Essays on the Color Line and the One-Drop Rule
by Frank W Sweet
September 1, 2005
n 1893, Anna D. Van Houten of Seattle was divorced from her husband, moved to Boston and married Asa P. Morse. Mr. Morse soon learned that his new bride had a trace of African ancestry. He sought a divorce on the grounds that her neglecting to inform him of this fact before the nuptials constituted fraud and voided the marriage contract. In Van Houten v. Morse, 1894 Massachusetts, she counter-sued for breach of contract. At trial, the judge instructed the jury that, as a matter of law, Anna had been under no obligation to reveal everything in her past to her betrothed, and that mere reticence regarding her Black ancestry was not fraud. They pronounced a verdict in her favor.1
Asa Morse appealed on the grounds that the judge’s instructions were improper. According to him, during their brief courtship Anna had described her parents to him as “both of the best white families in Charleston, South Carolina.” She had shown him photographs of her parents, her sister, and her sister’s children. Once having volunteered information about her parents, she was obligated to tell the whole story—that, although they looked White, they were “really” Black. Her telling only part of the truth was fraudulent, he concluded.
On November 30, 1894, The Supreme Judicial Court of Massachusetts, justices Field, Allen, Morton, and Barker presiding, unanimously overturned the lower court’s decision and dissolved the marriage.2 Their ruling referred to Anna’s family photographs, which had been introduced as evidence. According the justices, the photographs sustained Asa’s claim of fraud precisely because they showed a typical European-looking family with no trace of African appearance.3
* * * * *
Van Houten v. Morse is of interest, not merely because it shows a one-drop rule being fully enforced at every judicial level in 1894 Massachusetts. By then, as previously shown, Northern courts had been exclusively following the one-drop rule for over two decades.4 The case is interesting because both litigants were evidently telling the truth as they saw it. South Carolina, where Anna was from, would not abandon its class-based rule of endogamous color-line determination until the following year.5 And even then, “Pitchfork” Ben Tillman’s Redemptionist South Carolina Constitution of 1895 would adopt a one-eighth blood fraction, not one-drop. Hence, even after the adoption of a constitution that disenfranchised South Carolina’s entire Black endogamous group, Anna’s family would continue to vote as Whites back home in Charleston.6 The case presents the curious spectacle of a genetically European woman who was legally Black in Boston, but whose parents were legally White in Charleston. This essay and the next investigate how such a discrepancy came about.
This essay presents two topics. Three Midwest Cases shows that in the immediate aftermath of the war, the midwestern states were still adjusting to the impact of the new one-drop rule. Three Upper South Cases discusses the pivotal watershed case that established the one-drop rule as the law of the land in court precedent.
Three Midwest Cases
Three cases illustrate the postbellum Midwest’s increasing acceptance of the one-drop rule: People v. Dean, 1866 Michigan, Monroe v. Collins, 1867 (Term) Ohio, and People v. Board of Registration, 1868 Michigan. In the first, one-drop was the basis of the trial court’s verdict, although overturned on appeal. In the second, the legislature attempted to make the one-drop rule statutory, but the state’s highest court ruled the law unconstitutional. In the third, a court ordered a local election board to at least consider allowing someone of slight African appearance to vote if he qualified by blood fraction.
The year after the Civil War ended, William Dean was arrested for having voted in Michigan.7 He had a trace of African ancestry (less than one-sixteenth, according to subsequent testimony). The Michigan State Constitution restricted the franchise to White male citizens, but it did not specify just what was meant by the term “White.” At Dean’s trial, People v. Dean, 1866 Michigan, the state’s Attorney-General A. Williams testified that Michigan law had always interpreted “White” as meaning a person with no trace of African ancestry at all, even if invisible. Williams said that:
In making [jury] lists, the practice throughout the state has ever been to exclude therefrom all persons known to possess any negro or African blood in their veins. … Persons known to be at all affected by possessing negro or African blood, have never been enrolled as a part of the military force of the state…. [I]n taking the census… persons having even one-sixteenth part of negro or African blood in their veins, have always been enumerated as ‘colored persons’ and not as white. … Persons belonging to the white race have not intermarried with those known to have any negro or African blood in their veins. … Persons known to have more or less negro or African blood in their veins, have uniformly been excluded from ordinary social and familiar intercourse with white persons. … [T]he prejudice which has existed in the minds of the white people of this state towards our colored population… has extended to all known to have any African blood in their veins. Hence, our legislation, wherever it has been prejudicial, on account of color, was so framed as to almost always bring within its purview all such persons. And the same is more or less true of the ruling class throughout the United States.8
Attorney-General Williams continued in this fashion for another dozen or so examples, claiming that the one-drop rule of invisible Blackness had always been in effect in Michigan and, indeed, had been followed in every state for many decades.9 Counsel for the defense, Knight & Jennison, Larned & Hebden, and H. M. Cheever, argued that precedents existed, within Michigan and without, for an interpretation that legislatures intended “White” to denote someone with less than fifty percent African ancestry. Dean was convicted and he appealed.
On May 1, 1866, the Supreme Court of Michigan was asked to rule on just how the word “White” in the Constitution was to be interpreted. On July 11, 1866, justices Campbell, Christiancy, Cooley, and Martin ruled that, “persons are white within the meaning of our constitution, in whom white blood so far preponderates that they have less than one-fourth of African blood; and that no other persons of African descent can be so regarded,” thereby overturning Dean’s conviction.10
George W. Collins was a student at Wilberforce University living in Xenia, Ohio, when he attempted to vote in the 1868 presidential election (when Illinois Republican Ulysses Grant defeated New York Democrat Horatio Seymour11). Collins was prevented from voting by elections supervisors who were obeying two recently passed laws that effectively disfranchised anyone with “a visible admixture of African blood.” In Monroe v. Collins, 1867 (Term) Ohio, he sued the board of electors, won, and the board appealed. The Supreme Court of Ohio, justices Welch, Day, White, Brinkerhoff, and Scott presiding, ruled in favor of the college student and declared that the two laws in question were unconstitutional.12
What makes Monroe v. Collins interesting is that it reveals an unusual reversal in the roles of legislature and judiciary in mid-century Ohio. Apparently, the nationwide outcry at the expulsion of 1200-2000 members of the Black endogamous group from their homes in 1829 Cincinnati had caused a minor backlash among Ohio’s more tolerant Whites.13 In 1849, Ohio’s legislature repealed many of the harsher features of the state’s Black Laws.14 Nevertheless, increasing tolerance of the Black endogamous group went hand-in-hand with increasingly harsh demands that the color line be enforced.15 Despite midwestern lawmakers’ repeated attempts to legislate a one-drop rule of invisible Blackness after the 1831 Nat Turner incident,16 the Ohio Supreme Court held to a blood-fraction rule for the next forty years. The state constitution declared that certain citizenship rights, such as voting, were restricted to members of the White endogamous group. The issue in Monroe v. Collins was: numerically speaking, what was the blood fraction to be?
The Ohio legislature had become increasingly responsive to what they perceived as voter demands for a stricter rule of color-line positioning. According to the lawmakers, the courts’ blood-fraction rule of legal Whiteness resulted in many people of “visible African admixture” being allowed to vote, contrary to the sprit of the constitution. To overcome the courts, the legislature passed two laws on April 16 and 17, 1868, titled “An Act to Preserve the Purity of Elections.” Rather than attempting to openly contest the courts, the statutes were couched in terms that simply “regulated” the voting process. In reality, they flatly disfranchised anyone with any visible African traits. As John Little, the student’s attorney put it, the statute ruled that:
Any challenging party may ask other questions than those prescribed, and call any number of witnesses to prove disqualification, but the challenged person is not authorized to ask any question or to call any witnesses to prove qualification. Any sort of evidence is admitted to prove a man is black, but the person challenged is restricted to impossible evidence almost, and, in many cases, quite impossible, to prove he is white. Heavy penalties are visited upon persons for procuring the right to vote, against this law, but no penalty is prescribed for thwarting the right of visible admixture electors. Judges are severely punished for receiving votes not lawful, but no penalty is prescribed for rejecting lawful votes. It is made perjury to procure the right to vote by false swearing, but it is not made perjury to defeat the right by false swearing.17
The state’s supreme court was not persuaded by the law. Their unanimous decision ruled that you were on the White side of the endogamous color line if you had a “preponderance of White blood” (less than half African ancestry). In Ohio, at least with regards to voting rights, the critical blood fraction became one-half. The court wrote that:
What the legislature cannot do directly it cannot do by indirection. If it has no power expressly to deny or take away the right, it has none to define it away, or unreasonably to abridge or impede its enjoyment by laws professing to be merely remedial. … It is not only true that the act is calculated to impair and defeat the exercise of the colored man’s constitutional right to vote, but any candid man must admit that such seems to be its leading, nay its only object. It seems to be a studied and cunningly devised scheme to effect that single object, to the utmost that it could be effected, without expressly and directly violating the constitution of the State. … We therefore hold the act of April 16, 1868, with the clause in the subsequent law referred to, to be unconstitutional and void.18
The third appearance-versus-blood-fraction voting rights case in the postbellum Midwest appeared simultaneously in Michigan. In that same 1868 presidential election, a man recorded as O.S. Wood attempted to vote in Michigan and was rejected. Wood had evidence, in the form of birth records, that he had less than one-fourth Negro blood and so was on the White side of the endogamous color line in accordance with the ruling of People v. Dean, two years before (see above). But the Board of Registration took one look at him and refused even to examine his documents, “holding that he had more than one-fourth negro blood” as was plain by his appearance. Wood sued for a writ of mandamus, which the state supreme court granted in People v. Board of Registration, 1868 Michigan, ordering the board to examine the man’s blood-fraction evidence.19
Three Upper South Cases
Northern attitudes towards the endogamous color line rolled over the South after the war. Those tasked with educating former slaves, and backed up by military occupation, joined civilians eager to profit by commercial reconstruction. One of the Northern attitudes brought South was the one-drop rule. Whites and Blacks alike carried it southwards. Its spread can be traced in the court cases of the time. Three cases reveal the gradual abandonment of both appearance and blood fraction as rules of endogamous group membership in the Reconstruction upper South, and their replacement by the one-drop rule. They are Smith v. Allbright, 1873 Kentucky, McPherson v. Commonwealth, 1877 Virginia, and Scott v. Raubb, 1892 Virginia. In the first two cases, the one-drop rule determined the initial verdict, although the decisions were not upheld on appeal. The third case is the earliest on record anywhere in the South that finally established the one-drop rule was as legal precedent.
At the start of the 1872-73 school year, James Smith tried to enroll his children in the District 34 public school in Rockcastle County, Kentucky. Smith was an accepted member of the White endogamous group, and his children looked completely European, as did their parents and grandparents. The school board refused to admit the children because, according to three of its members, they had heard it told that the Smith children’s maternal grandmother was the offspring of a marriage between a White woman and a man of mixed race. In other words, they alleged that a rumor said that the Smith children had a single great-grandparent with some Negro blood. In Smith v. Allbright, 1873 Kentucky, Smith sued to compel the school board to admit his children. The Garrard Circuit Court ruled in favor of the school board. The case was overturned by the Court of Appeals of Kentucky on January 21, 1873, on the grounds that documentary evidence had shown that the children’s grandmother was considered White in the community, and that this was disputed only by improperly admitted hearsay evidence.20
In examining the case of Smith v. Allbright, it is important to recognize that such children would have been legally White by law, in every former slave state at the time. Reconstruction Virginia held that you were placed on the Black side of the endogamous color line if your Black blood fraction was 1/4 or more. Florida, Georgia, Missouri, Kentucky, Maryland, Mississippi, and North Carolina, relegated to Blackness anyone with 1/8 or more Black blood. South Carolina, Alabama, and Louisiana went only by appearance and socioeconomic class although, as we have seen, appearance also counted even in the blood-fraction states. The Smith children were alleged to have less than 1/8 blood fraction, they were of a middle-class family, they associated solely with Whites, and they looked fully European. As Judge Pryor of the Court of Appeals put it:
The children were produced in court and are shown from their own appearance to be white children. The record shows that they are white children, and there was no reason so far as appears from the facts proven for excluding them from the privileges of this common school.21
Nevertheless, the Kentucky circuit court ruled them to be Black due to the one-drop rule of invisible Blackness. The appeals court remanded the case because hearsay testimony had been improperly admitted, and not because the allegation claimed insufficient blood fraction to make the children statutorily non-White. As far as this study has been able to tell, this was the first upper South case where the initial verdict was based on the one-drop rule (in defiance of a blood-fraction statute, in fact), although it was remanded for retrial on appeal.
In 1877, Virginians George Stewart and Rowena McPherson were charged, tried, and convicted of living in illicit intercourse. At trial, the evidence presented for their intercourse was that they were openly married and living together as a married couple. The illicit nature of their relationship was due to the allegation that George was on the White side of the endogamous color line and Rowena was on the Black side. Rowena’s Black endogamous group membership was allegedly based on her maternal grandmother, a “brown skin woman.” The prosecution agreed that her other three grandparents were on the White side of the endogamous color line. But, since her “brown skin” grandparent was legally Black, then Rowena was one-fourth Black. Hence, according to Virginia’s 1785 blood fraction statute, she was Black as well.22
The couple appealed their conviction to the Supreme Court of Virginia in McPherson v. Commonwealth, 1877. In March of 1877, Justices Moncure, Christian, Staples, and Burks unanimously concluded that Rowena’s “brown skin” grandmother must have had a faint trace of White blood in her. If she had been a person of one hundred percent African genetic admixture, they reasoned, she would have been black-skinned, not brown. Consequently, they ruled that Rowena McPherson was White because, “less than one-fourth of her blood is negro blood. If it be but one drop less, she is not a negro.”23
Prophetic words, “one drop.” As far as anyone has been able to determine, this case was the first time that those words appeared in an appellate decision as a way of validly determining a person’s endogamous group membership.24 The irony is that they decided that a woman of Afro-European genetic admixture was White. Also, according to the record, McPherson v. Commonwealth was the last time that an upper South one-drop verdict would be overturned on appeal in order to uphold a blood-fraction statute.
The one-drop rule became the Upper South’s standard fifteen years later, in Scott v. Raubb, 1892 Virginia. The case is important but complicated. It is important because it is the first upper South court case on record that was argued, decided, and upheld on appeal on the basis of a one-drop rule of invisible Blackness.25 It was the first. The case is complicated because it entangles issues of slavery, manumission, emancipation, blood fraction, intermarriage, and inheritance.26
Jesse Scott was a freeborn member of antebellum Virginia’s Black endogamous group, despite having less than the statutory one-fourth fraction of Negro ancestry. He owned slaves and farmland in Albemarle County. He worked the land with his sons Robert and James (also considered Black despite their less than one-fourth blood fraction). In 1861, as the Civil War was being fought nearby, Jesse assigned one of his female slaves, named Ann Settles, to household duty. Like her owners, Ann also had less than one-fourth “Negro blood.” Young Master James and Ann promptly fell in love.
With his father’s (her owner’s) permission, the slave and the young master set up housekeeping as man and wife. The following year, as Lee was defeating McClellan in the Peninsula, the couple had a European-looking daughter whom they named Sarah E. Scott. Two years later, as Grant was defeating Lee at Petersburg, Ann died, leaving the toddler to be raised by her father. According to later testimony, “the child was retained in his house by James, and recognized as his child and reared to womanhood by him, and subsequently married a man named Raub [sic].”
When Jesse Scott died shortly after the war, his sons Robert and James split the farm between them and continued to work it. When James died intestate in 1888, his surviving brother, Robert, claimed James’s half of the property in order to reunite the estate. Sarah E. Raubb, James’s now-married daughter (Robert Scott’s niece), contested this action, claiming her father’s share of the farm as her own.
On October 19th, 1889, the Circuit Court of Albemarle County ruled in her favor and her uncle appealed the verdict. In order to make sense of the subsequent arguments, you must keep six points in mind. First, judging by the genetic testimony, everyone involved in this case had less than 25 percent African admixture; in other words, they probably all looked European.27 Second, by the blood-fraction statute then in effect, every person involved was legally White. Third, everyone involved in the case self-identified socially as Black. Fourth, Sarah’s mother, Ann, had been a slave before becoming the wife of Sarah’s slave-owning father. Fifth, neither Ann’s mid-war manumission, nor her marriage to James, had ever been formalized by paperwork. Sixth, a Reconstruction act decreed that emancipated slaves and previously manumitted free Blacks who had lived as husband and wife during slavery and continued to do so after the war, were to be considered legally married in every way. The case pivoted on the question of Sarah’s legitimacy—were her parents ever legally married? One had been a slave, the other a slave-owner, both were socially Black but legally White, but were they married?
Sarah argued that, because her mother had been a slave and her father had been a free Black, their marriage had been legitimized by the Reconstruction act, despite the lack of wedding papers. Her Uncle Robert argued that the Reconstruction act did not apply because neither of Sarah’s parents had ever been Black. They were both legally White, so they were never married, Sarah was illegitimate, and she could not inherit. Sarah countered that, although her mother was legally White, she had still been a slave thereby coming under the letter of the Reconstruction act. Her uncle countered that Ann had been a slave only until the instant when his father, old Jesse, had given his blessing to her marriage to James, back in 1861, and that thenceforth she had been de facto free despite the lack of manumission papers, so the Reconstruction act’s slave clause did not apply either.
In 1892, four years after her father’s death, the Supreme Court of Virginia, Justice Lacy presiding, ruled in Sarah’s favor with an argument that was both fair to Sarah and apparently just, but that would echo down the subsequent decades as having opened a door. Justice Lacy ruled that, for the purposes of marriage and inheritance, Virginia law was thenceforth to be interpreted as meaning that anyone with any known Black ancestry would be considered Black, no matter how tiny their blood fraction was. Hence, Sarah’s parents were both Black, thus they came under the Reconstruction act, and so Sarah was legitimate and could inherit. For the first time in history, a Southerner (Sarah Raubb) was ruled to fall on the Black side of the endogamous color line, despite appearance, despite blood fraction, despite socioeconomic class, solely because of invisible African ancestry. This watershed event happened in 1892. It happened at the request of the individual herself.
* * * * *
This essay presented three postbellum court cases showing that midwestern states in the immediate postbellum period were still adjusting to the impact of the new one-drop rule, followed by three southern cases that saw the establishment of the one-drop rule as the court-precedent law of the land.
1 162 Mass. 414.
2 The judges also gave other reasons for their decision. Anna had also neglected to tell her new husband that her previous husband had charged her with, “being a woman of violent and ungovernable temper, and of jealous, revengeful, and vicious disposition, and with having, within two weeks after their marriage, commenced a systematic course of violent, abusive, and cruel conduct towards him, which finally broke down his health, and compelled him to leave her; [that she had been charged] with assaulting him with a carving-knife, and with using profane epithets in regard to himself, his relatives and friends, and alleged numerous specific acts of violence and passion.” Nevertheless, what interests this study is only Anna’s invisible Blackness.
3 Judging by the evidence presented in court, Anna’s parents had less African genetic admixture than, say, Carol Channing. See Carol Channing, Just Lucky I Guess: A Memoir of Sorts (New York, 2002).
4 See the figure “Number of Cases per Decade by Region” under the topic “Graphs and Charts” in the essay, The Invention of the One-Drop Rule in the 1830s North.
5 For the legal precedents that established a class-based color line in South Carolina, see the topic “The Rule of Socioeconomic Class” in the essay, Barbadian South Carolina: A Class-Based Color Line, especially State v. Cantey 1835 South Carolina (2 Hill 614).
6 See the topic “South Carolina” in the essay, The One-Drop Rule in the Postbellum Lower South.
7 14 Mich. 406.
9 Projecting current attitudes into the past was and still is common in court cases. Apparently, it was not enough to argue that a precedent-setting innovation was just or beneficial; one was also expected to argue that it had always been in effect, and so it was really not an innovation at all.
10 Justice Martin dissented, arguing that anyone with less than one-half African ancestry was legally White. This case is exhaustively analyzed in Michael A. Elliott, “Telling the Difference: Nineteenth-Century Legal Narratives of Racial Taxonomy,” Law and Social Inquiry, (1999), 611-36, 617-26, who concludes that Chief Justice James V. Campbell personally advocated neither appearance nor blood fraction as criteria of endogamous group determination. According to Elliott, Campbell finally opted for a one-fourth blood-fraction rule only because it approximated the underlying reality of “race” (as Campbell perceived it) more closely than the appearance-based alternative.
11 Seymour had become famous seven years earlier for his impulsive public reaction upon hearing news of the South’s secession: “Good riddance!”
12 17 Ohio St. 665.
13 For a summary of the 1829 Cincinnati incident, see under the topic “The Origins of African-American Ethnicity” in the essay, The Color Line Created African-American Ethnicity in the North.
14 For a reference to the 1849 repeal of the Black Codes, see V. Jacque Voegeli, Free But Not Equal: The Midwest and the Negro During the Civil War (Chicago, 1967), 1.
15 Many today imagine that “racial” tolerance (in the sense of granting civil rights to the darkest of Afro-Americans) must always go hand-in-hand with a softening of the color line (in the sense of accepting intermarriage with the lighter ones). In fact, the opposite has often been the case, especially before the twentieth century.
16 See, for example, Williams v. School District, 1834 Ohio, Catterall (1968), 5:4, discussed under topic “Court Cases” in the essay, The Invention of the One-Drop Rule in the 1830s North.
17 17 Ohio St. 665.
19 17 Mich. 427.
20 6 Ky. Op. 376.
22 69 Va. 939. The prosecution in this cased used the same nonsensical recursive logic expressed by Justice Ruffin in State v. Whitmell Dempsey 1849 North Carolina (31 N.C. 384) and ridiculed by Justice Parson in Thurman v. State 1850 Alabama (18 Ala. 276), both discussed under the topic “Physical Appearance, Blood Fraction, Association” in the essay, How the Law Decided if You Were Black or White: The Early 1800s.
23 69 Va. 939.
24 Recall that the words “one drop,” in the sense of Black ancestry, first appeared in an 1829 Colonization Society publication, referring to a visible mark that infallibly betrays Black blood (see under the topic “Other Voices” in the essay, Why Did Northerners Invent a One-Drop Rule? The words first appeared in a court decision, as object of ridicule, in Thurman v. State 1850 Alabama (18 Ala. 276).
25 The first in the North may have been the public school segregation case Draper v. Cambridge, 1863 Indiana, 20 Ind. 268.
26 88 Va. 721.
27 At least as White as Dr. Shriver. See the photo in the topic “Admixture Scatter Diagrams” in the essay, Afro-European Genetic Admixture in the United States.
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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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