Essays on the Color Line and the One-Drop Rule
by Frank W Sweet
October 15, 2004
n November of 1825, dark-complexioned biracial Alabamian Girard Hansford took Maria George as his bride “in accordance with the laws of Alabama,” even though she was some twenty years his junior and much fairer of skin.1 Her mother was White and her father was a European-looking member of the Colored endogamous group, so Maria could likely have passed through the color line had she chosen to do so. Come to think of it, perhaps she did. The court records refer to her as a White woman. Two decades later, their marriage had collapsed and, in Hansford v. Hansford, 1846 Alabama, Girard asked the court of Montgomery Alabama to grant him a divorce on the grounds of his wife’s adultery. Adultery was proven to the court’s satisfaction, but Girard felt the need to explain why he wanted to cast off his wife. He had repeatedly forgiven young Maria’s indiscretions because he knew of the “temptations which were held out to one of her cast [sic] in society.” But he had drawn the line when she swore that her most recent child (a blonde, blue-eyed toddler) was by a White man and she vowed, “that all the ballance [sic] of her children should be white.” Even worse, to add gender insult to marital injury, his wife’s lover insisted on supporting and seeking custody of his White child by Maria.2 The court ruled in Girard’s favor and granted him a divorce.
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This essay introduces two out of the four societies, within what became the United States, whose color-line customs differed from the mainstream—Alabama and Louisiana. The other two were South Carolina and Florida. Alabama and Louisiana had two mildly endogamous color lines separating three groups: White, Colored, and Black. Both regions could trace their color line traditions to French colonies in general and to Haiti in particular. They are presented in three topics: English-Speaking Alabama describes an English-speaking three-caste society. French-speaking Louisiana depicts the better known Colored Creole society. An Echo of Haiti summarizes the origins of these cultures.
The Hansford v. Hansford 1846 divorce case reveals four aspects of Anglo Alabama in the 1820-1840 period. First, marriage across the White-to-Colored color line was neither illegal nor uncommon. Second, Alabama had the distinguishing features of a three-caste system with two endogamous color lines. Third, the wives in most exogamous marriages, then as now, were members of the White group.3 Fourth, it was legally (and, one presumes, socially, based upon frequency of occurrence) accepted at that place and time for a White child to have a parent or grandparent who was a member of the Colored or Black endogamous groups. Consider each of these aspects in detail.
Marriage across the White-Colored color line was neither illegal nor uncommon. The Alabama codes of both 1805 and 1833 designated officials to “solemnize the rites of matrimony between any free persons” not within the prohibitions of consanguinity and who presented a license, with no mention of “race” or color.4 Two customary and mildly endogamous color lines existed, but neither of them was legally enforced.5 Judging from marriage and census records, the fraction of married Colored or Black Alabamians who had a White spouse was 17.8 percent. This is comparable to today’s Hispanic-Anglo intermarriage rate. It is over ten times higher than the national Black-White intermarriage rate during Jim Crow. It is five times higher than today’s Black-White intermarriage rate.6
It may seem plausible that such acceptance of intermarriage was found only among Alabamians of French or Spanish descent, who were prevalent at the time along Alabama’s Gulf Coast. But this was not the case. Intermarriage was accepted among Anglo-Alabamians as well. The above numbers exclude Mobile and Baldwin counties, where 46 percent of Alabama’s free Black and Colored resided, and which were of Latin culture. Instead, the interracial marriages counted above were evenly distributed throughout the south-central wiregrass region, the northwest mountain and valley region, the northeastern Appalachian mountain range, and in the city of Montgomery—all English-speaking areas.7 In addition, the birth records of both males and females of the White group involved in exogamous marriages show that the overwhelming majority were native Alabamians, 24 percent came from South Carolina, and only 1.5 percent were born in other countries.8
Antebellum Alabama had the distinguishing features of a three-caste system. Census records reveal that marriage across the Black-to-Colored endogamous color line barrier was 6.4 percent, while exogamy across the Colored-to-White color line was 16.6 percent, and between the Black and White groups it was a negligible 0.9 percent.9 This leads to two conclusions. First, the endogamous color line barrier between free Blacks and free Coloreds was over twice as strong, in practice, as that between the Coloreds and Whites. This may seem startling, but, as shown also in Louisiana, it was not uncommon in three-caste societies. Alabama laws regarding intermarriage, association, civil rights, and public education of children clearly distinguished between the Black and Colored endogamous groups.10
The second conclusion is that the Colored endogamous group enjoyed intermediate social status between Whites and Blacks. Specifically, as seen in the above intermarriage statistics, Blacks and Whites alike considered members of the Colored endogamous group to be more suitable marriage partners than members of the opposite unmixed group. This may seem unexceptional at first glance, but as explained elsewhere, many three-caste societies relegate the hybrid group to a lower status that either unmixed group (Metis, Anglo-Indians, Ugandans) and others raise the hybrid group to a higher status than either unmixed group (Haiti, Mexico). The positioning of the hybrid group to a status rank between those of both unmixed groups is characteristic of French, British, and Dutch New World colonies. Since Alabama was sandwiched between a Barbadian English culture with a uniquely permeable and dark-shifted single color-line (South Carolina) on the one side, and a French culture with two color lines separating three endogamous groups (Louisiana) on the other, the custom probably seeped inland from the French-speaking coast to be partly absorbed by people of Anglo-Saxon customs.
A question arises whether the census and marriage records that distinguished between the Black and Colored groups were accurate or even consistent. The U.S. census is often considered unreliable in this regard, since it is impossible to know exactly what was going through the census-taker’s mind when classifying someone. Unfortunately, there is no good answer to this question. The fundamental problem is that there is no objective way to predict the endogamous group to which a person will be assigned by his neighbors. Endogamous group membership is socially determined, after all. Genetic admixture mapping can measure how much of an individual’s DNA has African versus European origin. But appearance varies widely within the intermediate admixture ranges, and there is significant U.S. endogamous group overlap in the Afro-European genetic admixture range below 25 percent African (above 75 percent European).
Nevertheless, absolute census accuracy or consistency per se is not this essay’s concern. The central question is whether the census-taker’s perception reflected that of the surrounding culture. Census data seems to match court cases in numbers of endogamous groups (there were three), in numbers of endogamous intermarriage barriers (there were two), and in intermarriage patterns (the White-to-Colored barrier was weakest, the Colored-to-Black barrier was stronger, and the White-to-Black barrier was strongest). Hence, this study sees no reason to doubt that census-takers, by and large, were typical members of the middle-class White society in which they lived.
The wives in most exogamous marriages, then as now, were members of the White group. Fifty-one percent of the openly acknowledged, stable exogamous alliances in Anglo Alabama involved women of the White endogamous group and men of the Colored endogamous group. Counting clandestine or short-term alliances resulting in publicly acknowledged children increases the number to about 65 percent involving a White female.11 This ratio is not unexpected. John Hope Franklin wrote “the practice of white women mixing with Negro men was fairly widespread during the colonial period and had not entirely ceased by 1865.”12 Incidentally, the sexual asymmetry ratio towards a 65-35 preponderance of White females in open relationships with Black or Colored males has remained remarkably stable for the United States as a whole since about 1850. On the other hand, DNA admixture mapping reveals that, where the continent of origin of an American’s patrilineal SR-Y markers differs from his matrilineal mtDNA, a slight majority have the opposite asymmetry (European male, African female).13 Why does genetic admixture mapping tell a different history than court and census records? The most likely possibility is that interbreeding of male European masters with female African slaves was hidden from both the census and the courts.
It was legally (and, one presumes, socially, based upon frequency of occurrence) accepted at that place and time for a White child to have a parent or grandparent who was a member of the Colored or Black endogamous groups. For example, a Russell County freedom paper filed in 1844 by a man on behalf of his full sister deposed that he was White and their mother was White, but that their father was Colored and his sister was “a brown woman” married to a man of the Colored endogamous group and the mother of several Colored children. To avoid misunderstanding, the man attached affidavits from eleven respectable citizens, including two justices of the peace, a state legislator, and a U.S. senator that he himself was White.14
According to Gary Mills, who exhaustively traced the life of literally every free Black in antebellum Anglo-Alabama, “each man woman and child—5,614 in all—… from birth to death.”15:
Numerous free mulattoes were permitted to cross the color line into [W]hite society in spite of obvious Negro physical features and a well-remembered ancestry that they made no attempt to shake. As did most southern states, Alabama defined Negroes or mulattoes [with a rule of 1/8 blood fraction]… In actual practice, both the Alabama judiciary and popular custom were far less discriminatory.;16
As the cotton-growing industry spread westwards towards the Mississippi River, Alabama, like Florida and Louisiana, received an influx of English-speaking immigrants from Virginia and North Carolina. And, as in Florida and Louisiana, the immigrants achieved political power and worked to transform their new homeland into an image of the old. They passed laws outlawing intermarriage and decreed a single, legally enforced, endogamous color line. The new laws ignored Alabama’s traditional Black-to-Colored intermarriage barrier. They attempted to legislate a joining of the Black and Colored communities into a single endogamous group, as was common in states to the north. The Alabama code of 1833 included a section decreeing that, “All negroes, mulattoes, Indians and all persons of mixed blood, descended from negro or Indian ancestors, to the third generation inclusive, though one ancestor of each generation may have been a white person, whether bond or free; shall be taken, and deemed incapable in law, to be witnesses in any case whatever, except for and against each other.”17 The law’s strict wording suggests that the legislators were aware of the judicial resistance of Franco-American Louisiana judges to Anglo-American legislators, discussed momentarily. They did not want judges to defy lawmakers in Alabama, they way they were defying lawmakers in Louisiana. The Alabama law was designed to offer no wiggle-room to a recalcitrant judge. Its wording could not have been clearer in defining a single non-White endogamous group, eliminating the ancient distinction between Colored and Black. And yet, the courts still diverged.
Early in 1835, Ivey (a member of the White endogamous group) sued Hardy (a member of Alabama’s Colored endogamous group) for $20. Ivey testified under oath that Hardy owed him the money, then objected when Hardy was called to the stand to give his side of the story. The local justice of the peace ruled that Hardy could not testify in his own defense. The law was clear. Hardy was member of the Colored group, “descended from Negro… to the third generation inclusive.” And so, he was “incapable in law, to be witness in any case whatever, except for [cases involving only non-Whites].” Unable to present evidence, Hardy was found liable and ordered to pay Ivey. He appealed to the District Court instead. The district court reluctantly upheld the adverse ruling, and so Hardy appealed to the Alabama Supreme Court.
In Ivey v. Hardy, June 1835, Justice Hitchcock of the Alabama Supreme Court reversed both lower courts and remanded the case back for trial with orders that Hardy be allowed to testify. “We do not think these statutes are to be thus construed,” he wrote. “To give the plaintiff the benefit of this statute, and exclude the defendant from it, under the prohibition of the other, would open a door to very great frauds, and would be subversive of every principle of justice.”18 With wiggle-room or without it, judges raised in three-caste societies with two color lines continued to defy legislatures determined to impose a single color line separating two endogamous groups.
Incidentally, not only did the Montgomery court award Girard Hansford a divorce from his young White wife (who, you may recall, had vowed that all her future children would be the White offspring of her lovers), but it also awarded him sole custody of their children. This stunned Maria’s latest White lover who had wanted to adopt and support his White child. The White lover and Maria thereupon launched a series of lawsuits to gain custody of the child.
In their final appeal, the ex-wife and her lover adopted a buckshot legal strategy. They argued that: (1) If Maria were White, then her marriage to Colored Girard had been void all along, and the lower court could neither grant divorce nor assign custody. (2) On the other hand, if Maria were not White, then by the rule of onus probandi regarding slave status, she must be presumed to have been a slave, and so could not legally contract marriage in any case, and so the original marriage was void, etc. Furthermore, (3) even if the marriage had been valid, then the divorce was still invalid because it had allowed the testimony of a Colored witness (either Maria or Girard) in a case involving a White person (the child). Finally, (4) even if the testimony and the divorce had been valid, then it was still in every child’s best interest to stay with its mother. Appellate justice J. Goldthwaite tersely dismissed the first three arguments and ruled against the unfaithful wife on the fourth.19
As discussed elsewhere, Gobu v. Gobu, 1802 North Carolina, overturned six centuries of Spanish law under the 1265 Siete Partidas of King Alfonso X by placing the burden of proof upon the slave in a case for freedom, if the slave were Black.20 Eight years later, a Louisiana case decided a similar situation. In Adelle v. Beauregard, 1810 Louisiana, a Colored woman sued her master and claimed her freedom under the ancient Spanish law that put the burden of proof upon the slave owner. Mr. Paillette, the owner’s lawyer, cited Anglo-Saxon common law that the burden of proof lay on the plaintiff in a civil suit. The Superior Court of the Territory of New Orleans, First District quoted Gobu v. Gobu to rule that:
Although it is in general correct, to require the plaintiff to produce his proof before the defendant can be called upon for his, it is otherwise, when the question is slavery or freedom. The law [Siete Partidas] cited by the plaintiff is certainly applicable to the present case. We do not say that it would be so, if the plaintiff were a negro, who perhaps would be required to establish his right by such evidence, as would destroy the force of the presumption arising from colour….
Nevertheless, the court placed the burden of proof on the alleged owner anyway and Adelle won her freedom. The court ruled that case law only said that Negroes were presumed to be slaves, and Adelle was “Colored” not “Negro.”21 State v. Cecil, 1812 Louisiana was resolved similarly. A colored woman’s testimony was objected to in a criminal case. Recent legislation had forbidden Blacks to testify in cases involving Whites because they were presumed to be slaves. Citing Adelle v. Beauregard, the court held that, while Blacks are presumed slaves, “Coloured persons are presumed free.”22
Such judicial resistance to legislative intent continued until the 1850s, when Louisiana courts finally began to treat all but the wealthiest and most powerful Colored Creoles as free Blacks.23 For contrast, consider that a North Carolina court in State v. Barrow, 1819 ruled that a woman with one Black great-grandparent and seven White ones was Black and so could not testify in a case involving the White father of her own children.24
Late in 1828, in the Eastern District of Louisiana, Joseph Pilie went shopping for domestic help. Commercial slave trader, Joseph Lalande Ferriere told Pilie that he had just the thing—a female slave who knew the crafts of washing and ironing. Best of all, Lalande told his customer, the woman was also a skilled cook. Pilie paid cash and took the slave home with him. It did not take long for Joseph and his other domestic servants to discover that the new slave did a wretched job of washing and ironing, and could not cook at all. Her only skill in fact, seemed to be in running away, a talent that she demonstrated several times before the year was out.
Now, one of the innovations introduced to Louisiana’s Spanish law by the Napoleonic Code, which was incorporated into the Louisiana Civil Code of 1808, had been the doctrine of redhibition—the original lemon law.25 In Louisiana, then as now, if a product is so defective that the buyer would not have purchased it had its defects been known, the buyer can demand that the seller make it right or refund an appropriate fraction of the sale price.26 In Pilie v. Lalande, 1829 Louisiana, the buyer filed a redhibitory suit in district court and won a $170 partial refund. In April of 1829, Lalande Ferriere appealed the verdict on the grounds that one of the witnesses to the slave’s technical incompetence was a slave herself, and so should not have been allowed to testify in a case involving members of the White endogamous group. Contesting the appeal, Pilie hardened his own stance, demanding that the sale be rescinded and his entire purchase price refunded.27
Justice Porter agreed that, “the slave was sold as a washer, ironer and cook. The evidence shews that she possessed these qualities very defectively, if at all.” Regarding the witness, the court ruled that, “The bill of exceptions does not state whether she was a negro, or mulatto. If the latter, the presumption was in favor of her being free….” For his part, the unhappy Pilie was sent home with his defective slave and only the $170 partial refund.
An Echo of Haiti
France began colonizing Louisiana in 1699, and New Orleans was founded in 1718.28 As in almost every other slave-based New World colony, a buffer class of yeomen became necessary to prevent servile insurrection. As in Haiti and Jamaica—but in contrast to Virginia—Louisiana landowners bred their own yeoman class. At the very time that Governor Gooch was ripping Afro-European Virginia into two endogamous groups, article IX of France’s Code Noir explicitly encouraged intermarriage between European colonists and their African slaves for just this purpose.29
French “racial” attitudes differed slightly from the Spanish. Like the Spanish, French New World planters lacked large labor-class populations of European descent. But, unlike the Spanish, they also lacked a long-standing tradition of intermarriage. So, instead of blending, as did the Spanish, they evolved a biracial buffer class, a distinctly separate group who considered themselves, and were considered by their society, to be of higher rank than Black slaves, but not fully members of the White endogamous group. The individuals of each biracial cohort who inherited unmistakably European appearance were accepted into White society. The remainder married among themselves.
Most Louisianans were involved with slavery one way or another. Wage labor was rare before the Industrial Revolution. Most unskilled and semiskilled workers, especially in agriculture, were acquired by apprenticeship, indenture, hereditary peasantry, or slavery.30 So, like other French colonies, Louisianans soon sorted themselves into a three-layer society: White European rulers, Black slaves, and a large in-between group of Colored yeoman Creoles. By the mid 1700’s, the two free layers were solidly in place as endogamous groups. Most marriages were within each group. Few individuals passed between White and Creole groups. Few slaves were of European appearance. Most African-looking people were slaves.
Then, in 1762, the Seven Years’ War (called the “French and Indian War,” in North America) changed Louisiana unexpectedly. After conquering Canada, the British expelled French-speaking Acadians from Nova Scotia. These homeless refugees sought sanctuary in the French colony at the mouth of the Mississippi. Meanwhile, the treaty ending the Seven Years’ War ceded Louisiana to Spain. So, the colony, formerly a satellite of Haiti, suddenly became a satellite of Cuba. This meant that Louisiana received a strong influx of French Acadians (Cajuns) at the very time that Spain was trying to impose its own laws and customs.31 The long-term result of the culture clash was a land where many still speak French, but whose folk dances, festivals, and food reflect Spain. Mardi Gras is Spain’s Carne Vale (Carnaval) and jambalaya is simply New World paella. But the immediate result of the Spanish takeover was the freeing of thousands of slaves and the rapid formation of a large free Black population.
The freeing of large numbers of slaves resulted from Spanish laws, which differed from the French. At this time, Spanish slavery resembled French and British slavery in two ways. Like them (but unlike slavery in medieval Europe or in eighteenth century west equatorial Africa), it was lifelong and hereditary through the mother.32 But it differed in one important way. Over the prior three centuries, Spanish law—Las siete partidas and the Recopilación de leyes de los reinos de las Indias—had been influenced by the powerful Catholic Church to treat slavery as a form of voluntary labor contract.33 Spain had invented the doctrine of coartacion.
Coartacion meant that any slave who acquired five percent of his own value—typically by loan—had the right to demand his freedom, along with the obligation to gradually pay his former owner the remaining ninety-five percent.34 The owner’s only recourse was to dispute the person’s market value by hiring an appraiser to testify against the appraiser hired by the slave. From 1762 to 1801, one Louisiana case is recorded where a court ruled against the slave—insufficient funds. Thousands of cases went the other way. In just one parish, between 1771 and 1803, 477 slaves thus freed themselves. Throughout the colony, these cases add up to more compulsory, court-ordered coartacion manumissions than all other manumissions combined (voluntary, willed, conditional).35 Consequently, the freed Black population of Louisiana grew seven-fold from 165 in 1769 to 1,175 by 1785.36
The exploding number of people of African ancestry freed by coartacion created a three-caste system apart from the slaves: a few White Europeans, a large majority of biracial Creoles, and a new population of Black former slaves. It superficially resembled Haiti or Jamaica. But, in contrast to the West Indies, Louisiana’s two color lines were relatively permeable. As Black descendants of former slaves ascended the economic ladder they were accepted into the Colored Creole community. Similarly, impoverished planters fleeing the bloody chaos of Haiti’s revolution (1791-1806) descended into Louisiana’s middle group. Within their own group, the Colored Creoles developed a social system resembling that of pre-Reformation Europe: a social hierarchy based on religion, breeding, and wealth, with little significance given to shades of skin color among themselves. Nevertheless, many were powerful slave owners whose customs forbade intermarriage with free Blacks (former slaves). They founded the earliest “blue-vein” societies for Afro-Europeans of preponderantly European appearance.
According to Eric Foner, “The wealth, social standing, education, and unique history of this community set it apart… from most other free persons of color.” The Colored Creoles identified more with European than with American customs. Most spoke only French and many enrolled their children in private academies in Brussels or Paris. As aristocrats, they were acutely self-conscious of a military tradition dating back to when they had helped Andrew Jackson win the 1814 Battle of New Orleans.37 As of 1830, the U.S. census showed that 967 of them owned 4,382 slaves, about one Louisiana slave in twenty-five.38 Seen another way, of the 1,834 Colored Creole and free Black heads of households who lived in 1839 New Orleans, 752 of them (41 percent) owned at least one slave.39
But after the 1803 Louisiana Purchase, English-speaking Americans with English-speaking slaves flooded into Louisiana. Although coartacion was repealed at once and slaves were forbidden to read, the rights of members of Louisiana’s native free Black and Colored Creole endogamous groups were not curtailed overnight. Instead, the next half-century saw a loss of free Black’ rights and a slower but steady erosion of the Colored Creoles’ interracial way of life. At the heart of the change lay the distinction between “free Black” and “Colored Creole.” To French-speaking Louisianans, the color line between the Black and Colored groups was obvious. Hence, the Colored Creoles did not initially fear anti-Black laws because they did not consider themselves to be Black. But to English-speaking newcomers, the only color line was between members of the White endogamous group and everyone else. To them, light Colored Creoles were also free Blacks.
Two other appealed court cases in Louisiana between 1820 and 1840 are of interest. In a suit for slander, Cauchoix v. Dupuy, 1831, the defendant had publicly stated that Cauchoix had African ancestry. Dupuy’s defense was that his statement had been accurate and that Cauchoix did, in fact, descend partially from Negro stock. For his part, the plaintiff presented family records to show that all of his ancestors immigrated from Europe within the past century.40 The case reveals that living under a three-caste system did not imply “racial” tolerance. To accuse someone of having a trace of African ancestry was considered an insult to a member of the White endogamous group. Furthermore, judging by intermarriage rates across the two color lines, to accuse a Colored Creole of being Black would also have been an insult. Also, it is noteworthy that Cauchoix’s ancestors’ having immigrated from Europe was considered evidence of their suitability for membership in the White endogamous group. This would change a century later during the Jim Crow era. After the triumph of the one-drop rule, merely being of one hundred percent European ancestry would not mandate White group membership—there may have been “racial” mixing in Europe.41
One final Louisiana court case of this period is of interest. Bore v. Bush, 1827 Louisiana, was an appeal by a Colored Creole of his arrest and conviction for disrespect towards a White person.42 It seems that one of the laws passed by incoming Anglo-American legislators in the decades after the Louisiana purchase, in an effort to transform Louisiana from a three-caste to a two-caste society, made it a crime for any “free person of color” to be disrespectful towards a member of the White endogamous group.43 The law used those very words, “free person of color,” in order specifically to target the arrogant (in Anglo-American eyes) Creole Coloreds, who called themselves gens de couleur libre. The law further stated that any free Black accused of such disrespect could be summarily tried and convicted by a local justice of the peace, and had no right to a jury trial. Bore, a Colored Creole, underwent such an experience. He sued for false imprisonment on the grounds of having been denied a trial by jury. Justice Porter agreed with the prosecution that, “Free persons of colour, are certainly bound to treat the citizens of the state with respect; and if they do not, they are subject to fine and imprisonment.” And he also agreed that free Blacks did not have the right to a jury trial in such cases. But, he pointed out, Bore was Colored, not Black, and “Free persons of colour are entitled to a trial by jury, and cannot be tried for offenses by a justice of the peace.” Justice Porter went on to explain that, since the defendant was not Black, the justice of the peace had only the right to turn Bore over to district court for trial by jury on the disrespect charge. He did not have the authority to try, convict, and imprison a Colored man on his own. The original conviction was overturned and the local magistrate ordered to pay damages for having acted outside of his jurisdiction.
All of these cases confirmed the trend observed earlier in Louisiana (Adelle v. Beauregard 1810 and State v. Cecil 1812) and in Alabama (Ivey v. Hardy 1835). For the first few decades after Anglo-American legislators created laws designed to impose the U.S. single-color line system, local courts struggled to exercise judicial resistance. Even State Supreme Court justices evaded such legislation in order to preserve the three-caste system associated with French society. The single Mississippi case of the period also supported a three-caste system, but through a maroon community. In Mitchell v. Sherman, 1835 Mississippi, a person named Locklear, a member of the Lumbee maroon community of Robeson County North Carolina (called the “Croatans” before 1953), was ruled to be of the White group, despite the Lumbees’ known African admixture.44
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This essay described two out of the four U.S. regions whose color-line customs differed from the mainstream. These were Alabama and Louisiana. Both cultures had two mildly endogamous color lines separating three groups: White, Colored, and Black. Both could trace their color line traditions to French colonies in general and to Haiti in particular.
1 10 Ala. 561.
2 Chancery Court Record 1847, 639-57.
3 One might argue that Maria was not fully accepted as a member of the White endogamous group. The record is ambiguous. She appears as Colored in early documents and White in later ones. But her parents were married and her mother was definitely a member of the White endogamous group, so this possibility simply pushes the White-Colored intermarriage back one generation. However you look at it, the Hansford case involves a marriage between a Colored husband and a White wife.
4 Harry Toulmin, A Digest of the Laws of the State of Alabama, Containing the Statutes and Resolutions in Force at the End of the General Assembly in January, 1823 (Cahawba, Ala. 1823), 576-9; and John G. Aikin, A Digest of the Laws of the State of Alabama, Containing the Statutes of Public and General Nature, in Force at the Close of the Session of the General Assembly, in January, 1833 (Philadelphia, 1833), 305; both as quoted in Gary B. Mills, “Miscegenation and the Free Negro in Antebellum ‘Anglo’ Alabama: A Reexamination of Southern Race Relations,” Jounal of American History 68, no. 1 (1981): 16-34, 18.
5 Much later, Alabama’s 1852 code attempted to discourage people from intermarrying within the state. According to article 1946, “marriage may be solemnized between free white persons, or between free persons of color, by any licensed minister.” And article 1956 says, “Any person solemnizing the rites of matrimony… when one of the parties is a negro and the other a white person is guilty of a misdemeanor.” But even this restriction was not applied to colored persons (as opposed to “Negroes”), did not apply to marriages performed out of state, and criminalized only the minister’s performing the ceremony. It did not declare an interracial marriage void, nor did it impose any penalty on the bride and groom. See John J. Ormand, Arthur P. Bagby, and George Goldthwaite, The Code of Alabama (Montgomery, 1852), 376-77 as quoted in Gary B. Mills, “Miscegenation and the Free Negro in Antebellum ‘Anglo’ Alabama: A Reexamination of Southern Race Relations,” Jounal of American History 68, no. 1 (1981): 16-34, 18.
6 Mills (1981), 18-19.
7 Ibid., 19.
8 Ibid., 24-25.
9 Ibid., 20-21.
10 For a brief survey of Alabama laws regarding Colored Creoles, see Virginia Meacham Gould, “The Free Creoles of Color of the Antebellum Gulf Ports of Mobile and Pensacola: A Struggle for the Middle Ground,” in Creoles of Color of the Gulf South, ed. James H. Dormon (Knoxville: University of Tennessee, 1996), 44.
11 Mills (1981), 22.
12 John Hope Franklin, From Slavery to Freedom (New York: A. A. Knopf, 1947), 215-17.
13 E.J. Parra and others, “Ancestral Proportions and Admixture Dynamics in Geographically Defined African Americans Living in South Carolina,” American Journal of Physical Anthropology 114 (2001): 18-29.
14 As quoted in Mills (1981), 28.
15 Ibid., 17.
16 Ibid., 29.
17 2 Port. 548.
19 10 Ala. 561. See Martha Elizabeth Hodes, White Women, Black Men: Illicit Sex in the Nineteenth-Century South (New Haven: Yale University, 1997) for the most useful study of marriages across the color line before the decline of Jim Crow. Hodes’s study is more valuable than its subtitle suggests because, in fact, it starts in the mid seventeenth century and ends in the twentieth. Interestingly, in describing the Hansford case on page 107, Hodes writes, “Perhaps the judges wished to explain away the marriage of a white woman and a black man—and to erase racial ambiguity—by hastily agreeing that the woman was not really white at all.” This is an interesting interpretation because the record shows that: (1) the judges explicitly reaffirmed the validity of the marriage since it was perfectly legal (it was her lawyer who had suggested otherwise), (2) the judges explicitly recorded her as White (it was her lawyer who had suggested otherwise), and (3) Girard was definitely not Black, he was legally and socially Colored, a vital distinction at that time and place.
20 1 N.C. 188.
21 1 Mart o.s. 183.
22 2 Mart. o.s. 208.
23 For a summary of this judicio-legislative struggle, see Virginia Meacham Gould, “The Free Creoles of Color of the Antebellum Gulf Ports of Mobile and Pensacola: A Struggle for the Middle Ground,” in Creoles of Color of the Gulf South, ed. James H. Dormon (Knoxville: University of Tennessee, 1996), 28-50, 44.
24 7 N.C. 121.
25 For brief accounts of Spanish versus French influences on Louisiana’s 1808 Civil Code, see Ferdinand Stone, “The Law with a Difference and How it Came About,” in The Past as Prelude: New Orleans, 1718-1968, ed. Hodding Carter (New Orleans: Tulane University, 1968), 42-70; William Wirt Howe, “Roman and Civil Law in America,” Harvard Law Review 16 (1903): 142-58; Rodolfo Batiza, “The Influence of Spanish Law in Louisiana,” Tulane Law Review 23 (1958): 29-34; Rodolfo Batiza, “The Louisiana Civil Code of 1808: Its Actual Sources and Present Relevance,” Tulane Law Review 46 (1971): 4-31; and A. N. Yiannopoulos, “The Early Sources of Louisiana Law: Critical Appraisal of a Controversy,” in An Uncommon Experience: Law and Judicial Institutions in Louisiana, 1803-2003, ed. Judith Kelleher Schafer and Warren M. Billings (Lafayette: University of Southwestern Louisiana, 1997), 93-108.
26 That the law is actively applied today is explained in the Louisiana Department of Justice web site at URL: http://www.ag.state.la.us/publications/redhibiton.htm .
27 7 Mart. n.s. 648.
28 University of Chicago, ed. The New Encyclopaedia Britannica, 15 ed. (Chicago: William Benton, 1974), 11:125.
29 Werner Sollors, Neither Black Nor White Yet Both (Cambridge: Harvard university, 1997), 396.
30 Peter Kolchin, American Slavery 1619-1877 (New York: Hill and Wang, 1993), 4-5.
31 R. Ernest Dupuy and Trevor N. Dupuy, The Harper Encyclopedia of Military History, 4 ed. (New York: Harper Collins, 1993), 741.
32 A. Norman Klein, “West African Unfree Labor Before and After the Rise of the Atlantic Slave Trade,” in Slavery in the New World: A Reader in Comparative History, ed. Laura Foner and Eugene D. Genovese (Englewood Cliffs NJ: Prentice-Hall, 1969), 87-95.
33 Frank Tannenbaum, Slave and Citizen, the Negro in the Americas (Boston: Beacon Press, 1946), 43-58.
34 Ibid., 54.
35 Kimberly S. Hanger, “Origins of New Orleans Free Creoles of Color,” in Creoles of Color of the Gulf South, ed. James H. Dormon (Knoxville: University of Tennessee, 1996), 1-27. This is not meant to imply that such a high manumission rate was typical of anywhere other than the Gulf coast and Florida.
36 Laura Foner, “Free People of Color in Louisiana and St. Domingue: A Comparative Portrait of Two Three-Caste Societies,” Journal of Social History 3, no. 4 (1970): 406-30.
37 Eric Foner, Reconstruction: America’s Unfinished Revolution (New York: Harper & Row, 1988), 47.
38 Joel Williamson, New People: Miscegenation and Mulattoes in the United States (New York: Free Press, 1980), 81-2; James Hugo Johnston, Race Relations in Virginia & Miscegenation in the South, 1776-1860 (Amherst: University of Massachusetts, 1970), 47; Peter Kolchin, American Slavery 1619-1877 (New York: Hill and Wang, 1993), 242.
39 Virginia R. Dominguez, White by Definition: Social Classification in Creole Louisiana (New Brunswick NJ: Rutgers University, 1986), 252.
40 Helen Tunnicliff Catterall and James J. Hayden, Judicial Cases Concerning American Slavery and The Negro (New York: Octagon Books, 1968), 3:493.
41 See, for example, 18 Ala. App. 354.
42 6 Mart. n.s. 1.
43 The Black Code, sec. 40; Paul A. Kunkel, “Modifications in Louisiana Negro Legal Status Under Louisiana Constitutions, 1812-1957,” Journal of Negro History 44 (1959): 1-25.
44 Catterall (1968), 3:288. Incidentally, “Locklear” is one of the most common of Lumbee family names. In a July 22, 2003 discussion thread on the H-South discussion group, the group moderator posted the following informational website: http://www.pbs.org/wgbh/pages/frontline/shows/secret/famous/locklear.html .
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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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