Mixed Race Studies

Law and the Boundaries of Place and Race in Interracial Marriage: Interstate Comity, Racial Identity, and Miscegenation Laws in North Carolina, South Carolina, and Virginia, 1860s-1960s

Akron Law Review
Volume 32, Number 3 (1999)
pages 557-575

Peter Wallenstein, Professor of History
Virginia Polytechnic Institute and State University

In North Carolina in 1869, Wesley Hairston, a black man, and Puss Williams, a white woman, went on trial in Forsythe County for “fornication and adultery.” They claimed they were married, but the judge instructed the jury that no such marriage could be valid in North Carolina. When the jury convicted both defendants, they appealed the judge’s instruction and the jury’s verdict. The North Carolina Supreme Court dashed their hopes when it declared: “The only question in this case is, whether the intermarriage of whites and blacks is lawful.” A unanimous appeals court rejected the “pretended marriage” and upheld the convictions.

Hairston and Williams did not see their convictions as consistent with the facts. They thought they had both contracted a marriage and found instead that they had each committed a felony. Other couples ran into similar problems. Brought to court, some argued that they had entered a valid marriage and, having moved into another state, they should not be subject to the enforcement of its laws against interracial marriage. Others, challenging the premise that they did not share one racial identity, argued that, since they were both black or both white, the miscegenation law should not reach their marriage.

This essay draws from case materials in three states to explore two of the main problems in enforcing—or escaping conviction under—laws in the United States against interracial marriage during the hundred years after the Civil War. Questions of interstate comity and racial identity, though not both involved in every miscegenation case, would remain issues in many such cases as long as laws against interracial marriage remained in effect. Only in 1967, when the U.S. Supreme Court decided Loving v. Virginia and declared such laws unconstitutional, would the boundaries of race and place no longer have any bearing on the law of marriage between a man of one race and a woman of another…

…3. But What Race Is She Really?

In October 1881, John Crawford and Maggie Dancey went on trial for violating South Carolina’s new law against interracial marriage. After courting in North Carolina, they had decided to marry. The couple had heard that North Carolina had a stringent law against their doing so but, believing that South Carolina had no such law, they thought they had a remedy. Crawford moved back south across the state line to his home in York County, and Dancey soon followed from her family’s home in Mooresville, just north of Charlotte. They approached a black preacher, Edward Lindsay, about their wishes, and he assured them that they could marry in South Carolina. The ceremony took place, and their arrests soon followed.

The newlyweds’ marriage did not involve the question of comity, but it definitely involved another thorny issue, the question of racial identity. John Crawford testified that the fair-skinned woman he had married came from a family that, back in her hometown, was regarded as mixed-race. He had seen his wife’s grandmother, a “bright mulatto,” he said. The family attended a black church, associated only with African Americans, and despite their color, seemed to fall on the black side of the great racial divide. The couple’s argument was that, even though Maggie was of “fair complexion,” with “flaxen or light auburn hair and light blue eyes,” she was black just the same as her “dark mulatto” husband. If proved, the couple had not, after all, broken the law.

The fact that the only evidence in the case consisted of the defendants’ own testimony left the court perplexed. Because Maggie Dancey went on trial some distance from her family’s residence, no local witnesses could help the court with testimony regarding the Dancey family’s racial reputation. The judge called upon a white medical doctor, W. J. Whyte, to offer his expert testimony, but the doctor, after a brief examination in the waning light of day, reported the woman’s identity difficult to pin down. The judge held the trial over to the next morning. The doctor tried again but complained that the microscope with which he examined the woman’s hair and skin seemed inadequate to the task. If forced to choose, he held to his original opinion that Maggie Dancey was a white woman, but he could not be certain.

The judge put the matter in the hands of the jury. He told them that if they were unsure, they should resolve their doubt in favor of the woman. After an hour’s deliberation, the jury reported its verdict. Maggie Dancey was white, and John Crawford was not. Both were guilty…

Read the entire article here.

Southern Free Women of Color In the Antebellum North: Race, Class, and a “New Women’s Legal History”

Akron Law Review
Volume 41, 1Number 3 (2007-2008)
pages 763-798

Bernie D. Jones, Associate Professor of Law
Suffolk University

• I. Configuring Race, Gender, and Class in American Legal History
• II. African-American Women in the Antebellum United States: Enslaved and Free Women Facing the Law
• III. Formulating an Abolitionist Law Practice: John Jolliffe
• IV. Conclusion

In thinking about the status of Southern slave women newly freed in the antebellum North, it is important to think about the ways in which they experienced race, gender, and class. According to Deborah Gray White, “[they] were slaves because they were black, and even more than sex, color was the absolute determinant of class in antebellum America.”1 These women were “[black] in a white society, slave in a free society, woman in a society ruled by men [as] female slaves [they] had the least formal power and were perhaps the most vulnerable group of antebellum Americans.” This was their reality, as a result of cultural and social practices founded in law. Legal elites developed as far back as the colonial period, a law of slavery based upon hierarchical notions of humanity seen as “natural.” Blacks were inferior to whites, and it was natural that they should be enslaved, as a matter of organic law. Southern social and economic demands necessitated this legal order.

In order to conceptualize race, gender, and class in American legal history today, it is important, first of all, to explain and discuss these topics within the contours of American legal thought. Race, gender, and class can be indicators of hierarchy and status in American society, especially when they are modulated through the institutional practices of politics and law. Within the realm of American legal thought over the past century, though, American lawyers have struggled with the extent to which they believed the law was indeed about power and politics. The following diagram, figure 1, “American Legal Thought, Late 19th Century into Today,” lists the various schools of thought which have been significant, and demonstrates the relationships among them…

…If anything, the Black laws indicate further the significance of race and class in “women’s legal history,” highlighting the ways in which black women could be disempowered as a matter of law. Mixed-race slave women were not always privileged by their ties to whiteness. If they had been enslaved, they could be returned to slavery if the relatives who owned them would deny them freedom, and when they were “free people of color,” they could be denied access to public education if they did not look “white enough.” A light-skinned mixed-race slave woman, Matilda Lawrence, from Missouri, accompanied her slave owner father in 1836 on trips into the North. She expressed an interest in becoming free, but he refused to manumit her. Easily passing as a white woman, she escaped into Cincinnati and found employment. Her father hired a professional slave catcher to capture her. Upon being apprehended, she was charged as a fugitive under the Act of 1793, and eventually removed from Cincinnati.

Not only did the Black laws threaten blacks’ interest in freedom and escaping from slavery, but it also denied them the chance to have their children educated in the public schools. These were for white children only. Thus, black children were to be educated privately. But those mixed-race black children who appeared “white” could go to school with whites, as happened in the case of the Williams family, headed by an octoroon man married to a white woman. He was of 1/8 black ancestry—one of his eight great-grandparents was black. Socially, the couple was taken to be white by all who knew them, but when they hoped to enroll their children in a local public school, they were barred, until the Ohio Supreme Court clarified what it meant to be “white.” Whiteness was not limited to ancestry, but to appearance. The children appeared white, their parents lived in a white world; for the purposes of school enrollment, the children were white.

The cases brought by formerly enslaved free women of color and their children for inheritances did not involve the drama of communities caught between abolitionist fervor and pro-slavery sentiment as found in the fugitive slave cases and the earlier cases which challenged the Black laws. It is of great significance, then, that these cases escaped the public scrutiny that the other cases generated, and as a result, have not been the focus of scholarly inquiry. They provide, however, another view of what abolitionist law practice entailed. The women were struggling to be defined as “free.” State institutions in their home states had carefully defined and proscribed definitions of “family” which did not include them. The relatives of the white men to whom they had biological ties never saw them as “family,” but saw them instead as property to be owned. Thus, lawyers and testators had to be resourceful at using legal institutions and doctrines…

Read the entire article here.

Dangerous Woman: Elizabeth Key’s Freedom Suit – Subjecthood and Racialized Identity in Seventeenth Century Colonial Virginia

Akron Law Review
University of Akron
Volume 41, Number 3 (2007-2008)
pages 799-837

Taunya Lovell Banks, Jacob A. France Professor of Equality Jurisprudence and Francis & Harriet Iglehart Research Professor of Law
University of Maryland School of Law

Elizabeth Key, an African-Anglo woman living in seventeenth century colonial Virginia sued for her freedom after being classified as a negro by the overseers of her late master’s estate. Her lawsuit is one of the earliest freedom suits in the English colonies filed by a person with some African ancestry. Elizabeth’s case also highlights those factors that distinguished indenture from life servitude – slavery in the mid seventeenth century. She succeeds in securing her freedom by crafting three interlinking legal arguments to demonstrate that she was a member of the colonial society in which she lived. Her evidence was her asserted ancestry – English; her religion, Christian; and the inability to be enslaved for life that stems from the first two statuses. These factors, I argue, determined who was the equivalent of white in seventeenth century Virginia.

I. Introduction

Elizabeth Key, an Afro-Anglo woman, was born around 1630 in the Virginia Colony. Twenty-five years later she sued for her freedom after the overseers of her late master’s estate classified her and her infant son as negroes (Africans or descendants of Africans) rather than as an indentured servant with a free-born child.  Unwilling to accept permanent servitude, Elizabeth sued for their freedom, and after protracted litigation she and her son were set free.

A few historians and legal scholars mention her case in passing as proof that by the mid seventeenth century people of African ancestry were held as slaves in Virginia.  Only feminist historian Kathleen Brown even mentions that Elizabeth’s lawsuit involved not only her freedom, but that of her son. To the rest of the historians she was simply a slave, her gender, son and mixed ancestry were irrelevant. None looked closely at the significance of her three interlinking legal arguments: (1) that she was a practicing Christian; (2) who was the daughter of a free Englishman; (3) who bound her out as an indentured servant for nine years which period had expired.

Arguably Elizabeth’s pleadings might be an early example of what Kenji Yoshino characterizes as “covering,” downplaying aspects of one’s identity. In crafting her legal argument around her father’s ancestry and subjecthood Elizabeth downplayed the African ancestry of her enslaved mother. Her argument also might be an example of “racial performance” where the extent one does things that English women and men did during the period becomes an important determinant of one’s legal status.  But as I explain in this article other cases decided during this period suggest otherwise…

Read the entire article here or here.