The Antebellum South Rejects the One-Drop Rule

Essays on the Color Line and the One-Drop Rule
by Frank W Sweet
November 15, 2004

J

ames West, of Albemarle County Virginia, married Susannah Harlow on August 28, 1794. Both are listed as White on their marriage license, and both were accepted as White in their community.1 Despite their acceptance, it was common knowledge in Charlottesville, which had an 1810 population of just 260 residents, that James was the son of slaveowner Thomas West and West’s former Black slave, Priscilla.2 Priscilla was a quadroon3 however, and so she bequeathed legal Whiteness to her son in accordance with the Virginia law of 1785.4James West’s background paralleled that of his friend and neighbor, Eston Hemings. Like Hemings, West’s mother had once been a slave and was on the Black side of America’s endogamous color line. Like Hemings, West was accepted as socially White, along with his wife and children. In a lawsuit (Hays v. Hays, 1836 Virginia), a West neighbor named Benjamin Hays testified that the West children were “esteemed, received and accepted as white men, were educated with white children and required to perform and did perform Militia and other duties, required only of white men, and allowed to intermarry without objection on the score of blood, with white women.”5

Another parallel is that both James West and Eston Hemings had siblings who were not accepted as White, despite the blood fraction rule then in effect. In Hemings’s case it was his brother James Madison Hemings, who lived out his life on the Black side of the endogamous color line. In West’s case it was his elder sister Nancy. Rather than bowing to social rejection, however, Nancy and her husband fought back. He was a well-to-do Jewish businessman named David Isaacs. In 1822, David and Nancy Isaacs successfully defended themselves against a charge of criminal intermarriage by proving, in a five-year battle through the appellate system, that Nancy was legally White.6 Of course, we cannot know how much of Nancy West’s social rejection in Charlottesville, in contrast to her brother James’s acceptance, was due to her having a trace of African appearance (as was the case with Jim-Mad Hemings) and how much was due simply to her being a woman and married to a Jew.

The parallel between Charlottesville residents Eston Hemings and James West is imperfect. As mentioned elsewhere, Virginia had responded to the Nat Turner incident of 1831 by ordering all former slaves to leave the state.7 Eston Hemings was forced to move to Chillicothe Ohio because of this law.8 James West was unaffected by it. Hemings was a former slave, having been manumitted by Thomas Jefferson’s will. James West had been born free.

Curiously, despite David and Nancy Isaacs’s court battle for Whiteness, their daughter, Julia Ann Isaacs (James West’s niece), was socially accepted as White from birth like her cousins, the West children. When Julia Ann Isaacs grew up, she married Eston Hemings. She was with Eston, his mother Sally, and his brother Jim-Mad when the extended family had to leave Charlottesville Virginia for Chillicothe Ohio because her in-laws had once been slaves. She was still with him when the couple and their children moved to Wisconsin as members of the White endogamous group after changing their name to “Jefferson.”9

* * * * *

This essay suggests that between 1830 and slavery’s end in 1865 the South was in transition. Early in this period, which side of the endogamous color line you were on depended on the rule of blood fraction as modified by the rule of physical appearance and the rule of association.10 Eston Hemings, like his wife Julia Isaacs and her uncle James West, were accepted as White despite slight Black ancestry. But in the decades after 1830, after the North had accepted the notion of invisible Blackness, the idea spread southwards. Courts were at first willing to allow one-drop arguments to be made in court, but such arguments were not conclusive in reaching verdicts. Then after several years, verdicts began to be rendered based on invisible Blackness, although they were overturned. Later, appellate decisions began to uphold such verdicts. Step by step, the one-drop rule spread deeper into the slave states. By 1865, the upper South had apparently become comfortable with a one-drop rule in practice, while still paying lip service to the old blood-fraction laws in theory.

This essay presents its case in four topics. Nat Turner Sealed Virginia’s Color Line explains why color-line determination became more important after 1830. The Not-a-Negro Law describes a moderately unsuccessful legislative attempt to enable respected citizens to avoid the oppressive anti-Black laws of the time. Transitional Cases reveals the inexorable north-to-south spread of the one-drop rule as reflected in appeals court cases. Virginia Rejects the One-Drop Rule describes the nation’s first attempt to write a one-drop law. The attempt failed when it was realized that it would penalize elite Virginia families.

Nat Turner Sealed Virginia’s Color Line

Like the Hemings family, the Wharton family of Stafford County, Virginia, was also ordered to leave the state after the Nat Turner incident. They were a large family, comprising William, Lemuel, Barney, Nancy, and Lewis. All had once been the property of deceased slaveowner John Cooke, and so they were subject to exile after 1832.11 Like Eston Hemings, they had long been accepted as members of the White endogamous group. (James and Susannah West’s family, who had also moved to the White side of the endogamous color line, did not fall under this law because they had been born free.)

Unlike the Hemings family, the Whartons apparently had influential friends. On March 9, 1833, fifty-one elite White men of Stafford County presented a signed petition to the state legislature, asking that the Whartons be exempted from the law exiling former slaves.12 Their argument against exile was based on the Whartons’ industrious contribution to the community. The part of the petition that asked them to be declared White was particularly persuasive. It was explicitly grounded upon all three of the traditional rules then in effect: blood fraction, physical appearance, and association.13 First, that “more than three fourths of [the Whartons’] blood is derived from white ancestors.” Second, that they looked completely European, being “all white persons in complexion.” Finally, the petition explained that the Whartons saw themselves as White, had “no association with coloured persons,” had married Whites, and “their partialities are decidedly for the whites.”14 The legislature agreed. They declared that the Whartons were “not negroes or mulattoes, but white persons, although remotely descended from a coloured woman.”15 They passed a special bill declaring the Whartons both White and not subject to exile.

Results of Court Determinations
Results of Court Determinations

Not all such petitioners were this fortunate. As is apparent in the two graphs at left, between 20 percent and 40 percent of court cases during this period resulted in the individual being ruled to be on the Black side of the endogamous color line. The left graph shows the results of court determinations of endogamous group membership as percentages. The right graph depicts the same information as absolute numbers of rulings.

As mentioned elsewhere, court cases are somewhat self-selecting.16 The ratio of cases where people were found to be White does not reflect the severity of the color line and tends to hover at 50 percent. That the fraction of cases ruling people to be White was in decline during the 1830-1850 period most likely means that a segment of the public had become uninformed as to the legal system’s actual demands for awarding Whiteness. Either the courts had become stricter than many realized, or a segment of the public had become more accepting than the courts realized (most likely, the former). Either way, as the two graphs show, every late antebellum divergence from the 50-percent level was soon restored as either the public or the judges learned the new rules of the others’ game.17

The Not-a-Negro Law

The harsh laws against free Blacks passed in 1832, coupled with the Whartons’ success at being declared exempt, caused a sharp increase in the number of petitions to the Virginia legislature asking for exceptions similar to that of the Whartons. In January of 1833, Virginia legislator John Murdaugh of Norfolk devised a solution. He introduced a bill, which became law, that exempted those “people of mixed blood, who are not negroes or mulattoes,” from the anti-Black statutes and regulations if they obtained a local court certificate to that effect.18

Eventually referred to as the “Not-a-Negro” law, the statute seems meaningless on its face. This is because it explicitly applied only to people of less than 1/4 African ancestry. Anyone with one or more genetically African grandparents was legally defined as Negro or mulatto by the act of 1785, and so was not covered by the Not-a-Negro law’s scope (“people of mixed blood, who are not negroes or mulattoes”). Hence, strictly speaking, it exempted from oppressive anti-Black laws only those individuals who were of such little African ancestry that they were already legally members of the White endogamous group and so exempt from all but the law of exile anyway. Could such a law help such people?19

Perhaps. As the situations of James Madison Hemings and Nancy West revealed, and as confirmed by the court case statistics presented above, there was a great difference between being legally White on the one hand, and being accepted as socially White by the political leaders of one’s community on the other. Those individuals who were fully accepted as White by men whose opinions mattered in the halls of power—like James and Susannah West and their children, or the Whartons—needed no such a law to protect their social status, whatever their blood fraction. Some of the people potentially covered by the law were those of legally White blood fraction who, due to their slightly African appearance, could not achieve acceptance into White society. These were individuals like the 20-40 percent ruled to be Black in the two graphs above. But, due to the unwritten rule of physical appearance such people were consequently seen as “negroes or mulattoes” and so, catch-22, the law could not apply to them either. In short, the Not-a-Negro” law was a well-intentioned gesture that apparently had little practical effect. It applied only to those who did not need its protection and excluded those who needed it most.

Some scholars suggest that the flaw in the Not-a-Negro law was that, although it declared that people who were legally White (by the 1785 blood fraction law) were exempt from the anti-Black laws, it did not declare them to be socially White. And this left them in a sort of legal limbo.20 But this may be a merely theoretical quibble. It is exceedingly likely that by 1833, any law that declared a Virginian of slight African appearance to be socially White would have been ignored. Hence, it could never have passed the legislature. By 1833, the people of Virginia, like those of neighboring states, were being persuaded by a new way of seeing the endogamous color line, a southward-sweeping one-drop rule of invisible Blackness. Anyone with even rumored Black ancestry was starting to be seen as socially Black, despite appearance, regardless of blood fraction.

Transitional Cases

Four cases exemplify the southward spread of the one-drop rule of invisible Blackness. State v. Harris Melton & Ann Byrd, 1852 North Carolina was an anti-intermarriage case where the one-drop rule was argued but rejected on appeal. In the attempted-rape case, State v. Anderson, 1853 Missouri, one-drop was argued but rejected by the verdict. In State v. William Chavers, 1857 North Carolina the defendant was charged with owning a gun (like State v. Whitmell Dempsey, 1849 North Carolina21). The one-drop rule was argued and upheld by the verdict but overturned on appeal. Finally, in State v. Asa Jacobs, 1859 North Carolina (another weapons charge), the one-drop rule was argued, won at trial, and was upheld on appeal, but with a rhetoric that denied invisible Blackness de juris while enforcing it de facto. Together, the four cases reveal increasing acceptance of a one-drop rule of invisible Blackness in the late antebellum upper South.

Harris Melton and Ann Byrd were an interracial couple in North Carolina who had wed despite the state anti-intermarriage statute of 1838. The law declared, “it shall not be lawful for any free negro or person of color to marry a white person; and any marriage hereafter solemnized or contracted between any free negro or free person of color and a white person, shall be null and void. All persons living together under such circumstances, as man and wife, are guilty of fornication and adultery.” Fourteen years later, in State v. Harris Melton & Ann Byrd, 1852 North Carolina, the couple were indicted for fornication.22 Ann was considered White, so the accusation hinged on Harris Melton’s endogamous group membership.

The prosecution argued that, “the Act was general, prohibiting all mixtures of the white with the colored races, and it made no difference whether [Harris Melton’s] blood was African or Indian, or in what degree, if there was any sensible taint of either—they were guilty.” The defense insisted that, “unless the defendant Melton was within the fourth degree of negro or African blood, they could not be convicted.” The jury was unable to reach agreement regarding the interpretation of the law.

Their confusion was due to a conflict between the statute under which the Meltons were indicted and an earlier statute. The law of 1836 had forbidden weddings (but not marriages) between White and Black, and had explicitly defined as “Black” anyone with one-eighth or more Negro blood. Although the 1836 law had punished, with a $100 fine, ministers and magistrates who performed such weddings, it did not declare such marriages void, nor did it punish interracial couples who married in defiance of the law (out of state, for example). In short, the old 1836 law was explicitly based upon the rule of blood fraction. The new 1838 law, in contrast, declared interracial marriages void and defined interracial couples as criminal fornicators, no matter where they were wed. On the other hand, the new law did not specify which rule should be used to position someone on the Black side of the endogamous color line. Hence, the jury’s confusion.

The jury returned two verdicts: guilty and not guilty. They found Melton to be partly Black, but were unable to say to what degree, since no evidence had been introduced as to blood fraction. They said that if they interpreted the new law as employing a one-drop rule, thereby applying to anyone with the slightest trace of African ancestry, then the defendants were guilty as charged. But if the jury interpreted the new law (which did not define Blackness) with the same one-eighth definition as the old law, then they found the couple to be not guilty. Judge Bailey ruled that, as a matter of law, the second interpretation was correct and released the couple. The prosecution appealed. North Carolina Supreme Court Justice C. J. Nash affirmed the lower court’s decision. He agreed with the trial judge that, by omitting a definition of Blackness in the new law, the legislature had intended to carry forward the old law’s definition. State v. Harris Melton & Ann Byrd, 1852 North Carolina, is important because it was the first time that an appeals court in the South saw someone arguing in favor of a one-drop rule.23

In State v. Anderson, 1853 Missouri, a criminal court convicted an African-looking defendant of attempting to rape a European-looking victim.24 Endogamous group membership was important because the sentence depended on it; Black-on-White attempted rape was punished by castration. The defendant appealed because no testimony had been offered at trial either that he was Black nor that the victim was White. The jury had evidently reached such a conclusion merely by observing the defendant and the victim in the courtroom. Anderson’s lawyers argued that a one-drop rule of invisible Blackness should have been applied to the victim:

Under the statute, the question before the jury was not merely one of color, but of race. Such questions are often of the greatest difficulty, requiring for their solution scientific skill. There are albinoes, mulattoes and quadroons, who excel Caucasians in whiteness of skin. Yet, before the jury could convict the defendant, it was necessary that they should find that… the prosecutrix [was] a Caucasian. These facts they could only find upon proof.25

The conviction was upheld by the state Supreme Court. Reasoning that color and “race” were synonymous, two justices ruled that the jury did not need testimony to determine what they could see with their own eyes—that the victim was White. This was the second time that the one-drop rule was argued south of the Mason-Dixon line. As in North Carolina the previous year, the one-drop rule was argued but rejected on appeal.

Four years later, in State v. William Chavers, 1857 North Carolina, the defendant was indicted for carrying a shotgun, in violation of section 66 of chapter 107 of the Revised Code then in effect.26 Although section 79 of the same chapter stated that “all free persons descended from negro ancestors to the fourth generation inclusive, though one ancestor of each generation may have been a white person, shall be deemed free Negroes,” thereby defining White as anyone with less than one-eighth Negro ancestry, the prosecution presented no evidence as to Chavers’s degree of ancestry. Instead, they relied on testimony that the defendant’s father was a man of dark complexion and kinky hair. The trial judge instructed the jury that the defendant was Black within the spirit of the law. “Can it be then, that a remove by one generation 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, and therefore I cannot put such a construction upon the 79th section of the 107th chapter of the Act of Assembly, (Revised Code) declaring who shall be deemed free negroes.”27 William Chavers’s conviction was overturned on appeal. For the third time, a one-drop rule of color-line determination was argued in a Southern court, in defiance of a statutory blood-fraction rule. As in the previous three cases, the rule of invisible Blackness was rejected at the appellate level.

Two years later, another North Carolinian of mixed ancestry was prosecuted for carrying a gun. State v. Asa Jacobs, 1859 North Carolina also saw the conviction of man for the crime of carrying a firearm—another shotgun, in this case.28 The defendant claimed that he was White within the definition of the statute. As in the previous three such cases, the North Carolina prosecutors did not try to prove the man’s Blackness by computing his blood fraction as required by the statutes. But this time they took a different approach. They called an expert witness—a forensic expert in the science of “race.” The court accepted the witness, a Mr. Pritchett, as a forensic expert in color line positioning on the grounds that he owned slaves. Pritchett qualified himself as a forensic expert by testifying under oath:

[T]hat he was a planter, an owner and manager of slaves, and had been for more than twelve years, that he had paid much attention to and had had much observation of the effects of the intermixture of negro or African blood with the white and Indian races, and that from such attention and observation, he was well satisfied that he could distinguish between the descendants of a negro and a white person, and the descendants of a negro and Indian; and further, that he could therefrom, also say whether a person was full African or negro, or had more or less than half negro or African blood in him, and whether the cross or intermixture was white or Indian blood.29

Once the court had accepted him as an expert witness, Pritchett turned his gaze upon Asa Jacobs and opined that the man had at least the statutory one-eighth African blood fraction in him. Without further ado, Jacobs was convicted.

Deciding Jacobs’s appeal, Justice J. Battle of the the Supreme Court of North Carolina filled several pages with his sole reason for upholding the conviction. Justice Battle explained (citing numerous precedents) that, since Blackstone’s day, courts had accepted expert testimony in cases where special scientific training was necessary. Identifying the “true race” of someone who looked European was clearly beyond the skill of an ordinary layman, hence an expert had been needed and, “Pritchett, proved, in the present case, that he possessed the necessary qualification, to testify as such.”30

Although State v. Asa Jacobs clearly came down in favor of invisible Blackness, it was still one step away from the eventual end-manifestation of the U.S. one-drop rule. The North Carolina statute then in effect defined someone with less than one full-blooded African great-grandparent as White, and the ruling paid lip service to this definition. In practice a one-drop rule had triumphed, but the prosecution’s rhetoric was based on the defendant having a measurable fraction of recent African ancestry. They had simply interpreted the blood-fraction statute in the light of a physical appearance rule—a traditional approach.31 That Asa Jacobs’s Black physical appearance could be found only on the eye of the “expert witness” meant that the one-drop rule had been upheld de facto for the first time in a slave state’s supreme court. And yet, by applying a rhetoric (specious though it may appear to modern eyes) that conservatively supported the traditional combination of written blood-fraction statute and unwritten rule of physical appearance, Justice Battle had preserved the older rules de juris. As we shall see later, the first time that an appeals court in the South openly and explicitly upheld the one-drop rule of invisible Blackness based on infinitesimal or mere rumored ancestry would be in the inheritance case, Scott v. Raubb, 1892 Virginia.32

Virginia Rejects the One-Drop Rule

The clash between blood fraction and physical appearance rules and the Not-a-Negro Law continued to consume Virginia legislative time for another decade and a half. In 1849, the legislature widened the scope of the Not-a-Negro law to read that “any free person of mixed blood” could apply for a local court certificate that they were neither negroes nor mulattoes and so exempt from anti-Black laws.33 This was apparently an attempt to broaden the law’s scope to include those of ambiguous ancestry. But this change redirected John Murdaugh’s original law to addressing merely whether people were subject to the anti-Black codes and away from considering whether they were White or not. The new law seemed to accomplish the worst of both alternatives. On the one hand, it was seen by European-looking Virginians of slight African ancestry as inadequately defending their rights to membership in the White endogamous group, as guaranteed by the 1785 blood-fraction law. On the other, it was seen by many ancestrally White Virginians as opening the door of Whiteness to African-looking people.

In December, 1853, delegate Travis H. Epes moved to solve the dilemma by adopting a true one-drop rule. He asked that Virginia change the definition of the endogamous color line to define as “Black” anyone “who may be known or proven to have negro blood in them.” The public promptly chose sides in the ensuing debate over codifying the newfangled one-drop rule of invisible Blackness into written statutes.

A Richmond editor claimed in December of 1853 that Virginians wanted, “no such conflict between law and society” as in the 1785 blood-fraction law then in effect. “The present [1785 blood-fraction] law encourages amalgamation,” he wrote. “The blood of the Caucasian cannot continue pure and undefiled while the law compels a fellowship with negroes.”34

The following week, a Charlottesville editor wrote, “What is a negro? White and black made a mulatto. Mulatto and white made a quadroon. Quadroon and white made a mustee. And, by law, mustee and white made a white.” But, the editor continued, how could one make a white person out of a negro? If one looked closely, one could always detect “black and curly hair, nails dark and ill-shaped, feet badly formed, and much of the negroes [sic] propensities.”35

In response, a person signing himself as “a lawyer” wrote that no law could ever make any practical difference in terms of social relations between the two endogamous groups. He pointed out that any rule of legal Whiteness was meaningless as long as social Whiteness was based upon having no visible Black ancestry:

It is not likely that a person having the physical organization of the negro would gain admission to a fashionable party with or without his [Not-a-Negro law] certificate [regardless legal Whiteness], unless he should go without invitation to a mask-ball; and the exhibition of such a certificate would certainly exclude or expel him thence.36

And the idea that a legal Whiteness definition based on blood fraction encouraged miscegenation was ludicrous:

The process of amalgamation [emphasis in original] will not be more apt to be resorted to by any one because he knows that his progeny in the third, or even in the second generation, may be able to get a certificate that they are not negroes.37

The most perceptive letter to the editor, however, was undoubtedly the one written a month later:

[If a one-drop rule were adopted], I doubt not, if many who are reputed to be white, and are in fact so, do not in a very short time find themselves instead of being elevated, reduced by the judgment of a court of competent jurisdiction, to the level of a free negro.38

This last letter effectively ended the debate. It finally dawned upon Virginia’s legislators of 1853, that a strictly enforced one-drop rule would tar even the highest elite Tidewater families with the same brush. Epps’s bill was quietly tabled and died when the session closed in March of 1854.39

As discussed elsewhere, this very point was echoed two generations later when South Carolina went through a similar debate, with a similar sudden realization and a similar result.40 The one-drop rule can be accepted only by a public that is either: ignorantly confident that it has no African ancestry (as in the 1830s North), or one that has forgotten its own genealogy (as in the Jim Crow South). Virginians in 1854 well knew that they had grandparents who either had been, or had known someone who had been, accepted into the White side of the endogamous color line despite a touch of African ancestry. And so they could not bring themselves to pass such a law. Another three generations would have to pass before White Southerners forgot enough about their own heritage to swallow the one-drop rule.

* * * * *

This essay explained why color line determination became more important after the Nat Turner incident. It described a moderately unsuccessful “Not-a-Negro Law” meant to help some Virginians avoid oppressive anti-Black laws. It revealed the steady north-to-south spread of the one-drop rule as reflected in appeals court cases. It described the nation’s first attempt to write a one-drop law—an attempt that was abandoned when its consequences were grasped.


1. Albemarle County Marriage Register, 1780-1868, August 29, 1794 as cited in 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), 262n36.

2. See “Figure 1. Genealogy of the West-Isaacs-Hemings-Fossett Families” in Rothman (2003), 54-55.

3. Presumably, a person of one-fourth sub-Saharan genetic admixture.

4. Paul Finkelman, “The Crime of Color,” Tulane Law Review 67, no. 6 (1992): 2063-2112, 2088, 2090.

5. Albemarle County Ended Chancery Causes (Circuit Superior Court), case #354, Library of Virginia, Richmond as cited in Rothman (2003), 262n37.

6. Ibid., 59-67.

7. Actually, the law (Va. ch. 69, sec. 10, p. 97) had been passed thirty years earlier on January 25, 1806, but it was not seriously enforced until after the Nat Turner incident. See Rothman, (2003), 43, 256n88. Also, see the topic “A Watershed Event in Three Threads” in the essay Why Did Northerners Invent the One-Drop Rule?

8. Annette Gordon-Reed, Thomas Jefferson and Sally Hemings: An American Controversy (Charlottesville: University of Virginia, 1997), 15. Hemings and his wife later changed their surname to “Jefferson” and moved to Wisconsin as a White family. See Rothman (2003), 86-87.9. Ibid., 86-87.

10. See the topic “Physical Appearance, Blood Fraction, Association” in the essay How the Law Decided if You Were Black or White: The Early 1800s.

11. As mentioned elsewhere, the Virginia legislature in 1832, responded to the Nat Turner incident by passing a series of laws placing free Blacks under the same rules and regulations as slaves. Instead of paying fines for minor infractions, for instance, free Blacks would thenceforth be publicly whipped. See Rothman (2003), 210. In addition, Virginia began strictly enforcing the 1806 law that had exiled former slaves. See Gordon-Reed (1997), 15.

12. Rothman (2003), 215.

13. See the topic “Physical Appearance, Blood Fraction, Association” in the essay How the Law Decided if You Were Black or White: The Early 1800s.

14. As quoted in Rothman (2003), 213.

15. Journal of the House of Delegates, 1832-1833, March 9, 1833, p. 265 as quoted in Rothman (2003), 215.

16. See the essay How the Law Decided if You Were Black or White: The Early 1800s., footnote 12. Also see Court Case Data Processing Methodology at http://backintyme.com/rawdata/appendixb.doc.

17. For a contrasting view, that the relative preponderance of decisions one way or the other is significant to interpreting history, see Ariela J. Gross, “Litigating Whiteness: Trials of Racial Determination in the Nine-teenth-Century South,” Yale Law Journal 108, no. 1 (1998): 109-188, 122n32 or Donald Braman, “Of Race and Immutability,” UCLA Law Review 46 (1999): 1375-1463, 1395n63.

18. Rothman (2003), 210-12.

19. For a further discussion of the Not-a-Negro law in general, and of the Whartons in particular, see Walter Wadlington, “The Loving Case: Virginia’s Anti-Miscegenation Statute in Historical Perspective,” Virginia Law Review 52, no. 7 (1966): 1189-1223, 1196.

20. See, for example, Rothman (2003), 210-12.

21. 31 N.C. 384. For details, see under the topic “Physical Appearance, Blood Fraction, Association” in the essay How the Law Decided if You Were Black or White: The Early 1800s.

22. 44 N.C. 49.

23. The first such case anywhere in the United States happened eighteen years earlier in Williams v. School District 1834 Ohio, Catterall (1968), 5:4. For details, see the topic “Court Cases” in the essay The Invention of the One-Drop Rule in the 1830s North.

24. 19 Mo. 241.

25. Idem.

26. 50 N.C. 11.

27. Idem.

28. 51 N.C. 284.

29. Idem.

30. Idem.

31. For details of this tradition, see the topic “Physical Appearance, Blood Fraction, Association” in the essay How the Law Decided if You Were Black or White: The Early 1800s.

32. 88 Va. 721.

33. Rothman (2003), 230.

34. Richmond Enquirer, December 31, 1853 as quoted in Ira Berlin, Slaves Without Masters: The Free Negro in the Antebellum South (New York: New Free Press, 1974), 366.

35. Richmond Enquirer, January 3, 1854 as quoted in Berlin (1974), 365-56.

36. Richmond Enquirer, January 3, 1854 as quoted in Rothman (2003), 236.

37. Idem.

38. Richmond Enquirer, February 24, 1854 as quoted in Rothman (2003), 230.

39. Rothman (2003), 231.

40. See the topic “South Carolina” in the essay The One-Drop Rule in the Postbellum Lower South.


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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