THE BATTLE OVER RACIAL IDENTITY IN POPULAR AND LEGAL CULTURES, 1810–1860
THE ACTUAL CODIFICATION OF THE ONE-DROP RULE BY STATE LEG
islatures in the early twentieth century is indisputable. Tennessee enacted a law in 1910 stating that “Persons of color . . . having any African blood in their veins” were black.1
Louisiana followed and classified “colored persons” as mixed-race individuals “with any applicable mixture of Negro blood.”2
Texas and Arkansas adopted their variations of the one-drop rule in 1911; Mississippi did so in 1917 and North Carolina in 1923. Virginia passed its comprehensive Racial Integrity Act in 1924, which classified a white person as someone who had “no trace whatsoever of any blood other than Caucasian.”3
Alabama and Georgia adopted their versions of the one-drop rule in 1927, and Oklahoma followed suit in 1931. Thus, it is irrefutable that statutory recognition of the colloquial one-drop rule is a twentieth-century development. These laws gave credence to the belief that white-looking individuals with documented or visual evidence of African heritage were black.4
There is an obvious orthodoxy among some legal scholars regarding the one-drop rule. Modern scholars in particular deny that the one-drop rule was applied to establish racial identity before the Jim Crow era.5
Others purport that “racial migration” (crossing over from black to white) went on in broad daylight. These scholars further suggest that whites understood that some of their neighbors had minimal traces of African ancestry that did not matter to them.6
They suggest the malleability and fluidity of whiteness in the nineteenth century and its rigidity and inflexibility one century later.
However, legal scholars are not unanimous in their interpretation of the one-drop rule. Nathaniel Gates maintains that the one-drop rule continued to be malleable and fluid after its codification.7
He suggests that racially
mixed individuals had their way of crossing the color line without opposition, just as they had done in the prior century. As restrictive as the Virginia Racial Integrity Act of 1924 appeared, Gates argues, it classified Native Americans as white if they had one-sixteenth or less Indian ancestry. He contends that this was clearly contrary to a rigid application of the one-drop rule. Furthermore, the Virginia legislature moderated its one-drop rule and later classified a “colored” “person” as someone “in whom there is ascertainable any negro blood.”8
The revised statute did not endorse invisible blackness—the automatic classification of a white-looking person as black regardless of his or her European traits. Invisible blackness under-girds the modern one-drop rule.
Although historians and social scientists mark the emergence of the one-drop rule in the nineteenth century, they recognize its codification a century later. Nell Irvin Painter maintains that the “myth of tainted blood and a belief in invisible ancestry” had become the national racial conviction in the white mind before 1860. Patrick Rael agrees, bluntly asserting “all people of African descent generally were considered ‘black,’ regardless of their apparent degree of European heritage.”9
Jerrold Packard in American Nightmare
stated that as “long as a person’s physical black heritage—one’s African roots—could be detected, either by his or her appearance or from general knowledge that he or she had been born of non-wholly white parentage, that person was considered and treated as black.”10
Other scholars assert that the one-drop rule was a well-known phenomenon in American culture since at least the early nineteenth century.11
Long before southern legislatures enacted one-drop statutes, therefore, the white community had its way of enforcing a relatively rigid color line throughout the United States.12
This essay illustrates that nearly-white people frequently contested their racial classification as black or Indian in antebellum America. It argues that the community established standards to determine who was white or black in the 1800s, and by default Native Americans also were seen as not being white. Furthermore, this chapter will illustrate that the lived experiences of white-looking people of African or Indian ancestry belie the belief that it did not matter to whites if some of their neighbors had non-European ancestors. Certainly, they did not apply a codified one-drop rule; nevertheless, whites understood and practiced a one-drop creed that hardened over time. Ultimately, southern state legislatures implemented the standard for a white identity in the early twentieth century.
CROSSING THE COLOR LINE
There undoubtedly was occasional seepage across the color line in the nineteenth century. Having a white identity in the nineteenth century was predicated on appearance, community acceptance, and performance as a citizen with legal rights. Now and then, the individual who ostensibly looked Caucasian and deported himself or herself as a white of European descent could withstand a challenge to his or her white racial identity. The people in this category were often phenotypically European and had indiscernible African or Indian features. Judges who secured their whiteness believed they were protecting whites from mistakenly being deprived of civil rights. Some whites believed they could successfully read bodies to determine their race. They presumed that if a community of whites had accepted a person as white and allowed them to enjoy civil rights, they most certainly must have been white people. South Carolina judge William Harper maintained this perspective in State v. Cantey
(1835), stating, “The condition of the individual is not to be determined solely by the distinct and visible mixture of negro blood.” The racial identity of an individual, he continued, could be established by a competent jury that used community standards as their guide. On the other hand, Harper seemed to recognize the existence of an informal one-drop rule when it involved enslaved people. “It is hardly necessary to say that a slave cannot be a white man,” he wrote. Judge Harper obviously believed slave status would trump white-looking skin, even if the enslaved person looked like a pure white.13
Most assuredly, individuals with remote African lineage clandestinely crossed the color line and lived as whites in the nineteenth century. However, “passing” seldom went on without controversy. As I noted earlier in this essay, there was a difference between the lived experiences of white-looking people and the passage of statutes that established a black racial identity. Moreover, it was commonly believed in the United States and widely practiced in society that “white” implied someone solely of European ancestry. Benjamin Franklin held this point of view, once stating, “the English make the principal body of white people on the face of the earth.”14
Of course, he was pointing out that Anglo-Saxons were white people, but Franklin would not have disputed that French and German people are white. Alexis de Tocqueville specifically classified white Americans as Europeans, while adding that Anglo-Saxons particularly were proud of their white racial heritage.15
Stephen A. Douglas agreed and asserted in the Lincoln-Douglas Debates
in 1858 that whites were people of “European birth and descent.”16
Believing a white could recognize nonwhites, some whites attempted to enforce the idea that one drop of African blood made an individual wholly black.17
These whites agreed that knowledge of someone’s ancestry was sufficient proof of his or her race. Moreover, they endeavored to prevent racial interlopers from benefiting from white-skin privilege before 1860. Complaints of racial passing frequently forced the accused to contend for a white identity in state courts.
Racial identity case transcripts are the most reliable sources to evaluate the lived experiences of nearly-white people with known African or Indian lineage. They illustrate that plaintiffs who believed they were unfairly deprived of a white racial identity felt compelled to litigate their whiteness. These cases frequently arose in the free states of the North, where courts were accessible to them. It is not surprising that litigation often surfaced in the Northwest Territory. In a free state, the racial passer could live as white for years, provided that they did not draw undue attention to themselves. Challenges to a white identity usually came to the surface when a white-looking person allegedly violated a state law or broke a social convention. They were a minority, and prosecutors did not take an interest in them until an inquiry into their racial identity was initiated. While the legislatures in the North had not yet enacted a system of racial classification, state policy seemingly fostered it by imposing rigid racial qualifications for accessing civil rights or enjoying the privileges and immunities of citizenship.18
Zealous whites believed that the legislature required them to enforce the color line. They believed state laws authorized them to challenge white-looking people of known African or Indian “blood.” They believed they were also obligated to oppose anyone whose appearance gave away clues of a non-white heritage.
Among the midwestern states, Ohio was the leader in developing laws to deprive mixed-race people of their civil rights. The state legislature withheld the vote in local elections to blacks and mulattoes, and denied them a public education. Legislators deprived blacks and mulattoes of the ability to protect themselves when on trial by closing both the jury box and the witness stand to them in all cases in which white people were parties. The intention of the legislature in barring mulattoes explicitly as opposed to individuals who were above their grade—those who were three-quarters white or more—left open a puzzling question: Did the legislators also intend to deny white privilege to mixed-race people who had a preponderance of European ancestry? The defenders of white purity would rarely stop
to figure out whether someone they accused of having African “blood” was actually white enough to be considered wholly white. These self-appointed guardians of the white race frequently used one-drop arguments to separate white-looking people from those whom they presumed were “pure” white. They would also sabotage romantic relationships between white-looking individuals and “pure” whites. Invariably, local prosecutors and judges would back local whites in their presumptions about white purity, with lawyers also using one-drop arguments and judges one-drop reasoning in their opinions.19
The white community, therefore, had advanced the theory that white-looking people could be black or Indian decades before formal adoption of the one-drop rule. By the eve of the Civil War, even progressive Supreme Court justices in Ohio had switched sides and had begun to apply the one-drop rule in selective racial identity cases, especially in public education.20
In contrast to locally influenced judges, appellate courts typically did not openly advance racial purity. However, some appellate judges occasionally broke rank with the court to articulate the grand European American vision that it was the manifest destiny of the United States to become a country of purely white people. Ohio Supreme Court justices Nathaniel C. Read and William V. Peck candidly expressed their beliefs in the purity of the white race.21
Justice Read fervently rejected racial migration in Thacker v. Hawk
(1842), arguing that the courts had created the judicial concepts of “partly white” and “more white than black.” Read believed these categories were inconsistent with state law. The Ohio constitution in particular meant “pure white” when it addressed suffrage, Justice Read explained, and so did various ...