritance and the criminalization of interracial ‘‘concubinage’’ (the customary form of white male/ black female extramarital relationships). But white legislators refused, preferring to pass laws criminalizing interracial marriage and inheritance but decriminalizing concubinage! Only the white home, the ‘‘T errebonne’’ of the white family, was consolidated by miscegenation law. T he divergence between legal and social forms is clear in Green v. State (Ala. 1877), where the court used the glorified, symbolic ‘‘marriage relation’’ to end an existing social union, sending a black man and a white woman to jail because they were married, yet describing their goal as the preservation of marriage and the home: 72 Saks [T he institution of marriage] is indeed, ‘‘the most interesting and important in its nature of any in society.’’ It is through the marriage relation that the homes of a people are created—those homes in which, ordinarily, all the members of all the families of the land are, during a part of every day, assembled together. . . . T hese homes, in which the virtues are most cultivated and happiness most abounds, are the true officinae gentium—the nurseries of the States. Again, a social union, an apparent marriage, could deviate from legally cognizable marriage, just as social ownership deviated from legal ownership. In this legal version of family, the role of marriage is to keep property ‘‘in the [white] family.’’ T his may explain why Green’s focus on the home sometimes degenerated to a focus on the house, on real property simpliciter. T his ‘‘real estate rhetoric’’ suggests some of the distributional tensions underwriting the substantive law of miscegenation. For example, in Hovis v. State (Ark. 1924) the court acquitted the unmarried defendants despite their frequent sexual adventures because they had not cohabited—in other words, because they had not placed their bodies in a prohibited relation to property. T he crime, as ‘‘the law lexicographers define it: ‘T o dwell together in the same house.’ ’’ In terms of property law, such a conjunction implied the threat of common property—a tenancy in common. T he law lexicographers, then, add the final, requisite element of property to the definition of the crime. Property is the missing link, the legal form necessary to constitute the crime of miscegenation. Again, the obvious social connection of the parties was not dispositive. T he autonomous law lexicographers demanded something different: that the defendants place their bodies in a prohibited relation to real estate. T hey also demanded investigation of the defendant’s family to determine his blood. Jones v. Commonwealth (Va. 1885) attempted to draw boundaries between the white and the Negro family trees, in the process reducing the defendant to a res: [It] is necessary to establish first, that the accused is a person with one-fourth or more of negro blood, that is, that he is a negro. . . . We find, that the accused was not a full-blooded negro, but had white blood in his veins, but there was no evidence to show the quantity of negro blood in his veins, and no evidence of his parentage except that his mother was a yellow woman. If his mother was a yellow woman with more than half of her blood derived from the white race, and his father a white man, he is not a negro. If he is a man of mixed blood he is not a negro, unless he has one-fourth at least of negro blood in his veins. In this passage, where the language of heredity coincides with the language of inheritance, miscegenation law reifies blood as inalienable estate. However, the problem of representation created by this form of property was implicit in this formulation: the legal test for proving ‘‘blood’’ was so purely semiotic, so autonomous and nonreferential, that the prosecution here could not meet the test with concrete evidence. T he prosecution could prove the color of the mother’s skin— ‘‘yellow’’—but could not prove the color of her blood. Miscegenation law created Representing Miscegenation Law 73 a system of representation in race-as-property that merely continued the problem of representation inherent in the system of property itself. T he state’s witness testified that ‘‘Ophelia Smith looked like a white woman—was a white woman.’’ T he court committed no error in overruling the motion to exclude the expression ‘‘looked like a white woman.’’ But, if it were error not to exclude this expression, it would be a harmless one, because the positive evidence of the witness was that ‘‘she was a white woman.’’ As suggested by this quotation from Jones v. State (Ala. 1908), the evidentiary rules of representing race presented a conundrum. Did the state’s witness in Jones misrepresent Miss Smith’s race? T he state’s witness in Jones testifies to the discrepancy between ‘‘looked like’’ and ‘‘was,’’ between representation and identity in the logic of miscegenation. What relationship between the two halves of his statement is represented by the transcript’s ‘‘—’’? Did the fact that ‘‘Ophelia Smith looked like a white woman’’ equal the fact that she ‘‘was a white woman,’’ or did it merely provide evidence for the fact that she ‘‘was’’ one? Perhaps the fact that she ‘‘looked like’’ a white woman distanced her somewhat from being white, and, by suggesting that her skin was not her identity but a representation of an identity, opened the door to the disturbing possibility of misrepresentation—a forgery by Nature? If Nature was forging, what was being forged? T his reversal of the natural order is reflected in the deeper mystery of the Jones case: why did the defendant’s lawyer object to the statement that she ‘‘looked like,’’ but not to the statement that she ‘‘was’’? T he court’s curious justification for overruling the objection to the admission of ‘‘looked like’’ is that the witness had also offered evidence that she ‘‘was.’’ But how did he know that she ‘‘was’’ a white woman, if not by the fact that she ‘‘looked like’’ a white woman? What does a white woman look like? What Nature was forging, and what a white woman looked like, was miscegenation discourse’s creation: the ‘‘white woman’’ with ‘‘white blood.’’ T hat the ‘‘white woman’’ and ‘‘white man,’’ like the ‘‘negro,’’ had to be frequently and instrumentally redefined throughout the history of miscegenation discourse is as much a function of the autonomous nature of miscegenation discourse as of the changing social conditions that demanded this strategic redefinition. T he notion that race could be forged or hidden—the concept of ‘‘invisible blackness,’’ embodied in Harriet Beecher Stowe’s ‘‘white niggers’’—produced the phenomenon of ‘‘passing’’: blacks who passed as white. T his implied an ontological corollary: whites who passed as white. And indeed, Moore v. State (T x. 1880) held that the prosecution must not only prove that the black defendant had black blood, but also that the white defendant had white blood: [T hat the defendant was a white woman] was an essential fact, perhaps the most essential to be established by the prosecution. T o permit a female, however lowly her conditions or vicious her associations may be, to suffer imprisonment in the penitentiary for two years, upon the opinion of a single witness ‘‘that she looks 74 Saks like a white woman,’’ would be an outrage upon law and justice, which courts cannot tolerate. T he clash between legal essentialism and mimetic hearsay is explicit here. However, now every witness’s testimony will be insufficient, since presence itself has been destabilized as a form of representation. Miscegenation law’s identification system, based on the metaphor of blood, was committed to the separation of looked like (possession of whiteness without legal title to it) from was (good title to whiteness). In the discourse of blood, semiotic representation simultaneously becomes inevitable and problematic—inevitable, because appearance (looking like) is no longer sufficient proof; problematic, both because the appearance of social life for blacks and whites is now called into question, and because no other evidentiarily acceptable proof of blood exists. T o substantiate blood, to substantiate what is neither a mimetic description nor a tangible entity but instead a semiotic figure, is impossible. Caught in an epistemological loop, courts were led right back to social codes based on appearance, which was where the problem had begun. (In this same period, the art and philosophy of photography were working through this same tension between ‘‘essence’’ and representation. In The Stereoscope and the Stereograph [1859], Oliver Wendell Holmes, Sr. proclaimed that ‘‘form is henceforth divorced from matter. . . . Men will hunt all curious, beautiful, grand objects . . . for their skins, and leave the carcasses as of little worth.’’ In The Octoroon, a photograph is the dispositive evidence of a crime because it captures the identity of the murderer in a perfect policing representation; however, the drama depends on and derives from the unrepresentativeness of the Octoroon’s skin. T he Gilded Age esthetic of photography, judiciously analyzed by Walter Benn Michaels in The Gold Standard and The Logic of N aturalism, reflects the problems of representability in miscegenation.) An additional problem jurists faced in representing race was posed by the fact that, in the legal culture, race itself was already conceived as a representation of something else. In this conception of nature, race was nature’s means of inscribing an organism in the social hierarchy. In State v. Scott (Ga. 1869), race was nature’s sign of value: [Social] equality does not in fact exist, and never can. T he God of nature made it otherwise, and no human law can produce it, and no human tribunal can enforce it. T here are gradations and classes throughout the universe. From the tallest arch angel in Heaven, down to the meanest reptile on earth, moral and social inequalities exist, and must continue to exist through all eternity. T he problem of representing race, then, was two-fold. If race already represented a prior, original presence (two tiers), representing race meant representing a representation (three tiers). T he second problem was that the most obvious physical manifestation of race, skin color, ceased to have the significance of a tangible property. T he court in Scott, like other courts, was faced by a situation where the body was now an unreliable signifier; however, they continued to use it as proof, as did the court in Jones v. State (Ala. 1908): Representing Miscegenation Law 75 Nor was there error in the action of the court, permitting the state to make profert of the person, Ophelia Smith, in order that they might determine whether or not she was a white woman. T his conception of the race-marked body as a readable text which represented race and, upon fulfillment of the relevant conditions, crime, is a recurrent motif in the case law of miscegenation. However, the problem with this new body-text was that it pointed not to blood, not to race, not to dispositive unmediated proof, but instead led the court only to other texts: to the body-texts of the defendant’s family, in the title search for blood—parents, as in Weaver v. State (Ala. 1928), or children, as in Agnew v. State (Ala. 1921). Although a defendant’s color and relatives were not dispositive proof of his race, his race was dispositive proof of his moral identity. His culpability was contingent on how the court represented him, more precisely on his race. In Jones v. Commonwealth (Va. 1885), the subject is criminalized once it has been racialized: T o be negro is not a crime; to marry a white woman is not a crime; but to be a negro, and being a negro, to marry a white woman is a felony; therefore it is essential to the crime that the accused shall be a negro—unless he is a negro he is guilty of no offense. Paradoxically, the defendant without a race—that is, the defendant with no identity in miscegenation discourse—could avoid criminal guilt: the Jones court did not convict the defendant. Undoubtedly the court could have found a way to convict him, but the court’s substantive decision is justified by language that suits their substantive result; they strategically characterize his identity and therefore criminality as contingent on legal rhetoric: ‘‘T he statutory definition of negro has been repealed, and no definition of negro substituted.’’ T his court reaches a result similar to the result in Ferrall, since both courts refuse to find that a litigant is ‘‘negro’’; this court, however, accomplishes this substantive objective by an instrumental conception of legal discourse that is the exact opposite of the Ferrall court’s. In Ferrall, the court repudiates the legal code of blood, and enforces the social code; in Jones, the court wields the legal code to subvert the social code and to acquit the defendant. In both cases, the courts come close to recognizing legal race as a problem of representation. When courts characterized legal race as the construct of ‘‘statutory definitions’’ rather than as biological essence, the defendants could prevail. T his characterization was itself a step away from the typical ‘‘scientific’’ racism of the nineteenth century, and so such courts may have been more generally sympathetic to the defendants’ plight; such language was more probably the effect of racial tolerance than its cause. But in any case, the figuration of race made the court uneasy with the process of race-production. In Ferrall, the court was outraged by a man’s attempt to avoid paying alimony by proving his wife was a ‘‘negro within the prohibited degree’’ and retroactively voiding his marriage. T he court’s description of the process of adjudicating someone’s race is revealing; rather than using words that characterize race as a prelinguistic, external phenomenon that words merely name or mime—that is, as a mimetic relation between word and object—the court 76 Saks instead describes the adjudication as ‘‘branding,’’ tacitly recognizing its own role in the inscription of race: [He] would brand them for all time, by the judgment of the court, as negroes—a fate which their white skin will make doubly humiliating for them. . . . Certainly of all men he should have welcomed the verdict that decided his wife and children are white. . . . T he eloquent counsel for the [white husband attempting to void his marriage] depicted the infamy of social degradation from the slightest infusion of negro blood. He quoted from a great writer, not of law but of fiction, the instance of a degenerate son who sold his mulatto mother ‘‘down the river’’ as a slave. But his crime was punished, and surely was not greater than that of the husband and father, who for the sake of a divorce, would make negroes of his wife and children. T he court’s reference is apparently to Mark T wain’s Pudd’nhead Wilson; the husband, relying on a legal fiction, offers fiction as authority. T hat legal race was law’s inscription on the human body did not mean that lawmakers could necessarily control the semiotic code. In Bartelle v. United States (Okla. 1908), the court could not prevent the witness from substituting conclusory terms (‘‘mulatto’’) for common descriptive ones (‘‘brown’’): Q. What is the color of her skin? A. I would call it mulatto. Q. Has she brown skin? Just describe her appearance. A. Well, if I was going to describe her, I should call her a light colored mulatto. Courts looking for external, objective referents for blood (brown skin) were also implicitly attempting to forge a way of representing race that was referential, to invent mimetic terms that referred to something beyond figures of speech. However, the ironic result of this double search—for referents and for referentiality— was that courts often found only other legal texts, prior legal inscriptions. T he court in Treadaway (La. 1910) presented a catalog of referents for race. It began by positing a system of language that was mimetic, that was ‘‘coined for the very purpose’’ of miming a prelinguistic reality: T here is a word in the English language which does express the meaning of a person of mixed blood and other blood, which has been coined for the very purpose of expressing that meaning, and because the word ‘‘negro’’ was not known to express it, and the need of a word to express it made itself imperatively felt. However, despite the court’s depiction of miscegenation discourse as a language of mimesis, the language (and locus) of race was evidently not so simple—as the court’s own search manifests. Facing ‘‘the sole question [of] whether an octoroon is ‘a person of the negro or black race’ within the meaning of the statute’’ making ‘‘concubinage between a person of the Caucasian or white race and a person of the negro or black race . . . a felony,’’ the court first looked for definitions of ‘‘negro’’ in ‘‘literature’’ (as the Ferrall court had). Next, the court found ‘‘colored’’ in the dictionary: One belonging to the Ulotrichi or wooly-haired type of mankind; a black man, especially of African blood, and particularly one belonging to the stock of Sene- Representing Miscegenation Law 77 gambia, Upper Guinea, and the Sudan. In North Carolina, a person who has in his veins one-sixteenth or more of African blood. Looking for an extralegal, objective point of reference for race, the court finds itself referred back to miscegenation discourse: ‘‘one-sixteenth or more of African blood.’’ T he Louisiana judge looking for a referent can get no further than the Code of North Carolina! Ironically, this same North Carolina Code was less than authoritative in North Carolina itself: in Ferrall, the North Carolina case decided the same year, the court ignored the wife’s legal blood and held that her social role qualified her as white. In Pace v. Alabama (1883), the U.S. Supreme Court decision relied on by Southern state courts for eighty years, the court suggested an image that recurs throughout miscegenation discourse. In Pace, the Court rejected a Constitutional challenge to the state’s miscegenation statutes brought on the theory that the Equal Protection clause was violated by Alabama’s statutory scheme, which punished interracial fornication more harshly than intraracial fornication. T he court denied that these statutes were ‘‘inconsistent’’ with the Equal Protection clause by defining the meaning of equality in the context of miscegenation: ‘‘[blacks and whites are treated equally under miscegenation law because] the offence . . . cannot be committed without involving persons of both races in the same punishment.’’ T his version of ‘‘Equal Protection’’ was a virtual parody of formal reasoning: the statute was not racially discriminatory, despite the fact that it punished interracial fornication more harshly than intraracial fornication, because it punished the black and the white party involved in interracial fornication equally: ‘‘Indeed, the offence against which this [law] is aimed cannot be committed without involving persons of both races in the same punishment. . . . T he punishment of each offending person, whether white or black, is the same.’’ In articulating the rationale for miscegenation law, the justice represents the offense of miscegenation. T his offense was a single entity created by two disparate bodies which, when joined, became a ‘‘miscegenous body.’’ T he conjunction of difference was the putative crime: ‘‘T he discrimination is not directed against the person of any particular color or race, but against the offence, the nature of which is determined by the opposite color of the cohabiting parties.’’ T his horror at the conflation of difference was replicated in the mythology of the ‘‘mulatto.’’ Scientific, legal, and popular mythology deemed this offspring of interracial union inferior to both white and black. T he product of difference was a monster ultimately deviant and inferior. He was deviant from and inferior to the black, who was already defined as deviant and inferior. T he mulatto monster was therefore doubly deviant, the other of the other. Indeed, to a century in which pollution theory underwrote escalating public health regulation, he was virtually an infection. According to State v. Scott (Ga. 1869), T he amalgamation of the races is not only unnatural, but is always productive of deplorable results. Our daily observation shows us, that the offspring of these unnatural connections are generally sickly and effeminate, and that they are inferior in physical development and strength to the full-blood of either race. It is 78 Saks sometimes urged that such marriages should be encouraged, for the purpose of elevating the inferior race. T he reply is, that such connections never elevate the inferior race to the position of the superior, but they bring down the superior to that of the inferior. T hey are productive of evil, and evil only, without any corresponding good. T hus the threatening ‘‘miscegenous body’’ emerged in three dimensions: first, the individual body with two colors of blood in it. Second, the corpus delicti, Pace’s ‘‘offence,’’ consisting of the two defendants; each was defined against the other, and the crime of each was his body’s difference from his lover’s. Collectively constituting Othello’s ‘‘beast with two backs,’’ their crime was their collective identity, and their collective identity could only be a crime: miscegenation. Finally, the social body was conceived as doubly miscegenous: between 1850 and 1880, the South often portrayed itself as different from, yet conjoined with or imprisoned within, the United States—in L. W. Spratt’s memorable 1858 phrase, ‘‘like twin lobsters in a single shell.’’ Another recurrent theme is that the nation, in its socio-political identity, was becoming ‘‘miscegenous.’’ Here the national body was explicitly conceived as a white body, while blacks were portrayed in a simile as the fraction of polluting blood within this body, an unassimilable clot in the national body and the white family—as in Samuel Sewall’s earlier The Selling of Joseph: ‘‘T here is such a disparity in their Conditions, Colour and Hair, that they can never embody with us and grow up into orderly Families, to the Peopling of the Land: but still remain in our Body Politick as a kind of extravasat Blood.’’ T he conjunction of different bodies always signaled the breakdown of legal boundaries, which were the boundaries of property and representation. T he cluster of differences represented by this symbol included the difference between legal and social codes of race, between the semiotic (blood) and the mimetic (skin, hair, associates). T his symbol both constituted and undermined the semiotic system of blood, by challenging the boundaries of state, and estate, and identity. T o all intents and purposes Roxy was as white as anybody, but the one sixteenth of her which was black outvoted the other fifteen parts and made her a negro. Post–Civil War miscegenation discourse juxtaposed miscegenation’s threat to white legal and political (especially electoral) power with its threat to white physical and domestic security. As Mark T wain in the above quotation from Pudd’nhead Wilson turned Roxy’s body into a minority ballot, a congressman debating the effect of the new Fourteenth Amendment on American social life responded to a white colleague’s fear that the miscegenous ballot would bleed into miscegenous bodies: And, should your ballot and that of a black man happen to be placed in juxtaposition, would you for that reason deem it incumbent on you to give your daughter in marriage to the ‘‘American citizen of African descent’’? Why, on the same principle, are you not bound to become the father-in-law of one of those other voters who, though white, is somewhat more debased than the negro? . . . Why, by parity of reasoning, are you not bound to inaugurate practical amalga- Representing Miscegenation Law 79 mation by sending your daughter into a wigwam as the wife of the half-tamed savage and the prospective mother of children of the forest? T his embodiment of political issues as miscegenous figures dramatized a central theme of miscegenation discourse: the dreaded ‘‘juxtaposition’’ produced problematic issues of both sexuality and of the federal government’s jurisdiction. Roxy’s body is the body politic, and the body in miscegenation discourse is the site of many political and jurisdictional battles. T his miscegenous body was the medium for state courts’ attempt to define and individuate the Southern state and its white capital, both of which were under siege. T he body itself was conceived frequently in political terms, as in State v. Gibson (Ind. 1871): T he question is one of difference, not of superiority or inferiority. Why the Creator made one black and the other white, we do not know, but the fact is apparent, and the races are distinct, each producing its own kind, and following the peculiar law of its constitution. ‘‘Law’’ and ‘‘constitution’’ were the issues splitting the national body in 1871. T he Indiana state court’s references to law and constitution in this metaphorical way turned its prosecution of the white race’s ‘‘peculiar law’’ into an affirmation of both white racial separatism and state sovereignty. T he upholding of a race’s right to follow the ‘‘peculiar’’ law of its constitution became a proxy for a state’s right to its ‘‘peculiar’’ institution. T hus did Southern courts allegorize the body into the battlefield of Federalism. Arkansas, among the first Confederate states to be readmitted to the United States in Reconstruction (in 1868), revealed its Civil War battle scars in the miscegenation rhetoric of Dodson v. State (1895): ‘‘[permitting miscegenation would] involve a surrender by the people of one of the attributes of sovereignty.’’ In effect, the War was still being fought in such language. In Kinney v. Commonwealth (Va. 1878), the court invalidated the marriage of a Virginia couple who had gone to Washington, D.C., to get married. T his formal pattern, which recurs throughout the history of miscegenation, was guaranteed to elicit the maximum panic from a state court judge in 1878. (It recalled the antebellum attempt to subvert property-in-the-person by crossing state lines of Scott v. Sandford (U.S. 1857), better known as Dred Scott.) T he state court was concerned with asserting the sovereignty of the state as well as of the race, especially in 1878, the year after the United States Supreme Court had radically expanded its own jurisdiction over state courts in Pennoyer v. N eff (U.S. 1877), and three years after the Civil Rights Acts had enlarged the federal role in enforcing the new race relations: Laws would be a dead letter if . . . both races might, by stepping across an imaginary line, bid defiance to the law. . . . Connections and alliances so unnatural that God and nature seem to forbid them, should be prohibited by positive law. T he defendants’ bodies become a pretext to discuss other politicized borders; they focus the court’s anxieties about emerging black political power, and potential political ‘‘alliances’’ and ‘‘connections’’ between blacks, whites, and mulattoes in the postwar South. Certainly, governments, connections, and alliances sound more 80 Saks like political discourse than like (nonmiscegenation) case law on prohibited fornication and cohabitation. Needless to say, the Civil War Amendments engendered an entire corpus of law governing race relations and race-related evidentiary issues, as well as a new jurisprudence of federal jurisdiction. However, the mark of miscegenation discourse is its unique position in this struggle: the miscegenous body was caught in flagrante delicto at the intersection of federalist and racial tensions. T he same Supreme Court justice, Justice Field, wrote the opinions that delineated the Fourteenth Amendment’s consequences for both jurisdiction (Pennoyer) and for miscegenation (Pace). As later diagnosed in Treadaway (La. 1910), the human body itself was a tense federation of conflicting states: ‘‘Scientifically or ethnologically, a person with seven-eighths white blood in his veins and one-eighth negro blood is seven-eighths white and one-eighth negro.’’ As Mark T wain recognized, the critical issue was how this blood would vote. Although the image of the miscegenous body haunted miscegenation discourse, it was conspicuously absent in the cases that struck down miscegenation statutes: Perez v. Sharp (Ca. 1948), Loving v. Virginia (U.S. 1967), and U.S. v. Brittain (Federal District Court, 1970). T raynor’s Perez opinion embodied a new rhetoric of individual human dignity: A member of any of these races might find himself barred by law from marrying the person of his choice, and that person to him may be irreplaceable. Human beings are bereft of dignity by a doctrine that would make them as interchangeable as trains. T his is a new theme in miscegenation cases: a judge who consciously tries to construct a human body that is discontinuous with property, in dramatic contrast to earlier reasoning, in which human boundaries represented, and were represented by, property boundaries. In both style and substance, Judge Carter’s concurring opinion in Perez moved even further from Pace’s formal logic to a sensational theatricality: Suffice it to quote the following from petitioner’s [pro-miscegenation law] brief: ‘‘T he blood-mixing . . . with the lowering of the racial level caused by it, is the sole cause of the dying-off of old cultures; for the people do not perish by lost wars, but by the loss of that force of resistance which is contained only in the pure blood. All that is not race in this world is trash.’’ T his quotation is from Hitler’s Mein Kampf. Conjuring up Mein Kampf forced the issue of the new popular and scientific consensus on what was human as well as of what endangered that humanity, casting T raynor’s repudiation of trains as an overruling of both the segregated train of U.S. racism in Plessy (1896) and the more recent European trains to genocide rationalized by eugenics and blood. In contrast, the more important Supreme Court Loving opinion was downright dry, perhaps because the opinion was potentially inflammatory or perhaps because the decision was so uncontroversial; in any case, the miscegenous body was bound to be regulated henceforth Racial Purity and Interracial Sex 81 by the social text rather than the legal. Only Brittain, the American Digest’s final ‘‘Miscegenation’’ entry, produced a reconstructed human figure to strike down Alabama’s miscegenation law over the state’s defense of mootness: ‘‘T here is no reason for this Court to delay making such a declaration until another couple in just the right circumstances next feels the pinch of these laws.’’ Redefining the body’s position in miscegenation law, the court recognizes this law as a force inflicting itself on the human body in a painful way: it ‘‘pinches.’’ Although the body still serves as a figure (since the law is personified as a person who ‘‘pinches’’), the body also retains its sentience: it ‘‘feels.’’ T his case makes material the dignity of the human body. T his new figure has a new relation to race, property, and representation. It is no longer enslaved by the semiotic system of blood. Loving and Brittain present a happy ending—but they may not represent the final curtain on miscegenation. When The Octoroon played London in 1861, Boucicault rewrote the ending to reflect popular prejudice (and keep Zoe alive). T he play of miscegenation is always open to reproduction. Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia* A. L EON H IG G IN BOT H AM , JR. BARBARA K. KOPYT OF F I. Introduction T here is probably no better place than Virginia to examine the origins of the American doctrine of racial purity and the related prohibitions on interracial sex and interracial marriage. Many people applaud Virginia as the ‘‘mother of Presidents’’ (four of the first five Presidents were Virginians)1 and the ‘‘mother of revolutionaries,’’ such as T homas Jefferson, George Washington, and Patrick Henry. Yet few stress that colonial Virginia was also the ‘‘mother’’ of American slavery and a leader in the gradual debasement of blacks2 through its institution of slavery.3 Virginia was also one of the first colonies to formulate a legal definition * From A. Leon Higginbotham, Jr., and Barbara Kopytoff, ‘‘Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia.’’ Georgetown Law Journal 77.6 (August 1989): 1967– 2029. 1. T hese were Presidents Washington, Jefferson, Madison, and Monroe. 2. When we use the term ‘‘black’’ in this Article in reference to pre–Civil War Virginia, we mean it to include all those who at that time were called Negroes or mulattoes. T he two comprised a single legal category, but a single term was not generally used in legal writing of the time. After the Civil War, the term ‘‘colored’’ was used for both, and it has recently been replaced by ‘‘black.’’ See 1888 CODE OF VIRGINIA tit. 4, ch. VI, § 49 (defining ‘‘colored’’ persons and Indians). 3. See A. L. H IGGINBOT HAM , IN T HE M AT T ER OF COLOR: RACE AND T HE AMERICAN L EGAL PROCESS ch. 2 (1978). 82 Higginbotham and Kopytoff of race4 and to enact prohibitions against interracial marriage and interracial sex.5 For more than three centuries,6 the Virginia courts and legislatures advocated and endorsed concepts of racial purity that we would call racist. While Virginia was a pioneer in these areas of law both before and after the Civil War, the pre–Civil War law was significantly different from that of the early twentieth century. T he law of racial purity in the eighteenth century defined ‘‘white’’ as a less exclusive term than did the law of the twentieth century: people some of whose ancestors were known to be African could be legally white. T he laws banning interracial sex and marriage were less harsh on blacks before the Civil War than they were afterwards: they did not punish blacks at all for marriage or for voluntary sexual relations with whites. T his is not to say that Virginia was less racist and oppressive to blacks before the Civil War than it was in the late nineteenth and twentieth centuries, but merely that the legal mechanisms of oppression were somewhat different. Slavery had its own mechanisms for legal control. When it was abolished, white Virginians elaborated other mechanisms to preserve the racial hierarchy of the slave era, among them the laws regarding racial purity and interracial sex. T his Article explores the origin of these laws and their development in colonial and antebellum Virginia. T he laws regarding racial purity and interracial sex in pre–Civil War Virginia sprang from two concerns. T he first concern was with the maintenance of clear racial boundary lines in a society that came to be based on racial slavery. Starting in the late seventeenth century, white Virginians devised statutes to discourage racial intermingling and then statutes to classify racially the mixed-race children born when the earlier statutes were ineffective. T he statutes punishing voluntary interracial sex and marriage were directed only at whites; they alone were charged with the responsibility for maintaining racial purity. T he second concern was with involuntary interracial sex—that is, rape. T his was seen primarily as an aspect of power relations between the races. Virginia applied the early law of rape more harshly to blacks than to whites: it punished only black men for interracial rape and, in the nineteenth century, the state formulated anti-rape statutes directed specifically at blacks. T his Article documents the laws of racial purity and interracial sex in pre–Civil War Virginia. It explores the law and the myth of white racial purity, contrasts the different legal approaches to voluntary and involuntary interracial sex, and 4. See Ch. IV, 3 L AWS OF VA. 250, 252 (Hening 1823) (enacted 1705) (mulatto defined as child, grandchild, or great-grandchild of Negro [and presumably a white] or child of Indian [and presumably a white]). 5. See Act XII, 2 L AWS OF VA. 170, 170 (Hening 1823) (enacted 1662) (fine for interracial sex twice that for fornication): Act XVI, 3 L AWS OF VA. 86, 86–87 (Hening 1823) (enacted 1691) (interracial marriage punished by banishment from Virginia within three months). 6. T he first prohibition against interracial sex came in a 1662 statute; Act XII, 2 L AWS OF VA. 170, 170 (Hening 1823) (enacted 1662). Virginia’s prohibition on interracial marriage was declared unconstitutional in 1967. Loving v. Virginia, 388 U.S. 1, 12 (1967) (prohibition violated equal protection and due process clauses of fourteenth amendment). Racial Purity and Interracial Sex 83 discusses the contribution of this body of law to the development and maintenance of racial slavery in Virginia. Finally, it notes that these issues reflected a far broader process of the debasement of blacks by means of the law. II. Definitions of Race and Racial Classifications When Europeans, sub-Saharan Africans, and American Indians first encountered one another during the expansion of Europe, the three populations had effectively been separated for thousands of years and each had developed distinctive physical characteristics. T he visible differences, especially between Africans and Europeans, were so striking that travelers usually commented on them: ‘‘indeed when describing Negroes they frequently began with complexion and then moved on to dress (or rather lack of it) and manners.’’7 T he causes of the physical variations were open to question, and theories to explain them abounded.8 But the more important question in the Americas became the results of racial difference rather than its causes: that is, the legal and social significance of race. In practical terms, the fact that the differences were so visible gave a particular ease to the operation of a racially based system of slavery. In theoretical terms, when people bothered to ponder the question, they often saw the differences among races as part of a natural ordering of creatures by Providence into a Great Chain of Being, from the highest to the lowest.9 Clearly, such a conception of a hierarchical ordering of races need not imply slavery; the English thought that the Irish were an inferior ‘‘race’’ but did not advocate denying them all basic human rights.10 Yet just as clearly, the idea of racial hierarchy could be, and came to be, used as a justification for slavery. In a 1772 suit in Virginia by a group of Indians who claimed they had been unjustly enslaved, Colonel Bland, the lawyer for the slave owner, argued: T hat societies of men could not subsist unless there were a subordination of one to another, and that from the highest to the lowest degree. T hat this was conformable with the general scheme of the Creator, observable in other parts of his great work, where no chasm was to be discovered, but the several links run imperceptibly into one another. T hat in this subordination the department of slaves must be filled by some, or there would be a defect in the scale of order.11 In Colonel Bland’s notion of the Great Chain of Being, Indians and Negroes were created inferior and were meant to be subservient. Although seldom ex- 7. W. JORDAN , WHIT E OVER BLACK 4 (1968). 8. See id. at 11–20 (climate, disease, natural dyes, and Biblical curse among candidates). 9. T he popularity of this idea increased in the 18th century. See id. at 216–24 (discussing development of idea of hierarchical ordering in Europe during 17th and 18th centuries); id. at 481–511 (discussing relevance of idea of hierarchical ordering of races to American thought). 10. See Curtis, Anglo-Saxonism and the Irish, in RACE AND SOCIAL D IFFERENCE 123–29 (P. Baxter & B. Sansom eds. 1972) (noting shift in meaning of word ‘‘race’’ in 19th century from more neutral and traditional meaning of a particular class or category to more biological and scientific meaning). 11. Robin v. Hardaway, 1 Va. (Jeff.) 58, 62–63 (1772). 84 Higginbotham and Kopytoff pressed clearly and explicitly in eighteenth-century Virginia, the view was implicit throughout Virginia society, especially with regard to Negroes. Since the racially based systems of slavery that developed in the New World were premised on the concept of the racial inferiority of the enslaved, it would have been far simpler had there been no intermingling of races, no anomalous offspring, no confusion of the ‘‘natural order’’ by beings who did not clearly belong to one rather than another of the three populations of Indians, Africans, and Europeans. But human sexual behavior did not respect the ‘‘natural order,’’ and mixed-race children invariably sprang up wherever the races had contact. White Virginians were disturbed by the racial intermingling, especially whiteNegro mixtures, and introduced laws to prevent what they saw as the ‘‘abominable mixture and spurious issue’’12 by penalizing whites who engaged in interracial sex. When that failed, they turned to drawing strict racial boundary lines, defining some mixtures as white and others as mulatto.13 T hey also devised a separate rule to settle the status of mixed-race children as slave or free, depending on the status of the mother. T his rule had general application to all children born in Virginia, whether of mixed race or not.14 Virginia did not create a perfect social system in which black equaled slave and white equaled free with no confusing middle ground. Virginia’s racially based system of slavery was created in the context of continuous racial mixing,15 legal anomalies, and recurrent attempts to patch holes in the fabric of the system. Looking at the system in terms of its anomalies and patches will help bring into focus some of the central conceptions of race and slavery of pre–Civil War Virginia. A. The Law of Slave Status Part of the reason that there was no complete correspondence of race with slave status in pre–Civil War Virginia was that the rule for the inheritance of slave status was, as written, technically independent of race. While white Virginians seemed increasingly to want Negroes to be slaves, the statutes avoided a direct and explicit statement equating race and status. In 1662, the House of Burgesses set down the law on the inheritance of slave status, and it remained virtually unchanged throughout the slave period in Virginia.16 It was devised to settle the 12. 13. 14. 15. Act XVI, 3 L AWS OF VA. 86, 86 (Hening 1823) (enacted 1691). Ch. IV, 3 L AWS OF VA. 250, 252 (Hening 1823) (enacted 1705). Act XII, 2 L AWS OF VA. 170, 170 (Hening 1823) (enacted 1662). Jordan’s impression is that racial mixing in North American colonies and the United States was more common in the 18th century than at any time since, but he stresses the impossibility of discovering the extent of race mixing. W. JORDAN , supra note 7, at 137. Jordan reports that at least one observer before him also held this perception. Id. at 137 n.1 (citing E. REUT ER, T HE M ULAT T O IN T HE U NIT ED ST AT ES 112 [1918]). 16. See Act XII, 2 L AWS OF VA. 170, 170 (Hening 1823) (enacted 1662) (child to inherit mother’s status); Act I, 3 L AWS OF VA. 137, 140 (Hening 1823) (enacted 1696) (same): Ch. XLIX, 3 L AWS OF VA. 447, 460 (Hening 1823) (enacted 1705) (same); Ch. XIV, 5 L AWS OF VA. 547, 548 (Hening Racial Purity and Interracial Sex 85 status of the mulatto children of free white fathers and slave Negro mothers. T he act read: Whereas some doubts have arrisen whether children got by any Englishman upon a negro woman should be slave or free. 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.17 T here was a confounding of ‘‘negro’’ and ‘‘slave’’ in this early statute. It stated that the problem was the doubtful status of the mulatto children of ‘‘negro’’ women; yet ‘‘negro’’ must have meant ‘‘slave’’ or there would have been no question of the slave or free status of the children. In a world in which whites (here ‘‘Englishmen’’) were assumed to be free and Negroes were increasingly assumed to be slaves, a decision had to be made about the status of individuals who did not clearly belong to one race or the other: children whose parents represented two distinct races and two extreme statuses. T he statute did not say that all children of Negroes or of Negro women were to be slaves, probably because not all Negroes were then slaves.18 It would have seemed extreme, no doubt, even to white Virginians of that time, to enslave the child of two free people just because one or both of them were black. Some blacks were landowners and held slaves themselves.19 T he statute said, rather, that all children would be ‘‘bond or free’’ according to the status of the mother.20 T he rule embodied in the statute was thus phrased only in terms of status, not in terms of race. A rough correspondence of race and status was assumed; however, they did not correspond entirely then and they diverged over time, partly as a result of the 17. 18. 19. 20. 1819) (enacted 1748) (same); Ch. VII, 6 L AWS OF VA. 356, 357, (Hening 1819) (enacted 1753) (same). Act XII, 2 L AWS OF VA. 170, 170 (Hening 1823) (enacted 1662) (emphasis omitted). See generally J. RUSSELL , T HE F REE N EGRO IN VIRGINIA, 1619–1685 (1913). See Russell, Colored Freemen as Slave Owners in Virginia. 1 J. N EGRO H IST . 233, 234–37 (1916) (earliest evidence of black slave owner dated 1654). It was contrary to English tradition for children to inherit the status of their mothers, but since the children who posed the problem were almost certainly illegitimate, it may also have been contrary to English tradition for them to inherit a position or status from their fathers. Indeed, the inheritance of slave status was itself anomalous in English law of that era. Villeinage had died out in England and all English men and women of the 17th century were free born, whether legitimate or not. When it existed, villeinage had been heritable in the male line. See Morris, ‘‘Villeinage . . . as it existed in England, reflects but little light on our subject’’: The Problem of the ‘‘Sources’’ of Southern Slave Law, 32 AM . J. L EG . H IST . 95, 105–07 (1988) (concluding common law of property rather than villeinage source of slave law). T he decision to make slave status heritable in the female line marked a departure. T he rule of having children take their mother’s status is known in Civil Law as partus sequitur ventrem. Exactly how the doctrine came into use in Virginia is unclear. It is not known whether it came with slaves brought from Civil Law countries, or was borrowed by the legislators from Roman Law, or was independently invented by Virginians. We do know that the legislators did not in 1662 invent the idea that the progeny of female slaves were also to serve for life; we find evidence for that practice as early as the 1640s. See Jordan, Modern Tensions and the Origins of American Slavery. 28 J.S. H IST . 18, 23–24 (1962) (sales of Negroes for life and of Negro women with future progeny recorded in 1640s). 86 Higginbotham and Kopytoff 1662 statute. T hey failed to correspond because of free Negroes. Some Negroes imported into Virginia before 1662 had never been slaves, and others who had been born slaves were later emancipated. T he children of free black women were free under the statute, as were mulatto children born to white women. Free mulattoes were classified with free Negroes in terms of race and position in society.21 T hey also failed to correspond because, as white men mated with mulatto slave women, a class of very light-skinned slaves was produced. Some individuals, who were slaves because they were remotely descended in the maternal line from a Negro slave woman, had such a high proportion of European ancestry that they looked white.22 Some would even have qualified as legally white under eighteenthand nineteenth-century Virginia statutes that defined race in terms of a specific proportion of white and non-white ancestry. Yet legally, they were also slaves.23 21. See infra note 40 (discussing relative status of blacks and mulattoes). While we can sort out the legal categories of race, the numbers in each are uncertain. T he population figures on which estimates are based are incomplete, especially for the early period, and they do not distinguish Negroes and mulattoes and sometimes do not distinguish slave and free blacks. Edmund Morgan has given population estimates for 17th-century Virginia in the appendix to AMERICAN SLAVERY, AMERICAN F REEDOM : T HE ORDEAL OF COLONIAL VIRGINIA 404 (1975). He also has estimated the number of blacks, but he says those figures are largely conjectural. In 1674, by his estimates, Virginia had 1,000 to 3,000 blacks out of a total population of 13,392. By the end of the century, in 1699, he suggests, Virginia’s population included 6,000 to 10,000 blacks out of 58,040. Id. at 423. We have even less idea how many of those blacks were free. T he first U.S. census reports, from 1790, show that during the 18th century the free and slave black population increased at a far greater rate than the white. In 1790, the total black population was 305,493—of whom 12,866 were free—and the white population was 442,117. By 1860, the last U.S. census under slavery, the total black population was 548,907—of whom 58,042 were free—and the white population was 1,047,299. U.S. BUREAU OF T HE CENSUS, N EGRO POPU LAT ION IN T HE U NIT ED ST AT ES 1790–1915, at 57 (W. Katz ed. 1968) [hereinafter N EGRO POPULAT ION 1790–1915] (figures for black population); id. at 44–45 (figures for white population). 22. T here are a number of references to slaves who looked white. See J. JOHNST ON , RACE RELAT IONS IN VIRGINIA & M ISCEGENAT ION IN T HE SOUT H , 1776–1860, at 209–14 (1970) (contemporary accounts of fair-skinned slaves). T he numbers of fair-skinned slaves increased over time, as the slave population ‘‘lightened.’’ [T ]he glaring fact is that throughout the South, mulatto slavery was on the rise in the decade before the Civil War. Slavery as an institution was becoming whiter and whiter, a direct contradiction to the fundamental white notion that slavery was meant for black people. In 1835, Chancellor Harper of South Carolina had declared that it was ‘‘hardly necessary to say that a slave cannot be a white man,’’ but by the end of the ante-bellum period the facts said otherwise. Growing numbers of persons with predominantly white blood were being held as slaves. J. M ENCKE, M ULAT T OES AND RACE M IXT URE 20 (1979). 23. We have come across no case that held that a slave was free solely on the ground that he or she was legally white. T he point was raised in Henry v. Bollar, 34 Va. (7 Leigh) 552 (1836), in which the plaintiffs alleged, among other things, ‘‘that they were in fact white persons, and therefore could never have been lawfully held in slavery.’’ Id. at 556. T he defendants in the case claimed that those suing for their freedom were mulattoes. Id. at 557. T he court did not address the interesting question of whether persons who had so small a proportion of Negro ancestry that they were legally white could, in fact, be slaves. It found the plaintiffs free on other grounds, Racial Purity and Interracial Sex 87 Being legally white did not make one free if one’s mother were a slave; being Negro or mulatto did not make one a slave if one’s mother were free.24 T he law of the inheritance of slave status was technically independent of race. T his led to anomalies in the society, to people whose status was not considered appropriate to their race in the white Virginians’ ideal conception of their slave society. T o say that a person could legally be a slave if he or she were descended in the maternal line from a slave raises the question of whether the first woman in the line had been legally enslaved. It seems clear from the early documents that Virginians gradually made what Winthrop Jordan has called an ‘‘unthinking decision’’ to enslave Negroes, and they did so in the absence of any specific legal sanction for the practice.25 It was only after the practice was well established that it was reinforced by positive law. T hus the first statute on the legality of enslavement came in 1670, eight years after the statute on the inheritance of slave status.26 T he stated purpose of the statute was to settle the question of whether Indians who were bought as war captives from other Indians could be slaves. Negroes were not mentioned explicitly, but by curiously circumspect language the legislature indicated that imported Negroes were to be slaves. T he act as published was captioned ‘‘what tyme Indians to serve.’’27 It reads, in its entirety: Whereas some dispute have [sic] arisen whither Indians taken in warr by any other nation . . . that taketh them sold to the English, are servants for life or terme of yeares, It is resolved and enacted that all servants not being christians imported into this colony by shipping shalbe slaves for their lives; but what shall come by land shall serve, if boyes or girles, untill thirty yeares of age, if men or women twelve yeares and no longer.28 24. 25. 26. 27. 28. namely, that their owner, who had tried to free them both by will and by deed of emancipation, had been mentally competent to do so. Id. For a brief period of fifteen years, starting in 1676, some Indians also could be legally enslaved, and a female ancestor from that period could produce a line of descendants who were legally slaves. Act I, 2 L AWS OF VA. 341, 346 (Hening 1823) (enacted 1676) (Indians taken during war held as slaves for life); Act I, 2 L AWS OF VA. 401, 404 (Hening 1823) (enacted 1676) (same); Act I, 2 L AWS OF VA. 433, 440 (Hening 1823) (enacted 1679) (same); Act IX, 3 L AWS OF VA. 69, 69 (Hening 1823) (enacted 1691) (abolition of all trade restrictions with Indians). T he 1691 statute was later interpreted as having made enslavement of Indians illegal. See Gregory v. Baugh, 25 Va. (4 Rand.) 246, 252 (1827) (Green, J.) (discussion of these and other statutes regarding enslavement of Indians). See W. JORDAN , supra note 7, at 44, 71–82 (strong pre-1640 historical uncertainty of Negro status and subsequent trend of increasing importance of slavery). Compare Act XII, 2 L AWS OF VA. 283 (Hening 1823) (enacted 1670) (legality of slavery) with Act XII, 2 L AWS OF VA. 170 (Hening 1823) (enacted 1662) (inheritance of slave status). Act XII, 2 L AWS OF VA. 283, 283 (Hening 1823) (enacted 1670). Hening notes, ‘‘T he title of this act in Ch. City and P. Rand MSS. and edi 1733 and 1752, is ‘An act declaring who shall be slaves’; in Purvis, ‘An act concerning who shall be slaves.’ ’’ Id. at 283 n.* (italics omitted). Id. at 283 (italics omitted). T he treatment of Indians by the Virginia legislature and courts is an area which goes far beyond the coverage of this Article. However, even within the context of racial purity and interracial sex, the Virginia legal process demonstrated a hostility to Indians because they were non-white. At a later time, we hope to develop this theme more comprehensively. 88 Higginbotham and Kopytoff Why was enslavement made to depend on manner of importation? If the legislators wanted to enslave Negroes but not Indians, why did they not say so? T here seems to have been a curious avoidance of any mention of Negroes in the statute. In 1682, the statute was revised to eliminate the distinction based on the manner of importation, for the legislature had, in the interim, approved the enslavement of Indians.29 T his time the legislators offered explicit examples of the people whom they contemplated enslaving: ‘‘all [imported] servants except T urkes and Moores whilest in amity with his majesty, . . . whether Negroes, Moors, Mullattoes or Indians.’’30 T he list of likely slave peoples was dropped from the act in the 1705 revision; the revised act noted only which imported servants could not be enslaved, not which could be.31 Enslavement was also made to depend on religion, but this requirement was modified so as to circumscribe a population primarily of blacks and Indians. In the 1670 act, no Christians were to be sold as slaves. But in the 1682 statute, a Christian servant ‘‘who and whose parentage and native country are not christian at the time of their first purchase . . . by some christian’’ could be sold as a slave, notwithstanding his conversion to Christianity before importation.32 T his allowed slaves who had become Christians in the West Indies to be sold in Virginia as slaves. T he provision echoed one in a 1667 statute declaring that slaves in Virginia would not be made free by virtue of their conversion to Christianity once there.33 Now, conversion before importation would not release them either. T hus, religion did not truly circumscribe the population that Virginia legislators meant to exclude from slavery. In 1705, the legislature again revised the rule on enslavement. T he language was simplified, but the substance was the same. T he act exempted those who were Christians in their native country, ‘‘T urks and Moors in amity with her majesty, and others that can make due proof of their being free in England, or any other christian country, before they were shipped hither.’’34 Now prior freedom in a Christian (civilized?) country would protect one from enslavement, but being Christian itself would do so only for those who were Christians in their ‘‘native country.’’35 T hus, the rule of enslavement, like the rule of the inheritance of slave status, was technically independent of race. Even a superficial familiarity with the history See supra note 24 (enslavement of Indians legally valid until 1691). Act I, 2 L AWS OF VA. 490, 491 (Hening 1823) (enacted 1682). Ch. XLIX, 3 L AWS OF VA. 447, 447–48 (Hening 1823) (enacted 1705). Act I, 2 L AWS OF VA. 490, 491 (Hening 1823) (enacted 1682). ‘‘[T ]he conferring of baptisms doth not alter the condition of the person as to his bondage or freedom.’’ Act III, 2 L AWS OF VA. 260, 260 (Hening 1823) (enacted 1667). 34. Ch. XLIX, 3 L AWS OF VA. 447, 447–48 (Hening 1823) (enacted 1705). T his provision would have exempted Jews and other non-Christians who came as servants from England. Slaves who had been manumitted in England before being brought to North America also were to be free. 35. Slaves could be imported until 1785, when slave status was limited to those who were slaves in Virginia on October 17, 1785, or were descendants of the female slaves: persons later brought in as slaves were to be free. Ch. LXXVII, 12 L AWS OF VA. 182, 182–83 (Hening 1823) (enacted 1785). 29. 30. 31. 32. 33. Racial Purity and Interracial Sex 89 of the era would indicate that white Virginians did not truly intend that slave status and race be independent. As the 1682 statute shows, they saw slaves as ‘‘Negroes, Moors, Mullatoes or Indians.’’36 Yet, for the most part, they avoided racial designations in their laws, making enslavement depend on other characteristics instead. Were white Virginians of the mid-seventeenth century reluctant to admit, even to themselves, what they were doing: establishing a slave society based on race?37 B. Statutory Definitions of Race in Virginia We mentioned above the anomaly of people whose status was not appropriate to their race in Virginia slave society. T here were also racial anomalies: people whose race was in itself ambiguous, who did not fit into one or another of the set categories of race that comprised the white Virginian’s view of nature. When the three races first met in Virginia, there was no question or problem as to which race an individual belonged. It was evident at first glance. As Judge Roane observed in Hudgins v. Wright: T he distinguishing characteristics of the different species of the human race are so visibly marked, that those species may be readily discriminated from each other by mere inspection only. T his, at least, is emphatically true in relation to the negroes, to the Indians of North America, and the European white people.38 Initially, there was no need for statutory definitions of race and there were no problems of racial identity to be solved by legislative fiat. However, as soon as the races began to mingle and reproduce, problems of racial identity arose. How should mixed-race offspring be classified? Strictly in terms of genetic contribution, the child of one white parent and one black parent had the same claim to being classified as white as he did to being classified as black. He was neither, or either, or both. One could decide to call such half/ half mixtures mulattoes, but that merely raised the question of classification again in the next generation. Was the child of a mulatto and a white to be deemed a mulatto or a white? Or should another name, like quadroon, be devised for such a person? Of course, the important point was not the name but the set of rights and privileges that accompanied the classification. In Virginia, there were only three racial classifications of any legal significance, though there were far more combinations and permutations of racial mixture. T hose three were ‘‘white,’’ ‘‘Indian,’’ 36. Act I, 2 L AWS OF VA. 490, 491 (Hening 1823) (enacted 1682). T he Moors that the Virginians meant to enslave were most likely Negroes while those ‘‘in amity with his majesty’’ who were not to be enslaved were most likely lighter-skinned people from North Africa. 37. Jordan notes that ‘‘[a]s late as 1753 the Virginia slave code anachronistically defined slavery in terms of religion when everyone knew that slavery had for generations been based on the racial and not the religious difference.’’ W. JORDAN , supra note 7, at 95. 38. 11 Va. (1 Hen. & M.) 71, 74 (1806) (Roane, J., concurring) (emphasis omitted). 90 Higginbotham and Kopytoff and ‘‘Negro and mulatto.’’39 Mulattoes of mixed Negro and white ancestry had the same legal position as Negroes, although their social position may have been somewhat different.40 T hese legal classifications, then, gave rise to the need for a legal definition of race. As Winthrop Jordan notes, ‘‘if mulattoes were to be considered Negroes, logic required some definition of mulattoes, some demarcation between them and white men.’’41 Virginia was one of only two colonies to bow to the demands of logic by creating a precise statutory definition in the colonial period.42 As was noted above, slave status was legally independent of race. Slaves who looked white had no special legal privileges until the nineteenth century, and then their only advantage was that they were relieved of the burden of proof in freedom suits.43 Race did, however, make a considerable difference for free people. T hus, the first legal definition of ‘‘mulatto’’ appeared in a statute dealing with the rights of free persons.44 In 1705, the Virginia legislature barred mulattoes, along with Negroes, Indians, and criminals, from holding ‘‘any office, ecclesiasticall, civill or military, or be[ing] in any place of public trust or power.’’45 T he mixed-race individuals defined as mulatto under the statute were ‘‘the child of an Indian, or the child, grandchild, or great grandchild of a Negro.’’46 Whites had distinct legal advantages, but mulattoes had no greater rights than Negroes. T hus, the important dividing line was the white/ mulatto boundary, not the mulatto/ black boundary. T he fact that some 39. Other aspects of an individual’s heritage might, of course, determine important legal rights. For example, whether his mother was a slave or freewoman, or whether his mother was an unwed indentured white servant or a free white woman. See Act XII, 2 L AWS OF VA. 170, 170 (Hening 1823) (enacted 1662) (whether children bound or free depends solely on condition of mother); Act C, 2 L AWS OF VA. 114, 114–15 (Hening 1823) (enacted 1661) (birth of bastard child by servant extends term of indenture or subjects servant to fine). 40. But see Jordan, American Chiaroscuro: The Status and Definition of Mulattoes in the British Colonies. 19 WM . & M ARY Q. 183, 186 (1962) [hereinafter Jordan, American Chiaroscuro] (finding no evidence of higher social position for mulattoes in the mainland colonies). An explicit statement that Negroes and mulattoes were the same in the eyes of the law did not occur until 1860. T hen, in a statute defining ‘‘mulatto,’’ the legislators said, ‘‘the word ‘negro’ in any other section of this, or in any future statute, shall be construed to mean mulatto as well as negro.’’ VA. CODE ch. 103, § 9 (1860). 41. Jordan, American Chiaroscuro, supra note 40, at 185. 42. Id. North Carolina was the other. Id. 43. Id.; see infra notes 81–84 and accompanying text. 44. Ch. IV, 3 L AWS OF VA. 250, 251 (Hening 1823) (enacted 1705). Although the term ‘‘mulatto’’ was not defined by law until 1705, we find it used as early as March 12, 1655, when the record refers to a ‘‘Mulatto held to be a slave and appeal taken.’’ M INUT ES OF T HE COUNCIL AND G ENERAL COURT OF COLONIAL VIRGINIA 504 (H.R. McIlwaine 1st ed. 1924) [hereinafter M INUT ES]. 45. Ch. IV, 3 L AWS OF VA. 250, 251 (Hening 1823) (enacted 1705). T his statute defines ‘‘mulatto’’ for purposes of holding office only. It could have been defined differently for other purposes, but there was no other statutory definition until 1785. As we shall see below, however, the courts did not apply the strict statutory definition. 46. Id. at 252. Presumably the other ancestors would all be white. Racial Purity and Interracial Sex 91 people were classified as mulatto rather than as Negro seems to have been simply a recognition of their visible differences.47 One notes in the statute’s definition of ‘‘mulatto’’ the different treatment of those whose non-white ancestors were Indians as opposed to Negroes. A person with one Indian parent and one white parent was a mulatto. Someone with one Indian grandparent and three white grandparents was, by implication, legally white and not barred from public office under the statute. For Negro-white mixtures, it took two additional generations to ‘‘wash out the taint’’ of Negro blood to the point that it was legally insignificant. A person with a single Negro grandparent or even a single Negro great-grandparent was still considered a mulatto. Why was there a difference in the legal treatment of white-Indian mixtures and white-Negro mixtures? Perhaps it was related to the degree to which a mixedrace individual looked white to eighteenth-century white Virginians. Perhaps it was also because Europeans tended to see Indians as higher on the scale of creation than Negroes, though still lower than themselves.48 Note that these definitions of race state the rule in theory; we do not suppose that they were rigidly followed in practice. We have found no case from this period in which a claim to being legally white was based on the exact proportion of white blood. At the time of the statute, in 1705, some eighty-five years after the first Negroes had arrived in Virginia, there would barely have been time for the four generations of offspring necessary to ‘‘dilute the taint’’ of Negro blood to the point that it did not count under law. T hus, few if any white/ Negro mixtures would have qualified as white, though there were likely some white/ Indian mixtures who did. T he Virginia legislature, meeting in 1785, changed the legal definition of mulatto to those with ‘‘one-fourth part or more of negro blood.’’49 T hus, by impli- 47. After the Civil War, a single term, ‘‘colored,’’ was often used for both Negroes and mulattoes in legal writing. See supra note 2 (discussing use of various terms designating race). 48. T he favored treatment of Indians was still present in 1924 as indicated by an act of the Virginia legislature that made it unlawful for a white person to marry anyone but another white. A white was defined as someone with ‘‘no trace whatsoever of any blood other than Caucasian’’ or someone with no admixture of blood other than white and a small proportion of American Indian. 1924 Va. Acts ch. 371, § 5, at 535. T his provision was the so-called ‘‘Pocohontas exception,’’ designed to protect descendants of John Rolfe and Pocohontas, who were by then considered part of the white race. However, John Rolfe could not, in 1924, have married Pocohontas. Under the most likely interpretation of the statute, he would have been limited to whites or those who were no more than 1/ 16 American Indian. Wadlington. The Loving Case: Virginia’s Anti-Miscegenation Statute in Historical Perspective, 52 VA. L. REV. 1189, 1202–03 (1966). 49. T he statute was entitled ‘‘An Act declaring what persons shall be deemed mulattoes,’’ and it stated: [E]very person whose grandfathers or grandmothers any one is, or shall have been a negro, although all his other progenitors, except that descending from the negro, shall have been white persons, shall be deemed a mulatto: and so every person who shall have one-fourth part or more of negro blood, shall, in like manner, be deemed a mulatto. Ch. LXXVIII, 12 L AWS OF VA. 184, 184 (Hening 1823) (enacted 1785; effective 1787). 92 Higginbotham and Kopytoff cation, those of one-eighth Negro ancestry (one Negro great-grandparent), who by the 1705 statute had been mulattoes, were now legally white.50 T here is no mention in the statute of Indian ancestry.51 Interestingly, while the definition of mulatto in 1705 excluded from the category of white virtually all of those with any Negro ancestry at the time, the 1785 definition, some four generations later, did not attempt to do the same. Instead, under the 1785 act, a number of mixedrace people who previously would have been classified as mulatto could be considered white. T his was the only time Virginia law was changed to allow persons with a greater proportion of Negro ancestry to be deemed white. All subsequent changes were in the opposite direction—making a smaller proportion of Negro blood bar one from being considered white. Was this statute, as James Hugo Johnston suggests, an effort to bring the law into line with social practice? He says, ‘‘[i]t would appear that the lawmakers of the early national period feared that a declaration to the effect that the possession of any Negro ancestry, however remote, made a man a mulatto might bring embarrassment on certain supposedly white citizens.’’52 He notes that before the Civil War, in no state did the law provide that a person having less than one-eighth Negro blood should be deemed a mulatto.53 Johnston also says that it was no doubt believed to be exceedingly difficult, if not impossible, to enforce a more drastic law of racial identity.54 Yet in fact, Virginia did enact more drastic laws in the twentieth century. Under a 1910 statute, as small a proportion as one-sixteenth Negro ancestry made one ‘‘colored.’’55 T hen, in 1924 and 1930, any Negro blood at all meant that one was not legally white.56 Another possible explanation for the 1785 statute is that it reflected strategic considerations. If supposedly white men of power and position were declared to be mulatto and thus deprived of civil and political rights, they might have formed a dangerous alliance with other ‘‘less white’’ free mulattoes and Negroes whose rights were similarly denied. T heir combined forces would have threatened the 50. In an 1877 case, McPherson v. Commonwealth, 69 Va. (28 Gratt.) 292, Judge Moncure declared that Rowena McPherson could marry a white man because ‘‘less than one-fourth of her blood is negro blood. If it be but one drop less, she is not a negro.’’ Id. at 292. Negro in this context meant both Negro and mulatto, as they comprised one legal category. 51. Ch. LXXVIII, 12 L AWS OF VA. 184 (Hening 1823) (enacted 1785; effective 1787). In this statute, persons of mixed Indian and white ancestry are no longer classified mulattoes, but they appear as mulattoes again in the statutes drawing racial boundary lines starting in 1866. Ch. 17, § 1, 1865– 1866 Va. Acts 84. A person who has one-fourth or more of Indian blood is an Indian, if he is not ‘‘colored.’’ 52. J. JOHNST ON , supra note 22, at 193–94. 53. Id. at 193. 54. Id. at 194. 55. Ch. 357, § 49, 1910 Va. Acts 581. 56. Ch. 371, § 5, 1924 Va. Acts 534–35; Ch. 85, 1930 Va. Acts 96–97. After the Civil War there was a shift from the use of the term ‘‘mulatto’’ to ‘‘colored’’ in the statutes, the latter term comprising the former categories of Negro and mulatto. Ch. 17, § 1, 1865–1866 Va. Acts 84. Racial Purity and Interracial Sex 93 social control over the society of the remaining smaller number still classified as white. Georgia, to encourage the immigration of free mixed-race persons into the colony, provided in 1765 that free mulatto and ‘‘mustee’’57 immigrants might be declared ‘‘whites,’’ with ‘‘all the Rights, Privileges, Powers and Immunities whatsoever which any person born of British parents’’ would have, except the right to vote and to sit in the Assembly.58 Georgia legislators were apparently at that time more concerned about hostile Indians on their southern border than they were about the racial makeup of the colony’s ‘‘white’’ population.59 T hese explanations are merely suggestions. We have no satisfactory answer as to why the 1785 Virginia statute allowed racially mixed persons who formerly were classified as mulatto to become legally white. T he Act itself gives no clue as to the reason for the change. T he percentage of allowable Negro ancestry in a legally white person was not changed again until the twentieth century, and Indian mulattoes were reintroduced in an 1866 statute making a person who was onequarter Indian a mulatto, if he was not otherwise ‘‘colored.’’60 Objectively, the effect of statutes defining a mulatto as someone with a certain proportion of Negro or Indian ancestry, and implying that someone with a smaller proportion of non-white ancestry was legally white, was to make ‘‘white’’ into a mixed-race category. By the early twentieth century, when those classified as white had to have ‘‘no trace whatsoever’’61 of Negro ‘‘blood,’’ there was indeed a great deal of untraced (and, in some cases, untraceable) Negro blood in the white population. We see the notion that Negro ancestry can be gradually diluted into legal insignificance in the case of Dean v. Commonwealth.62 T here, a criminal defendant claimed that two witnesses were incompetent to testify against him because they were mulattoes, and mulattoes could not testify against whites.63 T he court found 57. ‘‘Mustee’’ was a term used in Georgia and the Carolinas to describe a person who was part Indian, ‘‘usually Indian-Negro but occasionally Indian-white.’’ W. JORDAN , supra note 7, at 168–69. 58. T HE COLONIAL RECORDS OF T HE ST AT E OF G EORGIA, 659 (Chandler, comp. 1904–16), quoted in Jordan, American Chiaroscuro supra note 40, at 187. 59. Id. No one was actually naturalized under the statute. Note that Georgia was not willing to give Negroes the full rights and privileges of whites, nor were they willing to give naturalized mulattoes or mustees political power. It was ‘‘a begrudging kind of citizenship’’ that was extended by the legislature. Id. 60. Ch. 17, § 1, 1865–66 Va. Acts 84. 61. Ch. 371, § 5, 1924 Va. Acts 534–35. All of the acts setting out racial definitions, with the exception of the 1924 ‘‘Act to Preserve [white] Racial Integrity’’ defined ‘‘mulatto’’ or ‘‘colored’’ rather then ‘‘white.’’ White is defined by implication. In the 1924 act, ‘‘white’’ is given an explicit definition for the first time in the statute which sets out whom whites could marry. It is the most restrictive of the racial definitions. It defines a white person as one ‘‘who has no trace whatsoever of any blood other than Caucasian; but persons who have [only] one-sixteenth or less of the blood of the American Indian . . . shall be deemed to be white persons.’’ Ch. 371, 1924 Va. Acts 535. T he 1930 statute defining as colored anyone ‘‘in whom there is ascertainable any Negro blood’’ is only slightly less restrictive. Ch. 85, 1930 Va. Acts 97. 62. 45 Va. (4 Gratt.) 210 (1847). 63. Id. at 210. 94 Higginbotham and Kopytoff the witnesses competent, since they had less than one-fourth Negro blood, the legal dividing line under the statute then in force.64 T he description of legal ‘‘lightening’’ over the generations in the reporting of the case is telling: . . . [F]rom the testimony it appeared certainly, that they had less than one fourth of negro blood. T heir grandfather, David Ross, who was spoken of as a respectable man, though probably a mulatto, was a soldier in the revolution and died in the service. T he evidence as to the grandmother was contradictory; though she was probably white, the mother was so certainly.65 T he grandfather would have been incompetent to testify because he was a mulatto, but the grandchildren were not.66 T he grandmother was probably white but the mother was certainly so. T hus, in mid-nineteenth century Virginia, mulatto parents and grandparents could have children and grandchildren who were legally white. T hat became legally impossible only in the twentieth century, when any trace of Negro blood would disqualify a person from being considered white under the law.67 Whites in pre–Civil War Virginia paid a strategic price to maintain their ideal of white racial purity. Had they declared, for example, that anyone with more than fifty percent white blood was legally white, they would have had less to fear from an alliance of free mulattoes and slaves. T hen, however, their racial rationale for slavery would have been undermined because the number of legally white slaves would have increased greatly. It would have been hard to maintain that slavery was justified by the inferiority of the Negro if large numbers of slaves were classified as white under Virginia law. T he white population was in fact racially mixed, but the proportion of non-white ancestry allowable in a white person was so small that it was not very visible. It was so small that, as we shall see, white Virginians could maintain the myth that it was not there at all. C. Natural and Cultural Definitions of Race Most anthropologists today reject the notion that the world’s races are distinct types and prefer to speak instead of clusterings of physical traits that occur differentially in different populations.68 If one moves south from northern Europe, 64. Id. at 210–11. 65. Id. at 210 (emphasis omitted). 66. In Chaney v. Saunders, 17 Va. (3 Munf.) 621 (1811), the plaintiff tried to introduce the deposition of a man who the defense claimed was one-fourth Negro. Id. at 622. A number of witnesses were called by both sides on the issue of the deponent’s race. Id. T he trial court ruled in favor of the defendant and would not allow the deposition to be read. Id. T he district court reversed the ruling, but the Supreme Court of Appeals reversed again, on the ground that the trial court was better able to judge the credibility of the witnesses. Id. T he Supreme Court called the evidence ‘‘extremely contradictory.’’ Id. 67. See supra note 61 (20th-century Virginia statutes defining white and ‘‘colored’’ persons). 68. For anthropological views of race, see generally T HE CONCEPT OF RACE (A. Montagu ed. 1964) (rejecting proposition that certain races should be assumed to exist and arguing that racial definitions are only meaningful at end of population inquiry); UNESCO, RACE AND SCIENCE 269, Racial Purity and Interracial Sex 95 through the Mediterranean and North Africa to sub-Saharan Africa, the changes in the populations are gradual; there is a continuum of physical characteristics. For seventeenth and eighteenth-century Virginia, however, the view that prevailed was one of ideal racial types, and the three populations that met and mixed in Virginia fit that model. Northern Europeans and sub-Saharan Africans represented extreme points on the Old World continuum of physical types, and they were plucked out of that continuum and replanted in the New World. American Indians were markedly different from the other two. T here had been no intermingling of these three populations for many thousands of years and they exhibited great contrasts of physical traits. T hus, it was easy for colonial white Virginians, and it is easy for many of us even today, to think of Africans, American Indians, and Europeans in terms of ideal pure racial types and to see other populations representing other points on the Old World continuum—e.g., North Africans—as somehow ‘‘in-between’’ or ‘‘mixed.’’ It also is easy to see the three races as natural categories. But in the eighteenth century, when Virginia law drew racial boundary lines, it was not dealing with natural categories but with legal constructions. It drew a boundary line separating mulattoes from whites and changed the position of the line from time to time. What is interesting is that the idea of white racial purity was maintained even when the law recognized that a certain amount of racial mixture could be present. ‘‘Mulatto’’ was not every racially mixed child, but only mixtures up to a certain point. Beyond that point, the fact of mixture was not legally recognized until well into the twentieth century, when the definition of mulatto or ‘‘colored’’ was changed to include all people with any Negro ancestry.69 By that time it was far too late to identify all those with any Negro ancestry in the legally white population. T he racial boundary was drawn differently for white/ Indian and white/ Negro mixtures, it changed over time for both, and all of the ‘‘pure’’ racial categories defined by the law—white, Indian, and Negro—included in their defi- 273 (1961) (recognition that ‘‘views about race uniformity and purity and fixity of racial differences were wrong’’ and assertion that race is ‘‘a population, which differs from other populations in relative commonness of certain hereditary traits’’): M. WEISS & A. M ANN , H UMAN BIOLOGY AND BEHAVIOR: AN ANT HROPOLOGICAL PERSPECT IVE 526, 533 (1985) (‘‘idea of the ‘pure’ race can be laid to rest’’ in favor of categorization based on ‘‘regular variation in a trait over space shown by the alteration in the frequency of one or more traits from population to neighboring population’’). For a history of the concept of race in early 19th-century America, see W. ST ANT ON , T HE L EOPARD ’S SPOT S: SCIENT IFIC AT T IT UDES T OWARD RACE IN AMERICA 1815–1859 (1960). 69. In 1870, the U.S. Census Bureau defined the term ‘‘mulatto’’ to include ‘‘quadroons, octoroons, and all persons having any perceptible trace of African blood.’’ N EGRO POPULAT ION 1790–1915, supra note 21, at 207. Instructions for the 1890 census defined ‘‘black’’ to include all persons ‘‘having three-fourths or more ‘black blood.’ ’’ Id. Other persons with a lesser proportion of ‘black blood’ were classified as ‘‘mulatto’’ (3/ 8–5/ 8 black blood), ‘‘quadroon’’ (1/ 4 black blood), or ‘‘octoroon’’ (any trace of up to 1/ 8 black blood). Id. In 1910, ‘‘mulatto’’ was defined for census purposes as anyone having some ‘‘proportion or perceptible trace of Negro blood.’’ Id. In 1850 and 1860, the terms ‘‘black’’ and ‘‘mulatto’’ were not defined. In 1850 enumerators were told to write ‘‘B’’ or ‘‘M’’ on the schedule for black and mulatto, but in 1860 they were given no such instructions. Id. 96 Higginbotham and Kopytoff nitions mixed-race individuals. Yet the myth of natural categories of race was maintained, with all the moral force that the idea of a ‘‘natural order’’ could confer on such a categorization. In Kinney v. Commonwealth of Virginia,70 in holding that an interracial couple who married outside Virginia were in violation of Virginia anti-miscegenation law when they entered the state, the judge wrote: T he purity of public morals, the moral and physical development of both races, and the highest advancement of our cherished southern civilization, under which two distinct races are to work out and accomplish the destiny to which the Almighty has assigned them on this continent—all require that they should be kept distinct and separate, and that connections and alliances so unnatural that God and nature seem to forbid them, should be prohibited by positive law and be subject to no evasion.71 T he ‘‘two distinct races’’ to which the judge in Kinney referred—black and white—had been mixing for some 250 years, and yet the law still recognized only ‘‘two distinct races,’’ each of which had many members of mixed ancestry. T hus, many of the ‘‘connections and alliances’’ between men and women who fell under the same racial classification in eighteenth and nineteenth-century Virginia law were, in fact, alliances of people one or both of whom was a product of racial mixing. In this respect, some of the alliances between legally white individuals were no different from some of the alliances between individuals the law labeled of different races (white and mulatto), yet it was only the latter alliances that the judge called ‘‘so unnatural that God and nature seem to forbid them.’’72 In nineteenth-century Virginia, the concept of a ‘‘pure white race’’ as a category of nature was a myth. It was a powerful myth, however, one used to support social and legal action, as in the Kinney decision, and to justify the oppression of non-whites. Pure white race as a legal concept was a vigorous and powerful cultural construct. It gained force in the late nineteenth and early twentieth centuries, and was called on to justify an ever harsher set of repressive legal measures against blacks. 70. 71 Va. (30 Gratt.) 284 (1877). 71. Id. at 287. T he idea of a natural, divinely sanctioned separation of races was used to justify segregation in an 1867 Pennsylvania case, West Chester & Philadelphia Railroad Co. v. Miles, 55 Pa. (5 P.F. Smith) 209 (1867). T he court stated: Why the Creator made one [race] black and the other white, we know not; but the fact is apparent, and the races distinct, each producing its own kind, and following the peculiar law of its constitution. Conceding equality, with natures as perfect and rights as sacred, yet God has made them dissimilar, with those natural instincts and feelings which He always imparts to His creatures when He intends that they shall not overstep the natural boundaries He has assigned to them. T he natural law which forbids their intermarriage and that social amalgamation which leads to a corruption of races, is as clearly divine as that which imparted to them different natures. T he tendency of intimate social intermixture is to amalgamation, contrary to the law of races. Id. at 213. 72. Kinney, 71 Va. at 287. Racial Purity and Interracial Sex 97 D. Applications of Racial Classifications by Courts and by the Legislature in Private Acts In drawing a racial line, the real concern of white Virginians seems to have been to maintain the purity of the white race and to preserve it from visible ‘‘darkening.’’ T here was no similar concern with preserving the Negro race from ‘‘lightening.’’ While the statutes defined ‘‘mulatto,’’ and, by implication, ‘‘white,’’ in terms of the proportion of white and non-white ancestry rather than in terms of physical appearance, in practice distinctions were based on appearance.73 For most mixed-race children, there were no formal genealogies, no marriage records, no legal marriages. It would have been difficult to prove that one was one-sixteenth rather than one-eighth Negro, or one-eighth rather than one-fourth, and for the most part, no one seemed to try. People did not base their legal claims on the exact proportion of white and non-white ancestry; when people claimed to be white, the matter was generally settled by appeal to their appearance. As discussed above, slave status as defined by statute was independent of race.74 It was, however, important to know whether free persons were legally white or mulatto, for there were statutes imposing special burdens on free Negroes and mulattoes. T hus, Sylvia Jeffers and her children, emancipated in 1814 by the will of her deceased master, petitioned the Hustings Court of Petersburg, Virginia, in 1853 to be declared legally white.75 T he court granted their plea, and they were released from the civil and political disabilities from which they had suffered as free mulattoes. Sylvia Jeffers and her children were no more white, genetically or in appearance, after the court granted their petition than when they were slaves, but a declaration that they were legally white would have been of little use to them until they became free.76 In a similar petition, this time before the Virginia Assembly in 1833, five members of the Wharton family asked after they were freed to be released from the operation of a statute requiring all slaves emancipated since 1806 to leave the commonwealth within twelve months.77 T he Assembly granted their petition, saying in the preamble to the act, ‘‘it appears to the general assembly that [the petitioners] are not negroes or mulattoes, but white persons, although remotely descended from a colored woman.’’78 In other petitions by ‘‘free persons of color’’ 73. One can compare racial definitions based entirely on ancestry, or genotype, with ones based primarily on appearance, or phenotype. For example, the latter type of definition is used in South African law. T here a white person is one who ‘‘in appearance obviously is a white person and who is not generally accepted as a colored person; or is generally accepted as a white person and is not in appearance obviously not a white person,’’ Population Registration Act of 1950 § 1 (1950), quoted in J. D UGARD , H UMAN RIGHT S AND T HE SOUT H AFRICAN L EGAL ORDER 61 (1978). 74. See supra Part II.A. 75. J. JOHNST ON , supra note 22, at 206. 76. T he fact that a slave looked white shifted the burden of proof in freedom suits. See infra text accompanying notes 81–93 (discussing Hudgins v. Wright). 77. Ch. 63, § 10, 1805 Va. Acts 35–36. 78. Ch. 243, 1832 Va. Acts 198, 198. An act passed earlier in the same session authorized the county courts, 98 Higginbotham and Kopytoff made at around the same time, the petitioners listed specific circumstances justifying their pleas, and the assembly usually granted only an extension of time beyond the twelve-month limit.79 In the Whartons’ case, racial appearance was sufficient justification to exempt them entirely from the operation of the statute. Note here that even the legislature that had devised the statutory definition of mulatto and, by implication, of white, seemed to be using a definition based not on proportion of ancestry as set out in the statute, but rather on appearance. T hey were not declaring the Whartons white because of their exact proportion of white ancestry, but because they had the appearance of white persons.80 If the applicants looked white, there was apparently little fear that they would darken and thus corrupt the white race. upon satisfactory evidence of white persons being adduced before any such court, to grant to any free person of mixed blood, resident within such county, not being a white person nor a free negro or mulatto, a certificate that he or she is not a free negro or mulatto, which certificate shall be sufficient to protect and secure such person from and against the pains, penalties, disabilities and disqualifications, imposed by law upon free negroes and mulattoes, as free negroes and mulattoes. Ch. 80, § 1, 1832 Va. Acts 51, 51. Presumably this statute applied to Indians, Indian-white mixtures, or other mixtures lacking the statutory proportion of Negro ancestry to make them mulatto. We may assume it did not apply to Negro-white mixtures because no middle ground between mulatto and white was recognized. See Dean v. Commonwealth, 45 Va. (4 Gratt.) 210, 210–11 (1847) (child of white and mulatto parents is either mulatto or white). 79. If the free colored person were allowed to remain in Virginia, the grant of privilege included a clause revoking the extension if he or she were convicted of any offense. For specific instances of these clauses, see, e.g., Act of Jan. 31, 1835, concerning Margaret, sometimes called Margaret Moss, a free woman of color, Ch. 214, 1834 Va. Acts 239 (seven-year privilege, revocable upon conviction of any crime); Act of Feb. 12, 1835, allowing Dick Skurry, a free man of color, to remain in the commonwealth, Ch. 215, 1834 Va. Acts 239 (no time limit on privilege, but revocable upon conviction); Act of Feb. 16, 1835, allowing Hope Butler, a free man of color, to remain in the Commonwealth, ch. 216, 1834 Va. Acts 239 (same). 80. T he text of the act in its entirety is as follows: Whereas it appears to the general assembly, that William Wharton, Lemuel Wharton, Barney Wharton, Nancy Wharton and Lewis Wharton, of the county of Stafford, who were heretofore held in slavery by John Cooke, senior, deceased, and acquired their freedom since May, eighteen hundred and six, are not negroes or mulattoes, but white persons, although remotely descended from a coloured woman; and they having petitioned the general assembly to be released from the operation of the statute requiring all slaves emancipated since May, eighteen hundred and six, to remove beyond the limits of this commonwealth: 1. Be it enacted by the general assembly, T hat the said William Wharton, Lemuel Wharton, Barney Wharton, Nancy Wharton and Lewis Wharton, shall be, and they are hereby released and discharged from all pains, forfeitures and penalties whatsoever, incurred by them, or any of them, or to which they or any of them may be subject or liable, by reason of their failure heretofore or hereafter to remove beyond the limits of this commonwealth. 2. T his act shall be in force from the passing thereof, Act of Mar. 5, 1833, concerning William Wharton and others, Ch. 243, 1832 Va. Acts 198 (1833) (italics omitted). Racial Purity and Interracial Sex 99 T he legal importance of racial appearance was set out formally in the 1806 case of Hudgins v. Wright.81 T here, the court declared that racial appearance was to determine who bore the burden of proof in freedom suits. As Judge Roane said: In the case of a person visibly appearing to be a negro, the presumption is, in this country, that he is a slave, and it is incumbent on him to make out his right to freedom; but in the case of a person visibly appearing to be a white man, or an Indian, the presumption is that he is free, and it is necessary for his adversary to show that he is a slave.82 T he presumption established in Hudgins v. Wright gave Nanny Pagee and her children their freedom in 1811.83 T he Supreme Court of Virginia held in her case that the jury’s finding, from visual inspection, that ‘‘Nanny Pagee, is a white woman . . . was quite sufficient; it being incumbent on the defendant to have proved, if he could, that the plaintiff was descended in the maternal line from a slave. Having not proved it, she and her children must be considered as free.’’84 T he statutes had imperfectly established the identity of black with slave and white with free. T he judiciary stepped in with a modification in the form of a presumption setting the burden of proof differently in the case of those who appeared to be whites and Indians on the one hand and those who appeared to be Negroes on the other. T he judiciary was not unanimous in wanting to impose the extra burden on blacks seeking freedom. In the lower court in Hudgins v. Wright, Chancellor George Wythe had declared that when one person claimed to hold another in slavery, the burden of proof always lay on the claimant, ‘‘on the ground that freedom is the birth-right of every human being, which sentiment is strongly inculcated by the first article of our ‘political catechism,’ the bill of rights.’’85 T he Virginia Supreme Court refused to endorse this view, finding that it infringed too far on the property rights of white Virginians. Judge St. George T ucker wrote: I do not concur with the Chancellor in his reasoning of the first clause of the Bill of Rights, which was notoriously framed with a cautious eye to this subject, and was meant to embrace the case of free citizens, or aliens only; and not by a side wind to overturn the rights of property, and give freedom to those very people whom we have been compelled from imperious circumstances to retain, generally, in the same state of bondage that they were in at the revolution, in which they had no concern, agency, or interest.86 81. 11 Va. (1 Hen. & M.) 71 (1806). 82. Id. at 74 (Roane, J., concurring). Judge T ucker made the same point in the leading opinion. Id. at 73–74 (majority opinion). 83. Hook v. Nanny Pagee, 16 Va. (2 Munf.) 500, 503 (1811). 84. Id. at 503 (emphasis in original). 85. 11 Va. at 71. 86. Id. at 74 (emphasis omitted). 100 Higginbotham and Kopytoff If the individual claiming freedom was not, on inspection, unambiguously white, Indian, or Negro, the question of burdens, presumptions, and evidence became more complicated. One case contained an elaborate discussion of what evidence could be admitted to establish pedigree in the case of a mixed blood individual who claimed freedom based on descent in the maternal line from a free Indian. In Gregory v. Baugh87 the plaintiff’s maternal grandmother, Sybil, was ‘‘a copper-coloured woman, with long, straight, black hair, with the general appearance of an Indian, except that she was too dark to be of whole blood.’’88 T he plaintiff himself was a ‘‘man of color.’’89 Among the questions that had to be decided was whether Sybil’s dark color came from the maternal line, making her presumptively a slave, or from the paternal line, in which case she might be a free Indian. She might also have descended in the maternal line from an Indian who had been enslaved during a brief period when it was lawful to enslave some Indians. In that case, legally, she would be a slave.90 T he question of what evidence could be introduced to establish her ancestry occupied much of the case. No simple presumption in the plaintiff’s favor was made here as in Hudgins v. Wright.91 In the case of light-skinned individuals of mixed ancestry, the question of whether the non-white blood came from the maternal or paternal line was of critical importance, as slave status was inherited only in the maternal line. Questions of evidence and proof became correspondingly more complicated. As Judge Roane noted in Hudgins v. Wright: When, however, these races become intermingled, it is difficult, if not impossible, to say from inspection only which race predominates in the offspring, and certainly impossible to determine whether the descent from a given race has been through the paternal or maternal line. In the case of Propositus of unmixed blood, therefore, I do not see but that the fact may be as well ascertained by the Jury or the Judge, upon view, as by the testimony of witnesses, who themselves have no other means of information: but where an intermixture has taken place in relation to the person in question, this criterion is not infallible; and testimony must be resorted to for the purpose of shewing through what line a descent from a given stock has been deduced; and also to ascertain, perhaps, whether the colouring of the complexion has been derived from a negro or an Indian ancestor.92 87. 88. 89. 90. 25 Va. (4 Rand.) 246 (1827). Id. at 246. Id. See Hudgins, 11 Va. at 73 (Indians brought into Virginia could be legally enslaved between the passage of the act of 1679 and 1691) (T ucker, J.). 91. Compare Gregory v. Baugh, 25 Va. (4 Rand.) 246, 249 (‘‘though evidence by hearsay and general reputation be inadmissible as to pedigree, it is not admissible to prove the freedom of the plaintiff’s ancestor, and thence to deduce his own’’) with Hudgins, 11 Va. at 73 (‘‘all American Indians are prima facia free: and that where the fact of their nativity and descent, in a maternal line, is satisfactorily established, the [burden] of proof thereafter lies upon the party claiming to hold them as slaves’’) (T ucker, J.). 92. 11 Va. at 73 (Roane, J., concurring). Racial Purity and Interracial Sex 101 In attempting to apply this dictum of Hudgins v. Wright regarding the introduction of evidence to show line of descent in a freedom suit, Judge Carr in Gregory v. Baugh cautioned against allowing the emotional bias in favor of liberty to cause one to bend the law of evidence. Quoting Chief Justice John Marshall’s opinion in Mima Queen and Child v. Hepburn,93 he stated: However the feelings of the individual may be interested on the part of the person claiming freedom, the Court cannot perceive any legal distinction between the assertion of this, and any other right, which would justify the application of a rule of evidence to cases of this description, which would be inapplicable to general cases, in which a right of property may be asserted.94 Carr felt compelled to add, ‘‘I have thought it proper to state these authorities in order to fortify the mind against that bias we so naturally feel, in favor of liberty.’’95 T he legislature and the judiciary played complementary roles in establishing the racially based system of slavery that flourished in pre–Civil War Virginia. T he legislature set out legal definitions of race and rules for the inheritance of slave status, but it refrained from an open declaration that Negroes were to be slaves and whites and Indians were to be free. Instead it relied on custom and circumlocutions, as in a 1670 statute making non-Christian servants imported by sea (Negroes) serve for life, and those imported by land (Indians) serve for a term of years.96 It was the judiciary that took the bold and overt step of equating black with slave and white with free by assigning the burden of proof in freedom suits and by denying to Negroes the presumption of freedom contained in the Bill of Rights. It also cautioned itself, in hearing evidence, not to be emotionally swayed by the fact that an individual’s freedom was at stake, but rather to treat the evidence as one would do in any ordinary property case. T he judiciary, which had developed the notion of slaves as property in elaborate detail, applied that perspective to blacks claiming their freedom; the property rights of white Virginians restrained the judiciary from extending the presumption of freedom to those who looked like slaves. By the nineteenth century, when Hudgins v. Wright was decided, the judiciary was well-versed in using the intricacies of the law of property and evidence as a shield behind which the humanity of the slave was hidden. T he judges became involved with the legal patterns on the surface of the shield, not with the person behind it. But, as Judge Carr’s admonition demonstrates, the preoccupation with legal intricacies at the expense of the person suing for his freedom was at times a strain, even at the appellate level where the judges were not directly faced with the individuals who claimed their freedom. 93. 94. 95. 96. 11 U.S. (7 Cranch) 290 (1813). Id. at 295, quoted in Gregory, 25 Va. at 247 (emphasis added). 25 Va. at 247. Id. at 251 (citing Act XII, 2 L AWS OF VA. 283, 283 [Hening 1823] [enacted 1670]). 102 Higginbotham and Kopytoff III. Voluntary Interracial Sex and Attempts to Discourage It A. Concern over Interracial Sex As it became obvious to white Virginians that interracial sex posed a threat to white racial purity, they tried to suppress it. Apparently, they did not perceive the threat immediately. T he first clear legal pronouncement on interracial sex came in the 1662 statute on the inheritance of slave status.97 In Virginia before the 1660s, there was no unambiguous legal statement against interracial sex per se, as distinguished from illicit sex in general—that is, non-marital sex. T here were several instances of public condemnation of couples who engaged in interracial sex, but the importance of the race factor was unclear. T he early cases are inconsistent in their treatment of blacks. When, in 1630, the Council ordered ‘‘Hugh Davis to be soundly whipt before an assembly of negroes & others for abusing himself to the dishonr of God and shame of Christianity by defiling his body in lying with a negro,’’ the Negro partner was not punished, and we cannot tell whether the sexual offense was made worse by the race of Davis’s partner.98 On the other hand, in 1640, when Robert Sweat had only to do public penance in church according to the law of England, for getting with child the Negro servant of another man, his Negro partner was to be ‘‘whipt at the whipping post.’’99 In a case in 1649, penance in church was imposed on both the white man and his Negro partner: William Watts and Mary (Mr. Cornelius Lloyds [sic] negro woman) are ordered each of them to doe penance by standing in a white sheete with a white Rodd in theire hands in the Chappell of Elizabeth River in the face of the congregation on the next sabbath day that the minister shall make penince [sic] service and the said Watts to pay the court charges.100 T his same punishment was sometimes used for white couples who were found guilty of fornication,101 and the court records before the 1660s show fines or 97. Act XII, 2 L AWS OF VA. 170, 170 (Hening 1823) (enacted 1662) (‘‘If any christian shall committ ffornication with a negro man or woman, hee or shee so offending shall pay double the fines imposed by the former act.’’). T his ‘‘former act,’’ Act C, 2 L AWS OF VA. 114, 114–115 (Hening 1823) (enacted 1661–62), established penalties for ‘‘the filthy sin of fornication’’ but contained no mention of interracial sexual relations. 98. M INUT ES, supra note 44, at 479. Davis’s race was not stated in the opinion. From this and the phrasing we may infer that he was white. T he customary practice was to refer to whites, but not blacks, by full name, and to give no racial designation for whites. When blacks are referred to by first and last name, their race is noted. We also cannot tell the gender of the Negro. T he extremely strong language may have reflected the Council’s revulsion at a homosexual relationship. 99. Id. at 477. 100. Lower Norfolk County Order Book 139 (1646–50), quoted in W. BILLINGS, T HE OLD D OMINION IN T HE SEVENT EENT H CENT URY 161 (1975). 101. W. JORDAN , supra note 7, at 79 (citing 2 P. BRUCE, ECONOMIC H IST ORY OF VIRGINIA IN T HE SEVENT EENT H CENT URY 110 [1896]). Racial Purity and Interracial Sex 103 whippings commonly given as punishment for both partners in cases of fornication, regardless of race.102 From Virginia’s Eastern Shore Counties, records of an unusual group of free black property owners have survived from the mid-seventeenth century.103 T hese records shed interesting light on the attitude of early Virginians towards race and interracial sex. In those counties during that brief era, free whites and blacks who committed sexual offences were treated in a similar manner whether their partners were of their own race or not.104 In 1654, a black couple, ‘‘Richard Johnson, Negro and Negroe woman of the Family of Anthony Johnson, Negro’’ and a white couple, Abraham Morgan and Ann Shawe (who by the time the case was decided had become husband and wife), were reported by the churchwarden for fornication and adultery. T he churchwarden was obliged to report them, so that ‘‘according to Lawe Such offenders maye receive punishment.’’105 No difference in the treatment of the two couples was noted. White men who fornicated with black or white women were charged a standard fine of 500 pounds of tobacco.106 John Oever was fined that amount in 1663 for fornicating with Margaret Van Noss, a white woman, and Charles Cumnell had been given the same fine in 1658 for ‘‘Committinge . . . Ellicit Fornication with a Negro woman of Mr. Michael.’’107 T here is no mention of punishment for either of these women, but black women who can be identified from the record as being free blacks were called to stand trial for their actions, whether their partners were white or black. In 1663, Jane Driggus, the daughter of a free black property owner, and her white lover, Denum Olandum, both had to pay court costs and to post bond to ensure their future good behavior when they had a mulatto bastard. In addition, Olandum had to promise to support the child.108 In 1666, Sara King, a free Negro, was to stand trial along with her Negro lover, T homas Driggus, servant to Lieutenant William Kendall, for fornication. When she failed to appear, the sheriff was ordered to take her into custody until she posted bond sufficient to guarantee her appearance.109 Free black men were required to support their free bastard children in the same manner as were white men. In 1663, John Johnson, a free black property owner, had a child by Hannah Leach, a white servant on a neighboring plantation.110Aside from posting bond to ensure the child’s support, and his future good behavior, 102. E. M ORGAN , supra note 21, at 333. 103. See T . BREEN & S. INNES, ‘‘M YNE OWNE G ROUND ’’: RACE AND F REEDOM ON VIRGINIA’S EAST ERN SHORE 1660–76 at 68–109 (1980) [hereinafter T . BREEN ] (describing in detail social and economic interrelationship of early white and free black communities). 104. Id. at 94–96, 107. 105. Id. at 94–95. 106. Id. at 95. T he fine for interracial fornication was increased in 1662. See infra notes 123–24 and accompanying text (citing statutes). 107. T . BREEN , supra note 103, at 95. 108. Id. 109. Id. at 95–96. 110. Id. at 96. 104 Higginbotham and Kopytoff Johnson had to ‘‘pay and sattisfie all . . . damages.’’111 Presumably, that included payment to the woman’s master for time she lost from work. Johnson also had to get a wet nurse for the child. Hannah Leach escaped whipping only because her master agreed to pay 1,000 pounds of tobacco.112 Philip Mongum, another free black, had a child by Margery T yer, a white woman. Like Johnson and Olandum, Morgan had to post bond to ensure his good behavior and the support of the child. He was also fined 500 pounds of tobacco for the sin of adultery, and was ordered to keep away from T yer. She was given four lashes—perhaps there was no one to post bond to save her from corporal punishment—and was warned to keep away from Morgan or suffer further whipping.113 T he punishments meted out to these free participants in illicit sexual unions seemed to depend more on their economic status and affluence than on their race. Regardless of the race of either party, men and women of property were fined, those who could not pay often were whipped, and men were required to pay damages and to support their free bastard children. Race did not make a noticeable difference when the offenders were known to be free. T here were other cases, however, in which the black partners went unnamed and unpunished. When Charles Cumnell was fined for fornicating with ‘‘a Negro woman of Mr. Michael,’’114 the fate of the woman was not mentioned. William Sriven was formally charged with ‘‘Committinge the sin of Fornication with a Negro woman,’’ but his partner apparently was not charged.115 T he Irishman John Dorman was convicted of getting a ‘‘Negro woman’’ with child and had to pay damages and costs. Again, the woman apparently was not charged. Furthermore, John Dorman was not specifically required to post security to ensure that the parish would not have to bear the cost of raising the child.116 T he one unnamed Negro woman who appears to have been held accountable for her sexual behavior was attached to a black family. T hat was the ‘‘Negro woman of the Family of Anthony Johnson, Negro’’ with whom Richard Johnson, Negro, had committed fornication and adultery.117 Who were the three nameless Negro women of whom no notice was taken except to say that white men had sinned with them? We suggest that they were slaves, or servants for life, if the slave status had not yet been fully formalized. T here was no need to order the man to post bond ensuring support for the bastard children because the parish did not need to be concerned that these bastard children would become economic burdens. Rather, the children would become economic resources to the mothers’ masters. T here would have been no point in fining the women or ordering them to post bond, because they had no money. 111. Id. 112. Id. One thousand pounds was the statutory fine for a ‘‘christian’’ (white person) who engaged in interracial sex after 1662. See infra notes 123–24 and accompanying text (citing statute). Hannah Leach would have had to serve extra time to work off the debt. 113. T . BREEN , supra note 103, at 107. 114. Id. at 95. 115. Id. at 95–96. 116. Id. at 96. 117. Id. at 95. Racial Purity and Interracial Sex 105 T heir owners would not have posted bond to save them from whipping because they could not recover the money in the form of additional service. T he women could, of course, have been whipped, but there is no record that they were. Free blacks, on the other hand, were held to the same standard of sexual conduct as were whites. One might then be tempted to say that it was slave status rather than race that caused the difference in treatment in this early period, but that would be misleading. Race, after all, determined who could be enslaved.118 T hus, a difference based on slave status was, in a sense, a difference based on race. A more accurate characterization might be to say that some free blacks could ‘‘rise above their race.’’ T hese prosperous blacks of the Eastern Shore were not newly arrived Africans. T hey were highly acculturated men and women of African origin, property owners who were skilled at making a living in the new colony. Many of them were married and probably were Christians. T he evidence from the Eastern Shore suggests that for a brief period they were treated as ‘‘black Virginians’’ rather than as members of an exotic and inferior race.119 In any case, the specific significance of race in the early cases is uncertain, at least insofar as ‘‘race’’ meant purely physical characteristics. When there was a difference in the treatment of Negroes in the early cases, it might have been due to their ‘‘pagan’’ or Muslim religion as well as to their physical type. Yet these aspects of the Negro’s separateness—physical type, religion, even language— tended to be parts of a parcel to early white Virginians. When there were exceptions, like the free blacks of the Eastern Shore who had mastered the language and culture of the whites, they were treated much as the whites were. T hat, however, was only in the early days of the Virginia colony, before ideas of race and social status had hardened. Later, when the parcel fell apart, the whites focused on physical type rather than on religion, language, or other aspects of culture, probably because it was the only aspect of difference that was immutable. T hus, the role of race as physical type is unclear in the early cases. Negroes were sometimes, but not always, treated differently from whites. When they were, we attribute this difference in treatment to the fact that the whites saw them as fundamentally different sorts of human beings, not only because they had a different appearance, but because they had a different culture as well.120 We cannot 118. See supra notes 15–36 and accompanying text (discussing race as basis for slavery). T his was true in fact, though not in the technical language of the law. 119. See T . BREEN , supra note 103, at 110–11 (describing equalities of treatment between whites and free blacks on Eastern Shore of Virginia). 120. T he legislature in 1667 downgraded its reliance on religious distinctions with the enactment of a statute providing that slaves were not to be freed by virtue of conversion to Christianity. Act III, 2 L AWS OF VA. 260, 260 (Hening 1823) (enacted 1667). But heathenism continued to be associated with Negroes. As Jordan explains it: What had occurred was not a change in the justification of slavery from religion to race. No such justifications were made. T here seems to have been, within the unarticulated concept of the Negro as a different sort of person, a subtle but highly significant shift in emphasis. . . . T he shift was an alteration of emphasis within a single concept of difference rather than a development of a novel conceptualization. . . . 106 Higginbotham and Kopytoff sort out the exact dimensions of the perceived difference in the minds of early white Virginians, and most likely they did not sort it out themselves at that time. T he early cases show that adultery and fornication were, in themselves, grounds for punishment quite apart from the race of the participants. A number of early statutes explicitly condemned such actions.121 T hey were periodically reenacted, as in a 1691 law against a series of moral offenses, of which fornication and adultery were but two; the others being ‘‘swearing, curseing, prophaneing God’s holy name, Sabbath abuseing, [and] drunkenness.’’122 By 1662, however, the Virginia legislators had singled out interracial sex for special and harsher treatment. T hey declared, ‘‘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.’’123 T he former act to which this one referred set fines for fornication at 500 pounds of tobacco.124 T he ‘‘christian’’ to be fined double in the 1662 statute may be taken to mean any white person. Virginians tended to use the terms interchangeably at this early stage. Later, when called upon to distinguish them, they found race the more telling characteristic for legal discriminations.125 T he prescribed treatment of white men and white women who engaged in interracial sex was even-handed in the 1662 statute: both were to be fined. But what of their Negro partners? Why were they not punished under this statute? T hey were not even mentioned. T his statute is the first in a long series of statutes, starting in 1662 and continuing over 200 years until after the Civil War, that singled out whites for punishment in cases of voluntary interracial sex and marriage and ignored their non-white partners. While the records show that in a few early cases, as noted above, Negroes were punished along with their white partners under anti-fornication laws, the statutes specifically forbidding interracial sex and marriage were directed toward whites only.126 . . . [I]t seems likely that the colonists’ initial sense of difference from the Negro was founded not on a single characteristic but on a congeries of qualities which, taken as a whole, seemed to set the Negro apart. Virtually every quality in the Negro invited pejorative feelings. What may have been his two most striking characteristics, his heathenism and his appearance, were probably prerequisite to his complete debasement. W. JORDAN , supra note 7, at 96–97; see also infra note 202. 121. See Act II, 1 L AWS OF VA. 433, 433 (Hening 1823) (enacted 1657–58) (prohibiting adultery and fornication); Act C, 2 L AWS OF VA. 114, 114–15 (Hening 1823) (enacted 1661–62) (prohibiting fornication). 122. Act XI, 3 L AWS OF VA. 71, 71–72 (Hening 1823) (enacted 1691). 123. Act XII, 2 L AWS OF VA. 170, 170 (Hening 1823) (enacted 1662). T he double fine was continued until 1696, when a new statute against fornication repealed the 1662 act and failed to reinstate that provision. 3 L AWS OF VA., 437, 438–39, Act I (Hening 1823) (enacted 1696). 124. Act C, 2 L AWS OF VA. 114, 115 (Hening 1823) (enacted 1661–62). 125. See J. BALLAGH , A H IST ORY OF SLAVERY IN VIRGINIA 45–49 (1902) (discussing distinction between unlawful enslavement of Christians and lawful enslavement of converted heathens): W. JORDAN , supra note 7, at 91–98 (describing distinction between heathenism and race in early Virginia statutes). Again, race and religion were not at that time viewed as completely distinct. 126. T his is not to say that Negroes were never punished for interracial sex after 1662. Slaves on the Racial Purity and Interracial Sex 107 B. Concern over the Production of M ulatto Children Significantly, the new and harsher legal attitude toward interracial sex appeared in the 1662 statute designed to solve the ‘‘problem’’ of fitting the mulatto children of such unions into the social order.127 T his suggests that what prompted the harsher punishment was not simply the act of interracial sex itself, but its likely result: mulatto children. While a number of statutes prescribed the same punishment for white men as for white women who engaged in interracial sex, it was the interracial sex of white women that seemed to concern the legislators most. T hat was evident from the wording of the early statutes. T he 1662 statute noted in unemotional language that ‘‘some doubts have arrisen whether children got by any Englishman upon a Negro woman should be slave or free.’’128 T he statute set a fine for interracial sex double the normal one for fornication, but omitted the adjective ‘‘filthy’’ that modified ‘‘fornication’’ in the earlier act whose fine this one doubled.129 T he language suggests that the legislators were devising a practical solution to a practical problem. T he act fined both white men and white women who engaged in interracial fornication, but it was the behavior of the men that prompted the law and set its tone. In contrast, when the legislators were contemplating mulattoes produced by white women and non-white men, their revulsion is evident. A 1691 statute prohibiting interracial marriage stated: [F]or the 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.130 By their own declaration, what prompted the legislators to act was the realization that the punishment for interracial fornication was no deterrent to white women 127. 128. 129. 130. plantation were generally subject to whatever discipline their masters chose to impose. Nor did it mean that whites were routinely punished for their lapses. White men were very rarely called to task for interracial sex. T he fate of white women who engaged in interracial sex is discussed below. See infra Part II.c. Act XII, 2 L AWS OF VA. 170, 170 (Hening 1823) (enacted 1662). T his statute is one of several at that time that tried to resolve quandaries over the status of blacks. Another was the 1667 statute declaring that slaves would not be made free by virtue of their becoming Christian. Act III, 2 L AWS OF VA. 260, 260 (Hening 1823) (enacted 1667). T he early uncertainty over the status of blacks was being resolved in ways that kept increasing numbers of them in lifetime servitude and sealed the same fate for most of their children. Act XII, 2 L AWS OF VA. 170, 170 (Hening 1823) (enacted 1662). Id; Act C, 2 L AWS OF VA. 114 (Hening 1823) (enacted 1661–62). Act XVI, 3 L AWS OF VA. 86, 86–87 (Hening 1823) (enacted 1691) (emphasis omitted). 108 Higginbotham and Kopytoff producing mulatto children if the women were married to the Negro or mulatto fathers of their children. T he legislators therefore devised an extremely harsh punishment for such marriages: banishment of the white partner. T he punishment was made to apply to white men as well as to white women, but it was the prospect of white women mating with non-white men that called forth the strong language not present in the earlier statute.131 A revision of this statute in 1705 adjusted the wording so that the interracial marriages of white men as well as white women were seen as leading to ‘‘that abominable mixture and spurious issue,’’ and punishment for the white partner was changed to six months in prison, without bail, and a fine of ten pounds current money.132 Indians were dropped from the statute.133 T he minister who knowingly performed such a marriage was fined 10,000 pounds of tobacco, half to go to the informer.134 T he provision was reenacted in 1753 and 1848.135 131. T he statutory and judicial condemnations of white male/ black female sexual relations seem to have been expressions of discomfort over the production of mulatto children rather than a distaste or personal revulsion for the sexual relations themselves. When they addressed black male/ white female sexual relations, the relations themselves, as well as their likely result, disturbed the white male legislators. 132. Ch. XLIX, 3 L AWS OF VA. 447, 453 (Hening 1823) (enacted 1705). T he motivation behind this change in punishment is unclear. Banishment removed the white offender from the colony and prevented him or her from producing any more ‘‘abominable mixtures’’ in Virginia. T he short prison term merely interrupted the process. After the white partner had served his or her time, presumably the couple could go on living together within the sacrament of marriage and producing mulatto children. Morgan, on the other hand, sees the new penalty as ‘‘a less drastic but more effective deterrent to racial intermarriage among ordinary people,’’ and notes that the colony would not thereby be deprived of a potential laborer. E. M ORGAN , supra note 21, at 335. In addition, indentured servants who married without the permission of their masters had to pay a fine or to serve them for an additional period of time. Act XX, 1 L AWS OF VA. 252, 252 (Hening 1823) (enacted 1642–43); Act XIV, 1 L AWS OF VA. 438–39 (Hening 1823) (enacted 1657–58): Act XCIX, 2 L AWS OF VA. 114, 114 (Hening 1823) (enacted 1662); Ch. XLVII, 3 L AWS OF VA. 441, 444 (Hening 1823) (enacted 1705); Act XXXII, 6 L AWS OF VA. 81, 84 (Hening 1819) (enacted 1748). 133. Some effort was made to encourage whites to marry Indians. In 1784, Patrick Henry introduced to the Virginia legislature a bill offering a reward to white men or women who married Indians— and additional bounties for any children produced—but the bill was not adopted. William Crawford promoted a similar bill before the U.S. Congress in 1824 but it also did not succeed. T he motivation behind these bills was probably a desire to mitigate the danger of Indian attacks on the frontier. J. JOHNST ON , supra note 22, at 269–70. 134. Ch. XLIX, 3 L AWS OF VA. 447, 454 (Hening 1823) (enacted 1705). Johnston notes that in North Carolina, where a similar statute was in force, the Reverend John Blacknall was both the minister and the informer in a case of interracial marriage. Blacknall reportedly collected fifty pounds for performing the marriage, then turned himself in and collected half of the fifty pounds he was fined. He thus made twenty-five pounds on the deal. J. JOHNST ON , supra note 22, at 179–80. 135. Ch. VII, 6 L AWS OF VA. 356, 361–62 (Hening 1819) (enacted 1753); 1848 Acts of Va., Criminal Code, tit. II, ch. VIII, at 111–12. It was not until 1849 that marriages between whites and Negroes were declared void ab initio. VA. CODE ch. 109, § 1, at 471 (1849). Before that, the sacrament of marriage still prevailed, though the white partner was punished for entering into it contrary to secular law. See McPherson v. Commonwealth, 69 Va. (28 Gratt.) 292, 292 (1877) (marriage held valid and cohabitation judgment reversed when husband white and wife less than one-quarter black); Kinney v. Commonwealth, 71 Va. (30 Gratt.) 284, 286 (1878) (indictment of black man Racial Purity and Interracial Sex 109 It is significant that the prohibition on interracial marriage came in a statute that showed a growing concern over the presence of free Negroes and mulattoes in Virginia and enacted many measures designed to control their numbers. T he act itself was entitled ‘‘An Act for Suppressing Outlying Slaves,’’ and it noted the dangers in the possible alliances of free negroes and mulattoes with slaves.136 One measure that the statute devised to reduce the danger was to require that an owner who set a slave free pay his transportation out of Virginia within six months.137 Another was the one discussed above, discouraging interracial marriages by prescribing banishment for the white partner. Yet another was a severe penalty on white women who had mulatto bastards.138 What the white Virginians seemed not to realize was that they had greatly increased the danger of alliance by classifying most mixed-race individuals with blacks rather than with whites in terms of their legal rights. While the increase in free mulattoes was one of the motivating factors behind the harsh treatment of white women who had mulatto bastards, it was not the only one. Free and indentured Negro and mulatto women also produced free mulatto children, and there were no comparable special punishments for these women.139 Nor were white men who sired free mulatto bastards subject to any punishment beyond the fine prescribed by statute for interracial fornication, and that was seldom applied.140 T he legislators seemed to feel a particular distaste that 136. 137. 138. 139. 140. for lewd cohabitation with white woman upheld when couple went to District of Columbia to be married but returned to Virginia domicile in ten days; court ruled Virginia law applied to ‘‘essentials’’ of marriage contract and, therefore, interracial marriage void). See Act XVI, 3 L AWS OF VA. 86, 87 (Hening 1823) (enacted 1691) (claiming that freed slaves may endanger country by ‘‘entertaining negro slaves from their masters service, or receiving stolen goods, or . . . [growing old and becoming dependent] upon the country’’). Id. at 87. T he statute reads ‘‘out of the countrey’’ but this may be taken to mean the colony, as there was no single country in British North America. A white woman, indentured or free, who had a mulatto bastard, had to pay 15 pounds sterling or be sold into service for five years. Act XVI, 3 L AWS OF VA. 86, 87 (Hening 1823) (enacted 1691). By contrast, a law enacted in 1696 provided that if an indentured servant woman had a bastard (presumably not a mulatto), she had to give only one extra year of service to her master, in addition to a fine for fornication, which was ‘‘five hundred pounds of tobacco and casque’’ or 25 lashes. T he master or mistress of the servant could claim an extra six months of service by paying the fine. Act I, 3 L AWS OF VA. 137, 139–40 (Hening 1823) (enacted 1696). If a free white woman bore a white bastard, there was no punishment beyond that for fornication until 1769, when she had to pay 20 shillings. Even then, the law specified that she was not to be whipped for default of payment. Ch. XXVII, 8 L AWS OF VA. 374, 376 (Hening 1821) (enacted 1769). T here were only the penalties applicable to any woman servants who had bastard children. See supra note 138 (discussing statutes that imposed fines for bearing bastard children). We have found only two appellate cases in which interracial fornication or cohabitation by white males was an issue. Commonwealth v. Isaacs, 26 Va. (5 Rand.) 523 (1826); Commonwealth v. Jones, 43 Va. (2 Gratt.) 477 (1845). White men could be called upon to support their bastard children, Act VIII, 2 L AWS OF VA. 168 (Hening 1823) (enacted 1642–43), and an early act required an indentured man servant who secretly married or fornicated with an indentured woman servant to serve extra time to the woman’s master, Act XX, 1 L AWS OF VA. 252, 253 110 Higginbotham and Kopytoff white women, who could be producing white children, were producing mulattoes. Black women who produced mulatto children were not seen as making the same direct assault on white racial purity; they were unable to produce white children and thus did not affect the white race. T here was no comparable concern over their ‘‘lightening’’ of the Negro race. In addition, Morgan suggests that the legislators and their white male constituents may have wanted to save for themselves the white women, who were in short supply in the early years.141 T here was a special group of cases concerning white women who produced mulatto children while being married to white men. Several such men applied to the House of Burgesses for a special act granting them a divorce. T he question of whether a white woman was to be divorced, or punished under the criminal code, or both, for producing a mulatto bastard was sometimes complicated over uncertainty as to whether the child was a mulatto. It seems that this question may have been at issue in the case of Peggy and Richard Jones.142 In that case a divorce was granted provisionally, pending the outcome of a jury trial deciding the husband’s claim. T he divorce would take effect, ‘‘provided that it shall be found by the verdict of a jury, upon . . . trial . . . that the child of said Peggy Jones is not the child of said Richard Jones, but is the offspring of some man of colour.’’143 In other cases no reference was made to a trial.144 T he Jones child probably looked white enough so that there was some question as to whether Richard Jones might not be the father after all, and Peggy Jones may have contested the accusation of adultery. It is interesting to note that when a couple classified as white produced a child whose racial identity was uncertain, the wife was suspected of having committed 141. 142. 143. 144. (Hening 1823) (enacted 1642). But there were no special provisions or punishments for white men who fathered mulatto children. E. M ORGAN , supra note 21, at 336 (noting that county birth statistics [circa 1700] showed a substantial number of mulatto children born to white women, suggesting black competition for the affections of scarce white women). Act of Nov. 25, 1814, divorcing Richard Jones from his wife Peggy, Ch. XCVIII, 1814 Acts of Va. 145. Id. at 145. Act of Jan 4, 1803, dissolving a marriage between Dabney Pettus and his wife Elizabeth, Ch. LXIV, 1802 Acts of Va. 46, 47 (divorce granted without trial when wife publicly acknowledged mulatto child as son of Negro slave); Act of Dec. 20, 1803, dissolving a marriage between Benjamin Butt, Jr. and Lydia his wife, Ch. VI, 1803 Acts of Va. 20, 20–21 (same); Ch. LIX, 1806 Acts of Va. 26, 26 (divorce granted without trial when ‘‘reasons to believe’’ that child born to white woman was fathered by Negro slave and not her white husband); Act of Jan. 10, 1817, divorcing Abraham Newton from his wife Nancy, Ch. 120, 1817 Va. Acts 176, 176 (divorce granted without trial when white woman gave birth to mulatto child five months after marriage to white man). In the case of Hezekiah Mosby and his wife Betsy, a trial was also ordered to determine the facts. Act of Jan. 25, 1816, authorizing the divorce of Hezekiah Mosby from his wife Betsy, Ch. CXXXV, 1816 Acts of Va. 246, 246–47. T he fate of these women after the divorce is unknown, though they were subject to the act penalizing white women who had mulatto bastards with a heavy fine or five years of servitude. Act XVI, 3 L AWS OF VA. 86, 87 (Hening 1823) (enacted 1691); Ch. XLIV, 3 L AWS OF VA. 447, 453 (Hening 1823) (enacted 1705). Racial Purity and Interracial Sex 111 adultery with a Negro or mulatto man. Another possible explanation was that either the husband or the wife or both were in fact of mixed Negro-white ancestry, though legally white (if the proportion of Negro ancestry were small enough), or passing as white. Mixed-race parents would, on occasion, produce a child whose complexion was darker than either of theirs, a child who looked mulatto when they did not. T hat possibility was not explored. It may not have occurred to white Virginians, or it may have been suppressed. It may have been more disturbing to them than the attribution of adultery to the women, for it called into question the idea of clear racial classifications, an idea that was central to the maintenance of slave society in Virginia. In addition to the question of a child’s racial identity were questions of when evidence could be introduced to prove racial identity and what sort of evidence might be allowed. T hat issue was faced by the Virginia Court of Appeals in Watkins and wife v. Carlton145 in 1840. T he case was not an action for divorce, but rather a contest over part of the estate of John Carlton by three people who claimed to be his children. T here was no challenge to the claims of the first two, Mary and T homas, but the legitimacy of the third child, William, was at issue. Carlton had not modified his will after William’s birth so as to include him, and the others claimed William’s share, saying that he was a mulatto and was not their father’s child.146 William’s lawyer had argued at trial that since there was a great variety in hair, complexion, and features of persons of ‘‘unmixed race,’’147 the presumption should always be in favor of legitimacy unless physical separation or impotence made it impossible that the husband could be the father.148 T he jury had agreed, and the judge in the lower court had refused to allow testimony by ‘‘professional and scientific men’’ on the question of the impossibility of a white couple producing a mulatto child.149 T he lawyer for William Carlton made the important point, ignored by the appeals court, that the genetic difference between a person legally defined as a mulatto and a legally white person might be very small, and that the races could not always be reliably distinguished by inspection: Now, he said, it would be very difficult, hardly possible, to distinguish with certainty a mulatto having only one fourth part of negro blood from a white person. T he difficulty, the uncertainty, attending the proof of a person being white or mulatto, were strongly exemplified in the present case; it was always [a] 145. 37 Va. (10 Leigh) 560 (1840). 146. Id. at 560 147. Id. at 562. When the lawyer says ‘‘unmixed,’’ we may take this to mean ‘‘accepted as white.’’ T hat category included many mixed-race individuals, some of whom were also legally white because their proportion of Negro ancestry was below the legal limit. 148. Id. 149. Plaintiffs sought to introduce testimony by a physician that ‘‘there was no time at which such sexual intercourse could take place between a white man and a white woman, that the white man could, according to the laws of nature, be the father of a mulatto child born of the white woman.’’ Id. at 565. 112 Higginbothm and Kopytoff matter of opinion, founded on inspection, and it appeared from the depositions in this cause, that while some of the witnesses thought the defendant William a mulatto, others thought him a white person.150 In the attempt to determine whether William was illegitimate by looking at his color, the court did not consider the possibility that the Carltons’ legitimate and legally white children could be as much as one-eighth Negro.151 Instead of considering such an awkward possibility, which may have been relevant given the conflicting testimony concerning William’s race, the court used the terms ‘‘white’’ and ‘‘Negro’’ unreflectively, as absolute and ideal racial types. T he president of the court added in a note: ‘‘Among the hundred millions of whites in Europe, there is no authenticated instance of the produce of the white race being other than white.’’152 Undoubtedly the scientific experts, when called upon in the retrial of the case to testify as to whether a mulatto child could be the offspring of two white persons, also answered in terms of the ideal racial types of Europe and sub-Saharan Africa rather than in terms of the legal and physical realities of racial categories in nineteenth-century Virginia. T he failure to recognize the realities of racial mixing in nineteenth-century Virginia served an important purpose in the society. Its recognition would have undermined the logic of Virginia’s racially based system of slavery. By the 1840s, scientific racism, here in the form of expert witnesses, was being called upon to bolster that social system under attack. C. Who Was Punished for Voluntary Interracial Sex and Why We have noted that all of the statutes dealing specifically with voluntary interracial sex prescribe punishments for the white partners only. What were the reasons for such a glaring omission? In the case of sexual relations between whites and their slaves, failure to punish the slave might have been a recognition that the slave had little choice in preventing the relationship, especially if the white were the owner. It might have been seen as bad policy or unreasonable to punish a slave for acquiescing to the 150. Id. at 569 (emphasis omitted). 151. Under the 1785 statute, a mulatto was someone with ‘‘one-fourth part or more of Negro blood.’’ T hus someone with one-eighth Negro blood, that is, with one Negro great-grandparent, was, by implication, not mulatto but legally white. Ch. LXXVIII, 12 L AWS OF VA. 184, 184 (Hening 1823) (enacted 1785; effective 1787). Mr. or Mrs. Carlton or both of them could have been one-eighth Negro. If both, then their children would have been one-eighth Negro and legally white. If Mrs. Carlton had committed adultery with a mulatto who was not more than one-fourth Negro, and if William were the product of that union, he would be legally white though illegitimate. If Mrs. Carlton were totally of European ancestry, the child would be one-eighth Negro and legally white. Even if Mrs. Carlton were one-eighth Negro (and thus legally white), a child borne of her by a mulatto who was one-fourth Negro would be legally white; it would have three-sixteenths Negro ancestry and would thus fall below the minimum one-fourth Negro blood required to designate one a mulatto. 152. Watkins, 37 Va., at 576 n.* (emphasis in original). Racial Purity and Interracial Sex 113 demands of his or her master, even to demands for illicit behavior. In addition, many of the usual punishments were meaningless when imposed on slaves or would result in punishing their masters. Years could not be added to life-long servitude; slaves could not be fined if they owned no property; and imprisonment would have deprived their masters of their work.153 It is more puzzling why the penalties imposed on whites were not also meted out to free blacks and mulattoes. A likely explanation seems to be that whites, or ‘‘Christians’’—with whom they were equated—were simply held to a higher moral standard than non-whites in the eyes of the law, and that white racial purity, as well as sexual morality, was considered the special responsibility of the whites.154 Furthermore, voluntary interracial sex was probably considered the prerogative of whites, albeit an immoral one. T he wishes and interests of whites were seen as determining relations between the races. Perhaps whites were so secure in their position of power and superiority that they assumed such relations would not occur unless initiated by whites. After the early years of the colony, as the lines of the racial caste system hardened, the freedom of choice of blacks was ignored in this as in so many other areas of life. Under the statutes, whites were to be punished for these unions and their nonwhite partners were not. Also, according to the statutes, white men and women were to be punished equally for such unions, at least when the unions did not produce children. In practice, however, we suspect that it worked differently. Black men may have been punished, either by their masters if they were slaves, or by the law, under the guise of punishment for other offenses. T hough a review of county court cases would be needed to reveal the full dimensions of the gap between the law as written and as applied, we have a few cases that suggest how the law was applied. In one early case from lower Norfolk County, only the white woman was punished for fornication; her black partner was punished for something else. In two other cases, from the Virginia high court, the judges merely ‘‘winked’’ at the white men who kept black mistresses. In 1681, Mary Williamson was found guilty of having fornicated with William, a Negro slave of William Basnett.155 We assume she was white since no racial designation is given for her.156 She was fined ‘‘five hundred pounds of tobacco and Caske’’ for the use of Linhaven parish ‘‘for which the said Basnett hath In open Court Ingaged himself, etc. security.’’157 153. Other punishments were available that would have affected the slaves and not their masters, but they were not used. Several statutes provided for the whipping of slaves in other contexts, but with regard to voluntary interracial sex there was no such punishment for the slave. 154. Another possible explanation is that blacks were thought to be less able to control their sexual desires. See infra note 203. But the notion that blacks were naturally lazy did not preclude punitive attempts by their owners to make them work harder; indeed, it justified such attempts. 155. Id. 156. See supra note 98 (discussing this assumption). 157. Lower Norfolk County Order Book 139 (1681–86) (unpublished manuscript) [hereinafter 1681– 86 Order Book], quoted in W. BILLINGS, supra note 100, at 161. 114 Higginbotham and Kopytoff Interestingly, Mary Williamson was not prosecuted under the 1662 statute providing double fines in cases of interracial fornication. Instead, either the general 1661–62 Virginia statute against fornication or local law was applied.158 Under the general fornication statute, masters whose indentured servant committed fornication were to pay the servant’s fine, and the servant was to serve an extra half year. If free, not indentured, and unable to pay, the offender would be imprisoned unless he or she found someone to pay.159 If no one would pay, the offender was to be whipped. It is likely that Mary got to know William while working as Basnett’s servant before the incident. But whether or not she had worked for him before, she owed Basnett an additional six months of service after he agreed to pay her fine. An interesting feature of the case is that the slave William also was punished, but not, apparently, for the fornication: Whereas It hath appeared to the Court that William a negro belonging to William Basnett Squire hath very arrogantly behaved himself in Linhaven Church in the face of the Congregation, It is therefore ordered that the Sheriff take the said William Into his Custody and give him thirty lashes on his bare back.160 Since Mary was punished under a general law against fornication rather than under the special law which prescribed punishment for the white partner only, William could have been punished for the fornication too. It seems he was not. Both William and Mary were made to do penance in the church, during which William behaved arrogantly. T he whipping was for his arrogance rather than for the fornication. In other earlier cases in Lower Norfolk County, when white couples were punished for fornication or adultery, they had to recite words of contrition as well as stand up in church. Perhaps it was in his public pronouncement that William failed to satisfy the congregation as to his sincere repentance.161 158. See Act C, 2 L AWS OF VA. 114, 114–15 (Hening 1823) (enacted 1661–62) (providing that a man or woman guilty of the ‘‘ffilthy sin of ffornication . . . shall pay five hundred pounds of tobacco fine, . . . to the use of the parish . . . and be imprisoned until they find security to be bound with them’’). 159. Id. at 115. 160. 1681–86 ORDER BOOK , supra note 157, at 139, quoted in W. Billings, supra note 100, at 161. 161. T his practice followed English law. In 1641, in Norfolk County, Virginia, Christopher Burrough and Mary Somes were ordered, according to the statute of England, [to] do penance in their parish church the next sabbath day the minister preacheth at the said church, standing in the middle alley of the said church upon a stool in a white sheet, and a white wand in their hands, all the time of the divine service and shall say after the minister such words as he shall deliver unto them before the congregation there present. Lower Norfolk Records (Apr. 12, 1641) (unpublished transcript), quoted in A.P. SCOT T , CRIM L AW IN COLONIAL VIRGINIA 277 n.71 (1930). T he type of speech required of the couple may be seen in a case of adultery that came up two years later. T he couple had to acknowledge INAL in these express words mentioned in a schedule hereunto annexed the schedule I B.H. or J.U. do here acknowledge and confess in the presence of this whole congregation that I have grievously sinned and offended against the divine majesty of almighty God and all Racial Purity and Interracial Sex 115 Cases in which white men were prosecuted for interracial sex rarely reached the highest courts of Virginia. We have found only two, despite the frequency with which mulatto children were born of black mothers. One reason lay in the rules of evidence: no black or mulatto could testify against a white at trial.162 T herefore, another white would have had to bring the complaint. Another reason was that society tended to wink at the casual liaisons of white men and black women. T he two cases that reached the General Court of Virginia did not concern casual or clandestine sex; both involved cohabitation, and open and stable relationships. In these cases, it seems that other whites did complain. In Commonwealth v. Jones,163 a case in the General Court of Virginia in 1845, a white man was prosecuted for ‘‘cohabiting with and keeping a female slave named Eveline.’’164 T he fact that the court was in this case called upon to decide whether a white man could be prosecuted under the criminal code for fornication with a slave suggests that the issue had not been presented before. T he court had decided in a prior case, Commonwealth v. David Isaacs and N ancy West,165 that cohabitation of a white man and a free mulatto woman was not a common law crime but that the man might be prosecuted under a statute prohibiting fornication.166 In Jones the court held, similarly, that cohabitation of a white man with a slave was not a common law crime but was punishable under the criminal code.167 Given all the thousands of such relationships between white men and slave women that must have occurred in Virginia before 1845, why did the question arise at this late date? Why did not everyone wink at this breach of the law as they had done countless times before? T he unusual circumstance in this case was that Jones was cohabiting not with his own slave, but with the slave of one Bennett M. Bagby, who presumably had not given his permission.168 Jones was interfering with Bagby’s dominion over his property, Eveline, and it may be that Bagby’s complaint brought about the criminal prosecution. Had Eveline been Jones’s own slave, it is doubtful that the prosecution would have been initiated, for then the prosecution, rather than the cohabitation, would have been interfering with the property rights of a white Virginian. On appeal, the Virginia high court rejected Christian people in committing the foul and detestable crime of adultery and am heartily sorry and truly penitent for the same and do unfainedly beseech almighty God of his infinite goodness to be merciful unto me and forgive this offense, and I do heartily desire this congregation and all good people likewise to forgive me and pray for me. Id. Ch. XIX, 3 L AWS OF VA. 289, 298 (Hening 1823) (enacted 1705). 43 Va. (2 Gratt.) 477 (1845). Id. at 477. 26 Va. (5 Rand.) 523 (1826). Id. T he court held that without evidence of fornication, the facts that the couple ‘‘occupied the same chamber, ate at the same board, and discharged toward each other the numerous common offices of husband and wife,’’ were ‘‘not sufficient to sustain the prosecution of common law.’’ Id. 167. Jones, 43 Va. at 477. 168. Id. 162. 163. 164. 165. 166. 116 Higginbotham and Kopytoff the defendant’s argument that since the statute prohibiting fornication did not apply to his slave partner, he should be exempt from prosecution too. It rejected his reasoning, holding ‘‘that a person who is not a servant or slave, having illicit intercourse with a slave, is as much within the operation of the statute as if both offending parties were free.’’169 T hough the question of statutory interpretation was resolved against the defendant, he received no punishment. T he court set Jones free, declaring only that it did not have to declare its reasons for doing so: [A] majority of the Judges are of the opinion, that there are other errors disclosed by the record and proceeding of the cause, for which the judgment ought to be arrested; but there being a diversity of opinion among the Judges, as to the particular grounds upon which the judgment ought to be arrested, it becomes unnecessary to state them. It is therefore ordered, that it be certified to the Circuit Superior Court of Law and Chancery of the county of Powhatan, that the judgment on the verdict aforesaid ought to be arrested; and the defendant discharged and acquitted of the said prosecution.170 Jones had suffered the inconvenience and expense of a trial and an appeal, but the high court let him off without so much as a slap on the wrist. Why did they bother to uphold the principle of the law when they apparently did not mean to apply it to the white man in this case? T he court may have been concerned about creating a precedent that could be used in the future. It may have wanted to preserve a tool for the use of the aggrieved owner of a slave whose time and attentions were being occupied by another white person without the owner’s permission. If a lower court decided against someone like Jones in a subsequent case, the defendant could no longer appeal on the same grounds. T he disposition of the case, however, suggests more than anything else the great extent to which restrictions on the sexual behavior of white men with slave women were dismissed lightly. While we have no comparable cases concerning voluntary sexual relations between white women and slave men for that late period, there are reasons to think such relations were treated far less lightly. As discussed below, they may sometimes have been characterized as rape, thus bringing severe punishment to the black men.171 D. Offspring of Interracial Unions Virginians from an early date lashed out at interracial sex in language ‘‘dripping with distaste and indignation.’’172 T he distaste turned to revulsion when they 169. 170. 171. 172. Id. at 478. Id. (emphasis omitted). See infra Part IV. W. JORDAN , supra note 7, at 139. Racial Purity and Interracial Sex 117 spoke of the resulting mulatto children, especially those with white mothers, as an ‘‘abominable mixture and spurious issue.’’173 Mixed-race offspring were disturbing to white Virginians for several reasons. First, they were anomalies. T hey simply did not fit into the whites’ vision of the natural order of things: a great chain of Being comprised of fixed links, not of infinite gradations. T hings which do not fit into the perceived natural order are seen as unnatural and often as dangerous and ‘‘abominable.’’174 T he term ‘‘spurious,’’ used by the Virginia legislature for the children of marriages between whites and Negroes,175 shows a fundamental uneasiness and aversion to the idea of racial mixture, an aversion that is not entirely explainable by practical considerations. T he aversion was greatest toward the mulatto children of white women. Since mulattoes were classified with blacks, the prospect of a mulatto child of a black mother was not as disturbing as that of a mulatto child of a white mother. It seemed less anomalous. Second, the idea of a racially based system of slavery depended on a clear separation of the races. Mulattoes challenged that idea. Winthrop Jordan suggests that the psychological problem was handled in part by categorizing mixed-blood offspring as belonging to the lower caste, thus, in effect, denying their existence: T he colonist . . . remained firm in his rejection of the mulatto, in his categorization of mixed-bloods as belonging to the lower caste. It was an unconscious decision dictated perhaps in large part by the weight of Negroes on his community, heavy enough to be a burden, yet not so heavy as to make him abandon all hope of maintaining his own identity, physically and culturally. Interracial propagation was a constant reproach that he was failing to be true to himself. Sexual intimacy strikingly symbolized a union he wished to avoid. If he could not restrain his sexual nature, he could at least reject its fruits and thus solace himself that he had done no harm. Perhaps he sensed as well that continued racial intermixture would eventually undermine the logic of the racial slavery upon which his society was based. For the separation of slaves from free men depended on a clear demarcation of the races, and the presence of mulattoes blurred this essential distinction. Accordingly, he made every effort to nullify the effects of racial intermixture. By classifying the mulatto as a Negro he was in effect denying that intermixture had occurred at all.176 T hird, mulattoes created a practical problem for a racially based system of slavery. T hey had to be classified in terms of status as well as in terms of race, and as we have discussed earlier, race did not automatically determine one’s status as slave or free.177 T he law of the inheritance of slave status was a response to 173. See supra text accompanying notes 99 & 130. 174. See generally M. D OUGLAS, PURIT Y AND D ANGER: AN ANALYSIS OF CONCEPT S OF POLLU T ION AND T ABOO (1970) (discussing the attribution of danger to things that fall outside the culturally constructed order). 175. See supra text accompanying note 130. 176. W. JORDAN , supra note 7, at 177–78. 177. See supra Part II. 118 Higginbotham and Kopytoff the question of how to classify the children of white men and slave women, and the 1662 statute gave them the status of their mothers.178 It has been suggested that, rather than having been dictated solely by racism, this policy might have reflected, among other things, the ‘‘prudential considerations of keeping a child with its mother and reimbursing the mother’s master for its support.’’179 But keeping a child with its slave mother hardly required such a drastic measure as making it a slave. Many free white children were raised from infancy by slave women. Had their mulatto children by white fathers been declared free, the slave mothers would probably have continued to raise them. Furthermore, masters could get reimbursement by making the child serve an indenture as well as by making it a slave. Whatever the precise combination of motives behind the rule of the inheritance of slave status, it had two notable practical effects: first, it separated the large majority of the children of interracial unions from whites by assigning them the status of slave; second, it provided slaveowners with easy and cheap ways to increase the number of slaves they held. In the psychological terms suggested by Jordan, it also allowed white men to deny their responsibility for racial intermixture far more effectively than they could have done had the child inherited its status from the father. T he rule that children were to take the status of their mothers meant that some mulattoes (the great majority) were slave and some were free. Free mulattoes fell into two categories that were treated very differently. Under a 1691 statute, a mulatto bastard child of a white woman was to be bound out as a servant by the church wardens until the age of thirty.180 T he statute prescribed no similar fate for the legitimate mulatto children of white mothers or the legitimate or illegitimate mulatto children of free black mothers. T he same statute prescribed banishment within three months for white women who married Negro, mulatto, or Indian men, so that the mother, and any legitimate mulatto children who went with her, were removed from local society anyway. When, however, in 1705, the penalty was changed to six months in prison and a fine,181 white women who served their time presumably were able to raise families of free legitimate mulatto children.182 T hese children were not to be sold 178. See supra note 16. 179. E. M ORGAN , supra note 21, at 336 (1975). 180. Act XVI, 3 L AWS OF VA. 86, 87 (Hening 1823) (enacted 1671). In 1705, the age was changed to 31, Ch. XLIX, 3 L AWS OF VA. 447, 453 (Hening 1823) (enacted 1705), and, in 1765, it was reduced to age 21 for males and age 18 for females, the legislators having decided that thirtyone years of servitude ‘‘is an unreasonable severity toward such children.’’ Ch. XXIV, 8 L AWS OF VA. 133, 134–35 (Hening 1821) (enacted 1765). It may be that the mulatto children of free black women who were not themselves indentured and the legitimate mulatto children of white women were so few in number that the legislators inadvertently omitted them or did not bother to include them in the harsh treatment. 181. Ch. XLIX, § XIX, 3 L AWS OF VA. 447, 453–54 (Hening 1823) (enacted 1705). 182. Johnston repeats that the 1830 census record for the county of Nansemand, Virginia, lists a number of free Negro heads of families with white wives, and in the 1844 Virginia census one census taken for the district of Southhampton noted ‘‘white mother’’ after the names of certain Racial Purity and Interracial Sex 119 into service for the benefit of the parish, for that provision applied only to bastard children, and while the products of the mixed marriages might have been spurious and abominable to the white Virginians, they were not illegitimate. T he sacrament of marriage was effective even in the case of interracial marriage until 1849.183 Just as the legislators were much harder on white women who produced free mulatto bastards than they were on free black women who also produced free mulatto bastards, the legislators were also much harder on the free mulatto bastards descended from white women than they were on other free mulattoes.184 What was the difference between the free mulattoes of white mothers and the others that the former should be treated more harshly? Perhaps it was an extension of the outrage the legislators felt toward the mothers of such children. Perhaps it was that they were evidence of the corruption of the white race in a way that the mulatto children of black mothers were not. Once Virginians had made the decision to classify mulattoes with blacks, the mulatto child of a white mother was an assault on racial purity. T he mulatto child of a black mother merely exhibited a lighter shade within the range of skin color of the lower racial caste.185 mulatto children. He also cites other instances of mulatto children living with their white mothers and white women cohabiting with Negro men. J. JOHNST ON , supra note 22, at 265–67. 183. VA. CODE ch. 109, § 1, at 471 (1849) (any marriage between a white person and a Negro absolutely void without further legal process). 184. When female mulatto bastards of white women who were bound out as servants had children during their service, those children served the mother’s master until they reached the age their mother was when she completed her service. Ch. IV, 4 L AWS OF VA. 126, 133 (Hening 1820) (enacted 1723). It was left to the courts to decide the fate of the third generation of children born to such mulatto women servants, and the courts did so. In Gwinn v. Bugg, 1 Va. (Jeff.) 48 (1769), the General Court interpreted the statute prescribing indenture for the mulatto bastards of white women to apply to the bastard children of females so indentured whether such children had been formally bonded out by the church wardens or had simply stayed on with the master of their mother. Id. at 48–49. Despite the revulsion the legislators seemed to feel toward mulattoes, and especially toward free mulattoes with white mothers, the one ‘‘solution’’ they would not tolerate was for the mothers quietly to kill their children at birth. T o discourage free women wishing to avoid penalties for producing bastards from killing their infants, the legislators prescribed the death penalty for any non-slave woman who killed her bastard child to conceal it. Ch. XII, 3 L AWS OF VA. 516, 516 (Hening 1823) (enacted 1710). Presumably, a mother who killed her child might always face the death penalty, but the legislators felt the practice in this case warranted a special statute. 185. T he legitimate mulatto children of white women who were married to black men were, it seems, also exempted from particularly harsh treatment. We see this as an unwilling deference on the part of the legislators to the sacrament of marriage. Similarly, white bastards were treated less harshly. T he major concern was that they not be a financial burden to their respective parishes, and laws were enacted to make the fathers of these children accountable. T he children themselves were, by a 1769 law, to be apprenticed until the boys reached age 21 and the girls reached age 18, but before this law, no special arrangements had been established for them. Ch. XXVII, 8 L AWS OF VA. 374, 376 (Hening 1821) (enacted 1769). 120 Higginbotham and Kopytoff IV. Involuntary Interracial Sex: Rape White Virginians were concerned with involuntary as well as voluntary interracial sex, with rape as well as with fornication and marriage. However, the concern over involuntary interracial sex sprang from a different source. T he motivation behind the dissuasions for voluntary interracial sex seems to have been white racial purity and the maintenance of racial boundary lines. Only whites were called to task for polluting the white race—primarily the white women, whose mulatto children were a constant reminder of their mothers’ defilement of the white race. In cases of interracial rape, in contrast, only black men were called to task. White men were not punished at all for the rape of black women, and black men were punished more severely than were white men who raped white women. Here, it was not racial purity that was the issue; indeed, we have not seen it mentioned in connection with the rape of white women by black men that mulatto children might result. Rather, it was the maintenance of power relations that concerned the white legislators. T hey came to see interracial rape as a direct assault on their domination and control over blacks and over white women. A. The Early Prosecution of Black and White M en for Rape in Virginia T he first settlers in Virginia were authorized by the King to punish a very limited number of crimes by death, among them rape.186 Sexual crimes were taken very seriously in colonial Virginia. When the colony was established, sexual crimes made up half of the capital crimes.187 By a 1796 statute, the death penalty was abolished for all crimes committed by free persons except first degree murder, and we may assume this limitation applied only to free white persons.188 Attempted rape initially was not a felony; it was, rather, aggravated assault and did not carry the death penalty for either black or white perpetrators. By the early nineteenth century, that had changed for blacks. In 1823, attempted rape of a white woman by a slave or free Negro or mulatto was made punishable by death.189 Note the direction of change in this area of law in the late eighteenth and early nineteenth centuries. T he penalties for whites convicted of committing sexual crimes against white women decreased as part of a general restriction in the use of the death penalty against whites. In contrast, the penalties for Negroes and mulattoes convicted of committing sexual crimes against white women increased as part of a general hardening of the racial lines that began in the early nineteenth 186. A.P. SCOT T , supra note 161, at 4 (1930) (‘‘T hey were authorized by the King to punish rebellion and mutiny, murder, incest, rape, and adultery by death.’’). 187. Id. 188. 1796 Va. Acts ch. II, § 1, at 4. Statutes not specifying race usually applied to whites only, and the 1823 statute, discussed below, which specified that attempted rape of a white woman by a free Negro was punishable by death made no sense if a completed rape of a white woman by a free Negro were not punishable by death. 1823 Va. Acts ch. 34, § 3, at 36, 37. 189. Id. § 3, at 37. Racial Purity and Interracial Sex 121 century and extended well into the twentieth. Before the statutory changes of 1796 and 1823, the differences in the way whites and blacks accused of rape were treated were apparent, but the gulf was not as great as it became later. Before 1796, when the law gave no formal recognition to the differences in punishment of whites and blacks convicted of rape, the death penalty was ordered for men of both races convicted of raping white women. Arthur Scott canvassed a number of court records for the period before 1774 and found ten cases of rape and two of attempted rape.190 In half of them, five cases of rape and one of attempted rape, the men were identified as Negro. In the other half, there were no racial designations and presumably the men were white. In all cases but one the race of the victim was not identified, and those victims were presumably white. One woman, raped by a Negro, was identified as a mulatto.191 T he Negro who was accused of raping a mulatto woman in 1773 must have been prosecuted under the common law, as the legislators had not deemed this possibility worthy of legislation. Although the sample of early cases reported by Scott is extremely small, the details he gives suggest significant differences in the patterns of prosecution and treatment of Negroes and whites in cases of rape. Not surprisingly, the Negroes were treated more harshly, though there was a range of responses to both white and black defendants. Of the five whites accused of rape, two were convicted. One was condemned to death in 1627 for seducing four girls under the age of consent;192 the other was convicted in 1774, though there is no record of his execution.193 Of the three not convicted, one was a man whom, in 1670, the grand jury refused to indict, and the others were acquitted after trials in 1767 and 1773, respectively.194 One servant, presumably white, who was convicted of attempted rape in the late seventeenth century, received thirty-nine lashes, had his hair cut off, was made to wear an iron collar, and had to serve several additional years.195 T he six Negroes fared less well. In three cases, the defendants were convicted of rape; in a fourth case, it is not known whether the accused rapist was ever apprehended. In the remaining two cases, the Negroes were convicted of lesser offenses. In no case was there an acquittal.196 T he earliest Negro rape case noted was in 1678, when the Minutes of the Council and General Court report, ‘‘Strong measures to be taken for apprehending Robin, a negro who ravished a white woman,’’197 but we do not know whether he was ever apprehended and tried. In 1702, a Negro was executed for raping a woman, presumably white; in 1767, another was hanged for ravishing a woman identified as white; and, in 1773, a Negro was found guilty of raping a mulatto 190. 191. 192. 193. 194. 195. 196. 197. A.P. SCOT T , supra note 161, at 207–08. Id. at 208. Id. at 207 (citing M INUT ES, supra note 44, at 149 [H.R. McIlwaine 2d ed. 1979]). Id. at 207. Id. Id. at 208. Id. at 207–08. Id. 122 Higginbotham and Kopytoff woman.198 Scott does not note the punishment in the last case, nor whether the Negro was slave or free, but the fact that there was any prosecution at all for the rape of a mulatto woman is significant. It meant that she was deemed worthy of the law’s protection, at least against a Negro assailant.199 T he Negroes who were not convicted of the rape charge were found guilty of the lesser offenses of attempted rape or assault and were given lesser punishments. T he slave Jack, who was tried in 1742 for raping a white woman, was found not guilty of rape, but guilty of assault and was given thirty-nine lashes, the same punishment received by the white man convicted of attempted rape in the case noted above.200 A free Negro, convicted in 1737 of attempting to rape a sevenyear-old white girl, ‘‘was punished by one hour in the pillory where he was ‘much pelted by the populace,’ 29 lashes, and temporary servitude for payment of fees.’’201 T he victims all were described as white or were not designated by race and may be assumed to have been white, except for the one mulatto woman raped by a Negro. Rapes of Negro and mulatto women by white men must certainly have occurred, especially of Negro and mulatto slaves, but, for a number of reasons, they were rarely, if ever, prosecuted. Scott found no such cases, nor did we. In the first place, whites could not easily be prosecuted for rapes of non-whites, since 198. Id. 199. In 1829, a slave was condemned to death for raping a free black woman. P. SCHWART Z, T WICE CONDEMNED 207 (1988). 200. A.P. SCOT T , supra note 161, at 208. 201. W. JORDAN , supra note 7, at 157 n. 44 (quoting Williamsburg Gazette, Aug. 26, 1737). Scott’s survey of rape in Virginia extends only through 1774. Ulrich B. Phillips compiled another survey for the period 1774 to 1864. Phillips, Slave Crime in Virginia, 20 AMER. H IST . REV. 336 (1915). Unfortunately, Phillips’ figures cover crimes by slaves only, as they were based on vouchers for reimbursement of owners for their slaves executed for capital crimes. T hey do not include either free blacks or whites. Schwartz has compiled statistics on slave crimes, including rape, from Virginia court records from 1705–1865. P. SCHWART Z, supra note 199, passim. In 1691, the legislature, in ‘‘An act for suppressing outlying Slaves,’’ Act XVI, 3 L AWS OF VA. 86 (Hening 1823) (enacted 1691), arranged to compensate owners of runaway slaves who ‘‘lie hid and lurk in obscure places killing hoggs and committing other injuries,’’ when those slaves were killed in the process of resisting apprehension. Id. at 86. In 1705, the compensation was extended for all slaves put to death by law. Ch. XLIX, § XXXVIII, 3 L AWS OF VA. 447, 461 (Hening 1823) (enacted 1705). Castration and other forms of dismemberment were drastic measures short of death that could be used to punish uncontrollable slaves and to serve as examples to others. In 1769, castration was forbidden as a punishment except in cases of attempted rape of a white woman by a slave. Ch. XIX, § 1, 8 L AWS OF VA. 358, 358 (Hening 1821) (enacted 1769). Presumably, it was not authorized at all after 1823, when the penalty for attempted rape of a white woman was changed to death. Ch. 34, § 3, 1823 Va. Acts 36, 37. Phillips’ survey showed that in the period from 1774 to 1864, vouchers were issued reimbursing owners for some 1418 slaves who were convicted of capital crimes. Of them, 73 were executed for rape and 32 for attempted rape. In two cases, the victims were children under the age of ten; in two other cases they were free mulatto women, though in one of those two latter cases the conviction was merely of ‘‘suspicion of rape.’’ Phillips, supra at 33. Racial Purity and Interracial Sex 123 the latter could not testify against their attackers in court.202 In addition, even if the testimony of blacks had been admissible against whites, convictions of white men for interracial rape would have been rare. T he assumption of promiscuous Negro sexuality203 and the assertion of white male dominance over blacks in the sexual sphere would have inclined white male prosecutors not to prosecute, and white male juries not to convict. Finally, there is the question of whether slaves were recognized as having any personal rights that could be violated by rape. While the Virginia Supreme Court did not face this question directly, the Mississippi Supreme Court decided they had none; rape of a slave woman was simply not a crime, even when committed by a slave.204 Another pattern that may be noted in these early cases is that while three of the five whites charged with rape were acquitted of all charges, none of the Negroes was. T hose Negroes who were not convicted of rape were convicted of the lesser crimes of assault or attempted rape. While this might have been just part of the general arbitrary harshness in the treatment of Negroes, there may be another explanation as well: the role of consent as a defense in rape cases. Consent by the woman is a complete defense to rape or attempted rape except in the case of underage women. T hat defense might have been responsible for the acquittal of the three whites. In the trials of the Negroes, however, we may conclude that consent of the woman was either not pleaded or was not successful as a defense, because none of the accused was set free. Indeed, it would have been difficult to plead because the Negro himself could not testify against the white woman after 1705, nor could other Negroes support his testimony against a white person had 202. Ch. XIX, § XXXI, 3 L AWS OF VA. 287, 298 (Hening 1823) (enacted 1705). An act of 1705 regulating procedures in the General Court provided: ‘‘T hat popish recusants convict, negroes, mulattoes and Indian servants, and others, not being christians, shall be deemed and taken to be persons incapable in law, to be witnesses in any cases whatsoever.’’ Id. In 1732, another act again specified that Negroes were not allowed to testify against whites even though they were Christians because of their ‘‘base and corrupt natures.’’ Ch. VII § V, 4 L AWS OF VA. 325, 327 (Hening 1820) (enacted 1732). In the eyes of the legislators, it was not, then, simply the fact that they were not Christian that made Negroes unfit to testify; it was something deeper in their nature, something not changed by mere conversion. 203. See W. JORDAN , supra note 7, at 32–40 (1968) (noting that common perception of slaves as ‘‘animals’’ and ‘‘beasts’’ led to conclusion that slaves were unusually libidinous and unrestrained in their sexual behavior). 204. See George v. State, 37 Miss. 316, 318–20 (1859) (holding that rape of a female slave under the age of ten by a slave was not a crime because English common law did not recognize slavery and thus recognized no rights of slaves and Mississippi extended no such rights through legislation: all rights in slave rested with master). Virginia courts did explicitly deny slaves other rights, such as the right to own property and the right to make a contract on their own behalf. See Higginbotham & Kopytoff, supra note *, at 526. No 18th-century Virginia court whose records have survived convicted a white man or a slave of raping a female slave. T wo male slaves were so charged in 1873; one was not convicted and charges were dropped against the other for want of witnesses to testify. P. SCHWART Z, supra note 199, at 156. 124 Higginbotham and Kopytoff he been allowed to give it. T he claim would have required support by testimony from other whites. B. The Issue of Consent While the issue of consent of white women to sexual relations with Negroes seems not to have been raised formally in the legal proceedings, it was very much present in the background. It appeared in a number of cases of alleged rape of white women by black men, as shown by James Hugo Johnston in his survey of rapes by Negroes and mulattoes reported to governors of Virginia between the years 1789–1833, but it was raised, apparently, only after conviction.205 In nearly half of the cases surveyed by Johnston, twenty-seven out of sixty, the judges who imposed the mandatory death sentence recommended the condemned to the mercy of the governor. T hey did so either because they themselves doubted that the man was guilty, or because the jury or citizens of the community had sent petitions on the man’s behalf. According to Johnston, the petitions presented evidence not admitted at the trial.206 In the six petitions quoted by Johnston, which he says are typical, the petitioners seemed to say either that the woman had consented in this case, or that she had consented so often to having sexual relations with Negroes in the past that she had lost the right to object before the law. In the 1833 case of T asco T hompson, a free Negro condemned to die for the attempted rape of Mary Jane Stevens, the jury that convicted him recommended mercy. In response to the Governor’s query as to the reasons for their recommendation, the jury foreman, Sam H. Davis, under oath, had the following to say: 1st. T he exceedingly disreputable character of the family of the said Stevens. It consisted of the mother and herself, with a younger sister, a small girl. It was notorious that the mother had long entertained negroes, and that all her associations, with one or two exceptions were blacks. All the evidence went to shew that she visited no white families save the one or two referred to, who were upon her own level. In a word she was below the level of the ordinary grade of free negroes. 2nd. [I]t was clearly proved that long settled malice had existed against the prisoner in the bosom of [Mrs. Stevens] who was looked upon as one of the getters up of the prosecution and who was proved to have declared before the offense that she would have the prisoner hung if it took her seven years. 3d. . . . T here is no doubt that he repaired to the house of Mrs. Stevens in the belief that she would cheerfully submit to his embraces, as she doubtless had often done before, but finding her absent he probably supposed his embraces would be equally agreeable to her daughter [Mary Jane], and in making the attempt the jury considered the offense as differing only in name from a similar 205. J. JOHNSON , supra note 22, at 257–63. 206. Id. at 258–59. Racial Purity and Interracial Sex 125 attempt made upon one of his color. T hey also considered that the law was made to preserve the distinction which should exist between our two kinds of population, and to protect the whites in the possession of their superiority; but here the whites had yielded their claims to the protection of the law by their voluntary associations with those whom the law distinguishes as their inferiors. 4th. As a prosecution would not have a claim in the case if the female concerned had been a colored girl, so the jury thought it hard to convict the prisoner for an offense not greater in enormity than had the prosecutrix been colored; but her maker had given her a white skin, and they had no discretion. T hey could only convict him capitally and urge the recommendation which they did.207 T his document has been quoted at length because it presents an unusual window into the workings of the legal system and into the minds of white jurors who felt they were unjustly condemning a black man to death. First, note the harshness and rigidity of the law concerning sexual relations between black men and white women. At the time of this petition, there was a new statute, barely ten years old, making attempted rape of a white woman by a black man punishable by death. T he new statute read: ‘‘And it be further enacted, T hat if any slave, free negro or mulatto, shall attempt to ravish a white woman, married, maid, or other, such offender, his aiders and abettors, shall be adjudged guilty of felony, and suffer death as in other cases of felony, by hanging by the neck; any law, custom, or usage, to the contrary notwithstanding.’’208 Before the enactment of this statute, attempted rape had not carried the death penalty. Presumably that would still be the case in an attempted rape of a free mulatto woman by a Negro or mulatto, as jury foreman Davis’s statement suggests. By the early nineteenth century, the legal position toward sexual relations between black men and white women had hardened and become rigid and more punitive toward black men. Furthermore, there was little room for maneuvering within the formal legal system. T he jurors thought they had no choice in condemning T asco T hompson to death, though they doubted the story of his accusers and thought the punishment was unjust. A second point to note is that while the jury accepted the purpose of the new and harsher law as preserving and protecting the whites’ position of superiority, they felt there was a limit to the extent of that protection. T hey considered that whites could, and in this case did, voluntarily relinquish their claims to superiority and therefore to the law’s special protection by willfully allowing themselves to fall below the level of the Negroes. In T hompson’s case, they held the white accusers more responsible, morally, than the accused black. If a white woman freely threw away her claims to superiority by having sexual relations with blacks, the jury felt it was unjust for a black man who complied to be condemned to 207. Id. at 262–63 (emphasis in original). A recommendation for mercy could result in transportation for sale elsewhere, or in the lesser punishment of whipping or imprisonment, or in pardon. Phillips notes that pardon would not appear in the vouchers he used for then there would have been no reimbursement to the owner, but that other punishments do. He did not, however, note any of the lesser punishments in rape cases. Phillips, supra note 201, at 338–39. 208. Act 34, § 3, 1823 Va. Acts 36, 37 (emphasis omitted). 126 Higginbotham and Kopytoff death. Sexual relations between white women and black men were distasteful to them, but the jury did not want T hompson to die for participating in what it saw as the self-debasement of the Stevens family women. T hird, the jury recognized that an accusation of rape or attempted rape could be misused by a white woman simply for spite or vengeance, and they suspected that it had been in T hompson’s case. Fourth, they clearly saw Mrs. Stevens as consenting to sexual intercourse with Negroes, even if her daughter had not on this occasion, and this mitigated the seriousness of T hompson’s actions. Although all of these factors were in the jury foreman’s response to the Governor’s questions, there seemed to be no place for them in the formal legal proceedings. Citizens were no less outspoken on behalf of slaves who they thought were unjustly sentenced to death for rape than they were for free Negroes like T hompson. For example, when a slave named Peter was sentenced to death for raping Patsy Hooker, sixty-two citizens of Hanover County petitioned the Governor in 1808 for mercy toward Peter.209 T hey declared that ‘‘the said Patsy Hooker, from the best information they can get upon the subject, is a common strumpet, and she was the only witness introduced on the part of the Commonwealth in the prosecution of the said slave.’’210 T he petitioners seemed to disbelieve Patsy Hooker, but the legal system did not give the judge or jury the option of choosing to believe the word of a slave over the word of a white person. In another case, petitioners claimed that the accusing white woman already had mulatto children and had consented to having intercourse with the accused black on prior occasions; it was suggested that she also had consented on the occasion in question. Yet this apparently had not been an issue at trial. At trial, the accusation of rape by a white woman seemed virtually to ensure conviction of a Negro.211 T he issue of 209. J. JOHNST ON , supra note 22, at 261. 210. Id. 211. A white woman who had voluntary sexual relations with a black man and later found herself pregnant might claim rape in the hope of avoiding the harsh penalties meted out to white women who bore mulatto children. T hat may have been what led Katherine Watkins, wife of Henry Watkins of Henrico County, to pursue a claim of rape in September of 1681 against a mulatto belonging to Capt. T homas Cocke some five weeks after the event allegedly took place. (W. BILLINGS, supra note 100, at 161–63 (quoting from Henrico County Deed Book, 1677–1692, at 192–95 [manuscript]). Of the four individuals who were deposed concerning her behavior, only one supported her story. T he other three told of her drinking and her advances toward mulatto Jack, close to the date that the rape allegedly occurred, during which she kissed him, ‘‘put her hand on his codpiece,’’ told him she loved him, and led him into a backroom. Id. at 162. When he left, she ‘‘fetched him into the roome againe and hugged and kist him.’’ Id. at 163. She also ‘‘tooke Mingoe one of the Cocke’s Negroes about the Necke and fling on the bedd and Kissed him and putt her hand into his Codpiece.’’ Id. at 162. She made playful advances toward another Negro when she turned up the tail of his shirt and ‘‘said that he would have a good pricke.’’ Id. T he one deponent who supported Katherine Watkin’s story that she was raped, Humphrey Smith, said that he had seen her mouth torn and swollen and was shown a bloody handkerchief with which she claimed Jack had stopped her mouth. Smith said that Jack had confessed to having gone to the Watkins’ place three times to ask her forgiveness, and that the last time he Racial Purity and Interracial Sex 127 consent arose only after conviction. T hen, if judges or jurors suspected that the white woman in a case of interracial rape had consented, they blamed her vigorously. T he black man was not blamed at all. T his is consistent with the statutes on voluntary interracial sex and marriage that punished the white partner, especially the white woman, and ignored the black partner.212 Voluntary sexual relations between black men and white women could be treated as rape. As the petitions to the Governor suggest, they sometimes were, but only if the woman claimed rape. If she said nothing, then, presumably, the relationship could continue and the law could continue to ignore it, as long as no mulatto children were produced. In 1825, a statute was passed that did acknowledge the role of consent in voluntary sexual relations between black men and white women but it did so in such a convoluted way that it underscores the difficulties the white legislators had in dealing with the subject. It reads: Be it enacted by the General Assembly, T hat if any free negro or mulatto do ravish a white woman, married, maid or other, where she did not consent before nor after; or shall ravish a white woman, married, maid, or other, with force, although she consent after; the person so offending shall be adjudged a felon and shall suffer death, as in the case of felony, without benefit of clergy; any law, custom, or usage to the contrary withstanding.213 We should note first that this act was written to apply only to free Negroes and mulattoes, not to slaves, and second, that it dealt only with actual rape, not with attempted rape. T he question seems to be one of distinguishing consensual went, the husband Henry Watkins told Jack to keep off the Watkins’ property or he would be shot. Id. at 163. In explaining why she had not made her complaint earlier, Katherine Watkins blamed the delay on her sickness and that of her children. Her claim that her husband had not prosecuted because he was ‘‘inclinable to the quakers,’’ id. at 161, does not sit well with his threat to shoot Jack if the mulatto appeared on his property again. Whether or not Jack did in fact rape Katherine on the occasion in question, her delay in initiating the charge does raise the question of whether she decided to do so only when she thought she was pregnant, and her husband’s behavior in failing to prosecute suggests he may have been doubtful of the charge of rape. Unfortunately we do not know the disposition of the case. 212. When whites and blacks married, only the whites were punished. See, e.g., Act XVI, 3 L AWS OF VA. 86, 87 (Hening 1823) (enacted 1691) (white partner banished from Virginia for life); Ch. XLIX, § XIX, 3 L AWS OF VA. 447, 453–54 (Hening 1823) (enacted 1705) (white partner imprisoned for six months); Ch. VII, § XIV, 6 L AWS OF VA., 356, 361–62 (Hening 1819) (enacted 1753) (white partner imprisoned for up to twelve months); Ch. VIII, § 4, 1848 Va. Acts 12, 13 (Hening 1823) (enacted 1849) (same). When whites had mulatto bastards, only white women were punished. See e.g., Act XVI, 3 L AWS OF VA. 86, 87 (Hening 1823) (enacted 1691) (imposing fine and five year servitude if woman unable to pay); Ch. VII, § XIII, 3 L AWS OF VA. 447, 453 (Hening 1823) (enacted 1705) (same); 6 L AWS OF VA. 356, 361 (Hening 1819) (enacted 1753) (same). When whites engaged in interracial fornication, only the whites were punished. See, e.g., Act XII, 2 L AWS OF VA. 170, 170 (Hening 1823) (enacted 1662). 213. Ch. 23, 1824 Va. Acts 22, 22 (1825) (emphasis omitted). 128 Higginbotham and Kopytoff sexual relations from rape. For free Negroes and mulatto men, but not for slaves, this presented a problem deemed worthy of statutory consideration. T he statute appears to say that consent may never be assumed from a white woman’s participation in an act of interracial sex, but that she must give it explicitly either before or after the act. Sexual intercourse between a free black man and a white woman was assumed to be rape unless the woman spoke up and said that she had consented. Further, if the court were to decide that force had been used, the woman could not save the man from death by declaring her consent afterwards, even if she wished to. T his statute, enacted in 1825, came two years after one making attempted rape of a white woman by a black man a capital offense.214 Under the 1823 statute, a white woman could cause a black man to be put to death by doing little more than swearing in court that he had tried to rape her. T his gave a great deal of power to white women to condemn to death black men against whom they bore some grudge. T he legislators who conferred that considerable power on white women appeared to be less worried about the women who might abuse it than they were about white women who would not use it at all—about white women who willingly submitted to sexual relations with free blacks. T hey also may have been concerned with the perceived sexual dominance exercised by free black men over those white women who willingly had sexual relations with them. T o address these concerns, the 1825 act allowed the conviction of a free black man for ‘‘raping’’ a white woman based solely on the testimony of others unless the woman would publicly say that she consented to sexual relations with the man. While a white woman who violated social taboos might have had no private regrets about what she did, it was quite another thing for her to make a public statement of it. Apart from the social opprobrium to which it would subject her, such a statement made her vulnerable to prosecution for interracial fornication. If the liaison were a casual one, the white woman might well be unwilling to subject herself to public condemnation, fines, and possible imprisonment, even if remaining silent meant condemning a man to death. T he 1825 statute made it easier to convict and condemn to death free black men who had had voluntary sexual relations with white women. T he statute marks the first explicit recognition in an interracial rape statute of the possibility of consent by the white woman, but it does so in a context that appears to make it easier to prosecute black men for such relations by calling it rape. Why was the 1825 statute, with its sleight-of-hand wording that could turn consensual sex into rape, applied only to free Negroes and mulattoes and not to slaves? In the case of a white woman who voluntarily had sex with her own slave, that could be seen as an aspect, though an unseemly one, of her dominion over him. When a white woman had sexual relations with the slave of another, he was still under the control of whites, and, more importantly, he was valued property. T he owners did not want to be deprived of their valuable property, nor did the legislators wish the state to have to compensate owners for the loss of their slaves 214. Act 34, § 3, 1823 Va. Acts 36, 37. Racial Purity and Interracial Sex 129 just because some white women had been foolish enough to have sexual relations with them.215 On the other hand, the legislators could well contemplate ridding themselves of free Negroes and mulattoes who, as we have seen, posed a threat to white Virginians, and had been arrogant enough to have sex with white women, even if they had done so at the latter’s behest. Both this statute and the 1823 statute making attempted rape of white women by blacks and mulattoes punishable by death216 show an increasing uneasiness and rigidity toward interracial sexual relations on the part of the white men who drafted them. T his suggests that such relations were beginning to take on increasing symbolic importance in the Virginia society of the nineteenth century. Some juries, however, seemed reluctant to apply the new and harsh laws. An 1832 case shows a Virginia jury struggling with the question of attempted rape, as they did in the T hompson case a year later. In Commonwealth v. Fields,217 the defendant also was tried under the 1823 statute prescribing the death penalty for attempted rape. In this case, the jury acquitted the defendant, but the reasoning sounds rather strained, or, to put it positively, imaginative. A free Negro named Fields was indicted ‘‘for violently and feloniously making an assault upon, and attempting to ravish a white woman.’’ T he jury acquitted him, and the General Court of Virginia upheld the jury’s reasoning on the following special verdict: We find, from the evidence, that the prisoner did not intend to have carnal knowledge of the within named S.L. as alleged in the indictment, by force, but that he intended to have such carnal knowledge of her while she was asleep; that he made the attempt to have such carnal knowledge of her when she was asleep, but used no force except such as was incident to getting to bed with her, and stripping up her night garment in which she was sleeping, and which caused her to awake.218 T he jury, after making these findings of fact, left it to the judge to apply the law to them, but recommended that if the law determined that the prisoner was guilty, and if the offense were not punishable by death, that he be imprisoned for six years. T he General Court took the special verdict to allow acquittal, and thus Fields was set free. Under Virginia law of the time, the result is surprising. It seemed clear that the jury believed Fields did try to have sexual intercourse with ‘‘S.L.’’ without her consent. Under the 1823 statute, he could well have been found guilty of attempted rape and put to death.219 Yet the trial judge (in setting the jury the 215. 216. 217. 218. 219. See supra note 201, ¶2. See supra note 214. 31 Va. (4 Leigh) 648 (1832). Id. at 648–49 (emphasis in original). Ch. 34, § 3, 1823 Va. Acts 36, 37. T he 1825 statute made it clear that one could ravish without using force. In that act, a free Negro or mulatto who ravished a white woman by force was always guilty of rape; if he ravished her without force, he was guilty only if she failed to consent. Ch. 23, § 1, 1824 Va. Acts 22, 22 (1825). If a man under the 1825 statute could ravish a woman without using force, could he not then under the 1823 statute attempt to ravish her without using force? T he question was not considered. Fields was not indicted under the 1825 act, presumably 130 Higginbotham and Kopytoff task of finding a special verdict), the jury (in finding that no force was intended), and the appeals court (in finding attempted intercourse without force was not attempt to ravish within the meaning of the 1823 statute) were all generously interpreting law and fact in favor of the defendant. Was this a case like Thompson in which they thought the white woman was not worthy of the protection of the law, or did they think the punishment too harsh, or the sex consensual, or some combination of these factors? Whatever the reason, it seems that those charged with applying the new harsh laws punishing sexual relations between black men and white women had more difficulty with them than had the legislators who devised them.220 C. The Purpose of the Anti-Rape Statutes T hus far we have discussed the anti-rape statutes that protected white women, and we have noted that free Negro and mulatto women and slaves were not similarly protected. T he anti-rape statutes and trials, however, went far beyond protecting the personal rights of white women, especially as the law developed in the nineteenth century. T he 1823 statute making attempted rape of white women by blacks a felony punishable by death was not primarily an effort to secure greater protection for white women. Rather, its primary function and focus was the protection of a racial caste system. In the words of Sam Davis, the foreman of the jury in the Tasco Thompson case, ‘‘the law was made to preserve the distinction which should exist between our two kinds of population, and to protect the whites in the possession of their superiority.’’221 T he jurors and magistrates felt compelled to apply that law, even when they thought that the white women who claimed its protection were not victims of attacks by blacks, but willing sexual partners. T hey also thought that the law’s application in a number of particular cases resulted in injustice to the accused and thus they petitioned the Governor for mercy for the condemned prisoner. Only in the occasional anomalous case, such as Fields, did they go so far as to acquit a black man. In other cases, a sympathetic jury at most recommended mercy, small comfort to a black man convicted of rape whose options were likely to be death by hanging if mercy were not granted or sale as a slave in the West Indies if it were. Even when white ju- because that statute applied only to completed acts of intercourse, and Fields’ attempt was not successful. 220. See J. JOHNST ON , supra note 22, at 263 (noting jury’s discomfort with punishing black man for rape and not white woman though she consented). T he only other change in the anti-rape laws in the early 19th century came in response to a potential loophole created by insufficiently broad statutory language. In Commonwealth v. Watts, 31 Va. (4 Leigh) 672 (1833), a free Negro named Watts claimed his attempt to ravish an 11-year-old white girl who had not yet reached puberty was not an attempt to ravish a white woman within the meaning of the 1823 statute. Id. at 672. T he court disagreed and condemned Watts to death, id., and the legislature in 1837 broadened the language of the statute to include ‘‘any white female person, infant or adult.’’ Ch. 71, § 1, 1836–37 Va. Acts 49, 49 (1837). 221. Quoted in J. JOHNST ON , supra note 22, at 263. Racial Purity and Interracial Sex 131 rors believed that the law’s result was unjust, as they did in the Tasco Thompson case, they upheld it. As a by-product of laws designed to protect and preserve a racial caste system, white women did, in fact, receive far greater protection than non-white women, especially than slave women, who received no protection at all.222 T he whites valued both the bodily integrity of the white woman and the social integrity of the slave system far more highly than they valued the black or mulatto woman, who was seen primarily as something to be used: for work, for comfort, for pleasure, at will. T hose black and mulatto women who were slaves were valued, by the law, in the same ways property in general was valued, as something in which the owner’s rights were to be protected. T he question of rights of slave women who were sexually assaulted simply did not enter the picture; it was not part of the legal landscape. Categorization as property precluded the recognition of their human rights. T he rights of free black and mulatto women received scarcely more attention or recognition. V. Conclusions We have traced the roots of Virginia’s law of racial purity and related prohibitions on interracial sex and marriage that arose during the era of slavery, and we have discussed the role played by such laws in maintaining the slave society. Unfortunately, those laws did not end with slavery. White Virginians were determined to uphold the racially based social, economic, and political hierarchy of their slave society, even after the institution of slavery had been outlawed. Before emancipation, oppression had operated largely through the institution of slavery, but, as we have noted, slave status was technically independent of race. T here were the anomalies of free blacks and of slaves who were visibly white. T hese people interfered with a perfect correlation of race and status. Oppression thus operated partly in terms of race and partly in terms of slave status. After emancipation, there was no special status of slave and oppression became entirely racial. T hus, all those identified as Negro or mulatto had a special low status and were subject to special disabilities and oppression. As race became the sole means of identifying those who belonged to the lower caste, the legal definition of race became more exclusive and maintenance of white racial purity became more important. In the early twentieth century, Virginians made the first change in their definition of mulatto in 125 years. From the Act of 1785 to 1910, a mulatto, or ‘‘colored’’ person223 was someone who had one-fourth or more Negro blood.224 In 1910, that category was expanded to include anyone with one-sixteenth or more 222. See supra note 204, last ¶. 223. Shortly after the Civil War, in 1866, the legislature shifted from the word ‘‘mulatto’’ to ‘‘colored’’ but continued with the same proportion of one-fourth or more. Ch. 17, § 1, 1865–66 Va. Acts 84, 84 (1866). 224. See supra notes 49–67 and accompanying text. 132 Higginbotham and Kopytoff Negro blood, and many people previously classified as white became legally colored.225 T hen, in 1924, in a statute frankly entitled ‘‘Preservation of Racial Integrity,’’ the legislators for the first time defined ‘‘white’’ rather than ‘‘mulatto’’ or ‘‘colored.’’226 T he statute, which forbade a white person to marry any non-white, defined ‘‘white’’ as someone who had ‘‘no trace whatsoever of any blood other than Caucasian’’ or no more than one-sixteenth American Indian blood.227 In 1930, the Virginia legislature defined ‘‘colored’’ in a similar, though slightly less restrictive, way as any ‘‘person in whom there is ascertainable any negro blood.’’228 As we have noted, these exclusive definitions represented an unattainable ideal, as the white population had in fact been a racially mixed population for hundreds of years. Virginia also continued the ban on interracial marriage, making it a felony,229 until the United States Supreme Court declared the law unconstitutional in Loving v. Virginia230 in 1967. Far from having abated, the sentiment against interracial marriage expressed by the Virginia trial court in that case was at least as strong as that of the Virginia legislature in 1691 when it first outlawed interracial marriage, referring to the ‘‘abominable mixture and spurious issue’’ that it produced.231 T he myth of white racial purity also was invoked in Loving. Once used to support a slave society, this myth still survived a hundred years after slavery’s demise to support the racial hierarchy that white Virginians tried to maintain.232 T he following excerpts from the opinion of Virginia Circuit Court Judge Leon 225. 226. 227. 228. 229. 230. 231. 232. Ch. 357, § 49, 1910 Va. Acts 581. Ch. 371, § 5, 1924 Va. Acts 534. Id. Ch. 85, § 67, 1930 Va. Acts 97. Ch. VII, § 8, 1877–78 Va. Acts 302 (1877). 388 U.S. 1 (1967). Act XVI, 3 L AWS OF VA. 86, 86 (Hening 1691). T he elusive search for a satisfactory definition of race still persists. T he struggles of the U.S. Department of Labor to identify members of protected groups without establishing strict definitions can be seen in their current employment practices guidelines. T he Department’s solution is to use culturally accepted criteria without identifying what those criteria are. Instead, the guidelines merely say that the observers must be ‘‘adept’’ at judging race: A visual survey may be the most practical and secure way of identifying the race or sex of an individual . . . but the observer would need to be adept to the characterizations of each racial group. Help in this area might be obtained from friends or acquaintances of the individual who would possibly be able to determine to which group the individual is regarded by persons in the local community as belonging. Skin coloring is a prohibited basis for decision making, and it is also not a reliable means of racial identification. Some persons with dark skins are to be classified according to their culture or ethnic origin, as indicated below. Racial/ ethnic minorities—Scientific definitions of race or anthropological origin are not generally of use in categorizing racial/ ethnic minorities. As noted above, the enforcement agencies permit inclusion of individuals in the racial or ethnic group they appear to belong, to identify with, or are regarded in the community as belonging to. . . . T he category ‘‘black’’ would apply to some persons from Central and South America, such as Brazil, Racial Purity and Interracial Sex 133 Bazile,233 in Loving in 1965, exemplify the legal, religious, and philosophical rationale embraced by Virginia judges and legislators for some three centuries when they spoke of racial purity and interracial sex: Parties [to an interracial marriage are] guilty of a most serious crime. . . . . Almighty God created the races, white, black, yellow, malay, and red, and he [sic] placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. T he fact that he separated the races shows that he did not intend for the races to mix. T he awfulness of the offense [of interracial marriage] is shown by the fact . . . [that] the code makes the contracting of a marriage between a white person and any colored person a felony. Conviction of a felony is a serious matter. You lose your political rights, and only the government has the power to restore them. And as long as you live you will be known as a felon. ‘‘T he moving finger writes and moves on and having writ / Nor all your piety nor all your wit / Can change one line of it.’’234 Guyana, Surinam, or T rinidad, whose origins are the black racial groups of Africa, even though they may have adopted other cultures. Employment Practices Guide (CCH) ¶ 403, at 606 (1987). 233. T ranscript of Record at 8, reproduced in Loving v. Virginia, 388 U.S. 1, Appendix at 33 (1967) [hereinafter T ranscript of Record]. 234. Loving, 388 U.S. at 3, Appendix at 42. Richard and Mildred Loving left Virginia to evade its miscegenation laws, married in Washington, D.C., and returned to the state to live together as husband and wife. Richard was described as white and Mildred as colored. T hey were convicted, on guilty pleas, and each was given a 25-year suspended sentence, if they left the state and if they would never return together to the state during that period. Id. at 2–3. T he statutes involved were sections 20–54 and 20–57 of the Virginia Code. Section 20–57 provided: ‘‘Marriages void without decree.—All marriages between a white person and a colored person shall be absolutely void without any decree of divorce or the legal process.’’ VA. CODE ANN . § 20–57 (1960 Repl. Vol.). Section 20–54 of the Virginia Code provided: Intermarriage prohibited; meaning of term ‘‘white persons’’—It shall hereafter be unlawful for any white person in this State to marry any save a white person, or a person with no other admixture of blood than white and American Indian. For the purpose of this chapter, the term ‘‘white person’’ shall apply only to such person as has no trace whatever of any blood other than Caucasian; but 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. All laws heretofore passed and now in effect regarding the intermarriage of white and colored persons shall apply to marriages prohibited by this chapter. Id. § 20–54. T he exception for persons with less than one-sixteenth ‘‘of the blood of the American Indian’’ is apparently accounted for, in the words of a tract issued by the Registrar of the State Bureau of Vital Statistics, by ‘‘the desire of all to recognize as an integral and honored part of the white race the descendants of John Rolfe and Pocahontas.’’ Plecker, The N ew Family and Race Improvement, 17 VA. H EALT H BULL ., Extra No. 12, at 25–26 (New Family Series No. 5, 1925), cited in Wadlington, supra note 48, at 1202 n. 93. Section 1–14 of the Virginia Code provided: Colored persons and Indians defined—Every person in whom there is ascertainable any 134 Higginbotham and Kopytoff T he judge concluded that there was no constitutional basis, state or federal, to invalidate Virginia’s prohibition of interracial marriages.235 Negro blood shall be deemed and taken to be a colored person, and every person not a colored person having one fourth or more of American Indian blood shall be deemed an American Indian; except that members of Indian tribes existing in this Commonwealth having one fourth or more of Indian blood and less than one sixteenth of Negro blood shall be deemed tribal Indians. VA. CODE ANN . § 1–14 (1960 Repl. Vol.). Judge Bazile’s opinion seems inconsistent with the more humanitarian values of post–World War II America—particularly since it was written after the seminal decision in Brown v. Board of Education, 347 U.S. 483 (1954)—and supports the finding that racism was still very vigorous in the Virginia judiciary. 235. T ranscript of Record, supra note 233, at 12–15. Other court opinions that upheld the validity of antimiscegenation laws include: State v. Pass, 59 Ariz. 16, 121 P.2d 882 (1942); Jackson v. City & County of Denver, 109 Colo. 196, 124 P.2d 240 (1942); In re Shun T . T akahashi’s Estate, 113 Mont. 490, 129 P.2d 217 (1942); In re Paquet’s Estate, 101 Or. 393, 200 P. 911 (1921); see also Dodson v. State, 61 Ark. 57, 31 S.W. 977 (1895); Scott v. Georgia, 39 Ga. 321 (1869); State v. Jackson, 80 Mo. 175, 50 Am. Rep. 499 (1883); State v. Kennedy, 76 N.C. 251, 22 Am. Rep. 683 (1873); Lonas v. State, 50 T enn. (3 Heiskell) 287 (1871); Frasher v. State, 3 T ex. Crim. App. 263, 30 Am. Rep. 131 (1877). For other cases that did not involve interracial sex or interracial marriage but in which the court nevertheless cited or relied on antimiscegenation statutes, see Harris v. City of Louisville, 165 Ky. 559, 117 S.W. 472 (1915) (housing); Hopkins v. City of Richmond, 117 Va. 692 (1915) (housing); Plessy v. Ferguson, 163 U.S. 537 (1896) (separate but equal transportation); Civil Rights Cases, 109 U.S. 3 (1883) (public accommodation). One of the most extensive racist explications of the fear of interracial mixture occurs in an education case, Berea College v. Commonwealth, 123 Ky. 209, 94 S.W. 623 (1906). A 1904 Kentucky criminal statute prohibited any person or institution from teaching whites and blacks within a distance of 25 miles of each other. Id. at 213, 94 S.W. at 623–24. In upholding the portion of the statute that prohibited integrated education, the Kentucky Supreme Court stated: T he separation of the human family into races, distinguished no less by color than by temperament and other qualities, is as certain as anything in nature. T hose of us who believe that all of this was divinely ordered have no doubt that there was wisdom in the provision; albeit we are unable to say with assurance why it is so. T hose who see in it only nature’s work must also concede that in this order, as in all others in nature, there is an unerring justification. T here exists in each race a homogenesis by which it will perpetually reproduce itself, if unadulterated. Its instinct is gregarious. As a check there is another, an antipathy to other races, which some call race prejudice. T his is nature’s guard to prevent amalgamation of the races. A disregard of this antipathy to the point of mating between the races is unnatural, and begets a resentment in the normal mind. It is incompatible to the continued being of the races, and is repugnant to their instincts. So such mating is universally regarded with disfavor. In the lower animals this quality may be more effective in the preservation of distinct breeds. But among men conventional decrees in the form of governmental prescripts are resorted to in aid of right conduct to preserve the purity of blood. No higher welfare of society can be thought of than the preservation of the best qualities of manhood of all its races. If then it is a legitimate exercise of the police power of government to prevent the mixing of the races in cross-breeding; it would seem to be equally within the same power to regulate that character of association which tends to a breach of the main desideratum—the purity of racial blood. In less civilized society the stronger would probably annihilate the weaker race. Humane civilization is endeavoring to fulfill nature’s Racial Purity and Interracial Sex 135 T he post–Civil War Virginia courts had previously upheld the miscegenation laws because they assertedly were based on the ‘‘laws of God and the laws of property, morality and social order . . . [that] have been exercised by all civilized governments in all ages of the world.’’236 In 1955, the Virginia Supreme Court adopted the theories of other courts that had declared miscegenation laws were valid because ‘‘the natural law which forbids their intermarriage and the social amalgamation which leads to a corruption of races is as clearly divine as that which imparted to them different natures.’’237 T he Virginia Supreme Court then declared the state’s miscegenation statutes were constitutionally valid: [T hey] preserve the racial integrity of its citizens, . . . regulate the marriage relation so that it shall not have a mongrel breed of citizens . . . [and] prevent the obliteration of racial pride, [that would] permit the corruption of blood [and] weaken or destroy the quality of its citizenship. Both sacred and secular history teach that nations and races have better advanced in human progress when they cultivated their own distinctive characteristics and culture and developed their own peculiar genius.238 By 1965, when the Loving case was tried, many courts both in the North and the South had expressed fears about the ‘‘social amalgamation’’ of the races and the necessity of racial purity.239 Some states had opposed interracial marriages and interracial sex ‘‘to prevent breaches of the basic concepts of sexual decency.’’240 edicts as to the preservation of race identity in a different way. Instead of one exterminating the other; it is attempted to so regulate their necessary intercourse as to preserve each in its integrity. Id. at 221–22, 94 S.W. at 626. 236. Kinney v. Commonwealth, 71 Va. (30 Gratt.) 284, 285 (1878). 237. Naim v. Naim, 197 Va. 80, 84, 87 S.E.2d 749, 752 (1956). N aim involved a Chinese male and a white female who had a valid marriage ceremony in North Carolina and who returned to Virginia to reside as husband and wife. 238. Id. at 90, 87 S.E.2d at 756. 239. In 1995, ‘‘[m]ore than half of the States of the Union [had] miscegenation statutes.’’ Id. at 84, 87 S.E.2d at 753. By 1966, 16 states (including Virginia) still outlawed interracial marriages. T he Supreme Court in Loving v. Virginia, 388 U.S. 1 (1967), listed these state statutes and constitutions. T hey were, in addition to Virginia: Alabama, ALA. CONST ., Art. 4, § 102, Ala. Code, tit. 14, § 360 (1958); Arkansas, Ark. Stat. Ann. § 55–104 (1947); Delaware, Del. Code Ann., tit. 13 § 101 (1953); Florida, F LA. CONST ., art. 16 § 24, Fla. Stat. § 741.11 (1965); Georgia, Ga. Code Ann. § 53–106 (1961); Kentucky, Ky. Rev. Stat. Ann. § 402.020 (Supp. 1966); Louisiana, La. Rev. Stat. § 1479 (1950); Mississippi, M ISS. CONST ., art. 14, § 263, Miss. Code Ann. § 459 (1956); Missouri, Mo. Rev. Stat. § 451.020 (Supp. 1966); North Carolina, N.C. CONST ., art. XIV, § 8, N.C. Gen. Stat. § 14–181 (1953); Oklahoma, Okla. Stat., tit. 43, § 12 (Supp. 1965); South Carolina, S.C. CONST ., art. 11, § 14, T enn. Code Ann. § 36–402 (1955); T exas, T ex. Pen. Code, art. 492 (1952); West Virginia, W. Va. Code Ann. § 4697 (1961). Id. at 6 n.5. 240. McLaughlin v. Florida, 379 U.S. 184, 193 (1964). T he Supreme Court, however, did not agree 136 Higginbotham and Kopytoff T he concerns expressed by the many state legislatures that at various times prohibited interracial marriage have roots that go back three centuries in America. T he prohibitions against interracial marriage were part of a long-standing aversion to interracial sex, marital and non-marital. In 1944, twenty-three years before the United States Supreme Court declared miscegenation laws unconstitutional, the sociologist Gunnar Myrdal wrote: T he ban on intermarriage has the highest place in the white man’s rank order of social segregation and discrimination. Sexual segregation is the most pervasive form of segregation, and the concern about ‘‘race purity’’ is, in a sense, basic. No other way of crossing the color line is so attended by the emotion commonly associated with violating a social taboo as intermarriage and extra-marital relations between a Negro man and a white woman. No excuse for other forms of social segregation and discrimination is so potent as the one that sociable relations on an equal basis between members of the two races may possibly lead to intermarriage.241 Indeed, the issue of interracial sex and interracial marriage seems to have been more troublesome to the U.S. Supreme Court than even the issue of racial integration of public schools.242 with the state legislature that a statute prohibiting interracial cohabitation was necessary to preserve ‘‘sexual decency’’; it concluded that the Florida statute violated the equal protection clause. Id. at 196. More than a century before Judge Bazile’s opinion, Chief Justice Roger Brook T aney, in Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857), relied heavily on the existence of antimiscegenation laws as evidence that blacks were of an inferior class, that blacks could not be citizens of the United States, and that blacks had ‘‘no rights which the white man was bound to respect.’’ Id. at 413. T aney’s first legislative reference was to the Massachusetts laws of 1786 and 1705 which ‘‘forbids the marriage of any white person with any Negro, Indian or mulatto.’’ Id. 241. G. M YRDAL , AN AMERICAN D ILEMMA 606 (1944) (emphasis in original). But cf. O. COX, CAST E, CLASS AND RACE 386–387, 526–527 (1959), cited in D. BELL , RACE, RACISM AND AMERICAN L AW 268–69 (2d ed. 1973) (segregation motivated by whites’ desire to continue to exploit blacks economically). 242. See generally D. BELL , supra note 241, at 258–94 (selected articles discussing interracial sex and the law). Professor Bell has written: As late as 1955, in Naim v. Naim, the Supreme Court of Appeals of Virginia upheld its state’s anti-miscegenation statute on the grounds that the legislature had complete power to control the vital institution of marriage. While its decision came after Brown v. Board of Education, the Virginia Court found that precedent a comfort rather than an obstacle to its conclusion. It noted that Brown found education a ‘‘foundation of good citizenship,’’ but that so lofty a status was hardly deserved by interracial marriage. In short, the Virginia court literally challenged the Supreme Court to reverse its Naim v. Naim decision. Still hoping that the nation might accept and comply with Brown I and its ‘‘all deliberate speed’’ compliance mechanism set out in Brown II, the Supreme Court was in no mood for extending the racial revolution to the ever sensitive area of interracial sex. In a decision that Professor Herbert Wechsler condemned as ‘‘wholly without basis in law,’’ the Supreme Court, after hearing oral argument in the Naim case, decided the record was incomplete with respect to the domicile of the parties (a white woman and Chinese man had been married in North Carolina and then returned to reside in Virginia), remanding the case to the Virginia court for a further remand to the trial court. On remand, the Virginia Court Racial Purity and Interracial Sex 137 T he issues of racial purity and interracial sex form part of a background of a far broader process of debasement of blacks that uses the law to treat blacks more harshly than similarly situated whites.243 T he societal problem goes of Appeals refused to comply with the mandate, concluding that there was no Virginia procedure available to reopen the case. Requested to recall the remand, the Supreme Court instead dismissed the appeal on the grounds that the second Virginia decision left the case devoid of a substantial federal question. T he Supreme Court’s performance in Naim v. Naim may be explained as a ‘‘prudent avoidance’’ of an obvious test case. Prudence of that character caused substantial sacrifice earlier when the Supreme Court refused, only a few months after the decision in Brown v. Board of Education, to review the conviction under Alabama’s miscegenation law of a black man who married a white woman. Id. at 56–57 (footnotes omitted). Philip Elman, who was on the staff of the U.S. Solicitor General from 1944 to 1961 and who handled all Supreme Court civil rights cases in which the United States was a party or an amicus curae, discusses Naim v. Naim as follows: I first heard of that case after the Supreme Court had decided Brown v. Board of Education in 1954. . . . Now, at that time the opposition to Brown v. Board of Education in southern states was very great. . . . And over and over again, the fear was expressed that Brown was going to lead to ‘‘mongrelization’’ of the races. T he notion was that little black boys would be sitting next to little white girls in school, and the next thing would be intermarriage and worse. T his was terrible stuff to be expressing, yet it was being said not only by the demagogues, the Bilbos and T almadges, but also by more ‘‘respectable’’ southern politicians as a way of galvanizing opposition to the Supreme Court’s decision. Well, I knew that the last thing in the world the Justices wanted to deal with at that time was the question of interracial marriage. Of course, if they had to, they unquestionably would hold that interracial marriage could not be prohibited consistently with Brown v. Board of Education, but they weren’t ready to confront that question. T he timing was all wrong. . . . [Solicitor General Simon Sobel and Justice Felix Frankfurter agreed with this conclusion.] In due course, the appeal was filed and the Supreme Court in a brief per curiam order dismissed it and sent the case back to the Virginia Court of Appeals on the ground that the record did not clearly present the constitutional issue. Now that was a specious ground. T he record did present the constitutional issue clearly and squarely, but the Court wanted to duck it. And if the Supreme Court wants to duck, nothing can stop it from ducking. And so the case went back to the Virginia Court of Appeals. . . . T he Supreme Court again refused to take the case, on the ground that it failed properly to present a federal constitutional question. So that was the end of N aim v. N aim. A decade later, when the climate was more agreeable and there were no longer factors justifying any further delay, the Supreme Court—in a case that very aptly was titled Loving v. Virginia—unanimously held that racial miscegenation laws are unconstitutional. Elman, The Solicitor General’s Office, Justice Frankfurter, And Civil Rights Litigation, 1946–1960: An Oral History, 100 H ARV. L. REV. 845–47 (1987) (emphasis in original) (footnotes omitted). 243. In dissenting from the Supreme Court’s conclusion that statistical evidence could not be used to consider whether the death penalty in Georgia was disproportionately imposed on black defendants who had been convicted of killing white victims, Justice Brennan wrote: At some point in this case, Warren McCleskey doubtless asked his lawyer whether a jury was likely to sentence him to die. A candid reply to this question would have been dis- 138 Higginbotham and Kopytoff far beyond the scope of this Article244 and beyond the boundaries of this country.245 In this Article, we discuss the evolution of the concepts of racial purity, interracial sex, and interracial marriage in colonial and antebellum Virginia, but we turbing. First, counsel would have to tell McCleskey that few of the details of the crime or of McCleskey’s past criminal conduct were more important than the fact that this victim was white. Furthermore, counsel would feel bound to tell McCleskey that defendants charged with killing white victims in Georgia are 4.3 times as likely to be sentenced to death as defendants charged with killing blacks. In addition, frankness would compel the disclosure that it was more likely than not that the race of McCleskey’s victim would determine whether he received a death sentence: 6 of every 11 defendants convicted of killing a white person would not have received the death penalty if their victims had been black, while, among defendants with aggravating and mitigating factors comparable to McCleskey, 20 of every 34 would not have been sentenced to die if their victims had been black. Finally, the assessment would not be complete without the information that cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim. T he story could be told in a variety of ways, but McCleskey would not fail to grasp its essential narrative line: there was a significant chance that race would play a prominent role in determining if he lived or died. McCleskey v. Kemp, 481 U.S. 279, 320–21 (1987) (Brennan, J., dissenting) (citations omitted). 244. T hese issues are also part of a larger process of denigration of both black and white women in American society. On the issue of gender, though in a somewhat different context, the United States Supreme Court stated as recently as 1974 that women in America have been victimized by either ‘‘overt discrimination . . . or a socialization process of a male dominated culture.’’ Kahn v. Shevin, 416 U.S. 351, 353 (1974) (emphasis added). Even the famed egalitarian T homas Jefferson purportedly believed ‘‘that women should be neither seen nor heard in society’s decisionmaking councils,’’ Frontiero v. Richardson, 411 U.S. 677, 684 n.13 (1973). Jefferson reportedly stated that, ‘‘were our state a pure democracy, there would still be excluded from our deliberations . . . women, who, to prevent depravation of morals and ambiguity of issues, should not mix promiscuously in gatherings of men.’’ Quoted in M. G RUBERG , WOMEN IN AMERICAN POLIT ICS 4 (1968). See generally E. Brooks Higginbotham, Beyond The Sound of Silence: AfroAmerican Women in History, 1 G ENDER & H IST . 50 (1989) (discussing effect of race on nature and intensity of discrimination against women in United States); see also Burnham, An Impossible Marriage: Slave Law and Family Law, 5 L AW & INEQUALIT Y 187, 199 (1987) (slave women deemed sexual property of owner, available for sexual abuse by owner, his sons, the overseer, or any other white male); Scales-T rent, Black Woman and the Constitution: Finding Our Place, Asserting Our Rights, 24 H ARV. C.R.-C.L.L. REV. 9, 26–27 (1989) (arguing for distinct legal classification of black women, separate from black males and white women, due to unique oppression suffered by this group throughout history). On the issue of race, the National Advisory Commission on Civil Disorder observed: ‘‘What white Americans have never fully understood—but what the Negro can never forget—is that white society is deeply implicated in the ghetto. White institutions created it, white institutions maintain it, and white society condones it.’’ REPORT OF T HE N AT IONAL ADVISORY COMMISSION ON CIVIL D ISORDER 2 (N.Y. T imes ed. 1968). 245. In many ways, the pronouncements of Judge Bazile in Loving are indistinguishable from the racist views that have been and are now being advocated by many supporters of South African apartheid. In fact, South Africa did not enact miscegenation statutes until 1949, and government spokesmen justified their proposed statute on the ground that some 30 states in the United States of America had similar laws: Racial Purity and Interracial Sex 139 submit that these concepts were part of the root of American racism that has entangled almost every aspect of American society.246 Look at the experience of other countries in this very same sphere of mixed marriage. Is it not something for the other side to think about that in thirty out of the forty-eight States of the United States they have legislation on similar lines to this? Is it not an argument to show that it is no reason for discarding such legislation, because it is not so effective as one would like it to be? I take it the difficulty is as great there as it is here, but thirty states have decided on legislation on these lines; thirty states have found it necessary to take legislative steps to keep down this social evil. Union of South Africa, 68 D EBAT ES OF T HE H OUSE OF ASSEMBLY, col. 6493 (25 May 1949) (statement of the Minister of the Interior, Union of South Africa) [hereinafter Minister’s remarks]; see also id. at 6498, 6506 (other references to the United States miscegenation laws). T he Prohibition of Mixed Marriages Act of 1949, which forbids marriages between ‘‘a European and a non-European’’ and provides that any union entered into in contravention of this law ‘‘shall be void and of no effect,’’ was one of the first laws to be passed by the National Party Government after it came to power. Act 55 (S. Af. 1949) (amended by Act 21 of 1968), cited in J. D UGARD , supra note 73, at 68–71. T he law also made it a criminal offense for a marriage officer to perform an interracial marriage ceremony. Before 1949, mixed marriages were rare in South Africa and averaged fewer than one hundred per year between 1943 and 1946, but the South African government wished to legislate against such marriages in order to prevent coloreds from ‘‘infiltrating’’ the dominant white group by marriage. Minister’s remarks, supra, at 6493 (reminding the South African legislature that ‘‘the numerical position [of whites] in the United States of America, in those thirty states [banning interracial marriage] is not half or a quarter so serious as the position in South Africa’’). For a general discussion of South African miscegenation laws, see J. D UGARD , supra note 73, at 68–71. Dugard discusses the Act at pages 68–69. For a more detailed comparative analysis of United States and South African legal policies, see Higginbotham, Racism in American and South African Courts: Similarities and Differences (draft manuscript) (copy on file at The Georgetown Law Journal ). 246. T his entanglement, of course, starts with slavery, see A. H IGGINBOT HAM , supra note 3, at 40– 47, 58–60 (discussing white male domination and interracial sexual relations in the context of the legalized debasement of blacks in Virginia during the colonial period), but it pervades contemporary American society as well: Employment: Griggs v. Duke Power Co., 401 U.S. 424, 436 (1971) (invalidated use of intelligence test unrelated to terms of employment); Steele v. Louisville & N.R.R., 323 U.S. 192, 208 (1944) (labor organization may not discriminate on the basis of race when representing employees). Housing: T illman v. Wheaton-Haven Recreation Ass’n, 410 U.S. 431, 440 (1973) (swimming pool association forbidden to use geographic criteria for membership); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413 (1968) (unconstitutional to discriminate on the basis of race in selling lots in a private subdivision); Shelley v. Kraemer, 334 U.S. 1, 23 (1948) (racially restrictive covenants invalid). Education: Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 32 (1971) (interdistrict school busing ordered as remedy for school segregation); Brown v. Board of Educ., 347 U.S. 483, 496 (1954) (separate education for blacks and whites violated equal protection clause); McLaurin v. Oklahoma State Regents, 339 U.S. 637, 641 (1950) (graduate school segregational seating violated equal protection clause); Sweatt v. Painter, 339 U.S. 629, 636 (1950) (educational opportunities for black law students in T exas unequal, in violation of equal protection clause). Voting: South Carolina v. Katzenbach, 383 U.S. 301, 326 (1966) (implementation of 1965 voting rights act in which Congress invalidated discrimination on the basis of race in voting); Reynolds v. Sims, 377 U.S. 533, 545 (1964) (apportionment of legislature found irrational); Gray v. Sanders, 372 U.S. 368, 379 (1963) (one man-one vote invalidates weighted voting that granted 140 Kennedy T he Enforcement of Anti-Miscegenation Laws* RAN D AL L KEN N ED Y Hybridism is heinous. Impurity of races is against the law of nature. Mulattoes are monsters. The law of nature is the law of God. The same law which forbids consanguineous amalgamation forbids ethnical amalgamation. Both are incestuous. Amalgamation is incest. Henry Hughes, T reatise on Sociology 31 ( 1860) [Anti-miscegenation laws] make the father a nominal criminal, the mother a legal prostitute, and the children legal bastards in the arms of their recognized parents. They deprive the mothers and innocent children of the proper protection of the laws of their country, and nothing more . . . These State laws prohibiting the intermarriage of the two races do not prevent amalgamation, but encourage prostitution and abandonment of offspring. They are, therefore evil, and only evil. Senator James Harlan, Cong. Globe, 42 2d Cong Sess., pt.1 at 878 ( 1872) White race-purity is the corner-stone of our civilization. Its mongrelization with non-white blood, particularly with negro blood, would spell the downfall of our civilization. This is a matter of both national and racial life and death, and no efforts should be spared to guard against the greatest of all perils— the peril of miscegenation. Letter from Lothrop Stoddard to John Powell, Feb. 1, 1924, quoted in Paul A. Lombardo, Miscegenation, Eugenics, and Racism: Historical disproportionate power to rural areas); Baker v. Carr, 369 U.S. 186, 236–37 (1962) (existing legislative apportionment schemes held to violate 14th amendment). Public accommodations: Katzenbach v. McClung, 379 U.S. 294, 304 (1964) (private restaurant that served out-of-state patrons sufficiently in interstate commerce to be within Civil Rights Act of 1964’s prohibition of racial discrimination); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 293 (1964) (public accommodations provisions of Civil Rights Act of 1954 are valid under the commerce clause); Burton v. Wilmington Parking Auth., 365 U.S. 715, 726 (1961) (refusal of private restaurant in a public building to serve on account of race violates equal protection clause). Racial violence: Griffin v. Breckenridge, 403 U.S. 88, 107 (1971) (thirteenth amendment right to travel impinged); United States v. Johnson, 390 U.S. 563, 567 (1968) (criminal to intimidate a citizen in the free exercise or enjoyment of a constitutional right). * T his previously unpublished essay is part of a new book project by Randall Kennedy. The Enforcement of Anti-Miscegenation Laws 141 Footnotes to Loving v. Virginia, 21 University of California at Davis Law Review 421, 432 (1988) . Half an hour after midnight, on a chilly evening in 1929 in Sheffield, Alabama, two white police officers barged into a home where they found Elijah Fields, a fifty-year-old black man, in the company of Ollie Roden, a twenty-five-year-old white woman. T he police maintained that they knocked on the door for about five minutes without receiving any response before entering Fields’s house. When they did, they encountered Fields and Roden in an unlit bedroom. Both were fully dressed, except that she wore no shoes. Asked why he had failed to respond to the knocking, Fields said that he had been afraid to do so. Fields and Roden were both indicted for miscegenation.1 Under Alabama law it was a felony for a black person and a white person to intermarry or cohabit. At trial, Fields’s witnesses, including Roden’s parents, portrayed the episode as one big misunderstanding. Fields and Roden were not carrying on an affair. Rather, Fields had simply been acting as a good samaritan. Roden’s father had asked Fields—a man whom he had known for many years—to transport his daughter from a hospital to a boarding house. Fields was in the process of doing so when intercepted by the police. T he defense also emphasized Roden’s physical infirmities. Some unidentified malady caused her feet and legs to be covered with open sores. T hat, apparently, is why she was wearing no shoes at the time of her arrest. Uncontradicted testimony also established that she was incontinent and suffering from an unceasing menstruation. T he prosecution emphasized the presumptive suspiciousness of finding a man and a woman together in an unlit bedroom in the man’s house late at night. It also noted that police had previously seen Fields and Roden riding together alone in his car and that on at least one occasion Fields had allowed Roden to steer the car, with his hand on top of hers on the steering wheel—a gesture which, in the eyes of the state’s attorney, was remarkably and illicitly friendly. In his summation, Assistant Attorney General James L. Screws declared at one point, ‘‘Gentlemen of the jury, suppose it had been your daughter who was treated like this white girl was treated by this negro’’; at another point he declared, ‘‘You should convict . . . in order that similar occurrences may not happen to your daughter.’’2 Judge J. Fred Johnson, Jr., told the jury that state law provided that ‘‘a white woman and a black man . . . cannot intermarry or live together in adultery or fornication and [that] it is a felony if they do so.’’ According to the judge, the state had to prove more than that the defendants had engaged in a single act of sexual intercourse or even an occasional act of illicit sex; rather, the state had to prove that Fields and Roden had an ongoing relationship—that they ‘‘did live 1. My description of this case is based upon an opinion rendered by the Court of Appeals of Alabama (Fields v. State, 132 So. 605 [1931]) and upon the record of the case (Record), which is on file at the Harvard Law School Library and which contains the indictment, the judge’s jury instructions, objections made by defense counsel, and the testimony offered at trial. 2. Record, 5. 142 Kennedy together in fornication’’ or did otherwise intend to continue having sex when the opportunity arose.3 T he jury convicted Fields whereupon the judge sentenced him to a two-tothree-year prison term. T he Alabama court of appeals reversed, ruling that the jury lacked an adequate evidentiary basis for its finding of guilt. ‘‘Standing alone,’’ the court concluded, the fact that Fields and Roden were found together in Fields’s home at night, ‘‘under the circumstances testified to by the arresting officers,’’ was an insufficient basis for conviction. T he court also chastised the prosecutor for making blatant appeals to racial prejudice in his summation and the trial judge for doing too little to restrain the prosecutor. ‘‘T he surrounding atmosphere,’’ the court of appeals complained, ‘‘was not conducive to a fair and impartial trial for one of appellant’s race accused of such an offense.’’4 Elijah Fields’s travail illustrates the way in which, not so long ago, law enforcement officials were statutorily empowered to police associations perceived to be an affront to conventional codes of racial conduct, particularly those which demanded social distance between black men and white women. Initially, the officers who arrested Elijah and Ollie probably thought the couple was in violation of state law. After the arrest, however—when officials were apprised of Ollie’s illness and hospitalization and her father’s request to Elijah—it is difficult to believe that they continued to think that they had stumbled upon an illegal sexual crossing of the color line. A more likely scenario is that local officials wanted to emphasize (perhaps for reasons of electoral politics) that even the appearance of sexual intimacy between a black man and a white woman constituted a crime. One gets the impression that by the time of trial the prosecutor’s real complaint was that Elijah and Ollie had acted recklessly by comporting themselves in such a way that onlookers might get the wrong impression of their relationship. An especially poignant moment in Fields’s trial occurred when the prosecutor asked him whether he ‘‘liked’’ Ollie. Clearly afraid that an affirmative response would prejudice the jury, Fields replied—‘‘I am a negro’’—meaning, essentially, that he knew his rightful ‘‘place’’ and that his rightful place precluded him from ‘‘liking’’ a white woman. ‘‘I don’t especially like [Miss Roden],’’ he replied; ‘‘I am very fond of her father, and I wanted to help him.’’5 T he state court of appeals ultimately saved Fields from prison (at least temporarily) by demanding at least some semblance of due process within the administration of segregationist law. But the reversal of his conviction probably did little to alleviate the in terrorem affect of the prosecution and conviction. After all, the expense and anxiety associated with even a winning defense in a criminal case 3. Record, 1–2. 4. Fields v. State, 606. 5. A similar moment awaited Ollie Roden. During her testimony, she stated at one point, ‘‘I am a white woman and though greatly afflicted . . . have never thought of having sexual intercourse with a negro’’ (Record, 19–20). The Enforcement of Anti-Miscegenation Laws 143 is enough understandably to frighten people. Moreover, when an appellate court reverses a conviction, the way remains open typically for a retrial. Whether Fields was retried is unknown. But in any event, any onlooker, particularly any black male onlooker, would surely have inferred from Fields’s prosecution the advisability of staying far clear from any interracial familiarity that could possibly be subject to misinterpretation. Perhaps the most significant thing about Fields’s case has to do with the precise character of his supposed ‘‘crime.’’ T hat crime did not occur when people of different races merely had sex together. Courts reversed scores of convictions for criminal miscegenation based merely on episodes of interracial sex.6 Judges insisted that the state prove the existence of some sort of relationship. T olerant of a loveless, perhaps commercial, interracial ‘‘quickie,’’ Alabama law was intolerant of an authentic, stable interracial romance. Nothing more vividly reflects American racial pathologies than the tendency to use power, especially state power, to discourage interracial love. Fear of interracial love, particularly its institutionalization in marriage, has given rise to ‘‘more statutes covering a wider geographical area than any other type of racially restrictive law.’’7 Initially, sex was the locus of regulation. In 1662 in one of the first antimiscegenation statutes in what is now the United States, Virginia doubled fines for persons who engaged in interracial as opposed to intraracial fornication.8 As the racial regulation of intimacy matured, however, officials generally chose to police marriage more closely than mere sex. Indeed, the same officials who have insisted that interracial marriage poses a dire threat to white civilization, have often resisted efforts to prevent sex across the race line, especially when the trespassing involved white men. In 1895 when delegates to the South Carolina Constitutional convention contended that a prohibition against interracial marriage should be added to the state’s constitution, Robert Smalls, a black politician, responded by saying that he would assent to such a provision if, in addition, it provided that men who had concubines of a different race would be forever barred from political office. Smalls’s proposal caused an uproar. Observers understood that it was aimed at exposing the hypocrisy of white politicians who, on the one 6. See Gilbert v. State, 23 So. 2d 22 (Alabama Court of Appeals, 1945); State v. Brown, 108 So. 2d 233, 235 (Louisiana Supreme Court, 1959). See also Koppelman, ‘‘Same-Sex Marriage, Choice of Law and Public Policy,’’ 921, 950. 7. Greenberg, Race Relations and American Law, 353. 8. Virginia’s Act XII (Hening, Laws of Virginia 2 [New York, 1823]), enacted December 23, 1662, provided that ‘‘if any christian shall commit fornication with a negro man or woman, hee or she so offending shall pay double the fines [regularly imposed].’’ Even more consequential was another section of this act which provided that children fathered by white men and born of black slave women would inherit the legal status of their mothers, thereby becoming slaves for life: ‘‘Whereas some doubts have arisen whether children got by any Englishman upon a negro woman should be slave or free, Be it therefore enacted and declared . . . that all children borne in this country shall be held bond or free only according to the condition of the mother.’’ For an excellent discussion of the colonial history of Virginia’s anti-miscegenation provisions, see Higginbotham and Kopytoff, ‘‘Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia.’’ [Higginbotham and Kopytoff’s article is found in this volume, pp. 81–139. —Ed.] 144 Kennedy hand, roundly condemned ‘‘amalgamation’’ and, on the other, frequented black prostitutes or enjoyed black concubines. Acting pursuant to that hypocrisy, the convention defeated Smalls’s amendment but supported the proposed prohibition against interracial matrimony.9 By that time, such laws already had a long history in America. In 1691 Virginia became the first colony to outlaw interracial marriage. ‘‘For prevention of that abominable mixture and spurious issue’’—meaning mixed-race babies—the Virginia Assembly decreed that whites who married blacks, mulattoes, or Indians would be banished from the dominion forever. Next to discourage or prohibit such marriages was Maryland (1692), followed by Massachusetts (1705), followed by Pennsylvania (1725). By 1800, ten of the sixteen states then constituting the United States proscribed interracial marriages. In 1913, when Wyoming became the last state to impose a statutory discouragement or prohibition on interracial marriage, forty-one states had enacted laws at one time or another that armed public authorities and private persons with weapons with which to create and police racial divisions in matters of sex and matrimony.10 In 1967, when the U.S. Supreme Court belatedly invalidated anti-miscegenation statutes in Loving v. Virginia, seventeen states still prohibited interracial marriage.11 From the beginnings of the eighteenth century onwards, all anti-miscegenation laws in British North America prohibited blacks and whites from marrying one another. Similar prohibitions were imposed upon Native Americans and people of Chinese, Japanese, Filipino, Indian, and Hawaiian ancestry. T here were no laws that prohibited Christians from marrying Jews or that prohibited interethnic marriages. In the nineteenth century, many groups that we now think of simply as ethnic ‘‘whites’’ were then thought of as distinct races. Hence, Jews were thought of as a discrete race as were the Irish, Italians, Hungarians, and so on. However, despite sometimes intense social discriminations based on ethnic identities—‘‘No Irish need apply’’—state governments never prohibited interethnic marriages among whites. T his is an example of the unique place of color in American life. Many groups of all sorts have discouraged their ‘‘members’’ from marrying outside the group. However, the only time State power has been mobilized to prevent such unions is when authorities feared marriage across the color line. T he targets and intensities of punishments varied widely. In some states, prior to the Civil War, officials subjected only whites to punishment for crimes of interracial intimacy. T his probably stemmed from two beliefs. One was that blacks were too irresponsible and inferior to punish. A second was that whites were the 9. See Williamson, After Slavery. 10. Alaska, Connecticut, the District of Columbia, Hawaii, Minnesota, New Hampshire, New Jersey, Vermont, and Wisconsin are the jurisdictions that never enacted anti-miscegenation laws. See Fowler, N orthern Attitudes towards Interracial Marriage, p. 336. 11. On the evolution of anti-miscegenation laws see Martyn, ‘‘Racism in the United States’’; Applebaum, ‘‘Miscegenation Statutes,’’ 49; Weinberger, ‘‘A Reappraisal of the Constitutionality of Miscegenation Statutes,’’ 208; Wallenstein, ‘‘Race, Marriage and the Law of Freedom,’’ 371; Wadlington, ‘‘T he Loving Case,’’ 1189. The Enforcement of Anti-Miscegenation Laws 145 ones responsible for protecting the purity of their bloodlines. T his second belief was closely related to yet another status distinction found in antebellum laws regulating intimacy: a gender distinction under which white women were deemed to be the primary gatekeepers to white racial purity and, concomitantly, the members of the white community who could, with justice, be most severely punished for racial transgressions, including—in order of increasing perfidiousness—having sex across racial lines, marrying across racial lines, and giving birth to a mixedrace baby. T he peculiar burdens imposed upon white women by racial regulations of intimacy highlight a point worth special emphasis: T he racial regulation of intimacy has not only pitted colored people against white people; it has also pitted men against women, both across racial lines and within racial groups. After the Civil War, to comply with new federal requirements for formal racial neutrality, officials in some states felt compelled to punish blacks who married interracially to the same extent as their white spouses—an ironic effect of Reconstruction.12 Similarly ironic is that in at least some jurisdictions anti-miscegenation laws were probably enforced more stringently after the Civil War than before it. Slavery provided such a massive boost to the collective self-esteem of whites that many of them were willing to overlook certain infractions of racial regulations, including those that prohibited interracial romance. With the traumatic abolition of slavery, however, and the even more unsettling assertion of civil and political rights by blacks during Reconstruction, southern whites suffered a tremendous blow to their collective, racial self-esteem. Many compensated by insisting relentlessly upon an exacting observance of formal and informal rules of racial caste. T he result in many places appears to have been an enhanced criminal enforcement of anti-miscegenation laws, along with every other restriction that would reinforce the lesson of white supremacy and black subordination, white purity and black contamination.13 Punishments for violating anti-miscegenation laws included enslavement, exile, whipping, fines, and imprisonment. Some jurisdictions punished those who performed such marriages. Not to be outdone, Mississippi criminalized not only interracial marriage but advocacy of ‘‘social equality or of intermarriage between whites and negroes.’’14 Criminal punishments were not the only means of enforcing anti-miscegenation laws. Civil liabilities played an important role as well. Some jurisdictions made interracial marriages voidable—meaning that a party to the union could always freely repudiate it (thereby undercutting its stability). Others made interracial marriages void—meaning that, in the eyes of the state, parties to such an arrange- 12. See Ex parte Francois, 9 Federal Cases 5,047 (Circuit Court, Western District, T exas 1879); Mangum, The Legal Status of the N egro, 241. 13. See Hodes, White Women, Black Men; Mills, ‘‘Miscegenation and the Free Negro in Antebellum ‘Anglo’ Alabama,’’ 16. Diane Miller Sommerville shows that the same held true for responses to rape, that black men charged with raping white women generally fared better in the antebellum South than the South of the Jim Crow era. See ‘‘T he Rape Myth in the Old South Reconsidered,’’ 481. 14. See Fowler, N orthern Attitudes towards Interracial Marriage, 393. 146 Kennedy ment had never been married. T hese efforts to deprive interracial unions of legal standing had far-reaching consequences. Children of void marriages became bastards with no legal claim to their parents’ estates. Women partners in void marriages had no claim upon their husbands for alimony or child support, death benefits or inheritance. A sibling who initially stood to gain little or nothing upon the death of a married brother or sister could gain a lot by proving that the deceased relative was of a different race than the bereaved spouse and that, therefore, their marriage violated state law. In that event, money that would have gone to the spouse would now go to the siblings. Because anti-miscegenation laws opened up opportunities for enrichment along these lines, the civil enforcement of such statutes was often stubborn and aggressive. It is impossible to determine precisely how much of a difference antimiscegenation laws made to the way in which people actually lived their lives. T here are, after all, many considerations beyond fears of criminal prosecution that shape behavior. For black men in certain times and places, for instance, fear of lynching probably played a more influential role in their conduct towards white women than fear of enforcement of anti-miscegenation laws. It is also impossible to determine to what extent such laws were enforced. We do not know the incidence of unlawful miscegenation or the level of resources allocated to enforcing anti-miscegenation statutes or even the number of criminal or civil suits brought to enforce these statutes. What we do know is that hundreds of cases were decided by appellate courts, which handed down opinions that reveal scores of fascinating and poignant (albeit largely forgotten) problems that judges dealt with in all manner of contradictory ways. As we shall see, these problems vary widely. T hey all reflect, however, the difficulties that officials encountered in seeking to preserve or create racial ‘‘integrity’’—or at least the racial integrity of those defined as ‘‘white.’’ Along with integrity, purity was a salient watchword of those who mobilized state power to prevent racial ‘‘mixing,’’ ‘‘mongrelization,’’ and ‘‘amalgamation.’’ But at every turn, this impulse to maintain a strict, clean, and consistent racial order was confounded by the force and consequences of human passion, compassion, and ingenuity. T he anti-miscegenation laws were unable to preserve or recreate white racial chastity; desire, humanity, and hypocrisy kept getting in the way. T his is by no means a unique story. T o paraphrase George M. Fredrickson: Across the world, the anarchic nature of the human libido has always created serious problems for the guardians of racial, ethnic, and religious boundaries and privilege.15 Problems of Classification One difficulty that emerges whenever authorities attempt any sort of racial regulation is the task of placing racial labels onto individuals, especially when they dispute the ascription. It is widely believed that the race line—at least the one 15. See Fredrickson, White Supremacy, 94. The Enforcement of Anti-Miscegenation Laws 147 separating ‘‘whites’’ from ‘‘blacks’’—has been governed by a simple formula, the ‘‘one-drop rule’’ under which one drop of black blood is sufficient to classify a person as black. T hus, in Who Is Black? F. James Davis asserts that the answer in the United States has long been that ‘‘a black is any person with any known African black ancestry.’’16 Over the years, many governments and individuals have embraced this proposition. Several states enacted laws, for example, that expressly defined a colored person as anyone with Negro forebears or anyone displaying any discernible trace of Negro ancestry.17 Edna Ferber’s novel Show Boat and its Broadway musical adaptation reflect this widespread understanding. In the novel, Steve, a white man, marries Julie, a Negro passing for white. Informed that the couple is married in violation of a state anti-miscegenation statute, a Mississippi sheriff arrives to arrest Steve and Julie. Desperate to avoid arrest, Steve pricks Julie’s finger and sucks some of her blood. When the sheriff approaches, Steve says, ‘‘You wouldn’t call a man a white man that’s got negro blood in him, would you?’’ ‘‘No, I wouldn’t; not in Mississippi,’’ the sheriff replies; ‘‘One drop of nigger blood makes you a nigger in these parts’’—a formulation that allows the couple to go free.18 T he one-drop rule has served various social functions and expressed powerful racial beliefs. It has prevented the formal recognition of intermediate racial castes, assuaged anxieties about feared loss of racial purity, promoted racial solidarities, and articulated disgust aimed at the very idea of racial amalgamation. For all its significance, however, the one-drop rule has by no means exercised easy or uncontested dominance. Even where the one-drop rule has governed, there remained problems of proof: How can it be determined whether that one drop is present or absent? Furthermore, authorities in some jurisdictions have created canons of racial classification that depart from the one-drop rule. For illustration of the complexities that arose in the context of making racial identifications in criminal prosecutions aimed at enforcing state anti-miscegenation law consider McPherson v. Commonwealth (of Virginia) (1877)19 and Keith v. Commonwealth [of Virginia] (1935).20 McPherson stemmed from the prosecution of Rowena McPherson and George Stewart, who were charged with having illicit sexual intercourse with each other. Although the couple had been ceremonially married, the prosecutor alleged that their marriage was void because Stewart was white and McPherson black—or at 16. See Davis, Who Is Black, 5. 17. See Mangum, The Legal Status of the N egro, 6. 18. See Edna Ferber, Show Boat (Garden City, N.Y.: Doubleday, Page, 1926). T he law of racial classification in Mississippi varied depending on the context. Anti-miscegenation laws defined a person as black if, in terms of ancestry, he was determined to be one-eighth or more Negro. By contrast, laws governing segregation in public schools insisted upon a one-drop rule: any Negro ancestry made one black. See Moreau v. Grendich, 114 Miss. 560 (Mississippi Supreme Court, 1917). See also Tucker v. Blease 81 S.E. 668 (South Carolina Supreme Court, 1914). 19. 69 Va. (28 Gratt.) 939 (1877). 20. 165 Va. 705, 1815 E.2d 283 (1935). 148 Kennedy least sufficiently black to be covered by Virginia’s anti-miscegenation statute. At that time, Virginia classified as ‘‘colored’’ anyone who was more than one-quarter black. Rowena McPherson appears to have conceded that she was, to some extent, black. She maintained, however, that she was insufficiently black to be labeled properly as colored. At trial, McPherson and Stewart were found guilty by a jury and fined. On appeal, however, their convictions were overturned. T he key to the case, in the eyes of the state appellate court, was the racial identity of Rowena McPherson’s great-grandmother. Everyone appears to have conceded that Rowena McPherson’s other forebears were white. Her great-grandmother, however, was a ‘‘brown skin woman.’’21 Had the great-grandmother been ‘‘a full-blooded African or negro whose skin is black,’’ the court would have judged Rowena to be one-quarter black and thus a Negro and ineligible to marry Stewart.22 However, the McPherson family argued, and the court believed, that Rowena’s great-grandmother ‘‘was a half Indian—a fact confirmed by the color of her skin.’’ T hat fact was important to the court because, in its view, ‘‘[i]f any part of the said residue of the [greatgrandmother’s] blood, however small, was derived from any source other than the . . . negro race, then Rowena McPherson cannot be a negro.’’23 In reaching its conclusion, the court of appeals of Virginia did not inquire into Rowena McPherson’s self-perception of her race. Nor did it inquire into what, racially, her neighbors perceived her to be. Nor did it inquire into her personal characteristics and on that basis classify her as ‘‘white’’ or ‘‘colored.’’ Rather the court conducted an investigation focused solely upon the apparent racial character of her lineage. Fifty-eight years later, Virginia prosecuted another couple—Bascomb and Reda Keith—for violating the state’s prohibition against interracial marriage. T hat law had been broadened considerably since the prosecution of McPherson and Stewart. At the time of the earlier prosecution, a person with some—but not too much!—Negro ancestry could legitimately marry a white person. By the time the Keiths were prosecuted, however, Virginia law had been amended to define as Negro anyone ‘‘in whom there is ascertainable any negro blood.’’24 In other words, by the time of the later prosecution, Virginia operated pursuant to the one-drop rule. T he prosecution of the Keiths ultimately failed, however, even under the onedrop rule. A jury convicted the couple. But the Virginia supreme court of appeals overturned the convictions. T he state alleged that the mother of defendant Bascom Keith was the daughter of Pat Keith and that Pat Keith ‘‘had negro blood in his veins.’’25 T he court ruled that regardless of Pat Keith’s race, the conviction was improper because the state had failed to prove beyond a reasonable doubt that Pat Keith was related to Bascom Keith. T his was a decisive error because Bascom 21. 22. 23. 24. McPherson v. Commonwealth, 940. Ibid. Ibid. Keith v. Commonwealth, 706. On changes in Virginia statutory scheme of racial classification, see Sherman, ‘‘T he Last Stand,’’ 56, and Lombardo, ‘‘Miscegenation, Eugenics, and Racism.’’ 25. Keith v. Commonwealth, 707. The Enforcement of Anti-Miscegenation Laws 149 Keith denied that Pat Keith was his great-grandfather. In support of this denial, Bascom’s mother testified that her mother had told her that her father was one T homas Belcher, a white man. One should not get the impression from these two cases that prosecutions were typically foiled when defendants challenged prosecutors’ racial labels. In York, South Carolina, in 1881, a couple charged with criminal miscegenation defended themselves by asserting that the woman, contrary to appearances, was really ‘‘black.’’ At trial, the judge instructed the jury to decide all doubt as to her white ancestry ‘‘in her favor’’—whereupon they found her to be white and thus found her guilty.26 Still, what the failed prosecutions in McPherson and Keith demonstrate is that imposing racial classifications on individuals has been (and remains) a more difficult, elaborate, and varied process than is commonly understood.27 T hat point is made even more vividly in certain civil contexts in which private parties sought to enforce anti-miscegenation laws. In Bennett v. Bennett, Virginia Bennett challenged the will of her deceased father, Franklin Capers Bennett.28 Virginia Bennett was Franklin Bennett’s daughter by his first wife. Virginia Bennett, however, received no mention (and hence no property) pursuant to the will. Franklin Bennett left his entire estate by will to his wife, Louetta Chassereau Bennett. Virginia Bennett attacked this bequest on two grounds. First, she asserted that the marriage between Franklin and Louetta was invalid because Louetta was Franklin’s niece; Louetta’s father was Franklin’s half-brother. Second, Virginia Bennett asserted that the marriage was invalid because Louetta Bennett was more than one-eighth Negro and thus prohibited by the state’s antimiscegenation law from marrying Franklin or any other white man. Virginia wanted to invalidate the marriage because, under state law, an individual could will no more than one-quarter of his estate to anyone other than his spouse. If it could be established that the marriage was invalid, then the woman he had believed to have been his wife would receive no more than one-fourth of his estate, and the remaining three-quarters would thus be made available to his relatives, with Virginia Bennett presumably first in line. T he supreme court of South Carolina rejected Virginia Bennett’s arguments. With respect to the claim of incest, the court held that state law made the marriage voidable. Expressing disapproval of marriages between uncles and nieces, South Carolina permitted parties to such marriages to withdraw from them freely. But the state did not disapprove to the extent of declaring such marriages void—that is, devoid of legal legitimacy from the outset regardless of the wishes of the parties. Since neither Franklin nor Louetta Bennett had withdrawn from the marriage prior to Franklin’s death, there was no basis, in terms of the claim of incest, to interfere with the marriage. 26. See T indall, South Carolina N egroes, 298. 27. For discussion of contemporary problems involving racial classifications, see Ford, ‘‘Administering Identity,’’ 1231; Hackman, ‘‘T he Devil and the One-Drop Rule,’’ 1161; Brynes, ‘‘Who Is Black Enough For You?’’ 205; Wright, ‘‘Who’s Black, Who’s White and Who Cares,’’ 513. 28. 10 S.E.2d 23 (South Carolina Supreme Court, 1940). 150 Kennedy T he court also rejected Virginia Bennett’s racial attack on the marriage. T he court appears to have conceded that there was ‘‘some negro blood in [Louetta Bennett’s] veins.’’29 But it concluded that the marriage was nonetheless valid because Virginia had failed to prove that the white-looking Louetta was more than one-eighth Negro. In reaching this conclusion, the supreme court of South Carolina affirmatively quoted the factual findings of the trial judge whose conclusions it affirmed. T hese findings emphasized Louetta’s reputation and her participation in activities that were by law or custom limited exclusively to whites. T o the judge, it was significant that [u]pon the death of [Louetta’s] father and mother, she was first taken into the home of white people; then she was placed in a church orphanage for white children; she was confirmed . . . as a communicant of the holy Communion Church of Charleston, a white church; she was taken from the orphanage and placed in a white home as a member of the family; she married a white man, the marriage being solemnized [in] a white church; she votes in the democratic primaries, both City and State, whose rules bar negroes from voting; her children attend the white public schools . . . ; two of her children attend the white Methodist Sunday School . . . ; the Godfather and Godmother of two of her children are Mr. and Mrs. I. M. Fishburne of Walterboro, he being the president of the Farmer’s & Merchants Bank; she is generally accepted as a white person.30 T he South Carolina supreme court simply recited these facts; it did not explain the rationale that prompted it to interpret the facts in a way favorable to Louetta’s legal claim. It is worth noting, though, that in contrast to other inquiries into racial identity that we have seen—recall McPherson and Keith—the inquiry of the South Carolina supreme court did not focus on the genetic tie connecting Louetta with black ancestors. Rather the court judges focused almost exclusively on whether Louetta had been treated as a white woman by her white neighbors and whether she had acted the part of a white woman.31 T he likely, albeit unexpressed, reasons for this focus were twofold. One was the belief that, generally speaking, in a contested case of racial identification, those who are closest to the person in question are in the best position to judge. In this case, those closest to Louetta deemed her to be white. A second and related belief was that, despite the ‘‘taint’’ in her bloodline, it would have been intolerably unfair to change her status—revoke her whiteness—insofar as Louetta had been perceived to be a white woman and had apparently seen herself as a white woman throughout her life. In detailing the racial checkpoints that Louetta had successfully passed—the orphanage, church, marriage, and voting booth—the South Carolina supreme court was saying implicitly that Louetta was entitled to her claim to whiteness as a matter of adverse possession. Having enjoyed that status for so long, it would now be cruel to withdraw that status from her.32 29. Ibid., 25. 30. Ibid., 33. 31. On various methods used by judges to determine a person’s race, see Gross, Litigating Whiteness, 109. 32. Cf. Harris, ‘‘Whiteness As Property,’’ 1707. The Enforcement of Anti-Miscegenation Laws 151 Moreover, apart from Louetta’s own fate, the judges may have been moved a bit by concern over the fate of others around her. If the court had revoked Louetta’s claim to whiteness, it would necessarily have rendered her children bastards and embarrassed the many white people with whom she had forged close and strong bonds, including her pastors and godparents. Perhaps another reason for the court deciding the case in the way that it did was to avoid anxieties that might have arisen had the court revoked the whiteness of a woman who was so seemingly secure in her racial status as Louetta Bennett. In the aftermath of a contrary holding, any white person in South Carolina might well be prompted to peer into a mirror with new intensity and ask anxiously, ‘‘Where will it end?’’—after all, countless jokes about ‘‘niggers in woodpiles’’ pay witness to the truth that black forebears are part of the bloodlines of many families that think of themselves as exclusively white. Knowledge of Racial Identity A close relative of the case in which a person denied an alleged racial identity was the case in which a person claimed not to have any knowledge of his or his partner’s ‘‘real’’ racial identity. T hree disputes that raise this issue are Bell v. State of Texas,33 Locklayer v. Locklayer,34 and Wood v. Commonwealth [of Virginia].35 Katie Bell, a white woman, and Calvin Bell, a black man, were married in 1891 but had been living together since at least 1880. T hey had five children. T heir relationship apparently attracted little attention until 1893 when they became defendants in a civil lawsuit that had nothing to do with their marriage. During the trial of that suit, however, they testified that they were married to one another. Shortly thereafter, officials prosecuted them for violating the state’s antimiscegenation law.36 Calvin was tried but acquitted. Katie challenged her conviction on the grounds that the acquittal of her husband ought to have precluded her prosecution. Her theory appears to have been that, with miscegenation, either both defendants are guilty or neither is guilty. T he T exas court of criminal appeals disagreed, noting that while ‘‘the woman may have known she was white . . . the negro [may] have been ignorant of the fact; one, therefore, may be innocent, and the other guilty.’’37 T he court implicitly declared, in other words that, at least in T exas, to be guilty of miscegenation, one had to know that one’s marriage partner was of a different race. Locklayer v. Locklayer arose from a petition by a white woman, Nancy Locklayer, who sought to claim as a widow the estate of Jackson Locklayer, her deceased husband, a black man. T he executor of the estate, J. R. Locklayer, objected 33. 34. 35. 36. 37. 25 S.W. 769 (T exas Court of Criminal Appeals, 1894). 139 Ala. 354 (1903). 159 Va. 963 (1932). See Robinson, ‘‘T he Antimiscegenation Conversation,’’ 43–44. Bell v. State of Texas, 769. 152 Kennedy on the grounds that Alabama law prohibited interracial marriages and therefore that Nancy Locklayer was owed none of the legal benefits bestowed upon widows. Nancy Locklayer responded by maintaining that even if Jackson Locklayer had been a Negro, she believed reasonably and in good faith that he was white on the basis of his appearance and of his representations to her. She argued that as an innocent victim of her husband’s misrepresentations she should not be deemed to have violated state law. T he Alabama supreme court, however, declined to reverse the trial court’s finding of fact that Nancy Locklayer did not really believe her husband to be a white man. After all, she knew that her ‘‘husband’s’’ first wife had been, in the court’s words, ‘‘a negress,’’ and she knew as well that a Negro minister officiated at the ceremony at which she was ‘‘married.’’38 Given the strict segregation of whites and blacks in Alabama society at that time, these blurrings of the color line would surely have put any reasonable observer on notice that something highly unusual was afoot. After all, no typical Alabama white man in 1903 would have permitted himself to be married by a Negro minister! T he court appears to have reasoned that, under the circumstances, it was simply implausible to think that a white woman would sincerely believe that she was entering into a normal—that is, intraracial—marriage. Ruling against Nancy Locklayer, the Alabama supreme court cleared the way for Jackson’s black relatives to inherit his estate. Whites were typically the beneficiaries in private actions enforcing anti-miscegenation statutes. Locklayer v. Locklayer shows, however, that black people, too, on occasion made use of the laws that prohibited marriage across the race line. T he intersection of racial classification and marriage was illuminated in a very different light in Wood v. Commonwealth, a case of alleged criminal seduction. In 1931 in Rockingham County, Virginia, Leonard H. Wood was convicted and sentenced to two and one-half years in prison far having criminally seduced Dorothy Short. Wood’s crime consisted of his having sex with Short (‘‘an unmarried female of previously chaste character’’) on the basis of his promise to marry her, followed by his refusal to carry through with that promise. At trial, Leonard sought to defend himself by showing that Short was colored. He argued that since she was colored it was unlawful for him to marry her since Virginia prohibited interracial marriage and that his promise (even if there was one, which he denied) was incapable of being performed. At the urging of the prosecution, the trial judge prevented Woods from delving into Short’s racial background. T he Virginia supreme court of appeals ruled that the trial judge committed reversible error. It vacated the conviction and remanded the case for a new trial, holding that the trial court should have permitted the defendant to attempt to ascertain whether Short was aware that she was colored. According to the court, proving simply that Short was colored would be an insufficient defense—in the same way that proving that a man was already married would be insufficient to insulate him from a charge of criminal seduction. In both cases there would exist 38. Locklayer v. Locklayer, 358. The Enforcement of Anti-Miscegenation Laws 153 a legal impediment to marrying the seduced woman. In the court’s view, however, such impediments would not lessen a man’s moral turpitude. On the other hand, if a defendant could show that the woman was aware that marriage was impossible because he was already married or because he was of a different race than she, such a showing would decisively undercut the main impetus for seduction prosecutions—protecting the ‘‘pure, innocent, and inexperienced woman who may be led astray from the paths of rectitude and virtue by the arts and wiles of the seducer under promise of marriage.’’39 If Short was aware that she was colored and was presumably aware as well that she could not lawfully wed Woods, she could not be said to have been an innocent who relied to her detriment on his false promises. If Short was aware of the legal impediment that the difference in blood created, she was aware that Woods’s promise could not be lawfully consummated and was thus incapable of being seduced. If she had knowledge of her Negro blood and sought to marry Woods despite the illegality of that relationship, she would be no less implicated in fraud than he—and certainly not an ‘‘innocent’’ woman whose injury demanded redress by the state’s criminal process. Although the Virginia supreme court of appeals vacated Woods’s conviction, the evidentiary rule that the court established favored the prosecution upon retrial. T hat rule put the burden of persuasion on the defense. Upon retrial, the defendant would have to show that Short was aware that she was of a different race than the alleged seducer. Wood argued that Short should be presumed to have knowledge that her grandfather on her mother’s side was colored. But the court concluded that ‘‘in this case, the natural and human resolve of the mother of the prosecutrix would be to withhold from her the knowledge of what could only humiliate and distress her’’—that is, the knowledge of her colored forebear—in view of evidence indicating conclusively ‘‘that she was received and accepted socially by white persons as one of them.’’40 Problems of Comity/ Conflict of Laws A difficulty in enforcing prohibitions against interracial marriage that has resurfaced today in disputes over same-sex marriage involved the following question: Ought a state that prohibited interracial marriages recognize such marriages contracted abroad in states that permitted them? Some states expressly criminalized the knowing evasion of their anti-miscegenation statutes. And a few states that permitted interracial marriages nonetheless withheld recognition from marriages celebrated within their borders by persons seeking solely to evade the marital regulations of their home jurisdictions. What, though, about couples who genuinely resided in a permissive jurisdiction, got married there, and then moved to states that outlawed interracial matrimony? 39. Commonwealth v. Wright, 27 S.W. 815 (Kentucky Supreme Court, 1894). For useful discussions of seduction, see Larson, ‘‘Women Understand So Little, T hey Call My Good Nature ‘Deceit,’ ’’ and Berry, ‘‘Judging Morality,’’ 848–853. 40. Wood v. Commonwealth, 966–967. 154 Kennedy T he answer that states gave varied widely. Consider State [of N orth Carolina] v. Ross,41 Kinney v. Commonwealth [of Virginia],42 and Miller v. Lucks.43 T he Ross case involved the marriage of a black man, Pink Ross, and a white woman, Sarah Spake. Lawfully married in South Carolina in 1873, Pink and Sarah soon thereafter moved to Charlotte, North Carolina, where they lived for three years before they were charged with fornication and adultery. T hey raised their marriage as a defense. T he trial judge ruled in the couple’s favor as did the state Supreme Court. While the justices viewed interracial marriages as ‘‘immoral’’ and ‘‘revolting,’’44 they noted that this was not ‘‘the common sentiment of the civilized and Christian world’’ insofar as in both the United States and Europe many governments declined to prohibit interracial marriage.45 Unlike polygamy, interracial marriage was not universally condemned. T hat being so, a majority of the North Carolina justices believed that toleration made sense for the sake of interstate comity and for the sake of enhancing uniformity and thus stability in matters touching the all-important area of matrimony. ‘‘Upon this question above all others,’’ they remarked, ‘‘it is desirable . . . that there should not be one law in Maine and another in T exas, but that the same law shall prevail at least throughout the United States.’’46 Justice Edwin G. Reade strongly disagreed. ‘‘If [the interracial marriage] solemnized here between our own people is declared void,’’ he asked, ‘‘why should comity require the evil to be imported from another State?’’47 He acknowledged the federal constitution provision under which ‘‘[t]he citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.’’ But he contended, with considerable justification, that that provision ‘‘does not mean that a citizen of South Carolina removing here [to North Carolina] may bring with him his South Carolina privileges and immunities.’’48 All it means, Justice Reade declared, is that ‘‘when he comes here he may have the same privileges and immunities which our citizens have. Nothing more and nothing less.’’49 Since North Carolina citizens had no right to marry across racial lines, it imposed no abridgment of the federal privileges and immunities clause to prevent people from South Carolina from marrying across racial lines. Venting his anger, Justice Reade declared: It is courteous for neighbors to visit and it is handsome to allow the visitor family privileges and even to give him the favorite seat; but if he bring his pet rattlesnake or his pet bear or spitz dog famous for hydrophobia, he must leave them outside the door. And if he bring small pox the door may be shut against him.50 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 76 N.C. 242 (North Carolina Supreme Court, 1877). 71 Va. (30 Gratt.) 858 (1878). 203 Miss. 824 (Mississippi Supreme Court, 1948). State v. Ross, 244, 246. Ibid., 246 Ibid., 247. Ibid., 249. Ibid., 250. Ibid. Ibid. The Enforcement of Anti-Miscegenation Laws 155 T he voice of dissent in North Carolina, Justice Reade’s sentiments carried the day in other states. In one case, for example, a white man and black woman married in Mississippi, where they then resided and where interracial marriages were, for a brief moment in Reconstruction, permitted. T he couple subsequently moved to T ennessee where the man was charged with sexual misconduct. He set forth his marriage as a defense. T hat defense, however, was rejected by the T ennessee supreme court, which argued that accepting it would lead necessarily to accepting ‘‘the father living with his daughter . . . in lawful wedlock’’ or the T urk lawfully ‘‘establish[ing] his harem at the doors of the capitol’’—horrible possibilities, yet none ‘‘more revolting, more to be avoided, or more—unnatural’’ than interracial marriages.51 Virginia also declined to tolerate interracial married couples within its borders, even if they had married somewhere else with no intent to evade the state’s antimiscegenation statute and even if their marriages had been perfectly proper according to the law of the state where the marriages were performed. T hus, in Augusta County, Virginia, in 1877 Andrew Kinney, a black man, was indicted, convicted, and fined for lewdly associating and cohabiting with Mahala Miller, a white woman. In Kinney v. Commonwealth Kinney asserted as his defense his marriage to Miller in the District of Columbia. But the Virginia court of appeals concluded that, for the sake of ‘‘public morals,’’ the District of Columbia marriage, though lawful where celebrated, ought not be recognized in Virginia and therefore ought not be available in criminal prosecution as a defense for illicit sexual intimacy: T he purity of public morals, the moral and physical development of both races, and the highest advancement of our cherished southern civilization . . . all require that [blacks and whites] should be kept distinct and separate and that connections and alliances so unnatural that God and nature seem to forbid them should be prohibited by positive law, and subject to no evasion.52 A related but distinct issue arose when interracial couples married in a jurisdiction that permitted such unions and then sought to have their marriages recognized in other locales—not for the purpose of living in those areas but for the purpose of inheriting property or obtaining some other benefit that required the recognition of the marriage. Miller v. Lucks posed this problem in an interesting setting. In 1923, Pearl Mitchell and Alex Miller were indicted in Hinds County, Mississippi, for unlawful cohabitation. Pearl Mitchell was black and Alex Miller white. T he district attorney agreed to forgo pressing charges on condition that Mitchell leave Mississippi. She did. She moved to Chicago, Illinois, where she was soon joined by Miller. After living together for several years, they got married in 1939. Six years later, Pearl Mitchell died. Her relatives believed that they were entitled to the property she owned in Mississippi and filed a petition seeking a declaration of ownership. One of their claims was that they, not Alex Miller, were 51. State v. Bell, 66 T enn. (7 Baxter) 9, 11 (1872). 52. Kinney v. Commonwealth, 869. 156 Kennedy entitled to the property because Mississippi prohibited interracial marriage and, in their view, ought not recognize, even for purposes of successorship, interracial marriages established in other states. Mitchell’s relatives probably believed that this was one of those rare instances in which a white supremacist law would directly benefit black people. T hey embraced the proposition that interracial marriage was so repugnant to the public policy of Mississippi that the state’s legal system should decline to give such unions any recognition. T he consequence of that proposition in this case would have been to make the relatives the sole heirs of Pearl Mitchell’s estate in Mississippi. T he relatives convinced the chancellor of the chancery court of Hinds County to rule in their favor. T he supreme court of Mississippi, however, ruled against them. According to Chief Justice Sydney Smith, the purpose of Mississippi’s antimiscegenation statute ‘‘was to prevent persons of Negro and white blood from living together in [Mississippi] in the relationship of husband and wife.’’53 But merely ‘‘to permit one of the parties to such a marriage to inherit property . . . from the other does no violence’’ to the underlying purpose of the state’s antimiscegenation provisions.54 ‘‘What we are requested to do,’’ Justice Smith maintained, ‘‘is simply to recognize this marriage to the extent only of permitting one of the parties thereto to inherit from the other party in Mississippi, and to that extent it must and will be recognized. T his is in accord with the holdings of courts in other states faced with this Negro problem.’’55 One wonders whether the racial identity of the parties had anything to do with the outcome in Miller. It is arrestingly ironic, if nothing else, that in 1948 a thoroughly white supremacist Mississippi supreme court was willing to recognize the legality of an interracial marriage when the consequence of doing so involved enriching a white man at the expense of black folks. Moreover, while Pearl Mitchell bequeathed to her husband her substantial holdings of property in Illinois, she declared in her will that her husband was to ‘‘have no other claim, right or title to any other property that I may own in the United States except the property specifically mentioned and described in this will.’’56 T he property in Mississippi was not specifically mentioned in her will. T his suggests that Pearl intended her property in Mississippi to go to her relatives. T he Mississippi supreme court does not grapple with this aspect of the case other than to say that this argument, though made to the lower court, had not been made to it. On the other hand, the Mississippi supreme court’s decision to offer limited recognition to the outof-state interracial marriage of the Millers was by no means unique. Virtually all of the states that were fiercely opposed to interracial marriage granted limited recognition for purposes of property inheritance and related matters.57 53. 54. 55. 56. 57. Miller v. Lucks, 832. Ibid. Ibid. Ibid. See Koppelman, ‘‘Same-Sex Marriage, Choice of Law and Public Policy,’’ 961. The Enforcement of Anti-Miscegenation Laws 157 Divorce Anti-miscegenation laws not only affected the terms under which people could marry; they also affected the terms under which people could obtain divorces. By voiding marriages between people of different races, anti-miscegenation laws offered a potentially powerful weapon to disgruntled spouses. T heoretically, if a spouse could show that his marriage partner was of a different race than he, the spouse could leave the marriage free of any obligations since, in the eyes of the law, the parties were never lawfully married in the first place. Joe R. Kirby, for example, obtained an annulment of his eight-year-old marriage to Mayellen Kirby in Arizona in 1922 by convincing a court that the union violated the state’s antimiscegenation law since he was white and she was ‘‘a Negress.’’58 Often, however, judges displayed a striking solicitude for women from whom white men sought separation on the grounds that the women were colored. Abhorrence of racemixing in marriage came face-to-face with abhorrence of cads who sought to relieve themselves of matrimonial and parental responsibilities by opportunistically discovering a racial ‘‘taint’’ in their wives’ lineage. T o a notable degree, when facing this dilemma, judges viewed race-mixing in marriage as the lesser of these two distinct evils. Dillon v. Dillon59 and Ferrall v. Ferrall60 are cases that vividly illustrate these themes. Near the end of the 1870s, a Mrs. Dillon sought alimony from Mr. Dillon, a man with whom she had lived for many years and by whom she had borne several children. Mr. Dillon responded by denying that Mrs. Dillon was really his wife. He charged that she was a Negro, insofar as she had more than one-eighth African blood in her veins, and that she was therefore incapable of lawfully marrying him, a white man. A jury disagreed over whether Mrs. Dillon was one-eighth of Negro blood or more whereupon a judge decreed that she was the lawful wife of the defendant. T he Georgia supreme court affirmed the trial judge, mainly on the grounds that, in a close case, public policy is best served by respecting settled expectations. T he court conceded in Dillon v. Dillon that Mrs. Dillon’s lineage was ‘‘doubtful.’’61 For a variety of reasons, though, the Georgia supreme court strongly backed the conclusions reached by the lower court. Because Mrs. Dillon was ‘‘not black, but of a complexion approximating that of many white persons of pure blood,’’ this was ‘‘not an open, bald case of the intermarriage of an African with a Caucasian.’’62 Reading between the lines of the court’s opinion, it seems that the justices understood this to be a case of a marriage that joined two people who at least appeared to be white, even if, in fact, one of the parties was more colored than the law allowed. Since the marriage outwardly conformed to the racial practices of the state, the justices were willing to credit its legitimacy, especially in 58. 59. 60. 61. 62. Kirby v. Kirby, 24 Ariz. 9 (Arizona Supreme Court, 1922). 60 Ga. 204 (Georgia Supreme Court, 1878). 153 N.C. 174 (North Carolina Supreme Court, 1910). 60 Ga. 207 (Georgia Supreme Court, 1878). Ibid. 158 Kennedy light of certain additional considerations. Perhaps most important, in 1857 Mr. Dillon successfully petitioned the state legislature to pass a special act entitling Mrs. Dillon to the rights and privileges of a citizen of Georgia. T he justices viewed this act as a good indication that Mrs. Dillon was at least white enough for them to recognize her marriage. T hey viewed it as well as an act, initiated by Mr. Dillon, that should preclude him from disputing the racial character of his wife. T he special statute, the justices concluded, ‘‘does not make her white, but is conclusive evidence against Mr. Dillon . . . that she is white. He is estopped to controvert it.’’63 In other words, the court believed that having successfully petitioned the legislature to declare Mrs. Dillon a citizen of Georgia—a political status that presupposed her status as a white person—Mr. Dillon should be prevented from subsequently challenging her claim to whiteness. Having made his bed, they might have said, he should be forced to sleep in it. T he justices also suggested that, as a matter of basic fairness, Mr. Dillon ought not be permitted to evade his matrimonial and paternal obligations (at least in the context of a marriage to a woman who appears to have been white). In the court’s words: [C]an the husband (after marrying [a woman], living with her as his wife for many, many years, rearing by her a family of children . . .) institute a narrow search into her pedigree, that he may deny her the full measure of support in her declining years to which, if she is truly and legally his wife, the law entitles her? . . . T hat is the practical inquiry with which we are at present concerned. We think he cannot evade her claim for support, or the claim of his minor children for support, by such means. In respect to alimony, he is estopped to deny that she is his lawful wife. It militates against no interest of society that we can think of, so to treat him. . . . [Society is] benefitted by closing the mouth of any man against repudiating his family when they come to him for needed support. If he may cast them, they will in many instances, fall a weighty burden on the public. T o allow a husband to indulge in scruples about the pedigree of his old wife, when her youth, beauty and strength have all waned, and thus escape responding to her claim for reasonable alimony, would be unwise in policy, unsound in principle.64 Similar in outcome is Ferrall v. Ferrall, a North Carolina case that arose in 1907 when Frank S. Ferrall sought to end his marriage to Susie Patterson Ferrall on the grounds that she ‘‘was and is of negro descent within the third generation,’’ that he was ignorant of that fact when they married in 1904, and that state law prohibited marriages ‘‘between a white person and a person of negro descent to the third generation inclusive.’’65 Mrs. Ferrall denied that she had Negro forebears, but conceded that there was a strain of Indian or Portuguese blood in her background. She also declared that before they were married she had told her husband that some people in her vicinity insisted that she was part Negro, that 63. Ibid., 208. 64. Ibid., 207–208. 65. Ferrall v. Ferrall, 174. The Enforcement of Anti-Miscegenation Laws 159 because of those rumors she had hesitated to marry him, and that it was he who, in the end, had insisted upon marriage. At trial, the evidence disclosed a racial ‘‘taint’’ in Mrs. Ferrall’s greatgrandfather. T he litigation then centered upon the extent to which this greatgrandfather was a Negro and the extent to which he had to be Negro in order to render his great-granddaughter ineligible from marrying a white man. T he trial judge, supported by the North Carolina supreme court, concluded that in order to deprive Mrs. Ferrall of her claim to whiteness, her husband would have to show that her great-grandfather was ‘‘a real negro,’’ by which was meant a Negro ‘‘that did not have any white blood in him.’’66 T he jury concluded, unsurprisingly, that he was not a ‘‘real negro’’ and that therefore, despite the mild racial ‘‘taint’’ that he bequeathed to Mrs. Ferrall, her marriage was in accord with the state’s anti-miscegenation statute. T he North Carolina supreme court tried to make it seem as though the narrow definition of a ‘‘real negro’’ was mandated by precedent. A more likely explanation for their decisions is that the North Carolina judges, like the Georgia judges in Dillon, abhorred the idea of permitting a man to freely dispose of his white-looking wife and children on the grounds that, unbeknownst to hardly anyone, they were ‘‘really’’ Negroes. Part of this judicial opposition stemmed from anger at husbands who appeared to be behaving as heartless cads. Another part of this judicial opposition may have stemmed from empathy for women and children who stood to lose not simply the financial benefits of alimony and child payments, but more fundamentally, the great and manifold privileges of whiteness in a pigmentocracy dominated by whites. Both of these sentiments were voiced in a concurring opinion in Ferrall by Chief Justice Walter Clark. ‘‘It would be difficult,’’ he writes, ‘‘to find a case so void of merit’’: T he [husband] by earnest solicitation persuaded [Mrs. Ferrall] to become his wife in the days of her youth and beauty. She has borne his children. Now that youth has fled and household drudgery and child-bearing have taken the sparkle from her eyes and deprived her form of its symmetry, he seeks to get rid of her, not only without fault alleged against her, but in a method that will not only deprive her of any support while he lives by alimony, or by dower after his death, but which would consign her to the association of the colored race which he so affects to despise. T he law may not permit him thus to bastardize his own innocent children . . . but he would brand them for all time . . . as negroes—a fate which their white skin will make doubly humiliating to them.67 Moreover, Chief Justice Clark goes on to opine that even if the husband had found a racial taint in his wife’s lineage that would have technically voided their marriage, ‘‘justice and generosity [would have] dictated that he keep to himself that of which the public was unaware.’’68 Following the lead of Mrs. Ferrall’s 66. Ibid., 175. 67. Ibid., 180. 68. Ibid. 160 Kennedy attorney, Chief Justice Clark likens Mr. Ferrall to T om Driscoll, the villain in Mark T wain’s Pudd’nhead Wilson who sold his own mulatto mother down the river to pay for gambling debts. Chief Justice Clark heaps scorn on ‘‘this husband and father who for the sake of a divorce would make negroes of his wife and children.’’69 ‘‘He deems it perdition for himself to associate with those possessing the slightest suspicion of negro blood,’’ Clark observes, ‘‘but strains of every effort to consign the wife of his bosom and the innocent children of his own loins to poverty and the infamy that he depicts.’’70 Clark’s concurring opinion displays both generosity and bone-deep racism. It is generous because Clark rules in favor of Mrs. Ferrall despite legal rules that, neutrally interpreted, favored her husband. Clark says that he agrees with the court’s factual holding regarding the racial identity of Mrs. Ferrall. T his part of his opinion, however, should not be taken at face value. He says this in order to make more palatable what the court is really doing—namely, permitting the continuation of what state law would ordinarily deem an interracial marriage. Clark and his colleagues are making an exception though they do not want openly to acknowledge what they are doing. T hey are making an exception partly to prevent a bad man from profiting from bad conduct. In all likelihood, they are also making an exception because of their empathy with Mrs. Ferrall—a woman who looks as white as any of them, who was accepted by her neighbors and friends as white, who apparently was unaware of the strain of colored blood in her lineage, and who was accepted by her husband as a white woman in three years of marriage during which she gave birth to two of his children. Unwilling to state openly the real basis of the court’s decision, Clark obliquely hints at its motivation when he writes that If indeed the plaintiff had discovered any minute strain of colored origin after the youth of his wife had been worn away for his pleasure and in his service, justice and generosity dictated that he keep to himself that of which the public was unaware.71 Mr. Ferrall failed to do what ‘‘justice and generosity dictated,’’ so Clark and his colleagues stepped into the breach to do that which the husband should have done—namely, ignore the ‘‘strain of colored origin’’ in Mrs. Ferrall. Here as elsewhere in the jurisprudence of anti-miscegenation law, judges injected on an ad hoc basis bits of decency into a massively indecent regime of racial hierarchy. In Ferrall, after all, the chief justice of North Carolina expressly argued that, in certain circumstances, an individual is under a moral duty to evade even a duly enacted and legitimate statute. On the other hand, neither the principal opinion nor Clark’s concurrence offered any general criticism of the state’s anti-miscegenation law. Nor did any of the justices criticize at all the conditions that made being identified as a Negro such a humiliating, stigmatizing, burdensome fate. T he court simply concluded that, under the peculiar circumstances at hand, ‘‘justice and generosity’’ dictated the result reached. 69. Ibid., 181. 70. Ibid. 71. Ibid., 180. The Enforcement of Anti-Miscegenation Laws 161 References Applebaum, Harvey M. ‘‘Miscegenation Statutes: A Constitutional and Social Problem.’’ Georgetown Law Journal 53 (1964). Berry, Mary Frances. ‘‘Judging Morality: Sexual Behavior and Legal Consequences in the Late Nineteenth-Century South.’’ Journal of American History 78 (1991). Brynes, Leonard. ‘‘Who Is Black Enough for You? T he Analysis of Northwestern University Law School’s Struggle over Minority Faculty Hiring.’’ Michigan Journal of Race and Law 2 (1997). Davis, F. James. Who Is Black: One N ation’s Definition (University Park: Pennsylvania State University Press, 1991). Ferber, Edna. Show Boat (Garden City, N.Y.: Doubleday, Page, 1926). Ford, Christopher A. ‘‘Administering Identity: T he Determination of ‘Race’ in Race-Conscious Law.’’ California Law Review 82 (1994). Fowler, David H. N orthern Attitudes towards Interracial Marriage: Legislation and Public Opinion in the Middle Atlantic States of the Old N orthwest, 1780–1930 (New York: Garland, 1987). Fredrickson, George M. White Supremacy: A Comparative Study in American and South African History (New York: Oxford University Press, 1981). Greenberg, Jack. Race Relations and American Law (New York: Columbia University Press, 1959). Gross, Ariela. ‘‘Litigating Whiteness: T rials of Racial Determination in the Nineteenth Century South.’’ Y ale Law Journal 108 (1998). Hackman, Christine B. ‘‘T he Devil and the One-Drop Rule: Racial Categories, African Americans, and the U.S. Census.’’ Michigan Law Review 95 (1997). Harlan, James. Congressional Globe, 42d Cong., 2d sess., 1872, pt. 1: 878. Harris, Cheryl I. ‘‘Whiteness As Property.’’ Harvard Law Review 106 (1993). Hening, William Waller. The Statutes at Large: Being a Collection of All the Laws of Virginia (New York, 1819–1823). Higginbotham, Jr., A. Leon, and Barbara K. Kopytoff. ‘‘Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia.’’ Georgetown Law Journal 77 (1989). Hodes, Martha. White Women, Black Men: Illicit Sex in the N ineteenth-Century South (New Haven: Yale University Press, 1997). Hughes, Henry. Treatise on Sociology, Theoretical and Practical (Philadelphia: Lippincott, Grambo, 1854). Koppelman, Andrew. ‘‘Same-Sex Marriage, Choice of Law and Public Policy.’’ Texas Law Review 76 (1998). Larson, Jane E. ‘‘ ‘Women Understand So Little, T hey Call My Good Nature ‘‘Deceit’’ ’: A Feminist Rethinking of Seduction.’’ Columbia Law Review 93 (1993). Lombardo, Paul A. ‘‘Miscegenation, Eugenics, and Racism: Historical Footnotes to Loving v. Virginia.’’ University of California at Davis Law Review 21 (1988). Mangum, Jr., Charles S. The Legal Status of the N egro (Chapel Hill: University of North Carolina Press, 1940). 162 Wacks Martyn, Byron Curti. ‘‘Racism in the United States: A History of the AntiMiscegenation Legislation and Litigation.’’ Ph.D. dissertation (University of Southern California, 1979). Mills, Gary B. ‘‘Miscegenation and the Free Negro in Antebellum ‘Anglo’ Alabama: A Reexamination of Southern Race Relations.’’ Journal of American History 68 (1981). Pascoe, Peggy. ‘‘Miscegenation Law, Court Cases, and Ideologies of ‘Race’ in T wentieth-Century America.’’ Journal of American History 83 (1996). Robinson II, Charles Frank. ‘‘T he Antimiscegenation Conversation: Love’s Legislated Limits, 1866–1967. Ph.D. dissertation (1998). Sherman, Richard B. ‘‘T he Last Stand: T he Fight for Racial Integrity in Virginia in the 1920s.’’ Journal of Southern History 56 (1988). Sommerville, Diane Miller. ‘‘T he Rape Myth in the Old South Reconsidered.’’ Journal of Southern History 61 (1995). Spencer, Jon Michael. The N ew Colored People: The Mixed-Race Movement in America (New York: New York University Press, 1997). T indall, George B. South Carolina N egroes, 1877–1900 (1952; repr. Baton Rouge: Louisiana State University Press, 1966). Wadlington, Walter. ‘‘T he Loving Case: Virginia’s Anti-Miscegenation Statute in Historical Perspective.’’ Virginia Law Review 52 (1966). Wallenstein, Peter. ‘‘Race, Marriage and the Law of Freedom: Alabama and Virginia, 1860–1960s.’’ Chicago-Kent Law Review 70 (1994). Weinberger, Andrew. ‘‘A Reappraisal of the Constitutionality of Miscegenation Statutes.’’ Cornell Law Quarterly 42 (1957). Williamson, Joel. After Slavery: The N egro in South Carolina during Reconstruction, 1861–1877 (Chapel Hill: University of North Carolina Press, 1965). Wright, Luther. ‘‘Who’s Black, Who’s White, and Who Cares: Reconceptualizing the United States’s Definition of Race and Racial Classifications.’’ Vanderbilt Law Review 48 (1995). Reading Race, Rhetoric, and the Female Body in the Rhinelander Case* JAM IE L . WACKS On October 14, 1924, Alice Beatrice Jones and Leonard Kip Rhinelander exchanged marriage vows in a courthouse in Westchester County, New York. Only * T his previously unpublished essay is in large part excerpted from Jamie Wacks’s fully documented 1995 Harvard University senior honors essay, ‘‘Reading Race, Rhetoric, and the Female Body: T he Rhinelander Case and 1920s American Culture.’’ T he court record of the Rhinelander case—supposedly lost in a fire—can in fact be found at T he Association of the Bar of the City of New York. Rhinelander v. Rhinelander, New York Court of Reading Race, Rhetoric, and the Female Body 163 six weeks later, Leonard filed papers to sue Alice for an annulment.1 He accused her of fraud, claiming that she had deceived him about her racial ancestry.2 Neither Alice nor Leonard realized then that the story of their courtship and their subsequent courtroom battle would become front-page news in The N ew Y ork Times and in many other newspapers across the country during November and December of 1925.3 T he couple surely never imagined that ‘‘[p]ornographic picture books purportedly showing’’ them together would become ‘‘best sellers in the gutter market.’’4 Alice and Leonard had met in Stamford, Connecticut, in 1921, when Alice was twenty-three and Leonard was seventeen. Alice was a maid. Although most Americans identified her as black and Alice’s attorney conceded in court that she had black ancestry,5 there is some hearsay evidence that Alice would have self- Appeals Records and Briefs 20 (1927), henceforth cited as Court Record. Drawing primarily from newspaper accounts and without citing the court record, Mark J. Madigan’s rich reading of the Rhinelander case, ‘‘Miscegenation and the ‘Dicta of Race and Class’: T he Rhinelander Case and Nella Larsen’s Passing,’’ Modern Fiction Studies 36 (winter 1990), 523–29 (henceforth Madigan), is the only scholarly report that I have found. Milton A. Smith’s source of information is unclear in his ‘‘America’s Most Sensational Mixed Marriage,’’ Tan Confessions 2 (December 1951) (henceforth Smith). T he Howard University Moorland-Spingarn Research Center Rhinelander Clippings Files (henceforth Moorland-Spingarn) is also very helpful. 1. New Rochelle’s daily newspaper, The Standard Star, broke the news several days before Leonard filed the annulment suit. ‘‘Rhinelander’s Son Marries Daughter of a Colored Man,’’ The Standard Star, 13 November 1924, 1. 2. Some speculated that Leonard’s father had pressured Leonard to file the suit, threatening him with disinheritance. One journalist wrote, ‘‘Of course, everybody knows that he knew that she was colored, and, no doubt, if his family and friends had not objected, he would not now, under crossexamination, be cutting such a pitiful and miserable figure, trying to pose as the dupe of his wife’’ (‘‘Opinion of the Leading Colored American T hinkers: T he Rhinelander Case,’’ The Messenger 7 [1925], 388). J. A. Rogers refers to the Rhinelander case as ‘‘one of the most sensational marriages in American history, mixed or otherwise’’ and argues that it was ‘‘too much for his family and his social set. Rhinelander was forced into bringing a divorce suit on the ground that his wife had tricked him about her race’’ (Sex and Race: A History of White, N egro, and Indian Miscegenation in the Two Americas 2 [New York: Helga M. Rogers, 1942], 346, 348). For more information on other mixed marriages that were litigated on the grounds of race fraud, see Willard B. Gatewood, Jr., ‘‘T he Perils of Passing: T he McCarys of Omaha,’’ N ebraska History 71 (Nebraska State Historical Society, summer 1990), 64; see also San Francisco Examiner, 30 December 1924, ‘‘Amalgamation,’’ and T uskegee Institute Clippings File Reel 20. 3. T he trial itself began on November 9, 1925, and ended on December 5, 1925. See ‘‘Order Appealed From,’’ Rhinelander v. Rhinelander, New York Court of Appeals Records and Briefs 20 (1927), 3–4. 4. Smith, 72. 5. In the amended complaint, Leonard alleged, among other things, ‘‘IV. On information and belief, that in truth and fact the said Alice Jones, also know as Alice Jones Rhinelander, was colored and with colored blood. . . . V. On information and belief, that the said defendant, Alice Jones, also known as Alice Jones Rhinelander, had colored blood in her veins’’ (Court Record, 10). Alice’s answer to the amended complaint stated, ‘‘Second—She denies that she has any knowledge or information sufficient to form a belief as to any of the allegations contained in the paragraphs or subdivisions of said complaint numbered respectively IV and V’’ (Court Record, 11). T hus, Alice initially denied that she was colored and had colored blood (Court Record, 1083–84). However, 164 Wacks identified as white.6 T he skin color of Alice’s face was sufficiently light for her to ‘‘pass’’ as a white person, and her mother, a native Englishwoman, was white. However, she did not hide her father, a visibly darker New Rochelle taxi driver who was of black and white ancestry, from Leonard.7 Leonard was the son of Philip Rhinelander, a member of the extremely wealthy, white, old Huguenot, high-society New York Rhinelander clan. He stuttered.8 And he fell in love with Alice Jones. On November 23, 1925, when Lee Parsons Davis, Alice Jones’ attorney, staged two of the most revealing events of the Rhinelander trial, the battle about Alice Jones’ identity shocked the American public twice in one day. T hat morning, while Davis was cross-examining Leonard, Judge Morschauer cleared the courtroom of women and Davis read aloud two sexually explicit love letters written by Leonard to Alice.9 Later that same day, over the objection of Leonard’s attorney,10 Alice’s attorney requested that Alice take her clothes off to allow the all-white, all-male, all-married jury11 and Leonard to inspect her skin color. Davis said, ‘‘I desire to have Mrs. Rhinelander [Alice Jones] brought in here, and I am going to request that this courtroom be further cleared, because I am going to ask this witness [Leonard] to identify the color of her skin’’ (693). Davis’ argument was that the skin color of Alice’s body was darker than that of her face, and since Alice and Leonard had been sexually intimate before they were married, Leonard had to have known that she had black ancestry. In order to resolve the scandal that would become known to Americans across the country as the Rhinelander case, the attorneys, Alice’s mother, the judge, and the jurors proceeded into the jury’s chambers to watch Alice take off most of her clothes. According to the description in the Court Record: T he Court, Mr. Mills, Mr. Davis, Mr. Swinburne, the jury, the plaintiff, the defendant, her mother, Mrs. George Jones, and the stenographer left the court- 6. 7. 8. 9. 10. 11. before her attorney delivered his opening address to the jury, Alice’s attorney explained that her denial was ‘‘a technical legal denial’’ but that the ‘‘defendant’s counsel withdraws the denial as to the blood of this defendant and for the purposes of this trial admits that she has some colored blood in her veins’’ (Court Record, 1106). A little over a year after the trial, on January 5, 1927, The Standard Star of New Rochelle reported that Alice was beginning ‘‘a legal battle to clear her name of the allegation she has negro blood in her veins.’’ If true, this article demonstrates that Alice clung to her belief in her white identity. The Standard Star’s suggestion that Alice would have to fight another courtroom battle to gain the right to define her race reveals the limitations that the law and American society had imposed on her. Madigan, 525, writes that Leonard alleged that Alice led him to believe that her father was Cuban. See also Court Record, 1428–29. See The N ew Y ork Times, 18 November 1925, 4. See Defendant’s Exhibit S, entered into evidence at Court Record, 501, and reproduced at Court Record, 1073, and Defendant’s Exhibit N-1, entered into evidence at Court Record, 685, and reproduced at Court Record, 1076. Leonard’s lawyer objected, ‘‘T he proposition to exhibit the naked body of this girl to this jury is not competent’’ (Court Record 693); see also Court Record, 1431. See The N ew Y ork Times, 10 November 1925, 8. Reading Race, Rhetoric, and the Female Body 165 room and entered the jury room. T he defendant and Mrs. Jones then withdrew to the lavatory adjoining the jury room and, after a short time, again entered the jury room. T he defendant, who was weeping, had on her underwear and a long coat. At Mr. Davis’ direction she let down the coat, so that the upper portion of her body, as far down as the breast, was exposed. She then, again at Mr. Davis’ direction, covered the upper part of her body and showed to the jury her bare legs, up as far as the knees. T he Court, counsel, the jury and the plaintiff then re-entered the court room. (696)12 After this viewing, Davis asked Leonard, ‘‘Your wife’s body is the same shade as it was when you saw her in the Marie Antoinette with all of her clothing removed?’’ and Leonard answered, ‘‘Yes’’ (697).13 By the end of the three-week trial, Leonard and many other witnesses, including the blackface singer Al Jolson had testified (434–36). Although the jury concluded that Alice had not deceived Leonard,14 she became a recluse in the quiet neighborhood of New Rochelle, never remarrying.15 In the words of one journalist, 12. T he court permitted the jurors to look at Alice’s body only to determine ‘‘whether he [Leonard] ought to have known that she was of colored blood and was justified in believing that when he saw her body’’ (Court Record, 694). 13. Alice and Leonard spent several days together at the Hotel Marie Antoinette registered under the names of Mr. and Mrs. Smith of Rye (Court Record, 154–55, 545). 14. T he judgment in Alice’s favor in the annulment suit entered by the trial court was affirmed on appeal. See Rhinelander v. Rhinelander, 219 N.Y.S. 548 (1927) (per curiam), affirmed with no opinion, 245 N.Y. 510 (1927). In 1929, Alice sued Leonard’s father, Philip Rhinelander, for alienation of affections. See In re Rhinelander’s Will, 36 N.Y.S.2d 105, 107 (1942). Leonard filed for divorce on the ‘‘ground of cruelty’’ in Nevada in August 1929, and a decree that granted the divorce and did not provide for Alice’s support and maintenance was entered in December 1929. In February 1930, Alice filed suit for separation in New York. Before the suits that Alice brought in New York were resolved, Leonard and Alice signed a settlement agreement in New York in 1930, and Philip guaranteed the agreement. Before the agreement was delivered, the Nevada divorce decree was modified to incorporate the provisions of the agreement for her support and maintenance. T he agreement was then delivered to Alice. T he agreement specified that Alice would receive payments of $3,600 or $3,800 per year for her life, if Alice persuaded the Nevada court to reopen the divorce decree and successfully defended the suit; she persuaded the court to reopen the decree and to modify it to provide for her support; or the court refused her request to reopen the decree. In return, Alice agreed to withdraw the suit pending against Leonard and the suit pending against Philip, to release the Rhinelanders of liability in connectioin with her alienation of affections claim, to release her rights to a portion of Leonard’s estate, and to ‘‘use the name of Rhinelander.’’ After the court modified the decree to provide for Alice’s support, she received payments, which continued after Leonard died in 1936 until Philip died in 1940. See In the Matter of Rhinelander, 290 N.Y. 31, 33–36 (1943). T he executors of Philip’s estate wanted to allow Alice’s claim for payment, but some of Philip’s heirs contested the payments. In 1942, the court ruled that the settlement agreement was illegal. See In re Rhinelander’s Will, 36 N.Y.S.2d 105 (1942). T his decision was reversed; both the settlement agreement and Philip’s guarantee were deemed enforceable. I have not found any evidence of whether Alice received payments from the estate. 15. Los Angeles Tribune, 24 November 1951. T his article noted that Alice Jones was living in ‘‘obscure middle age.’’ 166 Wacks Alice Jones had become for a ‘‘brief 14-month period . . . the most talked-about, read-about, maligned Negro woman in American history.’’16 T he lawyers’ rhetoric and trial strategies as evidenced by the Court Record illuminate that the connections between race, sexual behavior, and class in the 1920s and the images that conveyed these connections were all on trial for the public as well as the jury to deliver their verdicts. T he attorneys’ contest to define Alice Jones by explicitly invoking the culturally and historically loaded image of the vamp, implicitly drawing on social images of the wily mulatto and the female slave, and placing Alice Jones’ body on display was a battle for control over the image of the black woman, which control bell hooks has recognized is essential to preserving ‘‘racial domination.’’17 T he notion that a lower-class woman like Alice Jones whom society labeled as black could trespass into the world of a wealthy white man like Leonard Rhinelander questioned the boundaries between white and black, rich and poor, and the master male and the submissive female, and suggested the vulnerability of alleged white dominance. However, the image of black women that ultimately emerged from the trial helped to allay fears of passing and of racial mobility. T he availability of racial fraud as a ground for an annulment demonstrated how critical race was to identity. T he trial rhetoric illuminated the interdependence of race, sexuality, and class in defining an individual’s identity. Furthermore, Alice Jones’ attorney’s ultimate decision to concede that Alice had ‘‘colored blood’’ and had never deceived Leonard rather than to argue that she would not have been lying had she identified herself as white if that is how she may have viewed herself reveals the limitations on racial definition in the 1920s; trying to argue that Alice was white would have been unsuccessful in light of the prevalent belief that one was of ‘‘colored blood’’ if one had ‘‘colored blood’’ ancestry. More than whether or not Alice Jones had deceived Leonard Kip Rhinelander was at stake. It was not surprising that interested spectators crowded into the courtroom and listened attentively throughout this sensational trial.18 In the 1920s, some blacks were challenging boundaries by venturing into previously whitedominated fields, some blacks were succeeding financially and socially, and some 16. Smith, 22. 17. bell hooks writes, ‘‘From slavery on, white supremacists have recognized that control over images is central to the maintenance of any system of racial domination’’ (Black Looks: Race and Representation [Boston: South End Press, 1992], 2). 18. See the journalist who reported that ‘‘by 8 o’clock this morning, two hours before court opened, the room was filled the . . . doors shut.’’ In fact, so many people were in the courtroom that Lavinia Verrill Howe, a woman who wanted to listen to the trial ‘‘for a religious magazine and needed to study ‘the mental reactions of humanity’ ’’ had to send a note to Mr. Davis asking him to help her to find a seat (Baltimore Sun, 20 November 1925, 8); see also The N ew Y ork Times, 10 November 1925, 8, which reported, ‘‘Men in working clothes rubbed elbows with fashionably dressed women, who drove to the court house in their limousines as all sought seats in the court room’’; see also author’s original thesis, figure 9, reprinting a newspaper photo captioned, ‘‘How T hey Keep T rying to Get In.’’ Reading Race, Rhetoric, and the Female Body 167 blacks were advocating for black rights.19 Several Harlem Renaissance writers were placing ‘‘passing’’ at the center of the plots of their novels. One of these works even alludes to the Rhinelander case. In Passing, Nella Larsen wrote that Irene Redfield, a mulatto character, thought ‘‘[t]here was the Rhinelander case’’ as she contemplated what could happen if the husband of her friend Clare Kendry ever discovered that Clare was passing.20 T he Rhinelander case thus put the phenomenon of ‘‘passing’’ itself on trial for all of America to watch. What mattered most was not who Alice Jones really was but rather how she was defined in the context of the cultural images of black women that were already in social circulation. 1. The Black Vamp T o cast Alice Jones in the role of the older sexually aggressive woman who seduced the younger Leonard Kip Rhinelander, Isaac N. Mills, Leonard’s attorney, characterized Alice as a ‘‘vamp.’’ In large part due to T heda Bara, a silent movie actress who portrayed a sexually aggressive woman who preyed on eligible bachelors, the term ‘‘vamp,’’ which was slang for a vampire, came to signify a woman who aggressively seduced men.21 T he declaration of Eubie Blake, a black jazz musician in 1924—‘‘If you’ve never been vamped by a brown skin you have never been vamped at all’’22—implies that the term ‘‘vamp’’ was sometimes used to define ‘‘colored’’ women. Leonard’s attorney’s promise to the jurors in his opening address that he would present evidence to show that Alice designed a second and third ‘‘line of attack’’ as part of her ‘‘four stages of her fastening upon’’ Leonard immediately cast Alice as the aggressor (1100).23 According to Mills in his closing argument, ‘‘the high art’’ of Alice’s ‘‘management’’ was her ability to fool Leonard to believe that he was ‘‘acting the ordinary male’s part, taking the lead’’ (1358). Mills’ description of Alice’s plan which ‘‘she prosecuted, month after month’’ as ‘‘diabolical’’ also suggested that malintent fueled her alleged seduction of the young Leonard (1298). Mills suggested that because Alice Jones was black, she was hypersexual. Alice’s race-induced sexuality rendered her guilty of fraud. From Mills’ perspective, play- 19. See Marci Knopf, ‘‘Introduction,’’ The Sleeper Wakes: Harlem Renaissance Stories by Women, ed. Marcy Knopf (New Brunswick, NJ: Rutgers University Press, 1993). 20. Nella Larsen, Passing (1929; reprint, Salem, NH: Ayer, 1990), 187. See Madigan. 21. T he term vamp has been defined as ‘‘seductive or sexually aggressive woman; one who entices men; an attractive woman with a strong come-on,’’ in Harold Wentworth and Stuart Berg Flexner, eds. Dictionary of American Slang— Second Supplemented Edition (New York: T homas Y. Crowell Company, 1975), 564. As a verb, to vamp meant to ‘‘seduce or influence a man through sexual appeal.’’ See also the entry for vamp which reads, ‘‘woman that makes it her habit or business to captivate men by an unscrupulous display of her sexual charm,’’ in Eric Partridge, A Dictionary of Slang and Unconventional English, Seventh Edition (London: Routledge and Kegan Paul, 1973), 930. T he verb to vamp meant ‘‘to attract (men) by one’s female charms; to attempt so to attract (them).’’ 22. Quoted in a lecture by Albert Murray in 1982, recorded by Werner Sollors. 23. The N ew Y ork Times quoted Mills’ representation of Alice’s and Leonard’s relationship as if it were a series of ‘‘stages’’ of attack (10 November 1925, 8). 168 Wacks ing the vamp was natural for Alice. According to Mills, ‘‘because of her difference of race [she was] much older, relatively’’ (1353). T his statement implied that Alice’s ‘‘blackness’’ made her more sexually manipulative than even a white vamp could be because her race made her sexually mature beyond her twenty-three years. Alice’s heightened sexuality entranced—perhaps as a vampire might— Leonard, impairing his ability to discern black from white so that he was duped about Alice’s race. Leonard’s attorney said, ‘‘She had him so, as I said in my opening [address], that he did not know black from white, that he did not know or have control of himself’’ (1350). T hus, Alice’s blackness, manifested in part as hypersexuality, was the very thing that made Leonard unable to determine that she was black. Leonard’s attorney implied that it was the jurors’ duty to rule against Alice Jones the vamp before she had the opportunity to victimize other men. Justifying his trial strategy, Mills warned the twelve jurors that a verdict in favor of Alice Jones would ‘‘tell . . . every vampire that she may work her trade beyond the possibility of justice being meted out to her or for her victim’’ (1298). His use of the culturally available image of the hypersexual vamp thus played into the anxieties in the 1920s about changes in sexual behavior. Although the term ‘‘vamp’’ had been used in other contexts to describe black women before 1925,24 Mills’ decision to define Alice Jones as a vamp in the Rhinelander trial brought to the fore of the American imagination the black woman’s alleged dangerous potential to use her sexuality to challenge white racial and financial superiority. 2. The Wily Mulatto Who Makes Men into Her ‘‘Slaves’’ T he link between the vamp’s moral darkness and racial blackness was a logical one, for the image of the wily mulatto—the extrasensual, loose black woman who, in the days of slavery, had seduced her white master—was also prominent in the American imagination during the 1920s. Although the institution of slavery no longer existed in 1925, the idea persisted that black women were hypersexual.25 At the turn of the century, the ‘‘dominant culture’s definition of black women’’ was ‘‘all-sexual’’ and the ‘‘alleged sexual promiscuity of black women’’ posed serious problems for black women.26 T he wily mulatto was reputed to try to use her sexual hold on white men as leverage to advance the black race as a whole by vying for the inheritance of white male power. In the silent film The Birth of a 24. For example, Cecily in Eugene Sue, Les mysteres de Paris (1842) is called vampire. ´ ` ` 25. Because of the prevalence of this image, as Elizabeth Ammons notes, ‘‘For black women at the turn of the century, defending themselves against the racist charge of sexual immorality . . . represented an essential part of their life-and-death struggle as women against lynching in the United States’’ (Ammon’s emphasis, ‘‘Breaking Silence, Iola Leroy,’’ Conflicting Stories American Women Writers at the Turn into the Twentieth Century [New York: Oxford University Press, 1991], 25). See also bell hooks, who discusses ‘‘that mythic black female in slavery who supposedly ‘vamped’ and seduced virtuous white male slave owners’’ (Black Looks, 68). 26. Ammons, 24. In fact, some racists even argued that black men raped white women because of the ‘‘wantonness of the women of his own [black] race’’ (Ammons, 25). Reading Race, Rhetoric, and the Female Body 169 N ation (1915), through his characterization of Lydia, a mulatto servant who is played by a woman whose skin color is almost white, as both sexually promiscuous and deceptive with a demonic glimmer in her eye, D. W. Griffith suggested that mulatto women would use their sexuality to persuade white men to collaborate with other mulattos to enslave whites. T his image of Lydia the sexual mulatto probably still may have been present ten years later in the minds of the white jurors, courtroom spectators, and newspaper readers of the Rhinelander case. T he depiction of Alice Jones as a vamp against the cultural backdrop of the image of the wily mulatto thus produced an iniquitous image of the black woman who threatened to cross the boundaries of black and white and to invert the roles of the slave and the master. In his opening statement, Mills said that Leonard ‘‘was an utter slave in her [Alice’s] hands’’ (1100) and that ‘‘he was her slave, body and soul’’ (1101). In his closing argument, Mills repeatedly exploited the idea of Alice as Leonard’s master; he said that ‘‘she owned him body and soul’’ (1417) and referred to Leonard as ‘‘her slave’’ (1417) and as ‘‘her captive’’ (1417).27 She ‘‘had the boy a slave at her feet,’’ Mills commented (1350). Referencing ‘‘that abhorrent practice’’ (1349) described in the first sexually explicit love letter that Davis submitted into evidence, Mills asserted, ‘‘T hat was not a white man’s act. T hat was an act of the black-and-tan. T hat is not a white man’s act. T hat shows beyond all argument, all question, that he was her slave, that he was reduced to the very depths of the most bottomless degradation of which you can conceive’’ (1349–50). It was one matter for Alice to seduce Leonard with her sexuality. In the days of slavery, many white men slept with their black female slaves. However, after intercourse, the white slavemaster usually was still the master. When he was finished with the slave, he could send her back to the fields, and she was still his slave. T he description of Alice not only as Leonard’s seductress, but also as his master who maintained power over him after the initial seduction thus may have been frightening to many whites. In this way, the rhetorical exploitation of the racial and sexual connotations of the vamp image worked well with the image of the wily mulatto to challenge racial and sexual boundaries. 3. Naming Alice as a Woman of Colored Blood and a Member of Womankind Confronted with these characterizations of Alice, Mr. Davis, Alice’s attorney, had to create an image of Alice as a black lower-class woman who was not a vamp, a wily mulatto, or a master—in other words, who was not deceitful and who was easily controlled by the white patriarchy. Just as Mills used the images of the vamp and the wily mulatto to define Alice Jones, Davis refuted these images by trying to create a new image for Alice. Davis said in his closing argument, 27. For picture accompanying caption ‘‘Blue-Blood Called Love-Slave,’’ see The Philadelphia Inquirer, 11 November 1925, in Moorland-Spingarn. 170 Wacks We have . . . conceded that she has some colored blood. We haven’t made any concession that she is a negress. We have made the concession that she has some colored blood flowing through her veins. . . . I am not branding her as a fullblooded negress, but, understand, our concession is that she has some colored blood. (1181–83) T he semantic nuance between a full-blooded negress and a woman of colored blood was crucial because it created the possibility that Alice could have black ancestry without exhibiting the alleged black female trait of sexual promiscuity. However, to ultimately refute the stereotype of the sexually manipulative wily mulatto, who was also a woman of colored blood, Davis would have to resort to more drastic measures. One of Davis’ tactics was to use Alice’s gender to transcend her race. In order to communicate with the male jurors, Alice’s attorney appealed to a male bond that was based on common knowledge about women’s ways. He justified Alice’s alleged lack of forthrightness about her age by attributing such deceit to the character of women, white or black. He said, If we were to lock up every woman or girl who told a falsehood about their ages, this would be an awful rotten world for we men to live in, because—God bless the girls and women of our country—they bring sunshine into our lives, and they would all be locked up. . . . A woman who marries a man, when she happens to be older, she doesn’t want the fellow to know about it. Now isn’t that human nature in women? Bless them for it! (1167–68) Davis also said, ‘‘Girls have a funny way, they say, of trying to make the chap they love jealous. . . . Isn’t that human? Why on earth should she be blamed for that? It is a natural course of conduct’’ (1177). T he use of the phrase ‘‘human nature in women’’ implicitly included Alice Jones, a woman who was ‘‘colored,’’ in the same category as white women. Davis’ rhetoric was risky because it challenged a popular notion that white women were a group apart from and better than black women by suggesting a sisterhood stemming from common behavior toward men. T ogether with Mills’ exclusion of Alice from the category of ‘‘woman’’ by asserting that Alice’s sexual behavior was a ‘‘challenge . . . to the womanhood of this country’’ (1349), the trial rhetoric thus suggested both the possibility of and the resistance to the proposal that ‘‘woman’’ might be redefined to include women of black as well as white ancestry. 4. White and Black Fears of Race Mixing With all of these images circulating in the courtroom, at times the Rhinelander case lent support to the fears of many whites that racial intermarriage would lead to what was called ‘‘race suicide,’’ or the demise of the white race.28 Al- 28. See T om Lutz, American N ervousness 1903: An Anecdotal History (Ithaca: Cornell University Press, 1991), 10. T he worry about the ‘‘impending extinction’’ of the white race that Lutz discusses in relation to T heodore Roosevelt persisted into the 1920s. Reading Race, Rhetoric, and the Female Body 171 though New York had no statute at this time outlawing intermarriage between blacks and whites (1182), the anti-miscegenation laws in several other states and the peak in the Ku Klux Klan’s membership29 attest to anxieties about race.30 In his closing argument, Mills tried to appeal to some white people’s revulsion to intermarriage: T here isn’t a father among you who would not rather see his son in his casket than to see him wedded to a mulatto woman. . . . (1287) T here is not a mother among your wives who would not rather see her daughter with her white hands crossed above her shroud than to see her locked in the embraces of a mulatto husband. And everyone of you gentlemen knows that in this respect I speak unto you the words of truth and soberness. (1288)31 T he image of Alice as a vamp also reinforced the suggestion that like a vampire, Alice would drain from Leonard some of his whiteness. Mills’ rhetoric was thus well-suited to engage the fears of many whites that racial miscegenation was further polluting the already allegedly weakening white race. Some black commentators voiced their own anxieties about the race mixing that held the center stage of the Rhinelander case. In one comment on the Rhinelander case, The Amsterdam N ews, New York’s leading black newspaper, wrote, ‘‘NEGROES, generally, look with as much disfavor upon interracial marriage as white people—possibly more.’’32 On the same day, another individual cited the Rhinelander case amidst his call for an end to miscegenation.33 Marcus Garvey referred to the Rhinelander case as an example of the ‘‘Miscegenation [that] will lead to the moral destruction of both races’’34 and which made it difficult to tell whites from non-whites.35 T hus, while some whites may have read Alice Jones as a 29. See ‘‘An Impression of Utopia by One Who Has Never Been T here,’’ Life (December 1925), 33. Attesting to racial tensions, this cartoon includes a sketch of a man wearing a KKK hood and robe offering to a frightened black man, ‘‘Carry yo’ bag, sah?’’ inside of an enclosed area that has a notice on its gate which reads, ‘‘Notice Discard all creeds, prejudices, intolerance, race hatred, hypocrisy, pomp, war propaganda, armament and other nuisances here’’ and has an arrow pointing to a heap outside of the enclosed area. T he Ku Klux Klan restarted as a response to what whites perceived as the ‘‘unhealthy’’ sexual relations between white women and non-white men that were becoming more common in the United States. 30. See, e.g., the Virginia ‘‘Act to Preserve Racial Integrity’’ (1924). [See above, pp. 23–24. —Ed.] 31. Madigan, 526, quoting ‘‘Rhinelander’s Suit,’’ Opportunity 4 (1926), 4. 32. ‘‘Rising Above Prejudice,’’ Amsterdam N ews, 9 December 1925, editorial page. 33. Edgar M. Grey, ‘‘What the Rhinelander Case Means to Negroes,’’ Amsterdam N ews, 9 December 1925, editorial page. ‘‘Now the time has come when we must insist upon a standard which yields more than mere ‘good looks’ in our progeny and the scorn and contempt of the white race to ourselves. When the leaders of a race have no better advice to offer to the rank and file of that race than the familiar, ‘Get white and good-looking, when, where and how you can,’ it is time that the race hide its head in shame.’’ 34. Marcus Garvey, ‘‘Essays on Racial Purity: Atlanta Penitentiary, ca. July 1925,’’ in The Marcus Garvey and Universal N egro Improvement Association Papers, Vol. 6, September 1924 to December 1927, ed. Robert A. Hill (Los Angeles: University of California Press, 1989), 216. 35. Ibid., 217. 172 Wacks symbol of the threat of their own racial suicide, some blacks may have feared that Alice Jones was a race traitor. 5. The Power of the Moneyed Class In anticipation of Mills’ references to the ‘‘visions’’ that Alice supposedly had ‘‘of these piles upon piles of brand new ten-dollar bills’’ (1398), Davis argued that after ensnaring Alice with their wealth, the Rhinelanders used their power to further exploit her. Davis noted, ‘‘T hey [the Rhinelanders] have spent their money freely in order to shatter the Jones home, to shatter their daughters . . . and to shatter everybody else in sight that shows the slightest disposition to oppose them’’ (1204). Even if Alice was greedy, Davis argued, Leonard had an upbringing that should have equipped him to exercise restraint: I do not criticize any family’s good name but I say this, that no man or boy living has a right to hide behind a smokescreen of a long family name. . . . One who has . . . been surrounded by wealth, has less excuse than a boy who is born in a hovel and has not a long family name behind him. So much for the Huguenots. (1190) Davis turned the privilege of wealth on its head, arguing that Alice’s age and the alleged sophistication that accompanied it were no match for Leonard’s privileged upbringing: Look at the difference in age and . . . look at the difference in opportunities. Look at the difference in setting. Why, this boy is beyond his years. His face shows it. T his young woman, the evidence shows it, was brought up in a humble home. T his young woman had to work at an early age. . . . she did not have the opportunity to educate herself as you and I have had the opportunity. . . . you have Rhinelander . . . surrounded and given every opportunity in life. . . . T hat is what counteracts . . . the disparity in ages. . . . here is a woman who had no opportunity, and here is a man who did. (1192) T ransforming the traditional association between white and cleanliness, Davis also implied that whiteness alone was not sufficient to ensure moral ‘‘cleanliness.’’ Using the Rhinelanders, who ‘‘do like filth’’ (1263), as a case in point, he suggested that upperclassness had the potential to make even white people dirty. As long as the nonthreatening image of Alice as a poor woman who could not ‘‘pass’’ overshadowed the descriptions of her as a sexual, money-hungry manipulator, Alice could win her case. T he public could read the Rhinelander case as a confirmation that the surreptitious transgression of race, sex, and class divisions was impossible. However, the ease with which the attorneys reimaged Alice’s character at the trial suggested that perhaps black women could no longer be defined so simply. T o secure Alice’s victory, Davis would have to prove that Alice was physically incapable of passing. Reading Race, Rhetoric, and the Female Body 173 6. The Denouement In the 1920s, some individuals still believed that certain physical characteristics identified individuals as racially black or white.36 In the Rhinelander trial, Mills, Leonard’s attorney, asserted that Alice, a mulatto, could have passed for white37 because, like her father, a mulatto, Alice had ‘‘white’’ features. Mills said about Alice’s father, What I say in regard to his [Alice’s father’s] face is that every feature of his face is distinctly Caucasian except the color. I say if by some miracle you could change the color of his skin as he sits there he would pass anywhere for a white man. Let us see. He has got the nose of a white man. His nose is far more aquiline than mine. He has got the same nostrils as a white man; thinner than mine. He has got the high cheekbones which do not belong to the African race. He has got a narrow face. He has got the long face, not the round face of colored blood. I repeat, that if the color of Mr. Jones’ skin could be changed by some miracle, all the blackness taken out of it, there is not one of you would ever think that he was a person of colored blood. (1429) As this quote reveals, Mills tried to argue that the combination of Alice’s father’s ‘‘white’’ facial features and colored skin blurred racial distinctions. As for Alice, the likelihood of passing was even greater. Mills said, T o look at her she [Alice] inherits from her father. She has got the same features largely that the father has. Long face. Aquiline nose. T he other features of the Caucasian. Her lips are not different from the father’s lips. T he father’s lips are as thin as my lips. T hat is her facial appearance. You have seen her color. (1431) Arguing that Alice’s facial features were not decidedly ‘‘black’’ and, unlike her father’s, her skin color was sufficiently light to pass for white, Mills posited that Leonard could not have known merely by looking at Alice that she had ‘‘colored’’ blood. Mills argued that the apparent ‘‘whiteness’’ of Alice’s facial skin and features rendered her physically capable of deception. Her inherently deceptive face was thus an unreliable racial indicator and provided powerful evidence that Alice had misled Leonard. Combined with the testimony from several witnesses that Alice verbally had lied about her race,38 it would have been somewhat convincing 36. For a discussion of the fingernails as a racial signifier, see Werner Sollors, ‘‘Fingernails as a Racial Sign,’’ N either Black N or White Y et Both: Thematic Explorations of Interracial Literature (New York: Oxford University Press, 1997). 37. J. A. Rogers, Sex and Race 3:71, writes: ‘‘Often these women are not so fair as they seem. An ordinary observer will note that their faces are sometimes several shades lighter than their arms or neck due to powder and bleaching compounds. T his fact was strikingly brought out in the Rhinelander case. Alice Rhinelander’s body, when she stripped for the jury, was found to be much darker than her face.’’ 38. In response to Davis’ question, ‘‘You claim that Alice made representations to you that she was white on four or five occasions?’’ Leonard testified, ‘‘Yes’’ (Court Record, 637). Leonard also agreed with the assertion that Alice ‘‘volunteered the fact that she was white’’ (Court Record, 620). 174 Wacks that if her face lied, so did she. Mills even argued that it made sense that the skin color of Alice’s body was lighter than that of her face.39 T o prove that Alice was physically incapable of passing, Davis presented Alice’s body as the definitive evidence of her race.40 Whereas Leonard’s attorney read Alice’s body as falsely creating a ‘‘white’’ appearance, Alice’s attorney had to show that it was obviously, undeniably, and unfalsifiably black. T o do so, he implicitly relied on a popular belief that anyone who had black ancestry, but who could ‘‘pass’’ for white based on the skin color of the parts of her body that were normally within the public’s view, would be revealed as black upon close scrutiny of other body parts.41 Since Leonard ‘‘had unlimited opportunities to look’’ (1199) and he even admitted that he bathed Alice’s ‘‘entire body’’ (649),42 Leonard could not have been deceived. In his closing argument, Alice’s attorney emphasized that Alice’s body disclosed her race: I let you gentlemen look at a portion of what he [Leonard] saw. You saw Alice’s back above the bust. You saw her breast. You saw a portion of her upper leg. He saw all of her body. And you are going to tell me that he never suspected that she had colored blood! . . . You saw that with your own eyes. A boy of twelve would have known that colored blood was coursing through her veins. You saw it in a good light. Am I wrong in saying to you that it practically approached the color of her father’s face? (1242) T he use of Alice’s semi-naked body as evidence together with the reading of explicit love letters probably also accomplished what one commentator would claim more than twenty years later, that ‘‘[e]very white man who ever wanted a Negro woman had one vicariously through [Leonard] Kip [Rhinelander] because everything, real or made-up, that ever happened to them was common knowledge.’’43 Mills’ objection that Alice’s removal of her clothing was ‘‘calculated to unduly influence the jury’’ (694) was thus on target. 39. Mills argued, ‘‘Every one of you knows that the portions of the body which are covered up of a person who is light at all are lighter than the portions that are exposed to the sun and to the elements’’ (Court Record, 1431). 40. T he jurors had already seen Alice’s father, who was visibly dark, stand up in court (693), and Davis had also argued that Leonard had spent a great deal of time around Alice’s father while visiting her at her parents’ house. Davis had already asked Alice to hold her hands up so that Leonard and the jurors could examine her skin color (Court Record, 511). Dr. Ceasar P. McClendon, a witness called by the defendant, answered affirmatively that when he examined Alice in 1922, her body was ‘‘approximately as dark as’’ his own face, which according to Mills was darker than Mr. Jones’ face (869). Dr. McClendon identified himself as a ‘‘colored man’’ when asked (868). 41. Smith, 24, wrote that Alice’s ‘‘clothes were removed because in those days whites thought that a Negro woman had certain ineradicable marks of race on their bodies and dark half-moons in their fingernails.’’ 42. In his cross-examination of Leonard, Davis established that Leonard had bathed Alice while they were at the Marie Antoinette (Court Record, 649). 43. Smith, 72. Reading Race, Rhetoric, and the Female Body 175 7. Yet Alice Wept T he depiction of the partially naked Alice as a weeping yet arousing victim probably also counteracted the description of Leonard as Alice’s slave and of Alice as the vamp. T his part of the trial, to use bell hooks’ phraseology, facilitated the ‘‘recreat[ing of] the imperial gaze—the look that seeks to dominate, subjugate, and colonize.’’44 Images of white men, such as Harriet Beecher Stowe’s Simon Legree, humiliating black slave women probably still had a powerful hold on the American imagination even though slavery was abolished. T hus, while the jurors may have enjoyed fantasizing about Alice Jones as a sexually available ‘‘slave,’’ watching her humiliated in this way to prove her innocence also probably evoked the jurors’ pity.45 Alice’s weeping without speaking suggested that perhaps Leonard was a slavemaster who ruthlessly abused Alice as if she were his helpless slave. T his ‘‘performance’’ (693)46 implied that Leonard’s and the Rhinelander family’s victimization of Alice compelled her to expose everything about herself, including her flesh, to vindicate herself. Davis said that he hoped Leonard would not ‘‘force’’ him to speak of Leonard’s relations with Alice in a way that was not ‘‘delicate’’ (452). T hus, Davis’ subsequent resort to reading sexually explicit language from love letters strongly suggested that Leonard forced Davis to humiliate his own client. Davis’ depiction of Leonard as abusing his power was probably disturbing, but it still represented Leonard, the white male, in the position of power over Alice, the black woman. T hus, the jurors could rule against Leonard’s abuse of his power but reap comfort in the belief that Alice had never usurped that power. One newspaper referred to Davis’ decision not to call Alice to the witness stand as ‘‘one of the most dramatic surprises of the always surprising trial of Leonard Kip Rhinelander’s suit against his wife.’’47 However, in this way, Alice’s attorney could try to discount as hearsay Mills’ allegations and other people’s testimony that Alice deliberately hid her black ancestry. Perhaps Davis did not ask Alice to speak because after her humiliation, which he had implied was Leonard’s fault, he wanted to ‘‘spare Alice [the] ordeal [of speaking] on [the] witness stand.’’48 Had Mills cross-examined Alice, she might have sabotaged her case by trying to 44. bell hooks, 7. 45. In the January 1926 issue of The Crisis, the official publication of the National Association for the Advancement of Colored People, editor W. E. B. Du Bois focused on the pornographic nature of Alice’s removal of her clothes, interpreting the Rhinelander story as one of violation. He wrote that Alice Jones was ‘‘strip[ped] naked, soul and body’’ and she was ‘‘defenseless’’ (‘‘Opinion: Rhinelander,’’ 112). 46. Mills used this word. 47. Moorland-Spingarn, 30 November 1925. See also Rhinelander v. Rhinelander, 219 N.Y.S. 548 (1927) (per curiam) (rejecting Leonard’s challenge to judge’s jury instructions in connection with Alice’s failure to testify). 48. Brooklyn Daily Eagle, Moorland-Spingarn. See also the journalist who reports that even though it was Davis who requested that Alice remove her clothes, Davis says he will not have Alice testify because, ‘‘we are determined that this girl shall no longer be dragged in the mire by the slanders this man Jacobs [one of Leonard’s attorneys] has gathered together, and which he has threatened to use in an effort to tear to pieces what little reputation this poor girl still possessed . . . haven’t 176 Wacks establish that she thought of herself as a white person even though she had colored blood. Alice’s silence also furthered the theory of her case: just as the jury could determine that it was obvious from her body that she was black regardless of her words, Leonard would have been able to do the same regardless of what she may have said to him. Alice’s silence enabled Leonard’s attorney to set forth his own reading of Alice’s mind from her love letters just as the jury could read her character from her body. Leonard’s attorney asserted that he could represent ‘‘her [Alice’s] mind, the way it works’’ (1333). He repeatedly claimed to know what Alice knew (1368, 1400). Reconstructing her thoughts, he said, ‘‘She must have had in mind’’ (1399). While Alice’s silence was strategically sensible, the price was that she did not have the opportunity to define herself in the terms that she might have chosen. Even some black papers asserted Alice’s membership in a race which she might have rejected. T he front page of The Amsterdam N ews, New York’s leading black newspaper, read: ‘‘Harlem was for Alice without caring anything personally for Alice. It was for Alice because she stood as a symbol to Negro womanhood throughout the world.’’49 And the Amsterdam N ews editorial ‘‘Rising Above Prejudice’’ interpreted Alice’s legal victory as a declaration that the law would finally hold white men accountable for sexually exploiting black women: [W]e believe the Rhinelander jurors have rendered a great service to womanhood in general and Negro womanhood in particular. . . . [T he Rhinelander case proves that] the law will not uphold them [white men] in their promiscuous folly with colored women.50 Edgar M. Grey of the Amsterdam N ews suggested in a separate editorial that the case was about whether a white man could ‘‘indulge in sexual relationship with a Negro woman and seek the protection of the law against her social and legal claims growing out of this relationship.’’51 T hese journalists heralded Alice as a hero of the black race even though she may not have regarded this gesture as an honor, overlooking that Alice may not have identified herself as black, and thus devalued the importance of her own definition of her self, whatever that was. In the Rhinelander trial, Alice Jones’ ‘‘whole life had been bared’’ (1158)52 and her image had become that of an easily remoldable piece of clay. T he jury’s verdict in favor of Alice was a declaration that she not only did not deceive Leonard about her race, but that she could not have deceived him. Using carefully crafted rhetoric, the attorneys and the press described Alice as whomever they wanted her to be. 49. 50. 51. 52. we the right not to subject this woman to any more cruelty than has been heaped upon her? She has been dragged in the sewer and in filth for weeks and we will no longer permit them to do it’’ (The N ew Y ork Times, 1 December 1925, 12); see also Court Record, 1158–59. Mark Whitmark, ‘‘Rhinelander’s Verdict Meets Harlem’s Approval, The Amsterdam N ews, 9 December 1925, 1. ‘‘Rising Above Prejudice,’’ The Amsterdam N ews, 9 December 1925, editorial and feature page. Edgar M. Grey, ‘‘What the Rhinelander Case Means to Negroes,’’ The Amsterdam N ews, 9 December 1925, editorial page. T hese are Davis’ words. Reading Race, Rhetoric, and the Female Body 177 Although the Rhinelander verdict permitted the American public to believe that passing could not go undetected because it was physically impossible, the Rhinelander courtroom rhetoric strongly foreshadowed that the very concept of ‘‘passing’’ was becoming inappropriate because the categories between which individuals were said to pass were becoming blurrier with time. Distinctions between black and white, lower class and upper class, the woman as sexual slave and the man as sexual master, were being challenged, suggesting that these distinctions were becoming indefensible in the 1920s—if they were not unfounded from the beginning. Nonetheless, the Rhinelander court’s admission of Alice Jones’ semi-naked body as evidence and the existence of the cause of action of fraud based on racial deception lent legitimacy to reducing a black woman’s character to her body and to defining identity by skin color. T he court’s tolerance of Leonard’s attorney’s appeal to race, sex, and class prejudices by invoking derogatory images such as that of the vamp suggests that the courts were not actively monitoring racist representations of black women. T he Rhinelander trial demonstrates how deeply rooted race, gender, and class images are in the American consciousness and how difficult it is to separate these elements of identity. It may have been true that the ‘‘fierce fires of love had blinded both [Alice and Leonard] to the dicta of race and class,’’53 but this was not the case for the rest of American society in the 1920s. As Mark Madigan writes, ‘‘Acquitted of racial deception by law, Alice was persecuted nonetheless as her marriage was ruined and she was forced to endure a long, humiliating annulment trial.’’54 More than three-quarters of a century after the Rhinelander case, the many questions that it raised, including the role of the law in defining individual identity,55 continue to pervade public discourse. Perhaps a diary56 of Alice Beatrice Jones will someday surface. T hen Alice’s version of the case will be told, and she will reveal who the real Alice Jones was. Because the story of Alice Jones and Leonard Rhinelander unsettled many Americans’ sensibilities about race, class, and sexual behavior,57 the Rhinelander trial was a critical moment in the history of America’s self-definition and the individual’s struggle for self-definition in the twentieth century. 53. ‘‘Rhinelander’s Suit,’’ Opportunity 4 (1926), 4. 54. Madigan, 528. 55. In reference to the Rhinelander case, the editors of one black newspaper argued, ‘‘Obviously this was an affair that ought to have been settled out of court. . . . T he emotions which underlie the whole affair are altogether too obscure and too complex for the coarse processes of any legal system. T he realities of the affair lie in a realm of feeling of which the actors themselves were hardly aware, which the wisest doctor and the most discerning priest would need years to explore before they could understand it. . . . T he tragedy of the affair is that here was no one mature enough and large-minded enough to take the whole case in hand, and quietly, privately, patently unravel it’’ (‘‘Lawyers,’’ Afro-American 5 [December 1925], in Moorland-Spingarn). 56. One newspaper ran a headline that alleged that Alice kept a diary. See N ew Y ork Journal, 16 November 1925 (Moorland Spingarn). 57. T he editors of The Messenger wrote: ‘‘T he Nordics pretend to believe that the purity of their race has been outraged. For this reason, the case transcends in importance the fate of Mr. and Mrs. Kip Rhinelander. What matter though he did deceive her or she deceived him? T hat’s nothing new. It’s going on every day’’ (Messenger 7 [December 1925], 388). 178 Pascoe Miscegenation Law, Court Cases, and Ideologies of ‘‘Race’’ in T wentieth-Century America* PEG G Y PASCOE On March 21, 1921, Joe Kirby took his wife, Mayellen, to court. T he Kirbys had been married for seven years, and Joe wanted out. Ignoring the usual option of divorce, he asked for an annulment, charging that his marriage had been invalid from its very beginning because Arizona law prohibited marriages between ‘‘persons of Caucasian blood, or their descendants’’ and ‘‘negroes, Mongolians or Indians, and their descendants.’’ Joe Kirby claimed that while he was ‘‘a person of the Caucasian blood,’’ his wife, Mayellen, was ‘‘a person of negro blood.’’1 Although Joe Kirby’s charges were rooted in a well-established—and tragic— tradition of American miscegenation law, his court case quickly disintegrated into a definitional dispute that bordered on the ridiculous. T he first witness in the case was Joe’s mother, T ula Kirby, who gave her testimony in Spanish through an interpreter. Joe’s lawyer laid out the case by asking T ula Kirby a few seemingly simple questions: Joe’s lawyer: T o what race do you belong? Tula Kirby: Mexican. Joe’s lawyer: Are you white or have you Indian blood? Kirby: I have no Indian blood. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Joe’s lawyer: Do you know the defendant [Mayellen] Kirby? Kirby: Yes. Joe’s lawyer: T o what race does she belong? Kirby: Negro. T hen the cross-examination began. Mayellen’s lawyer: Who was your father? Kirby: Jose Romero. Mayellen’s lawyer: Was he a Spaniard? Kirby: Yes, a Mexican. Mayellen’s lawyer: Was he born in Spain? * From Peggy Pascoe, ‘‘Miscegenation Law, Court Cases, and Ideologies of ‘Race’ in T wentiethCentury America.’’ Journal of American History 83.1 (June 1996): 44–69. 1. Ariz. Rev. Stat. Ann. sec. 3837 (1913); ‘‘Appellant’s Abstract of Record,’’ Aug. 8, 1921, pp. 1–2, Kirby v. Kirby, docket 1970 (microfilm: file 36.1.134), Arizona Supreme Court Civil Cases (Arizona State Law Library, Phoenix). Miscegenation Law, Court Cases, and Ideologies of ‘‘Race‘‘ 179 Kirby: No, he was born in Sonora. Mayellen’s lawyer: And who was your mother? Kirby: Also in Sonora. Mayellen’s lawyer: Was she a Spaniard? Kirby: She was on her father’s side. Mayellen’s lawyer: And what on her mother’s side? Kirby: Mexican. Mayellen’s lawyer: What do you mean by Mexican, Indian, a native [?] Kirby: I don’t know what is meant by Mexican. Mayellen’s lawyer: A native of Mexico? Kirby: Yes, Sonora, all of us. Mayellen’s lawyer: Who was your grandfather on your father’s side? Kirby: He was a Spaniard. Mayellen’s lawyer: Who was he? Kirby: His name was Ignacio Quevas. Mayellen’s lawyer: Where was he born? Kirby: T hat I don’t know. He was my grandfather. Mayellen’s lawyer: How do you know he was a [S]paniard then? Kirby: Because he told me ever since I had knowledge that he was a Spaniard. Next the questioning turned to T ula’s opinion about Mayellen Kirby’s racial identity. Mayellen’s lawyer: You said Mrs. [Mayellen] Kirby was a negress. What do you know about Mrs. Kirby’s family? Kirby: I distinguish her by her color and the hair; that is all I do know.2 T he second witness in the trial was Joe Kirby, and by the time he took the stand, the people in the courtroom knew they were in murky waters. When Joe’s lawyer opened with the question ‘‘What race do you belong to?,’’ Joe answered ‘‘Well . . . ,’’ and paused, while Mayellen’s lawyer objected to the question on the ground that it called for a conclusion by the witness. ‘‘Oh, no,’’ said the judge, ‘‘it is a matter of pedigree.’’ Eventually allowed to answer the question, Joe said, ‘‘I belong to the white race I suppose.’’ Under cross-examination, he described his father as having been of the ‘‘Irish race,’’ although he admitted, ‘‘I never knew any one of his people.’’3 Stopping at the brink of this morass, Joe’s lawyer rested his case. He told the judge he had established that Joe was ‘‘Caucasian.’’ Mayellen’s lawyer scoffed, claiming that Joe had ‘‘failed utterly to prove his case’’ and arguing that ‘‘[Joe’s] 2. ‘‘Appellant’s Abstract of Record,’’ 12–13, 13–15, 15, Kirby v. Kirby. 3. Ibid., 16–18. 180 Pascoe mother has admitted that. She has [testified] that she only claims a quarter Spanish blood; the rest of it is native blood.’’ At this point the court intervened. ‘‘I know,’’ said the judge, ‘‘but that does not signify anything.’’4 From the Decline and Fall of Scientific Racism to an Understanding of Modernist Racial Ideology T he Kirbys’ case offers a fine illustration of Evelyn Brooks Higginbotham’s observation that, although most Americans are sure they know ‘‘race’’ when they see it, very few can offer a definition of the term. Partly for this reason, the questions of what ‘‘race’’ signifies and what signifies ‘‘race’’ are as important for scholars today as they were for the participants in Kirby v. Kirby seventy-five years ago.5 Historians have a long—and recently a distinguished—record of exploring this question.6 Beginning in the 1960s, one notable group charted the rise and fall of scientific racism among American intellectuals. T oday, their successors, more likely to be schooled in social than intellectual history, trace the social construction of racial ideologies, including the idea of ‘‘whiteness,’’ in a steadily expanding range of contexts.7 4. Ibid., 19. 5. Evelyn Brooks Higginbotham, ‘‘African-American Women’s History and the Metalanguage of Race,’’ Signs, 17 (Winter 1992), 253. See Michael Omi and Howard Winant, Racial Formation in the United States: From the 1960s to the 1990s (New York, 1994); David T heo Goldberg, ed., Anatomy of Racism (Minneapolis, 1990); Henry Louis Gates Jr., ed., ‘‘Race,’’ Writing, and Difference (Chicago, 1986); Dominick LaCapra, ed., The Bounds of Race: Perspectives on Hegemony and Resistance (Ithaca, 1991); F. James Davis, Who Is Black? One N ation’s Definition (University Park, 1991); Sandra Harding, ed., The ‘‘Racial’’ Economy of Science: Toward a Democratic Future (Bloomington, 1993); Maria P. P. Root, ed., Racially Mixed People in America (Newbury Park, 1992); and Ruth Frankenberg, White Women, Race Matters: The Social Construction of Whiteness (Minneapolis, 1993). 6. Among the most provocative recent works are Higginbotham, ‘‘African-American Women’s History’’; Barbara J. Fields, ‘‘Ideology and Race in American History,’’ in Region, Race, and Reconstruction: Essays in Honor of C. Vann Woodward, ed. J. Morgan Kousser and James M. McPherson (New York, 1982), 143–78; T homas C. Holt, ‘‘Marking: Race, Race-Making, and the Writing of History,’’ American Historical Review, 100 (Feb. 1995), 1–20; and David R. Roediger, Towards the Abolition of Whiteness: Essays on Race, Politics, and Working Class History (London, 1994). 7. On scientific racism, see T homas F. Gossett, Race: The History of an Idea in America (Dallas, 1963); George W. Stocking Jr., Race, Culture, and Evolution: Essays in the History of Anthropology (1968; Chicago, 1982); John S. Haller Jr., Outcaste from Evolution: Scientific Attitudes to Racial Inferiority, 1859–1900 (Urbana, 1971); George M. Fredrickson, The Black Image in the White Mind: The Debate on Afro-American Character and Destiny, 1817–1914 (New York, 1971); T homas G. Dyer, Theodore Roosevelt and the Idea of Race (Baton Rouge, 1980); Carl N. Degler, In Search of Human N ature: The Decline and Revival of Darwinism in American Social Thought (New York, 1991); and Elazar Barkan, Retreat of Scientific Racism: Changing Concepts of Race in Britain and the United States between the World Wars (Cambridge, Eng., 1992). On the social construction of racial ideologies, see the works cited in footnote 6, above, and Ronald T . T akaki, Iron Cages: Race and Culture in N ineteenth-Century America (New York, 1979); Reginald Horsman, Race and Manifest Destiny: The Origins of American Racial Anglo-Saxonism (Cambridge, Mass., 1981); Alexander Saxton, The Rise and Fall of the White Republic: Class Politics and Mass Culture in N ineteenth-Century America (London, 1990); David R. Roediger, The Wages of Whiteness: Race and the Making of the American Miscegenation Law, Court Cases, and Ideologies of ‘‘Race’’ 181 T heir work has taught us a great deal about racial thinking in American history. We can trace the growth of racism among antebellum immigrant workers and free-soil northern Republicans; we can measure its breadth in late-nineteenthcentury segregation and the immigration policies of the 1920s. We can follow the rise of Anglo-Saxonism from Manifest Destiny through the Spanish-American War and expose the appeals to white supremacy in woman suffrage speeches. We can relate all these developments (and more) to the growth and elaboration of scientific racist attempts to use biological characteristics to scout for racial hierarchies in social life, levels of civilization, even language. Yet the range and richness of these studies all but end with the 1920s. In contrast to historians of the nineteenth- and early-twentieth-century United States, historians of the nation in the mid- to late twentieth century seem to focus on racial ideologies only when they are advanced by the far Right (as in the Ku Klux Klan) or by racialized groups themselves (as in the Harlem Renaissance or black nationalist movements). T o the extent that there is a framework for surveying mainstream twentieth-century American racial ideologies, it is inherited from the classic histories that tell of the post-1920s decline and fall of scientific racism. T heir final pages link the demise of scientific racism to the rise of a vanguard of social scientists led by the cultural anthropologist Franz Boas: when modern social science emerges, racism runs out of intellectual steam. In the absence of any other narrative, this forms the basis for a commonly held but rarely examined intellectual trickle-down theory in which the attack on scientific racism emerges in universities in the 1920s and eventually, if belatedly, spreads to courts in the 1940s and 1950s and to government policy in the 1960s and 1970s. A close look at such incidents as the Kirby case, however, suggests a rather different historical trajectory, one that recognizes that the legal system does more than just reflect social or scientific ideas about race; it also produces and reproduces them.8 By following a trail marked by four miscegenation cases—the seemingly ordinary Kirby v. Kirby (1922) and Estate of Monks (1941) and the pathbreaking Perez v. Lippold (1948) and Loving v. Virginia (1967)—this article will examine the relation between modern social science, miscegenation law, and twentieth-century American racial ideologies, focusing less on the decline of scientific racism and more on the emergence of new racial ideologies. In exploring these issues, it helps to understand that the range of nineteenthcentury racial ideologies was much broader than scientific racism. Accordingly, I have chosen to use the term racialism to designate an ideological complex that other historians often describe with the terms ‘‘race’’ or ‘‘racist.’’ I intend the Working Class (London, 1991); Audrey Smedley, Race in N orth America: Origin and Evolution of a Worldview (Boulder, 1993); and T omas Almaguer, Racial Fault Lines: The Historical Origins of White Supremacy in California (Berkeley, 1994). 8. On law as a producer of racial ideologies, see Barbara J. Fields, ‘‘Slavery, Race, and Ideology in the United States of America,’’ N ew Left Review, 181 (May-June 1990), 7; Eva Saks, ‘‘Representing Miscegenation Law,’’ Raritan, 8 (Fall 1988), 56–60 [in this volume, pp. 61–81. —Ed.]; and Collette Guillaumin, ‘‘Race and Nature: T he System of Marks,’’ Feminist Issues, 8 (Fall 1988), 25–44. 182 Pascoe term racialism to be broad enough to cover a wide range of nineteenth-century ideas, from the biologically marked categories scientific racists employed to the more amorphous ideas George M. Fredrickson has so aptly called ‘‘romantic racialism.’’9 Used in this way, ‘‘racialism’’ helps counter the tendency of twentiethcentury observers to perceive nineteenth-century ideas as biologically ‘‘determinist’’ in some simple sense. T o racialists (including scientific racists), the important point was not that biology determined culture (indeed, the split between the two was only dimly perceived), but that race, understood as an indivisible essence that included not only biology but also culture, morality, and intelligence, was a compellingly significant factor in history and society. My argument is this: During the 1920s, American racialism was challenged by several emerging ideologies, all of which depended on a modern split between biology and culture. Between the 1920s and the 1960s, those competing ideologies were winnowed down to the single, powerfully persuasive belief that the eradication of racism depends on the deliberate nonrecognition of race. I will call that belief modernist racial ideology to echo the self-conscious ‘‘modernism’’ of social scientists, writers, artists, and cultural rebels of the early twentieth century. When historians mention this phenomenon, they usually label it ‘‘antiracist’’ or ‘‘egalitarian’’ and describe it as in stark contrast to the ‘‘racism’’ of its predecessors. But in the new legal scholarship called critical race theory, this same ideology, usually referred to as ‘‘color blindness,’’ is criticized by those who recognize that it, like other racial ideologies, can be turned to the service of oppression.10 Modernist racial ideology has been widely accepted; indeed, it compels nearly as much adherence in the late-twentieth-century United States as racialism did in the late nineteenth century. It is therefore important to see it not as what it claims to be—the nonideological end of racism—but as a racial ideology of its own, whose history shapes many of today’s arguments about the meaning of race in American society. The Legacy of Racialism and the Kirby Case Although it is probably less familiar to historians than, say, school segregation law, miscegenation law is an ideal place to study both the legacy of nineteenthcentury racialism and the emergence of modern racial ideologies.11 Miscegenation 9. See especially Fredrickson, Black Image in the White Mind. 10. For intriguing attempts to define American modernism, see Daniel J. Singal, ed., Modernist Culture in America (Belmont, 1991); and Dorothy Ross, ed., Modernist Impulses in the Human Sciences, 1870–1930 (Baltimore, 1994). For the view from critical race theory, see Brian K. Fair, ‘‘Foreword: Rethinking the Colorblindness Model,’’ N ational Black Law Journal, 13 (Spring 1993), 1–82; Neil Gotanda, ‘‘A Critique of ‘Our Constitution Is Color-Blind,’ ’’ Stanford Law Review, 44 (Nov. 1991), 1–68; Gary Peller, ‘‘Race Consciousness,’’ Duke Law Journal (Sept. 1990), 758–847; and Peter Fitzpatrick, ‘‘Racism and the Innocence of Law,’’ in Anatomy of Racism, ed. Goldberg, 247– 62. 11. Many scholars avoid using the word miscegenation, which dates to the 1860s, means race mixing, and has, to twentieth-century minds, embarrassingly biological connotations; they speak of laws against ‘‘interracial’’ or ‘‘cross-cultural’’ relationships. Contemporaries usually referred to ‘‘anti- Miscegenation Law, Court Cases, and Ideologies of ‘‘Race’’ 183 laws, in force from the 1660s through the 1960s, were among the longest lasting of American racial restrictions. T hey both reflected and produced significant shifts in American racial thinking. Although the first miscegenation laws had been passed in the colonial period, it was not until after the demise of slavery that they began to function as the ultimate sanction of the American system of white supremacy. T hey burgeoned along with the rise of segregation and the early-twentieth-century devotion to ‘‘white purity.’’ At one time or another, 41 American colonies and states enacted them; they blanketed western as well as southern states.12 By the early twentieth century, miscegenation laws were so widespread that they formed a virtual road map to American legal conceptions of race. Laws that had originally prohibited marriages between whites and African Americans (and, very occasionally, American Indians) were extended to cover a much wider range of groups. Eventually, 12 states targeted American Indians, 14 Asian Americans (Chinese, Japanese, and Koreans), and 9 ‘‘Malays’’ (or Filipinos). In Arizona, the Kirby case was decided under categories first adopted in a 1901 law that prohibited whites from marrying ‘‘negroes, Mongolians or Indians’’; in 1931, ‘‘Malays’’ and ‘‘Hindus’’ were added to this list.13 miscegenation’’ laws. Neither alternative seems satisfactory, since the first avoids naming the ugliness that was so much a part of the laws and the second implies that ‘‘miscegenation’’ was a distinct racial phenomenon rather than a categorization imposed on certain relationships. I retain the term miscegenation when speaking of the laws and court cases that relied on the concept, but not when speaking of people or particular relationships. On the emergence of the term, see Sidney Kaplan, ‘‘T he Miscegenation Issue in the Election of 1864,’’ Journal of N egro History, 24 (July 1949), 274–343 [included in this volume, pp. 219–265. —Ed.]. 12. Most histories of interracial sex and marriage in America focus on demographic patterns, rather than legal constraints. See, for example, Joel Williamson, N ew People: Miscegenation and Mulattoes in the United States (New York, 1980); Paul R. Spickard, Mixed Blood: Intermarriage and Ethnic Identity in Twentieth-Century America (Madison, 1989); and Deborah Lynn Kitchen, ‘‘Interracial Marriage in the United States, 1900–1980’’ (Ph.D. diss., University of Minnesota, 1993). T he only historical overview is Byron Curti Martyn, ‘‘Racism in the United States: A History of the Anti-Miscegenation Legislation and Litigation’’ (Ph.D. diss., University of Southern California, 1979). On the colonial period, see A. Leon Higginbotham Jr. and Barbara K. Kopytoff, ‘‘Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia,’’ Georgetown Law Journal, 77 (Aug. 1989), 1967–2029 [in this volume, pp. 81–139. —Ed.]; George M. Fredrickson, White Supremacy: A Comparative Study in American and South African History (New York, 1981), 99–108; and James Hugo Johnston, Race Relations in Virginia & Miscegenation in the South, 1776– 1860 (Amherst, 1970), 165–90. For later periods, see Peter Bardaglio, ‘‘Families, Sex, and the Law: T he Legal T ransformation of the Nineteenth-Century Southern Household’’ (Ph.D. diss., Stanford University, 1987), 37–106, 345–49; Peter Wallenstein, ‘‘Race, Marriage, and the Law of Freedom: Alabama and Virginia, 1860s–1960s,’’ Chicago-Kent Law Review, 70 (no. 2, 1994), 371– 437; David H. Fowler, N orthern Attitudes towards Interracial Marriage: Legislation and Public Opinion in the Middle Atlantic and the States of the Old N orthwest, 1780–1930 (New York, 1987); Megumi Dick Osumi, ‘‘Asians and California’s Anti-Miscegenation Laws,’’ in Asian and Pacific American Experiences: Women’s Perspectives, ed. Nobuya T suchida (Minneapolis, 1982), 2–8; and Peggy Pascoe, ‘‘Race, Gender, and Intercultural Relations: T he Case of Interracial Marriage,’’ Frontiers, 12 (no. 1, 1991), 5–18. T he count of states is from the most complete list in Fowler, N orthern Attitudes, 336–439. 13. Ariz. Rev. Stat. Ann. sec. 3092 (1901); 1931 Ariz. Sess. Laws ch. 17. Arizona, Idaho, Maine, Massachusetts, Nevada, North Carolina, Oregon, Rhode Island, South Carolina, T ennessee, Vir- 184 Pascoe Although many historians assume that miscegenation laws enforced American taboos against interracial sex, marriage, more than sex, was the legal focus.14 Some states did forbid both interracial sex and interracial marriage, but nearly twice as many targeted only marriage. Because marriage carried with it social respectability and economic benefits that were routinely denied to couples engaged in illicit sex, appeals courts adjudicated the legal issue of miscegenation at least as frequently in civil cases about marriage and divorce, inheritance, or child legitimacy as in criminal cases about sexual misconduct.15 ginia, and Washington passed laws that mentioned American Indians. Arizona, California, Georgia, Idaho, Mississippi, Missouri, Montana, Nebraska, Nevada, Oregon, South Dakota, Utah, Virginia, and Wyoming passed laws that mentioned Asian Americans. Arizona, California, Georgia, Maryland, Nevada, South Dakota, Utah, Virginia, and Wyoming passed laws that mentioned ‘‘Malays.’’ In addition, Oregon law targeted ‘‘Kanakas’’ (native Hawaiians), Virginia ‘‘Asiatic Indians,’’ and Georgia both ‘‘Asiatic Indians’’ and ‘‘West Indians.’’ See Fowler, N orthern Attitudes, 336–439; 1924 Va. Acts ch. 371; 1927 Ga. Laws no. 317; 1931 Ariz. Sess. Laws ch. 17; 1933 Cal. Stat. ch. 104; 1935 Md. Laws ch. 60; and 1939 Utah Laws ch. 50. 14. T he most insightful social and legal histories have focused on sexual relations rather than marriage. See, for example, Higginbotham and Kopytoff, ‘‘Racial Purity and Interracial Sex’’; Karen Getman, ‘‘Sexual Control in the Slaveholding South: T he Implementation and Maintenance of a Racial Caste System,’’ Harvard Women’s Law Journal, 7 (Spring 1984), 125–34; Martha Hodes, ‘‘Sex across the Color Line: White Women and Black Men in the Nineteenth-Century American South’’ (Ph.D. diss., Princeton University, 1991); and Martha Hodes, ‘‘T he Sexualization of Reconstruction Politics: White Women and Black Men in the South after the Civil War,’’ in American Sexual Politics: Sex, Gender, and Race since the Civil War, ed. John C. Fout and Maura Shaw T antillo (Chicago, 1993), 59–74; Robyn Weigman, ‘‘T he Anatomy of Lynching,’’ ibid., 223–45; Jacquelyn Dowd Hall, ‘‘ ‘T he Mind T hat Burns in Each Body’: Women, Rape, and Racial Violence,’’ in Powers of Desire: The Politics of Sexuality, ed. Ann Snitow, Christine Stansell, and Sharon T hompson (New York, 1983), 328–49; Kenneth James Lay, ‘‘Sexual Racism: A Legacy of Slavery,’’ N ational Black Law Journal, 13 (Spring 1993), 165–83; and Kevin J. Mumford, ‘‘From Vice to Vogue: Black/ White Sexuality and the 1920s’’ (Ph.D. diss., Stanford University, 1993). One of the first works to note the predominance of marriage in miscegenation laws was Mary Frances Berry, ‘‘Judging Morality: Sexual Behavior and Legal Consequences in the Late Nineteenth-Century South,’’ Journal of American History, 78 (Dec. 1991), 838–39. On the historical connections among race, marriage, property, and the state, see Saks, ‘‘Representing Miscegenation Law,’’ 39–69; Nancy F. Cott, ‘‘Giving Character to Our Whole Civil Polity: Marriage and the Public Order in the Late Nineteenth Century,’’ in U.S. History as Women’s History: N ew Feminist Essays, ed. Linda K. Kerber, Alice Kessler-Harris, and Kathryn Kish Sklar (Chapel Hill, 1995), 107–21; Ramon A. Gutierrez, When Jesus Came, the Corn Mothers Went Away: Marriage, Sexuality, and Power in N ew Mexico, 1500–1846 (Stanford, 1991); Verena Martinez-Alier, Marriage, Class, and Colour in N ineteenth-Century Cuba: A Study of Racial Attitudes and Sexual Values in a Slave Society (Ann Arbor, 1989); Patricia J. Williams, ‘‘Fetal Fictions: An Exploration of Property Archetypes in Racial and Gendered Contexts,’’ in Race in America: The Struggle for Equality, ed. Herbert Hill and James E. Jones Jr. (Madison, 1993), 425–37; and Virginia R. Domınguez, White by Definition: Social Classification in Creole Louisiana (New Brunswick, 1986). ´ 15. Of the 41 colonies and states that prohibited interracial marriage, 22 also prohibited some form of interracial sex. One additional jurisdiction (New York) prohibited interracial sex but not interracial marriage; it is not clear how long this 1638 statute was in effect. See Fowler, N orthern Attitudes, 336–439. My database consists of every appeals court case I could identify in which miscegenation law played a role: 227 cases heard between 1850 and 1970, 132 civil and 95 criminal. Miscegenation Law, Court Cases, and Ideologies of ‘‘Race’’ 185 By the time the Kirby case was heard, lawyers and judges approached miscegenation cases with working assumptions built on decades of experience. T here had been a flurry of challenges to the laws during Reconstruction, but courts quickly fended off arguments that miscegenation laws violated the Fourteenth Amendment guarantee of ‘‘equal protection.’’ Beginning in the late 1870s, judges declared that the laws were constitutional because they covered all racial groups ‘‘equally.’’16 Judicial justifications reflected the momentum toward racial categorization built into the nineteenth-century legal system and buttressed by the racialist conviction that everything from culture, morality, and intelligence to heredity could be understood in terms of race. From the 1880s until the 1920s, lawyers whose clients had been caught in the snare of miscegenation laws knew better than to challenge the constitutionality of the laws or to dispute the perceived necessity for racial categorization; these were all but guaranteed to be losing arguments. A defender’s best bet was to do what Mayellen Kirby’s lawyer tried to do: to persuade a judge (or jury) that one particular individual’s racial classification was in error. Lawyers who defined their task in these limited terms occasionally succeeded, but even then the deck was stacked against them. Wielded by judges and juries who believed that setting racial boundaries was crucial to the maintenance of ordered society, the criteria used to determine who fit in which category were more notable for their malleability than for their logical consistency. Genealogy, appearance, claims to identity, or that mystical quality, ‘‘blood’’—any of these would do.17 Although cases that reach appeals courts are by definition atypical, they are significant because the decisions reached in them set policies later followed in more routine cases and because the texts of the decisions hint at how judges conceptualized particular legal problems. I have relied on them because of these interpretive advantages and for two more practical reasons. First, because appeals court decisions are published and indexed, it is possible to compile a comprehensive list of them. Second, because making an appeal requires the preservation of documents that might otherwise be discarded (such as legal briefs and court reporters’ trial notes), they permit the historian to go beyond the judge’s decision. 16. Decisions striking down the laws include Burns v. State, 48 Ala. 195 (1872); Bonds v. Foster, 36 T ex. 68 (1871–1872); Honey v. Clark, 37 T ex. 686 (1873); Hart v. Hoss, 26 La. Ann. 90 (1874); State v. Webb, 4 Cent. L. J. 588 (1877); and Ex parte Brown, 5 Cent. L. J. 149 (1877). Decisions upholding the laws include Scott v. State, 39 Ga. 321 (1869); State v. Hairston, 63 N.C. 451 (1869); State v. Reinbardt, 63 N.C. 547 (1869); In re Hobbs, 12 F. Cas. 262 (1871) (No. 6550); Lonas v. State, 50 T enn. 287 (1871); State v. Gibson, 36 Ind. 389 (1871); Ford v. State, 53 Ala. 150 (1875); Green v. State, 58 Ala. 190 (1877); Frasher v. State, 3 T ex. Ct. App. R. 263 1877); Ex Parte Kinney, 14 F. Cas. 602 (1879) (No. 7825); Ex parte Francois, 9 F. Cas. 699 (1879) (No. 5047); Francois v. State, 9 T ex. Ct. App. R. 144 (1880); Pace v. State, 69 Ala. 231 (1881); Pace v. Alabama, 106 U.S. 583 (1882); State v. Jackson, 80 Mo. 175 (1883); State v. Tutty, 41 F. 753 (1890); Dodson v. State, 31 S.W. 977 (1895); Strauss v. State, 173 S.W. 663 (1915); State v. Daniel, 75 So. 836 (1917); Succession of Mingo, 78 So. 565 (1917–18); and In re Paquet’s Estate, 200 P. 911 (1921). 17. Individual racial classifications were successfully challenged in Moore v. State, 7 T ex. Ct. App. R. 608 (1880); Jones v. Commonwealth, 80 Va. 213 (1884); Jones v. Commonwealth, 80 Va. 538 (1885); State v. Treadaway, 52 So. 500 (1910); Flores v. State, 129 S.W. 1111 (1910); Ferrall v. Ferrall, 186 Pascoe In Arizona, Judge Samuel L. Pattee demonstrated that malleability in deciding the Kirby case. Although Mayellen Kirby’s lawyer maintained that Joe Kirby ‘‘appeared’’ to be an Indian, the judge insisted that parentage, not appearance, was the key to Joe’s racial classification: Mexicans are classed as of the Caucasian Race. T hey are descendants, supposed to be, at least of the Spanish conquerors of that country, and unless it can be shown that they are mixed up with some other races, why the presumption is that they are descendants of the Caucasian race.18 While the judge decided that ancestry determined that Joe Kirby was ‘‘Caucasian,’’ he simply assumed that Mayellen Kirby was ‘‘Negro.’’ Mayellen Kirby sat silent through the entire trial; she was spoken about and spoken for but never allowed to speak herself. T here was no testimony about her ancestry; her race was assumed to rest in her visible physical characteristics. Neither of the lawyers bothered to argue over Mayellen’s racial designation. As Joe’s lawyer later explained, T he learned and discriminating judge . . . had the opportunity to gaze upon the dusky countenance of the appellant [Mayellen Kirby] and could not and did not fail to observe the distinguishing characteristics of the African race and blood.19 In the end, the judge accepted the claim that Joe Kirby was ‘‘Caucasian’’ and Mayellen Kirby ‘‘Negro’’ and held that the marriage violated Arizona miscegenation law; he granted Joe Kirby his annulment. In so doing, the judge resolved the miscegenation drama by adding a patriarchal moral to the white supremacist plot. As long as miscegenation laws regulated marriage more than sex, it proved easy for white men involved with women of color to avoid the social and economic responsibilities they would have carried in legally sanctioned marriages with white women. By granting Joe Kirby an annulment, rather than a divorce, the judge not only denied the validity of the marriage while it had lasted but also in effect excused Joe Kirby from his obligation to provide economic support to a divorced wife.20 For her part, Mayellen Kirby had nothing left to lose. She and her lawyer appealed to the Arizona Supreme Court. T his time they threw caution to the winds. T aking a first step toward the development of modern racial ideologies, they moved beyond their carefully limited argument about Joe’s individual racial 69 S.E. 60 (1910); Marre v. Marre, 168 S.W. 636 (1914); N euberger v. Gueldner, 72 So. 220 (1916); and Reed v. State, 92 So. 511 (1922). 18. ‘‘Appellant’s Abstract of Record,’’ 19, Kirby v. Kirby. 19. ‘‘Appellee’s Brief,’’ Oct. 3, 1921, p. 6. ibid. 20. On the theoretical problems involved in exploring how miscegenation laws were gendered, see Pascoe, ‘‘Race, Gender, and Intercultural Relations’’; and Peggy Pascoe, ‘‘Race, Gender, and the Privileges of Property: On the Significance of Miscegenation Law in United States History,’’ in N ew Viewpoints in Women’s History: Working Papers from the Schlesinger Library 50th Anniversary Conference, March 4–5, 1994, ed. Susan Ware (Cambridge, Mass., 1994), 99–122. For an excellent account of the gendering of early miscegenation laws, see Kathleen M. Brown, Good Wives and N asty Wenches: Gender, Race, and Power in Colonial Virginia (Chapel Hill, 1996). Miscegenation Law, Court Cases, and Ideologies of ‘‘Race’’ 187 classification to challenge the entire racial logic of miscegenation law. T he Arizona statute provided a tempting target for their attack, for under its ‘‘descendants’’ provision, a person of ‘‘mixed blood’’ could not legally marry anyone. Pointing this out, Mayellen Kirby’s lawyer argued that the law must therefore be unconstitutional. He failed to convince the court. T he appeals court judge brushed aside such objections. T he argument that the law was unconstitutional, the judge held: is an attack . . . [Mayellen Kirby] is not entitled to make for the reason that there is no evidence that she is other than of the black race. . . . It will be time enough to pass on the question she raises . . . when it is presented by some one whose rights are involved or affected.21 The Culturalist Challenge to Racialism By the 1920s, refusals to recognize the rights of African American women had become conventional in American law. So had refusals to recognize obvious inconsistencies in legal racial classification schemes. Minions of racialism, judges, juries, and experts sometimes quarreled over specifics, but they agreed on the overriding importance of making and enforcing racial classifications. Lawyers in miscegenation cases therefore neither needed nor received much courtroom assistance from experts. In another legal arena, citizenship and naturalization law, the use of experts, nearly all of whom advocated some version of scientific racism, was much more common. Ever since the 1870s, naturalization lawyers had relied on scientific racists to help them decide which racial and ethnic groups met the United States naturalization requirement of being ‘‘white’’ persons. But in a series of cases heard in the first two decades of the twentieth century, this strategy backfired. When judges found themselves drawn into a heated scientific debate on the question of whether ‘‘Caucasian’’ was the same as ‘‘white,’’ the United States Supreme Court settled the question by discarding the experts and reverting to what the justices called the opinion of the ‘‘common man.’’22 In both naturalization and miscegenation cases, judges relied on the basic agreement between popular and expert (scientific racist) versions of the racialism that permeated turn-of-the-century American society. But even as judges promulgated the common sense of racialism, the ground was shifting beneath their feet. By 21. ‘‘Appellant’s Brief,’’ Sept. 8, 1921, Kirby v. Kirby; Kirby v. Kirby, 206 P. 405, 406 (1922). On Kirby, see Roger Hardaway, ‘‘Unlawful Love: A History of Arizona’s Miscegenation Law,’’ Journal of Arizona History, 27 (Winter 1986), 377–90. 22. For examples of reliance on experts, see In re Ah Y up, 1 F. Cas. 223 (1878) (No. 104); In re Kanaka N ian, 21 P. 993 (1889); In re Saito, 62 F. 126 (1894). On these cases, see Ian F. Haney Lopez, White by Law: The Legal Construction of Race (New York, forthcoming). For reliance on the ‘‘common man,’’ see U.S. v. Bhagat Singh Thind, 261 U.S. 204 (1923). On Thind, see Sucheta Mazumdar, ‘‘Racist Responses to Racism: T he Aryan Myth and South Asians in the United States,’’ South Asia Bulletin, 9 (no. 1, 1989), 47–55; Joan M. Jensen, Passage from India: Asian Indian Immigrants in N orth America (New Haven, 1988), 247–69; and Roediger, Towards the Abolition of Whiteness, 181–84. 188 Pascoe the 1920s, lawyers in miscegenation cases were beginning to glimpse the courtroom potential of arguments put forth by a pioneering group of self-consciously ‘‘modern’’ social scientists willing to challenge racialism head on. Led by cultural anthropologist Franz Boas, these emerging experts have long stood as the heroes of histories of the decline of scientific racism (which is often taken to stand for racism as a whole). But for modern social scientists, the attack on racialism was not so much an end in itself as a function of the larger goal of establishing ‘‘culture’’ as a central social science paradigm. Intellectually and institutionally, Boas and his followers staked their claim to academic authority on their conviction that human difference and human history were best explained by culture. Because they interpreted character, morality, and social organization as cultural, rather than racial, phenomena and because they were determined to explore, name, and claim the field of cultural analysis for social scientists, particularly cultural anthropologists, sociologists, and social psychologists, they are perhaps best described as culturalists.23 T o consolidate their power, culturalists had to challenge the scientific racist paradigms they hoped to displace. T wo of the arguments they made were of particular significance for the emergence of modern racial ideologies. T he first was the argument that the key notion of racialism—race—made no biological sense. T his argument allowed culturalists to take aim at a very vulnerable target. For most of the nineteenth century, scientific racists had solved disputes about who fit into which racial categories by subdividing the categories. As a result, the number of scientifically recognized races had increased so steadily that by 1911, when the anthropologist Daniel Folkmar compiled the intentionally definitive Dictionary of Races and Peoples, he recognized ‘‘45 races or peoples among immigrants coming to the United States.’’ Folkmar’s was only one of several competing schemes, and culturalists delighted in pointing out the discrepancies between them, showing that scientific racists could not agree on such seemingly simple matters as how many races there were or what criteria—blood, skin color, hair type—best indicated race.24 23. T he rise of Boasian anthropology has attracted much attention among intellectual historians, most of whom seem to agree with the 1963 comment that ‘‘it is possible that Boas did more to combat race prejudice than any other person in history’’; see Gossett, Race, 418. In addition to the works cited in footnote 7, see I. A. Newby, Jim Crow’s Defense: Anti-N egro Thought in America, 1900– 1930 (Baton Rouge, 1965), 21; and John S. Gilkeson Jr., ‘‘T he Domestication of ‘Culture’ in Interwar America, 1919–1941,’’ in The Estate of Social Knowledge, ed. JoAnne Brown and David K. van Keuren (Baltimore, 1991), 153–74. For more critical appraisals, see Robert Proctor, ‘‘Eugenics among the Social Sciences: Hereditarian T hought in Germany and the United States,’’ ibid., 175–208; Hamilton Cravens, The Triumph of Evolution: The Heredity-Environment Controversy, 1900–1941 (Baltimore, 1988); and Donna Haraway, Primate Visions: Gender, Race, and N ature in the World of Modern Science (New York, 1989), 127–203. T he classic—and still the best— account of the rise of cultural anthropology is Stocking, Race, Culture, and Evolution. See also George W. Stocking Jr., Victorian Anthropology (New York, 1987), 284–320. 24. U.S. Immigration Commission, Dictionary of Races or Peoples (Washington, 1911), 2. For other scientific racist classification schemes, see Encyclopaedia Britannica, 11th ed., s.v. ‘‘Anthropology’’; Miscegenation Law, Court Cases, and Ideologies of ‘‘Race’’ 189 In their most dramatic mode, culturalists went so far as to insist that physical characteristics were completely unreliable indicators of race; in biological terms, they insisted, race must be considered indeterminable. T hus, in an influential encyclopedia article on ‘‘race’’ published in the early thirties, Boas insisted that ‘‘it is not possible to assign with certainty any one individual to a definite group.’’ Perhaps the strongest statement of this kind came from Julian Huxley and A. C. Haddon, British scientists who maintained that ‘‘the term race as applied to human groups should be dropped from the vocabulary of science.’’ Since Huxley was one of the first culturalists trained as a biologist, his credentials added luster to his opinion. In this and other forms, the culturalist argument that race was biologically indeterminable captured the attention of both contemporaries and later historians.25 Historians have paid much less attention to a second and apparently incompatible argument put forth by culturalists. It started from the other end of the spectrum, maintaining, not that there was no such thing as biological race, but that race was nothing more than biology. Since culturalists considered biology of remarkably little importance, consigning race to the realm of biology pushed it out of the picture. T hus Boas ended his article on race by concluding that although it remained ‘‘likely’’ enough that scientific study of the ‘‘anatomical differences between the races’’ might reveal biological influence on the formation of personality, ‘‘the study of cultural forms shows that such differences are altogether irrelevant as compared with the powerful influence of the cultural environment in which the group lives.’’26 Following this logic, the contrast between important and wide-reaching culture and unimportant (but biological) race stood as the cornerstone of many culturalist arguments. T hus the cultural anthropologist Ruth Benedict began her influential 1940 book, Race: Science and Politics, with an analysis of ‘‘what race is not,’’ including language, customs, intelligence, character, and civilization. In a 1943 pamphlet co-authored with Gene Weltfish and addressed to the general public, she explained that real ‘‘racial differences’’ occurred only in ‘‘nonessentials such as texture of head hair, amount of body hair, shape of the nose or head, or color of the eyes and the skin.’’ Drawing on these distinctions, Benedict argued that race was a scientific ‘‘fact,’’ but that racism, which she defined as ‘‘the dogma that the hope of civilization depends upon eliminating some races and keeping others pure,’’ was no more than a ‘‘modern superstition.’’27 and Encyclopedia Americana: A Library of Universal Knowledge (New York, 1923), s.v. ‘‘Ethnography’’ and ‘‘Ethnology.’’ 25. Franz Boas, ‘‘Race,’’ in Encyclopaedia of the Social Sciences, ed. Edwin R. A. Seligman (15 vols., New York, 1930–1935), XIII, 27; Julian S. Huxley and A. C. Haddon, We Europeans: A Survey of ‘‘Racial’’ Problems (London, 1935), 107. 26. Boas, ‘‘Race,’’ 34. For one of the few instances when a historian has noted this argument, see Smedley, Race in N orth America, 275–82. 27. Ruth Benedict, Race: Science and Politics (New York, 1940), 12; Ruth Benedict and Gene Weltfish, The Races of Mankind (Washington, 1943), 5; Benedict, Race, 12. 190 Pasco Culturalists set these two seemingly contradictory depictions of race—the argument that biological race was nonsense and the argument that race was merely biology—right beside each other. T he contradiction mattered little to them. Both arguments effectively contracted the range of racialist thinking, and both helped break conceptual links between race and character, morality, psychology, and language. By showing that one after another of these phenomena depended more on environment and training than on biology, culturalists moved each one out of the realm of race and into the province of culture, widening the modern split between culture and biology. Boas opened his article on race by staking out this position. ‘‘T he term race is often used loosely to indicate groups of men differing in appearance, language, or culture,’’ he wrote, but in his analysis, it would apply ‘‘solely to the biological grouping of human types.’’28 In adopting this position, culturalist intellectuals took a giant step away from popular common sense on the issue of race. Recognizing—even at times celebrating—this gap between themselves and the public, they devoted much of their work to dislodging popular racial assumptions. T hey saw the public as lamentably behind the times and sadly prone to race ‘‘prejudice,’’ and they used their academic credentials to insist that racial categories not only did not rest on common sense, but made little sense at all.29 The M onks Case and the Making of Modern Racial Ideologies T his, of course, was just what lawyers challenging miscegenation laws wanted to hear. Because culturalist social scientists could offer their arguments with an air of scientific and academic authority that might persuade judges, attorneys began to invite them to appear as expert witnesses. But when culturalists appeared in court, they entered an arena where their argument for the biological indeterminacy of race was shaped in ways neither they nor the lawyers who recruited them could control. T ake, for example, the seemingly curious trial of Marie Antoinette Monks of San Diego, California, decided in the Superior Court of San Diego County in 1939. By all accounts, Marie Antoinette Monks was a woman with a clear eye for her main chance. In the early 1930s, she had entranced and married a man named Allan Monks, potential heir to a Boston fortune. Shortly after the marriage, which took place in Arizona, Allan Monks declined into insanity. Whether his mental condition resulted from injuries he had suffered in a motorcycle crash or from drugs administered under the undue influence of Marie Antoinette, the court would debate at great length. Allan Monks died. He left two wills: an old one in 28. Boas, ‘‘Race,’’ 25–26. 29. See, for example, Huxley and Haddon, We Europeans, 107, 269–73; Benedict and Weltfish, Races of Mankind; Benedict, Race; and Gunnar Myrdal, An American Dilemma: The N egro Problem and Modern Democracy (New York, 1944), 91–115. Miscegenation Law, Court Cases, and Ideologies of ‘‘Race’’ 191 favor of a friend named Ida Lee and a newer one in favor of his wife, Marie Antoinette. Ida Lee submitted her version of the will for probate, Marie Antoinette challenged her claim, and Lee fought back. Lee’s lawyers contended that the Monks marriage was illegal. T hey charged that Marie Antoinette Monks, who had told her husband she was a ‘‘French’’ countess, was actually ‘‘a Negro’’ and therefore prohibited by Arizona law from marrying Allan Monks, whom the court presumed to be Caucasian.30 Much of the ensuing six-week-long trial was devoted to determining the ‘‘race’’ of Marie Antoinette Monks. T o prove that she was ‘‘a Negro,’’ her opponents called five people to the witness stand: a disgruntled friend of her husband, a local labor commissioner, and three expert witnesses, all of whom offered arguments that emphasized biological indicators of race. T he first so-called expert, Monks’s hairdresser, claimed that she could tell that Monks was of mixed blood from looking at the size of the moons of her fingernails, the color of the ‘‘ring’’ around the palms of her hands, and the ‘‘kink’’ in her hair. T he second, a physical anthropologist from the nearby San Diego Museum, claimed to be able to tell that Monks was ‘‘at least one-eighth negroid’’ from the shape of her face, the color of her hands, and her ‘‘protruding heels,’’ all of which he had observed casually while a spectator in the courtroom. T he third expert witness, a surgeon, had grown up and practiced medicine in the South and later served at a Southern Baptist mission in Africa. Having once walked alongside Monks when entering the courthouse (at which time he tried, he said, to make a close observation of her), he testified that he could tell that she was of ‘‘one-eighth negro blood’’ from the contour of her calves and heels, from the ‘‘peculiar pallor’’ on the back of her neck, from the shape of her face, and from the wave of her hair.31 T o defend Monks, her lawyers called a friend, a relative, and two expert witnesses of their own, an anthropologist and a biologist. T he experts both started out by testifying to the culturalist position that it was impossible to tell a person’s race from physical characteristics, especially if that person was, as they put it, ‘‘of mixed blood.’’ T his was the argument culturalists used whenever they were cornered into talking about biology, a phenomenon they tended to regard as so insignificant a factor in social life that they preferred to avoid talking about it at all. But because this argument replaced certainty with uncertainty, it did not play very well in the Monks courtroom. Seeking to find the definitiveness they needed to offset the experts who had already testified, the lawyers for Monks paraded their own client in front of the witness stand, asking her to show the anthropologist her fingernails and to remove her shoes so that he could see her heels. T hey lingered over the biologist’s testimony that Monks’s physical features resembled 30. T he Monks trial can be followed in Estate of Monks, 4 Civ. 2835, Records of California Court of Appeals, Fourth District (California State Archives, Roseville); and Gunn v. Giraudo, 4 Civ. 2832, ibid. (Gunn represented another claimant to the estate.) T he two cases were tried together. For the 7-volume ‘‘Reporter’s T ranscript,’’ see Estate of Monks, 4 Civ. 2835, ibid. 31. ‘‘Reporter’s T ranscript,’’ vol. 2, pp. 660–67, vol. 3, pp. 965–76, 976–98, Estate of Monks. 192 Pascoe those of the people of southern France. In the end, Monks’s lawyers backed both experts into a corner; when pressed repeatedly for a definite answer, both reluctantly admitted that it was their opinion that Monks was a ‘‘white’’ woman.32 T he experts’ dilemma reveals the limitations of the argument for racial indeterminacy in the courtroom. Faced with a conflict between culturalist experts, who offered uncertainty and indeterminacy, and their opponents, who offered concrete biological answers to racial questions, judges were predisposed to favor the latter. T o judges, culturalists appeared frustratingly vague and uncooperative (in other words, lousy witnesses), while their opponents seemed to be good witnesses willing to answer direct questions. In the Monks case, the judge admitted that his own ‘‘inexpert’’ opinion—that Marie Antoinette ‘‘did have many characteristics that I would say . . . [showed] mixed negro and some other blood’’—was not enough to justify a ruling. T urning to the experts before him, he dismissed the hairdresser (whose experience he was willing to grant, but whose scientific credentials he considered dubious); he passed over the biologist (whose testimony, he thought, could go either way); and he dismissed the two anthropologists, whose testimonies, he said, more or less canceled each other out. T he only expert the judge was willing to rely on was the surgeon, because the surgeon ‘‘seemed . . . to hold a very unique and peculiar position as an expert on the question involved from his work in life.’’33 Relying on the surgeon’s testimony, the judge declared that Marie Antoinette Monks was ‘‘the descendant of a negro’’ who had ‘‘one-eighth negro blood . . . and 7⁄8 caucasian blood’’; he said that her ‘‘race’’ prohibited her from marrying Allan Monks and from inheriting his estate. T he racial categorization served to invalidate the marriage in two overlapping ways. First, as a ‘‘negro,’’ Marie Antoinette could not marry a white under Arizona miscegenation law; and second, by telling her husband-to-be that she was ‘‘French,’’ Marie Antoinette had committed a ‘‘fraud’’ serious enough to render the marriage legally void. T he court’s decision that she had also exerted ‘‘undue influence’’ over Monks was hardly necessary to the outcome.34 As the Monks case suggests, we should be careful not to overestimate the influence culturalists had on the legal system. And, while in courtrooms culturalist experts were trying—and failing—to convince judges that biological racial questions were unanswerable, outside the courts their contention that biological racial answers were insignificant was faring little better. During the first three decades of the twentieth century, scientists on the ‘‘racial’’ side of the split between race and culture reconstituted themselves into a rough alliance of their own. Mirroring the modern dividing line between biology and culture, its ranks swelled with those 32. Ibid., vol. 5, pp. 1501–49, vol. 6, pp. 1889–1923. 33. Ibid., vol. 7, pp. 2543–2548. 34. ‘‘Findings of Fact and Conclusions of Law,’’ in ‘‘Clerk’s T ranscript,’’ Dec. 2, 1940, Gunn v. Giraudo, 4 Civ. 2832, p. 81. One intriguing aspect of the Monks case is that the seeming exactness was unnecessary. T he status of the marriage hinged on the Arizona miscegenation law, which would have denied validity to the marriage whether the proportion of ‘‘blood’’ in question was ‘‘one-eighth’’ or ‘‘one drop.’’ Miscegenation Law, Court Cases, and Ideologies of ‘‘Race’’ 193 who claimed special expertise on biological questions. T here were biologists and physicians; leftover racialists such as physical anthropologists, increasingly shorn of their claims to expertise in every arena except that of physical characteristics; and, finally, the newly emerging eugenicists.35 Eugenicists provided the glue that held this coalition together. Narrowing the sweep of nineteenth-century racialist thought to focus on biology, these modern biological experts then expanded their range by offering physical characteristics, heredity, and reproductive imperatives as variations on the biological theme. T hey were particularly drawn to arenas in which all these biological motifs came into play; accordingly, they placed special emphasis on reforming marriage laws. Perhaps the best-known American eugenicist, Charles B. Davenport of the Eugenics Record Office, financed by the Carnegie Institution, outlined their position in a 1913 pamphlet, State Laws Limiting Marriage Selection Examined in the Light of Eugenics, which proposed strengthening state control over the marriages of the physically and racially unfit. Davenport’s plan was no mere pipe dream. According to the historian Michael Grossberg, by the 1930s, 41 states used eugenic categories to restrict the marriage of ‘‘lunatics,’’ ‘‘imbeciles,’’ ‘‘idiots,’’ and the ‘‘feebleminded’’; 26 states restricted the marriages of those infected with syphilis and gonorrhea; and 27 states passed sterilization laws. By midcentury, blood tests had become a standard legal prerequisite for marriage.36 Historians have rather quickly passed over the racial aspects of American eugenics, seeing its proponents as advocates of outmoded ideas soon to be beached by the culturalist sea change. Yet until at least World War II, eugenicists reproduced a modern racism that was biological in a particularly virulent sense. For them, unlike their racialist predecessors (who tended to regard biology as an indicator of a much more expansive racial phenomenon), biology really was the essence of race. And unlike nineteenth-century scientific racists (whose belief in discrete racial dividing lines was rarely shaken by evidence of racial intermixture), twentieth-century eugenicists and culturalists alike seemed obsessed with the subject of mixed-race individuals.37 35. For descriptions of those interested in biological aspects of race, see Stocking, Race, Culture, and Evolution, 271–307; I. A. Newby, Challenge to the Court: Social Scientists and the Defense of Segregation, 1954–1966 (Baton Rouge, 1969); and Cravens, Triumph of Evolution, 15–55. On eugenics, see Proctor, ‘‘Eugenics among the Social Sciences,’’ 175–208; Daniel J. Kevles, In the N ame of Eugenics: Genetics and the Uses of Human Heredity (New York, 1985); Mark H. Haller, Eugenics: Hereditarian Attitudes in American Thought (New Brunswick, 1963); and William H. T ucker, The Science and Politics of Racial Research (Urbana, 1994), 54–137. 36. Charles B. Davenport, Eugenics Record Office Bulletin N o. 9: State Laws Limiting Marriage Selection Examined in the Light of Eugenics (Cold Spring Harbor, 1913); Michael Grossberg, ‘‘Guarding the Altar: Physiological Restrictions and the Rise of State Intervention in Matrimony,’’ American Journal of Legal History, 26 (July 1982), 221–24. 37. See, for example, C[harles] B[enedict] Davenport and Morris Steggerda, Race Crossing in Jamaica (1929; Westport, 1970); Edward Byron Reuter, Race Mixture: Studies in Intermarriage and Miscegenation (New York, 1931); and Emory S. Bogardus, ‘‘What Race Are Filipinos?,’’ Sociology and Social Research, 16 (1931–1932), 274–79. 194 Pascoe In their determination to protect ‘‘white purity,’’ eugenicists believed that even the tightest definitions of race by blood proportion were too loose. Setting their sights on Virginia, in 1924 they secured passage of the most draconian miscegenation law in American history. T he act, entitled ‘‘an Act to preserve racial integrity,’’ replaced the legal provision that a person must have one-sixteenth of ‘‘negro blood’’ to fall within the state’s definition of ‘‘colored’’ with a provision that: It shall hereafter be unlawful for any white person in this State to marry any save a white person, or a person with no other admixture of blood than white and American Indian. For the purpose of this act, the term ‘‘white person’’ shall apply only to the person who has no trace whatsoever of any blood other than Caucasian; but 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. Another section of the Virginia law (which provided for the issuance of supposedly voluntary racial registration certificates for Virginia citizens) spelled out the ‘‘races’’ the legislature had in mind. T he list, which specified ‘‘Caucasian, Negro, Mongolian, American Indian, Asiatic Indian, Malay, or any mixture thereof, or any other non-Caucasic strains,’’ showed the lengths to which lawmakers would go to pin down racial categories. Within the decade, the Virginia law was copied by Georgia and echoed in Alabama. T hereafter, while supporters worked without much success to extend such laws to other states, defenders of miscegenation statutes added eugenic arguments to their rhetorical arsenal.38 Having been pinned to the modern biological wall and labeled as ‘‘mixed race,’’ Marie Antoinette Monks would seem to have been in the perfect position to challenge the constitutionality of the widely drawn Arizona miscegenation law. She took her case to the California Court of Appeals, Fourth District, where she made an argument that echoed that of Mayellen Kirby two decades earlier. Reminding the court of the wording of the Arizona statute, her lawyers pointed out that ‘‘on the set of facts found by the trial judge, [Marie Antoinette Monks] is concededly of Caucasian blood as well as negro blood, and therefore a descendant of a Caucasian.’’ Spelling it out, they explained: As such, she is prohibited from marrying a negro or any descendant of a negro, a Mongolian or an Indian, a Malay or a Hindu, or any of the descendants of any of them. Likewise . . . as a descendant of a negro she is prohibited from marrying a Caucasian or descendant of a Caucasian, which of course would include any person who had any degree of Caucasian blood in them. 38. 1924 Va. Acts ch. 371; 1927 Ga. Laws no. 317; 1927 Ala. Acts no. 626. T he 1924 Virginia act replaced 1910 Va. Acts ch. 357, which classified as ‘‘colored’’ persons with 1/ 16 or more ‘‘negro blood.’’ T he retention of an allowance for American Indian ‘‘blood’’ in persons classed as white was forced on the bill’s sponsors by Virginia aristocrats who traced their ancestry to Pocahontas and John Rolfe. See Paul A. Lombardo, ‘‘Miscegenation, Eugenics, and Racism: Historical Footnotes to Loving v. Virginia,’’ U.C. Davis Law Review, 21 (Winter 1988), 431–52; and Richard B. Sherman, ‘‘T he Last Stand: T he Fight for Racial Integrity in Virginia in the 1920s,’’ Journal of Southern History, 54 (Feb. 1988), 69–92. Miscegenation Law, Court Cases, and Ideologies of ‘‘Race’’ 195 Because this meant that she was ‘‘absolutely prohibited from contracting valid marriages in Arizona,’’ her lawyers argued that the Arizona law was an unconstitutional constraint on her liberty.39 T he court, however, dismissed this argument as ‘‘interesting but in our opinion not tenable.’’ In a choice that speaks volumes about the depth of attachment to racial categories, the court narrowed the force to the argument by asserting that ‘‘the constitutional problem would be squarely presented’’ only if one mixed-race person were seeking to marry another mixed-race person, then used this constructed hypothetical to dodge the issue: While it is true that there was evidence that appellant [Marie Antoinette Monks] is a descendant of the Caucasian race, as well as of the Negro race, the other contracting party [Allan Monks] was of unmixed blood and therefore the hypothetical situation involving an attempted alliance between two persons of mixed blood is no more present in the instant case than in the Kirby case. . . . T he situations conjured up by respondent are not here involved. . . . Under the facts presented the appellant does not have the benefit of assailing the validity of the statute. T his decision was taken as authoritative. Both the United States Supreme Court and the Supreme Judicial Court of Massachusetts (in which Monks had also filed suit) refused to reopen the issue.40 Perhaps the most interesting thing about the Monks case is that there is no reason to believe that the public found it either remarkable or objectionable. Local reporters who covered the trial in 1939 played up the themes of forgery, drugs, and insanity; their summaries of the racial categories of the Arizona law and the opinions of the expert witnesses were largely matter-of-fact.41 In this seeming acceptability to the public lies a clue to the development of modern racial ideologies. Even as judges narrowed their conception of race, transforming an all-encompassing phenomenon into a simple fact to be determined, they remained bound by the provisions of miscegenation law to determine who fit in which racial categories. For this purpose, the second culturalist argument, that race was merely biology, had far more to offer than the first, that race was biologically indeterminable. T he conception of race as merely biological seemed consonant with the racial categories built into the laws, seemed supportable by clear and unequivocal expert testimony, and fit comfortably within popular notions of race. 39. ‘‘Appellant’s Opening Brief,’’ Gunn v. Giraudo, 12–13. T his brief appears to have been prepared for the California Supreme Court but used in the California Court of Appeals, Fourth District. On February 14, 1942, the California Supreme Court refused to review the Court of Appeals decision. See Estate of Monks, 48 C.A. 2d 603, 621 (1941). 40. Estate of Monks, 48 C.A. 2d 603, 612–15 (1941); Monks v. Lee, 317 U.S. 590 (appeal dismissed, 1942), 711 (reh’g denied, 1942); Lee v. Monks, 62 N.E. 2d 657 (1945); Lee v. Monks, 326 U.S. 696 (cert. denied, 1946). 41. On the case, see San Diego Union, July 21, 1939–Jan. 6, 1940. On the testimony of expert witnesses on race, see ibid., Sept. 21, 1939, p. 4A; ibid., Sept. 29, 1939, p. 10A; and ibid., Oct. 5, 1939, p. 8A. 196 Pascoe The Distillation of Modernist Racial Ideology: From Perez to Loving In the Monks case we can see several modern racial ideologies—ranging from the argument that race was biological nonsense to the reply that race was essentially biological to the possibility that race was merely biology—all grounded in the split between culture and biology. T o distill these variants into a unified modernist racial ideology, another element had to be added to the mix, the remarkable (in American law, nearly unprecedented) proposal that the legal system abandon its traditional responsibility for determining and defining racial categories. In miscegenation law, this possibility emerged in a case that also, and not coincidentally, featured the culturalist argument for biological racial indeterminacy. T he case was Perez v. Lippold. It involved a young Los Angeles couple, Andrea Perez and Sylvester Davis, who sought a marriage license. T urned down by the Los Angeles County clerk, they challenged the constitutionality of the California miscegenation law directly to the California Supreme Court, which heard their case in October 1947.42 It was not immediately apparent that the Perez case would play a role in the development of modernist racial ideology. Perhaps because both sides agreed that Perez was ‘‘a white female’’ and Davis ‘‘a Negro male,’’ the lawyer who defended the couple, Daniel Marshall, did not initially see the case as turning on race categorization. In 1947, Marshall had few civil rights decisions to build on, so he tried an end-run strategy: he based his challenge to miscegenation laws on the argument that because both Perez and Davis were Catholics and the Catholic Church did not prohibit interracial marriage, California miscegenation law was an arbitrary and unreasonable restraint on their freedom of religion. T he freedom-of-religion argument made some strategic sense, since several courts had held that states had to meet a high standard to justify restrictions on religious expression. Accordingly, Marshall laid out the religion argument in a lengthy petition to the California Supreme Court. In response, the state offered an even lengthier defense of miscegenation laws. T he state’s lawyers had at their fingertips a long list of precedents upholding such laws, including the Kirby and Monks cases. T hey added eugenic arguments about racial biology, including evidence of declining birth rates among ‘‘hybrids’’ and statistics that showed high mortality, short life expectancies, and particular diseases among African Americans. T hey polished off their case with the comments of a seemingly sympathetic Roman Catholic priest.43 42. Perez v. Lippold, L.A. 20305, Supreme Court Case Files (California State Archives). T he case was also known as Perez v. Moroney and Perez v. Sharp (the names reflect changes of personnel in the Los Angeles County clerk’s office). I have used the title given in the Pacific Law Reporter, the most easily available version of the final decision: Perez v. Lippold, 198 P. 2d 17 (1948). 43. ‘‘Petition for Writ of Mandamus, Memorandum of Points and Authorities and Proof of Service,’’ Aug. 8, 1947, Perez v. Lippold; ‘‘Points and Authorities in Opposition to Issuance of Alternative Writ of Mandate,’’ Aug. 13, 1947, ibid.; ‘‘Return by Way of Demurrer,’’ Oct. 6, 1947, ibid.; ‘‘Return by Way of Answer,’’ Oct. 6, 1947, ibid.; ‘‘Respondent’s Brief in Opposition to Writ of Mandate,’’ Oct. 6, 1947, ibid. Miscegenation Law, Court Cases, and Ideologies of ‘‘Race’’ 197 Here the matter stood until the California Supreme Court heard oral arguments in the case. At that session, the court listened in silence to Marshall’s opening sally that miscegenation laws were based on prejudice and to his argument that they violated constitutional guarantees of freedom of religion. But as soon as the state’s lawyer began to challenge the religious freedom argument, one of the court’s associate justices, Roger T raynor, impatiently interrupted the proceedings. ‘‘What,’’ he asked, ‘‘about equal protection of the law?’’ Mr. Justice Traynor: . . . it might help to explain the statute, what it means. What is a negro? Mr. Stanley: We have not the benefit of any judicial interpretation. T he statute states that a negro [Stanley evidently meant to say, as the law did, ‘‘a white’’] cannot marry a negro, which can be construed to mean a full-blooded negro, since the statute also says mulatto, Mongolian, or Malay. Mr. Justice Traynor: What is a mulatto? One-sixteenth blood? Mr. Stanley: Certainly certain states have seen fit to state what a mulatto is. Mr. Justice Traynor: If there is 1/ 8 blood, can they marry? If you can marry with 1/ 8, why not with 1/ 16, 1/ 32, 1/ 64? And then don’t you get in the ridiculous position where a negro cannot marry anybody? If he is white, he cannot marry black, or if he is black, he cannot marry white. Mr. Stanley: I agree that it would be better for the Legislature to lay down an exact amount of blood, but I do not think that the statute should be declared unconstitutional as indefinite on this ground. Mr. Justice Traynor: T hat is something anthropologists have not been able to furnish, although they say generally that there is no such thing as race. Mr. Stanley: I would not say that anthropologists have said that generally, except such statements for sensational purposes. Mr. Justice Traynor: Would you say that Professor Wooten of Harvard was a sensationalist? T he crucial question is how can a county clerk determine who are negroes and who are whites.44 Although he addressed his questions to the lawyers for the state, Justice T raynor had given Marshall a gift no lawyer had ever before received in a miscegenation case: judicial willingness to believe in the biological indeterminacy of race. It was no accident that this argument came from Roger T raynor. A former professor at Boalt Hall, the law school of the University of California, Berkeley, T raynor had been appointed to the court for his academic expertise rather than his legal experience; unlike his more pragmatic colleagues, he kept up with developments in modern social science.45 Marshall responded to the opening T raynor had provided by making sure that his next brief included the culturalist argument that race was biological nonsense. In it, he asserted that experts had determined that ‘‘race, as popularly understood, 44. ‘‘[Oral Argument] On Behalf of Respondent,’’ Oct. 6, 1947, pp. 3–4, ibid. 45. Stanley Mosk, ‘‘A Retrospective,’’ California Law Review, 71 (July 1983), 1045; Peter Anderson, ‘‘A Remembrance,’’ ibid., 1066–71. 198 Pascoe is a myth’’; he played on the gap between expert opinion and laws based on irrational ‘‘prejudice’’ rooted in ‘‘myth, folk belief, and superstition’’; and he dismissed his opponents’ reliance on the ‘‘grotesque reasoning of eugenicists’’ by comparing their statements to excerpts from Adolf Hitler’s Mein Kampf.46 Marshall won his case. T he 1948 decision in the Perez case was remarkable for many reasons. It marked the first time since Reconstruction that a state court had declared a state miscegenation law unconstitutional. It went far beyond existing appeals cases in that the California Supreme Court had taken the very step the judges in the Kirby and Monks cases had avoided—going beyond the issue of the race of an individual to consider the issue of racial classification in general. Even more remarkable, the court did so in a case in which neither side had challenged the racial classification of the parties. But despite these accomplishments, the Perez case was no victory for the culturalist argument about the biological indeterminacy of race. Only the outcome of the case—that California’s miscegenation law was unconstitutional—was clear. T he rationale for this outcome was a matter of considerable dispute. Four justices condemned the law and three supported it; altogether, they issued four separate opinions. A four-justice majority agreed that the law should be declared unconstitutional but disagreed about why. T wo justices, led by T raynor, issued a lengthy opinion that pointed out the irrationality of racial categories, citing as authorities a virtual who’s who of culturalist social scientists, from Boas, Huxley, and Haddon to Gunnar Myrdal. A third justice issued a concurring opinion that pointedly ignored the rationality or irrationality of race classifications to criticize miscegenation laws on equality grounds, contending that laws based on ‘‘race, color, or creed’’ were—and always had been—contrary to the Declaration of Independence, the Constitution, and the Fourteenth Amendment; as this justice saw it, the Constitution was color-blind. A fourth justice, who reported that he wanted his decision to ‘‘rest upon a broader ground than that the challenged statutes are discriminatory and irrational,’’ based his decision solely on the religious freedom issue that had been the basis of Marshall’s original argument.47 In contrast, a three-justice minority argued that the law should be upheld. T hey cited legal precedent, offered biological arguments about racial categories, and mentioned a handful of social policy considerations. Although the decision went against them, their agreement with each other ironically formed the closest thing to a majority in the case. In sum, although the Perez decision foreshadowed the day when American courts would abandon their defense of racial categories, its variety of judicial rationales tells us more about the range of modern racial ideologies than it does about the power of any one of them.48 Between the Perez case in 1948 and the next milestone miscegenation case, Loving v. Virginia, decided in 1967, judges would search for a common denominator among this contentious variety, trying to find a position of principled de- 46. ‘‘Petitioners’ Reply Brief,’’ Nov. 8, 1947, pp. 4, 44, 23–24, Perez v. Lippold. 47. Perez v. Lippold, 198 P. 2d at 17–35, esp. 29, 34. 48. Ibid., 35–47. Miscegenation Law, Court Cases, and Ideologies of ‘‘Race’’ 199 cisiveness persuasive enough to mold both public and expert opinion. One way to do this was to back away from the culturalist argument that race made no biological sense, adopting the other culturalist argument that race was biological fact and thus shifting the debate to the question of how much biological race should matter in determining social and legal policy. In such a debate, white supremacists tried to extend the reach of biological race as far as possible. T hus one scientist bolstered his devotion to white supremacy by calling Boas ‘‘that appalling disaster to American social anthropology whose influence in the end has divorced the social studies of man from their scientific base in physical biology.’’49 Following the lead of eugenicists, he and his sympathizers tried to place every social and legal superstructure on a biological racial base. In contrast, their egalitarian opponents set limits. In their minds, biological race (or ‘‘skin color,’’ as they often called it), was significant only because its visibility made it easy for racists to identify those they subjected to racial oppression. As Myrdal, the best-known of the mid-twentieth-century culturalist social scientists, noted in 1944 in his monumental work, An American Dilemma: In spite of all heterogeneity, the average white man’s unmistakable observation is that most N egroes in America have dark skin and woolly hair, and he is, of course, right. . . . [T he African American’s] African ancestry and physical characteristics are fixed to his person much more ineffaceably than the yellow star is fixed to the Jew during the Nazi regime in Germany.50 T o Myrdal’s generation of egalitarians, the translation of visible physical characteristics into social hierarchies formed the tragic foundation of American racism. T he egalitarians won this debate, and their victory paved the way for the emergence of a modernist racial ideology persuasive enough to command the kind of widespread adherence once commanded by late-nineteenth-century racialism. Such a position was formulated by the United States Supreme Court in 1967 in Loving v. Virginia, the most important miscegenation case ever heard and the only one now widely remembered. T he Loving case involved what was, even for miscegenation law, an extreme example. Richard Perry Loving and Mildred Delores Jeter were residents of the small town of Central Point, Virginia, and family friends who had dated each other since he was seventeen and she was eleven. When they learned that their plans to marry were illegal in Virginia, they traveled to Washington, D.C., which did not have a miscegenation law, for the ceremony, returning in June 1958 with a marriage license, which they framed and placed proudly on their wall. In July 1958, they were awakened in the middle of the night by the county sheriff and two deputies, who had walked through their unlocked front door and right into their bedroom to arrest them for violating Virginia’s miscegenation law. Under 49. For the characterization of Franz Boas, by Robert Gayres, editor of the Scottish journal Mankind Quarterly, see Newby, Challenge to the Court, 323. On Mankind Quarterly and on mid-twentiethcentury white supremacist scientists, see T ucker, Science and Politics of Racial Research. 50. Myrdal, American Dilemma, 116–17. 200 Pascoe that law, an amalgam of criminal provisions enacted in 1878 and Virginia’s 1924 ‘‘Act to preserve racial integrity,’’ the Lovings, who were identified in court records as a ‘‘white’’ man and a ‘‘colored’’ woman, pleaded guilty and were promptly convicted and sentenced to a year in jail. T he judge suspended their sentence on the condition that ‘‘both accused leave . . . the state of Virginia at once and do not return together or at the same time to said county and state for a period of twenty-five years.’’51 In 1963, the Lovings, then the parents of three children, grew tired of living with relatives in Washington, D.C., and decided to appeal this judgment. T heir first attempts ended in defeat. In 1965, the judge who heard their original case not only refused to reconsider his decision but raised the rhetorical stakes by opining: Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. T he fact that he separated the races shows that he did not intend for the races to mix. But by the time their argument had been processed by the Supreme Court of Appeals of Virginia (which invalidated the original sentence but upheld the miscegenation law), the case had attracted enough attention that the United States Supreme Court, which had previously avoided taking miscegenation cases, agreed to hear an appeal.52 On the side of the Lovings stood not only their own attorneys, but also the National Association for the Advancement of Colored People (NAACP), the NAACP Legal Defense and Education Fund, the Japanese American Citizens League (JACL), and a coalition of Catholic bishops. T he briefs they submitted 51. Loving v. Commonwealth, 147 S.E. 2d 78, 79 (1966). For the Loving briefs and oral arguments, see Philip B. Kurland and Gerhard Casper, eds., Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law, vol. LXIV (Arlington, 1975), 687–1007. Edited cassette tapes of the oral argument are included with Peter Irons and Stephanie Guitton, ed., May It Please the Court: The Most Significant Oral Arguments Made before the Supreme Court since 1955 (New York, 1993). For scholarly assessments, see Wallenstein, ‘‘Race, Marriage, and the Law of Freedom’’; Walter Wadlington, ‘‘T he Loving Case: Virginia’s Antimiscegenation Statute in Historical Perspective,’’ in Race Relations and the Law in American History: Major Historical Interpretations, ed. Kermit L. Hall (New York, 1987), 600–34; and Robert J. Sickels, Race, Marriage, and the Law (Albuquerque, 1972). 52. Loving v. Virginia, 388 U.S. 1, 3 (1967); Wallenstein, ‘‘Race, Marriage, and the Law of Freedom,’’ 423–25, esp. 424; N ew Y ork Times, June 12, 1992, p. B7. By the mid-1960s some legal scholars had questioned the constitutionality of miscegenation laws, including C. D. Shokes, ‘‘T he Serbonian Bog of Miscegenation,’’ Rocky Mountain Law Review, 21 (1948–1949), 425–33; Wayne A. Melton, ‘‘Constitutionality of State Anti-Miscegenation Statutes,’’ Southwestern Law Journal, 5 (1951), 451–61; Andrew D. Weinberger, ‘‘A Reappraisal of the Constitutionality of Miscegenation Statutes,’’ Cornell Law Quarterly, 42 (Winter 1957), 208–22; Jerold D. Cummins and John L. Kane Jr., ‘‘Miscegenation, the Constitution, and Science,’’ Dicta, 38 (Jan.–Feb. 1961), 24–54; William D. Zabel, ‘‘Interracial Marriage and the Law,’’ Atlantic Monthly, 216 (Oct. 1965), 75–79 [included in this volume, pp. 54–61. —Ed.]; and Cyrus E. Phillips IV, ‘‘Miscegenation: T he Courts and the Constitution,’’ William and Mary Law Review, 8 (Fall 1966), 133–42. Miscegenation Law, Court Cases, and Ideologies of ‘‘Race’’ 201 offered the whole arsenal of arguments developed in previous miscegenation cases. T he bishops offered the religious freedom argument that had been the original basis of the Perez case. T he NAACP and the JACL stood on the opinions of culturalist experts, whose numbers now reached beyond social scientists well into the ranks of biologists. Offering both versions of the culturalist line on race, NAACP lawyers argued on one page, ‘‘T he idea of ‘pure’ racial groups, either past or present, has long been abandoned by modern biological and social sciences,’’ and on another, ‘‘Race, in its scientific dimension, refers only to the biogenetic and physical attributes manifest by a specified population. It does not, under any circumstances, refer to culture (learned behavior), language, nationality, or religion.’’ T he Lovings’ lawyers emphasized two central points: Miscegenation laws violated both the constitutional guarantee of equal protection under the laws and the constitutional protection of the fundamental right to marry.53 In response, the lawyers for the state of Virginia tried hard to find some ground on which to stand. T heir string of court precedents upholding miscegenation laws had been broken by the Perez decision. T heir argument that Congress never intended the Fourteenth Amendment to apply to interracial marriage was offset by the Supreme Court’s stated position that congressional intentions were inconclusive. In an attempt to distance the state from the ‘‘white purity’’ aspects of Virginia’s 1924 law, Virginia’s lawyers argued that since the Lovings admitted that they were a ‘‘white’’ person and a ‘‘colored’’ person and had been tried under a section of the law that mentioned only those categories, the elaborate definition of ‘‘white’’ offered in other sections of Virginia law was irrelevant.54 On only one point did the lawyers for both parties and the Court seem to agree: None of them wanted to let expert opinion determine the outcome. T he lawyers for Virginia knew only too well that during the twentieth century, the scientific foundations of the eugenic biological argument in favor of miscegenation laws had crumbled, so they tried to warn the Court away by predicting that experts would mire the Court in ‘‘a veritable Serbonian bog of conflicting scientific opinion.’’ Yet the Lovings’ lawyers, who seemed to have the experts on their side, agreed that ‘‘the Court should not go into the morass of sociological evidence that is available on both sides of the question.’’ ‘‘We strongly urge,’’ they told the justices, ‘‘that it is not necessary.’’ And the Court, still reeling from widespread criticism that its decision in the famous 1954 case Brown v. Board of Education was illegitimate ‘‘sociological jurisprudence,’’ was not about to offer its opponents any more of such ammunition.55 T he decision the Court issued was, in fact, carefully shorn of all reference to expert opinion; it spoke in language that both reflected and contributed to a new popular common sense on the issue of race. Recycling earlier pronouncements that ‘‘distinctions between citizens solely because of their ancestry’’ were ‘‘odious to a free people whose institutions are founded upon the doctrine of equality’’ 53. Kurland and Casper, eds., Landmark Briefs, 741–88, 847–950, 960–72, esp. 898–99, 901. 54. Ibid., 789–845, 976–1003. 55. Ibid., 834, 1007. 202 Pascoe and that the Court ‘‘cannot conceive of a valid legislative purpose . . . which makes the color of a person’s skin the test of whether his conduct is a criminal offense,’’ the justices reached a new and broader conclusion. Claiming (quite inaccurately) that ‘‘We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race,’’ the Court concluded that the racial classifications embedded in Virginia miscegenation laws were ‘‘so directly subversive of the principle of equality at the heart of the Fourteenth Amendment’’ that they were ‘‘unsupportable.’’ Proclaiming that it violated both the equal protection and the due process clauses of the Fourteenth Amendment, the Court declared the Virginia miscegenation law unconstitutional.56 Legacies of Modernist Racial Ideology T he decision in the Loving case shows the distance twentieth-century American courts had traveled. T he accumulated effect of several decades of culturalist attacks on racialism certainly shaped their thinking. T he justices were no longer willing to accept the notion that race was the all-encompassing phenomenon nineteenth-century racialist thinkers had assumed it to be; they accepted the divisions between culture and biology and culture and race established by modern social scientists. But neither were they willing to declare popular identification of race with physical characteristics (like ‘‘the color of a person’s skin’’) a figment of the imagination. In their minds, the scope of the term ‘‘race’’ had shrunk to a point where biology was all that was left; ‘‘race’’ referred to visible physical characteristics significant only because racists used them to erect spurious racial hierarchies. T he Virginia miscegenation law was a case in point; the Court recognized and condemned it as a statute clearly ‘‘designed to maintain White Supremacy.’’57 Given the dependence of miscegenation laws on legal categories of race, the Court concluded that ending white supremacy required abandoning the categories. In de-emphasizing racial categories, they joined mainstream mid-twentiethcentury social scientists, who argued that because culture, rather than race, shaped meaningful human difference, race was nothing more than a subdivision of the broader phenomenon of ethnicity. In a society newly determined to be ‘‘colorblind,’’ granting public recognition to racial categories seemed to be synonymous with racism itself.58 56. Loving v. Virginia, 388 U.S. at 12. 57. Ibid., 11. 58. T he notion that American courts should be ‘‘color-blind’’ is usually traced to Supreme Court Justice John Harlan. Dissenting from the Court’s endorsement of the principle of ‘‘separate but equal’’ in Plessy v. Ferguson, Harlan insisted that ‘‘Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.’’ Plessy v. Ferguson, 163 U.S. 537, 559 (1896). But only after Brown v. Board of Education, widely interpreted as a belated endorsement of Harlan’s position, did courts begin to adopt color blindness as a goal. Brown v. Board of Education, 347 U.S. 483 (1954). On the history of the color-blindness ideal, see Andrew Kull, The Color-Blind Constitution (Cambridge, Mass., 1992). On developments in social science, see Omi and Winant, Racial Formation in the United States, 14–23. Miscegenation Law, Court Cases, and Ideologies of ‘‘Race’’ 203 And so the Supreme Court promulgated a modernist racial ideology that maintained that the best way to eradicate racism was the deliberate nonrecognition of race. Its effects reached well beyond miscegenation law. Elements of modernist racial ideology marked many of the major mid-twentieth-century Supreme Court decisions, including Brown v. Board of Education. Its effects on state law codes were equally substantial; during the 1960s and 1970s, most American states repealed statutes that had defined ‘‘race’’ (usually by blood proportion) and set out to erase racial terminology from their laws.59 Perhaps the best indication of the pervasiveness of modernist racial ideology is how quickly late-twentieth-century conservatives learned to shape their arguments to fit its contours. Attaching themselves to the modernist narrowing of the definition of race to biology and biology alone, conservative thinkers began to contend that, unless their ideas rested solely and explicitly on a belief in biological inferiority, they should not be considered racist. T hey began to advance ‘‘cultural’’ arguments of their very own, insisting that their proposals were based on factors such as social analysis, business practicality, or merit—on anything, in other words, except biological race. In their hands, modernist racial ideology supports an Alice-in-Wonderland interpretation of racism in which even those who argue for racially oppressive policies can adamantly deny being racists. T his conservative turnabout is perhaps the most striking, but not the only, indication of the contradictions inherent in modernist racial ideology. Others run the gamut from administrative law to popular culture. So while the United States Supreme Court tries to hold to its twentieth-century legacy of limiting, when it cannot eradicate, racial categories, United States government policies remain deeply dependent on them. In the absence of statutory definitions of race, racial categories are now set by the United States Office of Management and Budget, which in 1977 issued a ‘‘Statistical Directive’’ that divided Americans into five major groups—American Indian or Alaskan Native, Asian or Pacific Islander, Black, White, and Hispanic. T he statistics derived from these categories help determine everything from census counts to eligibility for inclusion in affirmative action programs to the drawing of voting districts.60 Meanwhile, in one popular culture flash-point after another—from the Anita Hill/ Clarence T homas hearings 59. Brown v. Board of Education, 347 U.S. 483 (1954). T he Court declared distinctions based ‘‘solely on ancestry’’ ‘‘odious’’ even while upholding curfews imposed on Japanese Americans during World War II; see Hirabayashi v. United States, 320 U.S. 81 (1943). It declared race a ‘‘suspect’’ legal category while upholding the internment of Japanese Americans; see Korematsu v. United States, 323 U.S. 214 (1944). By 1983, no American state had a formal race-definition statute still on its books. See Chris Ballentine, ‘‘ ‘Who Is a Negro?’ Revisited: Determining Individual Racial Status for Purposes of Affirmative Action,’’ University of Florida Law Review, 35 (Fall 1983), 692. T he repeal of state race-definition statutes often accompanied repeal of miscegenation laws. See, for example, 1953 Mont. Laws ch. 4; 1959 Or. Laws ch. 531; 1965 Ind. Acts ch. 15; 1969 Fla. Laws 69–195; and 1979 Ga. Laws no. 543. 60. T he fifth of these categories, ‘‘Hispanic,’’ is sometimes described as ‘‘ethnic,’’ rather than ‘‘racial.’’ For very different views of the current debates, see Lawrence Wright, ‘‘One Drop of Blood,’’ N ew Y orker, July 25, 1994, pp. 46–55; and Michael Lind, The N ext American N ation: The N ew N ationalism and the Fourth American Revolution (New York, 1995), 97–137. 204 Pascoe to the O. J. Simpson case, mainstream commentators insist that ‘‘race’’ should not be a consideration even as they explore detail after detail that reveals its social pervasiveness.61 T hese gaps between the (very narrow) modernist conception of race and the (very wide) range of racial identities and racial oppressions bedevil today’s egalitarians. In the political arena, some radicals have begun to argue that the legal system’s deliberate nonrecognition of race erodes the ability to recognize and name racism and to argue for such policies as affirmative action, which rely on racial categories to overturn rather than to enforce oppression. Meanwhile, in the universities, a growing chorus of scholars is revitalizing the argument for the biological indeterminacy of race and using that argument to explore the myriad of ways in which socially constructed notions of race remain powerfully salient. Both groups hope to do better than their culturalist predecessors at eradicating racism.62 Attaining that goal may depend on how well we understand the tortured history of mid-twentieth-century American ideologies of race. 61. People v. O. J. Simpson, Case no. BA 097211, California Superior Court, L.A. County (1994). 62. See, for example, Kimberle Williams Crenshaw, ‘‘Race, Reform, and Retrenchment: T ransformation and Legitimation in Antidiscrimination Law,’’ Harvard Law Review, 101 (May 1988), 1331–87; Dana Y. T akagi, The Retreat from Race: Asian-American Admissions and Racial Politics (New Brunswick, 1992), 181–94; and Girardeau A. Spann, Race against the Court: The Supreme Court and Minorities in Contemporary America (New York, 1993), 119–49. See footnote 5, above. On recent work in the humanities, see T essie Liu, ‘‘Race,’’ in A Companion to American Thought, ed. Richard Wightman Fox and James T . Kloppenberg (Cambridge, Mass., 1995), 564–67. On legal studies, see Richard Delgado and Jean Stefancic, ‘‘Critical Race T heory: An Annotated Bibliography,’’ Virginia Law Review, 79 (March 1993), 461–516. PART II Literature T his part opens with ‘‘A Miscegenation Vocabulary and the Coining of an Americanism,’’ definitions of ‘‘Miscegenation,’’ ‘‘Mulatto,’’ ‘‘Quadroon,’’ ‘‘Octoroon,’’ and ‘‘Hybrid’’ that were taken from the Oxford English Dictionary; and Sidney Kaplan’s ‘‘T he Miscegenation Issue in the Election of 1864,’’ an unsurpassed account of the history of the Miscegenation pamphlet that coined the word. T he second section, ‘‘T he ‘T ragic Mulatto’ and Other T hemes of Interracial Literature,’’ presents pioneering scholarship in the field, starting with philosopher Alain Locke’s 1926 essay on ‘‘American Literary T radition and the Negro,’’ an early scholarly work that emphasizes the significance of the theme of ‘‘the mulatto house servant concubine and her children’’ for antislavery literature. (Locke argues against Francis Pendleton Gaines who, in his account of ‘‘the plantation tradition,’’ had ‘‘discreetly ignored’’ such figures.) Locke also presents the reemergence of interracial themes in American literature from Reconstruction to the 1920s. His essay covers African American authors, white antislavery radicals, liberals, and ‘‘flagrantly derogatory’’ authors like T homas Dixon. While Locke’s perceptive essay is not cited very often, Sterling A. Brown’s pathbreaking ‘‘Negro Character as Seen by White Authors’’ (1933) has informed many discussions of mixedrace figures, even by critics who may not directly quote him. In the two sections included here, Brown names the interracial rapist figure (in what Locke called ‘‘derogatory’’ works) ‘‘T he Brute Negro,’’ a term not often used in criticism today, and calls the stereotypical portraiture of many interracial characters and situations ‘‘T he T ragic Mulatto,’’ a term that may have its widest currency now. Just as Locke had offered a critical corrective to Gaines, so Brown wrote in opposition to John Herbert Nelson. But Brown holds up to greatest ridicule his contemporary writers who tried to translate racist theories of divided bloodlines into characters—‘‘nonsense,’’ he calls their work. Penelope Bullock’s ‘‘T he Mulatto in American Fiction’’ (1945) is the published summary of her 1944 Atlanta University thesis, one of the first comprehensive studies of the topic; the brief essay presents the major literature from George Washington Cable and Mark T wain to Charles Chesnutt, and also treats little-known authors. T wo decades later, Jules Zanger, in his often-cited essay ‘‘T he ‘T ragic Octoroon’ in Pre–Civil War Fiction’’ (1966), expanded the list of thematically relevant works. In the essay he offers a corrective to Sterling Brown’s ‘‘T ragic Mulatto’’ while delineating the sharpest extant picture of stereotypical views of female mixed-blood characters. William Bedford Clark, ‘‘T he Serpent of Lust in the Southern Garden’’ (1974), sees the theme as central to Southern literature from Joel Chandler Harris’s ‘‘Where’s Duncan?’’ to Robert Penn Warren’s Band of Angels. Clark pursues common literary themes: the denial of family ties, the pattern of guilt and retribution, and the mulatto figure’s identity and dual role as victim and avenger. T he last essay of this section, William L. Andrews’s ‘‘Miscegenation in the Late Nineteenth-Century Novel’’ (1979), presents concise readings of representative novels including Rebecca Harding Davis’s Waiting for the Verdict, Cable’s Grandissimes, and works by Albion T ourgee, Chesnutt, Howells, Mark T wain, T homas Dixon, and Sutton ´ Griggs. 208 Interracialism ‘‘Case Studies and Close Readings’’ are brought together in the third section of part II. Arthur P. Davis’s ‘‘T he T ragic Mulatto T heme in Six Works of Langston Hughes’’ (1955) examines the different treatment Hughes gave to the theme in his poetry, prose, and drama, and is written with a biographical focus. An extraordinarily suggestive, little-known, and rarely cited essay by Langston Hughes on Mark T wain’s Pudd’nhead Wilson follows. Simone Vauthier’s ‘‘Of African Queens and Afro-American Princes and Princesses: Miscegenation in Old Hepsy’’ takes a careful and judicious close reading of Mary Denison’s fantastic 1858 novel Old Hepsy (worth reprinting today) as the occasion for reflections on the general significance of themes of interracial couples (here also of a white woman and a black man) and their descendants for family romance and gender politics. T he historian T ilden Edelstein’s survey of the strange fate of ‘‘Othello in America: T he Drama of Racial Intermarriage’’ (1982) reveals how the history of the play’s reception and of theatrical adaptations in the United States can be viewed as a forum of American racial attitudes, citing how Othello ‘‘enacted what was least practiced and most feared: the legal marriage of a black man and a white woman.’’ T he last essay in this section, George Hutchinson’s ‘‘Jean T oomer and American Racial Discourse’’ (1993), presents a close reading of T oomer’s Cane by contrasting T oomer’s resistance to American racial discourse with his pervasive reception within that discourse. T he fourth section of part II highlights ‘‘Literature in Contexts.’’ Glenn Cannon Arbery draws on Rene Girard’s analysis of scapegoating in Violence and the ´ Sacred. Arbery argues that the absence of difference marks the victim status of mixed-race characters. His analysis centers on Faulkner’s Absalom, Absalom! and Go Down, Moses, and also includes suggestive comments on Allen T ate’s The Fathers, Cable’s ‘‘Madame Delphine,’’ Longfellow’s poem ‘‘T he Quadroon Girl,’’ and Harriet Beecher Stowe’s Uncle Tom’s Cabin. Karen Sanchez-Eppler’s widely ´ cited ‘‘Bodily Bonds: T he Intersecting Rhetorics of Feminism and Abolition’’ (1988) is a substantive examination of abolitionist literature from Lydia Maria Child to Harriet Beecher Stowe that offers new possibilities for that literature’s fascination with miscegenation and extends and complicates Zanger’s approach. Eduardo Gonzalez’s imaginative essay ‘‘American T heriomorphia: T he Presence ´ of Mulatez in Cirilo Villaverde and Beyond’’ constitutes a ‘‘hemispheric’’ approach to the topic and is informed not only by the semantic difference between Spanish ‘‘mulatto’’ and English ‘‘mulatto,’’ between Villaverde’s Cecilia Valdez and Faulkner’s Light in August, or Cable’s Grandissimes, but also by a broader, allusively constituted, comparative perspective on U.S. idiosyncrasies. A MISCEGENATIO N VO CABULARY AND THE CO INING O F AN AMERICANISM T erms from the Oxford English Dictionary Miscegenation m iscegenation mi:si d3i ne i.S e n. [irreg. f. L; misce-re to mix gen-us race -ation.] Mixture of races; esp. the sexual union of whites with Negroes. • 1864 (title) Miscegenation: T he T heory of the Blending of the Races, applied to the American White Man and Negro. Reprinted from the New York Edition. • 1878 Stanley Dark Cont. I. 44 By this process of miscegenation, the Arabs are already rapidly losing their rich colour. • 1889 Boston (Mass.) Jrnl. 27 Feb. 4/ 4 Miscegenation in Kentucky . . . T he penalty for miscegenation is three years’ imprisonment. • 1902 Pilot 27 Dec. 540/ 2 T he danger of ‘miscegenation’ . . . ought to warn us against introducing Oriental settlers into South Africa. • 1927 M. M. Bennett Christison ii. 29 ‘Miscegenation’ being official jargon for what Governor Bourke called ‘detaining black women by force’. • 1971 Sunday Times 20 June 29/ 6 [He] must inaugurate ‘creative miscegenation’ by marrying a Chinese girl. • 1865 E. Burritt Walk to Land’s End 64 It is an . . . effort to engraft Christian ideas upon the heathen stock of Grecian mythology. . . . In beautiful . . . contrast with this ostentatious group of Christian and pagan miscegenation is [etc.]. • 1884 J. Hawthorne N . Hawthorne & Wife II. 178 T he lower regions of palaces come to strange uses in Rome; a cobbler or a tinker perhaps exercises his craft under the archway; a work-shop may be established in one of the apartments; and similar miscegenations. So (mostly nonce-wds.) 'm iscegen back-formation miscegenate; 'm iscegenate sb. see-ate2 3, the issue of a union between people of different races; 'm iscegenate v., to produce miscegenation; 'm iscegenated ppl. a., produced by miscegenation; m isce'genesis (in quot. misci-) miscegenation; m iscege'netic, m isce'genic adjs., pertaining to or involving miscegenation; 'm iscege'nationist, 'm iscegenator, m i'scegenist, one who favours miscegenation; also, one who contracts a union with one of another race; m i'scegeny, miscegenation. • 1864 [Croly, etc.] Miscegenation 7 T o miscegenate; i.e. to mingle persons of different races. • 1864 [Croly, etc.] Miscegenation ii. 19 T he Griquas, or Griqua Hottentots, are a miscegenated race. • 1864 [Croly, etc.] Miscegenation v. 28 A miscegenetic community. • 1864 [Croly, etc.] Miscegenation vii. 34 T he purest miscegen will be brown, with reddish cheeks. • 1865 Reader 20 May 561/ 2 (art. Emancipation). T here are philogynists as fanatical as any ‘miscegenists’. 211 212 A Miscegenation Vocabulary • 1865 S. S. Cox Eight Y rs. Congress 354 A very sprightly suffragan of the miscegen stamp. • 1865 S. S. Cox Eight Y rs. Congress 354 T he result would be an average miscegen and a superior patriot. • 1872 Schele de Vere Americanisms 289 A Miscegenationist, named Williams, was tarred and feathered, and dumped into the river at Grenada, Mississippi. • 1880 Winchell Preadamites vi. 81 T he policy of North American miscegenesis, which has been recommended . . . as an . . . expedient for obviating race collisions. • 1881 Sala Amer. Revis. 316 T wo such ‘Miscegenators’ have been hanged by the mob in Virginia. • 1898 C. F. Adams Imperialism 10 It has saved the Anglo-Saxon stock from being a nation of half-breeds-miscegenates. • 1941 R. West Black Lamb I. 527 It was a fusion, lovely but miscegenic, of the Byzantine and the baroque styles. • 1935 Punch 14 Aug. 176/ 1 Since miscegeny is not a bad British trouble, Shanghai is a film that is more likely to interest America than ourselves. Mulatto m ulatto miu læ;to, sb. and a. Forms: 6 mulatow, 7 malato, mallatto, melotto, molata, -o, mol(l)otto, mulata, -o, muletto, mullato, 7–8 molatto, -etto, mullatto, 8 malotto, melatto, moletta, 9 mulattoe, 7- mulatto. [a. Sp. (and Pg.) mulato young mule, hence one of mixed race, a mulatto, obscurely derived from mulo mule sb. 1; hence Fr. mulatre (with assimilation of suffix to -atre -aster), Ital. mulatto.] ˆ ˆ A. sb. 1. One who is the offspring of a European and a Black; also used loosely for anyone of mixed race resembling a mulatto. • 1595 Drake’s Voy. (Hakl. Soc.) 22 By meanes of a Mulatow and an Indian, we had, this night, forty bundles of dried beife. • 1613 Purchas Pilgrimage vi. xiv. 545 Why then are the Portugalls Children and Generations White, or Mulatos at most. • 1657 R. Ligon Barbadoes 10 A great fat man . . . his face not so black as to be counted a Mollotto. • 1697 Dampier Voy. (1699) 199 T he Mulata, because he said he was in the Fireship . . . was immediately hanged. • 1713 C’tess of Winchilsea Misc. Poems 209 Grinning Malottos in true Ermin stare. • 1727–41 Chambers Cycl., Mulatto, a name given, in the Indies, to those who are begotten by a negro man on an Indian woman; or an Indian man on a negro woman. • 1854 T hackeray N ewcomes I. 31 T wo wooly-headed poor little mulattos. • 1885 R. L. & F; Stevenson Dynamiter xi, T hat hag of a mulatto was no less a person than my wife. [obsolete sense] 2. (See quot.) Obs. A Miscegenation Vocabulary 213 • 1664 Jer. T aylor Dissuas. Popery i. i. Sect. 3 Purgatory, which is a device to make men be Mulata’s as the Spaniard calls half-Christians. 3. Geol. T he greenstone of Northern Ireland. • 1816 Conybeare in Trans. Geol. Soc. III. 130 Mulattoe, an arenaceous stone, with a calcareous cement of a speckled appearance (whence its name). • 1843 Portlock Geol. 110 the chalk . . . rests on . . . indurated greensand or (as it has been called) mulatto stone. 4. attrib. and Comb., as m ulatto-like adj.; m ulatto-clay U.S., a dark-coloured clay; m ulatto jack, a term for yellow fever (Syd. Soc. Lex. 1891); m ulatto land, -soil U.S., a dark coloured fertile kind of soil; m ulatto loam , m ould mulattoland; m ulatto prairie, a prairie of mulatto-soil; m ulatto tree (see quot.). • 1788 T . Jefferson Tour of Amsterdam in Writings (1854) IX. 386 It has a southern aspect, the soil a barren *mulatto clay, mixed with a good deal of stone, and some slate. • 1741 in Amer. Speech (1940) XV. 287/ 2 A T ract of rich *Mulattoe Land, lying in that County. • 1794 Morse Amer. Geog. 556 T he mulatto lands [of Georgia] are generally strong. • 1883 E. A. Smith Rep. Geol. Survey Alabama 1881–82 435 T he red or mulatto lands are much the best for cotton. • 1719 De Foe Crusoe i. 177 As for my Face, the Colour of it was really not so *Moletta like, as one might expect. • 1837 J. L. Williams Territory of Florida 82 T he surface is covered with a *mullatto or chocolate colored loam. • 1838 Jeffersonian (Albany) 28 Apr. 88 (T h.) T he *mulatto mould of the Colorado does not surpass in fatness the alluvial soil of Red River. • 1869 Overland Monthly III. 130 T hen there is the ‘chocolate’ prairie, and the ‘*mulatto’, and the ‘mezquite’. • 1794 Morse Amer. Geog. 556 T he *mulatto soil [of Georgia], consisting of a black mould and red earth. • 1819 E. Dana Geogr. Sk. Western Country 190 Next to this is very often found a skirt of rich pine land, dark mulatto soil with hickory . . . characteristic of good land. • 1861 Trans. Illinois Agric. Soc. IV. 112 He . . . would not choose the dark prairie mold, but that kind of soil best known in the west as the ‘mulatto soil’. • 1876 Encycl. Brit. IV. 97/ 1 T he *Mulatto tree (Eukylista Spruceana), one of the Cinchonaceæ. B. adj. 1. Belonging to the class of mulattos. • 1677 Rec. Court of N ew Castle on Delaware (1904) 91 T he upholding & detayning of this p[laintiff]’s molatto servant in Maryland; 214 A Miscegenation Vocabulary • 1704 T . Brown Walk round Lond., Tavern Wks. 1709 III. iii. 9, I shall observe your Caution, says my Moletto Comrade [an Indian]. • 1837 Ht. Martineau Soc. Amer. II. 156 She was asked whether she thought of doing anything for her two mulatto children. • 1900 Deniker Races of Man xiii. 542 A Mulatto woman, the offspring of a Spaniard and a negress, may give birth to a Morisco by uniting with a Spaniard. 2. Of the colour of a mulatto; tawny. • 1622 Mabbe tr. Aleman’s Guzman d’Alf. ii. 328, I sweare and vow vnto thee by this my Mulata face, that [etc.]. • 1826 Prichard Res. Phys. Hist. Man. (ed. 2) I. 151 A man, who . . . was of a mulatto complexion. • 1870 W. M. Baker N ew Timothy 84 (Cent.) Women of all shades of color, from deepest jet up to light mulatto. Q uadroon quadroon kwo(hook)dru .n. Forms: α. 8 quarteron, (9 -oon), quatron, 8–9 -eron, 9 -roon. β. 8 quaderoon, 9 quadroon. [ad. Sp; cuarteron (hence Fr. quarteron), f. cuarto fourth, quarter; the mod. form may be due to assoc. with other words in quadr-.] 1. a. One who is the offspring of a white person and a mulatto; one who has a quarter of Negro blood. b. rarely One who is fourth in descent from a Negro, one of the parents in each generation being white. In early Sp. use chiefly applied to the offspring of a white and a mestizo, or half-breed Indian. When it is used to denote one who is fourth in descent from a Negro, the previous stage is called a terceron: see the transl. of Juan and Ulloa’s Voyage (1772) I. 30, and cf. quintroon. α • 1707 Sloane Jamaica I. p. xlvi, T he inhabitants of Jamaica are for the most part Europeans . . . who are the Masters, and Indians, Negros, Mulatos, Alcatrazes, Mestises, Quarterons, &c. who are the Slaves; • 1793 Jefferson Writ. (1859) IV. 98 Castaing is described as a small dark mulatto, and La Chaise as a Quateron. • 1819 W. Lawrence Lect. Physiol. Zool. 295 Europeans and T ercerons produce Quarterons or Quadroons. • 1837 Carlyle Fr. Rev. II. v. iv, Your pale-white Creoles . . . and your yellow Quarteroons. • 1840 R. H. Dana Bef. Mast xiii. 29 T he least drop of Spanish blood, if it be only of quatroon or octoon. β • 1796 Stedman Surinam I. 296 T he Samboe dark, and the Mulatto brown, T he Mæsti fair, the well-limbed Quaderoon; A Miscegenation Vocabulary 215 • 1819 [see α]; • 1833 Marryat P. Simple (1863) 228 T he progeny of a white and a negro is a mulatto, or half and half—of a white and mulatto, a quadroon, or one quarter black. • 1880 Ouida Moths I. 178 T hat brute goes with a quadroon to a restaurant. Comb. • 1860 O. W. Holmes Elsie V. xxi. (1891) 292 How could he ever come to fancy such a quadroon-looking thing as that? c. transf. Applied to the offspring resulting from similar admixture of blood in the case of other races, or from crossing in the case of animals or plants. • 1811 Southey in Q. Rev. VI. 346 Whether a man were a half-new Christian, or a quateron, or a half-quateron . . . the Hebrew leaven was in the blood. • 1879 tr. De Quatrefages Hum. Spec. 72 Koelreuter artificially fertilised hybrid flowers . . . and thus obtained a vegetable quadroon. • 1892 Daily N ews 17 June 5/ 3 T he offspring of these crosses [of rabbits] did not in any instance produce a ‘quadroon’. 2. attrib. or as adj. quadroon ball; quadroon black, the offspring of a pure Negro and a quadroon (Syd. Soc. Lex. 1897). • • • • • 1748 Earthquake Peru iii. 240 Quatron Indians, born of Whites and Mestizos. 1748 Earthquake Peru iii. 240 Quatron Negroes, born of Whites and Mulattos. 1796 Stedman Surinam I. vi. 126 A young and beautiful Quadroon girl. 1796 Stedman Surinam II. xviii. 56 A female quaderoon slave. 1805 J. F. Watson in Amer. Pioneer (1843) II. 236 T hese colored women have . . . their weekly balls, (called quartroon balls) at which none but white gentlemen attend. 1849 Macaulay Hist. Eng. I. i. 14 A marriage between a white planter and a quadroon girl. 1880 G. W. Cable Grandissimes iii. 19, I saw the same old man, at a quadroon ball a few years ago. 1893 F. C. Selous Trav. S.E. Africa 60 A pretty . . . mulatto, or rather quadroon girl. 1948 Chicago Tribune (Grafic Mag.) 8 Feb. 18/ 3 Most notorious of the carnival affairs, was the Quadroon ball, given by the young men of the town for their mistresses and friends. • • • • O ctoroon octoroon o( hook) ktoru .n. [A non-etymological formation from L. octo eight, after quadroon (in which the suffix is -oon).] A person having one-eighth Negro blood; the offspring of a quadroon and a white; sometimes used of other mixed races. 216 A Miscegenation Vocabulary • 1861 D. Boucicault (title) T he Octoroon. • 1862 J. E. Cairnes Revol. Amer. 17 T he mulattoes, quadroons and octoroons . . . who now form so large a proportion of the whole enslaved population of the South. • 1864 Webster, Octaroon, see Octoroon. • 1891 Times 8 Jan. 9/ 3 T he mulatto, the quadroon, and the octoroon are chiefly products of the slavery period. Hybrid hybrid h e i.brid, hi;brid, , sb. and a. Also 7 hi-, hybride. [f. L. hybrida, more correctly hibrida (ibrida), offspring of a tame sow and wild boar; hence, of human parents of different races, half-breed. Cf. Fr. hybride (1798 in Hatz.-Darm.). A few examples of this word occur early in 17th c.; but it was scarcely in use till the 19th. T he only member of the group given by Johnson is hybridous a.; Ash and T odd have also hybrid adj., to which Webster 1828 adds hybrid sb. As to the ultimate etym. of L. hybrida see Prof. Minton Warren in Amer. Jrnl Philol. V. No. 4.] A. sb. 1. T he offspring of two animals or plants of different species, or (less strictly) varieties; a half-breed, cross-breed, or mongrel. reciprocal hybrids, hybrids produced from the same two species A and B, where in the one case A is male and B female, in the other B is male and A female, e.g. the mule and the hinny. a. of animals. (In 17th c. only as in original L.) • 1601 Holland Pliny II. 231 T here is no creature ingenders so soon with wild of the kind, as doth swine: and verily such hogs in old time they called Hybrides, as a man would say, halfe wild. • 1623 Cockeram, Hibride, a Hog ingendred betweene a wilde Boare and a tame Sow. • 1828 Webster, Hybrid, a mongrel or mule; an animal or plant, produced from the mixture of two species. • 1851 D. Wilson Preh. Ann. (1863) II. iv. ii. 232 Grotesque hybrids, half-bird, half-beast. • 1859 Darwin Orig. Spec. i. 26 T he hybrids or mongrels from between all the breeds of the pigeon are perfectly fertile. • 1862 Huxley Lect. Wrkg. Men 112 T here is a great difference between ‘Mongrels’ which are crosses between distinct races and ‘hybrids’ which are crosses between distinct species. b. of human beings. • 1630 B. Jonson N ew Inn ii. ii, She’s a wild Irish born, sir, and a hybride. • 1861 J. Crawfurd in Trans. Ethnol. Soc. (N.S.) I. 357 At the best we [English] are but hybrids, yet, probably, not the worse for that. A Miscegenation Vocabulary 217 • 1878 Bosw. Smith Carthage 434 Negroes from the Soudan, not such sickly . . . hybrids as you see in Oxford Street . . . but real down-right Negroes halfnaked, black as ebony. c. of plants. • 1788 J. Lee Introd. Bot. (ed. 4) Gloss., Hybrida, a Bastard, a monstrous Production of two Plants of different Species. • 1828 [see a]. • 1845 Lindley Sch. Bot. x. (1858) 167 No hybrids but such as are of a woody perennial character can be perpetuated with certainty. • 1846 J. Baxter Libr. Pract. Agric. (ed. 4) II. 358 Swedes are generally sown first. Hybrids . . . are usually sown next, and white turnips the last. • 1867 Darwin in Life & Lett; (1887) III. 306 T he common Oxlip found everywhere . . . in England, is certainly a hybrid between the primrose and cowslip. 2. transf. and fig. a. Anything derived from heterogeneous sources, or composed of different or incongruous elements; in Philol. a composite word formed of elements belonging to different languages. • 1850 H. Rogers Ess. II.iv.213 A free resort to grotesque compounds . . . favours the multiplication of yet more grotesque hybrids. • 1860 Darwin in Life & Lett. (1887) II. 338, I will tell you what you are, a hybrid, a complex cross of lawyer, poet, naturalist, and theologian! • 1874 Lisle Carr Jud. Gwynne II. vii. 163 A remarkable hybrid between a frank . . . bumpkin, and a used up exquisite. • 1879 Morris Eng. Accid. 39 Sometimes we find English and Romance elements compounded. T hese are termed Hybrids. • 1895 F. Hall Two Trifles 28 T he ancient Romans would not have endured scientistes or scientista, as a new type of hybrid. B. adj. 1. a. Produced by the inter-breeding of two different species or varieties of animals or plants; mongrel, cross-bred, half-bred. • 1775 Ash, Hybrid, begotten between animals of different species, produced from plants of different kinds. • 1789 E. Darwin Bot. Gard. 149 note, Many hybrid plants described. • 1823 J. Badcock Dom. Amusem. 47 T hese hybrid, or mule productions. • 1857 Darwin in Life & Lett; (1887) II. 96, I think there is rather better evidence on the sterility of hybrid animals than you seem to admit. • 1865 Palgrave Arabia II. 211 T he town inhabitants . . . are at present a very hybrid race, yet fused into a general . . . type. So [obsolete sense] 'hybridal, 218 A Miscegenation Vocabulary [obsolete sense] 'hybridan adjs. hybrid a. • 1623 Cockeram, Hybridan, whose parents are of diuers and sundry Nations. • 1801 T . Jefferson Writ. (ed. Ford) VIII. 16, I am persuaded the squash . . . is a hybridal plant. Inter4. Prefixed to adjs. (originally, and most frequently, of Latin origin), in prepositional relation to the sb. implied (as inter-acinous, ‘that is inter acinos, between the acini’: cf. anti- 3, infra- 1), or sometimes to a phrase consisting of the adj. a sb. (as inter-accessory ‘between accessory processes’). c. Denoting ‘Subsisting, carried on, taking place, or forming a communication, between . . . ’; hence, sometimes, ‘Belonging in common to, or composed of elements derived from, different things (of the kind indicated by the second element)’: as in Inter-racial • 1888 Scot. Leader 20 Aug. 5 *Interracial conflict in Louisiana. T wenty niggers slain. • 1892 Stevenson & L; Osbourne Wrecker viii. 123 Chinatown . . . drew and held me; I could never have enough of its ambiguous, interracial atmosphere. • 1905 Athenæum 30 Sept. 430/ 1 Inter-racial cordiality. • 1953 E. H. Brookes S. Afr. in Changing World v. 105 T hus the services of Americans to South Africa in the interracial field are spanned across a century. • 1960 Spectator 22 July 128 T here is a large, brand-new ‘inter-racial’ hotel. • 1968 Blues Unlimited Dec. 12 T he local interracial Dirty Blues Band. • 1972 Publishers Weekly 7 Feb. 37 (Advt.), Grace Halsell . . . describes what happens to interracial couples when they are joined in a love affair or marriage. • 1964 Punch 26 Aug. 290/ 1 Anger . . . fomented internally and directed *interracially. • 1972 Publishers Weekly 14 Aug. 40/ 2 He hustled a basketball scholarship, lost it for dating interracially. • 1931 Amer. Speech VII. 78 A writer in the Congregationalist says ‘*Interracialism, like love, service, and brotherhood, is a splendid word which has been cheapened by overuse.’ How many acquaintances have you whose diction suffers from over-use of the word interracialism? Multi-racial m ultiracial, a. Of, pertaining to, or comprising several races, peoples, or ethnic groups; characterized by the coexistence or co-operation of individual members of such groups on amicable and equal terms. Also fig. So m ulti-'racially adv. The Miscegenation Issue in the Election of 1864 219 • 1923 Overseas Sept. 45 T he interests of modern civilisation and, I think, Christian ethics, are better expressed in large, bi-racial or multi-racial States . . . where racialism is accounted a public curse rather than a civic virtue. • 1933 E. B. Reuter in E. S. Bogardus Social Probl. & Social Processes 96 T he type of accommodation made is of course an individual matter, but the forms that it takes are . . . those familiar in other bi-racial or multi-racial political areas. • 1947 Forum (Johannesburg) X. i. 25/ 1 We, as a multi-racial society, have had our differences, while sharp antagonisms unfortunately exist today. • 1957 L. F. R. Williams State of Israel 209 T he unifying influence which this hostility is exerting upon Israel’s multiracial population. • 1957 Economist 19 Oct. 204/ 2 He triumphantly created the first multiracial government in Africa at the height of Mau Mau. • 1958 Times Lit. Suppl. 10 Jan. 21/ 2 One feels the pleasant relief of a man living a multi-racial life away from the colour bar. • 1959 N ew Statesman 28 Feb. 300/ 1 But it is his attack on the multi-racial clothing industry—involving the dismissal and replacement of 35,000 nonwhites—that has frightened the coloured people especially. • 1963 Economist 30 Nov. 887/ 3 Such a multi-racially-run world. • 1966 Listener 6 Oct. 499/ 3 Closer contact between . . . the university worker and the industrial scientist, to make a truly ‘multi-racial’ commonwealth of scholarship. • 1972 T . Lilley K Section ix. 40 T he Dock Labourers’ Union was one of the biggest. . . . Multi-racial, it owed allegiance only to itself. T he Miscegenation Issue in the Election of 1864* SID N EY KAPL AN ‘‘Early in 1943,’’ wrote Helen Fuller in a recent issue of the N ew Republic, ‘‘Governor Sam Jones of Louisiana and Frank Dixon of Alabama invited the Conference of Southern Governors to join them in the formation of a new Southern Democratic Party, dedicated to ‘State’s Rights and White Supremacy.’ ’’ T he plan failed—but was not abandoned. T he day after Roosevelt was elected to his fourth term, one Charles Wallace Collins, a constitutional lawyer practicing in Washington, D.C., retired from active practice and ‘‘settled down in his Washington Press Building office to write a book stating the case for a return to the rule of the South by a small minority of well-to-do whites, qualified by ‘superior birth and intelligence’ to decide’’ what was best for everyone. In December 1947, ‘‘just as the more foresighted of the Southern Republocrats were beginning to think about what kind of ‘revolt’ they should plan for 1948,’’ his book Whither Solid South?, was published by the obscure Pelican Press of New Orleans. T his * From Sidney Kaplan, ‘‘T he Miscegenation Issue in the Election of 1864.’’ Journal of N egro History 34.3 (July 1949): 274–343. 220 Kaplan ‘‘second-rate book’’ was intended by its ‘‘unknown author’’ to become ‘‘the ‘Mein Kampf’ of a new movement.’’ Collins, to be sure, fancied himself ‘‘the John C. Calhoun of a new Secession,’’ and in his book dwelt ‘‘at length on the historical and ethnic bases of white supremacy, the illegality of the Fourteenth Amendment, the moral and religious case for continuing segregation,’’ winding up with a proposal for ‘‘a forty-ninth state in Africa.’’ What is of interest here is the technique suggested for accomplishing these things. For, according to Collins, it was entirely within the realm of possibility in 1948 for the conservatives within the Republican and Democratic Parties to combine harmoniously to form what would be the strongest party in the country ‘‘provided the issue of Negro equality was left to the sponsorship of a new Liberal Party.’’1 T his was the line the late, unlamented States Rights party tried to follow. ‘‘T he convention ended with a burst of shouts, cheers and rebel yells, as well as countless parades on the convention floor with a portrait of Gen. Robert E. Lee held high’’—thus the N ew Y ork Times of July 18, 1948, described the demonstrations at the Birmingham convention of the Dixiecrats, which followed numerous speeches denouncing T ruman and his civil rights program as ‘‘threats to make Southerners into a mongrel, inferior race by forced intermingling with Negroes.’’ It was, of course, a hoary tune. Alexander Stephens and Clement Vallandigham had played it earlier and better. Yet the issue—a sign of our times—cannot be thrust aside as too inane for gentle people to discuss. Collins and his cronies are no doubt even now examining the mistakes of their campaign. T he issue will crop up again and again, and will have to be met with forthrightness and understanding. For those who ponder the meaning of the thirty-eight electoral ballots cast for the Dixiecrats in the recent election, an analysis of the ‘‘miscegenation’’ phase of the war-election of 1864 will be of more than specialist or antiquarian interest. T his rather nasty story begins almost a year before the election which returned Lincoln to the White House for a second term. His victory was an impressive one. Yet, as is well known, the summer of 1864 was a time of gloom in the Republican camp; indeed, as November approached, the President recorded his secret and humorless belief that it seemed ‘‘exceedingly probable’’ he would not be re-elected. Why this deep pessimism in August on the eve of victory? T here were reasons enough: Sherman was not yet in Atlanta and Fremont’s hat was still in the presidential ring—while dissension ruled within cabinet and party. More intangible yet no less real a source of irritation was the unbridled arrogance of the Copperhead publicists, to whom the Emancipation Proclamation had providentially furnished ‘‘a real issue of principle.’’ T he war, they noisomely argued, had been declared to save the Union; now it had been transformed by Lincoln and the charlatans in power into a ‘‘nigger crusade’’—compulsory intermarriage of white and black had finally become the main plank in the Republican 1. ‘‘T he New Confederacy,’’ N ew Republic (Nov. 1, 1948), 10–14. The Miscegenation Issue in the Election of 1864 221 platform! ‘‘May the blessings of Emancipation extend throughout our unhappy lands,’’ ran a ‘‘Black Republican Prayer’’ distributed by the Democrats in 1863, and the illustrious, sweet-scented Sambo nestle in the bosom of every Abolition woman, that she may be quickened by the pure blood of the majestic African, and the Spirit of amalgamation shine forth in all its splendor and glory, that we may become a regenerated nation of half-breeds and mongrels, and the distinction of color be forever consigned to oblivion, and that we may live in bonds of fraternal love, union and equality with the Almighty Nigger, henceforward, now and forever. Amen. From January to November 1864 the Democratic press would tear this ‘‘issue’’ to tatters. But could McClellan win on so frantic an issue? T o Lincoln, thumbing through reports of vast conspiracies afoot and remembering the sickening draft riots of the previous summer, it was not an altogether bogus optimism exuded by the journals of the Democracy.2 In reality the optimism was false and the arrogance born of desperation, for the more knowledgeable politicians and generals of the South had by this time read the handwriting on the wall. Although armies in gray were still powerfully in the field, the most vital front of the war had already shifted to the ‘‘peace’’ press of the North; the keystone of Confederate strategy was now defeat of Lincoln at the polls. T he war must go on, counseled Jefferson Davis, ‘‘until Mr. Lincoln’s time was out,’’ and then the North ‘‘might compromise.’’3 It was precisely at this time—a little before Christmas of 1863—that there appeared for sale on newsstands in New York City a seventy-two-page pamphlet, costing a quarter and bearing the enigmatic title Miscegenation: The Theory of the Blending of the Races, Applied to the American White Man and N egro.4 T his pamphlet, a curious hash of quarter-truths and pseudo-learned oddities, was to give a new word to the language and a refurbished issue to the Democratic Party— although its anonymous author, for good reason perhaps, never came forward to claim his honors. In the welter of leaflets, brochures, cards, tracts and cartoons struck off by all parties during the Civil War, it stands out as centrally significant. Miscegenation is a disorganized piece of work, difficult to summarize briefly.5 With a flourish of scholarship on his very first page the pamphleteer defines the ‘‘new words’’ he finds necessary to coin in order to present his argument. T he first is miscegenation (from the Latin miscere, to mix, and genus, race) with its derivatives, miscegen, miscegenate and miscegenetic; the second—a more precise neologism—is melaleukation (from the Greek melas, black, and leukos, white) with its derivatives, melaleukon and melaleuketic, ‘‘to express the idea of the union of the white and black races.’’6 2. Edward Chase Kirkland, The Peacemakers of 1864 (New York, 1927), 11–12, 28–29; Carl Sandburg, Abraham Lincoln, The War Y ears (New York, 1939), III, 267. 3. George Fort Milton, Abraham Lincoln and the Fifth Column (New York, 1942), 210. 4. New York, 1863; hereinafter referred to as Miscegenation. 5. T he quotations in the summary that follows are taken passim from the pamphlet. 6. T he current expression, amalgamation, was, according to the author, a ‘‘poor word’’ since it properly 222 Kaplan Having disposed of his definitions, the author gets his argument rapidly under way. Science and Christianity have proved beyond doubt ‘‘that all the tribes which inhabit the earth were originally derived from one type.’’ Dr. Draper of New York University, Camper of Groningen, Aristotle, Galen, Dr. Pritchard and ¨ Baron Larrey have established the ‘‘physiological equality of the white and colored races.’’ Furthermore, if ‘‘any fact is well established in history, it is that the miscegenetic or mixed races are much superior, mentally, physically, and morally, to those pure or unmixed.’’ Don Felix De Azara, Pallas, Moodie, Laurence, Dr. Hancock, Dallas and Walker have confirmed this fact. T he English are great because they are composite; the French—who invented divorce—were originally a blend; they intermarried and decayed; thus the two most brilliant writers France can boast of are ‘‘the melaleukon, Dumas, and his son, a quadroon.’’ T he peoples of Sicily and Naples have inbred, and are therefore ‘‘probably the lowest people, except the Irish, in the scale of civilization in Europe . . . brutal, ignorant and barbarous,’’ while the ‘‘most promising nation in Europe is the Russian, and its future will be glorious, only because its people represents a greater variety of race than any other in Europe.’’ American vitality comes ‘‘not from its Anglo-Saxon progenitors, but from all the different nationalities’’ of the melting-pot. ‘‘All that is needed to make us the finest race on earth is to engraft upon our stock the negro element; the blood of the negro is the most precious because it is the most unlike any other that enters into the composition of our national life.’’ T he truth is that ‘‘no race can long endure without commingling of its blood with that of other races.’’ Human progress itself depends on miscegenation and ‘‘Providence has kindly placed on the American soil . . . four millions of colored referred to the ‘‘union of metals with quick-silver, and was, in fact, only borrowed for an emergency, and should now be returned to its proper signification.’’ Said the London Morning Herald of November 1, 1864: ‘‘Whatever good or evil the authors of ‘Miscegenation’ may have done in a political way, they have achieved a sort of reflected fame on the coining of two or three new words— at least one of which is destined to be incorporated into the language. Speakers and writers of English will gladly accept the word ‘Miscegenation’ in the place of the word amalgamation. . . .’’ A Dictionary of American English makes a curious typographic error in one of the historical citations attached to its definition of miscegenation. T he citation—an excerpt from M. Schele De Vere’s Americanisms (1872), 288–289—is printed in the DAE as follows: ‘‘I was one . . . who first publicly used the illshapen word miscegenation, and openly dared to advocate the expediency of favoring, by every agency of State and Church, the mingling of the black and white races.’’ Can this mean that De Vere (Professor of Modern Languages at the University of Virginia in 1872) was a miscegenationist?—a startling thought, since a reading of his book reveals him as an unreconciled champion of the Confederacy. T he matter is clarified by an examination of De Vere’s text, where, following a partisan definition of scalawags as the ‘‘evidently dishonest among the Southerners, who went over to the dominant party, and unblushingly lived on their conquered friends and neighbors,’’ the citation in question appears as follows: ‘‘It was one of this class, rather than the eloquent advocate of Women’s Rights [Wendell Phillips] often charged with the crime, who first publicly used the illshapen word miscegenation, and openly dared to advocate the expediency of favoring, by every agency of State and Church, the mingling of the black and white races.’’ De Vere, of course, was wrong. Miscegenation originated in the pamphlet of that title in 1863, as is recognized by the N ew English Dictionary; its brother word, melaleukation, did not ‘‘take’’ from the start. The Miscegenation Issue in the Election of 1864 223 people’’ for that purpose. It will be ‘‘our noble prerogative to set the example of this rich blending of blood.’’ It is idle to maintain that this present war is not a war for the negro . . . it is a war, if you please, of amalgamation . . . a war looking, as its final fruit, to the blending of the white and black. . . . Let the war go on . . . Until church, and state, and society recognize not only the propriety but the necessity of the fusion of the white and black—in short, until the great truth shall be declared in our public documents and announced in the messages of our Presidents, that it is desirable the white man should marry the black woman and the white woman the black man—that the race should become melaleuketic before it becomes miscegenetic. T he next step is to open California to the swarming millions of eastern Asia. T he patience and skill of the Japanese and Chinese in the mechanic arts must be blended into ‘‘the composite race which will hereafter rule this continent.’’ T he Indian has shown—and the physiologists have affirmed—that copper is the permanent American skin-color; indeed, the ‘‘white race which settled New England will be unable to maintain its vitality as a blonde people.’’ T he proof is that tuberculosis in ‘‘our Eastern States is mainly confined to the yellow-haired and thin-blooded blondes.’’ Ultimately, black will absorb white; it is a truth of nature. T he conquest of Britain by Rome illustrates the fact that all the ‘‘noted ancient and modern wars of Europe may be traced to the yearning of the brunette and blonde to mingle.’’ Americans must become ‘‘a yellow-skinned, black-haired people—in fine . . . miscegens.’’ How solve the mystery of the Pyramids? What answer give to the question of the Sphynx? It is the ‘‘principle of Miscegenation in ancient Egypt’’; civilization, science and art are the creations of ‘‘the miscegenetic mind developed upon the banks of the Nile, by Asiatics and Africans.’’ T he Jews themselves ‘‘were partly of Abyssinian or negro origin.’’ T he conclusion is clear: ‘‘Let us then embrace our black brother’’ in America. Perfect religion and perfect mankind will be the results, for ‘‘the ideal or type man of the future will blend in himself all that is passionate and emotional in the darker races, all that is imaginative and spiritual in the Asiatic races, and all that is intellectual and perceptive in the white races.’’ He will be ‘‘brown, with reddish cheeks, curly and waving hair, dark eyes, and a fullness and suppleness of form not now dreamed of by any individual people.’’ Adam and Christ were type-men, or miscegens, red or yellow. Furthermore, the mutual love of black and white is based on the natural law of the attraction of opposites. For example, the ‘‘sympathy Mr. Greeley feels for the negro is the love which the blonde bears for the black . . . stronger than the love they bear to women.’’ T he Abolitionist leaders furnish additional examples: his complexion ‘‘reddish and sanguine,’’ Wendell Phillips is one of the ‘‘sharpest possible contrasts to the pure negro.’’ T heodore T ilton, ‘‘the eloquent young editor of the Independent, who has already achieved immortality by advocating enthusiastically the doctrine of miscegenation, is a very pure specimen of the blonde.’’ T hat black loves blonde is shown also by the number of ‘‘rape cases in 224 Kaplan the courts and by the experience of Southern plantations.’’ T he only remedy is ‘‘legitimate melaleuketic marriage.’’ Give nature a free course and men and women, ‘‘whether anti-slavery or pro-slavery, conservative or radical, democratic or republican, will marry the most perfect specimens of the colored race.’’ T his natural passion is ‘‘the secret of the strange infatuation of the Southern woman with the hideous barbarism of slavery. Freedom, she knows, would separate her forever from the colored man. . . . It is idle for Southern woman to deny it; she loves the black man, and the raiment she clothes herself with is to please him.’’ All this is only preparation. For it is with the specific relationship of the Irish working-people and the Negro—the New York draft riots of the previous summer were fresh in the memory of the country—that the pamphleteer is especially concerned. ‘‘Notwithstanding the apparent antagonism which exists between the Irish and negroes on this continent’’ there are the strongest reasons for believing that the first movement towards a melaleuketic union will take place between these two races. Indeed, in very many instances it has already occurred. Wherever there is a poor community of Irish in the North they naturally herd with the poor negroes . . . connubial relations are formed between the black men and white Irish women . . . pleasant to both parties, and were it not for the unhappy prejudice which exists, such unions would be very much more frequent. T he white Irishwoman loves the black man, and in the old country . . . the negro is sure of the handsomest among the poor white females. . . . T he fusion, whenever it takes place, will be of infinite service to the Irish. T hey are a more brutal race and lower in civilization than the negro . . . coarse-grained, revengeful, unintellectual . . . below the level of the most degraded negro. T ake an equal number of negroes and Irish from among the lowest communities of the city of New York, and the former will be found far superior to the latter in cleanliness, education, moral feelings, beauty of form and feature, and natural sense. T he ‘‘prognathous skull, the projecting mouth, the flat and open nostril’’ are characteristic of the ‘‘inhabitants of Sligo and Mayo.’’ With education ‘‘and an intermingling with the superior black, the Irish may be lifted up to something like the dignity of their ancestors, the Milesians.’’ T here is only one correct course: the Irish should put aside prejudice toward their ‘‘dark-skinned fellowlaborers and friends and proclaim intermarriage with the Negro as a solution to their problem.’’ Do the Irish object to this prognosis? T hey ought not. Observe the noblemen produced by nature in the Southern aristocracy. Yet the ‘‘truth may as well be understood, that the superiority of the slaveholding classes of the South arises from their intimate communication, from birth to death, with the colored race.’’ It is notorious that, ‘‘for three generations back, the wealthy, educated, governing class of the South have mingled their blood with the enslaved race.’’ T he ‘‘emotional power, fervid oratory and intensity which distinguishes all thoroughbred slaveholders is due to their intimate association with the most charming and intelligent of their slave girls.’’ In fact, ‘‘legal melaleukation will be first openly adopted in the slave States.’’ T he large cities of the South, New Orleans especially, even now swarm with mulattoes, quadroons and octoroons, and the ‘‘unions The Miscegenation Issue in the Election of 1864 225 producing these mixtures will be continued under the sanctions of public opinion, law, and religion.’’ His preamble completed, the pamphleteer is now ready for his main point. What is the meaning, he asks, of all these ‘‘scientific’’ and ‘‘historical’’ data for 1864, the fateful year in which the North must choose a new president? Only this—emancipation means amalgamation; the party of Abolition is ‘‘the party of miscegenation.’’ T rue, the ‘‘people do not yet understand’’ the point and the ‘‘party as a whole’’ will not admit it. But there is still hope that opinion will change, for the ‘‘leaders of Progress’’—among them Phillips and T ilton—‘‘urge miscegenetic reform’’ and the ‘‘people are ripe to receive the truth.’’ What must be recognized is that the Republican Party ‘‘will not perform its whole mission till it throws aloft the standard of Miscegenation.’’ Yet examine the platform of the Chicago Convention—how meager it is on this vital subject. Nowhere does it acknowledge the fact that ‘‘miscegenation reform should enter into the approaching presidential contest.’’ Is it, however, too late to add the miscegenation plank to the platform? Not at all, maintains the pamphleteer in a grand finale: let Abraham Lincoln candidly proclaim that ‘‘the solution of the negro problem will not have been reached in this country until public opinion sanctions a union of the two races . . . that in the millenial future, the most perfect and highest type of manhood will not be white or black but brown, or colored, and that whoever helps to unite the various races of man, helps to make the human family the sooner realize its great destiny.’’ And although the Democrats attempt ‘‘to divert discussion to senseless side issues, such as peace, free speech, and personal and constitutional rights,’’ let the motto of ‘‘the great progressive party of this country be Freedom, Political and Social Equality; Universal Brotherhood.’’ Excerpts from ‘‘amalgamationist’’ speeches delivered by T heodore T ilton and Wendell Phillips in May and July of 1863, a few lines from a book review of Wilson’s Pre-historic Man, a selection from an article in the Independent on the ‘‘intermingling of Colors and Sexes at Oberlin University,’’ and a quotation from Harriet Beecher Stowe’s novel Dred—a description of Harry and Lisette under the title of ‘‘Pen-Portrait of a Miscegenetic Woman and Man’’—bring the pamphlet to a close. So much for the pamphlet itself. T he author, apparently an impassioned—even learned—Abolitionist, preferred to remain anonymous. Yet he was proud of his work. So, on Christmas Day, 1863, he mailed out complimentary copies of his little tract to a number of prominent anti-slavery leaders throughout the country. T ucked into each copy was a warm and friendly letter which, after noting that the doctrine of miscegenation might be ‘‘in advance of the times,’’ asked the distinguished recipient for an opinion of its merits. T here was nothing unusual in the practice; so Emerson had discovered Whitman. Replies were to be addressed to the ‘‘Author of ‘Miscegenation,’ ’’ in care of his Nassau Street publishers. Now the curious thing about this ostensibly Abolitionist tract was that it was not written by an Abolitionist at all. As a matter of fact it was conceived by two clever journalists in the offices of Manton Marble’s violently anti-Abolitionist New 226 Kaplan York World—a newspaper which, in the words of the historian Rhodes, was ‘‘the ablest and most influential Democratic journal in the country, the organ of the high-toned Democrats of New York City and State.’’7 David Goodman Croly, managing editor of this quasi-Copperhead sheet, and his young friend, George Wakeman, a reporter on its staff, were the joint, forever unconfessed, authors of the pamphlet, Miscegenation. Croly himself footed the printing bill.8 Of George Wakeman’s life or opinions little is known. He had come from Connecticut to New York in 1858 to work on the Ledger and had contributed to the Galaxy, Appleton’s Journal and other periodicals while his steady job was on the World. He was a lad of twenty-two, ‘‘a clever young journalist’’ just ‘‘discovered’’ by Croly when he collaborated on the pamphlet.9 T here is a bit more to be discovered about David Goodman Croly. A dozen years older than Wakeman, he had come from Ireland to New York as a youngster, had served as apprentice to a Manhattan silversmith, reporter on the New York Evening Post when Bryant was editor, and head of the city intelligence department of the Herald under Frederick Hudson. A year after his marriage to Jane Cunningham, one of the country’s pioneer female journalists, he had travelled west to Illinois. In the town of Rockford, the Crolys had purchased the Democratic Standard, a weekly newspaper then owned by a relative of Mrs. Croly’s, which re-blossomed under their editorship as the Rockford Daily N ews, ‘‘Neutral in Politics—Independent in Everything.’’ When the editor of the Register, a rival Republican newspaper, had charged that the N ews’s ‘‘political stripe’’ was proslavery Democrat, Croly had denied it. ‘‘So Mr. Douglas and the whole proslavery north,’’ the Register had commented, ‘‘call it a mis-statement when they are termed pro-slavery democrats. But by their fruits are they known.’’ T he N ews failed, although Rocklanders offered to refinance it, and Croly returned to New York to become city editor of the World just before the war. On its staff at this time were James K. Spalding, Richard Grant White, Ivory Chamberlain and Manton Marble. When the World went bankrupt in 1862, Marble, backed reportedly by August Belmont—took it over as a Democratic organ and Croly became its managing editor.10 7. James Ford Rhodes, History of the United States (New York, 1906), IV, 471. In its editorial box, the World described itself as ‘‘a sound Democratic newspaper’’ with 100,000 subscribers and half a million readers. 8. The Dictionary of American Biography, Sabin’s Dictionary and the Library of Congress catalogue err in listing one E. C. Howell as a third author. Howell (whose correct initials are S. C.) was city editor of the World while Croly was managing editor but probably took no part in writing the pamphlet. (Real Estate Record & Builders Guide, XLIII [May 4, 1889], 613–614). ‘‘T he little brochure was the joint work of Mr. D. G. Croly, my husband, and a very clever young journalist, Mr. George Wakeman,’’ stated Mrs. David Goodman Croly in 1900. ‘‘No other person than the two mentioned had anything at all to do with the production.’’ (MS letter of Mrs. Croly, Dec. 15, 1900, in Boston Athenaeum). 9. Dictionary of American Biography (Boston, 1872); Real Estate Record & Builders Guide, XLIII, 613–614. 10. Real Estate Record & Builders Guide, XLIII, 613–614. Dictionary of American Biography; M. James Bolquerin, An Investigation of the Contributions of David, Jane, and Herbert Croly to American Life– The Miscegenation Issue in the Election of 1864 227 Were Wakeman and Croly scalawags among Copperheads, fifth-columnists among the Butternuts? T he history of Miscegenation will perhaps clarify the motives of its authors. On Christmas Day Croly and Wakeman had mailed out Miscegenation to sundry prominent Abolitionists. By mid-January half-a-dozen replies were in their hands—from Lucretia Mott, Dr. James McCune Smith, the Grimke sisters, Par´ ker Pillsbury and Albert Brisbane. T he opinions of the Abolitionists were all rendered in good faith; admiration for the courage of the pamphleteers runs through their letters. But it is an admiration tempered with cautious enthusiasm both for the substance of the pamphlet and for the timeliness of its publication. Was it perhaps a harebrained fellow they were dealing with? Were one’s most vociferous friends sometimes one’s most confounded enemies? From Lucretia Mott, the Quaker leader of the American Anti-Slavery Society, came the most cautious reply of all. She had submitted the pamphlet to her ‘‘antislavery friends’’; and while they were not ‘‘sufficiently familiar with physiological facts and theories’’ to render final judgment, they felt that the author’s conclusions were scientifically untenable. Most ‘‘questionable’’ was the opinion that the ‘‘distinguished advocates’’ of the slave had been drawn to their task by ‘‘the natural love of opposites.’’ As for the idea of putting a miscegenation plank into the antislavery platform, while it was true that the Massachusetts Anti-Slavery Society had fought to repeal the evil law making inter-racial marriage a crime, the abolitionists had ‘‘never thought it expedient to advocate such unions’’ and had only sought ‘‘to remove all civil and social disabilities from this prescribed class, leaving nature and human affections to take care of themselves.’’ Nevertheless, although it was ‘‘not yet deemed expedient by the anti-slavery reformers to agitate the matrimonial question,’’ they continued to circulate T heodore T ilton’s discourse on the Negro. Miscegenation, she concluded noncommitally, would ‘‘doubtless find readers.’’11 T he replies of the Grimke sisters of South Carolina were of the same pattern: ´ joy in the essential liberality of the doctrine, disagreement with some of the flamboyant reasoning, grave doubt concerning the expediency of making miscegenation an issue in Abolitionist politics. Sarah Grimke felt that the author had spoken ´ ‘‘extravagantly’’ in stating ‘‘that the first heart experience of nearly every Southern maiden is associated with the sad dream of some bondman lover.’’ T hat such things had happened she had no doubt; but she knew of only one instance where the passion was consummated and ‘‘the lady died at the birth of her child, without revealing the name of her lover.’’ Since the event ‘‘excited great horror and indignation,’’ she curiously reasoned, ‘‘it could not be common.’’ Since also ‘‘the immense distance between a slave and his young mistress would render such things very rare,’’ the statement required ‘‘great modification.’’ Angelina Grimke ´ (Mrs. Weld) had found the pamphlet ‘‘interesting and instructive.’’ She and her With Emphasis on the Influence of the Father on the Son, unpublished master’s thesis (School of Journalism, University of Missouri, July 1948), 16, 17, 26, 36; Sandburg, op. cit., II, 581. 11. New York World (Weekly Edition), November 24, 1864. 228 Kaplan sister were ‘‘wholly at one’’ with the author—‘‘We have tried the caste system long enough to learn . . . that our safety in future is equality.’’ Would it aid the cause, however, to publish the pamphlet? We confess ourselves doubtful on this point, because we fear it may retard that work of justice which has been begun by the nation toward the negro, by warning it or foretelling the ultimate consequence to us as a nationality. T here is a laudable desire now to arm the negro, and efforts are being made to place him on an equal footing with white men in the army. T he work of promotion for merit, too, has begun in Robert Small[s] and Caesar Hall. We must not despise the day of small things. . . . Will not the subject of amalgamation, so detestable to many minds, if now so prominently advocated, have a tendency to retard the preparatory work of justice and equality which is so silently, but surely, opening the way for a full recognition of fraternity and miscegenation?12 Dr. James M’Cune Smith, editor of the New York Anglo-African Review, was less cautious. He had read the ‘‘bold brochure with great interest,’’ and unlike Miss Mott, felt that it was marked by ‘‘acuteness, vigor, and learning.’’ Its tenth chapter on ‘‘T he Mistake of All Religions and Systems of Education was worthy of special attention to all who love human kind.’’ Like the Quakeress, however, Dr. Smith saw no ‘‘necessity of inscribing ‘Miscegenation’ on the banner of a political party.’’ His reasons, however, differed from Miss Mott’s: first ‘‘Such parties always crush any moral cause which they embrace’’; second, ‘‘when it is remembered that almost every slave state delegalized marriage between white and blacks, we have some testimony that such marriages are bound to occur where such indecent laws are abolished.’’13 12. Ibid. T he idea of ‘‘miscegenation,’’ wrote Angelina Grimke in this letter, ‘‘was first born into our ´ minds by what was, at that time, a very startling remark of my brother T homas S. Grimke, of ´ Charleston, South Carolina. We then lived in Philadelphia; and in 1834, just previous to his death, he came there to see us. In a conversation with him on the anti-slavery excitement, then in its infancy, he remarked, although he favored the Colonization society, it was only as a temporary and collateral expedient for the elevation of the colored race, as he well knew that it never could remedy slavery; in fact, said he, ‘Emancipation must come in some form or other and amalgamation will be the salvation of our country.’ ’’ 13. New York World (Weekly Edition), November 24, 1864. Wrote William Wells Brown of Dr. Smith: ‘‘Unable to get justice done him in the educational institutions of his native country, James M’Cune Smith turned his face towards a foreign land. He graduated with distinguished honors at the University of Glasgow, Scotland, where he received his diploma of M.D. For the last twenty-five years he has been a practitioner in the city of New York, where he stands at the head of his profession. . . . He has justly been esteemed among the leading men of his race on the American continent. When the natural ability of the negro was assailed, some years ago, in New York, Dr. Smith came forward as the representative of the black man, and his essays on the comparative anatomy and physiology of the races, read in the discussion, completely indicated the character of the negro, and placed the author among the most logical and scientific writers in the country. T he doctor has contributed many valuable papers to the different journals published by colored men during the last quarter of a century. T he New York dailies have also received aid from him during the same period. History, antiquity, bibliography, translation, criticism, political economy, statistics,—almost every department of knowledge,—receive emblazon from his able, ready, versatile, and unwearied pen’’ (The Black Man: His Antecedents, His Genius, and HisAchievements [Boston, 1863], 205–207). The Miscegenation Issue in the Election of 1864 229 Parker Pillsbury, editor of the N ational Anti-Slavery Standard, writing from New Hampshire, was all enthusiasm with little reservation as to expediency. Although Pillsbury felt that his testimony could render small help to the author, and indeed, ‘‘publicly known, might do . . . more harm than good,’’ the pamphlet had ‘‘cheered and gladdened a winter morning’’ which began ‘‘in cloud and shadow.’’ He had long been confident of the correctness of the author’s philosophy. Indeed he would gladly see the divorce laws ‘‘so modified that new marriages among the American races might even now take place where unfruitful, or unhappy unions (or disunions) are recognized.’’ It may not be time to say this aloud; but it will yet be said, and I think not too soon. All the mysteries of the wonderful apocalypse now unfolding in our country, are not even dreamed of yet; and I hail your work as a true prophesy. ‘‘You are on the right track,’’ concluded Pillsbury; ‘‘pursue it; and the good God speed you.’’ Albert Brisbane, the Utopian socialist, writing from Buffalo, while indulging on his own hook in some abstruse Fourierist eugenics on the fusing of ‘‘extreme,’’ ‘‘central’’ and ‘‘superior’’ races, was skeptical about the validity of the author’s science and logic concerning the ‘‘perfect race.’’ T horough ‘‘treatises on the subject’’ were needed, for men did not ‘‘as yet possess the data necessary to the forming of an opinion as to what races should be crossed, and how or in what proportions, in order to produce good results. . . .’’ His opinion on the subject of ‘‘improving the human race’’—which was ‘‘still in a purely speculative state, or what Auguste Comte would call the Metaphysical phases’’—was ‘‘worth nothing.’’ Indeed, raising the question at the moment was putting the cart before the horse; the effort was premature. Before miscegenation could become an issue, ‘‘the social organization must first be improved. . . . Women must be placed in a position to regulate the work of procreation . . . and Negro labor must be organized.’’ A ‘‘new social order’’ of ‘‘universal association’’ had first to be established upon the earth; then great ‘‘industrial armies, composed of persons from all regions of the earth, would aid the work of a scientific and universal system of miscegenation.’’ Clues would be furnished by the work of Fourier, ‘‘the great sociologist.’’ What would happen then was difficult to say. Perhaps ‘‘sentiment aroused for the black race’’ might continue; it might ‘‘go even as far as has been dreamed of by some of the most radical abolitionists in the past—namely, amalgamation.’’ He looked upon the pamphlet ‘‘as a sign of the times, rather than a solution of a great problem.’’14 He was curious to see how the work would be received. ‘‘If it excites interest,’’ concluded Brisbane skeptically, ‘‘you will have touched an important chord; if not, then it will have proved that the public mind is not ready for the discussion of such subjects.’’15 14. Fourier held that a certain portion of Negro blood was necessary to attain a perfectly blended race. 15. New York World (Weekly Edition), November 24, 1864. 230 Kaplan T hus in good faith the Abolitionists replied to the unknown author, presumably a well-wisher of the Republican left, who, in his zeal for a doctrine that contained more than a modicum of social truth, gave that doctrine so eccentric a twist that it threatened to raise new difficulties in the fight to free the slave.16 Croly and Wakeman did not heed this combined counsel of caution. By the first week in February the brochure had been listed as a pamphlet received for review in T heodore T ilton’s Independent and was being advertised provocatively in the principal Abolitionist papers of the country as available for purchase at newsstands or at the publisher’s office. In the N ational Anti-Slavery Standard, the advertisement appeared side by side with an announcement of the publication of William Wells Brown’s The Black Man.17 T he pamphlet did not have to wait long for notice and from the Abolitionist press it received its first reviews. On January 23, the Anglo-African Review, whose editor, Dr. Smith, had already written the anonymous author a fortnight before, hailed it glowingly. T he word—nay the deed—miscegenation, the same in substance with the word amalgamation, the terror of our abolition friends twenty years ago, and of many of them to-day—miscegenation, which means intermarriage between whites and 16. Wendell Phillips evidently did not reply, although the pamphlet was sent him (as probably to others who did not reply) and he is prominently mentioned and quoted in it. His copy is in the Boston Public Library. Lorenzo Sears, one of his biographers, says briefly: ‘‘About this time a great miscegenation outcry had been raised out of sundry ‘amalgamation-of-the-races’ remarks by Phillips on the 4th of July 1863. . . . T he whole matter was best disposed of by the Boston Journal’s remark, that it knew of no abolitionists who advocated it, but it was widely practiced in that portion of the Union where an abolitionist, if caught, would be hung to the nearest tree.’’ In this speech, delivered at Framingham, Massachusetts, and quoted in part in the appendix to Miscegenation, Phillips had declared: ‘‘Now, I am going to say something that will make The N ew Y ork Herald use its small capitals and notes of admiration (Laughter), and yet, no well-informed man this side of China, but believes it in the very core of his heart. T hat is, ‘amalgamation’— . . . Remember this, the youngest of you: that on the 4th day of July, 1863, you heard a man say, that in the light of all history, in virtue of every page he ever read, he was an amalgamationist to the utmost extent. (Applause). I have no hope for the future . . . but in that sublime mingling of races, which is God’s own method of civilizing and elevating the world.’’ Phillips’ other biographers— Beecher, Russell, Austin, Sears, Martyn, Sherwin—make no mention of his part in the miscegenation controversy. T he great Abolitionist agitator’s practical attitude towards the problem in no way contradicted his impassioned platform utterance. T o J. Miller McKim on February 8, 1858, he wrote: ‘‘A physician has just waited on me and says a merchant living in North Carolina, a patient of his, has fallen in love with a slave-girl—valued at $2,000—he can’t afford to redeem her. Is there any person in Philadelphia whom he can . . . communicate with. . . . You see, I know nothing of the man or case. T he Doctor is a republican, but his correspondent may be honest or wishing to get someone into a scrape. Can you name anyone in Philadelphia who would aid if he proved honest in his effort? Answer immediately.’’ (Oscar Sherwin, Prophet of Liberty: A Biography of Wendell Phillips, unpublished doctoral dissertation [New York University, April 1940], 168.) Others to whom the pamphlet had been sent were Sumner, Seward and Abby Kelly Foster. (London Morning Herald, November 1, 1864.) 17. Independent, January 28, February 4, 1864; N ational Anti-Slavery Standard, January 16, 30, 1864; Liberator, February 5, 1864. The Miscegenation Issue in the Election of 1864 231 blacks—‘‘miscegenation,’’ which means the absolute practical brotherhood or social intermingling of blacks and whites, he would have inscribed on the banner of the Republican Party, and held up as the watchword of the next presidential platform!18 It was too late, in the opinion of the Anglo-African, ‘‘to begin with infant and Sunday Schooling,’’ for, at birth, children had ‘‘the bent of their parents,’’ which perhaps could be slightly altered but not radically changed. T he process of ‘‘education and improvement should begin with the marriage of parties who, instead of strong resemblance, should have contrasts which are complementary each of the other.’’ It was ‘‘disgraceful to our modern civilization,’’ concluded the reviewer, that there existed societies for improving the breed of sheep, horses, and pigs, while the human race was left to grow up ‘‘without scientific culture.’’ A week later the N ational Anti-Slavery Standard minced no words in greeting Miscegenation. Although it felt that no new vocabulary was needed to discuss the subject, the pamphlet itself came ‘‘directly and fearlessly to the advocacy of an idea of which the American people’’ were ‘‘more afraid than any other.’’ T hrough the whole thirty-three years of anti-slavery discussion, no statement has been repeated with greater pertinacity, no accusation has been more effective in stirring up the rancor of editors and the brutality of mobs, than the charge against Abolitionists of advocating ‘‘amalgamation.’’ . . . Now the idea thus charged Abolitionists, individually and collectively, of preference for black people as partners in marriage, is the very idea seriously advocated and urged in the pamphlet. Perhaps, thought the reviewer, the theory of attraction of opposites was ‘‘a true one.’’ At any rate, it received ‘‘strong presumptive confirmation from the constant sexual intermingling’’ of the races in the South. On the question as to whether the Republican Party should embody the theory in its platform, the Standard expressed no opinion. God’s laws would ‘‘assuredly fulfill and vindicate themselves.’’ It was ‘‘in the highest degree improbable’’ that He had placed ‘‘a national repugnance between any two families of His Children.’’ If He has done so, that decree will execute itself, and these two will never seek intimate companionship together. If, on the contrary, He has made no such barrier, no such one is needful or desirable, and every attempt to restrain these parties from exercising their natural choice is in contravention of His will, and is an unjust exercise of power. T he future must decide how far black and white are disposed to seek each other in marriage. T he probability is that there will be progressive intermingling and that the nation will be benefited by it. ‘‘We are sure,’’ declared the Standard, ‘‘that many will agree with us in finding the pamphlet interesting and instructive, and in thanking the unknown author for it.’’19 18. T hese quotations are taken from S. S. Cox’s speech in the House of February 17, 1864 [discussed in full later in this selection—Ed.]. T hey are quotations out of context, excerpted for Cox’s purpose. Because no copies of the Anglo-African Review for 1864 are extant, Cox’s quotations must be relied on. 19. N ational Anti-Slavery Standard, January 30, 1864. T he Standard concurred naively with certain 232 Kaplan So far Croly’s World had scrupulously avoided notice of the pamphlet; nowhere in its columns up to this point is the controversial new word to be found. Meanwhile, the fame of Miscegenation had crossed the Atlantic. On February 5, the New York correspondent of the pro-Southern London Times informed his English readers that a new doctrine had been discovered by ‘‘the advanced spirits’’ of the Republican Party: the Negro was ‘‘in many important respects the superior of the whites,’’ and if the latter did not ‘‘forget their pride of race and blood and colour, and amalgamate with the purer and richer blood of the blacks,’’ they would die out of America. T he first to give tongue to the new doctrine was the Rev. T heodore T ilton, the coadjutor of the Rev. Henry Ward Beecher in the editorship of the Independent, who a few months ago declared in an assemblage composed of women—possibly all of the strong-minded order—that it was good for white women to marry black men, and that the ‘‘passional’’ and ‘‘emotional’’ nature of the blacks was needed to improve the white race.20 Mr. Wendell Phillips has often hinted the same thing. A little tract called Miscegenation had recently been circulated, continued the correspondent to his British readers, in which the whole subject was discussed ‘‘for the study of such Yankee girls as have exhausted the sensational novels.’’ It had been distributed at a meeting addressed by the famous Miss Dickinson, who perhaps was its author, although it was ‘‘highly probable that the author himself’’ was ‘‘one of the lean, gaunt, bloodless Yankees whom he so eloquently describes, and that, failing to find a wife among the strong-minded ladies of whom Miss Anna Dickinson and Mrs. Beecher Stowe’’ were the types, he longed for ‘‘a more congenial partner from the Southern plantations. T he unction of this ‘new Ana- aspects of the pamphlet’s chauvinism: ‘‘It is agreed that the strongest, ablest, most intellectual, most practically effective race in the world is the Anglo-Saxon; the product of a mixture, or rather of many mixtures.’’ 20. In this speech, delivered to the American Anti-Slavery Society at Cooper Institute in New York on May 12, 1863, and quoted in part in the appendix to Miscegenation, T ilton had said: ‘‘T he history of the world’s civilization is written in one word—which many are afraid to speak—and this is Amalgamation. . . . It is not . . . a philosophical statement to say . . . that the negro race is being absorbed by the white. On the contrary, the negro race is receiving and absorbing part of the white. A large fraction of the white race of the South is melting away into the black. . . . I am not advocating the union of whites and blacks. T his is taking place without advocacy. . . . I am often asked, ‘Would you marry a black woman?’ I reply, ‘I have a wife already, and therefore will not.’ I am asked, ‘Do you think that a white man ought to marry a black woman?’ I reply, ‘When a man and woman want to be married it is their business, not mine, nor anybody’s else.’ Is not that plain sense? But to read what some newspapers say of the ‘monstrous doctrine of amalgamation,’ one would think it consisted in stationing a provost-marshal at street corners, to seize first a white man and then a black woman, and to marry them on the spot, against their will, for a testimony to human equality. But I will venture to advance the opinion . . . that a slave-woman’s master, who makes himself the father of her children, is in honor bound to make himself her husband. So far from denouncing the marriage of blacks and whites, I would be glad if the banns of a hundred thousand such marriages could be published next Sunday. . . . But whether in marriage or in shame, the fact grows broader every day, that the whites and the blacks of this country, are coalescing; or to use the more horrible word, amalgamating. In Slavery, this amalgamation proceeds rapidly; in Freedom slowly.’’ The Miscegenation Issue in the Election of 1864 233 charsis Clootz’ might almost make one suspect him of being a mauvais farceur.’’ If this was done ‘‘in the green leaf, what shall be done in the dry?’’21 On February 17, Miscegenation broke into Congress. While the House was arguing the establishment of a Bureau of Freedmen’s Affairs, Samuel Sullivan Cox—Vallandigham’s mouthpiece—rose from his seat to use the pamphlet as a bludgeon against the Republican members.22 T his development was, of course, to be expected; for the pamphlet by this time was notorious public property and bound to come to his attention. Unexpected, however, was the fact that the personal letters of the Abolitionists anent it—the private property of the apparently Abolitionist pamphleteer—had been placed in the hands of the Copperhead member from Ohio. So ‘‘Sunset’’ Cox crowed to the House: T he more philosophical and apostolic of the abolition fraternity have fully decided upon the adoption of this amalgamation platform. I am informed that the doctrines are already indorsed by such lights as Parker Pillsbury, Lucretia Mott, Albert Brisbane, William Wells Brown,23 Dr. McCune Smith (half and halfmiscegen), Angelina Grimke, T heodore Weld and wife and others. Cox, with a certain grisly Copperhead humor, flayed the pamphlet in thorough racist manner, sneering at Greeley, that ‘‘Warwick of Republicanism,’’ and blasting Phillips, whose golden-lipped eloquence could make ‘‘miscegenation as attractive to the ear as it is to the other senses.’’24 Holding the author’s eloquence to be ‘‘better than his science,’’ he advanced his own scientific refutation of the miscegenationist doctrine: ‘‘T he physiologist will tell the Gentleman that the mulatto does not live; he does not recreate his kind; he is a monster. Such hybrid races by a law of Providence scarcely survive beyond one generation.’’ Moreover, the irrepressible conflict was not ‘‘between slavery and freedom, but between black and white; and as De T ocqueville prophesied, the black will perish.’’ On the main point, however—how to make miscegenation a campaign issue— Cox kept his eye. . . . T here is a doctrine now being advertised and urged by the leading lights of the Abolition party, toward which the Republican party will and must advance. . . . T hey used to deny, whenever it was charged, that they favored black citizenship; 21. London Times, February 8, 1864; in Palmer’s Index to the Times, the article is listed as ‘‘the Clootz’s Plan for Improving the White Race.’’ (London, 1887), II, 263–264. 22. Cox was one of the most foully articulate of white chauvinists in Congress. On January 10, five weeks prior to his miscegenation speech, the Washington correspondent of the N ational AntiSlavery Standard wrote of him: ‘‘Mr. Cox, as usual, moved to strike out the appropriation for the Haytian mission, and hung a mean little anti-negro speech upon his motion. . . . Mr. Cox is fond occasionally of ventilating his brutal prejudices.’’ On this occasion, T haddeus Stevens thoroughly chastised him. (N ational Anti-Slavery Standard, January 16, 1864.) 23. T here is no record extant of a reply from William Wells Brown. Apparently Cox was referring to a statement of Brown’s on the subject in another place. 24. ‘‘Has he forgotten his fine-spun theories upon miscegenation and the grand mulatto species which is to result from them?’’ asked the New York Herald the following day in an editorial on a reconstruction speech by Phillips. ‘‘Is he going to retract his former declaration that amalgamation is the only way to save the nation?’’ 234 Kaplan yet now they are favoring free black suffrage in the District of Columbia, and will favor it wherever in the South they need it for their purposes. . . . T he Senate of the United States is discussing African equality in street cars. All these things . . . culminating in this grand plunder scheme of a department of freedmen, ought to convince us that that party is moving steadily forward to perfect social equality of black and white, and can only end in this detestable doctrine of—Miscegenation! Cox spoke at length, but it was by no means all smooth sailing. Kelley of Pennsylvania, Eliot of Massachusetts and Washburne of Illinois heckled and rebutted him effectively. And the Anglo-African Review of February 27, commenting on the tirade, noted that although the country needed patriots, a ‘‘cross’’ between Cox and Vallandigham would fail to produce one ‘‘for the simple and obvious reason that in both the blood’’ ran the other way; but, ‘‘per contra, if we should get up a ‘cross’ between Hon. S. S. Cox and Capt. Robert Small[s],’’ continued the Review, ‘‘the result would be an average miscegen and a superior patriot.’’25 25. Samuel S. Cox, Eight Y ears in Congress, from 1857 to 1865 (New York, 1865), 354. ‘‘Another remarkable phase of this discussion,’’ says Cox in his memoirs, ‘‘was the queries propounded by Robert Dale Owen, Dr. S. G. Howe, and Col. McKaye, Commissioners on the Freedman, as to the capacity and condition of the mulatto, his offspring, and their tendency to bodily and mental decay. T he ‘Anglo-African’ of the 20th of February, 1864, retorted very pungently upon these querists, and informed them that as the two publishers and one editor of ‘T he Anglo-African’ had had born to them in lawful wedlock no less than twenty-nine children, of whom twenty are now living—some married and budding—they could not help regarding the queries as in a measure personal and impertinent.’’ T he Anglo-African Review tolerated no nonsense on this subject. Since the issues of this important journal are not extant for 1864, it is necessary to reconstruct its pages from other sources, frequently hostile to it. Such a source is the anti-Negro N ew Y ork Freeman’s Journal & Catholic Register from whose issue of April 16, 1864 the following editorial is quoted in full: Under the teachings of the Tribune, the colored people are beginning to ‘‘put on airs.’’ In the Anglo-African of this week we find a sharp attack upon Elizur Wright, a Boston Abolitionist, because he presumed to say that the negro has not as much virility as the whites. T he editor goes on to show that the colored race in this country doubles every two years, while it takes thirty years for the whites, even with the aid of emigration, to double their numbers. But hear how this darky editor talks: No friend Wright, you need not disturb yourself about the black man in these United States; he has a good standing color, and an abundance of endurance; just brush some of those knotty cobwebs from your brain and look at him; tall, brawny, well-limbed, sound-brained, as God made him, a man and brother. You sharp nosed, hatch faced, black haired people, aided by science and the ‘‘hub,’’ have vainly tried to crush the manhood out of him, and failed; do give up; you cannot lie him out of his manhood He is a better man, a better citizen than your race ‘‘ever dare to be,’’ under any circumstances, in all climates; if not, why do you cut down his equal chances? Why shut your eyes to facts? Bluff Ben Butler, the other day, started on a forced march of some two or three days. He had two white and two black regiments of infantry. It was in a climate, moreover, favorable to whites. How was it when they arrived there? One half the white soldiers had straggled, exhausted, on the road, every black soldier answered to his name at roll call. Pshaw! Don’t fool any longer. If you want this rebellion wiped out, take three hundred thousand of our blacks; give us Ben Butler, or let us go alone, and in sixty days the South shall be wiped out. The Miscegenation Issue in the Election of 1864 235 For a bankrupt party, however, Cox’s speech was urgently needed political capital.26 Edited and reprinted in Washington, D.C., at the office of The Constitutional Union, a ‘‘Democratic Conservative Union Newspaper,’’ Cox’s speech was to have a wide circulation in the Democratic press of the country. ‘‘. . . No one in Congress,’’ wrote Cox in his memoirs a year later, ‘‘thought of questioning the genuineness and seriousness of the document.’’27 T he statement is not entirely true. ‘‘T he little book upon ‘miscegenation’ has very generally been regarded here as a burlesque, or satire,’’ observed the Washington correspondent of the N ational Anti-Slavery Standard in his dispatch of February 28. ‘‘It is said that Mr. Sumner, upon first glancing over its pages, was inclined to think the writer was in jest. . . . Nobody here advocates amalgamation, though doubtless there are very many who believe that in time the two races will amalgamate. So far the Democrats have gained nothing by the debate on this subject.’’28 From Croly’s World, the fugleman of the Democratic press, the word was still mum—not even a report of Cox’s speech appeared in its columns. On February 18, in a short filler, a jokester observed that it was an error to look on a miscegen T his is decidedly rich. T hese darkies now claim, it seems, to be of a healthier, sounder, brighter race than their New England admirers. . . . Negro equality is no longer the doctrine: it is now negro superiority. What next, we wonder? 26. Miscegenation or Amalgamation. Fate of the Freedman. Speech of Hon. Samuel S. Cox of Ohio delivered in the House of Representatives, February 17, 1864. (Washington, D.C., 1864), 5, 10. T he Washington correspondent of the N ational Anti-Slavery Standard in the issue of February 27 reported some of the heckling in detail: ‘‘T he book on Miscegenation, which has been noticed in the leading papers of the country, came in for an elaborate ‘notice’ from Mr. Cox. . . . Mr. Cox, as a matter of course, found men in the House who would laugh at his coarse wit upon ‘miscegenation,’ but he was compelled to hear the House laugh on the other side of the question. Mr. Washburne of Illinois got the floor as soon as Mr. Cox sat down, and proceeded to refresh the Ohio member with extracts from one of his own books written several years ago. . . . I must quote . . . ‘I desire to show the House what the Gentleman from Ohio has written in regard to the ‘‘African,’’ in a book entitled ‘‘A Buckeye Abroad: or Wanderings in Europe and in the Orient. By S. S. Cox.’’ He is describing St. Peter’s, and says: ‘‘In the meantime seraphic music from the Pope’s select choir ravishes the ear, while the incense titilates the nose. Soon there arises in the chamber of theatrical glitter’’— what?—‘‘a plain unquestioned African!’’ (laughter), ‘‘and he utters the sermon in facile Latinity, with graceful manner. His dark hands gestured harmoniously with the rotund periods, and his swart visage beamed with a high order of intelligence.’’ (laughter) What was he? Let the Gentleman from Ohio answer: ‘‘He was an Abyssinian. What a commentary upon our American prejudices! T he head of the great Catholic Church surrounded by the ripest scholars of the age, listening to the eloquence’’—of whom?—‘‘of the despised negro; and thereby illustrating to the world the common bond of brotherhood which binds the human race’’ (roars of laughter). . . . ‘‘History records that from the time of the revival of letters the influence of the Church of Rome had been generally favorable to science, to civilization, and to good government. Why?’’ . . . Let the Gentleman answer: ‘‘Because her system held then, as it holds now, all distinctions of caste as odious.’’ (great laughter.) T his is the third time that this book has been read upon Mr. Cox by way of reply, but it was never before done quite so well as Mr. Washburne did it.’’ 27. Cox, op. cit., 354. 28. N ational Anti-Slavery Standard, March 5, 1864. Sumner had been one of the abolitionists to whom Croly and Wakeman had sent a copy. (London Morning Herald, November 1, 1864.) 236 Kaplan as a ‘‘new light’’—he was ‘‘Half light at best.’’ But that was all. And meanwhile, in the political press from Copperhead right to Abolitionist left, the battle of words continued to rage on the issue of miscegenation. Egged on by Cox’s diatribe, on February 25 the Independent—‘‘the leading family newspaper of religious cast in the country’’29—gave a long column to a consideration of the pamphlet in which its editors had been so copiously quoted and praised. ‘‘As some of our contemporaries, who make no scruple of misrepresenting us, have challenged us for an opinion on this subject, we give it today, in the absence of a more pressing topic.’’ T he little brochure, carrying ‘‘as a figurehead the new and strange word Miscegenation’’ had ‘‘lately launched into a sudden tempest of criticism.’’ For style, not quite good or bad—‘‘clever, in-elaborate, and ill-considered’’—it had had ‘‘a many-voiced condemnation into fame.’’ On such a topic, John Milton himself would be speared, knived and tomahawked. Its authorship, continued the Independent, was ‘‘a well-kept secret’’; at least it was unknown to the editors. Nor were they convinced that the writer was in earnest. T heir first and remaining impression was that ‘‘the work was meant as a piece of pleasantry—a burlesque upon what are popularly called the extreme and fanatical notions of certain radical men named therein.’’ It was in turn sober, absurd and extravagant; if written in earnest, it was not thorough enough to be satisfactory; if in jest, ‘‘Sydney Smith—or McClellan’s Report’’ was to be preferred. T he Independent was not to be booby-trapped. While its editors candidly agreed with some ideas presented in the pamphlet, they disagreed heartily with much also. T he Irishman was not a ‘‘July rioter by nature’’; he was made so ‘‘by Democracy and grog.’’ Nor was it any part of the duty of anti-slavery men, or anybody else, ‘‘to advise people whom they should marry, or not marry.’’ Marriage was an affair between bride and bridegroom, ‘‘with, perhaps, a mother-inlaw’s advice thrown in.’’ If black and white intermarried, it was ‘‘nobody’s business but their own.’’ Further than this, ‘‘before a white-skinned slave-master becomes the father of a black woman’s child, he ought to be her lawful, wedded husband.’’ T he thesis about the perfect brown man of the millennial future was absurd. T he rebellion itself did not arise from color prejudice, ‘‘for if the slaves were white, instead of black, their masters’’ would have been no less unwilling to give them up. As to the main point—here the Independent was acute—that the next Presidential campaign, as suggested by the pamphleteer, ‘‘turn upon the advocacy of marriage between any two classes of our community—Saxons with Celts, fair faces with dark, Northerners with Southerners, Down-East Yankees with Californians’’—this was so absurd as to furnish another reason for thinking these ‘‘piquant pages’’ were ‘‘a snare to catch some good folk in, for a laugh at them afterward.’’ T he conclusion was clear: ‘‘the next Presidential election, nor any succeeding, should have nothing to do with Miscegenation.’’30 29. Sandburg, op. cit., II, 577. 30. Wrote the Washington correspondent of the N ational Anti-Slavery Standard in the issue of March 5, 1864: ‘‘I think Mr. T ilton’s article in the last Independent expresses the views of most of the The Miscegenation Issue in the Election of 1864 237 On February 27, Cox’s speech was attacked by the Copperheads as not going far enough. Cox had done the heinous thing of paying lip-service to the idea of abolishing slavery. Dr. J. H. Van Evrie, the rabid editor of the N ew Y ork Weekly Day-Book ( Caucasian) would have none of this. Give the Negro freedom and miscegenation would result: ‘‘the mixing of blood follows mixing of ‘freedom’ . . . where numbers approximate and white men are so degraded and wicked as to get down to a level with negrodom. Every man, therefore, opposed to ‘slavery’ is of necessity in favor of amalgamating with negroes.’’ T hus, in opposing slavery, Cox ‘‘necessarily’’ fostered the idea of amalgamation—at least he was ‘‘for forcing it on others, if not liking it exactly for himself.’’ When Cox took umbrage at Van Evrie’s impolitic attack—after all they both stood on the Vallandigham platform— the Day-Book backed water: ‘‘Mr. Cox is about the last man, among the public men of the day, we would do an injustice to, for, with all his errors in respect to putting down ‘rebels,’ etc., we doubt not he really means to be a Democrat.’’31 ‘‘T he question of the crossing of races, or as the newly invented sacramental word says, of miscegenation, agitates the press and some would-be savants in Congress,’’ wrote Count Adam Gurowski, a Washington observer, in his diary a month after Cox’s speech.32 By the middle of March, Greeley was forced to enter the lists. ‘‘We notice a tolerably warm discussion going on in the newspapers and elsewhere,’’ editorialized the N ew Y ork Tribune, ‘‘concerning what used to be called ‘amalgamation,’ and is now more sensibly styled ‘miscegenation’—a word tolerably accurate, although a little too long for popular and daily use.’’ T he mere mention of the word filled ‘‘many minds with an unspeakable wrath,’’ and ‘‘longharbored prejudices’’ obscured the truth; yet it was a question that had to be ‘‘considered well, and decided, not by an appeal to old notions, but by experience.’’ Physiologist, ethnologist, historian, theologian and economist were needed to answer accurately the questions inevitably raised. It was a shame that those intelligent Republicans in Congress upon the subject.’’ T ilton’s article was reprinted in full in this issue of the Standard. 31. N ew Y ork Weekly Day-Book, March 12, 1864. 32. Adam Gurowski, Diary: 1863–’64–’65 (Washington, D.C., 1866), 140–141. Gurowski’s opinion is worthy of note: ‘‘T he worshippers of darkness and of ignorance, as are the worshippers and defenders of slavery all over the world, but principally in America, are in their element when they utter falsehoods and lies, or when in the most approved democratic manner they back their bad faith by the grossest ignorance. But the other side, the so-called defenders of the negro or African, pitch into the contest as empty-headed as their antagonists; and by high-sounding generalities and phraseology try to make up for their thorough want of scientific information. Neither the one nor the other know in the least anything whatever of the scientific researches and discoveries of the last forty years; and thus neither the one nor the other know how far the ancient continent in Europe and Asia was once occupied by the physiological negro; nor do they know where in Asia are still to be found living remains of the primitive negro race. Oh, these lecturers, these leading editors of dailies, weeklies, monthlies, etc! . . . Oh, these empty-headed rhetors and sham scholars and legislators. . . . Science in hand, how easily it could have been shown to those swarthy-haired and black-souled Seymours, Marbles, Saulsburys, etc., that the difference is only in quantity and not quality of the melanine which blacks their eyes, hair, etc., and blacks the whole African! And perhaps, if dissected, their cerebella would be found to have less convolutions than those of the negro.’’ 238 Kaplan who professed ‘‘to be the leaders and informers of the public thought’’ permitted themselves ‘‘blindly to be led by those who are still blinder into a ditch of ipse dixits and noisome assumption.’’ T he prejudice against the Negro—‘‘the result of a cruel and systematic degradation’’—was by no means a novelty. ‘‘All Christians in the middle age supposed that Jews exhaled a bad odor from their bodies, and the marriage of a Jew and Christian at that period would have been far more likely to provoke a mob in any civilized city than the marriage of a white man and a black woman would be now.’’ In spite of religious professions, ‘‘we do not dwell together as brethren’’; in spite of our Bibles, we do not believe that ‘‘God has made all men of one blood.’’ T hat is the simple fact despite ‘‘the whole Copperhead power of wriggle.’’ If a white man pleased to marry a black woman no one had a right to interfere. We do not say such union would be wise, but we do distinctly assert that society has nothing to do with the wisdom of matches, and that we shall have to the end of the chapter a great many foolish ones which laws are powerless to prevent. We do not say that such matches would be moral, but we do declare that they would be infinitely more so than the promiscuous concubinage which has so long shamelessly prevailed upon the Southern plantation. Concluded the Tribune: ‘‘We are not in favor of any law compelling a Copperhead to marry a negress, unless under circumstances which might compel him to marry a white woman or go to prison; but we insist that if the Copperhead or anybody else is anxious to enter into such union it is not for the Legislature to forbid him, or his fellow creatures to pronounce him a violator of nature and of God.’’33 At Greeley’s stand the anti-Lincoln press threw up its hands in horror. ‘‘Pursuing the natural course of radicalism,’’ sneered the N ew Y ork Journal of Commerce, ‘‘the editors of several of the abolitionist sheets have recently been seized with a strong desire for the introduction of amalgamation into social and domestic life of their and other radical families.’’34 ‘‘T he fact is—and the Tribune cannot disguise it,’’ ranted Bennett’s Herald, ‘‘that the radical party wants a war cry. T hey tried free-love and it failed. T hen they tried abolitionism, and it served their purpose for many a long year. But now the war has deprived them of that shiboleth.’’ Disgustedly the Herald cited a news item in the Anglo-African Review concerning ‘‘a colored man, named Joseph H. Card . . . joined in the holy bonds of matrimony to a ‘white lady from London’; almost frantically it described the ‘Practical Progress of Miscegenation in South Carolina.’ ’’35 T o the racist tirade of the Express, the Tribune replied that when ‘‘Richard M. Johnson married a negro, and raised a large family by her, no Democratic stomach was revolted.’’ For the Express, the ‘‘horrible consequences of white and black mixture’’ were 33. N ew Y ork Tribune, March 16, 1864. Greeley’s eccentric position—or lack of position—may be seen in a sentence from this editorial: ‘‘If a man can so far conquer his repugnance to a black woman as to make her the mother of his children, we ask in the name of the divine law and of decency, why he should not marry her.’’ 34. Reprinted in Liberator, April 8, 1864. 35. N ew Y ork Herald, March 26, 1864. The Miscegenation Issue in the Election of 1864 239 fearful—in the North; ‘‘but down in Dixie no such qualms exist; there the breeding of a brawny and salable mulatto boy, or of a saddle-colored girl, for the brothels of New Orleans, is something to brag of.’’ We have among us in this city at this very time the mulatto daughter of BrigadierGen. Huger and the mulatto son of Brigadier-Gen. Withers, both the fathers being now in important commands in the Rebel army—the mothers undoubtedly in slavery or the grave. ‘‘We have also recently had slave children here,’’ concluded the Tribune, ‘‘much whiter than the editors of The Express—fair, blue-eyed children, with bills of sale in their pockets.’’36 T wo days later the Tribune followed up its demand for a scientific approach to the matter of miscegenation with a London report on a lecture by Professor T . J. Huxley. Prof. Huxley . . . read extensive extracts from Dr. James Hunt’s pamphlet, entitled ‘‘On the Negro’s place in Nature.’’ Some paragraphs in the dedication of that pamphlet, taken from the letter of a Confederate lady to the author, were read, and excited great laughter among the eminent gentlemen present . . . in which the lecturer joined. When the great laughter . . . had ceased, Prof. Huxley said that he felt it his duty to protest against such baseless and ridiculous assertions, which might be conceived in the spirit of party, but were certainly not in that of science.37 In the maelstrom of controversy, the N ew Y ork Times occupied an anomalous position. T he Herald, frothing at the mouth, under the title ‘‘T he Beastly Doctrine of Miscegenation and Its High Priests,’’ had charged it with being ‘‘a bright mulatto on the subject of miscegenation.’’ Raymond in turn had accused the Tribune of ‘‘advocating miscegenation’’ and Greeley had indignantly denied it.38 Charges and countercharges filled the columns as March petered out—while the identity of the pamphleteer continued to intrigue the combatants.39 ‘‘Holmes or Wise Greeley have coined the new word,’’ sang one Horace Otis of Watertown, New York, in a hundred-line poem in the Day-Book: Beautiful word, and more beautiful thought! None but the wise have its origin sought; . . . Fill with mulattoes and mongrels the nation, T HIS IS T HE MEANING OF MISCEGENAT ION.40 36. N ew Y ork Daily Tribune, March 17, 1864; N ew Y ork Herald, March 17, 1864. 37. Hunt’s pamphlet, The N egro’s Place in History was published by Van Evrie in the United States. T he N ational Anti-Slavery Standard of March 26, 1864 reprinted an attack on the pamphlet from The Christian Ambassador. 38. Reprinted in N ational Anti-Slavery Standard, March 26, 1864. 39. And still does. Cedric Dover, in his eloquent Know This of Race (London, 1939), 96, is taken in much as some of the Abolitionists were. After a short discussion of this ‘‘anonymous pamphlet issued in 1864,’’ he remarks that its ‘‘unsurpassed wisdom’’ makes him wish he ‘‘knew the author’s name. He deserves the praise of posterity.’’ 40. N ew Y ork Day-Book, April 16, 1864. 240 Kaplan Was it perhaps Wendell Phillips41 or T heodore T ilton who had penned the tract? T he Herald played with the idea that the mysterious author was none other than twenty-year-old Anna Dickinson, who had been fired from her job in the Philadelphia mint three years before for accusing McClellan of treason. Miss Dickinson had since become one of the more popular Abolition orators—her sex, youth and fiery eloquence combining to draw large crowds. In mid-January she had addressed the House of Representatives—Lincoln came down to hear her speech— and had been roundly applauded. A fortnight later she was scheduled to repeat her address at Cooper Institute. ‘‘She was somewhat late in making her appearance on the platform,’’ wrote the New York correspondent of the London Times, retailing Democratic gossip to the British public, ‘‘and to pacify her audience (mostly composed of women),’’ advertisements of Miscegenation ‘‘were handed round for their perusal—a circumstance which suggested to many that the lecturer was either author of the book or peculiarly interested in its sale.’’42 By the middle of March, Petroleum Vesuvius Nasby, Paster at the Church uv the Noo Dispensashun—of whom Lincoln would say, ‘‘For the genius to write like Nasby, I would gladly give up my office’’43—had commented on the miscegenation issue. ‘‘Alluz preech agin the nigger,’’ he counseled a Democratic student of the ministry, ‘‘a youth uv much promise who votid twict for Bookannon. It’s soothin to a ginooine, constooshnel Southern-rites Dimekrat to be constantly told that ther is a race uv men meaner than he is. . . . Preech agin amalgamashen at 41. Phillips was probably a logical guess to some who remembered his yeoman service in behalf of the Irish fight for freedom and his successful effort to enlist Daniel O’Connell and Father Mathew in the abolition struggle. (See Oscar Sherwin’s excellent discussion of this phase of Phillips’ career in his unpublished doctoral dissertation, cited above.) 42. Who actually distributed these leaflets it is impossible to determine. Possibly Croly and Wakeman arranged it. Miss Dickinson was later the author of several tracts and a novel, What Answer?, in 1864, concerning the tragic love of a quadroon, Francesca Ercildowne for a white man, Will Surrey. T he main theme of the novel is summarized by a fictional news item appearing in the Civil War press: ‘‘MISCEGENAT ION, DISGRACEFUL FREAK IN HIGH LIFE. FRUIT OF AN ABOLIT ION WAR.—We are credibly informed that a young man belonging to one of the first families in the city, Mr. W.A.S.,—we spare his name for the sake of his relatives,—who has been engaged since its outset in this fratricidal war, has just given evidence of its legitimate effect by taking to his bosom a nigger wench as his wife. Of course he is disowned by his family, and spurned by his friends, even radical fanaticism not being yet ready for such a dose as this.’’ (Anna E. Dickinson, What Answer? [Boston, 1868], 190.) Van Evrie’s Day-Book of February 27, 1864, carried the following notice: ‘‘A Reply to Miss Dickinson.—We understand that Miss Emma Webb, a talented and accomplished young lady, who has traveled extensively in the West India Islands, and knows practically the evil effects of Abolitionism, will reply to Miss Anna Dickinson at the Athenaeum, in Brooklyn, on Friday evening, March 4th.’’ 43. Divers Views, Opinions, and Prophecies of Y oors truly Petroleum V. N asby (Cincinnati, 1867), 182– 186. F. B. Carpenter, who painted Lincoln, relates that just previous to the capture of Richmond, Lincoln said to him: ‘‘I am going to write ‘Petroleum’ to come down here, and I intend to tell him if he will communicate his talent to me, I will swap places with him!’’ (Ibid., ix). At the close of the war, George S. Boutwell, Commissioner of Internal Revenue and later Secretary of T reasury, said that crushing the Rebellion could be credited to three forces: the army, the navy and the Nasby letters. (Jack Clifford Hayes, ‘‘David Ross Locke, Civil War Propagandist,’’ N orthwest Ohio Quarterly, XX [January, 1948], 5.) The Miscegenation Issue in the Election of 1864 241 leest 4 Sundays per munth. A man uv straw that yoo set up yerself is the eesiest nockt down, pertikelerly if you set him up with a view uv nockin uv him down . . . Lern to spell and pronownce Missenegenegenashun. It’s a good word.’’44 So far the World had not uttered a word on this controversial subject of its own creation, although Croly and Wakeman had inserted an advertisement in the Liberator of March 4, quoting Wendell Phillips and stressing the fact that their pamphlet treated of ‘‘the relations of the Irish and the Negro.’’ Now a strange thing happened. On March 24, the newspaper whose managing editor had been the principal author of Miscegenation, unabashedly made a full-length editorial attack on it. ‘‘Some time since there was published, in this city,’’ blandly began the World, ‘‘a curious anonymous pamphlet, entitled ‘Miscegenation: the T heory of the Blending of the Races, applied to the American White Man and Negro’. . . . A writer who seriously advocates the intermarriage and cohabitation of white men with negresses, and white women with negroes, has little claim to notice, on his own account, by journals which make it their chief business to mark and interpret the current indications of public sentiment.’’ What can be the motive of such a writer? Why his anonymity? T he answer is given in curious, carefully constructed circumlocutions. Any man who chooses can write and cause to be printed whatever freak may come into his head; the existence of the production is evidence of nothing but the idiosyncrasy of the writer. If he gives his name, pride of singularity or fanatical devotion to a strange whim may afford a ready explanation of his course; if he publishes anonymously, he is probably feeling the public pulse, if serious, or expecting a profitable market for a piquant oddity, if he has not at heart the cause he ostensibly advocates. Why bother then to give valuable space to a ‘‘piquant oddity’’? ‘‘In either case, or in any case,’’ continued the editorial, ‘‘he deserves only the passing attention due to contributors of public amusement, unless the interest awakened by his publication, and the indorsement it receives from some portion of the community, shall rescue him from the charge of singularity, and prove that he is the exponent of a widely-diffused sentiment, or at least the occasion of its manifestation.’’ T he endorsement the pamphlet receives ‘‘or the opposition it excites . . . makes it an index of public sentiment.’’ Furthermore, stated the World, the Tribune article was indicative of the favor the new doctrine was meeting in Abolition quarters. ‘‘It is so extensively sanctioned by the leading negrophilists of the country, and by the prominent organs through which their views find expression, that we feel bound to call attention, 44. D. R. Locke, The Moral History of America’s Life-Struggle (Boston, 1874), 15. At Columbus, Ohio, in 1859, where Lincoln in a speech had gone ‘‘out of his way to affirm his support of the law of Illinois forbidding the intermarriage of whites and Negroes,’’ Locke ‘‘asked him if such a denial was worth while.’’ Lincoln replied: ‘‘T he law means nothing. I shall never marry a Nigger, but I have no objection to any one else doing so. If a white man wants to marry a Negro woman, let him do so,—if the Negro woman can stand it.’’ (Cyril Clemens, Petroleum Vesuvius N asby [Webster Groves, Missouri, 1936], 27.) 242 Kaplan not to the pamphlet (which is of little account taken by itself), but to the strongly developed tendencies of abolition public opinion which the pamphlet has brought out in bold relief.’’ T he World did ‘‘not propose to enter the lists with the Tribune, or any other advocate’’ of miscegenation. T o the contention of the Tribune that the subject could only be treated by physiologist, ethnologist, historian, theologian or economist, the World replied that by that doctrine not even incest could be discussed until citizens should have ‘‘mastered half the sciences in the encyclopedia.’’ If marriage is recommended for a white man with a black woman begetting his children—then precisely the same solution ‘‘might be asked in relation to incest, or any other abomination which the progressists have not yet dubbed with a euphemistic name.’’ Opinions of this sort were ‘‘the logical outgrowth of the extravagant negrophilism’’ which had ‘‘its carnival of blood in this cruel civil war.’’ ‘‘We cannot discuss these abominations,’’ piously concluded the World. ‘‘We merely record and call attention to the fact that the leading Republican journal of the country is the unblushing advocate of ‘miscegenation,’ which it ranks with the highest questions of social and political philosophy.’’ T he World, indeed, through Croly and Wakeman, had done its work—and well. Miscegenation, without doubt, had become a central campaign issue—a darling issue for the Copperhead Democracy. T hroughout the land, in sharp polemic, right up to the November balloting—although the World alone among the Democratic sheets would speak in whispers on the subject—the national press would bandy word and issue about in an unending saturnalia of editorial, caricature and verse.45 By May, the miscegenation controversy had travelled north, south and west of New York City. In March, the New Hampshire Patriot, under the title of ‘‘Sixtyfour Miscegenation,’’ had concocted the obscenity that sixty-four Abolitionist school-mistresses of New England, teaching at Port Royal, had given birth to mulatto babies. Democratic newspapers far and wide spread the story and the Republican press was kept busy exposing the ‘‘atrocious calumny’’ as a ‘‘Copperhead slander.’’46 In early April, Garrison’s Liberator devoted its entire first 45. In May, during Grant’s Wilderness campaign, the World went through a crisis which perhaps helped to produce its comparative silence. ‘‘A few hours of dejection, leaving their effect behind,’’ wrote James Ford Rhodes, ‘‘were caused by the publication, May 18, of a proclamation purporting to come from the President, which, admitting by implication the failure of Grant’s campaign, appointed a solemn day of fasting, humiliation, and prayer, and called for 400,000 men. It was a cleverly conceived and executed forgery, intended for stock-jobbing purposes, and only by certain happy accidents did it fail to appear in nearly all of the journals in New York City connected with the associated press. It was printed in the New York World and New York Journal of Commerce, Democratic newspapers, which had assailed the administration with virulence. T heir editors strove earnestly to correct the error into which they had fallen innocently, and made adequate and apparently satisfactory explanations to Dix, the commanding general of the department, but before these were transmitted to Washington, the President had ordered their arrest and imprisonment and the suppression of their journals. A lieutenant with a file of soldiers seized their offices, and held possession of them for several days, but the order of personal arrest was rescinded.’’ (History of the United States [New York, 1906], IV, 467–468.) 46. N ational Anti-Slavery Standard, March 26, 1864. T his is not an isolated instance of Copperhead fraud. T he Sunday Mercury, rival on weekends of Bennett’s Herald, pursued the campaign in its The Miscegenation Issue in the Election of 1864 243 page to editorial excerpts on the subject from the nation’s press and a month later inveighed against a ‘‘certain class of people, seeking to bring opprobrium upon Republicans and Union men’’ by accusing them of ‘‘advocating what is termed ‘miscegenation.’ ’’ T he Boston Journal traded brickbats with the Courier and the sound of battle echoed in the towns. T he Cape Cod Republican warred with the Barnstable Patriot—while the nearby Y armouth Register observed that Bennett and his fellow Copperheads had at last found something ‘‘sufficiently smutty for their tastes’’ in a ‘‘dull pamphlet on the old theme’’ thrown together by some fool in New York.47 ‘‘Amalgamation has nothing to do with emancipation,’’ protested the Philadelphia Press in March. ‘‘T hose who are so loudly opposing it are wasting their trouble upon a cause which has no advocates.’’ Naive brother Republicans were not helping matters: ‘‘We can only wonder at the folly of the few anti-slavery journals that have permitted themselves to be used by such mischief makers as the Herald.’’ T he new word miscegenation is not more strange to our ears than is the idea it embodies to our creed. It remains to say that the colored men who are entitled to speak for their own race, have never advocated amalgamation as a thing to be expected or desired. ‘‘It is no time for political miscegenation,’’ observed the St. Louis Union, arguing against the anti-Lincolnism of the radical Republican wing. ‘‘We need not be at all surprised to see an amalgamation ticket made up with Fremont for President, and Vallandigham for Vice-President.’’48 T he Pennsylvania Democratic press went at Miscegenation hammer and tongs, the Philadelphia Age crowing coarsely over a fulsome article that had appeared in the Detroit Free Press under the title of ‘‘Miscegenation in Detroit,’’ while the Washington (Pa.) Examiner noted that the ‘‘celebrated anonymous work’’ was ‘‘remarkably consistent for an Abolition publication,’’ although the effeminate consumptives’’ to whom it pleaded did not realize that miscegenation meant physical, mental and moral ruin.49 According to own way by means of forgeries. In its columns for March 18 appeared two personal notices, one of which reads Attention All Ladies—‘‘Hunky Boy,’’ every inch of a soldier, and alive and full of fun and miscegenation . . . solicits correspondence of all unmarried ladies between the ages of sixteen and sixty. T he names signed to the notices are Albert E. Dunwoodie, Sergeant, and Oscar D. Leonard, both of Company B, 55th Massachusetts (Coloured) Volunteers, Folly Island, South Carolina. T he letters are fabrications. T he rolls of the 55th do not carry these names either in Company B or in any other company. (Record of the Service of the Fifty-Fifth Regiment of Massachusetts Volunteer Infantry [Cambridge, 1868].) 47. Liberator, April 8, 1864, May 13, 1864. 48. Liberator, April 8, 1864. 49. Ray H. Abrams, ‘‘T he Copperhead Newspapers and the Negro,’’ Journal of N egro History, XX (April 1935), 131–152. T he Examiner acknowledged its indebtedness to Van Evrie’s N egroes and N egro ‘‘Slavery’’ in preparing the editorial, and Van Evrie reciprocated by reprinting the notice in the Day-Book for May 14, 1864. 244 Kaplan the West Chester Jeffersonian, the Emancipation Proclamation was ‘‘a thoroughgoing program for ‘miscegenation’ ’’—a word which the editor began to cherish.50 ‘‘Boston will, we do not doubt, furnish forth a devoted band of zealous miscegenators,’’ ranted the Cincinnati Enquirer in a long lascivious editorial. ‘‘T hose reverend clergymen who have given their sanction to the plan, and who see the movings of the divine spirit in the suggestion will not hesitate to put their hands to the miscegenation plow, and beget seals to their ministry.’’51 In the gubernatorial election that spring in Ohio, Clement R. Vallandigham ran from Canada. At campaign rallies throughout the Buckeye State, ‘‘a popular feature was a procession of young women bearing placards inscribed, ‘Fathers, Save Us from Negro Equality.’ ’’52 By June, Miscegenation had been reprinted in London and in July the Westminster Review commented seriously on it.53 ‘‘Much has been said of late,’’ wrote the Abolitionist Reverend Dr. Moncure D. Conway in an anti-slavery volume published in England in July, ‘‘concerning the old horror of the amalgamation of the blacks and whites as it comes in the new dress of Miscegenation . . . let me remind the English reader, that nobody in the Northern States has proposed that the blacks and whites shall be compelled to intermarry. T he proposition is simply that the laws against such marriages which yet remain in some of the Northern States shall be removed. Consequently, that portion of the English press which has been so distressed on this subject may calm itself with the reflection that, were the theory of the wildest miscegenist adopted tomorrow, the relation between the blacks and whites in respect to marriage would be simply conformed to what it is in England and France to-day.’’54 By midsummer also, the noisome Dr. J. H. Van Evrie, to the right even of Vallandigham in his uncompromising Calhounism, had brought out anonymously, 50. Roy H. Abrams, ‘‘ ‘T he Jeffersonian,’ Copperhead Newspaper,’’ Pennsylvania Magazine of History and Biography, LVII (July 1933), 260–283. 51. Reprinted in N ew Y ork Freeman’s Journal and Catholic Register, April 9, 1864. Philip S. Foner states that this paper was ‘‘for a time the official organ of the Archbishop of New York and had a wide circulation among Irish-American workers.’’ (History of the Labor Movement in the United States from Colonial Times to the Founding of the American Federation of Labor [New York, 1947], 269.) 52. Wood Gray, The Hidden Civil War, The Story of the Copperheads. (New York, 1942), 150. 53. New Series, XXVI, 223–224. T he ‘‘anonymous author of a very curious book, entitled ‘Miscegenation,’ originally published in New York and now reprinted in London, is of a very different opinion from Dr. Broca; he holds that crossing, or miscegenation as he terms it, is necessary for the production of a perfect type of man, and declares that the future American of the United States is to be a eugenic hybrid between the white and the black.’’ 54. M. D. Conway, A Native of Virginia, Testimonies Concerning Slavery, 2nd ed. (London, 1865), 75. Conway went on to say: ‘‘Moreover, it is well to remember that ‘Miscegenation’ is already the irreversible fact of Southern Society in every thing but the recognition of it. . . . No, the trouble is entirely in the political caste of that Negro blood. . . . ‘But,’ it is said, ‘the Abolitionists themselves are not willing to marry, or have their children marry, Negroes.’ No one wishes to marry, or to have a son or daughter to marry, an unfortunate person—and such the American Negro is. Moreover, he is often uncultivated. But, apart from this, the majority of Abolitionists would not object to such an alliance.’’ The Miscegenation Issue in the Election of 1864 245 as a counterpoise to Miscegenation, a refurbished edition of one of his old books. Its title was Subgenation: The Theory of the N ormal Relation of the Races; its subtitle—An Answer to ‘‘Miscegenation.’’55 T he invented word Miscegenation, in the opinion of Van Evrie, was accurate as applied to ‘‘persons of the same race’’ but a misnomer as applied to the different races of American society. As a matter of fact slavery could only exist as a relationship within a single race or between equal races and the word was misapplied when used to denote a relationship of servitude between a superior and inferior race. ‘‘T he simple truth is—T here is no slavery in this country; there are no slaves in the Southern States.’’56 T o capture that truth linguistically, Van Evrie aped Croly in inventing a new word—subgenation, ‘‘from sub, lower, and generatus and genus, a race born or created lower than another; i.e., the natural or normal relation of an inferior to a superior race.’’ For Croly and Wakeman’s half-truths and loose generalizations, Van Evrie substituted his own. ‘‘T he author of ‘Miscegenation,’ in his vile aspersions against the white women of the South, has won for his name an immortality of infamy—should it ever come to light,—far beyond that achieved by any human being.’’ The equality of all whom God has created equal ( white men) , and the inequality of those He has made unequal ( negroes and other inferior races) , are the corner-stone of American democracy, and the vital principle of American civilization and of human progress. . . . T hen, in the face of the world, we should announce that the grand humanitarian policy of progressive and civilized America is to restore subgenation all over the American Continent. Van Evrie had his political point to make also. T housands of Democrats in the North believed in the doctrine of subgenation—Vallandigham, Seymour, Wood, Cox among them—but had ‘‘not the courage to say it.’’ ‘‘Miscegenation is Monarchy; Subgenation is Democracy. . . . When Lincoln issued his Miscegenation Proclamation he proclaimed a monarchy.’’ T he real question before the country was ‘‘Subgenation vs. Miscegenation.’’ Indeed, the ‘‘Peace men must rouse themselves, sweep away the War leaders of the Democracy, nominate a candidate for President who shall bear upon his banner Peace and Subgenation’’ and usher in ‘‘the adoption by the N orth of the Confederate Constitution!’’57 55. Its New York publication was announced in the Day-Book of July 16, 1864. 56. In 1856, DeBow’s Review had criticized Webster’s Dictionary because it defined a slave as ‘‘a person subject to the will of another, a drudge.’’ (F. Garvin Davenport, Cultural Life in N ashville on the Eve of the Civil War [Chapel Hill, 1941], 178.) 57. Subgenation, 51, 56, 65. Van Evrie quotes Agassiz against Pritchard to demolish the ‘‘great luminary of the single-race theory’’ and pretends to be very rationalistic in attacking the Bible as an authority on scientific questions, citing Galileo and Hugh Miller (the American geologist) in his arguments. Later in the book, however, he drags in the stock-in-trade Biblical arguments for slavery. Professor Draper’s physiology is attacked, and the downfall of the Carthaginians, ‘‘the Yankees of the Mediterranean,’’ is given as an example of racial corruption. ‘‘In Boston the number of births among the negro and mongrel population is not equal to deaths.’’ Mexico, country of ‘‘the degenerate miscegen,’’ was conquered ‘‘by a few brave Frenchmen.’’ T he United States committed an unpardonable sin in not holding Mexico ‘‘and restoring subgeneration there, prepare it gradually for a Democracy.’’ 246 Kaplan Why Van Evrie chose to remain anonymous in this volume may be understood from its treatment by General Lew Wallace, Provost Marshal of Baltimore, who, T hat Van Evrie’s views have by no means perished is painfully obvious. Suffice to cite a few passages from a ‘‘scientific’’ work of thirty years ago by Edward M. East and Donald F. Jones, which reiterates the biological doctrine of Subgenation: ‘‘T he world faces two types of racial combination: one in which the races are so far apart as to make hybridization a real breakingdown of the inherent characteristics of each; the other, where fewer differences present only the possibility of a somewhat greater variability as a desirable basis for selection. Roughly, the former is the color-line problem; the latter is that of the White Melting Pot, faced particularly by Europe, North America and Australia. T he genetics of these two kinds of racial intermixture is as follows: Consider first a cross between two extremes, typical members of the white and of the black race. . . . T he real result of such a wide racial cross, therefore is to break apart those compatible physical and mental qualities which have established a smoothly operating whole in each race by hundreds of generations of natural selection. If the two races possessed equivalent physical characteristics and mental capacities, there would still be this valid genetical objection to crossing, as one may readily see. But in reality the negro is inferior to the white. T his is not a hypothesis or supposition; it is a crude statement of actual fact. T he negro has given the world no original contribution of high merit. By his own initiative in his original habitat, he has never risen. T ransplanted to a new environment, as in the case of Haiti, he has done no better. In competition with the white race, he has failed to approach its standard. But because he has failed to equal the white man’s ability, his natural increase is low in comparison. T he native population of Africa is increasing very slowly, if at all. In the best environment to which he has been subjected, the United States, his ratio in the general population is decreasing. His only chance for an extended survival is amalgamation. . . . It seems an unnecessary accompaniment to humane treatment, an illogical extension of altruism, however, to seek to elevate the black race at the cost of lowering the white. . . . Our first conclusion may be said to be a decision against the union of races having markedly different characteristics—particularly when one is decidedly the inferior. . . . Our second thesis is seemingly paradoxical. It asserts that the foundation stocks of races which have impressed civilization most deeply have been produced by intermingling peoples who through one cause or other became genetically somewhat unlike.’’ (Interbreeding and Outbreeding: Their Genetic and Sociological Significance [Philadelphia 1919], 252–255.) John H. Van Evrie deserves a going-over in his own right. He was born in 1814 (died in 1896) and received a medical degree somewhere. Whether he practiced is problematical; most of his time seems to have been spent as a pseudo-scientific, screwball propagandist of Copperheadism in New York. He was co-publisher (Van Evrie, Horton & Co.) of the N ew Y ork Day-Book ( Caucasian) which, advertising itself as ‘‘T he White Man’s Paper,’’ had been denied mailing privileges in 1862. His magnum opus was a 400 page book titled N egroes and N egro Slavery; the first, an inferior race— the latter, its normal condition, published simultaneously in Baltimore and Washington, D.C. and reprinted in 1854 and in 1861 in New York by his own publishing firm. T he edition of 1864, with its title changed to Subgenation is basically the old text with specific argument re Croly thrown in. Anonymity was protection from charge of treason. T he volume was republished in 1866 with the Subgenation title; then, since the word had not caught on as miscegenation had, in 1867 and 1870 the original text came out with a title better adapted to Secessionist needs in the Reconstruction period: ‘‘White Supremacy and N egro Subordination or, N egroes A Subordinate Race, and Slavery Its N ormal Condition. In this text neither the word miscegenation nor subgenation is used. In 1868, Hinton Rowan Helper, in his revolting The N egroes in N egroland; The N egroes in America; and N egroes Generally cited Van Evrie as an authority. In 1863, Van Evrie, Horton & Company published S. S. Cox’s ‘‘Puritanism in Politics.’’ Rushmore G. Horton, Van Evrie’s partner, was another particularly venomous Copperhead. In 1866, he wrote and published A Y outh’s History of the Great Civil War in the United States from 1861 to 1865, which repeated in primer style all the ‘‘arguments’’ of Subgenation. Horton’s History quickly ran through a few editions and is still popular in certain quarters. In 1925 a revised edition The Miscegenation Issue in the Election of 1864 247 according to the Copperhead press, closed a bookshop selling the pamphlet and summoned the proprietor to explain. ‘‘It was for the heinous and inexplicable crime of selling a pamphlet called ‘Subgenation,’ in answer to the beastly brochure on ‘Miscegenation,’ which so disgusted all decent people, except the philanthropical elect, some months ago,’’ howled the Day-Book.58 Van Evrie schemed tirelessly to turn ‘‘miscegenation’’ to Copperhead use. On July 9 in the Day-Book appeared an advertisement for ‘‘Political Caricature No. 2,’’ titled ‘‘Miscegenation, or T he Millennium of Abolitionism,’’ at 25c per copy and cheaper in quantity—‘‘a capital hit upon the new plank in the Republican platform,’’ representing ‘‘society as it is to be in the era of ‘Equality and Fraternity.’ ’’ Sumner is introducing a strapping ‘‘colored lady’’ to the President. A young woman (white) is being kissed by a big buck nigger, while a lady lecturer supposed to be ‘‘T he Inspired Maid’’ [Miss Anna Dickinson] sits upon the knee of a sable brother urging him to come to her lectures, while Greeley, in the very height of ecstatic enjoyment, is eating ice-cream with a female African of monstrous physique, declaring that society at last had reached absolute perfection. In the background is a carriage, negroes inside, with white drivers and footmen; a white servant girl drawing a nigger baby, and a newly arrived German surveying the whole scene exclaiming, ‘‘Mine Got, vot a guntry! Vot a beeples!’’ ‘‘It ought to be circulated far and wide as a campaign document,’’ concluded the advertisement. Newspapers that copied the blurb and sent in a marked copy would receive four copies of the picture by mail.59 T hus through this summer of gloom for the Northern cause the Copperhead press kept up its attack on the ‘‘miscegenation’’ front. T he concentration point for the attack—especially as Election Day approached—was New York, a decisive was edited and published by Lloyd T . Everett and Mary D. Carter, dedicated ‘‘to those friends of Freedom, the Copperheads of the North—both of earlier and later times.’’ 58. October 15, 1864. 59. T his caricature was put out by J. Bromley and Company of New York. Other elements of the caricature emphasize its insidious intent. A ‘‘white servant girl’’ remarks, ‘‘and is it to drag nagur babies that I left old Ireland? Bad luck to me.’’ A Negro suitor implores a demure white lass, ‘‘Lubly Julia Anna, name de day, when Brodder Beecher shall make us one?’’ T o a ‘‘strapping ‘colored lady’ ’’ being introduced to him by Sumner, Lincoln says: ‘‘I shall be proud to number among my intimate friends any member of the Squash family, especially the little Squashes’’; to which she replies, ‘‘I’se ’quainted wid Missus Linkum, I is, washed for her ’fore de hebenly Miscegenation times was cum. Dont do nuffin now but gallevant ’round wid de white gem’men! he-ah! he-ah! he-ah!’’ On October 22, 1864, the Day-Book advertised another political caricature put out by Browley: ‘‘T he Greatest Hit Yet—T he Miscegenation Ball At the Headquarters of the Lincoln Campaign Club, corner of Broadway and 23d st., N.Y. on the evening of Sept. 21, 1864.’’ In ‘‘mazy dance,’’ so goes the description of the picture, ‘‘with fat, black wenches, in silks and satins, are dignified, grave, white politicians on the sofas, squeezing and ogling thick-lipped Phillises.’’ T he Republican Party answered promptly with the aid of Currier and Ives. In a cartoon on the Chicago convention of the Democrats, the nominees McClellan and Pendleton are portrayed as ‘‘T he . . . Political Siamese T wins, T he Offspring of Chicago Miscegenation,’’ spurned by two Union soldiers. 248 Kaplan city in a decisive state. In New York had occurred the draft riots of the previous July;60 in New York, Miscegenation, with its deliberately provocative clap-trap on the necessary and inevitable amalgamation of Negro and Irish, had been born. Correctly manipulated, figured the sachems of T ammany and Mozart Hall, the miscegenation issue could not fail to win the labor and Irish vote for ‘‘little Mac.’’61 When in May, Lincoln, recalling these riots, counseled a workingmen’s group that ‘‘the strongest bond of human sympathy outside the family relation should be the one uniting all working people, of all nations, tongues and kindreds,’’ the Democratic press was not slow to give his words an anti-labor, anti-Irish twist. ‘‘Mr. Abraham Lincoln has deliberately insulted the white working classes of the Unites States,’’ ranted the Jeffersonian. ‘‘He classes labouring white men with negroes. . . . In this brief sentence we have the new doctrine of ‘miscegenation’ or amalgamation officially announced.’’ T he most advanced school of Abolitionists now take the position that our citizens of Irish birth are inferior to the negro, and that they could be vastly improved by the intermixture with the negro. T he ‘‘working people’’ to whom Mr. Lincoln refers, are, of course, the Irish, for it was upon them the responsibility of the riot was thrown. . . . It is the direct tendency of Abolitionism to reduce the white laboring classes of the country to negro equality and amalgamation. ‘‘We did not expect, however,’’ concluded the Jeffersonian, ‘‘to find Mr. Lincoln come out and openly advocate this monstrous doctrine.’’62 T he climax had been reached, according to the N ew Y ork Freeman’s Journal & Catholic Register: the ‘‘beastly doctrine of the intermarriage of black men with white women’’ was now ‘‘openly and publicly avowed and indorsed and encouraged by the President of the United States. . . . Filthy black niggers, greasy, sweaty, and disgusting, now jostle white people and even ladies everywhere, even at the President’s levees.’’ What next would happen in ‘‘this cruel, Abolition, miscegenation war?’’ asked a Philadelphia correspondent of the Register. ‘‘But a few years ago, Henry Winter Davis was having Irish Catholics murdered in the streets of Baltimore.’’63 60. ‘‘T he Democratic press never tired of stressing the labor competition to be anticipated by white laborers from free Negroes.’’ (Gray, op. cit., 90). Also see Foner, op. cit., 269–270, 320–324, which ably summarizes the monographic material on the subject. 61. A year before, in August 1862, a Brooklyn mob had attacked a factory in which Negroes were working and had tried to fire it. T he N ew Y ork Evening Post hit the nail on the head in its comment: ‘‘In every case Irish laborers have been incited to take part in these lawless attempts; and the cunning ringleaders and originators of these mutinies, who are not Irishmen, have thus sought to kill two birds with one stone—to excite a strong popular prejudice against the Irish, while they used them to wreak their spite against the blacks.’’ (Allan Nevins, The Evening Post— A Century of Journalism [New York, 1922], 305.) According to the census of 1860, there were in New York City 203,000 persons of Irish birth out of a total population of 813,000. 62. Quoted in N ew Y ork Freeman’s Journal & Catholic Register, May 21, 1864, under title of ‘‘Abe’s Philanthropy.’’ 63. N ew Y ork Freeman’s Journal & Catholic Register, April 23, 30, 1864. When this newspaper ran out of original invective, it simply reprinted excerpts from Miscegenation with appropriate headings, as in the issue of June 11, 1864. The Miscegenation Issue in the Election of 1864 249 It is not strange, therefore, that during the last days of September as electioneering grew hotter and hotter, the Central Campaign Committee of the Democratic Party circulated a long leaflet titled ‘‘Miscegenation and the Republican Party,’’ the main argument of which was directed to the workingclass of New York City.64 T he leaflet, an ambitious and comprehensive attempt to make political capital of ‘‘the publication, in the early part of 1864, of a very curious pamphlet, entitled ‘Miscegenation,’ ’’ reprinted the replies of the Abolitionists to Croly and Wakeman’s letter, together with extensive quotations from the national antislavery press. After damning Sumner, Phillips, T ilton, Stowe, Emerson, Beecher and others, the leaflet went on to lambaste the women-folk of the Union League of New York for sending off the T wentieth U.S. Colored Regiment with a message of ‘‘love and honor from the daughters of this great metropolis to their brave champions in the field.’’ T his was ‘‘a practical example of miscegenation’’!65 Its main shot, however, was aimed against the President, who ‘‘in his turgid and awkward way,’’ acknowledging the support of the Working Men’s Democratic Republican Association of New York, had advised the laboring classes to ‘‘beware of prejudices, working disunion and hostility among themselves.’’ Before this ‘‘bogus association,’’ stated Campaign Document No. 11 with horror, ‘‘Mr. Lincoln took especial pains to place working negroes and white men on an equality.’’66 64. Weekly World, September 29, October 27, 1864. T his leaflet, later advertised as ‘‘Miscegenation Indorsed by the Republican Party’’ and printed as ‘‘Campaign Document No. 11,’’ was sold at ‘‘all Democratic Newspaper Offices at $1. per 1000 pages.’’ 65. On April 30, 1864, the New York Tribune printed a letter to the editor, signed T, in which the writer discussed ‘‘the only case of practical miscegenation’’ he had ever known. Near Oluscatee, Florida, in 1858, he had entered the residence of a large plantation. Its mistress, an ‘‘unmistakeable mulatto woman,’’ age about 40, stout, comfortable-looking and ‘‘exhibiting evidences of considerable cultivation in her manner and conversation’’ had received him. A small child was with her; the other children were at Northern schools. T he husband entered—‘‘coarse, brutish’’—treated them civilly but coldly, taking no notice of his wife. She was the child of a Jamaica planter. Her husband, a sailor, had agreed to marry her for ten or twenty thousand dollars. T he plantation was a prosperous one. T he light complexions of the children enabled them to ‘‘pass’’ in the North. ‘‘T hus, it seems,’’ concluded T, ‘‘that in the most Southern of Southern states, miscegenation has been tolerated for 20 years, and that it has been considered proper not only for whites to buy and sell blacks, and their own mulatto children, but even to sell themselves into domestic servitude for a sufficient consideration.’’ On July 23, 1864, the N ational Anti-Slavery Standard, under the title of ‘‘T he ‘Patriarchal’ System, ‘Miscegenation’ in Perfection,’’ carried a letter from a soldier of the 140th Pennsylvania Volunteers stationed near Richmond, Virginia. T he soldier had visited a plantation and had spoken with many of its ex-slaves who were the children of the planter. One woman, a mother, had confessed to being the planter’s child. Her moronic son stood nearby. ‘‘I asked the mother of this boy if Mr. Scott was his father. . . . T he incestuous old beast! This idiot son— the child of his own daughter and grandfather to his own children! . . . Do you know how these skin aristocrats rave over the new theory of miscegenation. . . . [here] was the very worst form of incestuous amalgamation.’’ 66. T o bolster its argument, Campaign Document No. 11 cited a request of Henry Clay in 1848 to his biographer, the Rev. Walter Colton, to write a pamphlet showing that the ‘‘ultras go for abolition and amalgamation, and their object is to unite in marriage the laboring white man and the black woman, and to reduce the white laboring man to the despised and degraded condition of the black man.’’ During the campaign, the Democratic Party also circulated reprints of political addresses made by some of its prominent members. One of these, a speech by Supreme Court 250 Kaplan For the ultra-Copperhead Van Evrie, Campaign Document No. 11 was not enough. With the election a month off, there was no time ‘‘to read long speeches and pamphlets.’’ What was ‘‘put before the people should be short, pithy and pointed’’—and Van Evrie proposed to do just that. T he Day-Book, carrying notices and reports of union meetings as one of its regular features, had for long oriented itself to the special problem of winning New York’s workers to Copperheadism. And in this field its demagogy was confusing and clever. ‘‘T he banker, lawyer, preacher, or other non-producing classes,’’ it continually explained to its workingclass readers, need not fear ruin from the ‘‘abolition of slavery,’’ but the producing classes, the mechanic, laborer, etc., had better cut the throats of their children at once than hand them to ‘‘impartial freedom,’’ degradation and amalgamation with negroes. T o clinch this argument, in the last crucial days of the campaign Van Evrie decided to bring out his own ‘‘Campaign Broadside No. 1—T he Miscegenation Record of the Republican Party,’’ aimed more specifically than the official Campaign Document No. 11 at the strategic workingclass of New York and its Irish core.67 After exhuming from Miscegenation one of its key provocations— T he fusion between Negro and Irish will be of infinite service to the Irish. T hey are a more brutal race and lower in civilization than the Negro. . . . Of course we speak of the laboring Irish. —the hydrophobic doctor flew at Lincoln’s throat. T he President had insulted ‘‘every white workingman by including him in the category of negroes, or, in other words, calling him a nigger!’’ By ignoring ‘‘all distinctions of color among the laboring classes,’’ by calling them all ‘‘working people,’’ Lincoln had recommended ‘‘amalgamation of the white working classes with negroes! In other words, white workingmen should love a negro better than anyone except a relative!’’ T he need of the moment was to ram this idea into the heads of wavering people.68 Justice Jeremiah S. Black, delivered at the Keystone Club in Philadelphia on October 24, 1864, contained the following passage: ‘‘It happens, by the permission of God’s providence, that two distinct races of human beings have been thrown together on this continent. All the mental characteristics as well as the physical features and color of one race, make it lower in the scale of creation than the other. . . . T he Abolitionists look upon all this with perfect horror. T hey assert everywhere, in season and out of season, the natural right of the negro to political, legal and social equality. T heir theories of miscegenation are too disgusting to be mentioned.’’ 67. Day-Book, October 1, 1864. T hese leaflets were for sale at $1. per hundred. For the N ew Y ork Freeman’s Journal & Catholic Register, which evidently oriented itself to the more backward members of the Irish-Catholic workingclass of New York City, ‘‘the real secret, aim and object of Abolitionism’’ was an ‘‘instinctive effort . . . to destroy the natural order of society . . . by poisoning the masses with negro equality.’’ (May 21, 1864, reprinted from the Jeffersonian.) 68. It must be admitted that the attitudes of certain Abolitionist and labor leaders towards emerging workingclass militancy provided fertile ground for Copperhead seed. Writes Foner: ‘‘T he Abolitionists did little to overcome the fears of the workingclass regarding the so-called dangers of Negro emancipation. In fact they did a good deal to convince many workers that they were concerned only with the welfare of the Negro slaves and considered the problems of free labor as insignificant. In the first issue of the Liberator William Lloyd Garrison denounced the trade union The Miscegenation Issue in the Election of 1864 251 ‘‘Millions of these little documents ought to be distributed at once,’’ urged Van Evrie. ‘‘Democratic Clubs, Committees, etc., should order at once.’’ Nor was Van Evrie alone during the concluding weeks of the campaign in his desire to reach the Irish-Catholic workingmen with this rabid message. ‘‘What is a ‘Mis-ce-ge-na-tor’?’’ began a forty-eight-page Copperhead pamphlet by George Francis T rain. He is an . . . Abolitionist (altered Democrat), Black Republican . . . Sneers at Catholics, and calls naturalized citizens d———d Irishmen. T he ‘‘campaign cry of Copperhead’’ was ‘‘white Man on the Brain, to distinguish its class from Mis-ce-ge-na-tor, or Nigger on the Brain.’’ T he platform of the Republicans was Subjugation. Emancipation. Confiscation. Domination. Annihilation. Destruction, in order to produce Miscegenation!69 ‘‘Who is T had Stephen [sic]?’’ asked another Copperhead pamphlet entitled The Lincoln Catechism—and answered: ‘‘An amalgamationist from Pennsylvania, who honestly practices what he preaches.’’70 movement as an organized conspiracy ‘to inflame the minds of our working classes against the more opulent.’ ’’ In 1847 the N ational Anti-Slavery Standard, official organ of the American AntiSlavery Society, stated that no true Abolitionist could have any sympathy for those who denounced wage-slavery as an evil. Even Wendell Phillips in 1847 saw no need for unions. Although Phillips changed his views and Frederick Douglass supported unions, this trend of indifference to wageworkers’ problems continued in the Abolitionist movement. T hus Horace Greeley denounced Abolitionists who refused to treat workers decently and turned down an invitation to an antislavery convention because of the indifference of many of the delegates to problems of the Northern workers. Sarah Bagley, although ardently anti-slavery, felt herself forced to denounce some Abolitionist leaders for a similar indifference. T he fact that in the election of 1860, the Republican Party had widely circulated Helper’s The Impending Crisis—which attacked IrishAmericans as supporters of slavery—helped to provide a susceptible audience for the Democratic propaganda of 1864. (Op. cit., 270–271, 295). In 1863, facing English audiences, Henry Ward Beecher ‘‘laid all blame for the New York draft riots on the Irish Catholics, as though to say that America had the same Irish problem as England’’ (Sandburg, op. cit., II, 515). 69. Anon. [George Francis T rain], A Voice From the Pit (Washington, D.C. [?] 1864), 3, 4, 5. 70. Anon., The Lincoln Cathechism Wherein the Eccentricities & Beauties of Despotism Are Fully Set Forth. A Guide to the Presidential Election of 1864 (New York, 1864), 24. On the next page the catechism asked, ‘‘Who is Anna Dickinson?’’ and answered, ‘‘Ask Ben. Butler and William D. Kelly.’’ T he Republicans replied in a Copperhead Catechism by ‘‘Fernando the Gothamite,’’ which was copyrighted and perhaps written by Montgomery Wilson. (Joseph Sabin, A Dictionary of Books relating to America [New York, 1869–1936], IV, 529.) 252 Kaplan Croly and Wakeman did not wait long to take advantage of the new opportunity offered by the President’s address to the New York workingmen. T hey were now to play their last card. On September 29, a copy of Miscegenation was dispatched to the White House, accompanying it a letter to Abraham Lincoln. ‘‘I hereby transmit a copy of my work on ‘Miscegenation,’ ’’ began the anonymous author, ‘‘in the hope that after you have perused it, you will graciously permit me to dedicate to you another work on a kindred subject, viz: ‘Melaleukation.’ ’’ In the one work I discuss the mingling of all the races which go to form the human family. My object in the new publication is to set forth the advantage of blending of the black and white races on this continent. From the favor with which ‘‘Miscegenation’’ has been received—a great many thousand copies having been sold, and its leading ideas having been warmly indorsed by the progressive men of the country—I am led to believe that this new work will excite even greater interest. So much for preamble; the main point follows: ‘‘I am tempted to make this request from the various measures of your administration looking to the recognition of the great doctrine of human brotherhood, and from your speech to the New-York workingmen, in which you recognize the social and political equality of the white and colored laborer.’’ Allow me, concluded the gracious writer, to express the hope that, as the first four years of your administration have been distinguished by the emancipation of four millions of human beings, the next four years may find them freemen raised to the condition of social equality, and becoming an element of the future American race.71 One can imagine how Croly’s mouth watered as he watched the mails for a reply. But Lincoln did not rise to the bait. Nevertheless, in a ceaseless torrent of invective right up to the November balloting, the President’s message to the New York workingmen was twisted and befouled by the defeat-sensing Democratic journals, as they strove to keep the miscegenation issue in the fore of the campaign. At a pro-McClellan mass meeting, the World reported a speech by one Colonel Max Langenschwarz, who urged the Republicans to ‘‘add to emancipation, to confiscation, and to miscegenation, a policy of polygamy,’’ so that ‘‘a man could have a yellow wife from China, a brown wife from India, a black wife from Africa, and a white wife from his own country, and so have a variegated family and put a sign over the door: ‘United Matrimonial Paint Shop.’ ’’72 About nine in the evening of Election Day, wrote the New York correspondent of the proNorthern London Daily N ews, ‘‘I went to T ammany Hall’’— T he hall was densely packed by a most unsavoury crowd . . . a large proportion evidently Irish. . . . ‘‘Captain’’ Rynders, a mob leader of great reputation and influence . . . was engaged in accusing the republican party of an intention to persecute the catholics as soon as they had subjugated the slaveholders. 71. MS in Library of Congress. 72. Sandburg, op. cit., II, 581. The Miscegenation Issue in the Election of 1864 253 T his was the same Rynders whose gang some years before had driven the dauntless Phillips from a New York lecture platform. From this he passed rapidly to abuse of the negro. . . . Anything so ribald and disgusting I have never heard in a public assemblage. He rang the changes for twenty minutes on the smell of the negroes, and on their lips, nose, and ‘‘wool,’’ and interspersed it with denunciations of the ‘‘miscegenators,’’ recurring incessantly to the passion which he ascribed to the republican leaders for ‘‘nigger wenches.’’73 T hus the Democracy hammered at the miscegenation ‘‘issue’’ up to the very last minutes of the campaign. Yet the ugly crusade was destined to fail. T he withdrawal of Fremont from the presidential race, together with the bright news from Sherman in Atlanta and Farragut in Mobile Bay, reversed what had seemed to Lincoln in August a terribly ominous trend. T rue enough, in New York City the Copperhead campaign was something of a success. In 1860, Lincoln had received 33,000 votes to his opponent’s 62,000, while now he received only 36,000 to McClellan’s 78,000.74 Nevertheless in the country at large Lincoln received all but twenty-one of the electoral votes, while ‘‘Sunset’’ Cox of Ohio, the chief Congressional accomplice of Croly and Wakeman, lost his seat to the Republican, Samuel Shellabarger. T hat the celebrated pamphlet on Miscegenation was a colossal hoax was not first revealed in America. In mid-October, a fortnight before the election, the New York correspondent of the pro-Southern London Morning Herald mailed off a dispatch that would be printed as a feature article in its issue of November 1.75 ‘‘As this letter will not return in printed form to the United States before the presidential election will have taken place,’’ it began, ‘‘it will do no harm where harm might otherwise possibly be done, to give the history of one of the most extraordinary hoaxes that ever agitated the literary world.’’ In the beginning of the spring of the present year, a pamphlet was published in this city, bearing the novel and rather barbarous, as far as pronunciation goes, title of ‘‘Miscegenation.’’ . . . It was gravely put forth as embodying the only practical solution of that questio vexata, the disposal of the negro. Although the theme discussed with such apparent solemnity is not a savory one, the book was very cleverly written, and was full of scientific facts and learned quotations which gave it an air of great plausibility. Several very large editions of the work were sold in the United States; and eventually it found its way across the water, was reprinted by T rubner & Company, and received prominent comment in several English literary journals. Among others, the Westminster Review noticed the book with a great deal of gravity, and spoke of it as being a very curious work. 73. London Daily N ews, November 26, 1864. 74. Lincoln’s majority in New York State was uncomfortably small—7,000 votes. On the other hand, Seymour, who had been elected Democratic governor in 1862, was defeated by the Republican, Fenton, in 1864. 75. Headlines for the article were: ‘‘T HE GREAT HOAX OF T HE DAY! T he Great Miscegenation Pamphlet Exposed—T he ‘Moon Hoax’ in the Shade—Who Wrote the Book—How it Came into Notice—Letters of Indorsement from Leading Progressives.’’ 254 Kaplan T he fact is, continued the dispatch, the pamphlet ‘‘was written by two young gentlemen connected with the newspaper press of New York, both of whom are obstinate Democrats in politics, and was got up solely with the view of committing, if possible, the orators and essayists of the Republican party to the principle it enunciated, that of the complete social equality, by marriage, of the white and black races.’’ No one suspected that it had been written by ‘‘people who abhor the doctrine it sets forth.’’ It had ‘‘swindled’’ everybody. T he authors of Miscegenation, ‘‘employing the arguments of the Republicans,’’ had ‘‘dextrously managed to make it appear that an amalgamation or miscegenation of the two races was not only desirable but inevitable.’’ T o familiarize themselves with the subject, these two ‘‘obstinate Democrats’’ had ‘‘crammed’’ their subject at the Astor Library.76 T hey had quoted ‘‘Pritchard, Draper, and other learned authorities.’’ But their ‘‘true object’’ was to bring ‘‘the Republican party into conflict with the strong anti-negro prejudice existing in the North.’’ Of course, it had been ‘‘an admirable weapon to use against the Republicans and the Democrats were not slow to avail themselves of it.’’ T he machinery employed to get the hoax into circulation was very ingenious. Before it was issued, proof copies were sent to all leading abolitionists, male and female, of the country, from Senator Sumner and Secretary Seward down to Abby Kelly Foster, the crinolined abolition ranter. Many of the hare-brained spir- 76. At the Astor Library, Croly and Wakeman might have come across the following passage in William J. Grayson’s The Hireling and the Slave, Chicora, and Other Poems (Charleston, S.C., 1856), 71, which could have furnished pointed suggestions in the elaboration of their theme: Not such his fate Philanthropy replies, His horoscope is drawn from happier skies; Bonds soon shall cease to be the Negro’s lot, Mere race-distinctions shall be all forgot, And white and black amalgamating, prove T he charms that Stone admires, of mongrel love, Erase the lines that erring nature draws T o severe race, and rescind her laws; Reverse the rule that stupid farmers heed, And mend the higher by the coarser breed; Or prove the world’s long history false, and find Wit, wisdom, genius in the Negro mind; If not intended thus, in time to blend In one bronze-colored breed, what then the end? In June 1864, the right-of-Copperhead New York Old Guard (136–137), reviewing Grayson’s poem for the second time, deplored the fact that the ‘‘crowd’’ ran after ‘‘that hyena in woman’s clothes, Anna Dickinson,’’ while The Hireling and the Slave had not ‘‘been once named by a northern newspaper.’’ (Brother Basil Leo Lee, Discontent in N ew Y ork City [Washington, D.C., 1943], 146– 147.) In 1863, the Old Guard’s editor, C. Chauncey Burr, predicted that after March 4, 1865 drawings and paintings would be put on exhibition in Washington, including one of a ‘‘white man embracing a Negro wench. An immodest picture, dedicated to Charles Sumner.’’ Burr alluded frequently to ‘‘Negro-blooded’’ Republican leaders. ‘‘A western author has issued a pamphlet adducing evidence to show that Old Abe is part negro,’’ he wrote; ‘‘. . . Hamlin and Sumner, to the scientific eye, show the presence of Negro blood.’’ (Sandburg, op. cit., II, 135–137.) The Miscegenation Issue in the Election of 1864 255 itual mediums of the land—and there are a score or more of these ethereal individuals in every northern village—were furnished with advance sheets of the work, and all ‘‘mediums’’ and more material-minded abolitionists were requested to furnish their views upon the subject to the author. ‘‘T he bait was swallowed with avidity,’’ observed the Morning Herald’s correspondent, gleefully enumerating the replies of Pillsbury, a ‘‘brilliant of the abolition clique’’ and of the rest. T hrough ‘‘the dextrous manipulation of the authors,’’ the pamphlet had been ‘‘introduced in Congress,’’ where Cox had made ‘‘a brilliant and forcible speech against the theory.’’ Nor were the abolitionists the only ones deceived. Even S. R. Fiske, one of the editors of the New York Herald—which greatly prided itself upon its sharpness— had penned a four-column refutation, which was reprinted by the Leader. Indeed, it had been ‘‘a decided hit.’’ Although Mr. Charles Congdon, ‘‘one of the cleverest writers on the editorial staff of the New York Tribune, had squinted at it very strongly, so impressed’’ had he been with the theory that he had written two or three articles on it. Yet the plot had not been altogether a success. Although the Anti-Slavery Standard and the Independent had espoused the ideas of Miscegenation, the ‘‘bulk of the Republican party, however, composed as it is of very shrewd politicians, constantly on the alert for traps of that sort, whether innocently set by their own radical brethren or by the wicked ‘Copperheads,’ ’’ had realized that ‘‘whether the book was to be viewed with distrust or not, and however consistent its doctrines might be with their record and character, its public endorsement would kill them politically, and so they wisely said very little about the matter.’’ ‘‘Miscegenation,’’ according to the Morning Herald, threw the ‘‘Moon Hoax,’’ perpetrated by J. Locke immediately after the completion of Lord Ross’s great telescope, into the shade. Moreover, it was ‘‘very likely that the writers of the book will never be discovered, but like the author of the world-famous ‘Junius’s Letters,’ will remain unknown to fame, a puzzle to American bibliographers as the ‘Letters’ have been and are to the shrewdest minds of England.’’ Miscegenation had constituted ‘‘one of the most amusing chapters of the present political campaign,’’ and the Westminster Review and other journals ‘‘must own up, as a Yankee would say, to being very decidedly ‘sold.’ ’’ Indeed the effect of the pamphlet would not ‘‘die with the mystery of its origin.’’ T he conclusion of the dispatch was bloodthirsty, in the Van Evrie style. T here were ‘‘but two solutions’’ to the problem: Either we must have a war of races, which would inevitably result in the extirpation of the negroes; or we must incorporate them with ourselves, in the succeeding generations by marriage. Either horn of this dilemma is frightful. . . . No sane man supposes that our people will ever marry the negroes out of existence; there remains, then, war to the knife, and the knife to the helt, till every vestige of the African race disappears from the continent. T hus would the abolitionists be punished for ‘‘their mad attack upon the patriarchal system of the South.’’77 77. T his section of the Herald expose was expurgated from the World reprint. Possibly the tone was ´ 256 Kaplan T hat Croly was in cahoots with the correspondent of the Morning Herald may be seen by the latter’s dispatch of a week later. ‘‘T he authors of ‘Miscegenation’— the literary, or rather politico-literary hoax of which I have given you a full description—have asked, in a letter, the permission of the President to dedicate their book to him. T his ‘dodge’ will hardly succeed; for Mr. Lincoln is shrewd enough to say nothing on the unsavoury subject.’’78 Meanwhile he awaited with interest the exposure of the fraud in the States. Indeed, ‘‘the wrathful denunciation of the Republican journals and politicians who have endorsed the doctrines of the book, and whose letters and articles are in the possession of the authors, will be amusing.’’79 ‘‘When this expose reaches the United States,’’ the Morning Herald had stated, ´ ‘‘it will be the first that will have been made regarding the matter.’’ T wo weeks after Lincoln had been returned to the White House, the World, in all its innocence, spread the story of the ‘‘Miscegenation Hoax’’ prominently over its pages. Its technique, as always, was clever. No confession was made of its own connivance in the fraud. T he London Morning Herald article was reprinted (with the deletion noted above) accompanied by an editorial stating that a New York correspondent of the London Morning Herald had ‘‘just revealed the fact that the ‘Essay on Miscegenation,’ which excited so much attention, sympathetic and antipathetic in this country during the recent election, was simply a clever Demo- so personal and vindictive that not only might it have been impolitic to print it after Lincoln’s smashing victory, but also it might have revealed, for those who cared to investigate, the fact that the World was originally responsible for the hoax. 78. Andrew Jackson in his campaign of 1828 had to contend with the problem in a more personal way. In a letter to General R. K. Call on August 16, 1828, he wrote: ‘‘T he whole object of the coalition is to calumniate me, cart loads of coffin hand-bills, forgeries, & pamphlets of the most base calumnies are circulated by the franking privilege of Members of Congress, & Mr. Clay. Even Mrs. J. is not spared, & who, from her cradle to her death, had not a speck upon her character, has been dragged forth by Hammond & held to public scorn as a prostitute who intermarried with a Negro, & my eldest brother sold as a Slave in Carolina. T his Hammond does not publish in his vile press, but keeps the statement purporting to be sworn to, a forgery & spreads it secretly . . . was not my hands tied, & my mouth closed, I would soon put an end to their slanders’’ (Virginia Magazine of History and Biography, XXIX [April 1921], 191). 79. London Morning Herald, November 9, 1864. T he English press, of course, fought the American Civil War, on its side of the water. ‘‘T he Standard [owned by the same party as the Morning Herald] gained much in circulation in the early ‘sixties through the popularity of slashing letters by a Copperhead correspondent in New York.’’ (Henry D. Jordan, ‘‘T he Daily and Weekly Press of England in 1861,’’ South Atlantic Quarterly, XXVIII [July 1929], 308.) On the other hand, proNorthern English newspapers were at times vigorously critical of the American Copperhead press. For instance, the New York correspondent of the London Daily N ews, discussing the McClellanLincoln campaign wrote: ‘‘His [Lincoln’s] fondness for comic anecdotes, some of them rather coarse . . . furnishes a constant theme for vituperation to some of the foul-mouthed publications in existence, such as the World, which has probably no equal in the newspaper press of any country for scurrility.’’ (London Daily N ews, September 27, 1864). Compare with this the opinion of a recent biographer of Joseph Pulitzer: ‘‘T he hysteria of Greeley, the ferocity of the abolitionists and the horrors of reconstruction are well visualized against the cooler, conservative and, at this distance, sensible attitude of the World.’’ (Don C. Seitz, Joseph Pulitzer, His Life and Letters [New York, 1924], 118.) The Miscegenation Issue in the Election of 1864 257 cratic quiz perpetrated upon the owlish leaders of the abolitionists!’’ T he editors of the World treated the whole affair drolly—but revealed unwittingly that they had all along known who the perpetrators were: ‘‘ ‘Scared by the sound themselves had made,’ the wicked wags, its authors, left events to their natural course; and from their anonymous castle of safety watched with delight the almost divine honors paid to their Abbot of Misrule.’’ T he Herald, the Leader and other Democratic journals had ‘‘gravely assailed the abominable doctrines of ‘Miscegenation,’ ’’ observed the World (omitting to mention that it too, in complete hypocrisy, had done likewise), and the ‘‘gospel of miscegenation’’ had been ‘‘glad tidings of great joy’’ to the ‘‘intellectual voluptuaries of fanaticism.’’ T he ‘‘doctrine of ‘Miscegenation,’ conceived as a satire,’’ had been ‘‘received as a sermon.’’ . . . the barbaric character of the compound word ‘‘miscegenation’’ was gladly overlooked even by Boston purists and the Westminster Review. . . . T he name will doubtless die out by virtue of its inherent malformation. We have bastard and hump-backed words enough already in our verbal army corps. Miscegenation had ‘‘passed into history,’’ concluded the World. ‘‘T he hoax and the hoaxed, the quiz and the quizzed, will live forever in the grateful midriff of a nation.’’80 T he correspondent of the London Morning Herald had looked forward with amusement to the expose of the hoax in the United States. T he rout of the ´ Copperheads however robbed him of his amusement. Nevertheless the Herald had to save face. ‘‘T he exposure . . . of the miscegenation hoax, with which two young Democrats humbugged the political world here, has created no little excitement in literary circles throughout the Northern States. T he Herald’s exposure, republished in the World newspaper of this city, has been copied everywhere, and the victims of the joke are compelled to bear a great deal of chaffing.’’81 T his was merely pap for the Herald’s readers. As a matter of fact, in the excitement created by Lincoln’s decisive triumph, the Republicans in their joy and the Copperheads in their chagrin paid little attention to the exposure of the fraud.82 ‘‘Any one of 80. Compare this fulsome glee with the righteous wrath of the Weekly World in its issue of September 15, 1864, under title of ‘‘Beware of Republican Forgeries’’: ‘‘Violent articles from the Charleston Mercury, and papers of that sort, abusing northern laborers, and ridiculing and insulting northern Democrats, were copied here by Republican papers as representing the true sentiments of the southern people.’’ 81. London Morning Herald, December 6, 1864. 82. Boston Journal (Evening Edition), November 21, 1864. T he London Morning Herald’s correspondent, however, continued to grind the axe. In the issue of December 13, 1864, which printed a plug for Mrs. Croly’s (Jennie June’s) Talks on Women’s Topics, he spoke scornfully of a jubilee gathering of young colored girls, celebrating Lincoln’s victory: ‘‘What with the contrast produced by the light dresses, coal black countenances, and irrepressibly curly wool, the unmiscegenetic spectator found it difficult to control the muscles of his face.’’ S. S. Cox, in his memoirs, recalling his ‘‘Miscegenation’’ speech of February 17, 1864, confessed that he was duped by the pamphlet which ‘‘afterwards turned out to be apocryphal. It was written by two young men connected with the New York press. So congenial were its sentiments with 258 Kaplan ordinary shrewdness,’’ commented the editor of the Republican Boston Journal a few days after the expose, ‘‘might have divined’’ that it was ‘‘a political pasqui´ nade.’’ He was ‘‘surprised to find in the columns’’ of some of his contemporaries ‘‘labored attempts to combat arguments and illustrations which should have been treated only with ridicule.’’ Although it had to be ‘‘confessed that the cunning authors . . . succeeded in obtaining for its doctrines a wide notoriety,’’ the book had done little harm. ‘‘T he fact is that the doctrine of miscegenation is not a practical question here at the North, and the public wisely concluded that it was safe to leave the matter with the Southerners who have been trying the experiment and testing the theory upon a large scale for a number of years.’’83 T here were some Copperhead diehards. One curious item of the aftermath was an illiterate and uncouth eight-page pamphlet that appeared in New York City shortly after the election bearing the title What Miscegenation Is! and What We Are to Expect N ow that Mr. Lincoln Is Re-elected, authored by one L. Seaman, L.L.D. and dedicated sarcastically to Henry Ward Beecher. T his pamphlet, chock-full of misinformation, was probably published immediately after the election but before the World had exposed its own hoax. Miscegenation—a ‘‘word not recognized by Webster, Johnson, or Worcester, and yet in general use’’—was, according to Seaman, ‘‘coined in New England, and for the times.’’ Amalgamation had ‘‘done very well for a time as a hobby but it soon lost its effect, and something new was needed to take its place. Accordingly the agitators got their heads together and invented the word ‘miscegenation’ as best suited to refine their cause, and at once declared themselves ‘Miscegenationists.’ ’’ A large and flourishing society soon sprang up under the appropriate title of the ‘‘Modern Order of Miscegenationist.’’ T he first society being formed in Boston, others sprang up rapidly throughout the State of Massachusetts, and from thence the contagion spread throughout all New England . . . was wafted from Maine to Oregon. . . . T hus, ‘‘not only New England but many of the Western and North Western States’’ had stood ‘‘in solid phalanx for Miscegenation, and with Lincoln trium- those of the leading Abolitionists, and so ingeniously was its irony disguised, that it was not only indorsed by the fanatical leaders all over the land, but no one in Congress thought of questioning the genuineness and seriousness of the document.’’ Cox goes on to compare the pamphlet to Archbishop Whately’s Historic Doubts Concerning N apoleon. (Eight Y ears in Congress, 352.) He was probably trying to lie his way out of connivance with Croly and Wakeman. 83. A few days later Wendell Phillips, in a lecture at Portland, Maine, said: ‘‘Again, no nation ever became great which was born of one blood. It is like the intermarriage of cousins. Spain is an unmixed nation, and she has sunk to a third-rate power. France blends a dozen races, and she leads the van. We should look therefore upon the colored race as we look upon the Irish and the Germans. . . . My goal is a homogeneous nationality which shall weld Boston and New Orleans, New York and Charleston into one thunderbolt, and make us able to control the continent. T hen the nations of Europe will respect us.’’ (Portland (Me.) Transcript, November 26, 1864, reprinted in N ational Anti-Slavery Standard, December 10, 1864.) T his is not Phillips at his best. Uncritical acceptance of quack ‘‘science’’ and of ‘‘manifest destiny’’ sometimes blurred his usually clear vision. The Miscegenation Issue in the Election of 1864 259 phantly re-elected the ‘ladies of Washington’ ’’ had ‘‘commenced to friz their hair.’’84 David Ross Locke, whose abolitionism carried over into the Reconstruction period, continued to poke fun at the straw-man of miscegenation. In a pamphlet of 1866 describing Johnson’s swing-around-the-circle, Petroleum Vesuvius Nasby, now ‘‘A Dimmicrat of T hirty Years Standing,’’ again climbed into the ring to comment publicly on our ‘‘noble President’’ . . . insulted by a bloody and brutal Radical and Miscegenationist.’’85 A little later in the year Nasby returned to the theme in a dispatch from ‘‘Confedrit X Roads (wich is in the Stait of Kentucky)’’: ‘‘Mrs. P.,’’ sed this Illinoiy store-keeper, which his name it wuz Pollock, ‘‘do yoo object to miscegenation?’’ ‘‘Missee——— what?’’ replied she, struck all uv a heap at the word. ‘‘Miscegenation—amalgamation—marrying whites with niggers.’’86 T hroughout 1867 and 1868 postmaster Nasby continued his reports to the nation. ‘‘My brethren,’’ preached one Bigler to the unreconstructed Democratic laity, I’d advise yoo all to abjoor Dimocrisy. Up North, the minit the nigger gits a vote, you are forced to legal missegenashun; down South, the affinity Dimocrisy hez for niggers hez bleached out the race to the color uv molasses. T here’s no hope for you, save in Ablishinism, which hez the happy fakulty uv doin justis to em without marrying em! ‘‘It didn’t make no difference,’’ concluded Nasby——— T hey didn’t know what he wuz talkin about. T he word ‘‘missegenashen’’ struck em with amazement, from wich they didn’t recover till we left. In speakin to such aujences, men must be keerful uv the words they youse.87 In the presidential election of 1868, Locke supported Grant. In the South, Sister Sallie’s The Color Line had succeeded the Reverend Josiah Priest’s ante-bellum Bible Defence of Slavery. Widely circulated in the Gulf States during the entire period of Reconstruction, the new ‘‘White Line Bible’’ thundered again at ‘‘the doctrine of the abolitionists, the free-lovers, the amalgamationists, the miscegen- 84. T he Democratic papers did not give up their ‘‘miscegenation’’ harangues after Lincoln’s election; thus the Manchester (N.H.) Daily Union on July 1, 1865, in correspondence from Concord: ‘‘T he intelligent contraband is already on the way to New England. . . . Last evening, a colored man hailing from Carolina, with some gift of the gab, and big lungs, addressed a large crowd near the corner of Park and Main Streets. T he Abolitionists were delighted. . . . He advocated miscegenation, and intimated that a mixture of the white and black races would make a most splendid race for this country. Finally, several soldiers pitched into him, and bade him ‘dry up.’ ’’ 85. Swinging Round the Circle; or, Andy’s Trip to the West. Together With A Life of its Hero (New York, 1866), no pagination. 86. D. R. Locke, The Moral History of America’s Life Struggle (Boston, 1874), 261. 87. Petroleum V. Nasby, Ekkoes from Kentucky Bein a Perfect Record Uv the Ups, Downs, and Experiences uv the Dimocrisy, Doorin The Eventful Y ear 1867 Ez Seen by a N aturalized Kentuckian (Boston, 1868), 278–279. T his Nasby pamphlet was illustrated by T homas Nast. 260 Kaplan ationists and the pseudo-philanthropists,’’ who believed that ‘‘all mankind of every blood and color on the habitable globe, are of Adam’s race, and are brothers and sisters nationally.’’88 ‘‘T he Dimokrasy never hed afore it sich brilliant prospecks,’’ observed Nasby, ‘‘or the promise uv a victory so easily won. We hev an abundance uv material to draw from. T her is waitin to fall into our ranks all uv the followin classes.’’ Foremost in the North were ‘‘All them wich dont want ther dawters to marry niggers, and wich demand a law to pertect em agin em.’’89 Neither Wakeman nor Croly ever admitted having a hand in writing the Miscegenation pamphlet. Wakeman, indeed, only lived a half dozen years after its appearance. In 1868 he was appointed stenographer to the New York Senate and in July of that year served as official reporter of the National Democratic Convention held in New York City.90 T he first inkling of his connivance in the pamphlet was given in his obituary printed in the paper which had abetted the fraud. ‘‘His humor on paper,’’ noted the New York World of March 21, 1870, ‘‘was conspicuous in the celebrated Miscegenation hoax, of which he was part author.’’ Did Croly write the obituary? Croly’s part in the Miscegenation hoax—evidently the principal one—has remained a kind of well-kept secret to the present day. And this is rather curious and significant, for he was a well-known figure in his time—prominent newspaperman, magazine owner and editor, contributor to periodicals, author of books and a pioneer founder of American positivism.91 One wonders how his sleazy role in the affair was kept quiet. He himself had coined the new word which had given a label to the issue. ‘‘I think Mr. Croly was responsible for the invention of the name,’’ wrote his wife nine years after his death; he claimed it ‘‘added a new, distinctive, and needed word to our vocabulary.’’92 So it did; but Croly never came forward to claim the honor of invention. Moreover, neither in obituary, wherein his numerous works were usually listed, nor in biography written before or immediately after his death, was Miscegenation ever mentioned.93 T he Dictionary of American Biography lists him as the principal author of Miscegenation 88. Sister Sallie, The Color Line, Devoted to the Restoration of Good Government, Putting An End to N egro Authority and Misrule, And Establishing A White Man’s Government in the White Man’s Country by Organizing the White People of the South (n.p., n.d.), 60. T he copy of this pamphlet in the Boston Public Library has been marked by James Redpath (1833–1891), publisher of W. W. Brown’s The Black Man and author of Echoes of Harper’s Ferry (1860), ‘‘By Rev. T hompson.’’ 89. Petroleum V. Nasby, The Impendin Crisis uv the Dimocracy (New York, 1868), 17. 90. Official Proceedings of the N ational Democratic Convention Held at N ew Y ork, July 4–9, 1868. (Boston, 1868.) 91. ‘‘His journalistic career of thirty-five years covered the whole period of the Civil War, and at all times was of the busiest kind.’’ (New York World, May 1, 1889.) He was ‘‘one of the best known journalists in this country.’’ (N ew Y ork Times, May 1, 1889.) 92. MS letter from Mrs. Croly, Dec. 15, 1900, in Boston Athenaeum. 93. New York Times, New York Daily Tribune, New York World, May 1, 1889; General Alumni Catalogue of N ew Y ork University, 1883–1905 (New York, 1906). The Miscegenation Issue in the Election of 1864 261 but is unaware of the fact that the pamphlet was a hoax—labels him uncritically as an independent, fearless, unorthodox, iconoclast and reformer.94 While he lived, no one—with the exception of the bibliographer Sabin—ever accused him of authoring the pamphlet, and to his dying day, 25 years later, Croly never admitted authorship or mentioned the word miscegenation in any of his voluminous writings. T he word had entered the language for good, and others were employing it; he himself, dabbling in the Noyesian theory of stirpiculture and continually discussing subjects in which it might conveniently have been employed, always used the old term he had condemned—amalgamation. T he shameful secret was hugged close; Mrs. Croly, who, in an obituary on her husband’s death had not disclosed it, later discussed the matter feebly and defensively, and, at that, only when forced to it. ‘‘T ho’ it [the pamphlet] was written partly in the spirit of joke [farce?],’’ she wrote years later at the turn of the century, ‘‘it was not a hoax, and was not palmed off upon the public eye as one. . . . I remember the episode perfectly, and the half joking, half earnest spirit in which the pamphlet was written.’’95 Her apology is pitiful and guilty; for the facts challenge it.96 Croly’s career after 1864 was a varied one. His whole life, linked up as it was with many important aspects of the American scene in the second half of the nineteenth century—the Civil War, the growth of American sensational and graphic journalism, the history of American philosophy, the development of the New York City real estate interest—deserves a book of its own. What few sketchy facts are given now are only designed to complete the picture of the ‘‘miscegenation’’ phase of his career. Following the election of Grant to the presidency, the relationship of managing editor Croly to owner-editor Marble of the New York World became one of running feud—if not in principle, then in circulation-building tactic. When the Times fought T weed, Croly begged Marble either to follow suit or to be neutral, but the World supported T weed. When Marble supported Greeley against Grant for a second term—and Greeley was defeated—Croly handed in his resignation. Meanwhile he had been busy. In 1867, with C. W. Sweet, he had founded the Real Estate Record & Builders Guide, a weekly paper dedicated to the real estate interest, which for the next six years he owned and managed with his friend.97 By 1868, having gained a reputation as a party stalwart, he wrote the campaign biography of Seymour and Blair for the Democratic Party. T ypical campaign hack-work it is, on its first pages striking a note reminiscent of the writer’s earlier unsigned effort for the Democracy: ‘‘T he contest has opened very bitterly. Nor 94. Brother Basil Leo Lee mentions the pamphlet in passing and evidently accepts it as bona fide. (op. cit., 163). 95. MS letter in Boston Atheneaum from Mrs. Croly, dated Dec. 15, 1900. 96. In an obituary on Mrs. Croly’s death in 1901, St. Clair McKelway wrote: ‘‘T heir union was not made any less congenial by marked dissimilarity of convictions on cardinal subjects.’’ T he language here is equivocal. According to one interpretation it might explain Mrs. Croly’s reticence on the Miscegenation question. (Memories of Jane Cunningham Croly [New York, 1904], 215). 97. Real Estate Record & Builders Guide, XLIII (May 4, 1889), 613–614. 262 Kaplan is this surprising. T here are vast material interests at stake. A question of racesuperiority is involved. . . .’’98 During these years he was also an occasional contributor to the periodical press,99 and in 1870 founded and edited a typographically bizarre magazine called The Modern Thinker, in which he indulged his predilection for anonymity by writing articles under various inverted pseudonyms and initials. It is worthy of note that one of the contributors to this magazine—which gave up the ghost after its second issue—was none other than the duped Abolitionist, Albert Brisbane. Although the ‘‘new thought’’ and positivist articles that filled its pages discussed stirpiculture, eugenic socialism and Noyesism, the word miscegenation never appeared. By this time, Croly had become an enthusiastic partisan of Auguste Comte’s positivist religion of humanity and together with T . B. Wakeman (father of George, the collaborator of Miscegenation) was actively organizing Comtean churches in New York City. In 1871, under the name of C. G. David, he published in New York a handbook for the new movement titled A Positivist Primer, a collection of ‘‘Familiar Conversations on the Religion of Humanity.’’ A year after his resignation from the World, Croly helped to found the illustrated New York Daily Graphic, where he served as editor-in-chief until 1878, resigning in that year because of interference by the owners. He had severed connections with the Real Estate Record in 1873 upon taking up his job with the Graphic and now after a two year lay-off from journalism and despite poor health he resumed his work with his friend Sweet. For the next nine years, up to a week before his death, he was the Real Estate Record’s chief editorial writer. During these years Croly conducted a column for the Record under the heading of Our Prophetic Department and in 1872 attained a small-scale fame by predicting the crisis of the following year and naming Jay Cooke and Company and the Northern Pacific as the first victims.100 In 1888, shortly before his death, most of these columns, edited and expanded, he collected into a book entitled Glimpses of the Future.101 It is an interesting, if not greatly important book, and treats of everything under the sun in the author’s typical pseudo-logical, hare-brained style.102 On its opening pages Croly states that the ‘‘most serious difficulty in speculating as to the future is the liability to imagine Utopias. From the ‘Republic’ of Plato down to Edward Bellamy’s ‘Looking Backward,’ all writers have indulged 98. D. G. Croly, Campaign Lives of Seymour and Blair (New York, 1868). T he biography begins as follows: ‘‘In the compilation of this work I have had the following aims in view: . . . T o deal honestly by my readers, making no unfair appeals to passion or prejudice, giving currency to no doubtful statements merely because they might damage the Republican party or its Candidates.’’ 99. N orthern Monthly, February 1868; Galaxy, November 1869. 100. John Howard Brown, ed., Lamb’s Biographical Dictionary of the United States (Boston, 1900), II, 259. 101. David Goodman Croly, Glimpses of the Future, Suggestions as to the Drift of Things (New York, 1888). 102. It might be included as one of the flood of prophetic and Utopian volumes of the period. See Vernon Louis Parrington, Jr., American Dreams, A Study of American Utopias (Providence, 1947), which, however, neither discusses the volume nor lists it in the bibliography. The Miscegenation Issue in the Election of 1864 263 their fancy for ideal social states.’’103 Some of the ideas promulgated in the dialogues of this book (with new anti-Semitic ideas thrown in) establish links with the racism of the Miscegenation hoax.104 103. Glimpses of the Future, 5. 104. In 1863 Croly had written: ‘‘T he time is coming when Russian dominion will stretch to the Atlantic Ocean. Nor should such an event be dreaded. What the barbarians did for demoralized and degenerate Rome, the Russians will do for the effete and worn-out populations of Western Europe. T hese will be conquered. T heir civilization, such as it is, will be overthrown; but the new infusion of a young and composite blood will regenerate the life of Europe, will give it a new and better civilization, because the German, French, Italian, Spanish, and English will be mixed with a miscegenetic and progressive people.’’ (Miscegenation, 10) T wenty-four years later in Glimpses of the Future the same kind of prediction was made: ‘‘A great source of strength to the Russian power is its ability to absorb and assimilate the races it conquers. . . . T he blending of races, which has been going on in Russia for three hundred years or longer, is something remarkable.’’ (p. 35) T hat this is not the only traceable link may be seen by a few other racist quotations from Glimpses, which are here subjoined: . . . We can absorb the Dominion . . . for the Canadians are of our own race . . . but Mexico, Central America, the Sandwich Islands, and the West India Islands will involve governments which cannot be democratic. We will never confer the right of suffrage upon the blacks, the mongrels of Mexico or Central America, or the Hawaiians.’’ (pp. 22, 23.) T he census of 1880 showing the disproportionate large increase of the blacks was a surprise, for the whites had the advantage of increase by foreign immigration, and it was supposed that the freed slaves would show a heavy mortality, in view of their habits and indifference to the well-being of their offspring. . . . I presume the race of mulatoes is dying out. Some few will intermingle with whites, but the bulk of them will become darker in hue as each generation passes by, for the irregular alliances between blacks and whites are not by any means as frequent under freedom as during slavery. Hence the dividing line between the two races will yearly become more marked. If the blacks left to themselves become as degraded as in the West India Islands, the time may come when they will be treated as badly as the Chinese and Red Indians are now, even to the extent of depriving them of their political privileges. Practically this is the case to-day over a large section of the South. T he white race is dominant and will keep their position, no matter how numerous the negroes may become. (pp. 23, 24.) Mr. Newlight— . . . the doctrine of human rights applied to the whole human family does not work. Free institutions are only fitted for the Caucasian race, and have not proved workable, except among the English-speaking races. Sir Oracle— . . . T he negro to-day is the same as he was at the time of Sesostris. He makes no progress except under the tutelage of the white. Left to himself he sinks back into barbarism, as witness Hayti. Mr. Newlight— . . . Froude shows that the West Indies are becoming barbarized; that any change which permits the blacks to dominate over the whites will end in the destruction of all civilization. . . . (pp. 133–134.) . . . T here ought to be some agreement for organizing a system that will compel the savages of Africa to do some regular work. . . . Africa will never be redeemed, except in two ways: either the natives must be forced to work, or they must be killed off to give place for the races who will work. (p. 135.) . . . Cuba, Jamaica, and Hayti ought, in the fulness of time, to belong to the United States. But our people will not be willing to hand them over to the tender mercies of the degraded colored people in those islands. Universal suffrage is a farce when exercised by savages. . . . Everything is going to the dogs in those beautiful and fertile islands because 264 Kaplan Croly’s was the sensational type of journalistic mind that liked to claim ‘‘firsts.’’ He boasted of ‘‘discovering’’ George Wakeman, G. A. T ownsend, J. B. Stillson, A. C. Wheeler (Nym Crinkle), Clinton Stuart, H. E. Sweetser and St. Clair McKelway. He claimed to be one of the first to ‘‘bring before the American people prominently the matter of minority representation,’’ on the basis developed by Hare and Mill, in his Galaxy article. He was proud of being one of the founders of the Real Estate Exchange, which displayed its flag at half-mast in his memory.105 But he never boasted of his most lasting discovery—the word miscegenation. T he assessments of his mind and character made by his friends and relatives a few weeks after his death are interesting. T he eulogia always contain reservations. ‘‘His faults were those of a nervous temperament, combined with great intellectual force, and a strength of feeling which in some directions and under certain circumstances became prejudices,’’ wrote his wife, whose pen-name, Jennie June, had become a household word in the country and who had achieved an ampler fame of her own as a pioneer of the women’s club movement in America.106 ‘‘Mr. Croly won an honorable position in New York journalism,’’ observed his brotherin-law, the Reverend John Cunningham. ‘‘He was a conservative democrat of the strictest sort, a radical in religion, and had but little appreciation of the deeper forces at work in society and in national life.107 Although Edmund C. Stedman praised him unqualifiedly, the memorial notices of many of Croly’s former colleagues of the press were full of cutting reservations. Mr. Croly was ‘‘brought up in an atmosphere of politics,’’ noted J. D. Bell. ‘‘His culture failed of being broad enough fully to tolerate differences of opinion. . . . In his utterances he was often very radical, but in his practice he was always thoroughly conservative. . . . All the arrangements that Mr. Croly made were thoroughly practical—suited to the time and occasion. He made the most of his opportunities.’’ Croly had a ‘‘tendency to make one think of principles as a device rather than as a duty, of reforms as a hobby rather than as a mission, of opinions as assets in a schedule,’’ observed St. Clair McKelway, who had joined the World in 1866 and later became editor of the Brooklyn Daily Eagle. ‘‘T he man lived monogamy, voted Democracy, and believed Positivism.’’108 Yes, Croly believed positivism—and Copperhead racism, too. Eight years after his Miscegenation hoax, he dedicated his Positivist Primer to the ‘‘only supreme of the progressive degradation of the free negroes. . . . So far as industry and civilization are concerned, the emancipation of the slaves in the West India Islands has proved disastrous in every way. (p. 137.) 105. Real Estate Record & Builders Guide, XLIII (May 4, 1889), 615–616. 106. Real Estate Record & Builders Guide, Supplement, XLIII (May 18, 1889), passim. 107. John Cunningham, D.D., ‘‘A Brother’s Memories,’’ in Memories of Jane Cunningham Croly (New York, 1904), 7. 108. Real Estate Record & Builders Guide, Supplement, XLIII (May 18, 1889), 702. The Miscegenation Issue in the Election of 1864 265 being man can ever know, T he Great But Imperfect God, HUMANIT Y, In whose image all other Gods were made, And for whose service all other Gods exist, And to whom all the children of men owe Labor, Love, and Worship.’’ Evidently, Comtean positivism, Croly’s religion of humanity, was not broad enough to admit the Negro as equal. THE ‘‘TRAGIC MULATTO ’’ AND O THER THEMES O F INTERRACIAL LITERATURE American Literary T radition and the Negro* AL AIN L OCKE I doubt if there exists any more valuable record for the study of the social history of the Negro in America than the naıve reflection of American social attitudes ¨ and their changes in the literary treatment of Negro life and character. More sensitively, and more truly than the conscious conventions of journalism and public debate, do these relatively unconscious values trace the fundamental attitudes of the American mind. Indeed, very often public professions are at utter variance with actual social practices, and in the matter of the Negro this variance is notably paradoxical. T he statement that the North loves the Negro and dislikes Negroes, while the South hates the Negro but loves Negroes, is a crude generalization of the paradox, with just enough truth in it, however, to give us an interesting cue for further analysis. What this essay attempts must necessarily be a cursory preliminary survey: detailed intensive study of American social attitudes toward the Negro, using the changes of the literary tradition as clues, must be seriously undertaken later. For a cursory survey, a tracing of the attitude toward the Negro as reflected in American letters gives us seven stages or phases, supplying not only an interesting cycle of shifts in public taste and interest, but a rather significant curve for social history. And more interesting perhaps than the attitudes themselves are the underlying issues and reactions of class attitudes and relationships which have been basically responsible for these attitudes. Moreover, instead of a single fixed attitude, sectionally divided and opposed, as the popular presumption goes, it will be seen that American attitudes toward the Negro have changed radically and often, with dramatic turns and with a curious reversal of role between the North ˆ and the South according to the class consciousness and interests dominant at any given time. With allowances for generalization, so far as literature records it, Negro life has run a gamut of seven notes,—heroics, sentiment, melodrama, comedy, farce, problem-discussion and æsthetic interest—as, in their respective turns, strangeness, domestic familiarity, moral controversy, pity, hatred, bewilderment, and curiosity, have dominated the public mind. Naturally, very few of these attitudes have been favorable to anything approaching adequate or even artistic portrayal; the Negro has been shunted from one stereotype into the other, but in this respect has been no more the sufferer than any other subject class, the particular brunt of whose servitude has always seemed to me to consist in the * From Alain Locke, ‘‘American Literary T radition and the Negro.’’ Modern Quarterly 3.3 (May–July 1916): 215–222. 269 270 Locke fate of having their psychological traits dictated to them. Of course, the Negro has been a particularly apt social mimic, and has assumed protective coloration with almost every change—thereby hangs the secret of his rather unusual survival. But of course a price has been paid, and that is that the Negro, after three hundred years of residence and association, even to himself, is falsely known and little understood. It becomes all the more interesting, now that we are verging for the first time on conditions admitting anything like true portraiture and self-portrayal to review in retrospect the conditions which have made the Negro traditionally in turn a dreaded primitive, a domestic pet, a moral issue, a ward, a scapegoat, a bogey and pariah, and finally what he has been all along, could he have been seen that way, a flesh and blood human, with nature’s chronic but unpatented varieties. Largely because Negro portraiture has rarely if ever run afoul of literary genius, these changes have rather automatically followed the trend of popular feeling, and fall almost into historical period stages, with very little overlapping. Roughly we may outline them as a Colonial period attitude (1760–1820), a pre-Abolition period (1820–45), the Abolitionist period (1845–65), the Early Reconstruction period (1870–85), the late Reconstruction period (1885–95), the Industrial period (1895– 1920), and the Contemporary period since 1920. T he constant occurrence and recurrence of the Negro, even as a minor figure, throughout this wide range is in itself an indication of the importance of the Negro as a social issue in American life, and of the fact that his values are not to be read by intrinsic but by extrinsic coefficients. He has dramatized constantly two aspects of white psychology in a projected and naıvely divorced shape—first, the white man’s wish for self¨ justification, whether he be at any given time anti-Negro or pro-Negro, and, second, more subtly registered, an avoidance of the particular type that would raise an embarrassing question for the social conscience of the period; as, for example, the black slave rebel at the time when all efforts were being made after the abatement of the slave trade to domesticate the Negro; or the defeatist fiction types of 1895–1920, when the curve of Negro material progress took such a sharp upward rise. T here is no insinuation that much of this sort of reflection has been as conscious or deliberately propagandist as is often charged and believed; it is really more significant as an expression of ‘‘unconscious social wish,’’ for whenever there has been direct and avowed propaganda there has always been awakened a reaction in public attitude and a swift counter-tendency. Except in a few outstanding instances, literature has merely registered rather than moulded public sentiment on this question. T hrough the Colonial days and extending as late as 1820, Negro life was treated as strange and distant. T he isolated instances treat the Negro almost heroically, with an exotic curiosity that quite gaudily romanticized him. At that time, as in the more familiar romantic treatment of the American Indian, there was registered in the emphasis upon ‘‘savage traits’’ and strange ways a revulsion to his social assimilation. T he typical figure of the period is a pure blood, often represented as a ‘‘noble captive,’’ a type neither fully domesticated nor understood, and shows that far from being a familiar the Negro was rather a dreaded curiosity. Incidentally, this undoubtedly was a period of close association between the more domesticated Indian tribes and the Negroes—an almost forgotten chapter in the American Literary Tradition and the Negro 271 history of race relations in America which the heavy admixture of Indian blood in the Negro strain silently attests; so the association of the two in the public mind may have had more than casual grounds. T wo of the most interesting features of this period are the frank concession of ancestry and lineage to the Negro at a time before the serious onset of miscegenation, and the hectic insistence upon Christian virtues and qualities in the Negro at a time when the Negro masses could not have been the model Christians they were represented to be, and which they did in fact become later. As James Oneal has pointed out in an earlier article, the notion of the boon of Christianity placated the bad conscience of the slave traders, and additionally at that time there was reason at least in the feeling of insecurity to sense that it was good social insurance to stress it. By 1820 or 1825 the Negro was completely domesticated, and patriarchal relations had set in. T he strange savage had become a sentimentally humored peasant. T he South was beginning to develop its ‘‘aristocratic tradition,’’ and the slave figure was the necessary foil of its romanticism. According to F. P. Gaines, ‘‘the plantation makes its first important appearance in American literature in John Pendleton Kennedy’s Swallow Barn (1832) and William Carruther’s The Cavaliers of Virginia (1834).’’ As one would expect, the really important figures of the regime are discreetly ignored,—the mulatto house servant concubine and her ´ children; the faithful male body-servant, paradoxically enough, came in for a compensating publicity. In fact, the South was rapidly developing feudal intricacies and their strange, oft-repeated loyalties, and was actually on the verge of a golden age of romance when the shadow of scandal from Northern criticism darkened the high-lights of the whole regime and put the South on the defensive. It is a ´ very significant fact that between 1845 and 1855 there should have appeared nearly a score of plays and novels on the subject of the quadroon girl and her tragic mystery, culminating in William Wells Brown’s bold expose Clotel; or, The Pres´ ident’s Daughter (1853), as the caption of the unexpurgated English edition of this black Abolitionist’s novel read. Southern romance was chilled to the marrow, and did not resume the genial sentimental approach to race characters for over a generation. With the political issues of slave and free territory looming, and the moral issues of the Abolitionist controversy coming on, Negro life took on in literature the aspects of melodrama. T he portraiture which had started was hastily dropped for exaggerated types representing polemical issues. T he exaggerated tone was oddly enough set by the Negro himself, for long before Uncle Tom’s Cabin (1852) the lurid slave narratives had set the pattern of Job-like suffering and melodramatic incident. Apart from its detailed dependence on Josiah Henson’s actual story, Mrs. Stowe’s novel simply capitalized a pattern of story and character already definitely outlined 1845–50, and in some exceptional anticipations ten years previous. Of course, with this period the vital portrayal of the Negro passed temporarily out of the hands of the South and became dominantly an expression of Northern interest and sentiment. In its controversial literature, naturally the South responded vehemently to the Abolitionist’s challenge with the other side of the melodramatic picture,—the Negro as a brute and villain. But the formal retaliations of Reconstruction fiction were notably absent; except for a slight shift to the 272 Locke more docile type of Negro and peasant life further removed from the life of the ‘‘big house,’’ G. P. James and others continued the mildly propagandist fiction of the patriarchal tradition,—an interesting indication of how the impending danger of the slave regime was minimized in the mass mind of the South. Uncle Tom’s ´ Cabin, of course, passes as the acme of the literature of the Abolitionist period, and it is in relation to its influence upon the issues involved. But as far as literary values go, Clotel by Wells Brown and The Garies and Their Friends by Frank J. Webb were closer studies both of Negro character and of the Negro situation. T heir daring realism required them to be published abroad, and they are to be reckoned like the Paris school of Russian fiction as the forerunners of the native work of several generations later. Especially Webb’s book, with its narrative of a sophisticated and cultured group of free Negroes, was in its day a bold departure from prevailing conventions. Either of these books would have been greater still had it consciously protested against the melodramatic stereotypes then in public favor; but the temptation to cater to the vogue of Uncle Tom’s Cabin was perhaps too great. T he sensational popularity of the latter, and its influence upon the public mind, is only another instance of the effect of a great social issue to sustain melodrama as classic as long as the issue lives. T he artistic costs of all revolutions and moral reforms is high. T he Early Reconstruction period supplied the inevitable sentimental reaction to the tension of the war period. T he change to sentimental genre is quite understandable. If the South could have resumed the portrayal of its life at the point where controversy had broken in, there would be a notable Southern literature today. But the South was especially prone to sugar-coat the slave regime in a ´ protective reaction against the exposures of the Abolitionist literature. Northern fiction in works like the novels of Albion T ourgee continued its incriminations, and Southern literature became more and more propagandist. At first it was only in a secondary sense derogatory of the Negro; the primary aim was selfjustification and romantic day-dreaming about the past. In the effort to glorify the lost tradition and balm the South’s inferiority complex after the defeat, Uncle T om was borrowed back as counter-propaganda, refurbished as the devoted, dependent, happy, care-free Negro, whom the South had always loved and protected, and whom it knew ‘‘better than he knew himself.’’ T he protective devices of this fiction, the accumulative hysteria of self-delusion associated with its promulgation, as well as the comparatively universal acceptance of so obvious a myth, form one of the most interesting chapters in the entire history of social mind. T here is no denying the effectiveness of the Page-Cable school of fiction as Southern propaganda. In terms of popular feeling it almost recouped the reverses of the war. T he North, having been fed only on stereotypes, came to ignore the Negro in any intimate or critical way through the deceptive influence of those very stereotypes. At least, these figures Southern fiction painted were more convincingly human and real, which in my judgment accounted in large part for the extraordinary ease with which the Southern version of the Negro came to be accepted by the Northern reading public, along with the dictum that the South knows the Negro. American Literary Tradition and the Negro 273 But the false values in the situation spoiled the whole otherwise promising school—Chandler Harris excepted—as a contrast of the later work of Cable or Page with their earlier work will convincingly show. Beginning with good genre drawing that had the promise of something, they ended in mediocre chromographic romanticism. T hough the genteel tradition never fully curdled into hatred, more and more hostilely it focussed upon the Negro as the scapegoat of the situation. And then came a flood of flagrantly derogatory literature as the sudden rise of figures like T homas Dixon, paralleling the Vardamans and T illmans of political life, marked the assumption of the master-class tradition by the mass psychology of the ‘‘poor-whites.’’ Reconstruction fiction thus completed the swing made quite inevitable by the extreme arc of Abolitionist literature: the crudities and animus of the one merely countered the bathos and bias of the other. In both periods the treatment of Negro life was artistically unsatisfactory, and subject to the distortions of sentiment, propaganda, and controversy. T he heavy artillery of this late Reconstruction attack has shambled its own guns; but the lighter fusillade of farce still holds out and still harasses those who stand guard over the old controversial issues. But the advance front of creative effort and attack has moved two stages further on. As a result of the discussion of the Late Reconstruction period ‘‘White Supremacy’’ had become more than a slogan of the Southern chauvinists; it became a mild general social hysteria, which gave an almost biological significance to the race problem. It is interesting to note how suddenly the ‘‘problem of miscegenation’’ became important at a time when there was less of it than at any period within a century and a quarter, and how the mulatto, the skeleton in the family closet, suddenly was trotted out for attention and scrutiny. From 1895 or so on, this problem was for over a decade a veritable obsession; and from William Dean Howells’ Imperative Duty to Stribling’s Birthright the typical and dominant figure of literary interest is the mulatto as a symbol of social encroachment, and the fear of some ‘‘atavism of blood’’ through him wreaking vengeance for slavery. While serious literature was discussing the mulatto and his problem, less serious literature was in a sub-conscious way no less seriously occupied with the negative side of the same problem;—namely, extolling the unambitious, servile, and ‘‘racially characteristic’’ Negro who in addition to presenting diverting humor represented no serious social competition or encroachment. T he public mind of the whole period was concentrated on the Negro ‘‘in’’ and ‘‘out of his place’’; and the pseudo-scientific popularizations of evolutionism added their belabored corollaries. But the real basic proposition underlying it all was the sensing for the first time of the serious competition and rivalry of the Negro’s social effort and the failure of his social handicaps to effectively thwart it. Many will be speculating shortly upon the reasons for the literary and artistic emancipation of the Negro, at a time when his theme seemed most hopelessly in the double grip of social prejudice and moral Victorianism. Of course, realism had its share in the matter; the general reaction away from types was bound to reach even the stock Negro stereotypes. Again, the local color fad and the naturally exotic tendencies of conscious æstheticism gave the untouched field of Negro life 274 Brown an attractive lure. T he gradual assertion of Negro artists trying at first to counteract the false drawing and values of popular writers, but eventually in the few finer talents motivated by the more truly artistic motives of self-expression, played its additional part. But in my judgment the really basic factor in the sharp and astonishing break in the literary tradition and attitude toward the Negro came in the revolt against Puritanism. T his seems to me to explain why current literature and art are for the moment so preoccupied with the primitive and pagan and emotional aspects of Negro life and character; and why suddenly something almost amounting to infatuation has invested the Negro subject with interest and fascination. T he release which almost everyone had thought must come about through a change in moral evaluation, a reform of opinion, has actually and suddenly come about merely as a shift of interest, a revolution of taste. From it there looms the imminent possibility not only of a true literature of the Negro but of a Negro Literature as such. It becomes especially interesting to watch whether the artistic possibilities of these are to be realized, since thrice before this social issues have scotched the artistic potentialities of Negro life, and American literature is thereby poorer in the fields of the historical romance, the period novel, and great problemdrama than it should be. But the work of Waldo Frank, Jean T oomer, Walter White, Rudolph Fisher, and Du Bose Heyward promises greatly; and if we call up the most analogous case as a basis of forecast,—the tortuous way by which the peasant came into Russian literature and the brilliant sudden transformation his advent eventually effected, we may predict, for both subject and its creative exponents, the Great Age of this particular section of American life and strand in the American experience. From ‘‘Negro Character as Seen by White Authors’’* ST ERL IN G A. BROWN The Brute Negro All Scientific Investigation of the Subject Proves the N egro to Be An Ape.’’ Chas. Carroll, The N egro a Beast Because the pro-slavery authors were anxious to prove that slavery had been a benefit to the Negro in removing him from savagery to Christianity, the stereotype of the ‘‘brute Negro’’ was relatively insignificant in antebellum days. T here were references to vicious criminal Negroes in fiction (vicious and criminal being syn- * From Sterling A. Brown, ‘‘Negro Character as Seen by White Authors.’’ Journal of N egro Education 2 (1933): 179–203; here 191–196. Negro Character as Seen by White Authors 275 onymous to discontented and refractory), but these were considered as exceptional cases of half-wits led astray by abolitionists. The Bible Defence of Slavery, however, in which the Rev. Priest in a most unclerical manner waxes wrathful at abolitionists, sets forth with a great array of theological argument and as much ridiculousness, proofs of the Negro’s extreme lewdness. Sodom and Gomorrah were destroyed because these were strongholds of N egro vice. T he book of Leviticus proved that N egroes outraged all order and decency of human society. Lewdness of the most hideous description was the crime of which they were guilty, blended with idolatry in their adoration of the gods, who were carved out of wood, painted and otherwise made, so as to represent the wild passions of lascivious desires. . . . T he baleful fire of unchaste amour rages through the negro’s blood more fiercely than in the blood of any other people . . . on which account they are a people who are suspected of being but little acquainted with the virtue of chastity, and of regarding very little the marriage oath.1 H. R. Helper, foe of slavery, was no friend of the Negro, writing, in 1867, N ojoque, a lurid condemnation of the Negro, setting up black and beastly as exact synonyms. Van Evrie’s White Supremacy and N egro Subordination, or N egroes A Subordinate Race, and ( so-called) Slavery Its N ormal Condition gave ‘‘anthropological’’ support to the figment of the ‘‘beastly Negro,’’ and The N egro A Beast (1900) gave theological support. T he title page of this book runs: T he Reasoner of the Age, the Revelator of the Century! T he Bible As It Is! T he Negro and his Relation to the Human Family! T he Negro a beast, but created with articulate speech, and hands, that he may be of service to his master—the White Man . . . by Chas. Carroll, who has spent 15 years of his life and $20,000.00 in its compilation. Who could ask for anything more? Authors stressing the mutual affection between the races looked upon the Negro as a docile mastiff. In the Reconstruction this mastiff turned into a mad dog. ‘‘Damyanks,’’ carpetbaggers, scalawags, and New England schoolmarms affected him with the rabies. T he works of T homas Nelson Page are good examples of this metamorphosis. When his Negro characters are in their place, loyally serving and worshipping ole Marse, they are admirable creatures, but in freedom they are beasts, as his novel Red Rock attests. The N egro: The Southerner’s Problem says that the state of the Negro since emancipation is one of minimum progress and maximum regress. [T his] is borne out by the increase of crime among them, by the increase of superstition, with its black trail of unnamable immorality and vice; by the homicides and murders, and by the outbreak and growth of that brutal crime which has chiefly brought about the frightful crime of lynching which stains the good name of the South and has spread northward with the spread of the ravisher. . . . T he crime of rape . . . is the fatal product of new conditions. . . . T he 1. Josiah Priest, Bible Defence of Slavery, Glasgow, Ky.: W. S. Brown, 1851, eighth section. 276 Brown Negro’s passion, always his controlling force, is now, since the new teaching, for the white woman. [Lynching is justifiable] for it has its root deep in the basic passions of humanity; the determination to put an end to the ravishing of their women by an inferior race, or by any race, no matter what the consequence. . . . A crusade has been preached against lynching, even as far as England; but none has been attempted against the ravishing and tearing to pieces of white women and children.2 T he best known author of Ku Klux Klan fiction after Page is T homas Dixon. Such works as The Clansman, and The Leopard’s Spots, because of their sensationalism and chapter titles (e.g., ‘‘T he Black Peril,’’ ‘‘T he Unspoken T error,’’ ‘‘A T housand Legged Beast,’’ ‘‘T he Hunt for the Animal’’), seemed just made for the mentality of Hollywood, where D. W. Griffith’s in The Birth of a N ation made for T homas Dixon a dubious sort of immortality, and finally fixed the stereotype in the mass-mind. T he stock Negro in Dixon’s books, unless the shuffling hat-in-hand servitor, is a gorilla-like imbecile, who ‘‘springs like a tiger’’ and has the ‘‘black claws of a beast.’’ In both books there is a terrible rape, and a glorious ride of the Knights on a Holy Crusade to avenge Southern civilization. Dixon enables his white geniuses to discover the identity of the rapist by using ‘‘a microscope of sufficient power [to] reveal on the retina of the dead eyes the image of this devil as if etched there by fire.’’ . . . T he doctor sees ‘‘T he bestial figure of a negro—his huge black hand plainly defined. . . . It was Gus.’’ Will the wonders of science never cease? But, perhaps, after all, Negroes have been convicted on even flimsier evidence. Fortunately for the self-respect of American authors, this kind of writing is in abeyance today. Perhaps it fell because of the weight of its own absurdity. But it would be unwise to underestimate this stereotype. It is probably of great potency in certain benighted sections where Dixon, if he could be read, would be applauded—and it certainly serves as a convenient self-justification for a mob about to uphold white supremacy by a lynching. The Tragic Mulatto The gods bestow on me A life of hate, The white man’s gift to see A nigger’s fate. ‘‘The Mulatto Addresses his Savior on Christmas Morning,’’ Seymour Gordden Link Stereotyping was by no means the monopoly of pro-slavery authors defending their type of commerce, or justifying their ancestors. Anti-slavery authors, too, 2. T homas Nelson Page, The N egro: The Southerner’s Problem. New York: Chas. Scribners’ Sons, 1904. (Italics mine). Negro Character as Seen by White Authors 277 fell into the easy habit, but with a striking difference. Where pro-slavery authors had predicated a different set of characteristics for the Negroes, a distinctive subhuman nature, and had stereotyped in accordance with such a comforting hypothesis, anti-slavery authors insisted that the Negro had a common humanity with the whites, that in given circumstances a typically human type of response was to be expected, unless certain other powerful influences were present. T he stereotyping in abolitionary literature, therefore, is not stereotyping of character, but of situation. Since the novels were propagandistic, they concentrated upon abuses: floggings, the slave mart, the domestic slave trade, forced concubinage, runaways, slave hunts, and persecuted freemen—all of these were frequently repeated. Stereotyped or not, heightened if you will, the anti-slavery novel has been supported by the verdict of history—whether recorded by Southern or Northern historians. Facts, after all, are abolitionist. Especially the fact that the Colonel’s lady and old Aunt Dinah are sisters under the skin. Anti-slavery authors did at times help to perpetuate certain pro-slavery stereotypes. Probably the novelists knew that harping upon the gruesome, to the exclusion of all else, would repel readers, who—like their present-day descendants– yearn for happy endings and do not wish their quick consciences to be harrowed. At any rate, comic relief, kindly masters (in contrast to the many brutes), loyal and submissive slaves (to accentuate the wrongs inflicted upon them) were scattered throughout the books. Such tempering of the attacks was turned to proslavery uses. T hus, Harris writes: It seems to me to be impossible for any unprejudiced person to read Mrs. Stowe’s book and fail to see in it a defence of American slavery as she found it in Kentucky. . . . T he real moral that Mrs. Stowe’s book teaches is that the possibilities of slavery . . . are shocking to the imagination, while the realities, under the best and happiest conditions, possess a romantic beauty and a tenderness all their own.3 Anti-slavery fiction did proffer one stereotype, doomed to unfortunate longevity. T his is the tragic mulatto. Pro-slavery apologists had almost entirely omitted (with so many other omissions) mention of concubinage. If anti-slavery authors, in accordance with Victorian gentility, were wary of illustrating the practice, they made great use nevertheless of the offspring of illicit unions. Generally the heroes and heroines of their books are near-whites. T hese are the intransigent, the resentful, the mentally alert, the proofs of the Negro’s possibilities. John Herbert Nelson says with some point: Abolitionists tried, by making many of their characters almost white, to work on racial feeling as well. T his was a curious piece of inconsistency on their part, an indirect admission that a white man in chains was more pitiful to behold than the African similarly placed. T heir most impassioned plea was in behalf of a person little resembling their swarthy proteges, the quadroon or octoroon.4 ´ 3. Julia Collier Harris, Joel Chandler Harris, Editor and Essayist, Chapel Hill: University of North Carolina Press, 1931, p. 117. 4. John Herbert Nelson, The N egro Character in American Literature, Lawrence, Kan.: Department of Journalism Press, 1926, p. 84. 278 Brown Nelson himself, however, shows similar inconsistency, as he infers that the ‘‘true African—essentially gay, happy-go-lucky, rarely ambitious or idealistic, the eternal child of the present moment, able to leave trouble behind—is unsuited for such portrayal. . . . Only the mulattoes and others of mixed blood have, so far, furnished us with material for convincing tragedy.’’5 T he tragic mulatto appears in both of Mrs. Stowe’s abolitionary novels. In Uncle Tom’s Cabin, the fugitives Liza and George Harris and the rebellious Cassy are mulattoes. Uncle T om, the pure black, remains the paragon of Christian submissiveness. In Dred, Harry Gordon and his wife are nearly white. Harry is an excellent manager, and a proud, unsubmissive type: Mr. Jekyl, that humbug don’t go down with me! I’m no more of the race of Ham than you are! I’m Colonel Gordon’s oldest son—as white as my brother, who you say owns me! Look at my eyes, and my hair, and say if any of the rules about Ham pertain to me.6 T he implication that there are ‘‘rules about Ham’’ that do pertain to blacks is to be found in other works. Richard Hildreth’s Archy Moore, or The White Slave, has as its leading character a fearless, educated mulatto, indistinguishable from whites; Boucicault’s The Octoroon sentimentalizes the hardships of a slave girl; both make the mixed blood the chief victim of slavery. Cable, in the Grandissimes, shows a Creole mulatto educated beyond his means, and suffering ignominy, but he likewise shows in the character of Bras-Coupe ` that he does not consider intrepidity and vindictiveness the monopoly of mixedbloods. In Old Creole Days, however, he discusses the beautiful octoroons, whose best fortune in life was to become the mistress of some New Orleans dandy. He shows the tragedy of their lives, but undoubtedly contributed to the modern stereotype that the greatest yearning of the girl of mixed life is for a white lover. Harriet Martineau, giving a contemporary portrait of old New Orleans, wrote: T he quadroon girls . . . are brought up by their mothers to be what they have been; the mistresses of white gentlemen. T he boys are some of them sent to France; some placed on land in the back of the State. . . . T he women of their own color object to them, ‘‘ils sont si degoutants!’’7 Lyle Saxon says that ‘‘the free men of color are always in the background; to use the Southern phrase, ‘they know their place.’ ’’ T he novelists have kept them in the background. Many recent novels show this: White Girl, The N o-N ation Girl, A Study in Bronze, Gulf Stream, Dark Lustre— all of these show luridly the melodrama of the lovely octoroon girl. Indeed ‘‘octoroon’’ has come to be a feminine noun in popular usage. T he stereotype that demands attention, however, is the notion of mulatto character, whether shown in male or female. T his character works itself out with mathematical symmetry. T he older theses ran: First, the mulatto inherits the vices 5. Ibid. p. 136. 6. Harriet Beecher Stowe, N ina Gordon or Dred. Boston: Houghton, Mifflin and Co., 1881, p. 142. 7. Quoted in Lyle Saxon, Fabulous N ew Orleans. New York: T he Century Co., 1928, p. 182. Negro Character as Seen by White Authors 279 of both races and none of the virtues; second, any achievement of a Negro is to be attributed to the white blood in his veins. T he logic runs that even inheriting the worst from whites is sufficient for achieving among Negroes. T he present theses are based upon these: T he mulatto is a victim of a divided inheritance; from his white blood come his intellectual strivings, his unwillingness to be a slave; from his Negro blood come his baser emotional urges, his indolence, his savagery. T hus, in The N o-N ation Girl, Evans Wall writes of his tragic heroine, Precieuse: ´ Her dual nature had not developed its points of difference. T he warring qualities, her double inheritance of Caucasian and black mingled in her blood, had not yet begun to disturb, and torture, and set her apart from either race. . . . [As a child,] Precieuse had learned to dance as soon as she could toddle about ´ on her shapely little legs; half-savage little steps with strange movements of her body, exotic gestures and movements that had originated among the remote ancestors of her mother’s people in some hot African jungle. . . . T he wailing cry of the guitar was as primitive and disturbing as the beat of a tom-tom to dusky savages gathered for an orgy of dancing and passion in some moon-flooded jungle. . . . Self-control reached its limit. T he girl’s halfheritage of savagery rose in a flood that washed away all trace of her father’s people except the supersensitiveness imparted to her taut nerves. She must dance or scream to relieve the rising torrent of response to the wild, monotonous rhythm. It is not long before the girl is unable to repress, what Wall calls, the lust inherited from her mother’s people; the environment of debauchery, violence, and rapine is exchanged for concubinage with a white paragon, which ends, of course, in the inevitable tragedy. T he girl ‘‘had no right to be born.’’ Dark Lustre, by Geoffrey Barnes, transfers the main essentials of the foregoing plot to Harlem. Aline, of the darkly lustrous body, thus analyzes herself in accordance with the old cliches: ‘‘T he black half of me is ashamed of itself for being ´ there, and every now and then crawls back into itself and tries to let the white go ahead and pass.’’ Says the author: ‘‘T here was too much of the nigger in her to let her follow a line of reasoning when the black cloud of her emotions settled over it.’’ Half-white equals reason; half-black equals emotion. She too finds her ideal knight in a white man, and death comes again to the tragic octoroon who should never have been born. White Girl, Gulf Stream, A Study in Bronze are in substance very similar to these. Roark Bradford in This Side of Jordan gives an unconscious reductio ad absurdum of this stereotype. T he blade of a razor flashed through the air. Scrap has concealed it in the folds of her dress. Her Negro blood sent it unerringly between two ribs. Her Indian blood sent it back for an unnecessary second and third slash. It might be advanced that Esquimaux blood probably would have kept her from being chilled with horror. T he strangest items are attributed to different racial strains: In N o-N ation Girl a woman cries out in childbirth because of her Negro expressiveness; from the back of Precieuse’s ‘‘ankles down to her heels, the flesh ´ 280 Bullock was slightly thicker’’—due to her Negro blood; Lessie in Welbourn Kelley’s Inchin’ Along ‘‘strongly felt the urge to see people, to talk to people. . . . T hat was the white in her maybe. Or maybe it was the mixture of white and black.’’ T his kind of writing should be discredited by its patent absurdity. It is generalizing of the wildest sort, without support from scientific authorities. And yet it has set these idees fixes in the mob mind: T he Negro of unmixed blood is no ´ theme for tragedy; rebellion and vindictiveness are to be expected only from the mulatto; the mulatto is victim of a divided inheritance and therefore miserable; he is a ‘‘man without a race’’ worshipping the whites and despised by them, despising and despised by Negroes, perplexed by his struggle to unite a white intellect with black sensuousness. T he fate of the octoroon girl is intensified— the whole desire of her life is to find a white lover, and then go down, accompanied by slow music, to a tragic end. Her fate is so severe that in some works disclosure of ‘‘the single drop of midnight’’ in her veins makes her commit suicide. T he stereotype is very flattering to a race which, for all its self-assurance, seems to stand in great need of flattery. But merely looking at one of its particulars— that white blood means asceticism and Negro blood means unbridled lust—will reveal how flimsy the whole structure is. It is ingenious that mathematical computation of the amount of white blood in a mulatto’s veins will explain his character. And it is a widely held belief. But it is nonsense, all the same. T he Mulatto in American Fiction* PEN EL OPE BU L L OCK In its heterogenous population and the individualistic traits of its various inhabitants the United States possesses a reservoir teeming with literary potentiality. T hroughout the years, the American writer has tapped these natural resources to bring forth products of value and interest. Even though the characters whom he has depicted are not always lasting literary creations, they are significant in that they are social and sociological indices. Wrought from American life, they reflect the temper of the times and the actualities and the attitudes surrounding their prototypes in life. One of these characters is the mulatto. In this study1 the portrayal of the mulatto by the nineteenth-century American fictionist is presented. Who and what is the mulatto? According to Webster, he is, in the strictly generic sense, ‘‘. . . the first generation offspring of a pure negro and a white.’’ T he popular, general conception is that he is a Negro with a very obvious admixture of white blood. (In this study the persons considered as mulattoes are selected as such on the basis of this definition.) But the sociologist more adequately describes the mulatto as a cultural hybrid, as a stranded personality living * From Penelope Bullock. ‘‘T he Mulatto in American Fiction.’’ Phylon 6 (1945): 78–82. 1. T his article is a summary of ‘‘T he T reatment of the Mulatto in American Fiction from 1826 to 1902.’’ Unpublished Master’s thesis, Department of English, Atlanta University, 1944. The Mulatto in American Fiction 281 in the margin of fixed status. He is a normal biological occurrence but a sociological problem in the United States. In the brief span of one life he is faced with the predicament of somehow resolving within himself the struggle between two cultures and two ‘‘races’’ which over a period of three hundred years have not yet become completely compatible in American life. T wo hundred years after the Negro-white offspring became a member of the population of the United States he made his advent into the American novel. How was he portrayed by the nineteenth-century writer? T he treatment accorded the mulatto in fiction was conditioned to a very large extent by the social and historical background out of which the authors wrote. T he majority of them wrote as propagandists defending an institution or pleading for justice for an oppressed group. In depicting their characters, these writers very seldom approached them as a sociologist, or a realist, or a literary artist. T hey wrote only as partisans in national political issues. T hey wrote as propagandists: they distorted facts and clothed them in sentiment; they did not attempt to perceive and present the truth impartially. T he persons of mixed blood pictured by these authors appealed to the emotional, prejudiced masses. But they are not truthful re-creations of life and of living people. Only a minor number of nineteenth-century writers were concerned with the actual, personal problems which the mulatto had to face because of the circumstances of his social environment. T he first group of propagandists to portray the mixed-blood in fiction were the Abolitionist writers. Outstanding among them were Richard Hildreth; Harriet Beecher Stowe; the Negro author, William Wells Brown; W. W. Smith; J. T . T rowbridge; and H. L. Hosmer. Playing upon the race pride and sentiments of the Caucasian group, these novelists placed in the forefront the near-white victim of slavery and asked their readers: Can an institution which literally enslaves the sons and daughters of the dominant race be tolerated? From their novels emerges in bold, simple outline a major, stereotyped figure. He is the son or daughter of a Southern white aristocratic gentleman and one of his favorite slave mistresses. From his father he has inherited mental capacities and physical beauty [of the] supposedly superior . . . white race. Yet despite such an endowment, or rather because of it, his life is fraught with tragedy. What privileges and opportunities he may enjoy are short-lived; for he is inevitably a slave. Suffering the degrading hardships of bondage, he becomes miserable and bitter. T he indomitable spirit of his father rises up within him, and he rebels. If he is successful in escaping to freedom he becomes a happy, prosperous, and reputable citizen in his community. But even if his revolt against slavery fails, he meets his tragic death nobly and defiantly. Following Emancipation, the era of Reconstruction brought the conflict between the Negro’s assumption of rights which were legally his and the white man’s continued monopoly of privileges. Here again was opportunity for the propagandist to take up his pen. And he did. T his time, however, there were two groups of such writers, one representing each side of the issue. T he pro-slavery writer had been silent concerning the mulatto, for miscegenation was a thrust at Southern society (although it was a phase of Northern life as well). But the white 282 Bullock Southerner now felt impelled to protect the lily-white South from the encroachment of the freed black man. Representing the South in fiction were T homas Nelson Page and T homas Dixon, who pictured the mulatto as a dangerous element among the freedmen. T heir sensational caricatures presented him as the despoiler of white womanhood, the corrupter of the white gentleman, and the usurper of political power. In The Leopard’s Spots (1902) and The Clansman (1905), Dixon portrays three significant persons of mixed blood. T hrough George Harris, a Harvard graduate who wished to woo a white woman; Lydia Brown, the housekeeper and mistress of a radical Reconstruction leader in Congress, whose sinister influence over him threatens to ruin the nation; and Silas Lynch, a bestial brute, he exhorts the South to preserve its racial integrity and prevent future America from being mulatto. On the other hand, the cause of the freedman was pleaded by such Negro novelists as Mrs. Frances E. W. Harper, Sutton E. Griggs, George L. Pryor, and Mrs. Pauline E. Hopkins. T hey were at variance in their portrayal of the mulatto. But they did agree that his duty is to ally himself with the Negro group and sincerely and unselfishly aid in the fight for race betterment. In Mrs. Harper’s novel, Iola Leroy; or Shadows Uplifted (1892), every significant Negro is a mixedblood who, indistinguishable from white, is confronted with the question: T o pass or not to pass? Each is eventually identified as a Negro, thereby upholding the thesis of the novel, which is: the mulatto is a tragic person only because and only so long as he fails to cast his lot with the minority group. But once the shadows are uplifted, once he proudly admits that he is a Negro, he rises above his tragedy and dedicates himself to the cause of the dark American. Paul Laurence Dunbar, a contemporary of the Negro authors named above, was an outstanding writer in his brief life; but his contribution to the depiction of the mulatto was negligible. His stories of Negro life show only fleeting glimpses of persons of mixed blood. A facetious yet significant portrayal of the mulatto is given by Samuel L. Clemens in Pudd’nhead Wilson (1894). In this story a mulatto slave and a white boy are exchanged in their cradles and grow up in reversed positions without their real identity being detected. Clemens demonstrates that social environment can discount parentage and legal edict in determining one’s ‘‘racial allegiance.’’ If in his formative years a mulatto has innocently lived as a white person, the discovery of his mixed blood cannot suddenly transform him into a Negro. Such truth-penetrating analysis of the mulatto character as that by Clemens is rare in nineteenth-century fiction. T he authors generally utilized him as an instrument for a cause—the abolition of slavery, a lily-white South, an equality of opportunity and rights for Negro and white citizen alike. T here were, however, exceptions to the rule. T here were writers to whom the mulatto himself was the cause. T hey were concerned with him as a human being living in a complex and paradoxical environment. T hese writers were A. W. T ourgee, a white Northerner; George W. Cable, a white Southerner; and Charles W. Chesnutt, a Northern Negro. In their approach to the mixed-blood they brought keen analysis, sympathetic interpretation, and sometimes literary artistry. The Mulatto in American Fiction 283 T ourgee portrayed the mulatto in two of his novels, The Royal Gentleman (1881) and Pactolus Prime (1890). Indicative of the understanding which he shows in his depiction of his subject is an incident described in the latter novel. A young girl lives as a white person until, on the eve of her father’s death, she learns that he is a Negro. Realizing her situation, she cries out in agony to her father’s lawyer. T he lawyer is deeply moved by her reaction: It was the first time that he had ever realized the process through which the intelligent young colored American must always go, before our Christian civilization reduces him finally to his proper level of ‘‘essential inferiority.’’2 Here T ourgee shows that he is aware of a fundamental truth: the problem of the mulatto is to a very large degree but the problem of all Negroes—the desire for full and unqualified membership and participation in American society and culture. Cable’s convincing delineation of the gens de couleur of Louisiana and their peculiar juxtaposition in society was guided by intimate acquaintance with his subject and a sympathy that was neither gushingly sentimental nor politically partisan. Madame Delphine in the short story of the same name and Palmyre and Honore Grandissime, free man of color, in The Grandissimes (1880) are tragic mulattoes. Cable, however, took his characters not from the stereotypes of previous literature but from life; and he developed them into three-dimensional characters. As Pattee says, ‘‘T hey are true to the fundamentals of human life, they are alive, they satisfy, and they are presented ever with an exquisite art.’’ Cable’s sympathetic attitude toward the mixed-blood is expressed through one of the white characters in The Grandissimes (pp. 184–85): Emancipation before the law . . . is to them [mixed-bloods] little more than a mockery until they achieve emancipation in the minds and good will of all . . . the ruling class.3 Chesnutt was the outstanding delineator of the Negro-white offspring at the turn of the century. Exhibiting an obvious predilection for the mulatto character, Chesnutt gives him a prominent place in most of his short stories and novels. In The House Behind the Cedars (1900), the psychological analysis of the reactions of John and Rena to their situations as mixed-bloods indistinguishable from white probes deeply into the minds of these characters and lays bare the thoughts which were fermenting there. Rena believes that it is wrong to live under a veil of concealment when such an important issue as marriage is involved and finally decides that it is her duty to dedicate her life to the uplift of the downtrodden Negro. John’s attitude is in direct contrast: Once persuaded that he had certain rights or ought to have them, by virtue of the laws of nature, in defiance of the customs of mankind, he had promptly sought 2. A. W. T ourgee, Pactolus Prime (New York, 1890), p. 206. 3. ‘‘T he Short Story,’’ Cambridge History of American Literature. Edited by W. P. T rent and others (New York, 1933), II, 384. 284 Zanger to enjoy them. T his he had been able to do by simply concealing his antecedents and making the most of his opportunities, with no troublesome qualms of conscience whatever.4 Himself a near-white, Chesnutt was keenly sensitive to the position of the mulatto in American life and creates characters convincing in their realism. T he portrayals of the mixed-blood by Cable and Chesnutt are the outstanding delineations of this character in nineteenth-century American fiction. T o his disadvantage the mulatto entered fiction, at the pen of the advocate of Abolition, as an instrument of propaganda. Unfortunately, the majority of his succeeding portrayers were also zealous partisans of some cause, in whom were lacking the tempering and subtly interpretive attributes of the sociologist and the literary artist. T hus a series of types emerged—such as the beautiful but ill-fated victim of injustice and the extremely race-conscious leader of the minority group—and these patterns of portrayal developed into stereotypes. In the treatment of the mixed-blood the broad outline of actuality was sketched, but seldom was reality re-created. Rarely did the nineteenth-century writer probe beneath the surface to ascertain the truth underlying the fact and the cause effecting the result. With the literary production of Chesnutt, however, the portrayal of the mulatto in the nineteenth century ends on a redemptive note and gives hope for a promising characterization in twentieth-century literature. Since 1900, inter-racial attitudes have become more intelligent and tolerant, and those members of American society who may be maladjusted have been given more humane consideration. T he American fictionist has brought forth a quality of writing dealing with the mixed-blood during this period. T he quality of the treatment thus accorded this character remains to be appraised. T he ‘‘T ragic Octoroon’’ in Pre–Civil War Fiction* JU L ES ZAN G ER One of the most important characters of pre–Civil War Abolitionist fiction was the ‘‘tragic octoroon.’’ Presented first in the earliest antislavery novel, The Slave (1836), the character appeared in more than a dozen other works.1 By the time 4. C. W. Chesnutt, The House Behind the Cedars (Boston, 1900), p. 78. * From Jules Zanger, ‘‘T he T ragic Octoroon’ in Pre–Civil War Fiction.’’ American Quarterly 18 (1966): 63–70. 1. Among the most readily available of these works are R. Hildreth, The Slave (1836); J. H. Ingraham, Quadroone (1840); H. W. Longfellow, The Quadroon Girl (1842); Mrs. E. D. E. N. Southworth, Retribution (1840); E. C. Pierson, Cousin Franck’s Household (1842); H. B. Stowe, Uncle Tom’s Cabin (1852); W. W. Brown, Clotel, or the President’s Daughter (1853); Mary Langdon, Ida May (1855); W. W. Smith, The Planter’s Victim (1855); J. T . T rowbridge, N eighbor Jackwood (1856); H. B. Stowe, Dred, A Tale of the Dismal Swamp (1856); Mayne Reid, The Quadroon (1856); J. S. Peacocke, The ‘‘Tragic O ctoroon’’ 285 the most important of these works—Uncle Tom’s Cabin and The Octoroon—were written, the character had acquired certain stereotypic qualities and had come to appear in certain stereotypic situations. Briefly summarized, the ‘‘tragic octoroon’’ is a beautiful young girl who possesses only the slightest evidences of Negro blood, who speaks with no trace of dialect, who was raised and educated as a white child and as a lady in the household of her father, and who on her paternal side is descended from ‘‘some of the best blood in the ‘Old Dominion.’ ’’ In her sensibility and her vulnerability she resembles, of course, the conventional ingenue ‘‘victim’’ of sentimental romance. Her condition is radically changed when, at her father’s unexpected death, it is revealed that he has failed to free her properly. She discovers that she is a slave; her person is attached as property by her father’s creditors. Sold into slavery, she is victimized, usually by a lower-class, dialect-speaking slave dealer or overseer— often, especially after the Fugitive Slave Act, a Yankee—who attempts to violate her; she is loved by a high-born young Northerner or European who wishes to marry her. Occasionally she escapes with her lover; more often, she dies a suicide, or dies of shame, or dies protecting her young gentleman. Although the melodramatic and titillating aspects of this plot are evident, it is specifically the implied or articulated criticism of the institution of slavery that makes the ‘‘tragic octoroon’’ situation so interesting. T he octoroon, by her beauty, by her gentility and by her particular vulnerability to sexual outrage, offered to pre–Civil War Northern audiences, accustomed to idealized and sentimentalized heroines, a perfect object for tearful sympathy combined with moral indignation. T o twentieth-century literary historians, the attack on slavery directed by the creators of the ‘‘tragic octoroon’’ appears thin, unrealistic and irrelevant. Modern critics point out that the octoroon situation, while possible, was hardly general and that, while enforced concubinage was a Southern reality, it was hardly the paramount evil of slavery. Further, the tendency of antislavery authors to see the plight of the slave in terms of the octoroon rather than in terms of the fullblooded black has been seen as an indication of racial prejudice. Bone, for example, writes, ‘‘Such novels . . . contain mulatto characters for whom the reader’s sympathies are aroused less because they are colored than because they are nearly white.’’ Gloster describes the anti-slavery writers as ‘‘sympathetic toward the Negro-white hybrid because of his possession of Caucasian blood, which they often consider a factor that automatically made this character the superior of the darker Negro and therefore a more pitiable individual.’’ Sterling Brown describes the octoroon as ‘‘a concession, unconscious perhaps, to race snobbishness even among abolitionists.’’2 The Creole Orphans (1856); V. B. Denslow, Owned and Disowned (1857); D. Boucicault, The Octoroon (1859); H. S. Hosmer, Adela the Octoroon (1860); M. V. Victor, Maum Guinea’s Children (1861). 2. Robert A. Bone, The N egro N ovel in America (New Haven, 1958), pp. 22–23; Hugh M. Gloster, N egro Voices in American Fiction (Chapel Hill, N.C., 1948), pp. 12, 17; Sterling Brown, The N egro in American Fiction (Washington, D.C., 1937), p. 45. 286 Zanger Certainly, the strategy of the octoroon plot was to win sympathy for the antislavery cause by displaying a cultivated, ‘‘white’’ sensibility threatened by, and responding to, a ‘‘black’’ situation. It was the octoroon’s ‘‘white’’ characteristics which made her pathetic to the white audience—and, consequently, the writers of ‘‘tragic octoroon’’ stories have generally been accused of making their attack not on the institution of Negro slavery, but only on certain particular and incidental injustices arising from the institution of slavery. Southern apologists have interpreted the ‘‘tragic octoroon’’ figure as corroborating their own theories of white superiority, insisting that only slaves of mixed blood were ever unhappy and that the unhappiness of these was due solely to their white blood. Even such an indefatigable romanticizer of slavery as Mrs. E. D. E. N. Southworth was able to present the pathos of the ‘‘tragic octoroon’’ in Henny of Retribution. T he tactic of the Southern apologists has been to concede the possibility of the octoroon situation, but to dismiss the octoroon figure, whether female and tragic or male and heroic, as being unrepresentative of ‘‘the happy-go-lucky, ignorant, coon-hunting, fun-loving field hand who, more than any other class of slave, typified the great mass of black men throughout the South.’’3 T he tendency of modern pro-Negro commentators has been to judge the writers of ‘‘tragic octoroon’’ stories on the grounds of the validity or comprehensiveness of the picture they painted of the Negro in slavery; on these grounds, naturally, the octoroon plot has been found wanting. T his judgment, though a just one as far as it goes, has had one unfortunate result: the effectiveness of the conventional octoroon as part of the antislavery arsenal has been belittled. In reaction to the Southern reading of the ‘‘tragic octoroon’’ as a corroboration of Southern race theories, Northern critics have dismissed her and have accused her creators of being racist snobs. It is interesting that when Sterling Brown, a Negro critic, attacks the tragic octoroon as evidence of racial snobbery, he writes: ‘‘As one critic says: ‘T his was an indirect admission that a white man in chains was more pitiful to behold than the African similarly placed. T heir most impassioned plea was in behalf of a person little resembling their swarthy proteges.’ ’’4 T he ‘‘one critic’’ he is quoting is J. H. Nelson, an extreme Southern apologist, and the quotation comes from the same book as does the ‘‘fun-loving, coon-hunting’’ passage quoted above. T he charge—that the abolitionist author’s motive amounts to no more than a concession to racism—fails to take into account the overriding and avowed purpose of the abolitionist author, the propagandistic intention. What is particularly interesting about the ‘‘tragic octoroon’’ plot is that it revealed the point at which the imagination and sympathy of the pre–Civil War Northern public could be won for the antislavery cause; this is precisely what has been obscured by the oversimplified and unfair view that the octoroon’s appeal was based purely upon racial hypocrisy in author and audience. 3. J. H. Nelson, The N egro Character in American Fiction (Lawrence, Kans., 1926), pp. 83–84. 4. Brown, p. 45. The ‘‘Tragic O ctoroon’’ 287 Specifically, it should be recognized that the appeal of the ‘‘tragic octoroon’’ situation was not based primarily upon a racially snobbish feeling that a white person in chains was more pathetic than a black one. Rather, the plight of the octoroon evoked a number of widely differing, though related, responses from Northern audiences. First, the ‘‘tragic octoroon’’ situation flattered the Northern audience in its sense of self-righteousness, confirming its belief in the moral inferiority of the South. T he octoroon, to the North, represented not merely the product of the incidental sin of the individual sinner, but rather what might be called the result of cumulative institutional sin, since the octoroon was the product of four [sic] generations of illicit, enforced miscegenation made possible by the slavery system. T he very existence of the octoroon convicted the slaveholder of prostituting his slaves and of selling his own children for profit. T hus, the choice of the octoroon rather than of the full-blooded black to dramatize the suffering of the slave not only emphasized the pathos of the slave’s condition but, more importantly, emphasized the repeated pattern of guilt of the Southern slaveholder. T he whiter the slave, the more undeniably was the slaveholder guilty of violating the terms of the stewardship which apologists postulated in justifying slavery. T he octoroon became the visible sign of an incremental sin, the roots of which could be seen by Northern audiences as particularly and pervasively Southern. If the ‘‘tragic octoroon’’ plot passed lightly over the suffering of the black field hand, it nevertheless made up for this deficiency by the intensity of its condemnation of his white master. Seen in this light, it might be said that the pre–Civil War popularity of the ‘‘tragic octoroon’’ foreshadowed the North’s post–Civil War eagerness to punish the former slaveholder and its relative reluctance to help the former slave. T he accusations against the Southern slaveholder implicit in the plot of the ‘‘tragic octoroon’’ were of major significance in the propaganda war carried on between abolitionist and proslavery writers. Proslavery writers, finding the Yankee assumption of moral superiority unbearable, replied to abolitionist pictures of the horrors of life in the field hands’ quarters with pictures of the horrors of life in Northern mill towns. While such ‘‘you’re another!’’ arguments are hardly acceptable as defenses of slavery on the rational level, they might have been a more valuable counter-propaganda device if it were not for the availability to the abolitionists of the purely Southern ‘‘tragic octoroon’’ situation. Certainly, one of the strong motives to which the abolitionists appealed in their attempt to win converts was the motive of self-righteousness. In the octoroon, the antislavery propagandists had an appeal to this Northern sense of superior morality that could not so easily be met by an admonition to ‘‘put thine own house in order.’’ While little children up in the Northern cotton mills might slave themselves into pathetically early graves, the Northern mill owner never sold his own daughters into a life of shame, as was clearly the custom down in the Southern cotton fields. T he charge of sexual looseness was a serious one in that period; not only in fiction, but in their pamphlets and exhortations, the abolitionists brought that charge again and again—and every light-skinned slave was tangible evidence for the prosecution. Wendell Phillips, for example, called the South ‘‘One great brothel, where half a million women are flogged to prostitution,’’ and George 288 Zanger Bourne spoke of the South as a ‘‘vast harem where men-stealers may prowl, corrupt, and destroy.’’ Another particular appeal, apart from the moral, made by the ‘‘tragic octoroon’’ results from the way in which the octoroon situation imaginatively involves the audience in the tragedy of the heroine. Central to the stereotyped plot is the element of reversal whereby the heroine is suddenly reduced, by a legalism, against all evidence of the senses, from aristocratic, pampered white heiress to Negro slave—from riches to worse than rags. T his, of course, is the stuff of nightmare, but a nightmare with particular significance for the nineteenth-century American whose own family history might very likely be so obscured by immigration and migration, by settlement and resettlement, that any detailed knowledge of the blood lines of great-grandparents could well be unavailable. T he presentation of the perils faced by the octoroon can be seen, then, on the very simplest and most naive level, as a sort of scare tactic: how do you know they won’t be coming after you next? Even in those stories which cannot be said to make this simple appeal, stories in which the octoroon is already aware of her mixed blood, the element of reversal served to involve the audience in the tragedy of the heroine. On the imaginative level, at least, each witness to the octoroon’s tragedy was threatened by a similar fate, by the sudden reversal of fortune that was so much a part of the American experience, and the ironic underside of the American dream. T he particular discovery which precipitates the fall of the helpless young female, with her fine and tasteful clothes, her cultured speech, her garden full of flowers, was still the same sort of discovery which threatened to destroy the middle-class young white lady of the audience: her father is suddenly bankrupt; her father has died, leaving mountainous debts. In an age when women of the middle class were nearly as dependent upon the head of the household as the poor octoroon was upon her master-father, the antislavery propagandist could draw upon the audience’s own dread of the life they would face if the bank failed, the tariff were defeated, the speculation fizzled. Expressed this way, it becomes clear that the octoroon permits the audience to identify with her, not merely on the superficial level of her color, but more profoundly in terms of the radical reversal of fortune she has suffered—both modes of identification denied, in any case, to the more representative, but less imaginatively available figure of the black slave. Another relatively constant element in the octoroon situation is the relationship of the octoroon to the major villain of the plot, her lustful pursuer. T hough occasionally identified as a gentleman, most often he is an overseer, a slave trader or a parvenu plantation owner. T ypically, he is coarse, ill-bred and crudelyspoken. Most interesting, he is often a Yankee. T his character first appeared as Jonathan Snapdragon in Hildreth’s The Slave (1836), the novel in which the ‘‘tragic octoroon’’ made her first appearance. A particularly popular version of the character was McCloskey in Dion Boucicault’s very successful play, The Octoroon, but he achieved his apotheosis, of course, as Simon Legree in Uncle Tom’s Cabin. T his character has been critically perceived as a sop to Southern audiences, intended to mitigate the severity of the indictment made of the Southern slave The ‘‘Tragic O ctoroon’’ 289 owner by the octoroon situation. T he Yankee becomes the sadistic and lecherous agent of evil, while the aristocrat is often presented as entirely innocent of the gross acts perpetrated in his name by the brutal New Englander. Certainly, there is truth in this interpretation of the Yankee overseer, since many of the antislavery writers were, as late as the 1850s, still hoping for a reconciliation between North and South, and to make the overseer explicitly a Yankee is to acknowledge that the guilt of exploiting slaves was not exclusively Southern. However, while the use of the Yankee overseer may have been intended, in part, to soothe the Southern reader, it cannot be dismissed merely as a detail which had no propaganda effect on the Northern audience. On the very simplest level, to identify the meanest, most immoral, most black-hearted sinner in the whole book as a Yankee is to say that the moral superiority of Northerners is shared only by antislavery Northerners: a Yankee who condones and collaborates with Southern slavery is even worse than a slave owner; he is a regular Simon Legree. On another level, the conventional overseer, Yankee or not, functions to present the evils of slavery as resulting from the excesses of an individual, unlike the octoroon herself, who functions to represent the sins of slavery as particularly institutional. T o understand this apparent contradiction in motives between the function of the overseer and that of the octoroon, we must first recognize that popular audiences in the 1840s and 1850s enjoyed and were accustomed to aristocratic and sentimentalized heroes and heroines, and the conventional Southern Gentleman and his Lady of popular fiction were probably the closest native approximations we had to that ideal. Further, many of the writers of antislavery fiction were themselves sentimentally wedded to the romantic image of the old South by emotions not very different from those which prompted their sympathy for the Negro slave. T he point of the introduction of the villainous overseer was to show that even the happy slave of the kindly master, or worse, the idealized octoroon daughter of an honorable (if sinful) father, can overnight be betrayed into the clutches of a McCloskey. T he popular image of the Southern Gentleman as a sentimentalized, aristocratic figure was used by the proslavery side in its defense against abolitionist charges; the documented charges of ill-usage of slaves brought by abolitionists were dismissed as wholly unrepresentative excesses of a few uncouth individuals. T he effect of the overseer figure in the octoroon plot, then, is to point out that so long as slaves are property which can be sold or attached for debt, even the stereotypic noble, kindly master of pro-Southern literature would be powerless to protect his slaves—even his slave daughters—from suddenly falling into the hands of the worst slave-driver. T he image of the overseer serves to permit the American public to retain its beau ideal, while at the same time it demonstrates that this beau ideal is irrelevant to the moral question of the institution of slavery. Another aspect of the overseer-octoroon relationship not critically commented upon is that in addition to representing a racial conflict, it represents in certain works a conflict of class and regional attitudes. T he conflict, of course, is not merely between the overseer and the octoroon, but between parvenu and aristocrat, between commoner and landed gentleman, between efficiency expert and 290 Zanger dreamer. T he octoroon is merely the prize for which they struggle. T hat she was prized, it is suggested, was because of her seven-eighths white aristocratic blood which had made her unattainable until she became a slave at the death of her father. It was the single drop of black blood that made the tragic octoroon available; it was the seven drops of blue blood that made her desirable. T hus, in the fiction of the tragic octoroon, the Yankee figure gloats over the possession of his intended victim as a victory over her father. By possessing the aristocrat’s daughter, the Yankee achieves a triumph to which her beauty and his lust seem almost irrelevant. Seen as an expression of regional conflict, the Legree-McCloskey figure is much more complicated and contradictory than is suggested by the conventional reading of him as a concession to the South. On one hand, it must have seemed to Northern audiences that the Yankee overseer embodied many of the characteristics that such audiences valued. He was keen, assertive, a go-getter. He was in the South to put on a sound basis an economic establishment the Southerner himself was unable to make pay. E. J. Stearns, himself a transplanted Yankee and violent defender of slavery, says in N otes on Uncle Tom’s Cabin: Mrs. Stowe has no good opinion of this class of persons [Yankee Overseers], for she tells us . . . that they are ‘‘proverbially, the hardest masters of slaves.’’ T his is, no doubt, true; but it does not follow that they are, therefore, ‘‘renegade sons’’ . . . of New England. On the contrary, it is because they are genuine Yankees, that they are so hard masters: they have been accustomed to see men do a day’s work,—they have done it themselves—and they cannot understand how the negro can do only a half or a third of one.5 In comparison with the Southern plantation lord, the Yankee stood for democratic, that is to say native, institutions, while the Southerner represented an aristocratic and European ideal. Further, the Yankee, in his efficiency, stood for the nineteenth century and progress, while the Southerner represented some feudal, Sir Walter Scott past. On the other hand, the Yankee overseer must have uncomfortably suggested the hard-handed, pushy, shrewd-dealing Yankee entrepreneur who by the midcentury was breaking down many of the old barriers of the genteel past and establishing in the North an illiberal, vulgar and powerful commercial class. Regarded in this light, the Yankee in the South appears as a sinister precursor of Mark T wain’s Connecticut Y ankee in King Arthur’s Court. T his double vision of the Yankee reveals itself most fully in Boucicault’s Octoroon, where we have the evil Yankee, McCloskey, opposed by the heroic Yankee, Salem Scudder, who loves Zoe and wishes to marry her and who, in the best literary tradition, tinkers with new-fangled gadgets, one of which, the camera, providentially proves McCloskey guilty of murder. It may be said that the issue that divides the villainous Yankee from the heroic and benevolent one is the fate each proposes for the tragic octoroon. 5. E. J. Stearns, N otes on Uncle Tom’s Cabin (1853), pp. 141–42. The Serpent of Lust in the Southern Garden 291 T o sum up, then, the popularity of the tragic octoroon character in pre–Civil War antislavery fiction cannot be explained by suggesting she was simply the nearest thing to a Negro that Northern authors and audiences could wax sentimental about. T he attack on the slavery system mounted by the creators of the tragic octoroon was specifically directed toward certain sins implicit in that institution, was particularly appropriate to the audience which it was intended to move and was firmly based on the regional attitudes and moral values of that audience. T he Serpent of Lust in the Southern Garden* WIL L IAM BED F ORD CL ARK In the minds of many Americans, there are two Souths. T here is, on the one hand, that South conceived of as an idyllic land of plenty, blessed with a temperate climate and a rich fecundity of soil and inhabited by a happy and hospitable people for whom life is pleasure and pleasure a way of life. T he persistent hold this view of the South exercises over the collective American imagination is attested to perhaps most readily by the willingness with which outlanders continue to surrender to the Old South nostalgia of the plantation tradition in both fiction and cinema. On the other hand, however, there is that other South, a kind of nightmare world of torrid and stifling heat in which uncontrollable passions and senseless acts of violence become the outward manifestations of a blighting inner corruption, a secret sin poisoning the very mainstreams of southern life. It was no accident that Faulkner’s first commercial success was Sanctuary and the reading public’s interest in lurid accounts of southern depravity remains strong, as any trip to the corner newsstand suffices to prove. Nevertheless, these two seemingly irreconcilable images of the South manage to merge into a rather shaky synthesis in the national consciousness so that to many Americans the South becomes a thing at once attractive and repulsive, a land simultaneously blessed and cursed. Metaphor is one way of expressing such a paradoxical state of emotional affairs, and one of the oldest and most compelling metaphors for expressing the ambivalence of American attitudes toward the region has been the image of the South as a corrupted garden, or, expressed in Biblical terms, Eden after the Fall. Charles W. Coleman, in an 1887 Harper’s article, ‘‘T he Recent Movement in Southern Literature,’’ provides us with an interesting early example of this metaphor. In discussing the fiction of George Washington Cable, he remarks that Cable writes of an ‘‘enchanted, semitropical realm, beautiful with flowers, yet marked by the trail of the serpent.’’ Coleman’s observation is a perceptive one, for Cable himself, a southerner whose own ambivalence toward his native region was par- * From William Bedford Clark, ‘‘T he Serpent of Lust in the Southern Garden.’’ The Southern Review 10.4 (October 1974): 805–822. 292 Clark ticularly acute, implicitly evokes this same image in an address entitled ‘‘What the Negro Must Learn,’’ delivered before the American Missionary Society in 1890. Cable catalogues the many ways in which the South has been blessed: ‘‘Natural beauty, military defensibility, harbors, navigation, mineral treasures, forests, fertility of soil, water supply from spring and cloud, equable climate, abundant room.’’ However, he is quick to add that in spite of all these advantages of a natural paradise, there is still ‘‘something wrong’’ in the South, something deeply wrong. For Cable, that ‘‘something wrong,’’ the serpent in the southern garden, so to speak, can be traced back to the burden of evil resulting from the white man’s injustices toward the black, and in this connection it is interesting to compare Cable’s view of his region with that of Isaac McCaslin, the youthful protagonist of Faulkner’s ‘‘T he Bear.’’ Isaac also pictures the South in terms of a kind of paradisiacal garden, a natural Eden nevertheless cursed as the result of a regional sin inextricably bound up with the institution of slavery. T hat ‘‘sin’’ is dramatized for him when he learns that his grandfather had been guilty of miscegenation and of subsequently committing incest with a mulatto daughter. Quite significantly, in certain of Cable’s works as well, notably The Grandissimes, the specific sin of miscegenation becomes a convenient fictional symbol for expressing the South’s broader guilt over the whole question of bondage and the racial wrongs arising from it. It is hardly a coincidence, however, that Cable and Faulkner, widely separated as they are by time, background, and temperament, should both have placed so great a stress on the theme of miscegenation in their respective fiction, working with it in such a way that the traditional serpent of illicit and tabooed lust comes to represent that greater and multiheaded serpent, slavery. Rather, these two writers can be seen as working within a lengthy and easily discernible tradition to which virtually every significant southern novelist since the Civil War has contributed, a tradition which has its emotional genesis in the sexual guilt and repressed self-condemnation of the southern psyche and its literary roots in the abolitionist rhetoric, antislavery fiction, and fugitive slave narratives of the antebellum period. It is a highly fertile tradition, vital and broad enough to include writers of such violently antithetical viewpoints as the humane reformer Cable and the wildly Negrophobic T homas Dixon, Jr., a tradition to which works as diverse in form and substance as Shirley Ann Grau’s The Keepers of the House and Carson McCullers’ Clock Without Hands can both be said to belong. In a broader sense, of course, the problem of miscegenation is by no means purely the concern of southern writers. T he question of mixed blood has long fascinated both the literary and public imaginations of the nation as a whole and has been touched upon by figures like Cooper and Howells, as well as by scores of pulp writers over the years. It intrudes upon the popular imagination by way of a musical like Showboat and by way of countless Hollywood productions. As Francis P. Gaines remarked in his classic study The Southern Plantation, to call the roll of works in which the issue of racial intermixture is raised would be tedious. Yet quite significantly, it is in the works of white southerners that the theme receives the most persistent attention and takes on the greatest sense of urgency, and although numerous critics have taken note of the theme as it appears The Serpent of Lust in the Southern Garden 293 in the fiction of authors like T wain, Cable, and Faulkner and some effort has been made to trace its recurrence in nineteenth-century antislavery novels, there has been no satisfactory attempt to account for the question of miscegenation both in terms of the peculiar fascination it holds for the southern novelist and its immense literary potential, a potential that enables the theme, in the hands of more gifted writers, to transcend specifically regional concerns and take on universal implications. Accordingly, the present essay is an attempt at a partial remedy. Prior to speculating on the origins of what might honestly be termed the ‘‘myth’’ of miscegenation as it is recurs throughout post–Civil War southern writing, it is perhaps useful at this point to examine in some detail a fictional text that serves ideally as a kind of working paradigm of the way in which the southern writer characteristically handles the theme of miscegenation in his fiction. T he text in question is that of a little-known short story by Joel Chandler Harris, a story in which that author reaches a level of technical sophistication and a depth of seriousness that far exceed that to be found in his more familiar pieces. T he story is entitled ‘‘Where’s Duncan?’’ and its dramatic context is established at the very outset. An aged narrator, a white southerner presumably of the upper class, feels himself compelled to relate to a second party (most likely the author himself in his actual role as journalist) a ‘‘happening’’ out of his youth, a series of events which has, he confesses, ‘‘pestered me at times when I ought to have been in my bed and sound asleep.’’ T he narrator senses that the story he is about to tell is one of considerable importance, but he insists—in a spirit of naıve ¨ objectivity maintained throughout the narrative—that he lacks the skill necessary to tell it as it should be told. For this reason he is entrusting it to his silent listener, hoping that the latter will be better able to articulate the significance behind the events themselves. T he story as we have it is the seemingly unedited version as the speaker himself delivers it, and the fact that Harris allows the hidden meaning of the story to emerge implicitly, rather than explicitly sermonizing over it, contributes forcefully to the work’s final effectiveness. T he story is a tale of initiation on two levels. It begins with the speaker as a boy taking on his first position of adult responsibility and ends with his growing awareness of an evil at the very core of southern life. As the narrative begins, the boy is entrusted with taking a wagonload of cotton to market. On the road, he encounters a ‘‘thick-set, dark-featured, black-bearded’’ stranger, a man who is to remain nameless throughout most of the rest of the story and who finally hides behind an alias. T he stranger agrees to accompany the boy on his difficult trip until the caravan in which they travel reaches that point toward which he is bound. At one stage along the way, the stranger tells the boy a story in the form of a ‘‘riddle.’’ It concerns a certain man who sold his own son to the ‘‘nigger traders.’’ T he narrator’s youth and innocence prevent his understanding what the stranger is getting at, but he nevertheless senses the tragic implications which surround such a tale: ‘‘I could not unriddle the riddle, but it seemed to hint at such villainy as I had read about in the books in my father’s library. Here was a man who had sold his own son; that was enough for me. It gave me matter to dream on.’’ 294 Clark At last, the caravan reaches the stranger’s destination, a white plantation house set in the midst of a grove of beautiful trees, a fitting symbol of the plantation ideal. As the party prepares to camp for the night, an aged, though still handsome, mulatto woman arrives upon the scene and invites them to supper at the big house, hinting at the same time of her master’s severe parsimony. T he stranger greets this woman with the question ‘‘Where’s Duncan?’’ and reiterates it several times. His question drives the woman into a frenzy, and she retires to the house. Shortly thereafter, the stranger disappears. T hat night the narrator is awakened from his sleep to find that the big house is on fire. As he and his friends approach the scene, they catch a glimpse of the mulatto woman struggling insanely with her master in the midst of the flames. She finally plunges a knife into him, and seconds later the entire house collapses. T his culminating scene is presented with a kind of nightmarish realism which gives it a peculiarly Kafkaesque intensity. T hrough the juxtaposition of various images—the raging fire, the mulatto woman screaming ‘‘Where’s Duncan?’’ at her terrified master, the final collapse of the fiery house on its occupants—the narrator is able to achieve a vividly horrifying climax. Afterward, he learns from one of the Negroes present that the stranger, too, was in the house when it collapsed, rocking away in a corner, seemingly pleased by the hellish spectacle being played out before him. What we have here is clearly a prototypal ‘‘southern’’ tale, as Leslie Fiedler has conceived of that subgenre, a Gothic ‘‘series of bloody events, sexual by implication at least, played out . . . against a background of miasmal swamps, live oak, Spanish moss, and the decaying house.’’ It is a fable in which, as Fiedler also says of the ‘‘southern,’’ is figured forth the ‘‘deepest guilts and fears of transplanted Europeans . . . in a community which remembers having sent its sons to die in a vain effort to sustain slavery.’’ While Harris’ narrator refuses to speculate aloud on the inner significance of the events he relates, that significance is quite clear to the student of contemporary southern literature. Here is a story constructed around a mythical pattern of guilt and retribution, a pattern which will arise time and again, in whole or in part, in the works of subsequent writers. It is a story in which miscegenation and the ‘‘unnatural’’ treatment of biracial offspring conveniently stand for the South’s real sins: the prostitution of an entire race of black bodies for the gratification of the white man’s ‘‘lust’’ for wealth and power and the resultant violation of those ‘‘family ties’’ traditionally associated with the Christian notion of the brotherhood of man. As such, it prefigures remarkably in terms of basic outline a later work like Faulkner’s Absalom, Absalom!, with Harris’ stranger as a prototype of Faulkner’s victim-avenger Charles Bon and both stories ending significantly with a conflagration that reduces a great plantation house—the physical realization of the antebellum dream—to smoldering ashes. Indeed, in the person of Harris’ narrator himself, with his conscience troubled by a vague, unarticulated, and illogical sense of complicity in the events he relates, it is tempting to see a type of the major narrator in Absalom, Absalom!— the neurotic and history-haunted Quentin Compson, who, in struggling to understand the human truths contained in the concrete events of the past, in turn The Serpent of Lust in the Southern Garden 295 prefigures, as Louis D. Rubin, Jr. suggests in The Writer in the South, the contemporary southern writer himself. Viewed in this way, as a paradigm of the basic myth of miscegenation as it recurs throughout the course of postbellum southern fiction, Harris’ short story can be broken down into four thematic motifs that are to play a significant role in works of other writers; these are: (1) the archetypal pattern of guilt and retribution noted above; (2) the tendency to identify the specific sin of miscegenation with the ‘‘sin’’ of slavery and caste as a whole; (3) the dual role of the mulatto figure as both victim and avenger; and, (4) the implicit, yet nevertheless important, question of the mulatto’s identity. In Harris’ story, as in works like Cable’s The Grandissimes, T wain’s Pudd’nhead Wilson, and Faulkner’s Absalom, Absalom! and Go Down, Moses, each of these elements naturally complements the others so that they finally tend to coalesce to form a single, potent fictional structure. Speculation as to the origins of each of these aspects of the broader theme of mixed blood is useful; and although such speculation remains by its very nature hypothetical, it helps to account logically for the peculiar fascination the question of miscegenation continues to exercise over the southern literary imagination. T he first of these four motifs, the theme of guilt and punishment, is the most basic element of our total thematic structure. It is most basic because it contains within itself the seeds of a narrative sequence involving one of the oldest of Western mythical constructs, a theme of immense significance within the framework of the Judeo-Christian tradition. While this basic pattern of human transgression and divine punishment is applicable to cases of individual culpability, it is most powerful when conceived of in collective terms, as it is embodied in the rhetoric of the Old T estament prophets who saw in historical adversity the wrath of a righteous God angered into punitive action by the collective sins of Israel. T his same Old T estament stress on the societal species of sin was introduced into this country quite early via New England Calvinism. Indeed, as Perry Miller has pointed out, the Puritan jeremiad, taking its name from the most virulent of Hebrew prophets, Jeremiah, was to become a characteristic form of sermon in which the divine punishments visited upon the Children of Israel were viewed as a type of those calamities the New World Israelites might expect should they refuse to humble themselves through acts of communal penance. In view of the extent to which antislavery thought in America has so often been an outgrowth of religious sentiment, it is natural enough that early abolitionists tended to conceive of slavery within a religious frame of reference. Viewing the institution as the South’s regional sin, they warned slaveholders of the impending wrath of God. T he Quaker visionary John Woolman wrote, following a 1746 tour of the southern colonies, that Negro bondage was a ‘‘dark gloominess hanging over the land,’’ and he prophesied that ‘‘the future consequences will be grievous to prosperity.’’ With the consolidation of abolitionist feelings after 1830, this tendency to identify slavery as a curse and a communal evil became even more overt. Article T wo of the Constitution of the American Anti-Slavery Society (1833) expressly defined slavery as ‘‘a heinous crime in the sight of God.’’ William Ellery Channing warned in 1841 that slavery was a sin that Christians could not afford 296 Clark to ignore, ‘‘a guilt which the justice of God cannot wink at, and on which insulted humanity, religion, and freedom call down fearful retribution.’’ T heodore Parker, waxing apocalyptic, likewise foresaw an inevitable ‘‘Fire of Vengeance’’ sweeping the South, and the Reverend George B. Cheever warned the southerner in God Against Slavery that ‘‘T he slave holds, under God’s hand, a note against you, with compound interest for the crime committed against his father.’’ In William Lloyd Garrison’s definition of slavery as ‘‘an earthquake rumbling under our feet—a mine accumulating materials for a national catastrophe,’’ the same concept of collective guilt and divine retribution, stripped of biblical rhetoric, is nevertheless implicit. T he popularity of such prophetic attacks upon the institution of slavery is evidenced by the fact that poets of an antislavery persuasion were quick to echo the warnings of the prose propagandists. In Barlow’s Columbiad (1807), that early attempt to Virgilize the past, present, and future of America, the figure Atlas prophesies that the course of human events holds for the slaveholder ‘‘A vengeance that shall shake the world’s deep frame, / T hat heaven abhors, and hell might shrink to name.’’ And Longfellow, too, threatened catastrophic consequences in his poem ‘‘T he Warning,’’ in which the Negro race is compared to a ‘‘poor, blind Samson’’ who, ‘‘in some grim revel,’’ will ‘‘shake the pillars of this Commonweal, / T ill the vast temple of our liberties / A shapeless mass of wreck and rubbish lies.’’ Such rhetoric was soon to be translated into the actual events of history. On his way to a Virginia gallows, John Brown, assuming his self-professed role as latter-day prophet, ventured one last warning to slaveholders: ‘‘Without the shedding of blood, there is no remission of sins.’’ And to many contemporary witnesses, Brown must indeed have seemed prophetic when, as Edmund Wilson reminds us in Patriotic Gore, northern armies marched South singing Mrs. Howe’s celebration of their divinely-ordained crusade to wreak the wrath of God on the enslavers of the Negro. It should be noted that southerners themselves were not altogether insensitive to charges that slavery was an institutionalized evil. Prior to the 1830s, abolitionist sentiment seems to have been particularly strong among certain of the evangelical sects in the region. T he fiery Kentuckian Cassius Clay called slavery ‘‘our great national sin’’ and warned that it ‘‘must be destroyed or we are lost.’’ As Robert Penn Warren has suggested in The Legacy of the Civil War, the very fact that there was considerable Confederate feeling in favor of banning the slave trade was a tacit confession that not all southerners believed that slavery was the absolute good that proslavery apologists like T homas Roderick Dew, for example, insisted. Early in the National Period, T homas Jefferson, himself the uneasy owner of slaves, had written in his N otes on Virginia (1785), ‘‘I tremble for my country when I reflect that God is just,’’ and he went on to note that divine justice ‘‘cannot sleep forever,’’ and that the perpetuation of slavery meant certain disaster. Jefferson’s fears suggest the possibility of a slave revolt in which the black man would rise up and smite his white tormentors, and from the vast amount of evidence we have of the South’s obsessive fear of slave insurrections, it is tempting to surmise that such a terror was, in part, the result of the white southerner’s The Serpent of Lust in the Southern Garden 297 secret sense of guilt vis a vis the black race. As T ocqueville remarked, the ‘‘danger ` of a conflict between the white and black inhabitants of the Southern States,’’ a conflict the French observer saw as inevitable, haunted the American imagination like an obsessive nightmare. T here is a terrible irony in the inconsistency between the antebellum South’s rational insistence that slavery benefited all concerned and its irrational phobia over the possibility of slaves rising up to demand bloody vengeance for past wrongs, an irony that even emerges forcefully from a reading of U. B. Phillips’ American N egro Slavery, but one which that historian’s biases enable him to overlook. T hese hidden feelings of guilt on the part of pre–Civil War southerners provide some clues to the South’s hysterical overreaction to an event like the 1831 Southampton Insurrection of Nat T urner who, after all, claimed to have spoken with God and to have been the instrument of divine punishment. With the conclusion of the war, the South, its own theology largely Calvinistic in orientation, seemed clearly convicted of collective sin by the inexorable, but nevertheless righteous, workings of a providential history. T he visitation of wrath threatened in the writings of the abolitionists seemed an accomplished fact. Defeat and widespread destruction were its unmistakable outward signs. Richard M. Weaver points out in The Southern Tradition at Bay that the northern victory caused many southerners to feel religious guilt, and no doubt many silently agreed with the young South Carolinian who told John T . T rowbridge in 1866, ‘‘I think it was in the decrees of God Almighty that slavery was to be abolished in this way; and I don’t murmur. . . . We brought it all on ourselves.’’ Despite the viewpoint of historians like Eugene Genovese, then, it seems fair to state that there was indeed a sense of guilt over slavery present in the antebellum South, and this guilt was intensified by the South’s defeat in the Civil War and its humiliation during the Reconstruction experience. T he novelist T homas Nelson Page attempted to mitigate this sense of guilt by arguing that slavery was a tragic necessity of history, forced upon his region by northern slave traders and the dictates of climate. Still, Page regarded it as the ‘‘curse of the fair land where it flourished.’’ T here is a defensiveness about Page’s apology that is a far cry from the positive arguments of antebellum proslavery propagandists, though the seeds of this historical excuse for slavery can also be found in John C. Calhoun’s last speech to the Senate a decade before the war. T his very defensiveness is itself implicit evidence to the extent of the South’s uneasiness of conscience. In our own century, the young Carson McCullers put it well when she observed that southerners suffer from a special kind of guilt, ‘‘a consciousness of guilt not fully knowable, or communicable.’’ It is precisely this kind of guilt that compels the narrator of Harris’ ‘‘Where’s Duncan?’’ to tell his story, a secret agony of conscience that provides the vital impetus for the tradition of fiction under consideration here. But why should the southern writer’s sense of his region’s collective historical sin express itself so often in terms of the more-or-less private sin of miscegenation? T he answer is logical enough. In the Old South the slave was property and was meant to be used, and the female slave, particularly if she were ‘‘blessed’’ with physical charms, possessed an added dimension of usefulness. T he fact of illicit sexual relations between the 298 Clark white master class and black women, a fact incontrovertibly attested to by an everincreasing number of light-skinned Negroes both on the plantations and in the cities, was to become the single most vulnerable chink in the South’s moral defense of slavery. While the conscientious slaveholder might argue divine sanction for slavery in view of its presence in the Old T estament and assert, along with George Fitzhugh and William J. Grayson, its virtues in contrast to the vices of wage-slave capitalism, he could not escape from charges that the unsanctified sexual liaisons which stemmed naturally from slavery constituted an indefensible evil. Fornication, in and of itself, had long been considered one of the most reprehensible of sins, and an extra portion of sinfulness attached itself to the concept of miscegenation, growing out of a sense of the violation of ancient taboos and the breaking of those natural laws of which the philosophes had written. Winthrop Jordan, among others, has noted the traditional loathing of Anglo-Saxons toward darker races, an antipathy that evolves out of an archetypal polarization of light and dark, white and black. Couple this irrational aversion with the fact that the mulatto offspring of white masters were legal property and could thus be bought and sold, and it is easy to see how the question of miscegenation became so effective a weapon for self-righteous assault on the slave system as a whole, a weapon peculiarly equipped to prick southern consciences. As might be expected, antislavery polemicists were quick to use it to indict the South in general. ‘‘T he South,’’ wrote Wendell Phillips, ‘‘is one great brothel.’’ As early as Colonial times, Samuel Sewall, in The Selling of Joseph (1700), had singled out for special condemnation those who sought to ‘‘connive at the Fornication of their Slaves.’’ Yet connive they did, as travelers in the South took a particular relish in pointing out. Ann Royall, the author of that interesting relic of the 1820s, Sketches of History, Life, and Manners in the United States, reported that she was moved to ‘‘feelings of horror and disgust’’ by the large number of persons of mixed ancestry she encountered on her tour of the slave states, and the practice of holding one’s mulatto children as chattel moved her to vehement rage. Any man who would doom his own children to bondage was, she insisted, ‘‘not only . . . void of virtue; but guilty of the most indignant crime.’’ C. G. Parsons, a northern physician, records similar sentiments in his Inside View of Slavery (1855). He also relates the story of how a formerly apathetic Boston merchant was converted to the antislavery cause after seeing a ‘‘fancy girl’’ up for auction, thus illustrating the power of the miscegenation issue in shaping northern opinion on slavery. Even a British visitor like Henry A. Murry, who tended to view American institutions with a good-natured condescension, expressed shock over the selling of mulatto children in his Lands of the Slave and the Free: ‘‘Can anything be imagined more horrible than a free nation trafficking in the blood of its co-citizens? Is it not a diabolical premium on inequity, that the fruit of the sin can be sold for the benefit of the sinner?’’ Perhaps the most valuable of all antebellum travelogues is that of Frederick L. Olmsted, whose unusual objectivity and conscientiousness make his The Cotton Kingdom a central source of information about conditions in the Old South. T he problem of mixed blood, to be sure, does not go unnoticed by him. While visiting in Virginia, Olmsted reports that he was ‘‘surprised’’ by the number of ‘‘nearly The Serpent of Lust in the Southern Garden 299 white-coloured’’ slaves he saw there. Furthermore, the prevalence of mulattos in New Orleans, and the elaborate system of concubinage responsible for many of them, is a point of particular interest for him, and he spends a considerable number of pages in reviewing the plight of the quadroon caste. While sexual relations between the races were practiced unabashedly in New Orleans, Olmsted is also aware that they were practiced elsewhere on an equally widespread, albeit covert basis. One southerner tells him that there is not a ‘‘likely-looking black girl in this State that is not the concubine of a white man. T here is not an old plantation in which the grandchildren of the owner are not whipped in the fields by his overseer.’’ In a passage of remarkable interest, Olmsted writes of traveling on a Red River steamboat on which copies of Mrs. Stowe’s Uncle Tom’s Cabin are being sold and of a conversation with a native of that region who complained of a lack of verisimilitude in the Red River sections of the novel. T he southerner explains that ‘‘no coloured woman would be likely to offer any resistance, if a white man should want to seduce her.’’ It requires little imagination to reconstruct the righteous indignation such a statement would have stirred up among readers in the North. T here is little wonder that, in many northern eyes, the South was, as Earl E. T horpe suggests, the ID personified. Poets sympathetic to the abolitionist cause were also quick to focus their attacks on what they viewed as the prevailing debauchery of the South. In Longfellow’s ‘‘T he Quadroon Girl,’’ a planter sells his daughter to the white man who lusts after her. And in ‘‘T he Farewell of a Virginia Slave Mother to her Daughters sold into Southern Bondage,’’ Whittier stresses the fate that awaits young slave women sold down the river: ‘‘T oiling through the weary day, / And at night the spoiler’s prey.’’ Mrs. Frances E. W. Harper, the Negro abolitionist-poet, reiterates this same theme when she writes of ‘‘young girls from their mother’s arms, / Bartered and sold for their youthful charms.’’ Likewise, antislavery novelists were fond of concentrating their attention on the more lurid and sensationalistic aspects of the question of mixed blood. In Richard Hildreth’s The White Slave, a work written with the avowed purpose of teaching the slaveholder’s conscience ‘‘how to torture him with the picture of himself’’ by invoking ‘‘the dark and dread images of his own misdeeds,’’ the horror attendant upon the theme of miscegenation is intensified by the introduction of the theme of incest. So popular was the theme of mixed blood with abolitionist writers that a whole tradition of fiction grew up around the vicissitudes of the ‘‘tragic mulatto,’’ usually a beautiful young woman with only the slightest trace of Negro blood who is subjected to a lengthy series of torments and temptations designed to illustrate the wide range of evils nurtured by slavery. As students of this tradition note, the fact that the slave protagonist in such novels was to all appearances white and shared the characteristics of the typical white heroine of melodramatic romance helped stress the arbitrary nature of racial distinctions in general and therefore short-circuited whatever racial biases the northern audience itself maintained. One of the most typical of these novels is William Wells Brown’s Clotel, which is particularly interesting because it is the work of this nation’s first black novelist, a man who was himself a mulatto fugitive slave. Clotel wastes no time in intro- 300 Clark ducing the main thrust of its indictment of the peculiar institution: ‘‘With the growing population of the Southern States, the increase of mulattos has been very great. Society does not frown upon the man who sits with his half-breed child upon his knee whilst the mother stands, a slave, behind his chair.’’ For Brown, miscegenation is symptomatic of the degrading influence of slavery upon all it touches, and the author stresses the fact that since no inducement is ‘‘held out to slave women to be pure and chaste . . . immorality and vice pervade the cities and towns of the South to an extent unknown in the Northern States.’’ Charges of this sort, while appealing to self-righteous sentiment in the North, could not help but have a devastating effect upon the conscience of the Biblereading South. Questions of sexual morality aside, the very presence of antiamalgamation statutes on the books served to convict many southerners of hypocrisy at the least; nor were all fathers of illegitimate slave children devoid of basic paternal instincts. Many planters freed their mulatto offspring, but manumission became increasingly difficult in the years preceding the Civil War, and sometimes they waited too late. T ocqueville provides an interesting case in point: I happened to meet an old man . . . who had lived in illicit intercourse with one of his Negresses and had had several children by her. . . . He had . . . thought of bequeathing to them . . . their liberty; but years elapsed before he could surmount the legal obstacles to their emancipation, and meanwhile his old age had come and he was about to die. He pictured to himself his sons dragged from market to market . . . until these horrid anticipations worked his imagination into a frenzy. When I saw him, he was a prey to all the anguish of despair; and I then understood how awful was the retribution of Nature upon those who have broken her laws. As is generally recognized, southern women were in a position to feel particularly wronged by widespread miscegenation, and they were not always content to remain silent. Olmsted cites a letter from such a woman, a Virginia lady sent to prison for teaching slaves to read and write. A portion of that letter is of particular interest in view of the way in which it magnifies the ‘‘curse’’ of miscegenation to an extent previously reserved for the institution of slavery itself: T here is one great evil hanging over the Southern Slave States, destroying domestic happiness and the peace of thousands. It is summed up in the single word—amalgamation. T his, and this only, causes the vast extent of ignorance, degradation, and crime that lies like a black cloud over the whole South. And the practice is more general than . . . the Southerners are willing to allow. Once this identification of miscegenation with the South’s regional ‘‘black cloud’’ has been made, miscegenation quite naturally becomes emblematic of the sins of slavery as a whole. Feelings of sexual guilt on the part of southerners may well have preceded feelings of institutional guilt, as Earl E. T horpe and others suggest, but in much southern writing since the Civil War the two kinds of guilt tend to become for all practical purposes inseparable. If illicit biracial sex and the selling of mulatto children can be said to represent the South’s sins writ small, and, as we have seen, sins bring on inevitable retri- The Serpent of Lust in the Southern Garden 301 bution, it is not difficult to understand the unique role of the mulatto character within the tradition of fiction with which we are concerned. After all, given the racial stratification of southern society, the very presence of a person of mixed blood constitutes an embarrassment at the least. As Frederick Douglass, himself perhaps the son of a white planter, noted in My Bondage and My Freedom (1855), ‘‘the mulatto child’s face is a standing accusation against him who is master and father to the child.’’ T he mulatto, then, functions as a living symbol of sin; and, as a fictional character, he oftentimes becomes quite literally the physical realization of the white southerner’s violation of his slaves’ humanity. Jules Zanger puts it well in his perceptive article, ‘‘T he ‘T ragic Octoroon’ in Pre–Civil War Fiction’’ (American Quarterly, 18, 63–70 [in this volume, p. 287. —Ed.]): T he octoroon . . . represented not merely the product of the incidental sin of the individual sinner, but . . . the result of cumulative institutional sin, since the octoroon was the product of four generations of illicit, enforced miscegenation made possible by the slavery system. T he very existence of the octoroon convicted the slaveholder of prostituting his slaves and of selling his own children for profit. By imaginative extension, this living symbol and constant reminder of the South’s historical guilt over slavery became the fitting instrument through which the eternally-just workings of Providence would be likely to exact vengeance for past wrongs. In this way, the pathetic victim of the ‘‘tragic mulatto’’ tradition was gradually transformed into the figure of the righteous avenger. T he seeds of this characterization of the person of mixed blood were already present in the antislavery fiction of the antebellum period. While heroines of mixed race were portrayed, with few exceptions, as hapless and passive victims of the slave system, the male mulatto protagonist was frequently pictured as an indignant rebel. He felt intensely the demeaning role placed upon him by the institution of slavery. A fierce spirit of freedom, attributed by writers like Hildreth to the mulatto’s white blood, burned within him, and his resentment over the wrongs perpetrated against him by white society threatened continually to express itself in violence. Hildreth’s Archy Moore, wronged continuously by his white father, is precisely such a character, as is Harry Gordon, the protagonist of Mrs. Stowe’s Dred, who is the victim of his white half-brother’s unnatural cruelties. George Harris, the husband of Eliza in Uncle Tom’s Cabin, is perhaps the best known of these figures, and he finally vows to endure the abuses of his master no longer and becomes a runaway like his historical counterparts William Wells Brown and Frederick Douglass, two mulattos who made their grievances against slavery manifest through the active roles they assumed in the antislavery struggle. Indeed, it is interesting to note how history and literature tended to reinforce one another in this regard. T here is an inescapable and highly appropriate irony in the fact that the sins of the slaveholders often returned to plague them in the persons of their illegitimate offspring and further irony in the fact that many of the most significant black leaders during Reconstruction were also of mixed ancestry. Behind such irony there is this implicit formula: miscegenation is a sin, and like all sin it involves punishment; there can be no more fitting agent of that punishment than the living embodiment of the sin itself, the haunting figure of the wronged mulatto. 302 Clark T here appears to be a clear literary bond, then, connecting a character like the vengeful stranger in Harris’ ‘‘Where’s Duncan?’’ with mulatto characters like Honore Grandissime and Palmyre Philosophe in Cable’s The Grandissimes, for ex´ ample, or T om Driscoll in T wain’s Pudd’nhead Wilson. Yet it is perhaps more significant to note that the mulatto avenger appears at his most threatening in the Reconstruction novels of the two southern apologists T homas Nelson Page and T homas Dixon, Jr. In Page’s Red Rock, the animal-like ‘‘yaller nigger’’ rabblerouser, Moses, is a constant thorn in the side of the war-and-defeat-stricken white community until he pushes his new-found liberty too far and attempts the rape of the local belle. He subsequently flees the vicinity with a band of chivalrous vigilantes at his heels. In Dixon’s The Klansman, the radical Republican leader, Stoneman, is persuaded to crush out southern civilization at the sly prompting of his mulatto mistress, and another mulatto, the scurrilous Silas Lynch, becomes Stoneman’s chief agent in humiliating the prostrate South. Lynch repays his benefactor’s trust by making advances toward his daughter. Dixon’s lesson to Negrophiles is clear. Fortunately, in Dixon’s view at least, the Ku Klux Klan almost always saves the day, although this is not the case in The Sins of the Father, Dixon’s most elaborate treatment of the theme of miscegenation. In that work, the author admits that mixed blood ‘‘is not merely a thing of to-day . . . but the heritage of two hundred years of sin and sorrow.’’ Nevertheless, he insists that the real fault lies with the sensuous and amoral mulatto women of the South who prey upon the virility of the southern gentleman. Dixon’s Cleo is pictured as a violent, catlike creature who, when spurned by her white lover, succeeds in systematically bringing ruin to a proud old North Carolina family. T he mulatto avenger makes notable appearances in many of the novels of the southern renaissance as well. A special case in point is the pitiful yet terrifying figure of Yellow Jim in Allen T ate’s wrongly neglected novel The Fathers. Strictly in accordance with our paradigm, an inevitable curse is visited upon the House of Posey when young Mr. George violates his half-brother’s humanity by trading him for a race horse. Charles Bon in Faulkner’s Absalom, Absalom! is perhaps the best known of all mulatto avengers, and Absalom, Absalom! itself stands in many ways as the artistic culmination of the tradition with which we have been dealing here. Faulkner’s portrayal of Lucas Beauchamp in Intruder in the Dust brings to bear an interesting variation on the role of mulatto as victim-avenger, for it is through passive resistance, rather than violent action, that Lucas becomes ‘‘tyrant over the whole country’s white conscience.’’ Works like T ate’s novel and Faulkner’s Absalom, Absalom!, Go Down, Moses, and Intruder in the Dust are a far cry from Harris’ ‘‘Where’s Duncan?’’ Yet they testify forcefully to the emotional power of the ‘‘myth’’ with which the earlier writer was working and stand as vivid realizations of the fictional potential inherent within it. T hus far, we have dealt with three aspects of the paradigm emerging from Harris’ story: the motif of guilt and retribution; the identification of miscegenation with the sin of slavery and racial caste itself; and the role of the person of mixed blood as both victim and avenger. One element remains to be considered—the question of the mulatto character’s ambiguous identity. Although Harris touches upon the possibilities of this issue only in the most implicit and superficial way, The Serpent of Lust in the Southern Garden 303 contenting himself with surrounding his dark stranger’s real identity with thinly veiled mysteriousness, other writers explore the problem of the mulatto character’s twofold racial nature and its resultant psychological effect upon his personality in greater depth. When, in a famous comic episode in Uncle Tom’s Cabin, the St. Clares’ cook reminds a group of light-skinned slaves that they are ‘‘niggers’’ as much as she is, she is quite right of course in one sense, for given the sharp line of demarcation separating the races in southern society, one drop of black blood is sufficient to preclude a person from qualifying as a member of the dominant race. But the question of racial identity was no doubt hardly so simple a matter for the mulatto himself, however. If we are to trust the testimony of a long line of historians, as well as fictionists, the problem of self-definition was troublesome to slaves in general, and it is only natural that the person of mixed ancestry should have suffered a particularly acute crisis of identity, for he was caught quite literally between the two irreconcilable polarities of southern life. Writers of fiction seem to have sensed the essential pathos of the mulatto’s ambiguous plight from the beginning so that the alienation and self-uncertainties of the mixed-blood became a standard aspect of the ‘‘tragic mulatto’’ tradition. Even a basically unsympathetic novelist like Dixon is capable of handling this side of the mulatto’s character with sympathy. In The Leopard’s Spots, he traces the career of George Harris, Jr., the son of Mrs. Stowe’s Eliza and George. T he young Harris is cultured, educated, and nearly white. He is the protege of the ´ ´ northern philanthropist Lowell who tells him that all men are created equal. George takes his sponsor at his word and asks him for the hand of his daughter, only to learn that Lowell is unprepared to practice what he preaches. In bitter disillusionment, the mulatto tries to make his own way in the world, but he finds that he cannot fit into either white or black society. Finally, he takes a bizarre and irrational pilgrimage throughout the nation, visiting one by one the heaps of ashes that mark the places where Negroes have been lynched by white mobs. Ironically, it is Dixon, the rabid Negrophobe, who has left us with one of the most memorable and haunting early images of the mixed-blood character’s faltering search for Self. In a real sense, however, it is the Afro-American writer who is the legitimate heir to this element of our paradigmatic theme of miscegenation, for black writers have been especially drawn to the fictional possibilities surrounding the person of mixed race and his need to establish for himself a stable sense of identity. T he result has been a considerable ‘‘literature of ‘passing’ ’’ in which the protagonist wavers between living as a white or embracing his N egritude (in the broader sense of that term). From Rena Walden in Charles W. Chesnutt’s The House Behind the Cedars, who devotes herself to educating her own people after she has been betrayed by her white fiance, and James Weldon Johnson’s hero of The Autobi´ ography of an Ex-Coloured Man, who passes for white only to feel that he has lost something of value in his Negro heritage, to the heroines of Jessie Fauset and Nella Larsen, the mulatto in search of his racial identity appears and reappears in the works of black Americans. T he way in which Afro-American novelists utilize this theme and the way in which their use of it prefigures the black man’s own quest for identity within American life and institutions is a question worthy 304 Clark of a full-length study in its own right, but it lies beyond the scope of this consideration. Rather, this essay must be content to close with suggesting the way in which the fictional mulatto’s search for self-definition parallels the plight which increasingly confronts ‘‘modern’’ man in general, the man who finds himself in a world in which the sense of selfhood both personal and social, is an elusive entity. In the hands of a southern writer whose literary temper is akin to that of his Continental contemporaries like Sartre and Camus, the essentially parochial dilemma of the person of mixed racial background can become a convenient emblem for the situation facing the ‘‘existential’’ hero himself. Fictional materials indigenous to the regional tradition we have been examining thus take on more universal implications. T his is certainly the case with Faulkner’s treatment of Joe Christmas in Light in August, as numerous critics have pointed out. And the pathos of Christmas’ schizoid existence is intensified by the fact that his ‘‘mixed blood’’ may well be a figment of his own imagination entirely. T he heroine of Robert Penn Warren’s Band of Angels, Amantha Starr, is yet another remarkable case in point. Critics who have been quick to attack Band of Angels for its obvious melodrama and its reliance upon nineteenth-century fictional conventions have largely missed the point. Warren is indeed retelling the old story of the mulatto heroine sold into slavery after her father’s untimely death, but he pushes his narrative beyond the level of cliche, or, more properly, penetrates to the mythic core behind the cliche, ´ ´ so that Amantha’s story becomes an account of man’s attempt to free himself through self-knowledge. T he novel opens quite literally with Amantha’s question, ‘‘Oh, who am I?,’’ and ties her hopes for personal liberation to her quest for a successful answer. Paradoxically, it is Amantha’s fall from grace into slavery that sets her out on her search for the truth about herself, the truth that alone will set her free. Band of Angels is a triumphant example of Warren’s ability to ground his philosophical statements about man and his place in history and the cosmos within the specifics of a regional tradition. In works like Light in August and Band of Angels, the southern writer’s perennial concern with the issue of mixed blood lends itself to the exploration of much broader concerns. T he theme of miscegenation has played an important role in American writing, particularly in the South, for over a century now. T he possibility for irony implicit within it has furnished ample materials ranging from the tragic to the satiric. T he importance of the theme can be measured not only in terms of the sheer number of works in which it asserts itself, but also in terms of the lasting value of a handful of the works which it informs. With the increasing homogeneity of American culture as a whole and the inevitable decline in specifically regional consciousness, the vital impulse behind the literary tradition with which we have been concerned here will no doubt begin to dissipate. Perhaps it is fair to see this tendency already at work in the treatment the problem of miscegenation receives in the novels of Faulkner and Warren. But the tradition is by no means fully exhausted. It reasserts itself effectively in a story like ‘‘Bloodline’’ by the black southerner Ernest J. Gaines, and it may well give rise to significant fiction in the Miscegenation in the American Novel 305 future. If not, it has already given us Absalom, Absalom! and Go Down, Moses, and has therefore served American literature well. Miscegenation in the Late Nineteenth-Century American Novel* WIL L IAM L . AN D REWS In the writing of Charles W. Chesnutt, an Afro-American whose ‘‘color line’’ fiction achieved unprecedented notoriety at the turn of the twentieth century, the problem of miscegenation, its history, its causes, and its moral and social effects, became the unifying theme of an author’s entire oeuvre for the first time in American literature. In all three of Chesnutt’s published novels, the complex social and political problems which are treated appear against the background of suppressed or tragically resolved interracial love and miscegenation.1 It is important to remember, however, that the possibility of miscegenation as a consequence of the new post–Civil War racial ‘‘equality’’ in America was a question which a great many literary people, white and black, felt obliged to address in fiction. Many of these writers tried their hands at the novel of miscegenation, not merely out of an impulse to concoct a popular romance of forbidden interracial love or to engage in ritual pity for the ‘‘tragic mulatto’’; directly or indirectly, their novels reflected and influenced most of the positions taken in the national debate over the moral, social, and political ramifications of black assimilation into the mainstream of white American life. Perhaps the key question facing America after emancipation was to what extent the newly-freed slaves could and should be assimilated into American society. T hough many felt the granting of civil and political rights in the abstract through passage of the Fourteenth and Fifteenth Amendments was sufficient aid to the black man in his upward struggle, others argued that greater vigilance was required to see that the black man could exercise his rights in fact as well as theory. Among these supporters of Afro-American equality was George W. Cable, whose ‘‘Freedman’s Case in Equity’’ (1885)2 spoke forthrightly of the need for the South to end its color caste system and change its institutions, educational and penal, * From William L. Andrews, ‘‘Miscegenation in the Late Nineteenth-Century American Novel.’’ Southern Humanities Review 13.1 (Winter 1979): 13–24. 1. The House Behind the Cedars (Boston: Houghton, Mifflin, 1900) dramatizes the private effects of proscribed interracial love before the Civil War on the fates of two individuals living during the Reconstruction era. In the widened focus of The Marrow of Tradition (Boston: Houghton, Mifflin, 1901) and The Colonel’s Dream (New York: Doubleday, Page, 1905), the fates of two representative Southern towns emerging into the twentieth century are jeopardized by reactionary social, political, and economic forces spawned in part by the sexual sins of the antebellum fathers. 2. ‘‘T he Freedman’s Case in Equity’’ is reprinted in George W. Cable. The N egro Question, ed. Arlin T urner (Garden City, New York: Doubleday, 1958). 306 Andrews so that the freedman could occupy a truly free status. T he response of nine Southern newspapers to Cable’s plea was that ‘‘intermarriage, social ruin, and racial warfare would result if his views were followed.’’3 Cable answered in ‘‘T he Silent South’’ (1885) with an argument which faced squarely the prevalent Southern opinion that the pursuit of civil rights for blacks led inevitably to ‘‘social equality’’ and ‘‘amalgamation’’ of the races. Denying that ‘‘T he Freedman’s Case in Equity’’ offered a brief for social equality between the races, Cable went further to repudiate those who wished ‘‘to suppress a question of civil right by simply miscalling it ‘social intermingling’.’’4 Yet despite his assurance that his call for a national spirit of brotherhood did not necessitate ‘‘fusion of bloods,’’ Cable was ostracized by his region, while his political position regarding blacks was distorted by his most vocal critics into one advocating the ‘‘africanization’’ of the South. Cable’s treatment at the hands of leading Southern apologists of his day reveals a pattern of argument and defense which dominated Southern discussion of the race question in America throughout the latter part of the nineteenth century. T he expostulation for black civil rights regularly provoked the standard reply affirming the need for maintaining white supremacy in the South at all costs. Henry W. Grady, perhaps the most persuasive of the apologists for the ‘‘New South,’’ considered racial ‘‘integrity and dominance of the Anglo-Saxon blood’’ as the very foundation of the Southern social system.5 T he ultimate purpose of segregation was to preserve those ‘‘natural’’ barriers between the races, without which miscegenation would inevitably occur. T o countenance miscegenation or the relaxation of political, economic, or social