Sex and Punishment: Four Thousand Years of Judging Desire (36 page)

Other colonies followed suit, to the point where twelve of the thirteen colonies that declared themselves independent of England in 1776 had already barred miscegenation. Following the American Revolution, laws against interracial sex proliferated, but were never effective, and the “abominable mixture” of such unions continued to multiply. As the “mongrel breed” of mulattos had babies of their own, U.S. states developed a variety of methods for determining a person’s race. In many cases, even a “drop” of black blood in one’s veins could result in “Negro” status, with all of its attendant disadvantages, but finding that trace was easier said than done. In 1847, a notice regarding a female runaway slave described her as “beautiful girl, about twenty years of age, perfectly white, with straight light hair and blue eyes.” The explosive issue of race was thus potentially present in almost every marriage, even between people with Caucasian characteristics: A remote Negro ancestor could invalidate the union. As many as thirty-eight states eventually banned interracial marriages, and some further barred marriage between whites and Hindus, Koreans, Japanese, and Mongolians. An Arizona law, repealed in 1962, prohibited mulattos from marrying
anyone
else—even other mulattos.

Wherever there are laws, especially those limiting sex and marriage, there are people looking to make money off lawbreakers. In North Carolina, where the rules against miscegenation were among the strictest, and where churchmen were fined for performing interracial marriages, Reverend John Blacknall devised an ingenious way to make a profit: He reportedly charged an interracial couple fifty pounds to marry them, and then turned himself in and was fined fifty pounds. However, his reward for informing the authorities about the forbidden marriage was twenty-five pounds—so he walked away from it all twenty-five pounds the richer.

Throughout the nineteenth century and well into the twentieth, the rules mandating separation of the races grew ever more strident. Mississippi went so far as to pass a law—still on the books as of 1965—that made it a crime even to speak out “in favor of social equality or of intermarriage between whites and Negroes.” Again, the prohibitions had little effect. As people of increasingly complex racial ancestry continued to produce offspring, the law struggled to define what made someone black, white, or mulatto. For the courts, the question often boiled down to what degree of interracial mingling in people’s lineage made them “black enough” to lose their rights. Given that the number of mulattos was growing steadily—reaching, for example, one-third of Pennsylvania’s population in 1860—these laws had a broad reach. Marriages and family could be declared legally void years after the fact. Even more bizarrely, a marriage that passed muster under the laws of one state could be held illegal in another, and a husband and wife could be arrested simply by crossing the border into another state with more restrictive laws on the books.

Regulating racial separation was further complicated by the inconsistent methods used by various states to determine race. For example, people with half-Negro grandmothers were considered Negroes in Georgia, but in Florida they were deemed white. Alabama and several other states used the infamous “one drop” rule, which defined a “Negro” as anyone with any ascertainable trace of African blood, while Delaware and Wyoming had no definitions at all. With such shifting standards, and with so many people carrying dizzyingly complex racial ancestries, it was folly to expect a jury or even a judge to make reasoned decisions as to anyone’s race. Some states such as Missouri allowed a jury to come to a judgment simply by looking a person over. If the jurors concluded that he or she looked white, black, or a little of both, that decision was final. The consequences were enormous for the people involved in any case, but the jury’s gut decisions were, in the end, no less fanciful than many of the quack scientific tests then in use.
¹⁰

Thomas Jefferson fathered a son, Eston, with his one-quarter-black slave, Sally Hemmings. Eston had fair skin, freckles, and red hair, but his background was evidently not black enough to qualify him as “black”; in the early nineteenth century, Virginia law declared people white if they were less than one-quarter black. Nevertheless, the son of a slave was the son of a slave—Eston was only freed on the instruction of Jefferson’s will, and lived his life out as a white man in the North. His full brother, Madison Hemmings (born James Madison Hemmings), had no such luck. Though he shared an identical lineage with Eston, and had also been freed in Jefferson’s will, Madison had “bronze” skin, which seems to have been enough to condemn him to life as a black man. By law, Madison should have been treated the same as his brother, but no one could accept that someone with Madison’s appearance could be considered white, even if his father had been president of the United States. Madison was listed as a “Negro” in the 1830 census and lived his life in Ohio as a black man.
¹¹

In North Carolina, white-looking William Dempsey spent much of his time hunting in the woods for squirrels and other small animals to feed his family, but the law forbade blacks and mulattos from carrying firearms without a special license—which Dempsey did not possess. At his 1849 trial for violating this law, he argued that he did not need a license because he was legally not black. He showed that he had, at most, one-sixteenth black blood, as only one of his great-great-grandmothers had had any trace of black ancestry. Such a thin residue of color made him white under a strict application of North Carolina law, but the jury convicted him anyway. On appeal, the North Carolina Supreme Court upheld the conviction, ignoring the law and holding, in effect, that
any
black blood in one’s ancestral line was enough to deprive one of the rights that came with being white.

Regardless of what the statutes required, Southern juries were confident that they just
knew
how to distinguish people with “pure” white ancestry from those with damning traces of “Negro blood.” They could sense it as readily “as the alligator ... knows three days in advance that a storm is brewing.” Going beyond appearances, juries often looked at how the people in question behaved. If they were modest and upstanding, that meant they were “white,” and vice versa. Abby Guy, who sued William Daniel in Arkansas in 1855, claimed that she was white, and that Daniel wrongly held her and her children in slavery. The jury’s decision came down to her own conduct. Did Guy pass among whites “as an equal”? Did she show the decorum expected of a white woman, or did she exhibit the licentious traits that many whites believed (and some hoped) marked a colored woman?

Guy first argued that her mother, who was Daniel’s father’s slave, had been freed in the father’s will, which made her free as well. However, that point fell apart when Daniel produced documents showing that his father had done no such thing. With her case going down in flames, Guy argued that regardless of what the papers showed, she
could not
be enslaved, because she behaved like—and was accepted as—a white person. Her neighbors testified that despite her “yellow” complexion, she “visited among the whites as an equal” and also attended white church and social gatherings. She was, she claimed, a good woman who had already passed the tests of society. Everyone in the street treated her as white; why should the courtroom be any different?

Guy also claimed that she did, in fact, possess white physical features. She removed her shoes and stockings and displayed her bare feet in the courtroom for all to see—a demonstration that the Arkansas Supreme Court later said was a useful test of one’s whiteness: “The experience of every intelligent observer of the race,” observed the court’s chief justice, “will doubtless attest the truth . . . No one, who is familiar with the peculiar formation of the negro foot, can doubt, but that an inspection of that member would ordinarily afford some indication of the race.” Guy’s feet passed the test, and so did her comportment, and her children’s. She won her case.

IN ANOTHER SUIT by a female slave to gain her freedom, filed in Louisiana in 1845, Sally Miller proved her whiteness by showing “uniform good conduct” and “quiet and constant industry,” which was enough to overcome her “polluted and degraded” position. “These traits,” witnesses said, “prove her white nature.” Her attorney added that “both morally and physically, she shows before the Court that there is nothing of the African about her.” She had been in bondage for twenty-seven years, but her whiteness was still evident. The case received a lot of sympathetic publicity, much of it raising the specter of a “true” white woman (she claimed to be of German origin) being forced to suffer the “hardships and privations imposed only on the African race.” She was freed.

Alexina Morrison, who had been sold and resold several times before accusing her last owner of unjustly enslaving her, had much going for her, including a fair complexion, blue eyes, and flaxen hair. She also had what doctors described as other “white” physical characteristics, including “double cartilage” and a “hollow foot.” However, experts and the Louisiana Supreme Court warned that appearances could be deceiving, and that white features “must yield to proof of a servile origin.” The case bounced around that state’s courts for about five years, starting in 1858. Morrison’s owner sought to use her sexual behavior to prove she was black—specifically, her affair with a white jailer and her post-imprisonment pregnancy. By emphasizing this sexual activity, Morrison’s owner insisted that she was conducting herself in a way that white girls did not. Nevertheless, the slave won the public’s sympathy, so much so that one of her trials was moved to a different courthouse because a local mob, believing that she was a white woman unjustly held in bondage, had already threatened her owner with violence. Morrison’s last trial ended in 1862, two years into the American Civil War, with a hung jury. Her owner appealed to the Louisiana Supreme Court but there was no one around to hear the case; four of the five justices had fled New Orleans in the wake of the Union Army.
¹²

All these cases had their roots in white fear and hatred of the “spurious” issue of interracial sex. Mulatto children blurred the color lines that defined American society. As always, dark skin meant slavery, and whiteness signified freedom. Those who straddled the two extremes were living testimony that a strictly biracial society did not, in fact, exist. Worse yet, white women who gave birth to dark babies showed that a virile black man had taken what was surely not his. Not only was the white race purportedly “diluted” by such couplings, the dominance of white men over society was also put at risk. “Hybridism is heinous,” declared proslavery advocate Henry Hughes in 1860. “Mulattoes are monsters.”

Yet the “monsters” kept coming in droves, and there was nothing the law could do to stop them. In 1877, in a Virginia case involving a married interracial couple prosecuted after entering the state, the judge made his reasoning quite clear:

The 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.

Except that the races had already been mixing, remixing, and then mixing again in America for more than 250 years. There were no longer, and would never be again, “two distinct races,” either in the “cherished” South or anywhere else in the New World.
¹³

The law continued to wink at intimate relations between white men and black women, but sex between white females and black males remained a great taboo. A white slave owner was within his rights to sexually abuse a female slave, but should his wife tryst with a black man, the slave owner’s humiliation was too much to bear. If he could bring himself to make the matter public by seeking a divorce, he would almost always prevail. Few judges would expect him to tolerate such a blow; infidelity in a wife was bad enough, but when it happened with a black man it became intolerable.

When the Virginian Leonard Owen’s wife gave birth to a mulatto baby, he complained that the child was “such a horrid violation of the marriage bed” that “it must be obvious to any person” that he was entitled to a divorce. In the same manner, Joseph Gresham alleged that his wife’s infidelity was “aggravated by the fact that it was committed and carried on with a man of colour.”

Sometimes husbands lost their divorce cases because they knew, or at least should have known, that their wives were prone to sexual excess. In 1832, in North Carolina, Marville Scroggins sought a divorce after he learned that his wife had been pregnant with a black man’s child when they married. During the trial, Scroggins admitted that he and his wife had had sex prior to the wedding. That alone, the court declared, should have made him aware of the kind of woman to whom he was committing himself: “He who marries a wanton [woman], knowing her true character, submits himself to the lowest degradation.” Scroggins lost the case, but the judge still sympathized with him: “The stigma in our state of society is so indelible, the degradation so absolute, and the abhorrence of the community against the offender, and contempt for the husband so marked and [i]nextinguishable, that the court has not been able [to deny the divorce] without a struggle.”

The North Carolina public disagreed loudly with the Scroggins decision. The controversy benefitted another resident of the state, Jesse Barden, when he sought a divorce on the same grounds later that year. In fact, the case came before the same judge, who adjusted his position and voted to grant the divorce. He admitted that his about-face was “a concession to the deep rooted and virtuous prejudices of the community.” These prejudices remained in place in Southern courtrooms long past the antebellum era and into the twentieth century. In 1955, the Virginia Supreme Court declared antimiscegenation laws necessary because “natural law” forbids the “corruption of races” and the “obliteration of racial pride.” At that time, more than half of U.S. states still had miscegenation statutes, and 96 percent of white Americans opposed interracial marriage.