Essays on the Color Line and the One-Drop Rule
by Frank W Sweet
April 1, 2005
olly Gray was a fair-complexioned biracial woman from Hamilton County, Ohio. In November of 1829, she was tried for robbery and convicted due to the testimony of a Black witness for the prosecution. She appealed to the Supreme Court of Ohio on the grounds that she was White. Ohio statutes forbade Blacks from testifying against Whites, and yet she was convicted on Black testimony. Hence, she claimed, her conviction should be overturned.1
Her lawyer, Mr. Van Matre, argued that, despite Ms. Gray’s slight African ancestry, she clearly looked more European than African. This meant that she was legally White by the rule of physical appearance in effect in Ohio at the time. The prosecutor, Mr. Wade, agreed that the rule of physical appearance was the only legal way of deciding which side of the endogamous color line someone was on. But he argued that state statutes referred to Negroes and Mulattos as separate cases. Hence, “White” in the written law, was limited only to those who were neither Mulatto nor Negro. And, since Ms. Gray, “appeared, upon inspection… to be of a shade of color between the mulatto and white,” she was not quite fair-complexioned enough to be considered White. Legally, the prosecutor insisted, she was a Mulatto and not White. Presumably, had Ms. Gray looked completely European and not been “a shade of color” darker than White, the prosecution would have agreed to void her conviction.
The Supreme Court agreed with both prosecution and defense that the rule of physical appearance was the only criterion for determining a person’s endogamous group membership in Ohio. “We are unable to set out any other plain and obvious line or mark between the different races. Color alone is sufficient.” The problem, in the judge’s eye, was in deciding just where to draw the line. After deliberation, in January of 1831, the judge ruled, “We believe a man, of a race nearer white than a mulatto… should partake in the privileges of whites. We are of opinion that a party of such a blood is entitled to the privileges of whites, partly because we are unwilling to extend the disabilities of the statute further than its letter requires, and partly from the difficulty of defining and of ascertaining the degree of duskiness which renders a person liable to such disabilities.”
This case, Gray v. Ohio, 1831, marks an important historical watershed. It was the last appeals case in the free states where all parties agreed that one of the traditional rules (physical appearance, blood fraction, or association) would determine which side of the endogamous color line you were on. It was the last appeals case in the free states where neither side argued that an invisible trace of African blood should be taken into account. Neither the lawyers, the judges, nor the convicted robber could have known that things would be different thereafter. From then on, some form of one-drop rule of invisible Blackness would be argued, unsuccessfully at first, in most racial identity cases heard in the North and later in the upper South. In less than a century, the one-drop rule would entirely supplant the rules of physical appearance, blood fraction, and association throughout the nation.
* * * * *
This essay suggests, in five topics, that America’s one-drop rule of invisible Blackness arose in the North between 1830 and 1840. A Bidirectional Strategy describes the analytic approach of bracketing the date by working forwards in time from the Revolution and backwards from Jim Crow. Journals and Diaries presents evidence from travelers’ accounts and newspaper advertisements to show that descriptive terminology changed from “white” to “white-looking” during this period. Literature and Drama shows that “passing” literature, which depends upon the one-drop rule for intelligibility, first arose in this period. Court Cases discusses four pivotal court cases from before and after the emergence of the one-drop rule—two in Ohio and two cases in Kentucky. Graphs and Charts presents graphs of court decisions to show how criteria for determining whether you were White or Black changed over the past two centuries.
A Bidirectional Strategy
Anthropologically speaking, the notion of invisible Blackness—the idea that one can be a member of the U.S. Black endogamous group due to a trace of distant African ancestry—is a myth. In other words, it must have served some desirable social purpose or it would not have spread throughout the nation and been preserved to this day. But tracing the origins of the myth is as difficult as uncovering the origin of any other popular idea. The next few paragraphs sneak up on the idea from two directions: first, working forwards in time from the Revolution, and then working backwards from the Jim Crow era.
Working forwards in time from the formation of the Republic, we know that as of 1830, the one-drop rule (in the sense of an utterly European-looking person being seen as a member of the Black endogamous group due to an un-measurable trace of distant Black ancestry) had not yet been argued in an appeals court anywhere in the United States.2 Furthermore, we know that the farther south you look in the early antebellum period, the less familiar the terrain becomes. South Carolina had an extraordinarily permeable color line.3 Alabama and Louisiana had two mildly endogamous color lines separating three groups.4 And Florida lacked any endogamous color line at all.5 Only the upper South and the North had an endogamous color line similar to today’s—impermeable, based on hypodescent, and supported by a shared sense of ethnic self-identity.6 And so, it seems reasonable to seek the birth of the one-drop rule and the notion of invisible Blackness, after 1830 and in the free states of the North.
Working backwards from the Jim Crow era, it is easy enough to identify when the first state legislated the one-drop rule of endogamous group membership as statutory law—it was 1910 Tennessee.7 But the record shows that state legislatures did not take it upon themselves to invent such a rule. Statutes deciding which side of the endogamous color line you were on merely confirmed rules that had long been enforced as legal precedents. State appellate courts were the entities who had established the legal precedents.
Also, it is straightforward to work further backwards to find the first time that an appellate court upheld the one-drop rule of invisible Blackness—it was in the criminal prosecution of a marriage between a White woman and a Black man in 1880 Texas.8 But, like state legislators, appeals judges themselves seldom invented new rules for society. They chose among arguments that had been presented at trial. And so the origin of the one-drop rule as an idea in the public mind must be sought in cases where the concept was argued in court, even though higher courts might have rejected it.
Apparently, the first time in U.S. history that a lawyer argued the one-drop rule was in 1834 Ohio, in a school segregation case to which we shall return momentarily.9 But even legal arguments cannot be the origin of the idea. Few lawyers can afford to present arguments that clash with social sensibilities. They must have gotten the idea from the greater society. In order to be argued in court, the one-drop rule must have been in the air at that time (the 1830s) and in that place (the North). And so, we must seek the birth of the one-drop rule in popular culture: in journals and diaries, in literature and drama. Then we shall return to court cases and to graphs and charts.
Journals and Diaries
Travelers’ accounts illuminate the society of the time. Each account inadvertently reveals how the writer’s mind worked. Since each writer was a member of the society of the time, their journals and diaries provide a glimpse of how people thought about the endogamous color line back then. Until the 1830s, such accounts invariably referred to “white” slaves in the American South. Before then, none used terms like “white-looking” slaves. But by 1840 travelers’ accounts had shifted to the modern form of expression.
That “white-looking” is the current form of expression is indisputable. With one exception, every textbook or monograph, published since the turn of the twentieth century that the present author has uncovered, refers to “white-looking” slaves. No modern author can bring himself or herself to state the obvious fact that tens of thousands of White people (by the usage of the time) were enslaved in the antebellum South. Today’s academic canon is that they were merely “white-looking”; they were not “really white” (whatever that means).10
John Ferdinand Dalziel Smyth who toured the South in the 1770s wrote about “female slaves who are now become white by their mixture.”11 Jacques Pierre Brissot de Warville in 1788 reported a “white boy” in a Philadelphia school for Negro children.12 Dr. Jesse Torrey in 1817 wrote about “a decently dressed white man” who was also a slave.13 In 1839, reverend Francis Hawley of Connecticut wrote, “It is so common for the female slaves to have white children, that little or nothing is ever said about it.”14 No account before 1830 has yet turned up that employs modern (“white-looking”) terminology.
The change in paradigm from “white” to “white-looking” apparently took less than a decade. In 1837, Captain Frederick Marryat wrote that “said boy is in a manner white, would be passed by and taken for a white man.”15 The following advertisements for runaways tell the story:
$100 reward will be given for my man, Edmund Kenny. He has straight hair, and a complexion so white that it is believed a stranger would suppose there was no African blood in him. A short time since, he was in Norfolk with my boy Dick, and offered him for sale. He was apprehended but escaped under pretense of being a white man. — Anderson Bowles, The Richmond Whig, Va. Jan. 6, 1836.
$10 reward for the apprehension of William Dubberly, a slave belonging to the estate of Sacker Dubberly, deceased. He is about nineteen years old, quite white, and would not be readily taken for a slave. — John J. Lane, The Newbern Spectator, N.C., March 13, 1837.
Runaway from the subscriber, a bright slave named Sam; light sandy hair, blue eyes, ruddy complexion. He is so white as to pass easily for a white man. — Edwin Peck, Mobile Ala., April 22, 1837.
Runaway, a bright woman, named Julia, about twenty-five years old. She is white and very likely may attempt to pass for white. She is a good seamstress, dresses fine, and can read a little. $200 reward, if caught in any Free State and put into any good jail in Kentucky or Tennessee. — A.W. Johnson. The Republican Banner and The Nashville Whig, Tenn. July 14, 1840.
Runaway from me, a woman named Fanny. She is as white as most white women; with straight light hair and blue eyes, and can pass herself for a white woman. She is very intelligent; can read and write, and so forge passes for herself. She is very pious, prays a good deal, and was, as supposed, contented and happy. I will give $500 for her delivery to me. — John Balch, Tuscaloosa Alabama, May 20, 1845.
$25 REWARD. Ranaway from the plantation of Madame Duplantier, a bright boy named Ned, about thirty-five years old; speaks French and English. He may try to pass himself for a white man, as he is of a very clear color, and has sandy hair. — The New Orleans Picayune, Sept. 2, 1846.
Runaway from the subscriber, a very bright boy, twenty-two years old, named Wash. He might pass himself for a white man, as he is very bright, has sandy hair, blue eyes, and a fine set of teeth. — George O. Ragland, The Chattanooga Gazette, Tenn. Oct. 5, 1852.16
It seems that after 1840, with one class of exceptions, no slave was ever again reported as “white.”17 They merely “looked white” or “passed for white.” And so, judging by journals and diaries, the one-drop rule first arose in the United states between 1830 and 1840.
Literature and Drama
The one-drop rule first appeared in popular literature in novels and plays about “passing for white.” This is because the concept of “passing for white” is an inseparable aspect of the one-drop rule. Cultures that lack a one-drop rule lack the idea of “passing for white.” Indeed, as mentioned in another essay, the very concept of “passing for white” is virtually unintelligible to people who were raised outside of the United States.18
For our purposes, “passing” literature refers to novels, plays, or short stories in which a European-looking character pretends to be a member of the White endogamous group but is “really” on the Black side of the color line. All three elements are essential: (1) Some African ancestry, (2) predominantly European appearance, and (3) pretense or concealment. Stories about European slaves were not uncommon, even before the Reformation. But unless the character actually has some recent African ancestry, such stories are not of interest here. Similarly, an African slave who wears a mask or otherwise disguises as European-looking in order escape captivity does not fall within our scope—only characters who really are genetically European. Finally, the tale of a European who is accepted without pretense or concealment as fully European, even though everyone around knows of the person’s publicly acknowledged African ancestry is not a tale of passing in this context.19
Passing literature can exist only within a readership market that accepts the one-drop rule. Cultures (such as Hispanic or Muslim societies), where a European-looking person with an African-looking grandparent is considered legitimately White, lack passing literature (as defined by the three above elements) because they lack a one-drop rule of invisible Blackness. We return to this point in another essay, when we contrast U.S. and Mexican cinematic adaptations of Fannie Hurst’s novel, Imitation of Life. As exemplified above, the earliest non-fictional usage of the concept of passing, as defined by the above three elements (African ancestry, European appearance, pretense) was in advertisements for runaway slaves.
The earliest fictional use of the three-part concept was in the French novel Marie; ou, L’Esclavage aux États-Unis [Marie; or, Slavery in the United States] (Paris: 1835) by Gustave de Beaumont. It is apparently the first passing novel ever published.20 Its narrator, Ludovic, falls in love with the title character, who turns out to have a touch of African ancestry through her Louisiana Colored Creole grandparent. The novel describes the racial intolerance of the North with such lines as:
Public opinion, ordinarily so indulgent to fortune-seekers who conceal their names and previous lives, is pitiless in its search for proofs of African descent…. There is but one crime, of which the guilty bear everywhere the penalty and the infamy; it is that of belonging to a family reputed to be of color.—Though the color may be effaced, the stigma remains. It seems as if men could guess it, when they could no longer see it. There is no asylum so secret, no retreat so secure as to conceal it.21
Marie is particularly interesting because the author does not agree with his own characters. The characters are immersed in a society that brutally enforces the one-drop rule. The author, on the other hand, considers the notion to be an inexplicable Americanism. Marie’s characters are portrayed as struggling for acceptance, not as engaging in malicious pretense. The novel was written by a Frenchman and published in France for a French readership. Its tone is that of “look at the bizarre customs of those strange Americans,” rather than, “look at these people pretending to be White.”22 Nevertheless, Marie is important to this study because it is the first literary indication that a unique and unprecedented social ideology, the one-drop rule, had recently arisen in the United States.
The first two American-written novels about passing in the above sense are Clotel; or, The President’s Daughter: A Narrative of Slave Life in the United States (1853) by William Wells Brown and The Garies and Their Friends (1857) by Frank J. Webb. William Wells Brown was a former slave and an established author who had published the autobiographical Narrative of William Wells Brown, a Fugitive Slave in 1847. Frank J. Webb, a freeborn African-American, was a newcomer to the reading public. The two novels differ in several ways.
Clotel is about slavery. Its protagonist (Thomas Jefferson’s slave daughter) escapes captivity, passes for White in the North, but then returns to the South to rescue her own daughter and dies in the attempt. Most of the novel does not focus upon the pretense of Whiteness, but is instead a pastiche of slave tales culled from the author’s own experiences, hearsay, journalism, and other fiction (including the acknowledged lifting of material from The Quadroons, an 1842 novel by Lydia Mary Child that is about miscegenation, not passing). Clotel lacks the unity customary to novels and seems disjointed to the modern reader. Nevertheless, it is the first known piece of literature depicting a society that considers Blackness to be an intangible trait. It is the first to portray people (both Black and White, it turns out) who believe that a European-looking person of undetectable African ancestry is a member of the Black endogamous group nonetheless. That the book was a success is persuasive evidence that most of its readers felt the same way.23
The Garies and Their Friends is about life in freedom in the North, not about slavery in the South. Although it abounds in sub-plots (more than are customary in most modern novels), it is more tightly written than Clotel and its sub-plots either illuminate or advance the main narrative. The tale focuses on passing by its title couple, and its sub-plots depict different forms of passing (accidental, deliberate, through ignorance, etc.).24 Although it was published four years after Clotel, The Garies and Their Friends is credited by most scholars with inventing the literary theme of passing.25
Clotel and The Garies and Their Friends are similar in that they were the first successful novels published by African-Americans, and yet they are almost universally ignored in Black studies departments today. This is because their ideology is repellent to modern African-Americans. None of the characters who engage in passing in these two novels feels any guilt or remorse for the act. Some (usually delicate Victorian females like Clotel herself) sincerely want to be accepted as White. Others (usually defiant self-sacrificing Victorian men) consider it a justified deceit upon an unjust society. Modern critics see the characters’ lack of guilt as a symptom of a “psychology of imitation and implied inferiority,” and that it reveals the authors’ “unconscious desire to be white” and “unabashed allegiance to Anglo-Saxon lineage.” According to M. Giulia Fabi, the characters’ lack of guilt “have had crippling repercussions on [the novels’] reception among scholars of African American literature to this day.”26
And so, judging by literature and drama, the one-drop rule first arose in the United states in 1835, in Gustave de Beaumont’s novel, Marie; ou, L’Esclavage aux États-Unis.
In May of 1834, Ohio residents Mr. and Mrs. Williams tried to enroll their five European-looking children in the District 6 public school. They were turned away because the law demanded racially segregated schools. Although the children’s mother was White, the father admitted to having an imperceptible trace of Negro ancestry. The Williams couple sued the school board in Williams v. School District, 1834 Ohio.27
The trial went directly to the heart of the issue. Were the Williams children members of the Black endogamous group because their father had a slight degree of African ancestry? Or did they belong on the White side of the endogamous color line based upon their European appearance, blood fraction, and associations? Testimony was introduced in support of each definition. The school board proposed a one-drop rule of invisible Blackness. The children’s records showed that they had African blood, they argued, and so they should be ruled to be Black even though they did not look it. The Williams family lawyer argued in favor of an appearance-based view of color line positioning. The children should be ruled White because, physically speaking, they “really were White,” even though their father was not. The judge ruled in favor of the rule of physical appearance. The children were White because they looked White. The court awarded damages to be paid to the Williams family and ordered the school board to admit their children.
In fact, the decision was far from inevitable, and the case could easily have gone either way. The judge explained that he ruled against the school board partly because they, “had the shabby meanness to ask from [Mr. Williams] his contribution of tax, and [then turn around and] exclude his children from the benefit of the schools he helped to support.” Had the members of District 6 School Board had the sense to exempt the family from school taxes first, in order to exclude the children, as did the schools of the time in Connecticut,28 the court would probably have ruled in their favor.
The defendants in this case argued that one could look European (as did the Williams children) yet be a member of the Black endogamous group nonetheless. As it turned out, the judge did not agree with the argument and he did not impose a one-drop rule. In fact, he explicitly ruled against such a thing. But the case is important because, as far as this study has been able to determine, Williams v. School District, 1834 Ohio was the first time that a one-drop rule was seriously argued in a U.S. court of law.
Incredibly, this watershed case happened just three years after Gray v. Ohio, 1831, the robbery conviction case that opened this essay. Recall that in Gray v. Ohio, the state prosecutor allowed a convicted felon to go free rather than argue that the female robber was “really” Black due to her acknowledged trace of African ancestry. Nevertheless, although the change was abrupt, there would be no turning back.
The same change happened in Kentucky, the slave state just across the Ohio River from free Ohio, only three years later. Polly McMinnis was a genetically European woman who won her freedom in the case of Gentry v. McMinnis, 1835 Kentucky.29 She was born in Pennsylvania around 1786, probably to a mother who was a slave. Had Polly remained in Pennsylvania, she would have been a servant until reaching age 28 in 1814 and completely free thereafter. This is because, according to the Pennsylvania abolition statute of March 1, 1780:
Sec. III. All persons… who shall be born within this state, shall not be deemed and considered as servants for life, or slaves. And all servitude for life, or slavery of children, in consequence of the slavery of their mothers… shall be, and hereby is, utterly taken away, extinguished, and forever abolished.
Sec. IV. Provided always, that every negro and mulatto child, born within this state, after the passage of this act… who would, in case this act had not been made, have been born a… slave, shall be deemed to be [an involuntary servant]… until such child shall attain unto the age of twenty eight years….30
Instead, Polly was taken to Kentucky at age 11 and sold. Thirty-eight years later, she sued for her freedom. She was released because the slave-owner’s case was weak and the above narrative was supported by evidence presented in court. The decision might have vanished historically had the slave-owner not appealed.
His appeal claimed that the trial judge had erred by instructing the jury as follows, “If upon their own view, they should be of the opinion that she was a white woman, they should find for her.” The slave-owner’s lawyer argued that that this instruction turned precedent on its head. Since he had proved that Polly was legitimately a slave by matrilineal descent, the jury lacked the authority to rule that she was White. Indeed, since her mother was a slave, her membership in the White endogamous group would be as irrelevant as was Eston Hemings’s pre-manumission Whiteness.31
Chief Justice Robertson of the Supreme Court of Kentucky dismissed the argument thus:
To a rational man… the best and highest proof of which any fact is susceptible, is the evidence of his own senses. This is the ultimate test of truth, and is therefore the first principle in the philosophy of evidence…. [Jurors] will not, they cannot—and generally they ought not, to believe or accredit testimony which contradicts the evidence of their senses, or subverts the first principles of human belief…. A white person of unmixed blood cannot be a slave.32
Justice Robertson freed Polly and went on to cite two Virginia cases as precedent for the jury’s right to determine endogamous group membership (hence, slave status) by the rule of physical appearance: Hudgins v. Wrights, 1806 and Hook v. Nanny Pagee and her Children, 1811.33
At first glance, this case seems uninformative and typical of others during the late antebellum upper South (Virginia, North Carolina, Tennessee, Kentucky). It was about slavery, it tried to decide the status of a person who was genetically European, and no party involved suggested anything like a one-drop rule. In fact, the slave-owner was willing to concede that Polly was White in the then-common meaning of the term, which was based on the rule of physical appearance. It may seem odd for the judge to suggest that a person’s looks did more than just lay the burden of proof, that it could actually outweigh other evidence of slave status. But the oddness is illusory. The evidence presented at trial was solid that Polly had been illegally taken from a free state to a slave state in order to be sold. Indeed, just four years later, in Chancellor v. Milly, 1839 Kentucky, the same Court kept in bondage another genetically European woman who had been a slave for forty years, ruling that her European looks merely placed the burden of proof upon the slave-owner, who at trial had not been given the opportunity to meet the burden.34
What is important about the case is Justice Robertson’s wording, “a white person… cannot be a slave.” Compare it semantically to Justice Harper’s words in State v. Cantey, 1835 South Carolina, “a slave cannot be a white man.”35 Each sentence describes a cause-and-effect relationship between the endogamous color line and slavery. To each writer, one is a fact of tangible reality, while the other is a social construct. Harper’s words implied that slave status was real—you were either a slave or not. To Harper, which side of the endogamous color line you were on, was socially constructed to reflect that reality—slave status disqualified you from being accepted into the White side of the color line. Robertson’s decision implies the reverse: that your endogamous group membership is the tangible reality—you are either White or Black. To Robertson, whether you were a slave reflected color line reality—Whiteness exempted you from being a slave. That many Americans today unthinkingly see Robertson’s phrasing as correct and Harper’s as a slip of the pen warns us that only one of these two opposing world-views survives in today’s United States. It also shows that, like Ohioans three years earlier, Kentuckians had begun to see endogamous group membership as something basic and immutable.
Gentry v. McMinnis documents the first time that endogamous group membership was seen in a U.S. court as being more real than matrilineal descent. That the endogamous color line had somehow become tangible reality is important. Despite African laborers being involuntarily transported in large numbers between 1500 and 1900—four million to the Indian Ocean, eight million to the Mediterranean basin, eleven million to the New World—the idea that the color line outweighed property rights arose nowhere else but in the United States.36 Seeing the endogamous color line as real and immutable, rather than as merely an expedient socio-political intermarriage barrier, was still a long way from a one-drop rule of invisible Blackness. The first time that a Southern appeals court would uphold a one-drop rule of invisible Blackness was still two generations in the future.37 And yet, while the idea of the endogamous color line as tangible reality was a long way from the concept of invisible Blackness, it was a step in that direction. The overall record of court cases shows why.
Graphs and Charts
The figure below, “Percent of Cases per Decade Nationwide” depicts 214 appeals cases between 1770 and 1969 where court records documented the reasoning behind how the judges resolved an individual’s endogamous group membership. The figure shows what fraction of cases in each decade used each of three rules: physical appearance, blood fraction, and a one-drop-rule of distant infinitesimal ancestry. (For convenience, cases that used the rule of association are included in the blood-fraction plots.)38
Figure 1. Percent of Cases per Decade Nationwide
The chart reveals that court cases underwent three phases over the past two centuries: a brief period when every case was claimed to have been decided by the rule of physical appearance, a longer period when the rule of blood fraction (and the rule of association) contended with the rule of physical appearance but never replaced it,39 and a period lasting about a century when the one-drop rule of invisible Blackness emerged and gradually became more dominant until finally deciding every case.
Although the above figure, “Percentage of Cases per Decade Nationwide,” accurately portrays the percentage of cases that used each of the three major rules for deciding which side of the endogamous color line you were on, the graph conceals the absolute numbers of cases. Another way of presenting the same information is depicted in the following figure. “Number of Cases per Decade – Nationwide” depicts the actual number of appeals cases heard broken down by the same criterion of color line determination. This figure reveals two important items of information that are not visible in the preceding chart.
Figure 2: Number of Cases per Decade Nationwide
First, the above figure shows that the rise and eventual triumph of the one-drop rule took place during a century of gradual decline in the number of cases. The volume of color-line-determination cases appealed in the United States peaked at thirty-six cases in the decade of the 1850s, before the spread of the one-drop rule. The number of cases then declined in stages until, by 1960, they numbered only five per decade, all of which employed the one-drop rule. In short, the one-drop rule triumphed even as the number of cases fell to its lowest level since the 1850s’ peak.40
Earlier, it was hypothesized that the volume of such cases indicates social uncertainty.41 In times when the criteria for endogamous group membership were clearly understood and stable enough to be passed on from one generation to the next, people knew precisely what yardstick was used to position them with regards to the endogamous color line. With little element of uncertainty, few court cases would be litigated and even fewer appealed. If this hypothesis is correct, then the gradual decline in the number of cases from 1850 to 1950 reveals that group membership determination gradually became more stable and less contested during that period. “Less contested” should not be interpreted to imply that people stopped contesting injustice or mistreatment of the Black endogamous group. The point is that people stopped contesting their socially assigned group membership itself.
Furthermore, it is not unreasonable to suggest that the one-drop rule may itself have contributed to this stability and lack of contestation. This is because the one-drop rule cannot be disputed. Once it becomes the criterion for determining endogamous group membership in court, onus probandi alone (where the burden of proof is laid) predetermines the outcome. Blood fraction can be disputed by presenting evidence of ancestry. Physical appearance can be disputed by introducing expert testimony, as in State v. Asa Jacobs, 1859 North Carolina or by letting the jury observe the subject, as in Gentry vs. Polly McMinnis, 1835 Kentucky.42 But there is no way to dispute that someone may have a trace of African ancestry in some unspecified distant past.43
The second item of information revealed by the above chart is that the number of cases (and, presumably, uncertainty as to where you were with regards to the endogamous color line) peaked three times. The first peak was in the decade of the Fugitive Slave Act. A free northerner was more likely to be taken into slavery if he or she was found to be Black. The second peak was in the 1910-19 decade, the nadir of the Jim Crow era by most measures. This was the decade when the one-drop rule was first adopted as state law. Tennessee led the parade by adopting a one-drop statute in 1910.44 It was followed by Louisiana in the same year, Texas and Arkansas in 1911, Mississippi in 1917, North Carolina in 1923, Virginia in 1924, Alabama and Georgia in 1927, and Oklahoma in 1931.45 During this same period, Florida, Indiana, Kentucky, Maryland, Missouri, Nebraska, North Dakota, and Utah retained their old blood fraction statutes de juris but amended these fractions (1/16, 1/32) to be equivalent to one-drop de facto.45 One suspects that instability of color line positioning in this decade was caused by resistance to the initial introduction of the one-drop rule as statutory law.47 The final peak was in the decade of the 1940s.
Another informative way of presenting the same data is by region. The four charts below display the number of cases per decade, broken down into the same three rules as before, but with one chart for each of four regions of the country. The chart labeled “Cases per Decade – North” includes court cases in the states of: Connecticut, Iowa, Illinois, Indiana, Kansas, Massachusetts, Maine, Michigan, New Jersey, New York, Ohio, Pennsylvania, and West Virginia (there were no cases in New Hampshire, Rhode Island, or Vermont). The chart titled “Cases per Decade – Upper South” includes: District of Columbia, Delaware, Kentucky, Maryland, Missouri, North Carolina, Tennessee, and Virginia. The chart labeled “Cases per Decade – Lower South” includes: Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, and South Carolina. The final chart, labeled “Cases per Decade – West,” includes all of the other states west of the Mississippi.
Figure 3: Number of Cases per Decade by Region
Two points are apparent in the charts by region. First, the one-drop rule determined court decisions earlier in the North than elsewhere, it appeared in the upper South about twenty years later, and it appeared in the lower South about ten years after that. The first cases that were decided on the basis of a one-drop rule took place in the North in the 1860s and 1870s. In the decades of the 1870s, 1890s, and 1920s, all of the cases in the north were based upon the one-drop rule. One-drop cases first began occurring in the upper South in the 1890s and did not become the sole method of determining endogamous group membership there until the 1940s. Finally, the first one-drop case in the lower South happened in the 1900s and one drop did not become the sole way of deciding cases there until the 1950s.
The second point apparent in the charts by region is that the three peaks of litigation manifested differently in each locale. Although all three of the eastern regions show the 1850s peak, coincident with the Fugitive Slave Act and the secession crisis, the Jim Crow peak of the 1910s is absent in the North but extremely prominent in the upper South. In fact, ten color line determination cases were held in the upper South between 1910 and 1919 but only eight took place there between 1850 and 1859. The western states had only one case or fewer per decade until the Jim Crow peak of the 1910s, which was extremely prominent. This is not surprising, since the west was not thickly populated until around the turn of the twentieth century. What may be unexpected is the peak of the 1940s, which was especially prominent in both the North and West.
Table 1. The Spread of the One-Drop Rule
|North||Upper South||Lower South|
|First Argued in Court||1830s48||1850s49||1870s50|
|First Determined Verdict||1840s51||1870s52||1880s|
|First Affirmed on Appeal||1860s53||1890s54||1900s55|
|First Made Statutory||1910s||1910s||1910s|
Finally, it should be understood that the above graphs reflect only cases where appeals were actually decided on the basis of a one-drop rule. One could re-draw the graphs to show cases where trial courts reached a verdict based upon the one-drop rule, but the verdicts were overturned. As indicated in the table at left, such an operation would shift all of the patterns to the left by two or three decades: 1840s North, 1860s upper South, 1880s lower South. Similarly, re-drawing the graphs to show the first cases when the one-drop rule was argued in court would shift the patterns earlier yet: 1830s North, 1850s upper South, 1870s lower South.
In other words, the table shows that the slow North-to-South pattern of spread in the acceptance of the one-drop rule in court was superimposed upon the following four-step pattern common in every region throughout the nation. First, the one-drop rule was argued in court decades before it was accepted and led to verdicts. Second, trial verdicts based upon acceptance of the one-drop rule were overturned for decades before appeals courts came to accept it. Third, appeals courts were routinely (even exclusively) basing their decisions on the one-drop rule for decades before it was incorporated into statutory law. Finally, state legislatures throughout the United States bowed to what had already become customary and made the one-drop rule the law of the land.
* * * * *
This essay suggested that, far from being devised by slaveowners, America’s one-drop rule of invisible Blackness arose in the North between 1830 and 1840 at the same time that African-American ethnicity was being invented. The essay presented evidence from travelers’ accounts and newspaper advertisements to show that descriptive terminology changed from “white” to “white-looking” during this period. It showed that literature hinging on the concept of “passing for White” first arose in this period. It discussed four pivotal court cases that bracketed the emergence of the one-drop rule in Ohio and Kentucky. It presented graphs of court decisions to show how criteria for determining whether you were White or Black changed over the past two centuries, and how the one-drop rule began in the North and spread southwards in a four-stage process. That the one-drop rule first arose in the free states in the 1830s will remain indisputable unless someone uncovers an example of the notion of invisible Blackness before 1830 anywhere, or in the South of the 1830s.
1 4 Ohio 353.
2 See the essay How the Law Decided if You Were Black or White: The Early 1800s.
3 See the essay Barbadian South Carolina: A Class-Based Color Line.
4 See the essay Antebellum Louisiana and Alabama: Two Color Lines, Three Endogamous Groups.
5 See the essay Spanish Florida: No Endogamous Color Line.
6See the essay The Color Line Created African-American Ethnicity in the North.
7 Pauli Murray, ed. States’ Laws on Race and Color (Athens: University of Georgia, 1997), 428.
8 Moore v. State 1880 Texas (7 Tex. Ct. App. 608).
9 Williams v. School District 1834 Ohio (1 Wright 578); Helen Tunnicliff Catterall and James J. Hayden, Judicial Cases Concerning American Slavery and The Negro (New York: Octagon Books, 1968), 5:4.
10 The sole historiographic exception to currently mandatory academic doublespeak is the self-published monograph, Lawrence Raymond Tenzer, The Forgotten Cause of the Civil War: A New Look at the Slavery Issue (Manahawkin NJ: Scholars’ Pub. House, 1997).
11 J.F.D. Smyth, A Tour in the United States of America (1784; reprint, NY, 1968), 2:181 as quoted in Tenzer (1997), 24.
12 J.P. Brissot de Warville, New Travels in the United States of America, 1788, ed. and trans. Durand Echevarria and Mara Socenau Vamons (Cambridge, 1964), 217 as quoted in Tenzer (1997), 24.
13 Jesse Torrey, American Slave Trade( 1822; reprint, Westport, 1971), 24-25 as quoted in Tenzer (1997), 24.
14 “Narrative and Testimony of Rev. Francis Hawley” in Theodore D. Weld, American Slavery as It Is: Testimony of a Thousand Witnesses (1839; reprint, NY, 1968), 97 as quoted in Tenzer (1997), 25-26.
15 Frederick Marryat, A Diary in America (Paris, 1839), 250-51 as quoted in Tenzer (1997), 25.
16 The advertisements are as quoted in Tenzer (1997), 32. The ad for slave Ned who ran away from Madame Duplantier and “may try to pass himself for a white man” is particularly ironic. Mme. Duplantier was a wealthy slave-owning gens de couleur libre, a member of antebellum Louisiana’s Colored endogamous group.
17 The exceptions were the polemical writings of Abolitionists, who as late as 1864, referred to European-looking slaves, especially children, as “white” in order to elicit sympathy for their plight. For several examples, see Tenzer (1997), starting at page 37.
18 Hilary Beckles, “Black Men in White Skins: The Formation of a White Proletariat in West Indian Society,” The Journal of Imperial and Commonwealth History October, no. 15 (1986): 5-21.
19 For instance, Alessandro de Medici, Queen Charlotte, Alexander Pushkin, Alexandre Dumas, and John James Audubon were not “passing” as defined here because there was no pretense or concealment of their African ancestry.
20 An earlier example of “passing” in a different sense is Bug-Jargal (1826) by Victor Hugo, whose protagonist is an unscrupulous individual who “passes” as different races, nationalities, professions, and social classes as expediency dictates. It resembles the 2002 Dreamworks film “Catch Me if You Can,” which was a remake of the 1961 film “The Great Imposter.” The novel sheds no light on the U.S. one-drop rule.
21 Gustave de Beaumont, Marie; or, Slavery in the United States, trans. Barbara Chapman (Stanford: Stanford University, 1958), 91-2.
22 This interpretation is partly due to that Alexandre Dumas (père) was also publishing in France at this time and was usually considered White despite having a biracial father. (Although he was sometimes referred to as “Mulatto.”)
23 William Wells Brown, Clotel, or, The President’s Daughter: A Narrative of Slave Life in the United States (London: Partridge & Oakey, 1853).
24 Frank J. Webb, The Garies and Their Friends (London: Arno Press, 1857).
25 Werner Sollors, Neither Black Nor White Yet Both (Cambridge: Harvard university, 1997), 499n53.
26 The quotations, along with a thorough literary analysis of both novels can be found in M. Giulia Fabi, Passing and the Rise of the African American Novel (Urbana: University of Illinois, 2001), Chapter 1, “The Mark Without.”
27 Helen Tunnicliff Catterall and James J. Hayden, Judicial Cases Concerning American Slavery and The Negro (New York: Octagon Books, 1968), 5:4.
28 See, for example, Copp v. The Town of Norwich 1855 Connecticut (24 Conn. 28).
29 33 Ky. 382.
30 32 Ky. 432.
31 See the opening anecdote of the essay How the Law Decided if You Were Black or White: The Early 1800s.
32 33 Ky. 382.
33 Chief Justice Robertson erred. The two cited cases established only that a person who was White by the rule of physical appearance did not have to shoulder the onus probandi of partus sequitur ventrem. They did not hold that a person who was White by the rule of physical appearance should be freed from slavery despite being born of a slave mother. For the details of these cases, see the essay How the Law Decided if You Were Black or White: The Early 1800s.
34 39 Ky. 23.
35 Catterrall (1968), 2:358.
36 Pier M. Larson, “Reconsidering Trauma, Identity, and the African Diaspora: Enslavement and Historical Memory in Nineteenth-Century Highland Madagascar,” William and Mary Quarterly 56, no. 2 (1999): 335-62.
37 It would be in a case to determine the validity of a marriage as regarding an inheritance: Scott v. Raubb 1892 Virginia (88 Va. 721).
38 See Appendix B. Court Case Data Processing Methodology for details on how these cases were examined. See URL “http://backintyme.com/rawdata/courtcases.xls” for the program used to tabulate and graph the results.
39 The reasons why different rules were applied at different times, along with each rule’s strengths and weaknesses, can be found in the essay How the Law Decided if You Were Black or White: The Early 1800s.
40 Since this study is limited to cases that were appealed, one might ask whether the measured rise and fall reflects the total number of cases or merely the number that were appealed. This is answered in Appendix B. Court Case Data Processing Methodology.
41 See the topic “The National Color Line’s Rise and Fall” in the essay The Color Line Created African-American Ethnicity in the North.
42 33 Ky. 382; 51 N.C. 284.
43 One reason for the impossibility, of course, is that it is undisputed in paleoanthropology that genus Homo really did emerge in Africa.
44 Pauli Murray, ed. States’ Laws on Race and Color (Athens: University of Georgia, 1997). 428.
45 Ibid., 173, 443, 37, 237, 330, 463, 22, 39, 358.
46 Ibid., 77, 150, 164, 207, 254, 263, 459, .
47 As of 1950, although each of the following states outlawed intermarriage and enforced at least some Jim Crow laws (such as school segregation), they either lacked statutory definitions of Black caste membership or used older, more reasonable (1/4, 1/8) blood fraction or physical appearance rules: Arizona, California, Colorado, Delaware, District of Columbia, Idaho, Kansas. Montana, Nevada, New Mexico, Oregon, South Dakota, West Virginia, Wyoming, See Murray (1997), passim.
48 Williams v. School District 1834 Ohio, Catterall (1968) 5:4.
49 State v. Harris Melton & Ann Byrd 1852 North Carolina (44 N.C. 49).
50 Walsh v. Lallande 1873 Louisiana (25 La. Ann. 188).
51 Gordon v. Farrar 1847 Michigan (2 Doug. 411).
52 Smith v. Allbright 1873 Kentucky (6 Ky. Op. 376).
53 Draper v. Cambridge 1863 Indiana, 20 Ind. 268. Unfortunately, this case is not as clear-cut in favor of the one-drop rule as one would like. It was about a child rejected from the all-White public schools of the time. The child’s rejection was upheld on appeal (mandamus was not issued) on a technicality. In contrast, the first appellate decision in the North that indisputably upheld the one-drop rule was Van Houten v. Morse 1894 Massachusetts (162 Mass. 414), a breach of promise suit.
54 Scott v. Raubb 1892 Virginia (88 Va. 721).
55 Succession of Fortier 1899 Louisiana (51 La. Ann. 1562).
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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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