How the Law Decided if You Were Black or White: The Early 1800s
I
n February of 1815, two young friends of John Adams traveled
to Virginia, visited Monticello, and met Thomas Jefferson. Their names
were George Ticknor and Francis Gray. Gray had never known slavery as an
adult (which had ended 32 years earlier in his state of Massachusetts).
He was fascinated that many of Jefferson’s slaves looked European. He
asked the former president how Virginians went about determining whether
someone was Black or White (in the color-line sense), and how this
determination related to slavery.1 On March 4, 1815, Jefferson wrote a chatty 4-page letter in reply.2
He explained that slavery and endogamous group membership were
unrelated in Virginia law. On the one hand, mulattos were legally Black
and the law defined “mulatto” as anyone with one or more “negro”
grandparents. Jefferson thereupon filled two pages with mathematical
equations to show that anyone with less that 1/4 African admixture was
legally White.3 On the other hand, slavery passed through the
mother with no diminution regardless of ancestry, and had nothing to do
with the color line. Only upon emancipation would a former slave’s
membership in either of America’s endogamous groups become an issue. And
so, Jefferson explained, specifically referring to one of his
European-looking slaves, “if emancipated, he becomes a free white man [emphasis Jefferson’s], and a citizen of the United States to all intents and purposes.”4
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| Callie Black (anonymous) free Carmalite |
When Jefferson died eleven years after writing the letter to Francis Gray, his prediction was fulfilled. Eston Hemings was freed by his father’s will. He set up house in Charlottesville as a White man. As Jefferson had foreseen, Hemings was accepted as a member of the White endogamous group “and a citizen of the United States.” He was recorded as White in the Charlottesville census of 1830.7 He did not “pass for White” in the sense of deceiving anyone. There was no deception. Charlottesville had only a few hundred residents at the time. Sally had moved in with her son and she was listed as “colored” in the same census. For reasons to be explained later, Eston, his mother, Sally, and his wife, Julia Ann Isaacs (also a White person with an insignificant touch of known African ancestry), moved to Chillicothe Ohio after 1830. After his mother’s death, Eston and his family moved to Wisconsin as members of the White endogamous group and changed their surname to “Jefferson.” Their children were accepted as White.8 Their descendants still live on the White side of America’s endogamous color line today.9
Sally and Jefferson’s other son, however, was not so fortunate in the random mixing of his DNA strands. Eston’s brother was named James Madison Hemings after the husband of Dolly Payne Madison, who had been Sally’s close friend and mentor during her days in Paris. He was known as “Jim-Mad” to his friends and relatives, and he was of “bronze” complexion. Although the letter of Virginia law held Jim-Mad to be legally White, like his brother, his features were apparently not quite European enough for acceptance by White society. Despite the law, he was listed as “colored” in the 1830 census, like his mother. He also moved to Ohio after 1830 but lived out his life on the Black side of America’s endogamous color line.10
* * * * *
The above tale exemplifies three of America’s traditional methods of
determining on which side of the color line someone belongs: blood
fraction, appearance, and invisible blackness. The letter of Virginia’s
law was clear. It defined group membership in terms of blood fraction.
The blood-fraction rule was accepted and applied to Eston Hemings, to
his wife Julia Ann, and to many others of the time. On the other hand,
the letter of the law did not apply to Jim-Mad. Instead, he apparently
came under a second, unwritten law that said that, in addition to having
the correct blood fraction, you also had to look reasonably European.
The third rule that determines group membership is illustrated by the
way that this tale is told today in the popular press. Dozens of
accounts write that Eston Hemings and his wife “passed for White” or
“pretended to be White,” and that their children “thought that they were
White.”11 Any explanation that Eston and his family really
were White, and that they well knew that they were legitimately White
despite their trace of African ancestry, simply confuses many modern
Americans. Ironically, the White endogamous group membership that was
assigned to Eston Hemings’s children by their contemporaries in the
1820s, following the letter of a blood-fraction rule and the spirit of
an unwritten appearance-based rule, was revoked nearly two centuries
later by a society wedded to the notion of invisible blackness.This essay introduces the three legal rules that emerged in the early 1800s for deciding if you were a member of the Black endogamous group or a member of the White endogamous group: physical appearance, blood fraction, and association. It comprises three topics: Slavery Depended on Matrilineal Descent, Not on the Color Line shows that endogamous group membership neither affected nor was affected by slave status. Slave status was decided by a different rule entirely: the rule of matrilineal descent. The Color Line Became Legally Important Around 1800 explains why it became increasingly necessary for courts to decide whether someone was White or Black. At first, it was only to decide where the burden of proof fell in slavery cases, but state legislatures soon passed dozens of laws requiring distinctions across the color line. Physical Appearance, Blood Fraction, Association presents with examples, the strengths and weaknesses of each of the three rules that were applied in court.
The primary historical data source that this essay examines and relies upon in order to interpret the unfolding of the U.S. one-drop rule is the record of court cases. As explained elsewhere, court reports were assembled into an Excel database. Hundreds of thousands of cases that were held in the United States and its ancestral British colonies were examined and considered for inclusion in the database. The database includes every single court case on record from the colonial period through 1980 where: (1) a person’s endogamous group membership—Black or White—was an issue to be judicially resolved and (2) the rationale for the decision was written down. This yielded about 300 cases.12
Slavery Depended on Matrilineal Descent, Not on the Color Line
Jefferson’s explanation, that which side of the color line a person was on had no impact on their slave status, was incomplete. The very fact that Francis Gray asked the question shows that the color line and slavery were linked somehow in popular understanding. As explained elsewhere, the uniquely American connection between slavery and the color line came about because the intermarriage barrier was designed to prevent rebellious alliances among forced laborers in the only colony where such a tactic could have worked—the only colony with more European forced laborers than Africans. The result of the barrier’s enforcement was that European laborers in British North America were eventually freed and that slavery (lifelong hereditary forced labor) became associated with those of mostly African ancestry.13 And so, when Gray asked his question, the link between the color line and the American version of slavery had echoed for more than a century.On the other hand, Jefferson’s answer was perfectly accurate. Although slavery was linked to endogamous group membership in the popular mind, there was no legal connection between the two until 1802, as discussed below. In the century since the 1691 invention of the color line, many Americans had been members of the White endogamous group but had been slaves nonetheless, like Eston Hemings before his 1826 manumission. Conversely, many Americans had been members of the Black endogamous group but were free nonetheless, like Sally Hemings after Jefferson’s death. As Jefferson wrote, whether you were legally a slave had nothing to do with which side of the color line you were on. From the 1662 partus sequitur ventrem law until slavery’s end over two centuries later, the only factor that determined whether someone was legally born a slave was whether the mother was legally a slave at the time. No other factor entered the equation: not skin tone, not endogamous group membership, not ancestry, not region nor state, not anything but matrilineal descent ad infinitum and nothing more.14
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| White Slave Woman. Color is irrelavant |
The question was not trivial. Whether someone was slave or free had to be decided many times in the years between 1691 and 1800. Virginia alone imported about 45,000 African slaves between 1700 and 1750.15 This comes to about ten percent of all the slaves ever imported into British North America.16 Consequently, the number of Americans of African heritage exploded during this period. Members of the Black endogamous group went from 7 percent of Virginia’s population to 44 percent.17 Some of these individuals were recently imported slaves, and some were the children of slave mothers—also slaves under the law. But others had European mothers, and still others descended from African planters, shopkeepers, or indentured servants of the seventeenth century, from before the color line was invented. How did the courts decide who was legally a slave and who was free? They did it precisely as Jefferson had explained.
Eleven appealed court cases were held in British North America between 1770 and 1800 to determine whether someone was legally a slave. All followed partus sequitur ventrem. In every case, plaintiff and defendant alike tried to prove the individual’s status by tracing his or her matrilineal ancestry. In six of the eleven cases, the party arguing for freedom traced matrilineal ancestry to free British women.18 In three cases, ancestry was traced to Amerind women.19 The remaining two cases traced matrilineal ancestry to Spain and to China.20 In every case, the court’s ruling was based on whether the matrilineal ancestor had been legally free or slave. In no case was appearance or African ancestral blood fraction an issue. Indeed, in Higgins v. Allen, 1796 Maryland, a man’s ancestry was traced from his great-grandmother, a Scotswoman, who had married an African slave, and whose mulatto daughter also married an African slave, and whose granddaughter also married an African slave, giving birth to the individual in question—a man of overwhelmingly African ancestry and of utterly African appearance. And yet, despite his appearance, the court set him free due to his matrilineal descent from a free woman, however distant.21 The ancient principle of partus sequitur ventrem was thereafter applied without exception by every U.S. court until slavery was ended by the Civil War.
Nevertheless, although the ancient principle of partus sequitur ventrem was universally applied, it was sometimes inadequate in practice due to lack of evidence. One could be a slave by birth, without personally having been purchased or captured. Hence, a legitimate slaveowner might be unable to present a bill of sale. On the other side, government-recorded birth certificates would not be invented for another half-century, and so a person might be unable to document having been born free. According to Kenneth Stampp, freedom papers or travel passes were in use (and being forged by literate slaves) at least as early as 1833.22 But a runaway might discard a pass or forge freedom papers, and an avaricious slave-trader might claim that the freedom papers in a person’s possession were forged. Credible documents were scarce in the messy real world of the early republic. And so the question was, how could a court decide between someone claiming, without documents, to be held illegally and someone else claiming, also without documents, to be the other’s rightful owner? Which party had the burden of proof?
Looking backwards in time, American courts’ problem—how to resolve property in a person—had already been faced and solved previously by every slave-owning nation ruled by laws. According to British common law, in civil suits the burden of proof falls upon the plaintiff. But lawsuits over slave status were as likely to be brought by the slave as by the owner. A sense of fairness would seem to demand a more objective rule. In fact, colonial courts regarding slavery in British North America followed Spanish, not British precedent. Since 1265, Spanish law had upheld the doctrine that the burden of proof always lay upon the party arguing that someone was a slave. Spanish King Alfonso X had decreed that, since slavery was odious and contrary to Church teachings, it had to be supported by positive evidence. If an alleged slaveowner was unable to provide positive evidence, the person was to be freed. The alleged slave did not need to provide any evidence, except to contest evidence by the alleged owner. Spanish courts throughout the Americas followed this principle in theory.23 It was also followed throughout British North America until 1802.
The Color Line Became Legally Important Around 1800
The first appealed court case on record where a person’s endogamous group membership was an issue was decided in 1802. This seems strange. The endogamous color line had been in force since 1691, and penalties for intermarriage became increasingly severe in the decades immediately thereafter. Nevertheless, for over a century no appealed case was recorded where a court had to decide on which side of the color line someone belonged. Some have suggested that this is because virtually all Americans in this period were visibly of either northern European or African descent; that few ambiguous-looking people of dual heritage had yet emerged. But this explanation seems unlikely. As explained elsewhere, it takes only three generations of intermarriage—under 75 years—to produce European-looking adults with as much as 25 percent African admixture.24 A more likely explanation is that endogamous group membership per se (as opposed to slavery) had few legal ramifications under British colonial law. Laws restricting the rights of free Black citizens (other than laws forbidding their marrying Whites) seem to be a post-Revolutionary invention. Whatever the reason for the hiatus, the first court case where endogamous group membership was an issue was also the first case that overturned the burden-of-proof precedent.The change in burden of proof for slavery arose in 1802 North Carolina. A twelve-year-old girl surnamed Gobu claimed to have found an abandoned eight-day-old male infant lying in a barn. The baby had straight hair and an “olive color” (yellowish) skin tone. The girl took the baby home and raised him as her slave. Upon reaching maturity, the young man sued for his freedom. He argued, in Gobu v. Gobu, 1802 North Carolina, that Ms. Gobu lacked evidence proving his legal slave status.25 Her lawyer argued that, because it was clear that the plaintiff was not of pure European ancestry, the burden of proof should rest upon him, not upon his alleged owner. The judge agreed with this altered burden of proof.
I acquiesce in the rule laid down by the defendant’s counsel, with respect to the presumption of every black person being a slave. It is so, because the negroes originally brought to this country were slaves, and their descendants must continue slaves until manumitted by proper authority. If therefore a person of that description claims his freedom, he must establish his right to it by such evidence as will destroy the force of the presumption arising from his color.26
The judge thus overturned six centuries of Spanish law and established two new precedents that reverberated in U.S. courts from then on. First, he ruled that the burden of proof was not always upon the alleged slaveowner. Second, he ruled that the burden of proof depended on the alleged slave’s endogamous group membership (“the presumption of every black person being a slave”). Thenceforth, a Black person would be presumed a slave unless proven otherwise. A White person would be presumed free.
Interestingly, the Gobu v. Gobu judge then went on to free the young man, denying that the new burden of proof standard applied to him, thereby establishing a third precedent: a person of dual heritage did not necessarily fall on the Black side of the color line:
I am not aware that the doctrine of presuming against liberty has been urged in relation to persons of mixed blood, or to those of any color between the two extremes of black and white; and I do not think it reasonable that such a doctrine should receive the least countenance. Such persons may have descended from… a white parent in the maternal line or from mulatto parents originally free, in all which cases the offspring, following the condition of the mother, is entitled to freedom. Considering how many probabilities there are in favor of the liberty of these persons, they ought not to be deprived of it upon mere presumption, more especially as the right to hold them in slavery, if it exists, is in most instances, capable of being satisfactorily proved.27And so, the Gobu v. Gobu ruling thus established that a person of mixed ancestry was not necessarily a member of the Black endogamous group for the purpose of determining onus probandi in a slavery case
Four years then passed before the issue arose again. The court in the second case confirmed the Gobu v. Gobu ruling and accepted case law was changed once and for all. That case was Hudgins v. Wrights, 1806 Virginia.28 Hanna Hudgins and her daughter sued for their freedom. They won in the lower court, on the ground that the alleged owner had not made a case. The lower court explicitly followed the old Spanish law of 1265, ruling that:
freedom is the birthright of every human being, which sentiment is strongly inculcated by the first article of our “political catechism,” the bill of rights… [and] that whenever one person claims to hold another in slavery, the onus probandi lies on the claimant.29The five appeals judges in Hudgins v. Wrights unanimously voided the principle upon which this decision was based. They held, following Gobu v. Gobu, that the burden of proof did not always lie on the alleged slave owner:
Where white persons, or native American Indians, or their descendants in the maternal line, are claimed as slaves, the onus probandi lies on the claimant; but it is otherwise with respect to native Africans and their descendants, who have been and are now held as slaves.30Also, as in Gobu v. Gobu, the appeals court freed the plaintiffs because, “the youngest of the appellees was perfectly white, and that there were gradual shades of difference in colour between the grand-mother, mother, and grand-daughter, (all of whom were before the court).” Three of the judges wrote a separate opinion stressing even more firmly that the burden of proof depended on an alleged slave’s endogamous group membership.31
Hudgins v. Wrights decisively confirmed the case law that slavery’s burden of proof depended on the color line. This principle was then followed regularly in U.S. courts thereafter. Subsequent courts, even outside Virginia, cited Hudgins v. Wrights as precedent.32 Hook v. Nanny Pagee and her Children, 1811 Virginia, ruled that a single mother and her children were presumed free because “clear and distinct perception” revealed them to be White.33 In Edwards v. M’Connel, 1813 Tennessee, a “deep yellow” family was ruled to be Black (hence, presumed slaves) despite being from Guadalupe.34 In Welborn v. Little, 1818 South Carolina, an indigent young apprentice was freed from an attempt to enslave him by the presumption of his freedom, based on his being a member of the White endogamous group by virtue of his appearance.35
Endogamous group membership soon became important in courts well beyond just those cases held to resolve slave status. Many states forbade Black witnesses from testifying in trials involving White litigants. Between 1794 and 1811, five cases hinged on whether a witness would thus be allowed to testify.36 And, of course, people continued to intermarry despite the law. One case in this period resolved on which side of the color line someone belonged in order to decide the validity of a marriage.37 Before long, dozens of laws were passed and precedents established that hinged upon upon whether you were Black or White. Which side of the color line you were on affected more than just your slave status, testimony, and marriage. It also determined: what school you could attend, whether you could inherit, whether you could vote, the taxes you paid, public transportation carrier liability for your escape, whether a racial epithet was slanderous, how you would be sentenced as a criminal, whether you could carry a gun, and dozens of other aspects of daily life.38
A century before Jefferson wrote his explanation, Governor Gooch had realized that preserving an endogamous color line, based on the notion that colonists of African descent were slaves and those of European descent were free, would depend upon preventing the birth of hybrids. He probably did not foresee just how hopeless this goal would turn out to be. As explained elsewhere, the steady rate of Black-to-White genetic leakage across the color line had produced, by the turn of the nineteenth century, many thousands of Americans who were of mixed Afro-European ancestry. Also, as explained elsewhere, less than a dozen superficial genes determine the physical features that Americas see as “racially” significant, and the non-European versions of those few genes are often replaced by the genetic recombination (meiosis) that takes place with each generation, thus erasing “racialized” features in mixed descendants. Finally, as explained elsewhere, Americans of about 15 percent African admixture or less are usually accepted as members of the White endogamous group. And those of roughly 35 percent African admixture or more are usually relegated to the Black side of the U.S. color line.39 This means that, while some Americans of mixed ancestry looked European and some looked African, many others looked ambiguously Mediterranean. How could law courts be expected to resolve to which side of the color line such people belonged?
Physical Appearance, Blood Fraction, Association
Even in affirmative action litigation today, courts do not have complete freedom to set the criteria themselves. Two important restrictions limit courts’ scope of reasoning. First, courts cannot in practice base their decisions solely upon endogamy itself—upon whether the person is accepted by society as a suitable marriage partner for Whites or for Blacks. They cannot because this is precisely the issue to be resolved. Cases where all parties already agree which side of the color line someone is on would not require intervention by the judicial system. In cases held specifically to determine someone’s endogamous group membership, the endogamous group membership in question must be proven and cannot be stipulated. Second, U.S. courts have consistently viewed endogamous group membership as something biologically inherent in the individual, something called “race.” Although some U.S. judges may have secretly considered “race” to be a social construct and realized that they were actually assigning an individual to one side or the other of an imaginary social barrier, this is seldom if ever what they wrote. An inspection of the rhetoric of the nearly 300 written decisions regarding “racial identity” reveals that, after the one-drop rule emerged in the 1830s, judges usually expressed their task as that of exposing hidden reality.40 Even today, the rhetoric of America’s judicial credo is that everyone biologically falls on one side of the color line or the other. Presumably, everyone in the United States has a single true “race” in the eyes of the law, and the law’s task is to sniff out what that persons “true racial identity” is. On what criteria did appellate judges base their decisions? Fortunately, they usually wrote their reasoning down.Until the advent of the one-drop rule of invisible Blackness in the 1830s (discussed elsewhere), courts relied on a combination of three rules to determine whether someone was Black or White. The first was the rule of physical appearance. The second was the rule of blood fraction. The third was the rule of association.
Nineteen appellate cases were held from colonial times through 1829 to determine an American’s “racial identity” or endogamous group membership. Of these, fifteen were decided on the basis of the person’s physical appearance. You were Black if you looked African; you were White if you looked European. Ten of the fifteen were slavery cases where the person’s endogamous group membership established the burden of proof.41 Three decided whether a person could testify in a case involving Whites.42 One resolved whether a defendant could demand a jury trial (Blacks lacked the right to a trial by jury).43 And one determined the validity of a marriage.44 In only one of these ten cases was the person found to be Black for the purposes of the case.45 One might think that today’s appearance-based clues to a person’s endogamous group membership (complexion, hair curliness, nose width, lip thickness, and the like) would always have been important.46 But in fact, some nineteenth-century cases depended upon the shape of the jaw or of the foot, or on purple- or blue-colored marks on certain parts of the body. Nevertheless, despite its popularity (cases were decided on the basis of appearance until the 1950s), appearance-based endogamous group membership had its drawbacks.
There were two problems with using only appearance as color line determinant. The first was that it ignored ethnic self-identity. After the endogamous color line was artificially imposed around 1700, it soon gave rise to a unique ethnic self-identity among Americans of the Black endogamous group. Socio-cultural traits associated with ethnic self-identity are passed down from parent to child. Hence, then as now, many European-looking Americans with parents who were members of the Black endogamous group considered themselves to be Black, despite their own fair-complexioned physical appearance. Indeed, as mentioned earlier, about five percent of modern Black Americans have no detectable African genetic admixture at all.47 What’s more, since language, religion, folklore, and other traits are culturally learned, subtle differences in accent or even movement patterns can enable Americans to perceive which side of the color line someone self-identifies with, regardless of their appearance. A strictly appearance-based legal rule would thus result in many legally White Americans insisting that they were socially and culturally Black. In a taped interview conducted by a blind, black anthropologist, a black man nearly ninety years old said:
Now you must understand that this is just a name we have. I am not black and you are not black either, if you go by the evidence of your eyes…. Anyway, black people are all colors. White people don’t all look the same way but there are more different kinds of us than there are of them. Then too, there is a certain stage [at] which you cannot tell who is white and who is black. Many of the people I see who are thought of as black could just as well be white in their appearance. Many of the white people I see are black as far as I can tell by the way they look. Now, that’s it for looks. Looks don’t mean much. The thing that makes us different is how we think. What we believe is important, the ways we look at life.48The second problem with appearance-based group membership determination was that it was too subjective to give the appearance of justice. The public well knew that that appearance is elusive and subject to illusion and rationalization.49 Actual court cases showed a tendency to rule that community leaders were perceived to be on the White side of the color line while vagabonds of the same skin tone were seen as Black.50 Nevertheless, as will be explained shortly, the rule of physical appearance—in a one-sided sense—remained in effect as an adjunct to the other rules. To this day, although having a European appearance will not guarantee your acceptance into the White endogamous group, a strongly African appearance will definitely relegate you to the Black endogamous group.
In an effort to make endogamous group determination more consistent and objective, colonial and then state legislatures adopted blood-fraction laws. These laws spelled out just what fraction of your ancestors had to be on which side of the color line in order to determine your own group membership. And so, the rule of blood fraction became an alternative criterion used by courts to determine which side of the color line someone was on.
The earliest blood fraction law in British North America was that of 1705 Virginia, which defined “Black” as anyone with one or more “Negro” great-grandparents (1/8 or more Negro blood made you Black). This was amended in 1785 Virginia to be anyone with one or more “Negro” grandparents (1/4 or more Negro blood made you Black).51 Over the next century, almost every state legislated a statutory definition of endogamous group membership based on blood fraction. By 1910, Florida, Georgia, Indiana, Missouri, South Carolina, Kentucky, Maryland, Mississippi, North Carolina, Tennessee, and Texas defined anyone with 1/8 or more Negro blood to be Black, as in 1705 Virginia. Nebraska, Oregon, Virginia, and Michigan used a 1/4 rule. Alabama used a 1/32 rule. At the other extreme, Massachusetts’s statutes and Ohio case law (not statutes) ruled that someone was legally of the White endogamous group if they were mostly of European blood (a 1/2 rule).52 As indicated, the most popular blood fraction rule before Jim Crow was the 1/8 rule. This was probably because 12.5 percent African admixture really does reflect physical appearance better than other fractions.53 As Caroline Bond Day put it, “I have been able so far to see no traces whatever of Negro admixture [in octoroons].”54
Since blood fraction laws were devised in an effort to make the law impartial and objective, court cases that were decided on the bases of blood fraction reflected attempts to rule that a person was White or Black regardless of appearance. Of the nineteen appellate cases held from colonial times through 1829 to determine an American’s “racial identity” or endogamous group membership, just four were decided on the basis of blood fraction. One was a slavery case, where the person’s endogamous group membership established the burden of proof.55 Two decided whether a person could testify in a case involving Whites.56 And one determined the validity of a marriage.57 In only one of these four cases was the person found to be White for the purposes of the case.58 Because of its presumed objectivity, blood fraction became a widely used criterion, along with physical appearance, and court cases were decided on this basis until the 1940s.59
There were two problems with using the rule of blood fraction to determine someone’s endogamous group membership. The first was that the rule of blood fraction could not be used independently of the rule of physical appearance, but it had to be buttressed by that earlier rule. Due to randomness in the way that features are inherited, many people with significant African ancestry look European to most Americans and an equally large fraction with preponderantly European ancestry look African.60 This created a problem as evidenced by the selection apparent in phenotype versus genotype variation. Since about 1700, Anglo-Americans of what eventually became the hegemonic U.S. mainstream culture have relegated African-looking families to the Black side of the endogamous color line.61 A strictly interpreted blood-fraction rule would have inevitably resulted in some African-looking people being ruled to be of the White group and some European-looking people being ruled to be of the Black group. Judging by the genetic evidence, the latter situation has seldom been a problem. But the former (accepting an African-looking person as White) was usually intolerable. As Justice Battle of the North Carolina Supreme Court wrote in State v. William Chavers, 1857 North Carolina, “Can it be then, that a remove by one [last] generation [in a series] has the effect, in law, of turning a half negro into a free white man in spite of the color of his skin or the kinking of his hair? It seems to me both unreasonable and absurd…”62
The second problem with the rule of blood fraction was that such a rule is recursive. The concept of recursion or infinite regress is best explained with an example.
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| Moors 1834 |
Whitmell Dempsey, Jr. of 1849 North Carolina was of European appearance, although some said that he had Black ancestry. Like many men of that place and time, he supplemented his family’s diet by shooting squirrels, rabbits, woodchucks, and such. In State v. Whitmell Dempsey, 1849 North Carolina, he was charged with violating Chapter 30 of the North Carolina act of 1840, which made it a misdemeanor for, “any free negro, mulatto, or free person of color, to carry about his person or keep in his house any shotgun or other arms, specified, unless he obtain a license from the county court.”63
At trial, the prosecution argued that Dempsey was a White-looking Black man. Dempsey argued that he was legally White despite having a trace of African ancestry. The North Carolina act of 1777 defined as White anyone of less than one-eighth Negro blood.
According to trial testimony, only one of Dempsey’s sixteen great-great-grandparents had any Black ancestry at all. This individual married a White woman and had a red-haired blue-eyed son named Joseph (at most 1/2 Black, although probably much less). Joseph married a White woman and had a European-looking son named William (1/4, at most). William married a White woman and had a son named Whitemell (1/8, at most), who was the defendant’s father. And so, Whitmell Jr. the defendant had at most 1/16 Black ancestry. Therefore the defense argued that the defendant fell within North Carolina’s legal definition of a White man. The jury convicted Dempsey anyway and he appealed.64
The Supreme Court of North Carolina, Justice C. J. Ruffin presiding, upheld Dempsey’s conviction. Ruffin used recursive logic to rule that the defendant’s own testimony had convicted the man. Dempsey had admitted that his great-grandfather had been more than one-sixteenth Negro and, by law, this made the ancestor legally Black. Dempsey’s grandfather thus had a Black father, and so, being half Black, he was also legally Black as well. Following the same rationale, Dempsey’s father was also half-Black, hence Black, and so was Dempsey. It is inconceivable that Justice Ruffin was unaware that such reasoning made the statute meaningless. If pursued to its logical absurdity, as in this case, any recursive definition is nonsense. Mathematically, every purely recursive definition is irresolvable. As Alabama Supreme Court Judge J. Parsons wrote the very next year, in an 1850 reductio ad absurdum decision overturning a lower court finding that a light-brown defendant was Black, “If the statute against mulattoes is by construction to include quadroons, then where are we to stop? If we take the first step by construction, are we not bound to pursue the line of descendants, so long as there is a drop of negro blood remaining?”65
Beyond blood fraction and physical appearance was a third rule for deciding endogamous group membership. It was the rule of association—did the person spend most of his or her time associating with White folks or Black? The rule of association was seldom applied independently before the twentieth century, but it was sometimes used in conjunction with the other two. Courts sometimes gave weight to a person’s associating only with White people. It may seem odd that, in order to be allowed legally to exercise the privileges of White endogamous group membership, one had to demonstrate that one had already violated law and custom by exercising those very privileges, but such was often the case.66 In some cases, especially in the Jim Crow era, the actual evidence contradicted the judge’s rhetoric in the written decision. A judge might write that his ruling was based on blood fraction, but the trial details on record might show that little or no evidence was ever presented as to ancestral birth records. Instead, although the decision rhetoric might have been about blood fraction, the actual evidence cited might have been about the performance of social roles.
The first case when association was cited as significant was Thomas v. Pile, 1794 Maryland.67 Robert Thomas, an alleged slave of biracial appearance won his freedom from slave-owner The Reverend Henry Pile through the testimony of a female witness that Thomas’s mother had been White and not a slave. Thomas’s own endogamous group membership was not at issue and he was willing to shoulder the burden of proof. The question was raised about Mrs. Smith, the female witness who testified on Thomas’s behalf. Although the woman was free and entirely of European descent, the slave-owner objected to her testimony on the basis that she, “associated and kept company with negroes.” This was the first case on record where it was argued that mere association could determine one’s endogamous group membership. The principle would become increasingly important through the nineteenth century. By the late twentieth century, group membership decided by association would become virtually conclusive in affirmative action cases.
A puzzle regarding how the Law decided if you were Black or White is the mystery of why only the rule of blood fraction was ever written into state laws. The rule of association (you were Black if you associated with Blacks) and the rule of physical appearance (you were Black if you looked African) were never legislated. Throughout U.S. history, they were left to case law or precedent. One might argue that legislators avoided codifying the rule of association because it is too vague a concept and too hard to measure subjectively. But this argument fails when applied to the rule of blood fraction. As explained above, courts were clearly aware that the rule of blood fraction was inherently recursive, and thus nonsensical. Nevertheless, legislators throughout the nation wrote the rule of blood fraction into laws.
An even deeper puzzle is why state legislators failed to codify the rule of physical appearance. No state ever defined a formal set of appearance-based criteria for determining endogamous group membership. It can easily be done, after all, and other Americans have embraced it eagerly. When the service organization Jack and Jill of America, Inc. was founded in 1938 Philadelphia, its membership criteria included having a complexion lighter than kraft paper and hair smooth enough to pass a comb through.68 The blue-vein societies of nineteenth-century New Orleans,69 or Nashville,70 and the Brown Fellowship Society of antebellum Charleston71 similarly restricted membership based on physical appearance.
One speculative answer presents itself. Appearance was best decided at the local level. Even though state statutes referred only to blood fraction, Americans actually knew that physical appearance was equally important in deciding someone’s endogamous group membership. But they also knew that appearance is subjectively in the eye of the beholder. The point is that, being aware of the slippery nature of appearance-based color line determination, Americans were happy to leave the rule of appearance unwritten precisely in order to give local communities the power to decide.72
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| Moorish soldiers; France WWI |
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This essay presented the three legal rules that emerged in the early
1800s for deciding if you were Black or White: the rule of physical
appearance, the rule of blood fraction, and the rule of association. It
showed that slave status was decided by a different rule entirely: the
rule of matrilineal descent. It explained why it became increasingly
necessary for courts to decide whether someone was White or Black. And,
with examples, it presented the strengths and weaknesses of each of the
three rules.Click here for an animated cartoon version of this topic.
1. Joshua D. Rothman, Notorious in the Neighborhood: Sex and Families Across the Color Line in Virginia, 1787-1861 (Chapel Hill: University of North Carolina, 2003), 47.
2. Thomas Jefferson and others, The Writings of Thomas Jefferson (Washington DC: Thomas Jefferson Memorial Association, 1905). XIII: 268-71.
3. For an explanation that Jefferson in fact interpreted the law correctly, see Paul Finkelman, “The Crime of Color,” Tulane Law Review 67, no. 6 (1992): 2063-2112, 2088, 2090.
4. Idem. The quotation is from page 3 of the letter. A scanned-in picture of all four pages of the original letter can be viewed at http://www.artsci.wustl.edu/~landc/html/tj_to_gray1.html .
5. That the Eston brothers were Jefferson’s offspring is not essential to the point being made. But for the DNA evidence that persuaded the Thomas Jefferson Memorial Foundation, Inc. to acknowledge this paternity, see Daniel P. Jordan, “Statement on the TJMF Research Committee Report on Thomas Jefferson and Sally Hemings,” (Thomas Jefferson Memorial Foundation, Inc., 2000), 54.
6. Although no portraits of Sally are known to have survived, judging by her twenty-five percent African genetic admixture she probably looked somewhat like Gloria Estefan or Rosie Perez. This point is important because one must have a rough idea of what people with different percentages of Afro-Euro genetic admixture look like in order to grasp the impact of the one-drop rule. Simply put, people with less than 20 percent African admixture look White to most Americans.
7. Charlottesville census, 1830, as quoted in Daniel P. Jordan, “Statement on the TJMF Research Committee Report on Thomas Jefferson and Sally Hemings,” (Thomas Jefferson Memorial Foundation, Inc., 2000), 47.
8. “A Sprig of Jefferson was Eston Hemings,” Scioto Gazette, August 1 1902.
9. Joshua D. Rothman, Notorious in the Neighborhood: Sex and Families Across the Color Line in Virginia, 1787-1861 (Chapel Hill: University of North Carolina, 2003), 86-7.
10. Annette Gordon-Reed, Thomas Jefferson and Sally Hemings: An American Controversy (Charlottesville: University of Virginia, 1997) 7-58.
11. See, for instance, the accounts at: http://www.monticello.org/plantation/lives/sallyhemings.html, http://www.cincypost.com/2001/feb/19/jeffer021901.html, http://www.enquirer.com/columns/kiese/2000/02/13/loc_jefferson-hemings_is.html, and http://www.nature.com/nsu/981112/981112-1.html. Another example of the inability of today’s popular culture to break free of the idea of invisible blackness was a PBS documentary about Eston Hemings. The producers chose not to air filmed interviews with Eston’s current descendants because they resemble every other Nordic-looking Wisconsinite and the TV viewers might miss the point. Instead, a voice-over carried the interview with Eston’s descendants while the camera focused on an unrelated family of Black children playing on a swing set.
12. Several issues are raised regarding the usefulness of the U.S. court record in interpreting American history. Among these are: (1) Court cases do not reflect all of society; they reflect only the opinions of elite powerful males. (2) Written decision rationales may deceive, either deliberately or subconsciously. (3) As many as ten cases may have been decided for every one case that was appealed. (4) The ratio of cases where people were found to be White does not reflect the severity of the color line. (5) The number of cases per decade also does not reflect the severity of the color line. Each of these questions is addressed, and data collection, selection, and tabulation methodologies are described in http://backintyme.com/rawdata/AppendixB.doc .
13. The Latin American lifelong hereditary compulsory labor system named encomienda applied to Amerinds. The Islamic Middle East and North Africa (especially the Barbary Coast) also enjoyed colorblind equal opportunity slavery.
14. This may seem to belabor an obvious point, but the number of reputable historians who incorrectly claim that slave status was determined by fraction of African ancestry is truly distressing. Among these, for example, are Steve Olson, Mapping Human History: Discovering the Past Through Our Genes (Boston: Houghton Mifflin, 2002), 60; G. Reginald Daniel, More than Black?: Multiracial Identity and the New Racial Order (Philadelphia: Temple University, 2002), x; David L. Brunsma and Kerry Ann Rockquemore, “What Does ‘Black’ Mean? Exploring the Epistemological Stranglehold of Racial Categorization,” Critical Sociology 28, no. 1/2 (2002): 101-121, 106-7; and David A. Hollinger, “Amalgamation and Hypodescent: The Question of Ethnoracial Mixture in the History of the United States,” American Historical Review 108, no. 5 (2003): 1363-90, 1369. They also claim that the 1662 partus sequitur ventrem law was motivated by the desire to maximize human assets. In fact, the law as written reduced by one-half the annual crop of newborn slaves that would have resulted from a biologically based law of slave status (a law that having either parent a slave made one a slave).
15. Edmund Sears Morgan, American Slavery, American Freedom: The Ordeal of Colonial Virginia (New York: Norton, 1975), 301.
16. Hugh Thomas, The Slave Trade: The Story of the Atlantic Slave Trade: 1440-1870 (New York: Simon and Schuster, 1997), 804.
17. Peter Kolchin, American Slavery 1619-1877 (New York: Hill and Wang, 1993), 11.
18. Butler v. Boarman 1770 Maryland (1 H. & McH. 371), Howell v. Netherland 1770 Virginia (Jeff. 90), Butler v. Craig 1787 Maryland (2 H. & McH. 214), Shorter v. Rozier 1794 Maryland (3 H. & McH. 238), Thomas v. Pile 1794 Maryland (3 H. & McH. 241), and Higgins v. Allen 1796 Maryland (3 H. & McH. 504).
19. Jenkins v. Tom 1792 Virginia (1 Va. 123), Rawlings v. Boston 1793 Maryland (3 H. & McH. 139), and Coleman v. Dick and Pat 1793 Virginia (1 Va. 233).
20. Phillis v. Lewis 1796 Delaware (1 Del. Cas. 417) and State v. Van Waggoner 1797 New Jersey (6 N.J.L. 374).
21. 3 H. & McH. 504. This case parallels, in mirror image, that of Eston Hemings, who sprang from the union of a free Englishman and a slave woman, whose mother also was born of a free Englishman and a slave woman, whose parents were a free Welshman man and an African slave woman. Eston Hemings was of overwhelmingly British ancestry and looked European, but he was legally a slave nonetheless (until freed by the deceased Jefferson’s will).
22. Kenneth M. Stampp, The Peculiar Institution (New York: Vintage/ Random House, 1953), 115.
23. Las Siete Partidas del Rey Alfonso X (1265), Partida 3, tit. 14, l. 5. Of course, New World colonists did not always follow the king’s law in practice.
24. See the essay The Heredity of “Racial” Traits.
25. 1 N.C. 188.
26. Idem.
27. Idem.
28. 11 Va. 134.
29. Idem.
30. Idem.
31. For a detailed analysis of Hudgins v. Wrights, 1806 Virginia, as the first case where two nineteenth-century criteria for endogamous group membership (blood fraction and appearance) were at odds, see Adrienne D. Davis, “Identity Notes Part One: Playing in the Light,” American University Law Review 45 (1996): 695-720.
32. For an account that sees Hudgins v. Wrights 1806 Virginia as the most important precedent-setting case that endogamous group membership determined onus probandi regarding slave status, see Paul Finkelman, “The Color of Law,” Northwestern University Law Review 87, no. 3 (1993): 937-91, 952-4. Other studies that discuss the importance of this case are: Daniel J. Sharfstein, “The Secret History of Race in the United States,” Yale Law Journal 112, no. 6 (2003): 1473-1509, 1478; Adrienne D. Davis, “Identity Notes Part One: Playing in the Light,” American University Law Review 45 (1996): 695-720, 702-17 (as mentioned above); Ariela J. Gross, “Litigating Whiteness: Trials of Racial Determination in the Nineteenth-Century South,” Yale Law Journal 108, no. 1 (1998): 109-188, 129-30; Ian F. Haney-Lopez, White by Law: The Legal Construction of Race (New York: New York University, 1996), 1-5; and Leon A. Higginbotham, Jr. and Barbara K. Kopytoff, “Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia,” Georgetown Law Journal 77, no. 6 (1989): 1967-2029, 1985-7.
33. 16 Va. 379.
34. Helen Tunnicliff Catterall and James J. Hayden, Judicial Cases Concerning American Slavery and The Negro (New York: Octagon Books, 1968), 2:484-5; Cooke 305.
35. Ibid., 2:310; 1 N. and McC 263.
36. Thomas v. Pile 1794 Maryland (3 H. & McH. 241), U.S. v. Fisher 1805 District of Columbia (25 F. Cas. 1086), State v. Fisher, 1805 Maryland (1 H. & J. 750), U.S. v. Mullany 1808 District of Columbia (27 F. Cas. 20), and Chaney v. Saunders 1811 Virginia (17 Va. 51).
37. Inhabitants of Medway v. Inhabitants of Natick 1810 Massachusetts (7 Mass. 88).
38. For a complete list of the reasons why U.S. courts had to rule on someone’s endogamous group membership, see “Court Case Data Dictionary” in http://backintyme.com/rawdata/AppendixB.doc .
39. Other lands differ, of course. As explained in the essay The Perception of “Racial” Traits, you must have over 80 percent African admixture to be termed “Black” in the skin-tone sense in some Caribbean nations.
40. On the other hand, Daniel J. Sharfstein, “The Secret History of Race in the United States,” Yale Law Journal 112, no. 6 (2003): 1473-1509 finds evidence “that many of the historical actors [in Jim Crow period courtroom dramas] understood that race is a social construction.” This may be so, but the written opinions of appellate judges’ usually see “race” as real. See http://backintyme.com/rawdata/AppendixB.doc .
41. Jenkins v. Tom 1792 Virginia (1 Va. 123), Coleman v. Dick and Pat 1793 Virginia (1 Va. 233), Gobu v. Gobu 1802 North Carolina (1 N.C. 188), Hudgins v. Wrights 1806 Virginia (11 Va. 134), Adelle v. Beauregard 1810 Louisiana (1 Mart o.s. 183), Hook v. Pagee 1811 Virginia (16 Va. 379), Edwards v. M’Connel 1813 Tennessee (Catterall 2:484), State v. Wilson 1818 South Carolina (Catterall 2:308), Welborn v. Little 1818 South Carolina (Catterall 2:310), and Scott v. Williams 1828 North Carolina (12 N.C. 376).
42. State v. Cecil 1812 Louisiana (2 Mart. o.s. 208). Pilie v. Lalande 1829 Louisiana (7 Mart. n.s. 648), and State v. Scott 1829 South Carolina (Catterall 2:339).
43. Bore v. Bush 1827 Louisiana (6 Mart. n.s. 1).
44. Weaver v. Cryer 1827 North Carolina (12 N.C. 337).
45. This was Edwards v. M’Connel 1813 Tennessee (Catterall 2:484), where the individual, who was from Guadaloupe, was seen to be of a “deep yellow” skin tone.
46. See the essay The Perception of “Racial” Traits.
47. See “Appearance is not the Same Thing as Ancestry” in the essay The Heredity of “Racial” Traits.
48. John Langston Gwaltney, Drylongso: A Self Portrait of Black America (New York: Random House, 1980) as quoted in F. James Davis, Who is Black?: One Nation’s Definition (University Park PA: State University of Pennsylvania, 1991), 1.
49.See the essay The Perception of “Racial” Traits.
50. As Justice Harper aptly articulated in State v. Cantey 1835 South Carolina (Catterall 2:358).
51. Werner Sollors, Neither Black Nor White Yet Both (Cambridge: Harvard university, 1997), 396.; Paul Finkelman, “The Crime of Color,” Tulane Law Review 67, no. 6 (1992): 2063-2112, 2085-86, 2106.
52. Gilbert Thomas Stephenson, Race Distinctions in American Law (New York: AMS Press, 1910), 15.
53. See “How Many White Children are Born Into Black Families?” in essay The Heredity of “Racial” Traits.
54. Caroline Bond Day and Earnest Albert Hooton, A Study of Some Negro-White Families in the United States (Cambridge MA: Harvard University, 1932), 10.
55. Bob v. State 1827 Tennessee (8 Tenn. 5).
56. Chaney v. Saunders 1811 Virginia (17 Va. 51) and State v. Barrow 1819 North Carolina (7 N.C. 121).
57. Inhabitants of Medway v. Inhabitants of Natick 1810 Massachusetts (7 Mass. 88).
58. This was Inhabitants of Medway v. Inhabitants of Natick 1810 Massachusetts (7 Mass. 88), where the individual, of significant African ancestry, was ruled White due to the state’s 1/2 blood fraction law.
59. See Adrienne D. Davis, “Identity Notes Part One: Playing in the Light,” American University Law Review 45 (1996): 695-720, especially page 706 for a contrasting analysis of blood fraction versus appearance as endogamous group membership criteria. Davis sees the two criteria as fundamentally opposed. Daniel J. Sharfstein, “The Secret History of Race in the United States,” Yale Law Journal 112, no. 6 (2003): 1473-1509, 1479 also sees these two criteria as being in conflict. This study, in contrast, depicts them as orthogonal, or better yet, serial. During most of the nineteenth century, one had to leap both hurdles (a low documented ancestral blood fraction and European appearance). Both qualifications for White endogamous group membership were necessary. Neither was sufficient by itself.
60. See “Genetic Admixture is not the Same Thing as Appearance” in the essay Afro-European Genetic Admixture in the United States.
61. This is not to say that every resident of North America since 1607 has always insisted that any visible trace of African ancestry makes one Black. As discussed elsewhere, the color line itself was invented in 1691. And the principle is resisted today within the United States by non-Anglo-Americans (Hispanics, Muslims). That this principle was only slowly accepted over resistance by now-vanished non-mainstream cultures (Barbadian South Carolina, Spanish Florida, French Louisiana) is a point that other essays discuss in detail. For the importance of slight African appearance today, see Employer Information Report EEO-1 and Standard Form 100, Appendix § 4, Race/Ethnic Identification, 1 Empl. Prac. Guide (CCH) § 1881, (1981), 1625. The Equal Employment Opportunity Commission (EEOC) is a federal executive agency that investigates discrimination and negotiates settlements under 42 U.S.C. §§ 2000e-4 to 2000e-5b. It has the responsibility of defining racial classifications for federal litigation.
62. 50 N.C. 11.
63. 31 N.C. 384.
64. Interestingly, James Hugo Johnston, Race Relations in Virginia & Miscegenation in the South, 1776-1860 (Amherst: University of Massachusetts, 1970), 196 reports that the trial judge acquitted Dempsey and “declared that the man was not a mulatto and that he therefore had the right to possess firearms and to exercise all the rights of other white citizens.” Nevertheless, the court records are as narrated above. Also, an earlier version of this essay reported that Dempsey’s mother had testified at the trial. This was in error, a misreading of testimony about the defendant’s great-great-grandmother rather than by his mother. The mistake was caught by a sharp-eyed reader, Jtadrian@aol.com.
65. Thurman v. State 1850 Alabama (18 Ala. 276). Incidentally, Judge Parsons’s decision was the first time that the words “a drop of negro blood” were used in this sense in a U.S. appellate decision. The irony, of course, is that they were used as an example of an obviously irrational and invalid criterion of group membership.
66. An excellent and informative study of the gradually increasing importance of association as legal criterion for determining whether you belong on the White or Black side of the endogamous color line, leading up to the actuality behind the rhetoric of the one-drop rule during the Jim Crow era is Ariela J. Gross, “Litigating Whiteness: Trials of Racial Determination in the Nineteenth-Century South,” Yale Law Journal 108, no. 1 (1998): 109-188.
67. 3 H. & McH. 241.
68. Lawrence Graham, Our Kind of People: Inside America’s Black Upper Class (New York: HarperCollins, 1999), 19-44.
69. Joel Williamson, New People: Miscegenation and Mulattoes in the United States (New York: Free Press, 1980), 81-2; James Hugo Johnston, Race Relations in Virginia & Miscegenation in the South, 1776-1860 (Amherst: University of Massachusetts, 1970), 47; Peter Kolchin, American Slavery 1619-1877 (New York: Hill and Wang, 1993), 242.
70. Kathy Russell, Midge Wilson, and Ronald E. Hall, The Color Complex: The Politics of Skin Color Among African Americans, 1st ed. (New York: Harcourt Brace Jovanovich, 1992), 25; Bart Landry, The New Black middle Class (Berkeley: University of California, 1987), 34.
71. Marina Wikramanayake, A World in Shadow: The Free Black in Antebellum South Carolina (Columbia: University of South Carolina, 1973), 81-85.
72. This speculation is buttressed by the U.S. Congress’s present unwillingness to legislate endogamous group membership criteria for federal affirmative action programs despite pleas for such standards from those who must litigate claims. See, for example, Luther Wright, Jr., “Who’s Black, Who’s White, and Who Cares: Reconceptualizing the United States’s Definition of Race and Racial Classifications,” Vanderbilt Law Review 48, no. 2 (1995): 513-570; Neil Gotanda, “A Critique of ‘Our Constitution is Color-Blind’,” Stanford Law Review 44, no. 1 (1991): 1-68; Trina Jones, “Shades of Brown: The Law of Skin Color,” Duke Law Journal 49, no. 6 (2000): 1487-1558.
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Frank W. Sweet is the author of Legal History of the Color Line (ISBN 9780939479238), an analysis of the nearly 300 appealed cases that determined Americans’ “racial” identity over the centuries. It is the most thorough study of the legal history of this topic yet published. He was accepted to Ph.D. candidacy in history with a minor in molecular anthropology at the University of Florida in 2003 and has completed all but his dissertation defense. He earned an M.A. in History from American Military University in 2001. He is also the author of several state park historical booklets and published historical essays. He was a member of the editorial board of the magazine Interracial Voice, and is a regular lecturer and panelist at historical and genealogical conferences. To send email, click here.
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