Litigating Whiteness: Trials of Racial Determination in the Nineteenth-Century South

Yale Law Journal

Volumn 108, Issue 1, 1998, Pages 109-184

  Gross, Ariela J ^a  

^a NONE

Author keywords

[No Author keywords available]

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EID: 0002077727     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797472     Document Type: Article

References (421)

1. Transcript of Trial, Daniel v. Guy, No. 4109 (Ark. Ashley County Cir. Ct. July 1855) (collection of Pulaski County Law Library, Little Rock, Ark., Ark. Supreme Court Records & Briefs), rev'd in part, 19 Ark. 121 (1857), aff'd after remand, 23 Ark. 50 (1861) [hereinafter Transcript of Trial, Daniel v. Guy].
2. Ashley County was first settled in the 1830s and established as a county in 1848. The courthouse was built in 1854. The April term of 1855 was probably the first term of the circuit court held in the new courthouse. See REFLECTIONS OF ASHLEY COUNTY 73 (Robert A. Carpenter, Sr. & Mary Imogene Noble Carpenter comp., 1988).
3. It is striking how much discretion judges gave juries to decide racial status, given the frequent use during this period of legal presumptions to take control from the jury. While presumptions based on appearance governed slave or free status, they were always held to be rebuttable, and no presumptions governed racial status itself. The major treatises on presumptions and the law of evidence more generally made no mention of racial determination. See, e.g., JOHN D. LAWSON, THE LAW OF PRESUMPTIVE EVIDENCE (1886); JOHN H. MATHEWS, A TREATISE ON THE DOCTRINE OF PRESUMPTION AND PRESUMPTIVE EVIDENCE (1830).
4. It is striking how much discretion judges gave juries to decide racial status, given the frequent use during this period of legal presumptions to take control from the jury. While presumptions based on appearance governed slave or free status, they were always held to be rebuttable, and no presumptions governed racial status itself. The major treatises on presumptions and the law of evidence more generally made no mention of racial determination. See, e.g., JOHN D. LAWSON, THE LAW OF PRESUMPTIVE EVIDENCE (1886); JOHN H. MATHEWS, A TREATISE ON THE DOCTRINE OF PRESUMPTION AND PRESUMPTIVE EVIDENCE (1830).
5. For a discussion of the rhetoric of "blood" with regard to race in 19th-century antimiscegenation law, see Eva Saks, Representing Miscegenation Law, RARITAN, Fall 1988, at 39.
6. Of course, trial records necessarily reveal much more about the racial ideology of the Southern whites than that of people of color, because whites controlled the courts, composed the juries, and gave most of the testimony. It is beyond the scope of this Article to investigate the ideology of "color" of people of color in the 19th century, although I am pursuing this research elsewhere. My preliminary findings based on other records of ex-slaves and free people of color suggest that they exhibited no more agreement than did the white "community" over racial identities. Werner Sollors touches on many issues regarding "mulattoes" and racial identity in his study of "interracial literature" by black authors. See WERNER SOLLORS, NEITHER BLACK NOR WHITE YET BOTH: THEMATIC EXPLORATIONS OF INTERRACIAL LITERATURE (1997).
7. On courts as sites of performance, see generally CONTESTED STATES: LAW, HEGEMONY AND RESISTANCE (Mindie Lazarus-Black & Susan F. Hirsch eds., 1994) [hereinafter CONTESTED STATES]. follow Judith Butler in my use of the notion of performativity. See JUDITH BUTLER, BODIES THAT MATTER: ON THE DISCURSIVE LIMITS OF "SEX" 1-23, 167-242 (1993) [hereinafter BUTLER, BODIES THAT MATTER]; JUDITH BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY 128-141 (1990). Academic studies of "performance" draw on "two quite different discourses, that of theater on the one hand, of speech-act theory and deconstruction on the other." Eve Kosofsky Sedgwick, Queer Performativity: Henry James's The Art of the Novel, 1 GLQ 1, 2 (1993). In this study, I am concerned both with courtrooms as arenas for the performance of dramatic cultural rituals and, like Butler and Sedgwick, with the ways personal identities are iterated through a series of acts. Cf. generally BUTLER, BODIES THAT MATTER, supra, at 171 & 275 n.4 (discussing Nella Larsen's 1929 novel Passing and noting the way Bellew, the husband of a woman who passes for white, "produces his whiteness" through "reiteration and exclusion [of blackness]").
8. On courts as sites of performance, see generally CONTESTED STATES: LAW, HEGEMONY AND RESISTANCE (Mindie Lazarus-Black & Susan F. Hirsch eds., 1994) [hereinafter CONTESTED STATES]. follow Judith Butler in my use of the notion of performativity. See JUDITH BUTLER, BODIES THAT MATTER: ON THE DISCURSIVE LIMITS OF "SEX" 1-23, 167-242 (1993) [hereinafter BUTLER, BODIES THAT MATTER]; JUDITH BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY 128-141 (1990). Academic studies of "performance" draw on "two quite different discourses, that of theater on the one hand, of speech-act theory and deconstruction on the other." Eve Kosofsky Sedgwick, Queer Performativity: Henry James's The Art of the Novel, 1 GLQ 1, 2 (1993). In this study, I am concerned both with courtrooms as arenas for the performance of dramatic cultural rituals and, like Butler and Sedgwick, with the ways personal identities are iterated through a series of acts. Cf. generally BUTLER, BODIES THAT MATTER, supra, at 171 & 275 n.4 (discussing Nella Larsen's 1929 novel Passing and noting the way Bellew, the husband of a woman who passes for white, "produces his whiteness" through "reiteration and exclusion [of blackness]").
9. On courts as sites of performance, see generally CONTESTED STATES: LAW, HEGEMONY AND RESISTANCE (Mindie Lazarus-Black & Susan F. Hirsch eds., 1994) [hereinafter CONTESTED STATES]. follow Judith Butler in my use of the notion of performativity. See JUDITH BUTLER, BODIES THAT MATTER: ON THE DISCURSIVE LIMITS OF "SEX" 1-23, 167-242 (1993) [hereinafter BUTLER, BODIES THAT MATTER]; JUDITH BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY 128-141 (1990). Academic studies of "performance" draw on "two quite different discourses, that of theater on the one hand, of speech-act theory and deconstruction on the other." Eve Kosofsky Sedgwick, Queer Performativity: Henry James's The Art of the Novel, 1 GLQ 1, 2 (1993). In this study, I am concerned both with courtrooms as arenas for the performance of dramatic cultural rituals and, like Butler and Sedgwick, with the ways personal identities are iterated through a series of acts. Cf. generally BUTLER, BODIES THAT MATTER, supra, at 171 & 275 n.4 (discussing Nella Larsen's 1929 novel Passing and noting the way Bellew, the husband of a woman who passes for white, "produces his whiteness" through "reiteration and exclusion [of blackness]").
10. On courts as sites of performance, see generally CONTESTED STATES: LAW, HEGEMONY AND RESISTANCE (Mindie Lazarus-Black & Susan F. Hirsch eds., 1994) [hereinafter CONTESTED STATES]. follow Judith Butler in my use of the notion of performativity. See JUDITH BUTLER, BODIES THAT MATTER: ON THE DISCURSIVE LIMITS OF "SEX" 1-23, 167-242 (1993) [hereinafter BUTLER, BODIES THAT MATTER]; JUDITH BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY 128-141 (1990). Academic studies of "performance" draw on "two quite different discourses, that of theater on the one hand, of speech-act theory and deconstruction on the other." Eve Kosofsky Sedgwick, Queer Performativity: Henry James's The Art of the Novel, 1 GLQ 1, 2 (1993). In this study, I am concerned both with courtrooms as arenas for the performance of dramatic cultural rituals and, like Butler and Sedgwick, with the ways personal identities are iterated through a series of acts. Cf. generally BUTLER, BODIES THAT MATTER, supra, at 171 & 275 n.4 (discussing Nella Larsen's 1929 novel Passing and noting the way Bellew, the husband of a woman who passes for white, "produces his whiteness" through "reiteration and exclusion [of blackness]").
11. On courts as sites of performance, see generally CONTESTED STATES: LAW, HEGEMONY AND RESISTANCE (Mindie Lazarus-Black & Susan F. Hirsch eds., 1994) [hereinafter CONTESTED STATES]. follow Judith Butler in my use of the notion of performativity. See JUDITH BUTLER, BODIES THAT MATTER: ON THE DISCURSIVE LIMITS OF "SEX" 1-23, 167-242 (1993) [hereinafter BUTLER, BODIES THAT MATTER]; JUDITH BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY 128-141 (1990). Academic studies of "performance" draw on "two quite different discourses, that of theater on the one hand, of speech-act theory and deconstruction on the other." Eve Kosofsky Sedgwick, Queer Performativity: Henry James's The Art of the Novel, 1 GLQ 1, 2 (1993). In this study, I am concerned both with courtrooms as arenas for the performance of dramatic cultural rituals and, like Butler and Sedgwick, with the ways personal identities are iterated through a series of acts. Cf. generally BUTLER, BODIES THAT MATTER, supra, at 171 & 275 n.4 (discussing Nella Larsen's 1929 novel Passing and noting the way Bellew, the husband of a woman who passes for white, "produces his whiteness" through "reiteration and exclusion [of blackness]").
12. I focus on the litigation of whiteness - as opposed to blackness - because the boundary that mattered most, both before and after the Civil War, was the line between white and "of color," even when intermediate categories were recognized between white and black. Furthermore, by focusing on the litigation of whiteness, this study seeks to reveal the content of white identity at a time when whiteness was anything but "unmarked," as it sometimes appears to be today. That is, white Southerners were keenly conscious of their identity as white and that identity meant a great deal to them, both consciously and subconsciously. In recent years, scholars from diverse disciplines have begun to question the unmarked quality of whiteness in contemporary discourse and examine the way "whites tend to think that everyone except them has a race . . . ." Naomi R. Cahn, Representing Race Outside of Explicitly Racialized Contexts, 95 MICH. L. REV. 965, 968 (1997). Historical works on whiteness have focused attention on a series of formative events and processes: the precedent of British colonial treatment of the Irish; the early, multiracial resistance to indentured servitude and quasislavery, which culminated in the defeat of Bacon's Rebellion in late seventeenth-century Virginia; the self-identification of "free" workers as white in the antebellum North; and the construction of a "white republic" in the late nineteenth century. Howard Winant, Behind Blue Eyes: Whiteness and Contemporary U.S. Racial Politics, in OFF WHITE: READINGS ON RACE, POWER AND SOCIETY 40, 47 (Michelle Fine et al. eds., 1997) (citations omitted). See generally THEODORE W. ALLEN, THE INVENTION OF THE WHITE RACE (1997); NOEL IGNATIEV, HOW THE IRISH BECAME WHITE (1995); DAVID R. ROEDIGER, THE WAGES OF WHITENESS: RACE AND THE MAKING OF THE AMERICAN WORKING CLASS (1991); ALEXANDER SAXTON, THE RISE AND FALL OF THE WHITE REPUBLIC (1990). Several important monographs and collections of essays look at the social construction of "whiteness" in literature, society, and culture from a variety of disciplinary perspectives. See DISPLACING WHITENESS: ESSAYS IN SOCIAL AND CULTURAL CRITICISM (Ruth Frankenberg ed., 1997) (sociology and cultural studies); RUTH FRANKENBERG, WHITE WOMEN, RACE MATTERS: THE SOCIAL CONSTRUCTION OF WHITENESS (1993) (sociology); TONI MORRISON, PLAYING IN THE DARK (1992) (literary criticism); OFF WHITE, supra (social psychology and education). Shelley Fisher Fishkin provides an excellent overview of the literature to 1995. See Shelley Fisher Fishkin, Interrogating "Whiteness," Complicating "Blackness": Remapping American Culture, 47 AM. Q. 428 (1995). This work has begun to find its way into the law reviews; abbreviated versions of recent articles appear in CRITICAL WHITE STUDIES (Richard Delgado & Jean Stefancic eds., 1997).
13. I focus on the litigation of whiteness - as opposed to blackness - because the boundary that mattered most, both before and after the Civil War, was the line between white and "of color," even when intermediate categories were recognized between white and black. Furthermore, by focusing on the litigation of whiteness, this study seeks to reveal the content of white identity at a time when whiteness was anything but "unmarked," as it sometimes appears to be today. That is, white Southerners were keenly conscious of their identity as white and that identity meant a great deal to them, both consciously and subconsciously. In recent years, scholars from diverse disciplines have begun to question the unmarked quality of whiteness in contemporary discourse and examine the way "whites tend to think that everyone except them has a race . . . ." Naomi R. Cahn, Representing Race Outside of Explicitly Racialized Contexts, 95 MICH. L. REV. 965, 968 (1997). Historical works on whiteness have focused attention on a series of formative events and processes: the precedent of British colonial treatment of the Irish; the early, multiracial resistance to indentured servitude and quasislavery, which culminated in the defeat of Bacon's Rebellion in late seventeenth-century Virginia; the self-identification of "free" workers as white in the antebellum North; and the construction of a "white republic" in the late nineteenth century. Howard Winant, Behind Blue Eyes: Whiteness and Contemporary U.S. Racial Politics, in OFF WHITE: READINGS ON RACE, POWER AND SOCIETY 40, 47 (Michelle Fine et al. eds., 1997) (citations omitted). See generally THEODORE W. ALLEN, THE INVENTION OF THE WHITE RACE (1997); NOEL IGNATIEV, HOW THE IRISH BECAME WHITE (1995); DAVID R. ROEDIGER, THE WAGES OF WHITENESS: RACE AND THE MAKING OF THE AMERICAN WORKING CLASS (1991); ALEXANDER SAXTON, THE RISE AND FALL OF THE WHITE REPUBLIC (1990). Several important monographs and collections of essays look at the social construction of "whiteness" in literature, society, and culture from a variety of disciplinary perspectives. See DISPLACING WHITENESS: ESSAYS IN SOCIAL AND CULTURAL CRITICISM (Ruth Frankenberg ed., 1997) (sociology and cultural studies); RUTH FRANKENBERG, WHITE WOMEN, RACE MATTERS: THE SOCIAL CONSTRUCTION OF WHITENESS (1993) (sociology); TONI MORRISON, PLAYING IN THE DARK (1992) (literary criticism); OFF WHITE, supra (social psychology and education). Shelley Fisher Fishkin provides an excellent overview of the literature to 1995. See Shelley Fisher Fishkin, Interrogating "Whiteness," Complicating "Blackness": Remapping American Culture, 47 AM. Q. 428 (1995). This work has begun to find its way into the law reviews; abbreviated versions of recent articles appear in CRITICAL WHITE STUDIES (Richard Delgado & Jean Stefancic eds., 1997).
14. I focus on the litigation of whiteness - as opposed to blackness - because the boundary that mattered most, both before and after the Civil War, was the line between white and "of color," even when intermediate categories were recognized between white and black. Furthermore, by focusing on the litigation of whiteness, this study seeks to reveal the content of white identity at a time when whiteness was anything but "unmarked," as it sometimes appears to be today. That is, white Southerners were keenly conscious of their identity as white and that identity meant a great deal to them, both consciously and subconsciously. In recent years, scholars from diverse disciplines have begun to question the unmarked quality of whiteness in contemporary discourse and examine the way "whites tend to think that everyone except them has a race . . . ." Naomi R. Cahn, Representing Race Outside of Explicitly Racialized Contexts, 95 MICH. L. REV. 965, 968 (1997). Historical works on whiteness have focused attention on a series of formative events and processes: the precedent of British colonial treatment of the Irish; the early, multiracial resistance to indentured servitude and quasislavery, which culminated in the defeat of Bacon's Rebellion in late seventeenth-century Virginia; the self-identification of "free" workers as white in the antebellum North; and the construction of a "white republic" in the late nineteenth century. Howard Winant, Behind Blue Eyes: Whiteness and Contemporary U.S. Racial Politics, in OFF WHITE: READINGS ON RACE, POWER AND SOCIETY 40, 47 (Michelle Fine et al. eds., 1997) (citations omitted). See generally THEODORE W. ALLEN, THE INVENTION OF THE WHITE RACE (1997); NOEL IGNATIEV, HOW THE IRISH BECAME WHITE (1995); DAVID R. ROEDIGER, THE WAGES OF WHITENESS: RACE AND THE MAKING OF THE AMERICAN WORKING CLASS (1991); ALEXANDER SAXTON, THE RISE AND FALL OF THE WHITE REPUBLIC (1990). Several important monographs and collections of essays look at the social construction of "whiteness" in literature, society, and culture from a variety of disciplinary perspectives. See DISPLACING WHITENESS: ESSAYS IN SOCIAL AND CULTURAL CRITICISM (Ruth Frankenberg ed., 1997) (sociology and cultural studies); RUTH FRANKENBERG, WHITE WOMEN, RACE MATTERS: THE SOCIAL CONSTRUCTION OF WHITENESS (1993) (sociology); TONI MORRISON, PLAYING IN THE DARK (1992) (literary criticism); OFF WHITE, supra (social psychology and education). Shelley Fisher Fishkin provides an excellent overview of the literature to 1995. See Shelley Fisher Fishkin, Interrogating "Whiteness," Complicating "Blackness": Remapping American Culture, 47 AM. Q. 428 (1995). This work has begun to find its way into the law reviews; abbreviated versions of recent articles appear in CRITICAL WHITE STUDIES (Richard Delgado & Jean Stefancic eds., 1997).
15. I focus on the litigation of whiteness - as opposed to blackness - because the boundary that mattered most, both before and after the Civil War, was the line between white and "of color," even when intermediate categories were recognized between white and black. Furthermore, by focusing on the litigation of whiteness, this study seeks to reveal the content of white identity at a time when whiteness was anything but "unmarked," as it sometimes appears to be today. That is, white Southerners were keenly conscious of their identity as white and that identity meant a great deal to them, both consciously and subconsciously. In recent years, scholars from diverse disciplines have begun to question the unmarked quality of whiteness in contemporary discourse and examine the way "whites tend to think that everyone except them has a race . . . ." Naomi R. Cahn, Representing Race Outside of Explicitly Racialized Contexts, 95 MICH. L. REV. 965, 968 (1997). Historical works on whiteness have focused attention on a series of formative events and processes: the precedent of British colonial treatment of the Irish; the early, multiracial resistance to indentured servitude and quasislavery, which culminated in the defeat of Bacon's Rebellion in late seventeenth-century Virginia; the self-identification of "free" workers as white in the antebellum North; and the construction of a "white republic" in the late nineteenth century. Howard Winant, Behind Blue Eyes: Whiteness and Contemporary U.S. Racial Politics, in OFF WHITE: READINGS ON RACE, POWER AND SOCIETY 40, 47 (Michelle Fine et al. eds., 1997) (citations omitted). See generally THEODORE W. ALLEN, THE INVENTION OF THE WHITE RACE (1997); NOEL IGNATIEV, HOW THE IRISH BECAME WHITE (1995); DAVID R. ROEDIGER, THE WAGES OF WHITENESS: RACE AND THE MAKING OF THE AMERICAN WORKING CLASS (1991); ALEXANDER SAXTON, THE RISE AND FALL OF THE WHITE REPUBLIC (1990). Several important monographs and collections of essays look at the social construction of "whiteness" in literature, society, and culture from a variety of disciplinary perspectives. See DISPLACING WHITENESS: ESSAYS IN SOCIAL AND CULTURAL CRITICISM (Ruth Frankenberg ed., 1997) (sociology and cultural studies); RUTH FRANKENBERG, WHITE WOMEN, RACE MATTERS: THE SOCIAL CONSTRUCTION OF WHITENESS (1993) (sociology); TONI MORRISON, PLAYING IN THE DARK (1992) (literary criticism); OFF WHITE, supra (social psychology and education). Shelley Fisher Fishkin provides an excellent overview of the literature to 1995. See Shelley Fisher Fishkin, Interrogating "Whiteness," Complicating "Blackness": Remapping American Culture, 47 AM. Q. 428 (1995). This work has begun to find its way into the law reviews; abbreviated versions of recent articles appear in CRITICAL WHITE STUDIES (Richard Delgado & Jean Stefancic eds., 1997).
16. I focus on the litigation of whiteness - as opposed to blackness - because the boundary that mattered most, both before and after the Civil War, was the line between white and "of color," even when intermediate categories were recognized between white and black. Furthermore, by focusing on the litigation of whiteness, this study seeks to reveal the content of white identity at a time when whiteness was anything but "unmarked," as it sometimes appears to be today. That is, white Southerners were keenly conscious of their identity as white and that identity meant a great deal to them, both consciously and subconsciously. In recent years, scholars from diverse disciplines have begun to question the unmarked quality of whiteness in contemporary discourse and examine the way "whites tend to think that everyone except them has a race . . . ." Naomi R. Cahn, Representing Race Outside of Explicitly Racialized Contexts, 95 MICH. L. REV. 965, 968 (1997). Historical works on whiteness have focused attention on a series of formative events and processes: the precedent of British colonial treatment of the Irish; the early, multiracial resistance to indentured servitude and quasislavery, which culminated in the defeat of Bacon's Rebellion in late seventeenth-century Virginia; the self-identification of "free" workers as white in the antebellum North; and the construction of a "white republic" in the late nineteenth century. Howard Winant, Behind Blue Eyes: Whiteness and Contemporary U.S. Racial Politics, in OFF WHITE: READINGS ON RACE, POWER AND SOCIETY 40, 47 (Michelle Fine et al. eds., 1997) (citations omitted). See generally THEODORE W. ALLEN, THE INVENTION OF THE WHITE RACE (1997); NOEL IGNATIEV, HOW THE IRISH BECAME WHITE (1995); DAVID R. ROEDIGER, THE WAGES OF WHITENESS: RACE AND THE MAKING OF THE AMERICAN WORKING CLASS (1991); ALEXANDER SAXTON, THE RISE AND FALL OF THE WHITE REPUBLIC (1990). Several important monographs and collections of essays look at the social construction of "whiteness" in literature, society, and culture from a variety of disciplinary perspectives. See DISPLACING WHITENESS: ESSAYS IN SOCIAL AND CULTURAL CRITICISM (Ruth Frankenberg ed., 1997) (sociology and cultural studies); RUTH FRANKENBERG, WHITE WOMEN, RACE MATTERS: THE SOCIAL CONSTRUCTION OF WHITENESS (1993) (sociology); TONI MORRISON, PLAYING IN THE DARK (1992) (literary criticism); OFF WHITE, supra (social psychology and education). Shelley Fisher Fishkin provides an excellent overview of the literature to 1995. See Shelley Fisher Fishkin, Interrogating "Whiteness," Complicating "Blackness": Remapping American Culture, 47 AM. Q. 428 (1995). This work has begun to find its way into the law reviews; abbreviated versions of recent articles appear in CRITICAL WHITE STUDIES (Richard Delgado & Jean Stefancic eds., 1997).
17. I focus on the litigation of whiteness - as opposed to blackness - because the boundary that mattered most, both before and after the Civil War, was the line between white and "of color," even when intermediate categories were recognized between white and black. Furthermore, by focusing on the litigation of whiteness, this study seeks to reveal the content of white identity at a time when whiteness was anything but "unmarked," as it sometimes appears to be today. That is, white Southerners were keenly conscious of their identity as white and that identity meant a great deal to them, both consciously and subconsciously. In recent years, scholars from diverse disciplines have begun to question the unmarked quality of whiteness in contemporary discourse and examine the way "whites tend to think that everyone except them has a race . . . ." Naomi R. Cahn, Representing Race Outside of Explicitly Racialized Contexts, 95 MICH. L. REV. 965, 968 (1997). Historical works on whiteness have focused attention on a series of formative events and processes: the precedent of British colonial treatment of the Irish; the early, multiracial resistance to indentured servitude and quasislavery, which culminated in the defeat of Bacon's Rebellion in late seventeenth-century Virginia; the self-identification of "free" workers as white in the antebellum North; and the construction of a "white republic" in the late nineteenth century. Howard Winant, Behind Blue Eyes: Whiteness and Contemporary U.S. Racial Politics, in OFF WHITE: READINGS ON RACE, POWER AND SOCIETY 40, 47 (Michelle Fine et al. eds., 1997) (citations omitted). See generally THEODORE W. ALLEN, THE INVENTION OF THE WHITE RACE (1997); NOEL IGNATIEV, HOW THE IRISH BECAME WHITE (1995); DAVID R. ROEDIGER, THE WAGES OF WHITENESS: RACE AND THE MAKING OF THE AMERICAN WORKING CLASS (1991); ALEXANDER SAXTON, THE RISE AND FALL OF THE WHITE REPUBLIC (1990). Several important monographs and collections of essays look at the social construction of "whiteness" in literature, society, and culture from a variety of disciplinary perspectives. See DISPLACING WHITENESS: ESSAYS IN SOCIAL AND CULTURAL CRITICISM (Ruth Frankenberg ed., 1997) (sociology and cultural studies); RUTH FRANKENBERG, WHITE WOMEN, RACE MATTERS: THE SOCIAL CONSTRUCTION OF WHITENESS (1993) (sociology); TONI MORRISON, PLAYING IN THE DARK (1992) (literary criticism); OFF WHITE, supra (social psychology and education). Shelley Fisher Fishkin provides an excellent overview of the literature to 1995. See Shelley Fisher Fishkin, Interrogating "Whiteness," Complicating "Blackness": Remapping American Culture, 47 AM. Q. 428 (1995). This work has begun to find its way into the law reviews; abbreviated versions of recent articles appear in CRITICAL WHITE STUDIES (Richard Delgado & Jean Stefancic eds., 1997).
18. I focus on the litigation of whiteness - as opposed to blackness - because the boundary that mattered most, both before and after the Civil War, was the line between white and "of color," even when intermediate categories were recognized between white and black. Furthermore, by focusing on the litigation of whiteness, this study seeks to reveal the content of white identity at a time when whiteness was anything but "unmarked," as it sometimes appears to be today. That is, white Southerners were keenly conscious of their identity as white and that identity meant a great deal to them, both consciously and subconsciously. In recent years, scholars from diverse disciplines have begun to question the unmarked quality of whiteness in contemporary discourse and examine the way "whites tend to think that everyone except them has a race . . . ." Naomi R. Cahn, Representing Race Outside of Explicitly Racialized Contexts, 95 MICH. L. REV. 965, 968 (1997). Historical works on whiteness have focused attention on a series of formative events and processes: the precedent of British colonial treatment of the Irish; the early, multiracial resistance to indentured servitude and quasislavery, which culminated in the defeat of Bacon's Rebellion in late seventeenth-century Virginia; the self-identification of "free" workers as white in the antebellum North; and the construction of a "white republic" in the late nineteenth century. Howard Winant, Behind Blue Eyes: Whiteness and Contemporary U.S. Racial Politics, in OFF WHITE: READINGS ON RACE, POWER AND SOCIETY 40, 47 (Michelle Fine et al. eds., 1997) (citations omitted). See generally THEODORE W. ALLEN, THE INVENTION OF THE WHITE RACE (1997); NOEL IGNATIEV, HOW THE IRISH BECAME WHITE (1995); DAVID R. ROEDIGER, THE WAGES OF WHITENESS: RACE AND THE MAKING OF THE AMERICAN WORKING CLASS (1991); ALEXANDER SAXTON, THE RISE AND FALL OF THE WHITE REPUBLIC (1990). Several important monographs and collections of essays look at the social construction of "whiteness" in literature, society, and culture from a variety of disciplinary perspectives. See DISPLACING WHITENESS: ESSAYS IN SOCIAL AND CULTURAL CRITICISM (Ruth Frankenberg ed., 1997) (sociology and cultural studies); RUTH FRANKENBERG, WHITE WOMEN, RACE MATTERS: THE SOCIAL CONSTRUCTION OF WHITENESS (1993) (sociology); TONI MORRISON, PLAYING IN THE DARK (1992) (literary criticism); OFF WHITE, supra (social psychology and education). Shelley Fisher Fishkin provides an excellent overview of the literature to 1995. See Shelley Fisher Fishkin, Interrogating "Whiteness," Complicating "Blackness": Remapping American Culture, 47 AM. Q. 428 (1995). This work has begun to find its way into the law reviews; abbreviated versions of recent articles appear in CRITICAL WHITE STUDIES (Richard Delgado & Jean Stefancic eds., 1997).
19. I focus on the litigation of whiteness - as opposed to blackness - because the boundary that mattered most, both before and after the Civil War, was the line between white and "of color," even when intermediate categories were recognized between white and black. Furthermore, by focusing on the litigation of whiteness, this study seeks to reveal the content of white identity at a time when whiteness was anything but "unmarked," as it sometimes appears to be today. That is, white Southerners were keenly conscious of their identity as white and that identity meant a great deal to them, both consciously and subconsciously. In recent years, scholars from diverse disciplines have begun to question the unmarked quality of whiteness in contemporary discourse and examine the way "whites tend to think that everyone except them has a race . . . ." Naomi R. Cahn, Representing Race Outside of Explicitly Racialized Contexts, 95 MICH. L. REV. 965, 968 (1997). Historical works on whiteness have focused attention on a series of formative events and processes: the precedent of British colonial treatment of the Irish; the early, multiracial resistance to indentured servitude and quasislavery, which culminated in the defeat of Bacon's Rebellion in late seventeenth-century Virginia; the self-identification of "free" workers as white in the antebellum North; and the construction of a "white republic" in the late nineteenth century. Howard Winant, Behind Blue Eyes: Whiteness and Contemporary U.S. Racial Politics, in OFF WHITE: READINGS ON RACE, POWER AND SOCIETY 40, 47 (Michelle Fine et al. eds., 1997) (citations omitted). See generally THEODORE W. ALLEN, THE INVENTION OF THE WHITE RACE (1997); NOEL IGNATIEV, HOW THE IRISH BECAME WHITE (1995); DAVID R. ROEDIGER, THE WAGES OF WHITENESS: RACE AND THE MAKING OF THE AMERICAN WORKING CLASS (1991); ALEXANDER SAXTON, THE RISE AND FALL OF THE WHITE REPUBLIC (1990). Several important monographs and collections of essays look at the social construction of "whiteness" in literature, society, and culture from a variety of disciplinary perspectives. See DISPLACING WHITENESS: ESSAYS IN SOCIAL AND CULTURAL CRITICISM (Ruth Frankenberg ed., 1997) (sociology and cultural studies); RUTH FRANKENBERG, WHITE WOMEN, RACE MATTERS: THE SOCIAL CONSTRUCTION OF WHITENESS (1993) (sociology); TONI MORRISON, PLAYING IN THE DARK (1992) (literary criticism); OFF WHITE, supra (social psychology and education). Shelley Fisher Fishkin provides an excellent overview of the literature to 1995. See Shelley Fisher Fishkin, Interrogating "Whiteness," Complicating "Blackness": Remapping American Culture, 47 AM. Q. 428 (1995). This work has begun to find its way into the law reviews; abbreviated versions of recent articles appear in CRITICAL WHITE STUDIES (Richard Delgado & Jean Stefancic eds., 1997).
20. I focus on the litigation of whiteness - as opposed to blackness - because the boundary that mattered most, both before and after the Civil War, was the line between white and "of color," even when intermediate categories were recognized between white and black. Furthermore, by focusing on the litigation of whiteness, this study seeks to reveal the content of white identity at a time when whiteness was anything but "unmarked," as it sometimes appears to be today. That is, white Southerners were keenly conscious of their identity as white and that identity meant a great deal to them, both consciously and subconsciously. In recent years, scholars from diverse disciplines have begun to question the unmarked quality of whiteness in contemporary discourse and examine the way "whites tend to think that everyone except them has a race . . . ." Naomi R. Cahn, Representing Race Outside of Explicitly Racialized Contexts, 95 MICH. L. REV. 965, 968 (1997). Historical works on whiteness have focused attention on a series of formative events and processes: the precedent of British colonial treatment of the Irish; the early, multiracial resistance to indentured servitude and quasislavery, which culminated in the defeat of Bacon's Rebellion in late seventeenth-century Virginia; the self-identification of "free" workers as white in the antebellum North; and the construction of a "white republic" in the late nineteenth century. Howard Winant, Behind Blue Eyes: Whiteness and Contemporary U.S. Racial Politics, in OFF WHITE: READINGS ON RACE, POWER AND SOCIETY 40, 47 (Michelle Fine et al. eds., 1997) (citations omitted). See generally THEODORE W. ALLEN, THE INVENTION OF THE WHITE RACE (1997); NOEL IGNATIEV, HOW THE IRISH BECAME WHITE (1995); DAVID R. ROEDIGER, THE WAGES OF WHITENESS: RACE AND THE MAKING OF THE AMERICAN WORKING CLASS (1991); ALEXANDER SAXTON, THE RISE AND FALL OF THE WHITE REPUBLIC (1990). Several important monographs and collections of essays look at the social construction of "whiteness" in literature, society, and culture from a variety of disciplinary perspectives. See DISPLACING WHITENESS: ESSAYS IN SOCIAL AND CULTURAL CRITICISM (Ruth Frankenberg ed., 1997) (sociology and cultural studies); RUTH FRANKENBERG, WHITE WOMEN, RACE MATTERS: THE SOCIAL CONSTRUCTION OF WHITENESS (1993) (sociology); TONI MORRISON, PLAYING IN THE DARK (1992) (literary criticism); OFF WHITE, supra (social psychology and education). Shelley Fisher Fishkin provides an excellent overview of the literature to 1995. See Shelley Fisher Fishkin, Interrogating "Whiteness," Complicating "Blackness": Remapping American Culture, 47 AM. Q. 428 (1995). This work has begun to find its way into the law reviews; abbreviated versions of recent articles appear in CRITICAL WHITE STUDIES (Richard Delgado & Jean Stefancic eds., 1997).
21. I focus on the litigation of whiteness - as opposed to blackness - because the boundary that mattered most, both before and after the Civil War, was the line between white and "of color," even when intermediate categories were recognized between white and black. Furthermore, by focusing on the litigation of whiteness, this study seeks to reveal the content of white identity at a time when whiteness was anything but "unmarked," as it sometimes appears to be today. That is, white Southerners were keenly conscious of their identity as white and that identity meant a great deal to them, both consciously and subconsciously. In recent years, scholars from diverse disciplines have begun to question the unmarked quality of whiteness in contemporary discourse and examine the way "whites tend to think that everyone except them has a race . . . ." Naomi R. Cahn, Representing Race Outside of Explicitly Racialized Contexts, 95 MICH. L. REV. 965, 968 (1997). Historical works on whiteness have focused attention on a series of formative events and processes: the precedent of British colonial treatment of the Irish; the early, multiracial resistance to indentured servitude and quasislavery, which culminated in the defeat of Bacon's Rebellion in late seventeenth-century Virginia; the self-identification of "free" workers as white in the antebellum North; and the construction of a "white republic" in the late nineteenth century. Howard Winant, Behind Blue Eyes: Whiteness and Contemporary U.S. Racial Politics, in OFF WHITE: READINGS ON RACE, POWER AND SOCIETY 40, 47 (Michelle Fine et al. eds., 1997) (citations omitted). See generally THEODORE W. ALLEN, THE INVENTION OF THE WHITE RACE (1997); NOEL IGNATIEV, HOW THE IRISH BECAME WHITE (1995); DAVID R. ROEDIGER, THE WAGES OF WHITENESS: RACE AND THE MAKING OF THE AMERICAN WORKING CLASS (1991); ALEXANDER SAXTON, THE RISE AND FALL OF THE WHITE REPUBLIC (1990). Several important monographs and collections of essays look at the social construction of "whiteness" in literature, society, and culture from a variety of disciplinary perspectives. See DISPLACING WHITENESS: ESSAYS IN SOCIAL AND CULTURAL CRITICISM (Ruth Frankenberg ed., 1997) (sociology and cultural studies); RUTH FRANKENBERG, WHITE WOMEN, RACE MATTERS: THE SOCIAL CONSTRUCTION OF WHITENESS (1993) (sociology); TONI MORRISON, PLAYING IN THE DARK (1992) (literary criticism); OFF WHITE, supra (social psychology and education). Shelley Fisher Fishkin provides an excellent overview of the literature to 1995. See Shelley Fisher Fishkin, Interrogating "Whiteness," Complicating "Blackness": Remapping American Culture, 47 AM. Q. 428 (1995). This work has begun to find its way into the law reviews; abbreviated versions of recent articles appear in CRITICAL WHITE STUDIES (Richard Delgado & Jean Stefancic eds., 1997).
22. I focus on the litigation of whiteness - as opposed to blackness - because the boundary that mattered most, both before and after the Civil War, was the line between white and "of color," even when intermediate categories were recognized between white and black. Furthermore, by focusing on the litigation of whiteness, this study seeks to reveal the content of white identity at a time when whiteness was anything but "unmarked," as it sometimes appears to be today. That is, white Southerners were keenly conscious of their identity as white and that identity meant a great deal to them, both consciously and subconsciously. In recent years, scholars from diverse disciplines have begun to question the unmarked quality of whiteness in contemporary discourse and examine the way "whites tend to think that everyone except them has a race . . . ." Naomi R. Cahn, Representing Race Outside of Explicitly Racialized Contexts, 95 MICH. L. REV. 965, 968 (1997). Historical works on whiteness have focused attention on a series of formative events and processes: the precedent of British colonial treatment of the Irish; the early, multiracial resistance to indentured servitude and quasislavery, which culminated in the defeat of Bacon's Rebellion in late seventeenth-century Virginia; the self-identification of "free" workers as white in the antebellum North; and the construction of a "white republic" in the late nineteenth century. Howard Winant, Behind Blue Eyes: Whiteness and Contemporary U.S. Racial Politics, in OFF WHITE: READINGS ON RACE, POWER AND SOCIETY 40, 47 (Michelle Fine et al. eds., 1997) (citations omitted). See generally THEODORE W. ALLEN, THE INVENTION OF THE WHITE RACE (1997); NOEL IGNATIEV, HOW THE IRISH BECAME WHITE (1995); DAVID R. ROEDIGER, THE WAGES OF WHITENESS: RACE AND THE MAKING OF THE AMERICAN WORKING CLASS (1991); ALEXANDER SAXTON, THE RISE AND FALL OF THE WHITE REPUBLIC (1990). Several important monographs and collections of essays look at the social construction of "whiteness" in literature, society, and culture from a variety of disciplinary perspectives. See DISPLACING WHITENESS: ESSAYS IN SOCIAL AND CULTURAL CRITICISM (Ruth Frankenberg ed., 1997) (sociology and cultural studies); RUTH FRANKENBERG, WHITE WOMEN, RACE MATTERS: THE SOCIAL CONSTRUCTION OF WHITENESS (1993) (sociology); TONI MORRISON, PLAYING IN THE DARK (1992) (literary criticism); OFF WHITE, supra (social psychology and education). Shelley Fisher Fishkin provides an excellent overview of the literature to 1995. See Shelley Fisher Fishkin, Interrogating "Whiteness," Complicating "Blackness": Remapping American Culture, 47 AM. Q. 428 (1995). This work has begun to find its way into the law reviews; abbreviated versions of recent articles appear in CRITICAL WHITE STUDIES (Richard Delgado & Jean Stefancic eds., 1997).
23. I use the phrase "discourse of performance" to emphasize that racial performances most often did not take place in court but rather were reported on by witnesses. As Elin Diamond points out, "performance" refers both to a "doing" and a "thing done." Elin Diamond, Introduction to PERFORMANCE AND CULTURAL POLITICS 4-5 (Elin Diamond ed., 1996), [hereinafter PERFORMANCE AND CULTURAL POLITICS]. Here, I am primarily concerned with courtroom descriptions and analyses of "things done." For other discussions of performative identities, see PERFORMATIVITY AND PERFORMANCE (Andrew Parker & Eve Kosofsky Sedgwick eds., 1995); and PERFORMING FEMINISMS: FEMINIST CRITICAL THEORY AND THEATRE (Sue-Ellen Case ed., 1990).
24. I use the phrase "discourse of performance" to emphasize that racial performances most often did not take place in court but rather were reported on by witnesses. As Elin Diamond points out, "performance" refers both to a "doing" and a "thing done." Elin Diamond, Introduction to PERFORMANCE AND CULTURAL POLITICS 4-5 (Elin Diamond ed., 1996), [hereinafter PERFORMANCE AND CULTURAL POLITICS]. Here, I am primarily concerned with courtroom descriptions and analyses of "things done." For other discussions of performative identities, see PERFORMATIVITY AND PERFORMANCE (Andrew Parker & Eve Kosofsky Sedgwick eds., 1995); and PERFORMING FEMINISMS: FEMINIST CRITICAL THEORY AND THEATRE (Sue-Ellen Case ed., 1990).
25. I use the phrase "discourse of performance" to emphasize that racial performances most often did not take place in court but rather were reported on by witnesses. As Elin Diamond points out, "performance" refers both to a "doing" and a "thing done." Elin Diamond, Introduction to PERFORMANCE AND CULTURAL POLITICS 4-5 (Elin Diamond ed., 1996), [hereinafter PERFORMANCE AND CULTURAL POLITICS]. Here, I am primarily concerned with courtroom descriptions and analyses of "things done." For other discussions of performative identities, see PERFORMATIVITY AND PERFORMANCE (Andrew Parker & Eve Kosofsky Sedgwick eds., 1995); and PERFORMING FEMINISMS: FEMINIST CRITICAL THEORY AND THEATRE (Sue-Ellen Case ed., 1990).
26. For a critical review of this historiography, see Ann Laura Stoler, Racial Histories and Their Regimes of Truth, 11 POL. POWER & SOC. THEORY 183 (1997). Stoler writes: [W]hen scholars distinguish between racisms of past and present, they often imply that racisms once existed in more overt and pristine form. . . . I take this "flattening" not to be arbitrary, but contingent on a basic and historically problematic contrast between a biologized, physiological and somatic racism of the past held up as fundamentally distinct from a more nuanced, culturally coded, and complex racism of the present. Id. at 185.
27. See Peggy Pascoe, Miscegenation Law, Court Cases, and Ideologies of "Race" in Twentieth-Century America, 83 J. AM. HIST. 44, 61-69 (1996).
28. See, e.g., F. JAMES DAVIS, WHO IS BLACK? 1-16 (1991); EDMUND S. MORGAN, AMERICAN SLAVERY, AMERICAN FREEDOM: THE ORDEAL OF COLONIAL VIRGINIA 328-39 (1975).
29. See, e.g., F. JAMES DAVIS, WHO IS BLACK? 1-16 (1991); EDMUND S. MORGAN, AMERICAN SLAVERY, AMERICAN FREEDOM: THE ORDEAL OF COLONIAL VIRGINIA 328-39 (1975).
30. Most histories of race and racism, as Ann Stoler points out, emphasize "invention," "origins," and the beginning of "race" as a meaningful social category. Stoler, supra note 9, at 187-89. No discussion of the history of race in America is complete without a mention of the first twenty "Negars" who set foot in Virginia in 1619, or of the proposition that early Virginia society was not organized along racial lines, but rather that those lines arose from the economic forces that led to the enslavement of Africans and not Europeans. See, e.g., GEORGE FREDRICKSON, The Social Origins of American Racism, in THE ARROGANCE OF RACE 189 (1981); WINTHROP JORDAN, WHITE OVER BLACK 44 (1968); MORGAN, supra note 11, at 295-337; Oscar Handlin & Mary F. Handlin, Origins of the Southern Labor System, 7 WM. & MARY Q. 199 (1950), reprinted in COLONIAL AMERICA: ESSAYS IN POLITICS AND SOCIAL DEVELOPMENT 230 (Stanley N. Katz & John M. Murrin eds., 3d ed. 1983).
31. Most histories of race and racism, as Ann Stoler points out, emphasize "invention," "origins," and the beginning of "race" as a meaningful social category. Stoler, supra note 9, at 187-89. No discussion of the history of race in America is complete without a mention of the first twenty "Negars" who set foot in Virginia in 1619, or of the proposition that early Virginia society was not organized along racial lines, but rather that those lines arose from the economic forces that led to the enslavement of Africans and not Europeans. See, e.g., GEORGE FREDRICKSON, The Social Origins of American Racism, in THE ARROGANCE OF RACE 189 (1981); WINTHROP JORDAN, WHITE OVER BLACK 44 (1968); MORGAN, supra note 11, at 295-337; Oscar Handlin & Mary F. Handlin, Origins of the Southern Labor System, 7 WM. & MARY Q. 199 (1950), reprinted in COLONIAL AMERICA: ESSAYS IN POLITICS AND SOCIAL DEVELOPMENT 230 (Stanley N. Katz & John M. Murrin eds., 3d ed. 1983).
32. Most histories of race and racism, as Ann Stoler points out, emphasize "invention," "origins," and the beginning of "race" as a meaningful social category. Stoler, supra note 9, at 187-89. No discussion of the history of race in America is complete without a mention of the first twenty "Negars" who set foot in Virginia in 1619, or of the proposition that early Virginia society was not organized along racial lines, but rather that those lines arose from the economic forces that led to the enslavement of Africans and not Europeans. See, e.g., GEORGE FREDRICKSON, The Social Origins of American Racism, in THE ARROGANCE OF RACE 189 (1981); WINTHROP JORDAN, WHITE OVER BLACK 44 (1968); MORGAN, supra note 11, at 295-337; Oscar Handlin & Mary F. Handlin, Origins of the Southern Labor System, 7 WM. & MARY Q. 199 (1950), reprinted in COLONIAL AMERICA: ESSAYS IN POLITICS AND SOCIAL DEVELOPMENT 230 (Stanley N. Katz & John M. Murrin eds., 3d ed. 1983).
33. Most histories of race and racism, as Ann Stoler points out, emphasize "invention," "origins," and the beginning of "race" as a meaningful social category. Stoler, supra note 9, at 187-89. No discussion of the history of race in America is complete without a mention of the first twenty "Negars" who set foot in Virginia in 1619, or of the proposition that early Virginia society was not organized along racial lines, but rather that those lines arose from the economic forces that led to the enslavement of Africans and not Europeans. See, e.g., GEORGE FREDRICKSON, The Social Origins of American Racism, in THE ARROGANCE OF RACE 189 (1981); WINTHROP JORDAN, WHITE OVER BLACK 44 (1968); MORGAN, supra note 11, at 295-337; Oscar Handlin & Mary F. Handlin, Origins of the Southern Labor System, 7 WM. & MARY Q. 199 (1950), reprinted in COLONIAL AMERICA: ESSAYS IN POLITICS AND SOCIAL DEVELOPMENT 230 (Stanley N. Katz & John M. Murrin eds., 3d ed. 1983).
34. FREDRICKSON, supra note 12, at 193 (calling it a "chicken-and-egg debate").
35. Did European Americans enslave Africans because they were black and therefore worthy of enslavement, or did they come to see "blackness" as an inferior and degraded status because, for economic and political reasons, African Americans had become the exclusive class of slaves? While this debate has lost some of its steam, partly because of the salutary efforts of historians of the African diaspora to put the United States experience of slavery back into its world context, discussions of the "social construction of race" still draw heavily on the work of those scholars who argued that slavery led to racism. Barbara Fields's influential polemic, Slavery, Race, and Ideology in the United States of America, laid the groundwork for what has become a commonplace. Race, she explained, is an ideology, created to justify relations of oppression and continually recreated today, by "blacks" and "whites." See Barbara Fields, Slavery, Race, and Ideology in the United States of America, NEW LEFT REV., May/June 1990, at 95, 117. Theodore Allen describes the debate among historians as one between a "psycho-cultural" explanation for racism and a "socio-economic" explanation for racism. Like Barbara Fields, Allen brings a Marxist bent to his socioeconomic history of racism, along with a belief that if racism did fulfill deep-seated psychological needs, it would be ineradicable. Therefore, psychocultural explanations of racism must be defeatist and fatalistic about the possibilities of a world free from racial oppression. See ALLEN, supra note 7, at 4-21.
36. See, e.g., KWAME ANTHONY APPIAH, IN MY FATHER'S HOUSE: AFRICA IN THE PHILOSOPHY OF CULTURE 43-73 (1992). Appiah's discussion of the consensus among anthropologists, biologists, and geneticists regarding the incoherence of racial categories is less controversial than his claim that equal incoherence follows from the attempt to base "race" on shared culture, politics, or history.
37. Even so, much of what I will suggest about legal determinations of race can be accepted from a position of "realism" or "essentialism" about race. In this respect, there is a great deal of congruence between constructivism debates in the context of race and of sexuality. Janet Halley has shown the wide stretch of "common ground" shared by "weak essentialists" with respect to sexuality and "weak constructivists." Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 STAN. L. REV. 503, 546-68 (1994). That is, in the case of race, even if you believe, as a "weak essentialist" does, that the racial categories of "black" and "white" correspond to some "irreducible and therefore constitutive characteristic[s], regardless of [their] source," you may still be able to accept my account of the ways in which people in the courtroom gave evidence about those distinctions, which they could not ascertain with any precision. Id. at 548.
38. Robert Gordon, in a taxonomy of legal history that could apply equally to most general histories of race in the United States, calls this approach "evolutionary functionalism." Robert W. Gordon, Critical Legal Histories, 36 STAN. L. REV. 57, 59 (1984).
39. See, e.g., Neil Gotanda, A Critique of "Our Constitution is Color-Blind," 44 STAN. L. REV. 1 (1991); Ian F. Haney López, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REV. 1 (1994); Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707 (1993); D. Marvin Jones, Darkness Made Visible: Law, Metaphor, and the Racial Self, 82 GEO. L.J. 437 (1993); Jayne Chong-Soon Lee, Navigating the Topology of Race, 46 STAN. L. REV 747 (1994) (reviewing APPIAH, supra note 15). Several legal scholars have referred directly to a few of the cases in this study, as cautionary examples of relying on law to construct or deconstruct racial categories. Christine Hickman, in an article about the proposal to add a "multiracial" category to the U.S. Census, discusses several of these cases to demonstrate the absurdity of legal determinations of arbitrary racial boundaries and the dangers of "re-biologizing" race. See Christine B. Hickman, The Devil and the One Drop Rule: Racial Categories, African Americans, and the U.S. Census, 95 MICH. L. REV. 1161 (1997). Hickman, Ian Haney López, and Kenneth Karst, in articles that are primarily theoretical, also give examples of these cases to illustrate the role of law in creating identities. See Haney López, supra; Hickman, supra; Kenneth L. Karst, Myths of Identity: Individual and Group Portraits of Race and Sexual Orientation, 43 UCLA L. REV. 243 (1995).
40. See, e.g., Neil Gotanda, A Critique of "Our Constitution is Color-Blind," 44 STAN. L. REV. 1 (1991); Ian F. Haney López, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REV. 1 (1994); Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707 (1993); D. Marvin Jones, Darkness Made Visible: Law, Metaphor, and the Racial Self, 82 GEO. L.J. 437 (1993); Jayne Chong-Soon Lee, Navigating the Topology of Race, 46 STAN. L. REV 747 (1994) (reviewing APPIAH, supra note 15). Several legal scholars have referred directly to a few of the cases in this study, as cautionary examples of relying on law to construct or deconstruct racial categories. Christine Hickman, in an article about the proposal to add a "multiracial" category to the U.S. Census, discusses several of these cases to demonstrate the absurdity of legal determinations of arbitrary racial boundaries and the dangers of "re-biologizing" race. See Christine B. Hickman, The Devil and the One Drop Rule: Racial Categories, African Americans, and the U.S. Census, 95 MICH. L. REV. 1161 (1997). Hickman, Ian Haney López, and Kenneth Karst, in articles that are primarily theoretical, also give examples of these cases to illustrate the role of law in creating identities. See Haney López, supra; Hickman, supra; Kenneth L. Karst, Myths of Identity: Individual and Group Portraits of Race and Sexual Orientation, 43 UCLA L. REV. 243 (1995).
41. See, e.g., Neil Gotanda, A Critique of "Our Constitution is Color-Blind," 44 STAN. L. REV. 1 (1991); Ian F. Haney López, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REV. 1 (1994); Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707 (1993); D. Marvin Jones, Darkness Made Visible: Law, Metaphor, and the Racial Self, 82 GEO. L.J. 437 (1993); Jayne Chong-Soon Lee, Navigating the Topology of Race, 46 STAN. L. REV 747 (1994) (reviewing APPIAH, supra note 15). Several legal scholars have referred directly to a few of the cases in this study, as cautionary examples of relying on law to construct or deconstruct racial categories. Christine Hickman, in an article about the proposal to add a "multiracial" category to the U.S. Census, discusses several of these cases to demonstrate the absurdity of legal determinations of arbitrary racial boundaries and the dangers of "re-biologizing" race. See Christine B. Hickman, The Devil and the One Drop Rule: Racial Categories, African Americans, and the U.S. Census, 95 MICH. L. REV. 1161 (1997). Hickman, Ian Haney López, and Kenneth Karst, in articles that are primarily theoretical, also give examples of these cases to illustrate the role of law in creating identities. See Haney López, supra; Hickman, supra; Kenneth L. Karst, Myths of Identity: Individual and Group Portraits of Race and Sexual Orientation, 43 UCLA L. REV. 243 (1995).
42. See, e.g., Neil Gotanda, A Critique of "Our Constitution is Color-Blind," 44 STAN. L. REV. 1 (1991); Ian F. Haney López, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REV. 1 (1994); Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707 (1993); D. Marvin Jones, Darkness Made Visible: Law, Metaphor, and the Racial Self, 82 GEO. L.J. 437 (1993); Jayne Chong-Soon Lee, Navigating the Topology of Race, 46 STAN. L. REV 747 (1994) (reviewing APPIAH, supra note 15). Several legal scholars have referred directly to a few of the cases in this study, as cautionary examples of relying on law to construct or deconstruct racial categories. Christine Hickman, in an article about the proposal to add a "multiracial" category to the U.S. Census, discusses several of these cases to demonstrate the absurdity of legal determinations of arbitrary racial boundaries and the dangers of "re-biologizing" race. See Christine B. Hickman, The Devil and the One Drop Rule: Racial Categories, African Americans, and the U.S. Census, 95 MICH. L. REV. 1161 (1997). Hickman, Ian Haney López, and Kenneth Karst, in articles that are primarily theoretical, also give examples of these cases to illustrate the role of law in creating identities. See Haney López, supra; Hickman, supra; Kenneth L. Karst, Myths of Identity: Individual and Group Portraits of Race and Sexual Orientation, 43 UCLA L. REV. 243 (1995).
43. See, e.g., Neil Gotanda, A Critique of "Our Constitution is Color-Blind," 44 STAN. L. REV. 1 (1991); Ian F. Haney López, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REV. 1 (1994); Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707 (1993); D. Marvin Jones, Darkness Made Visible: Law, Metaphor, and the Racial Self, 82 GEO. L.J. 437 (1993); Jayne Chong-Soon Lee, Navigating the Topology of Race, 46 STAN. L. REV 747 (1994) (reviewing APPIAH, supra note 15). Several legal scholars have referred directly to a few of the cases in this study, as cautionary examples of relying on law to construct or deconstruct racial categories. Christine Hickman, in an article about the proposal to add a "multiracial" category to the U.S. Census, discusses several of these cases to demonstrate the absurdity of legal determinations of arbitrary racial boundaries and the dangers of
44. See, e.g., Neil Gotanda, A Critique of "Our Constitution is Color-Blind," 44 STAN. L. REV. 1 (1991); Ian F. Haney López, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REV. 1 (1994); Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707 (1993); D. Marvin Jones, Darkness Made Visible: Law, Metaphor, and the Racial Self, 82 GEO. L.J. 437 (1993); Jayne Chong-Soon Lee, Navigating the Topology of Race, 46 STAN. L. REV 747 (1994) (reviewing APPIAH, supra note 15). Several legal scholars have referred directly to a few of the cases in this study, as cautionary examples of relying on law to construct or deconstruct racial categories. Christine Hickman, in an article about the proposal to add a "multiracial" category to the U.S. Census, discusses several of these cases to demonstrate the absurdity of legal determinations of arbitrary racial boundaries and the dangers of "re-biologizing" race. See Christine B. Hickman, The Devil and the One Drop Rule: Racial Categories, African Americans, and the U.S. Census, 95 MICH. L. REV. 1161 (1997). Hickman, Ian Haney López, and Kenneth Karst, in articles that are primarily theoretical, also give examples of these cases to illustrate the role of law in creating identities. See Haney López, supra; Hickman, supra; Kenneth L. Karst, Myths of Identity: Individual and Group Portraits of Race and Sexual Orientation, 43 UCLA L. REV. 243 (1995).
45. See, e.g., Neil Gotanda, A Critique of "Our Constitution is Color-Blind," 44 STAN. L. REV. 1 (1991); Ian F. Haney López, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REV. 1 (1994); Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707 (1993); D. Marvin Jones, Darkness Made Visible: Law, Metaphor, and the Racial Self, 82 GEO. L.J. 437 (1993); Jayne Chong-Soon Lee, Navigating the Topology of Race, 46 STAN. L. REV 747 (1994) (reviewing APPIAH, supra note 15). Several legal scholars have referred directly to a few of the cases in this study, as cautionary examples of relying on law to construct or deconstruct racial categories. Christine Hickman, in an article about the proposal to add a "multiracial" category to the U.S. Census, discusses several of these cases to demonstrate the absurdity of legal determinations of arbitrary racial boundaries and the dangers of "re-biologizing" race. See Christine B. Hickman, The Devil and the One Drop Rule: Racial Categories, African Americans, and the U.S. Census, 95 MICH. L. REV. 1161 (1997). Hickman, Ian Haney López, and Kenneth Karst, in articles that are primarily theoretical, also give examples of these cases to illustrate the role of law in creating identities. See Haney López, supra; Hickman, supra; Kenneth L. Karst, Myths of Identity: Individual and Group Portraits of Race and Sexual Orientation, 43 UCLA L. REV. 243 (1995).
46. IAN F. HANEY LÓPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE (1996). Haney López makes two specific arguments about ́legal construction.́ First, he argues that racial definitions set out in court literally shaped physical appearances by excluding certain people as "non-white" and preventing them from intermarrying with the white population. See id. at 116-23. Second, he argues that law "legitimates the existence of races," id. at 124, and "help[s] racial categories to transcend the sociohistorical contexts in which they develop," id. at 126. His study examines a set of federal appellate opinions he calls the "racial prerequisite cases," in which courts determined the racial status of an immigrant in order to decide whether he could be naturalized as a citizen. From 1790 to 1952, only "white persons" were eligible for naturalized citizenship.
47. Two historians have investigated the individual stories of the subjects of two trials I discuss at length in this Article concurrent with my research. Neither of their case studies are primarily concerned with legal history. See MARTHA HODES, WHITE WOMEN, BLACK MEN: ILLICIT SEX IN THE NINETEENTH-CENTURY SOUTH (1997); Walter Johnson, Slavery, Whiteness, and the Market: The Strange Case of Alexina Morrison (1997) (unpublished manuscript, on file with The Yale Law Journal). There are only a handful of 19th-century legal histories drawing on large numbers of trial court records. See LAWRENCE M. FRIEDMAN & ROBERT V. PERCIVAL, THE ROOTS OF JUSTICE: CRIME AND PUNISHMENT IN ALAMEDA COUNTY, CALIFORNIA, 1870-1910 (1981); Wayne McIntosh, 150 Years of Litigation and Dispute Settlement: A Court Tale, 15 L. & SOC'Y REV. 823 (1981); Thomas D. Russell, South Carolina's Largest Slave Auctioneering Firm, 68 CHI.-KENT L. REV. 1241 (1993); Christopher Waldrep, The Making of a Border State Society: James McGready, the Great Revival, and the Prosecution of Profanity in Kentucky, 99 AM. HIST. REV. 767 (1994); Christopher Waldrep, Substituting Law for the Lash: Emancipation and Legal Formalism in a Mississippi County Court, 82 J. AM. HIST. 1425 (1996).
48. Two historians have investigated the individual stories of the subjects of two trials I discuss at length in this Article concurrent with my research. Neither of their case studies are primarily concerned with legal history. See MARTHA HODES, WHITE WOMEN, BLACK MEN: ILLICIT SEX IN THE NINETEENTH-CENTURY SOUTH (1997); Walter Johnson, Slavery, Whiteness, and the Market: The Strange Case of Alexina Morrison (1997) (unpublished manuscript, on file with The Yale Law Journal). There are only a handful of 19th-century legal histories drawing on large numbers of trial court records. See LAWRENCE M. FRIEDMAN & ROBERT V. PERCIVAL, THE ROOTS OF JUSTICE: CRIME AND PUNISHMENT IN ALAMEDA COUNTY, CALIFORNIA, 1870-1910 (1981); Wayne McIntosh, 150 Years of Litigation and Dispute Settlement: A Court Tale, 15 L. & SOC'Y REV. 823 (1981); Thomas D. Russell, South Carolina's Largest Slave Auctioneering Firm, 68 CHI.-KENT L. REV. 1241 (1993); Christopher Waldrep, The Making of a Border State Society: James McGready, the Great Revival, and the Prosecution of Profanity in Kentucky, 99 AM. HIST. REV. 767 (1994); Christopher Waldrep, Substituting Law for the Lash: Emancipation and Legal Formalism in a Mississippi County Court, 82 J. AM. HIST. 1425 (1996).
49. Two historians have investigated the individual stories of the subjects of two trials I discuss at length in this Article concurrent with my research. Neither of their case studies are primarily concerned with legal history. See MARTHA HODES, WHITE WOMEN, BLACK MEN: ILLICIT SEX IN THE NINETEENTH-CENTURY SOUTH (1997); Walter Johnson, Slavery, Whiteness, and the Market: The Strange Case of Alexina Morrison (1997) (unpublished manuscript, on file with The Yale Law Journal). There are only a handful of 19th-century legal histories drawing on large numbers of trial court records. See LAWRENCE M. FRIEDMAN & ROBERT V. PERCIVAL, THE ROOTS OF JUSTICE: CRIME AND PUNISHMENT IN ALAMEDA COUNTY, CALIFORNIA, 1870-1910 (1981); Wayne McIntosh, 150 Years of Litigation and Dispute Settlement: A Court Tale, 15 L. & SOC'Y REV. 823 (1981); Thomas D. Russell, South Carolina's Largest Slave Auctioneering Firm, 68 CHI.-KENT L. REV. 1241 (1993); Christopher Waldrep, The Making of a Border State Society: James McGready, the Great Revival, and the Prosecution of Profanity in Kentucky, 99 AM. HIST. REV. 767 (1994); Christopher Waldrep, Substituting Law for the Lash: Emancipation and Legal Formalism in a Mississippi County Court, 82 J. AM. HIST. 1425 (1996).
50. Two historians have investigated the individual stories of the subjects of two trials I discuss at length in this Article concurrent with my research. Neither of their case studies are primarily concerned with legal history. See MARTHA HODES, WHITE WOMEN, BLACK MEN: ILLICIT SEX IN THE NINETEENTH-CENTURY SOUTH (1997); Walter Johnson, Slavery, Whiteness, and the Market: The Strange Case of Alexina Morrison (1997) (unpublished manuscript, on file with The Yale Law Journal). There are only a handful of 19th-century legal histories drawing on large numbers of trial court records. See LAWRENCE M. FRIEDMAN & ROBERT V. PERCIVAL, THE ROOTS OF JUSTICE: CRIME AND PUNISHMENT IN ALAMEDA COUNTY, CALIFORNIA, 1870-1910 (1981); Wayne McIntosh, 150 Years of Litigation and Dispute Settlement: A Court Tale, 15 L. & SOC'Y REV. 823 (1981); Thomas D. Russell, South Carolina's Largest Slave Auctioneering Firm, 68 CHI.-KENT L. REV. 1241 (1993); Christopher Waldrep, The Making of a Border State Society: James McGready, the Great Revival, and the Prosecution of Profanity in Kentucky, 99 AM. HIST. REV. 767 (1994); Christopher Waldrep, Substituting Law for the Lash: Emancipation and Legal Formalism in a Mississippi County Court, 82 J. AM. HIST. 1425 (1996).
51. Two historians have investigated the individual stories of the subjects of two trials I discuss at length in this Article concurrent with my research. Neither of their case studies are primarily concerned with legal history. See MARTHA HODES, WHITE WOMEN, BLACK MEN: ILLICIT SEX IN THE NINETEENTH-CENTURY SOUTH (1997); Walter Johnson, Slavery, Whiteness, and the Market: The Strange Case of Alexina Morrison (1997) (unpublished manuscript, on file with The Yale Law Journal). There are only a handful of 19th-century legal histories drawing on large numbers of trial court records. See LAWRENCE M. FRIEDMAN & ROBERT V. PERCIVAL, THE ROOTS OF JUSTICE: CRIME AND PUNISHMENT IN ALAMEDA COUNTY, CALIFORNIA, 1870-1910 (1981); Wayne McIntosh, 150 Years of Litigation and Dispute Settlement: A Court Tale, 15 L. & SOC'Y REV. 823 (1981); Thomas D. Russell, South Carolina's Largest Slave Auctioneering Firm, 68 CHI.-KENT L. REV. 1241 (1993); Christopher Waldrep, The Making of a Border State Society: James McGready, the Great Revival, and the Prosecution of Profanity in Kentucky, 99 AM. HIST. REV. 767 (1994); Christopher Waldrep, Substituting Law for the Lash: Emancipation and Legal Formalism in a Mississippi County Court, 82 J. AM. HIST. 1425 (1996).
52. Two historians have investigated the individual stories of the subjects of two trials I discuss at length in this Article concurrent with my research. Neither of their case studies are primarily concerned with legal history. See MARTHA HODES, WHITE WOMEN, BLACK MEN: ILLICIT SEX IN THE NINETEENTH-CENTURY SOUTH (1997); Walter Johnson, Slavery, Whiteness, and the Market: The Strange Case of Alexina Morrison (1997) (unpublished manuscript, on file with The Yale Law Journal). There are only a handful of 19th-century legal histories drawing on large numbers of trial court records. See LAWRENCE M. FRIEDMAN & ROBERT V. PERCIVAL, THE ROOTS OF JUSTICE: CRIME AND PUNISHMENT IN ALAMEDA COUNTY, CALIFORNIA, 1870-1910 (1981); Wayne McIntosh, 150 Years of Litigation and Dispute Settlement: A Court Tale, 15 L. & SOC'Y REV. 823 (1981); Thomas D. Russell, South Carolina's Largest Slave Auctioneering Firm, 68 CHI.-KENT L. REV. 1241 (1993); Christopher Waldrep, The Making of a Border State Society: James McGready, the Great Revival, and the Prosecution of Profanity in Kentucky, 99 AM. HIST. REV. 767 (1994); Christopher Waldrep, Substituting Law for the Lash: Emancipation and Legal Formalism in a Mississippi County Court, 82 J. AM. HIST. 1425 (1996).
53. Two historians have investigated the individual stories of the subjects of two trials I discuss at length in this Article concurrent with my research. Neither of their case studies are primarily concerned with legal history. See MARTHA HODES, WHITE WOMEN, BLACK MEN: ILLICIT SEX IN THE NINETEENTH-CENTURY SOUTH (1997); Walter Johnson, Slavery, Whiteness, and the Market: The Strange Case of Alexina Morrison (1997) (unpublished manuscript, on file with The Yale Law Journal). There are only a handful of 19th-century legal histories drawing on large numbers of trial court records. See LAWRENCE M. FRIEDMAN & ROBERT V. PERCIVAL, THE ROOTS OF JUSTICE: CRIME AND PUNISHMENT IN ALAMEDA COUNTY, CALIFORNIA, 1870-1910 (1981); Wayne McIntosh, 150 Years of Litigation and Dispute Settlement: A Court Tale, 15 L. & SOC'Y REV. 823 (1981); Thomas D. Russell, South Carolina's Largest Slave Auctioneering Firm, 68 CHI.-KENT L. REV. 1241 (1993); Christopher Waldrep, The Making of a Border State Society: James McGready, the Great Revival, and the Prosecution of Profanity in Kentucky, 99 AM. HIST. REV. 767 (1994); Christopher Waldrep, Substituting Law for the Lash: Emancipation and Legal Formalism in a Mississippi County Court, 82 J. AM. HIST. 1425 (1996).
54. On the jury as a central instrument of governance with power over law and fact questions, see WILLIAM E. NELSON, AMERICANIZATION OF THE COMMON LAW 20-30 (1975); and Stephan Landsman, The Civil Jury in America: Scenes from an Unappreciated History, 44 HASTINGS L.J. 579 (1993). For example, during the 1830s, most Southern states instituted some form of judicial elections; passed laws limiting judges' instructions only to those requested by the litigants, meaning that some "law" questions might effectively be left to the jury; and, at least during the antebellum period, jurors "were told frequently that they had the right and power to reject the judge's view of the law." Alan Scheflin & Jon Van Dyke, Jury Nullification: The Contours of a Controversy, LAW & CONTEMP. PROBS., Autumn 1980 at 51, 54; see, e.g., Mississippi Limiting Act of 1833, ch. 37, 1839 Miss. Laws § 227 ("That for the better preservation of the sanctity of the right of trial by . . . jury, no judge or justice . . . shall . . . charge said jury on points or principles of law, applicable to the case before them, unless the parties to such issue or issues or the counsel differ in opinion as to the same, or, unless one of the parties to such issue or issues shall ask the charge of said judge or justice . . . which shall be distinctly specified by the persons asking such charge."). While the common law tradition of jurors as "neighbor-witnesses" participating in the investigation and judging of the trial was fading, and judges increasingly exercised their power to find judgments notwithstanding the verdict (j.n.o.v.), see John Marshall Mitnick, From Neighbor-Witness to Judge of Proofs: The Transformation of the English Civil Juror, 32 AM. J. LEGAL HIST. 201 (1988), none of the cases under study here ended in a j.n.o.v.; cases appealed to a higher court, if overturned, were remanded for a new jury trial. I discuss juries in cases involving slaves in Ariela Gross, Pandora's Box: Slavery, Character, and Southern Culture in the Courtroom, 1800-1860, at 217-21 (1996) (unpublished Ph.D. dissertation, Stanford University) (on file with the Stanford University Library).
55. On the jury as a central instrument of governance with power over law and fact questions, see WILLIAM E. NELSON, AMERICANIZATION OF THE COMMON LAW 20-30 (1975); and Stephan Landsman, The Civil Jury in America: Scenes from an Unappreciated History, 44 HASTINGS L.J. 579 (1993). For example, during the 1830s, most Southern states instituted some form of judicial elections; passed laws limiting judges' instructions only to those requested by the litigants, meaning that some "law" questions might effectively be left to the jury; and, at least during the antebellum period, jurors "were told frequently that they had the right and power to reject the judge's view of the law." Alan Scheflin & Jon Van Dyke, Jury Nullification: The Contours of a Controversy, LAW & CONTEMP. PROBS., Autumn 1980 at 51, 54; see, e.g., Mississippi Limiting Act of 1833, ch. 37, 1839 Miss. Laws § 227 ("That for the better preservation of the sanctity of the right of trial by . . . jury, no judge or justice . . . shall . . . charge said jury on points or principles of law, applicable to the case before them, unless the parties to such issue or issues or the counsel differ in opinion as to the same, or, unless one of the parties to such issue or issues shall ask the charge of said judge or justice . . . which shall be distinctly specified by the persons asking such charge."). While the common law tradition of jurors as "neighbor-witnesses" participating in the investigation and judging of the trial was fading, and judges increasingly exercised their power to find judgments notwithstanding the verdict (j.n.o.v.), see John Marshall Mitnick, From Neighbor-Witness to Judge of Proofs: The Transformation of the English Civil Juror, 32 AM. J. LEGAL HIST. 201 (1988), none of the cases under study here ended in a j.n.o.v.; cases appealed to a higher court, if overturned, were remanded for a new jury trial. I discuss juries in cases involving slaves in Ariela Gross, Pandora's Box: Slavery, Character, and Southern Culture in the Courtroom, 1800-1860, at 217-21 (1996) (unpublished Ph.D. dissertation, Stanford University) (on file with the Stanford University Library).
56. On the jury as a central instrument of governance with power over law and fact questions, see WILLIAM E. NELSON, AMERICANIZATION OF THE COMMON LAW 20-30 (1975); and Stephan Landsman, The Civil Jury in America: Scenes from an Unappreciated History, 44 HASTINGS L.J. 579 (1993). For example, during the 1830s, most Southern states instituted some form of judicial elections; passed laws limiting judges' instructions only to those requested by the litigants, meaning that some "law" questions might effectively be left to the jury; and, at least during the antebellum period, jurors "were told frequently that they had the right and power to reject the judge's view of the law." Alan Scheflin & Jon Van Dyke, Jury Nullification: The Contours of a Controversy, LAW & CONTEMP. PROBS., Autumn 1980 at 51, 54; see, e.g., Mississippi Limiting Act of 1833, ch. 37, 1839 Miss. Laws § 227 ("That for the better preservation of the sanctity of the right of trial by . . . jury, no judge or justice . . . shall . . . charge said jury on points or principles of law, applicable to the case before them, unless the parties to such issue or issues or the counsel differ in opinion as to the same, or, unless one of the parties to such issue or issues shall ask the charge of said judge or justice . . . which shall be distinctly specified by the persons asking such charge."). While the common law tradition of jurors as "neighbor-witnesses" participating in the investigation and judging of the trial was fading, and judges increasingly exercised their power to find judgments notwithstanding the verdict (j.n.o.v.), see John Marshall Mitnick, From Neighbor-Witness to Judge of Proofs: The Transformation of the English Civil Juror, 32 AM. J. LEGAL HIST. 201 (1988), none of the cases under study here ended in a j.n.o.v.; cases appealed to a higher court, if overturned, were remanded for a new jury trial. I discuss juries in cases involving slaves in Ariela Gross, Pandora's Box: Slavery, Character, and Southern Culture in the Courtroom, 1800-1860, at 217-21 (1996) (unpublished Ph.D. dissertation, Stanford University) (on file with the Stanford University Library).
57. On the jury as a central instrument of governance with power over law and fact questions, see WILLIAM E. NELSON, AMERICANIZATION OF THE COMMON LAW 20-30 (1975); and Stephan Landsman, The Civil Jury in America: Scenes from an Unappreciated History, 44 HASTINGS L.J. 579 (1993). For example, during the 1830s, most Southern states instituted some form of judicial elections; passed laws limiting judges' instructions only to those requested by the litigants, meaning that some "law" questions might effectively be left to the jury; and, at least during the antebellum period, jurors "were told frequently that they had the right and power to reject the judge's view of the law." Alan Scheflin & Jon Van Dyke, Jury Nullification: The Contours of a Controversy, LAW & CONTEMP. PROBS., Autumn 1980 at 51, 54; see, e.g., Mississippi Limiting Act of 1833, ch. 37, 1839 Miss. Laws § 227 ("That for the better preservation of the sanctity of the right of trial by . . . jury, no judge or justice . . . shall . . . charge said jury on points or principles of law, applicable to the case before them, unless the parties to such issue or issues or the counsel differ in opinion as to the same, or, unless one of the parties to such issue or issues shall ask the charge of said judge or justice . . . which shall be distinctly specified by the persons asking such charge."). While the common law tradition of jurors as "neighbor-witnesses" participating in the investigation and judging of the trial was fading, and judges increasingly exercised their power to find judgments notwithstanding the verdict (j.n.o.v.), see John Marshall Mitnick, From Neighbor-Witness to Judge of Proofs: The Transformation of the English Civil Juror, 32 AM. J. LEGAL HIST. 201 (1988), none of the cases under study here ended in a j.n.o.v.; cases appealed to a higher court, if overturned, were remanded for a new jury trial. I discuss juries in cases involving slaves in Ariela Gross, Pandora's Box: Slavery, Character, and Southern Culture in the Courtroom, 1800-1860, at 217-21 (1996) (unpublished Ph.D. dissertation, Stanford University) (on file with the Stanford University Library).
58. On the jury as a central instrument of governance with power over law and fact questions, see WILLIAM E. NELSON, AMERICANIZATION OF THE COMMON LAW 20-30 (1975); and Stephan Landsman, The Civil Jury in America: Scenes from an Unappreciated History, 44 HASTINGS L.J. 579 (1993). For example, during the 1830s, most Southern states instituted some form of judicial elections; passed laws limiting judges' instructions only to those requested by the litigants, meaning that some "law" questions might effectively be left to the jury; and, at least during the antebellum period, jurors "were told frequently that they had the right and power to reject the judge's view of the law." Alan Scheflin & Jon Van Dyke, Jury Nullification: The Contours of a Controversy, LAW & CONTEMP. PROBS., Autumn 1980 at 51, 54; see, e.g., Mississippi Limiting Act of 1833, ch. 37, 1839 Miss. Laws § 227 ("That for the better preservation of the sanctity of the right of trial by . . . jury, no judge or justice . . . shall . . . charge said jury on points or principles of law, applicable to the case before them, unless the parties to such issue or issues or the counsel differ in opinion as to the same, or, unless one of the parties to such issue or issues shall ask the charge of said judge or justice . . . which shall be distinctly specified by the persons asking such charge."). While the common law tradition of jurors as "neighbor-witnesses" participating in the investigation and judging of the trial was fading, and judges increasingly exercised their power to find judgments notwithstanding the verdict (j.n.o.v.), see John Marshall Mitnick, From Neighbor-Witness to Judge of Proofs: The Transformation of the English Civil Juror, 32 AM. J. LEGAL HIST. 201 (1988), none of the cases under study here ended in a j.n.o.v.; cases appealed to a higher court, if overturned, were remanded for a new jury trial. I discuss juries in cases involving slaves in Ariela Gross, Pandora's Box: Slavery, Character, and Southern Culture in the Courtroom, 1800-1860, at 217-21 (1996) (unpublished Ph.D. dissertation, Stanford University) (on file with the Stanford University Library).
59. On the jury as a central instrument of governance with power over law and fact questions, see WILLIAM E. NELSON, AMERICANIZATION OF THE COMMON LAW 20-30 (1975); and Stephan Landsman, The Civil Jury in America: Scenes from an Unappreciated History, 44 HASTINGS L.J. 579 (1993). For example, during the 1830s, most Southern states instituted some form of judicial elections; passed laws limiting judges' instructions only to those requested by the litigants, meaning that some "law" questions might effectively be left to the jury; and, at least during the antebellum period, jurors "were told frequently that they had the right and power to reject the judge's view of the law." Alan Scheflin & Jon Van Dyke, Jury Nullification: The Contours of a Controversy, LAW & CONTEMP. PROBS., Autumn 1980 at 51, 54; see, e.g., Mississippi Limiting Act of 1833, ch. 37, 1839 Miss. Laws § 227 ("That for the better preservation of the sanctity of the right of trial by . . . jury, no judge or justice . . . shall . . . charge said jury on points or principles of law, applicable to the case before them, unless the parties to such issue or issues or the counsel differ in opinion as to the same, or, unless one of the parties to such issue or issues shall ask the charge of said judge or justice . . . which shall be distinctly specified by the persons asking such charge."). While the common law tradition of jurors as "neighbor-witnesses" participating in the investigation and judging of the trial was fading, and judges increasingly exercised their power to find judgments notwithstanding the verdict (j.n.o.v.), see John Marshall Mitnick, From Neighbor-Witness to Judge of Proofs: The Transformation of the English Civil Juror, 32 AM. J. LEGAL HIST. 201 (1988), none of the cases under study here ended in a j.n.o.v.; cases appealed to a higher court, if overturned, were remanded for a new jury trial. I discuss juries in cases involving slaves in Ariela Gross, Pandora's Box: Slavery, Character, and Southern Culture in the Courtroom, 1800-1860, at 217-21 (1996) (unpublished Ph.D. dissertation, Stanford University) (on file with the Stanford University Library).
60. Most Southern states had statutory definitions of racial status, which sociologists call hypodescent rules because they were based on fractions of African or "negro" blood or ancestry. Before the Civil War, many states specified one-fourth or one-eighth negro blood as the demarcation line between black and white. But some states, including Arkansas, had no statutory rule and relied on the common law. Whereas this led to a more restrictive rule in Arkansas, as set out in Daniel v. Guy, other states, such as South Carolina, developed a much more expansive definition of "negro" that did not depend on precise rules of blood fractions. After the Civil War, many states passed laws enlarging the definition of "negro" to include everyone with any African ancestry - what is known as a "one-drop" rule. See DAVIS, supra note 11, at 47-50. Issues on appeal sometimes bore little resemblance to those at trial. On appeal, for example, litigants often raised issues of form, particularly of the language of color. For example, in Covey v. State, 16 Miss. (8 S. & M.) 573 (1847), a defendant tried to have his conviction for theft overturned because the indictment did not set out a description of him as a person of color. The Mississippi High Court of Errors and Appeals rejected this appeal. Id. Dick v. State involved a mulatto accused of attempted rape. See Transcript of Trial, Dick v. State, No. 7379 (Miss. Pontotoc County Cir. Ct.) (collection of Miss. Dep't of Archives & History, Jackson, Miss., Record Group 32), aff'd, 30 Miss. 631 (1856). The defendant asked for a charge "that if the jury believed from the evidence, that [defendant Dick] was a mulatto slave, and not a negro man slave, as charged in the indictment, they should acquit him." Dick, 30 Miss. at 633 (quoting trial transcript). The trial court refused, and the decision was affirmed by the High Court of Errors and Appeals. As the Attorney General argued, "[i]t is not the color of a slave but his social status which determines him to be a negro slave under our laws. All slaves, whether black brown blue or mulatto or albino are negroes in the meaning of our laws." Transcript of Trial, Dick v. State, supra (appellate brief). As the South Carolina Court of Appeal explained in Ex parte Leland, "The word negroes has a fixed meaning (slaves)." 10 S.C.L. (1 Nott & McC.) 460, 462 (1819); see also State v. Warrington, 3 Del. (3 Harr.) 556 (1840) (finding it unnecessary to distinguish between "negro" and "mulatto" on indictment).
61. My view of law's constitutive role in culture draws inspiration from both anthropologists who have studied trials as local cultural rituals and New Historicist literary critics who read trial narratives as cultural artifacts of a particular historical moment. As Guyora Binder and Robert Weisberg argue, in anthropological and New Historicist studies, one can see the way "legal forms and legal processes play a compositional role in modern culture," Guyora Binder & Robert Weisberg, Cultural Criticism of Law, 49 STAN. L. REV. 1149, 1150 (1997), by "view[ing] law as an arena for the performance and contestation of representations of self and as an influence on the roles and identities available to groups and individuals in portraying themselves." Id. at 1152; see also JAMES CLIFFORD, Identity in Mashpee, in THE PREDICAMENT OF CULTURE: TWENTIETH-CENTURY ETHNOGRAPHY, LITERATURE, AND ART 277 (1988) (discussing the Mashpee trial and the construction of Indian identity); CONTESTED STATES, supra note 6 (exploring the intersections of legal history and the anthropology of law); VIRGINIA R. DOMÍNGUEZ, WHITE BY DEFINITION: SOCIAL CLASSIFICATION IN CREOLE LOUISIANA (1986) (examining the history of racial definition in Louisiana through an ethnography of the "creole" community); CLIFFORD GEERTZ, LOCAL KNOWLEDGE 167-236 (1983) (discussing the constitutive role of law in culture); Richard Wightman Fox, Intimacy on Trial: Cultural Meanings of the Beecher-Tilton Affair, in THE POWER OF CULTURE: CRITICAL ESSAYS IN AMERICAN HISTORY 103 (Richard Wightman Fox & T.J. Jackson Lears eds., 1993) (analyzing the Beecher-Tilton affair from a cultural anthropology perspective); Stephen Greenblatt, Towards a Poetics of Culture, in THE NEW HISTORICISM 1 (H. Aram Veeser ed., 1989) (discussing New Historicist cultural criticism); Amy Robinson, Forms of Appearance of Value: Homer Plessy and the Politics of Privacy, in PERFORMANCE AND CULTURAL POLITICS, supra note 8, at 239 (analyzing Plessy v. Ferguson, 163 U.S. 537 (1896), from the perspective of cultural criticism).
62. My view of law's constitutive role in culture draws inspiration from both anthropologists who have studied trials as local cultural rituals and New Historicist literary critics who read trial narratives as cultural artifacts of a particular historical moment. As Guyora Binder and Robert Weisberg argue, in anthropological and New Historicist studies, one can see the way "legal forms and legal processes play a compositional role in modern culture," Guyora Binder & Robert Weisberg, Cultural Criticism of Law, 49 STAN. L. REV. 1149, 1150 (1997), by "view[ing] law as an arena for the performance and contestation of representations of self and as an influence on the roles and identities available to groups and individuals in portraying themselves." Id. at 1152; see also JAMES CLIFFORD, Identity in Mashpee, in THE PREDICAMENT OF CULTURE: TWENTIETH-CENTURY ETHNOGRAPHY, LITERATURE, AND ART 277 (1988) (discussing the Mashpee trial and the construction of Indian identity); CONTESTED STATES, supra note 6 (exploring the intersections of legal history and the anthropology of law); VIRGINIA R. DOMÍNGUEZ, WHITE BY DEFINITION: SOCIAL CLASSIFICATION IN CREOLE LOUISIANA (1986) (examining the history of racial definition in Louisiana through an ethnography of the "creole" community); CLIFFORD GEERTZ, LOCAL KNOWLEDGE 167-236 (1983) (discussing the constitutive role of law in culture); Richard Wightman Fox, Intimacy on Trial: Cultural Meanings of the Beecher-Tilton Affair, in THE POWER OF CULTURE: CRITICAL ESSAYS IN AMERICAN HISTORY 103 (Richard Wightman Fox & T.J. Jackson Lears eds., 1993) (analyzing the Beecher-Tilton affair from a cultural anthropology perspective); Stephen Greenblatt, Towards a Poetics of Culture, in THE NEW HISTORICISM 1 (H. Aram Veeser ed., 1989) (discussing New Historicist cultural criticism); Amy Robinson, Forms of Appearance of Value: Homer Plessy and the Politics of Privacy, in PERFORMANCE AND CULTURAL POLITICS, supra note 8, at 239 (analyzing Plessy v. Ferguson, 163 U.S. 537 (1896), from the perspective of cultural criticism).
63. My view of law's constitutive role in culture draws inspiration from both anthropologists who have studied trials as local cultural rituals and New Historicist literary critics who read trial narratives as cultural artifacts of a particular historical moment. As Guyora Binder and Robert Weisberg argue, in anthropological and New Historicist studies, one can see the way "legal forms and legal processes play a compositional role in modern culture," Guyora Binder & Robert Weisberg, Cultural Criticism of Law, 49 STAN. L. REV. 1149, 1150 (1997), by "view[ing] law as an arena for the performance and contestation of representations of self and as an influence on the roles and identities available to groups and individuals in portraying themselves." Id. at 1152; see also JAMES CLIFFORD, Identity in Mashpee, in THE PREDICAMENT OF CULTURE: TWENTIETH-CENTURY ETHNOGRAPHY, LITERATURE, AND ART 277 (1988) (discussing the Mashpee trial and the construction of Indian identity); CONTESTED STATES, supra note 6 (exploring the intersections of legal history and the anthropology of law); VIRGINIA R. DOMÍNGUEZ, WHITE BY DEFINITION: SOCIAL CLASSIFICATION IN CREOLE LOUISIANA (1986) (examining the history of racial definition in Louisiana through an ethnography of the "creole" community); CLIFFORD GEERTZ, LOCAL KNOWLEDGE 167-236 (1983) (discussing the constitutive role of law in culture); Richard Wightman Fox, Intimacy on Trial: Cultural Meanings of the Beecher-Tilton Affair, in THE POWER OF CULTURE: CRITICAL ESSAYS IN AMERICAN HISTORY 103 (Richard Wightman Fox & T.J. Jackson Lears eds., 1993) (analyzing the Beecher-Tilton affair from a cultural anthropology perspective); Stephen Greenblatt, Towards a Poetics of Culture, in THE NEW HISTORICISM 1 (H. Aram Veeser ed., 1989) (discussing New Historicist cultural criticism); Amy Robinson, Forms of Appearance of Value: Homer Plessy and the Politics of Privacy, in PERFORMANCE AND CULTURAL POLITICS, supra note 8, at 239 (analyzing Plessy v. Ferguson, 163 U.S. 537 (1896), from the perspective of cultural criticism).
64. My view of law's constitutive role in culture draws inspiration from both anthropologists who have studied trials as local cultural rituals and New Historicist literary critics who read trial narratives as cultural artifacts of a particular historical moment. As Guyora Binder and Robert Weisberg argue, in anthropological and New Historicist studies, one can see the way "legal forms and legal processes play a compositional role in modern culture," Guyora Binder & Robert Weisberg, Cultural Criticism of Law, 49 STAN. L. REV. 1149, 1150 (1997), by "view[ing] law as an arena for the performance and contestation of representations of self and as an influence on the roles and identities available to groups and individuals in portraying themselves." Id. at 1152; see also JAMES CLIFFORD, Identity in Mashpee, in THE PREDICAMENT OF CULTURE: TWENTIETH-CENTURY ETHNOGRAPHY, LITERATURE, AND ART 277 (1988) (discussing the Mashpee trial and the construction of Indian identity); CONTESTED STATES, supra note 6 (exploring the intersections of legal history and the anthropology of law); VIRGINIA R. DOMÍNGUEZ, WHITE BY DEFINITION: SOCIAL CLASSIFICATION IN CREOLE LOUISIANA (1986) (examining the history of racial definition in Louisiana through an ethnography of the "creole" community); CLIFFORD GEERTZ, LOCAL KNOWLEDGE 167-236 (1983) (discussing the constitutive role of law in culture); Richard Wightman Fox, Intimacy on Trial: Cultural Meanings of the Beecher-Tilton Affair, in THE POWER OF CULTURE: CRITICAL ESSAYS IN AMERICAN HISTORY 103 (Richard Wightman Fox & T.J. Jackson Lears eds., 1993) (analyzing the Beecher-Tilton affair from a cultural anthropology perspective); Stephen Greenblatt, Towards a Poetics of Culture, in THE NEW HISTORICISM 1 (H. Aram Veeser ed., 1989) (discussing New Historicist cultural criticism); Amy Robinson, Forms of Appearance of Value: Homer Plessy and the Politics of Privacy, in PERFORMANCE AND CULTURAL POLITICS, supra note 8, at 239 (analyzing Plessy v. Ferguson, 163 U.S. 537 (1896), from the perspective of cultural criticism).
65. My view of law's constitutive role in culture draws inspiration from both anthropologists who have studied trials as local cultural rituals and New Historicist literary critics who read trial narratives as cultural artifacts of a particular historical moment. As Guyora Binder and Robert Weisberg argue, in anthropological and New Historicist studies, one can see the way "legal forms and legal processes play a compositional role in modern culture," Guyora Binder & Robert Weisberg, Cultural Criticism of Law, 49 STAN. L. REV. 1149, 1150 (1997), by "view[ing] law as an arena for the performance and contestation of representations of self and as an influence on the roles and identities available to groups and individuals in portraying themselves." Id. at 1152; see also JAMES CLIFFORD, Identity in Mashpee, in THE PREDICAMENT OF CULTURE: TWENTIETH-CENTURY ETHNOGRAPHY, LITERATURE, AND ART 277 (1988) (discussing the Mashpee trial and the construction of Indian identity); CONTESTED STATES, supra note 6 (exploring the intersections of legal history and the anthropology of law); VIRGINIA R. DOMÍNGUEZ, WHITE BY DEFINITION: SOCIAL CLASSIFICATION IN CREOLE LOUISIANA (1986) (examining the history of racial definition in Louisiana through an ethnography of the "creole" community); CLIFFORD GEERTZ, LOCAL KNOWLEDGE 167-236 (1983) (discussing the constitutive role of law in culture); Richard Wightman Fox, Intimacy on Trial: Cultural Meanings of the Beecher-Tilton Affair, in THE POWER OF CULTURE: CRITICAL ESSAYS IN AMERICAN HISTORY 103 (Richard Wightman Fox & T.J. Jackson Lears eds., 1993) (analyzing the Beecher-Tilton affair from a cultural anthropology perspective); Stephen Greenblatt, Towards a Poetics of Culture, in THE NEW HISTORICISM 1 (H. Aram Veeser ed., 1989) (discussing New Historicist cultural criticism); Amy Robinson, Forms of Appearance of Value: Homer Plessy and the Politics of Privacy, in PERFORMANCE AND CULTURAL POLITICS, supra note 8, at 239 (analyzing Plessy v. Ferguson, 163 U.S. 537 (1896), from the perspective of cultural criticism).
66. My view of law's constitutive role in culture draws inspiration from both anthropologists who have studied trials as local cultural rituals and New Historicist literary critics who read trial narratives as cultural artifacts of a particular historical moment. As Guyora Binder and Robert Weisberg argue, in anthropological and New Historicist studies, one can see the way "legal forms and legal processes play a compositional role in modern culture," Guyora Binder & Robert Weisberg, Cultural Criticism of Law, 49 STAN. L. REV. 1149, 1150 (1997), by "view[ing] law as an arena for the performance and contestation of representations of self and as an influence on the roles and identities available to groups and individuals in portraying themselves." Id. at 1152; see also JAMES CLIFFORD, Identity in Mashpee, in THE PREDICAMENT OF CULTURE: TWENTIETH-CENTURY ETHNOGRAPHY, LITERATURE, AND ART 277 (1988) (discussing the Mashpee trial and the construction of Indian identity); CONTESTED STATES, supra note 6 (exploring the intersections of legal history and the anthropology of law); VIRGINIA R. DOMÍNGUEZ, WHITE BY DEFINITION: SOCIAL CLASSIFICATION IN CREOLE LOUISIANA (1986) (examining the history of racial definition in Louisiana through an ethnography of the "creole" community); CLIFFORD GEERTZ, LOCAL KNOWLEDGE 167-236 (1983) (discussing the constitutive role of law in culture); Richard Wightman Fox, Intimacy on Trial: Cultural Meanings of the Beecher-Tilton Affair, in THE POWER OF CULTURE: CRITICAL ESSAYS IN AMERICAN HISTORY 103 (Richard Wightman Fox & T.J. Jackson Lears eds., 1993) (analyzing the Beecher-Tilton affair from a cultural anthropology perspective); Stephen Greenblatt, Towards a Poetics of Culture, in THE NEW HISTORICISM 1 (H. Aram Veeser ed., 1989) (discussing New Historicist cultural criticism); Amy Robinson, Forms of Appearance of Value: Homer Plessy and the Politics of Privacy, in PERFORMANCE AND CULTURAL POLITICS, supra note 8, at 239 (analyzing Plessy v. Ferguson, 163 U.S. 537 (1896), from the perspective of cultural criticism).
67. My view of law's constitutive role in culture draws inspiration from both anthropologists who have studied trials as local cultural rituals and New Historicist literary critics who read trial narratives as cultural artifacts of a particular historical moment. As Guyora Binder and Robert Weisberg argue, in anthropological and New Historicist studies, one can see the way "legal forms and legal processes play a compositional role in modern culture," Guyora Binder & Robert Weisberg, Cultural Criticism of Law, 49 STAN. L. REV. 1149, 1150 (1997), by "view[ing] law as an arena for the performance and contestation of representations of self and as an influence on the roles and identities available to groups and individuals in portraying themselves." Id. at 1152; see also JAMES CLIFFORD, Identity in Mashpee, in THE PREDICAMENT OF CULTURE: TWENTIETH-CENTURY ETHNOGRAPHY, LITERATURE, AND ART 277 (1988) (discussing the Mashpee trial and the construction of Indian identity); CONTESTED STATES, supra note 6 (exploring the intersections of legal history and the anthropology of law); VIRGINIA R. DOMÍNGUEZ, WHITE BY DEFINITION: SOCIAL CLASSIFICATION IN CREOLE LOUISIANA (1986) (examining the history of racial definition in Louisiana through an ethnography of the "creole" community); CLIFFORD GEERTZ, LOCAL KNOWLEDGE 167-236 (1983) (discussing the constitutive role of law in culture); Richard Wightman Fox, Intimacy on Trial: Cultural Meanings of the Beecher-Tilton Affair, in THE POWER OF CULTURE: CRITICAL ESSAYS IN AMERICAN HISTORY 103 (Richard Wightman Fox & T.J. Jackson Lears eds., 1993) (analyzing the Beecher-Tilton affair from a cultural anthropology perspective); Stephen Greenblatt, Towards a Poetics of Culture, in THE NEW HISTORICISM 1 (H. Aram Veeser ed., 1989) (discussing New Historicist cultural criticism); Amy Robinson, Forms of Appearance of Value: Homer Plessy and the Politics of Privacy, in PERFORMANCE AND CULTURAL POLITICS, supra note 8, at 239 (analyzing Plessy v. Ferguson, 163 U.S. 537 (1896), from the perspective of cultural criticism).
68. These trials took place in circuit courts that met in each Southern county, usually twice a year. Judges and lawyers "rode circuit" from county to county, spending about two weeks in each. Circuit courts heard a wide variety of causes of action, both civil and criminal, often all but the pettiest crimes, the smallest civil claims, and criminal matters involving slave defendants, which could be handled by magistrates and orphans' courts. The trials were often reported in the newspapers, which was exceptional for civil cases. At times, they received so much publicity that one of the parties requested and was granted a change of venue. This practice was rather uncommon in most litigation because there was no assumption that jurors should not know the litigants or the subject matter of the trial - indeed, the "common knowledge" of a jury of neighbor-witnesses was considered a valuable asset. In one Louisiana case, the trial judge reported that the defendant in a suit for freedom had been the victim of mob action because of his role in the trial. See Transcript of Trial, Morrison v. White, No. 442, at 63-64 (La. New Orleans Dist. Ct. Sept. 1858) (collection of Earl. K. Long Library, Special Collections & Archives, Univ. of New Orleans, New Orleans, La., Supreme Court Records), rev'd, 16 La. Ann. 100 (1861) [hereinafter Transcript of Trial, Morrison v. White] (petition for change of venue of James White and grant of petition). For a more detailed discussion of this case, see infra Section III.B.
69. I used Helen Catterall's digest and a variety of other digests, indices, and other sources to compile what I believe to be a comprehensive list of Southern state cases involving racial determination in the 19th century. See JAMES HUGO JOHNSTON, RACE RELATIONS IN VIRGINIA & MISCEGENATION IN THE SOUTH, 1776-1860, at 191-216 (1970); JUDICIAL CASES INVOLVING SLAVERY AND THE FREE NEGRO (Helen Tunnicliff Catterall ed., 1936); Byron C. Martyn, Racism in the United States: A History of the Anti-Miscegenation Legislation and Litigation (1979) (unpublished Ph.D. dissertation, University of Southern California) (on file with the University of Southern California Library). The indices of the Alabama Reports, American Digest, Louisiana Reports, and South Carolina Reports were also useful resources. I obtained trial records for 35 cases from archives in Alabama, Arkansas, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, and Tennessee. Records of the remaining cases no longer survive in the state archives, although a few may still be in the county courthouses where they originated. Some states' supreme court reporters, however, summarized the trial testimony in their statements of "facts." The trial records are handwritten manuscripts running from ten to hundreds of pages. The majority are at least 50 pages, including motions and pleadings, depositions, in some cases briefs on appeal, and records of testimony ranging from brief summaries to apparently verbatim transcriptions. For certain cases, like that of Abby Guy, I also consulted the manuscript census records for the county in which the trial took place and the participants lived, local newspapers, and published sources from the period. Due to the unique and handwritten nature of most of these records and the vagaries of their storage, certain citation information is not consistently available. Pinpoint cites to these sources often cannot be provided since there are generally no page numbers. Furthermore, other information, such as the day and month of decision, is occasionally missing from the record itself.
70. I used Helen Catterall's digest and a variety of other digests, indices, and other sources to compile what I believe to be a comprehensive list of Southern state cases involving racial determination in the 19th century. See JAMES HUGO JOHNSTON, RACE RELATIONS IN VIRGINIA & MISCEGENATION IN THE SOUTH, 1776-1860, at 191-216 (1970); JUDICIAL CASES INVOLVING SLAVERY AND THE FREE NEGRO (Helen Tunnicliff Catterall ed., 1936); Byron C. Martyn, Racism in the United States: A History of the Anti-Miscegenation Legislation and Litigation (1979) (unpublished Ph.D. dissertation, University of Southern California) (on file with the University of Southern California Library). The indices of the Alabama Reports, American Digest, Louisiana Reports, and South Carolina Reports were also useful resources. I obtained trial records for 35 cases from archives in Alabama, Arkansas, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, and Tennessee. Records of the remaining cases no longer survive in the state archives, although a few may still be in the county courthouses where they originated. Some states' supreme court reporters, however, summarized the trial testimony in their statements of "facts." The trial records are handwritten manuscripts running from ten to hundreds of pages. The majority are at least 50 pages, including motions and pleadings, depositions, in some cases briefs on appeal, and records of testimony ranging from brief summaries to apparently verbatim transcriptions. For certain cases, like that of Abby Guy, I also consulted the manuscript census records for the county in which the trial took place and the participants lived, local newspapers, and published sources from the period. Due to the unique and handwritten nature of most of these records and the vagaries of their storage, certain citation information is not consistently available. Pinpoint cites to these sources often cannot be provided since there are generally no page numbers. Furthermore, other information, such as the day and month of decision, is occasionally missing from the record itself.
71. I used Helen Catterall's digest and a variety of other digests, indices, and other sources to compile what I believe to be a comprehensive list of Southern state cases involving racial determination in the 19th century. See JAMES HUGO JOHNSTON, RACE RELATIONS IN VIRGINIA & MISCEGENATION IN THE SOUTH, 1776-1860, at 191-216 (1970); JUDICIAL CASES INVOLVING SLAVERY AND THE FREE NEGRO (Helen Tunnicliff Catterall ed., 1936); Byron C. Martyn, Racism in the United States: A History of the Anti-Miscegenation Legislation and Litigation (1979) (unpublished Ph.D. dissertation, University of Southern California) (on file with the University of Southern California Library). The indices of the Alabama Reports, American Digest, Louisiana Reports, and South Carolina Reports were also useful resources. I obtained trial records for 35 cases from archives in Alabama, Arkansas, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, and Tennessee. Records of the remaining cases no longer survive in the state archives, although a few may still be in the county courthouses where they originated. Some states' supreme court reporters, however, summarized the trial testimony in their statements of "facts." The trial records are handwritten manuscripts running from ten to hundreds of pages. The majority are at least 50 pages, including motions and pleadings, depositions, in some cases briefs on appeal, and records of testimony ranging from brief summaries to apparently verbatim transcriptions. For certain cases, like that of Abby Guy, I also consulted the manuscript census records for the county in which the trial took place and the participants lived, local newspapers, and published sources from the period. Due to the unique and handwritten nature of most of these records and the vagaries of their storage, certain citation information is not consistently available. Pinpoint cites to these sources often cannot be provided since there are generally no page numbers. Furthermore, other information, such as the day and month of decision, is occasionally missing from the record itself.
72. See infra Appendix.
73. For examples of racial determination cases involving indictments for carrying firearms, see Transcript of Trial, State v. Jacobs, No. 7915 (N.C. Brunswick County Super. Ct. Mar. 1859) (collection of N.C. Dep't of Archives & History, Raleigh, N.C., Supreme Court Records), aff'd, 51 N.C. (6 Jones) 284 (1859); Transcript of Trial, State v. Chavers, No. 7249 (N.C. Brunswick County Super. Ct. 1857) (collection of N.C. Dep't of Archives & History, Raleigh, N.C., Supreme Court Records), rev'd, 50 N.C. (5 Jones) 11 (1857) [hereinafter Transcript of Trial, State v. Chavers]; and Transcript of Trial, State v. Dempsey, No. 4723 (N.C. Bertie County Super. Ct. Mar. 1849) (collection of N.C. Dep't of Archives & History, Raleigh, N.C., Supreme Court Records), aff'd, 32 N.C. (9 Ired.) 384 (1849).
74. For example, in Florey's Executor v. Florey, 24 Ala. 241 (1854), the plaintiffs claimed that Gustavus Florey was under an insane delusion that Edward G. was his son. Gustavus was a fair-skinned white man and his wife a fair-skinned white woman, but "Edward G. was of dark skin, and mulatto color, with woolly or kinky hair." Id. at 244. The Alabama Supreme Court invalidated Gustavus Florey's will, ruling "[t]he pysiological fact, that a white man cannot be the father of a mulatto child by a white woman, is, at the present day, as well settled as the opinion of scientific men can settle any question of that nature." Id. at 248; see also Heirn v. Bridault, 37 Miss. 209 (1859) (involving a property dispute between Mrs. Bridault, Hall's daughter, and Marcellete Marceau, his wife or mistress, who was alleged to be a free woman of color). Interracial marriage or sexual ralations were at issue in many cases, both before and after the Civil War, whether indirectly, as in Florey's Case, or directly, as in a prosecution for fornication. See, e.g., Transcript of Trial, Burns v. State, No. 92 (Ala. Mobile City Ct. Apr. 1872) (collection of Ala. Dep't of Archives & History, Montgomery, Ala., Supreme Court Records), rev'd, 48 Ala. 195 (1872) (involving a magistrate prosecuted for performing an allegedly interracial marriage ceremony); Transcript of Trial, State v. Melton, No. 6431 (N.C. Stanley County Super. Ct. Fall 1852) (collection of N.C. Dep't of Archives & History, Raleigh, N.C., Supreme Court Records), aff'd, 44 N.C. (Busb.) 49 (1852) (involving an indictment for fornication after an allegedly interracial marriage was invalidated).
75. See, e.g., Farrelly v. Louisa, 34 Ala. 284 (1859); Transcript of Trial, Miller v. Belmonti, No. 5623 (La. New Orleans Dist. Ct. June 1845) (collection of Earl K. Long Library, Special Collections & Archives, Univ. of New Orleans, New Orleans, La., Supreme Court Records), rev'd, 11 Rob. 339 (La. 1845); Gaines v. Ann, 17 Tex. 211 (1856).
76. See, e.g., Trancript of Trial, Boullemet v. Phillips, No. 4219 (La. New Orleans Parish Ct. June 1837) (collection of Earl K. Long Library, Special Collections & Archives, Univ. of New Orleans, New Orleans, La., Supreme Court Records), rev'd, 2 Rob. 365 (La. 1842); Transcript of Trial, Cauchoix v. Dupuy, No. 2125 (La. New Orleans Parish Ct. July 1832) (collection of Earl K. Long Library, Special Collections & Archives, Univ. of New Orleans, La., New Orleans, La., Supreme Court Records), aff'd, 3 La. 206 (1831) [hereinafter Transcript of Trial, Cauchiox v. Dupuy]; Transcript of Trial, McDowell v. Bowles, No. 8169 (N.C. Surry County Super. Ct. 1860) (collection of N.C. Dep't of Archives & History, Raleigh, N.C., Supreme Court Records), aff'd, 53 N.C. (8 Jones) 184 (1860).
77. See, e.g., Transcript of Trial, State v. Health, No. 9 (Ala. Antauga Cir. Ct. June 1859) (collection of Ala. Dep't of Archives & History, Montgomery, Ala., Supreme Court Records), rev'd, 34 Ala. 250 (1859); State v. Belmont, 136 S.C.L. (4 Strob.) 445 (1850); Dean v. Commonwealth, 45 Va. (4 Gratt.) 541 (1847).
78. See, e.g., Spalding v. Taylor, 1 La. Ann. 195 (1846); Macon & W.R.R. v. Holt, 8 Ga. 157 (1850); Transcript of Trial, Williamson v. Norton, No. 2417 (La. New Orleans Dist. Ct. June 1852) (collection of Earl K. Long Library, Special Collections & Archives, Univ. of New Orleans, La., New Orleans, La., Supreme Court Records), aff'd, 7 La. Ann. 393 (1852), rev'd on reh'g, 7 La. Ann. 394 (1852). The consequences of these cases varied, as did the outcomes. Twelve out of 14 suits for freedom based on whiteness resulted in victory while, conversely, 14 out of 15 defendants seeking to overturn a criminal conviction based on racial misidentification were turned down by the courts. In all other types of cases, the outcomes were mixed - overall, in 39 cases the subject was found to be a person of color, while in 29 he or she was found to be white. Yet the type of case did not seem to govern the kinds of evidence given at trial. Only the criminal cases, in which summary justice was often handed down, resulted in shorter trials than the rest. All other types of dispute led to lengthy trials at which a variety of evidence was presented. See infra Appendix.
79. The evidentiary law of presumptions in common law Southern states established a presumption of freedom for persons of white appearance and of slavery for persons of black appearance. In Louisiana and North Carolina, the appearance of a "mulatto" raised no presumption of slavery; in Kentucky, it did. In all states, however, these presumptions were frequently rebutted in court. See THOMAS D. MORRIS, SOUTHERN SLAVERY AND THE LAW, 1619-1860, at 21-29 (1996). The census stands alone as a source of hard numbers with respect to "mulattoes" in Southern society, and most historians believe that census takers undercounted people of mixed race. According to census data, there were 159,000 free and 247,000 enslaved mulattoes in 1850, constituting 11.2% of the African American population. In 1860, a total of 570,000 mulattoes made up 12.1% of the African American population (by 1860, after crackdowns on manumission, a much greater proportion of mulattoes were enslaved than ten years before). In certain areas, such as New Orleans, where much race-determination litigation originated, the percentages were much higher. See POPULATION OF THE UNITED STATES IN 1860, at 598-604 (Wash., D.C., Gov't Printing Office 1864).
80. The evidentiary law of presumptions in common law Southern states established a presumption of freedom for persons of white appearance and of slavery for persons of black appearance. In Louisiana and North Carolina, the appearance of a "mulatto" raised no presumption of slavery; in Kentucky, it did. In all states, however, these presumptions were frequently rebutted in court. See THOMAS D. MORRIS, SOUTHERN SLAVERY AND THE LAW, 1619-1860, at 21-29 (1996). The census stands alone as a source of hard numbers with respect to "mulattoes" in Southern society, and most historians believe that census takers undercounted people of mixed race. According to census data, there were 159,000 free and 247,000 enslaved mulattoes in 1850, constituting 11.2% of the African American population. In 1860, a total of
81. She writes: "[E]ssentialisms are not secured by fixed traits but by substitutable and interchangeable sets of them. Basic to nineteenth-century European discourses on racial essence was an explicit debate about where that immutable essence was located, a disquiet about its vulnerability but rarely a belief in no essence at all." Stoler, supra note 9, at 199-200.
82. See Census of 1850, Manuscript Population Schedules, Ashley County, Ark. [hereinafter Census of 1850].
83. Y.W. ETHERIDGE, HISTORY OF ASHLEY COUNTY, ARKANSAS 90 (1959) (quoting the court).
84. See Census of 1850, supra note 35. Abby Guy lived during 1854 and 1855 with a man referred to at trial only by his last name, Guy, as husband and wife. Guy was probably a white man, but census takers did not find him at home in Ashley County in 1850 or 1860; he may have just been passing through, as many did in a mobile frontier society.
85. Free people of color and mulattoes were distinct, but overlapping, groups. In the Upper South, the proportion of African Americans who were free slowly but steadily grew over the course of the antebellum period, reaching 12.8% on the eve of the Civil War; in the Lower South, the percentage of free people of color dropped from 3.5% in 1820 to 1.5% in 1860. See IRA BERLIN, SLAVES WITHOUT MASTERS: THE FREE NEGRO IN THE ANTEBELLUM SOUTH 137 tbl.8 (1974). "Although the majority of free Negroes, like the vast majority of Southern people, resided in the countryside, free Negroes were the most urban caste in the South." Id. at 175. In 1860, more than a third of free people of color lived in cities or towns, compared to only one in 20 slaves. See id. The Upper South had a relatively large population of mulattoes (two-thirds of the total number in the South in 1850), many of whom were free (37%), and, "having sprung from elements of the lower orders, were generally treated by the white elite much as if they were black." JOEL WILLIAMSON, NEW PEOPLE: MISCEGENATION AND MULATTOES IN THE UNITED STATES 14 (1980). The Lower South, by contrast, according to Joel Williamson, had fewer mulattoes, divided between a wealthy free mulatto elite concentrated in Charleston and New Orleans (17.3%) and a larger group of enslaved mulattoes (83.7%). The Lower South came closer to a three-tier society because mulattoes made up 76% of the population of free people of color, whereas they were only 35% of the free black population in the Upper South. Williamson attributes this situation to the greater number of Revolutionary-era emancipations of slaves with no blood relation to their masters in the Upper South than in the Lower South. This is partly a distinction between the Old South areas settled in the 18th century, which had a tradition of free mulattoes, and later-settled areas of the Deep South and Southwest, which did not. See id. at 26-27. Gary Mills's research on free blacks and mulattoes in Alabama suggests more local variation than Williamson's general study revealed. First, Mills's findings contradict "[t]he routine assumption that the free Negro class owes its origins in the Lower South to white planter manumission of slave offspring." Gary B. Mills, Miscegenation and the Free Negro in Antebellum "Anglo" Alabama: A Reexamination of Southern Race Relations, 68 J. AM. HIST. 16, 19 (1981). While most free people of color in Alabama were mulattoes, most were born free, apparently as a result of "the natural increase of the small percentage of mulattoes who were freed for one of various reasons." Id. at 20. Mills concluded that significant numbers of white women were giving birth to mulatto children in antebellum Alabama, and that many of these women were married to white men; that the rates of "passing" from black to white were high; and that courts often protected from slavery mulattoes who appeared nearly white, especially if they had been passing for white. In sum, "miscegenation" took place outside the Upper South, New Orleans, and Charleston; and even in a rural Deep Southern locale, toleration among both judges and society was greater than might be expected for sex across racial lines and for people who themselves straddled those lines. For social histories of free people of color, including mulattoes, in the 19th-century South, see ADELE LOGAN ALEXANDER, AMBIGUOUS LIVES: FREE WOMEN OF COLOR IN RURAL GEORGIA, 1789-1879 (1991); BERLIN, supra; TOMMY L. BOGGER, FREE BLACKS IN NORFOLK, VIRGINIA, 1790-1860: THE DARKER SIDE OF FREEDOM (1997); DOMÍNGUEZ, supra note 23; JOHN HOPE FRANKLIN, THE FREE NEGRO IN NORTH CAROLINA, 1790-1860 (Russell & Russell 1969) (1943); and JOHNSTON, supra note 25.
86. Free people of color and mulattoes were distinct, but overlapping, groups. In the Upper South, the proportion of African Americans who were free slowly but steadily grew over the course of the antebellum period, reaching 12.8% on the eve of the Civil War; in the Lower South, the percentage of free people of color dropped from 3.5% in 1820 to 1.5% in 1860. See IRA BERLIN, SLAVES WITHOUT MASTERS: THE FREE NEGRO IN THE ANTEBELLUM SOUTH 137 tbl.8 (1974). "Although the majority of free Negroes, like the vast majority of Southern people, resided in the countryside, free Negroes were the most urban caste in the South." Id. at 175. In 1860, more than a third of free people of color lived in cities or towns, compared to only one in 20 slaves. See id. The Upper South had a relatively large population of mulattoes (two-thirds of the total number in the South in 1850), many of whom were free (37%), and, "having sprung from elements of the lower orders, were generally treated by the white elite much as if they were black." JOEL WILLIAMSON, NEW PEOPLE: MISCEGENATION AND MULATTOES IN THE UNITED STATES 14 (1980). The Lower South, by contrast, according to Joel Williamson, had fewer mulattoes, divided between a wealthy free mulatto elite concentrated in Charleston and New Orleans (17.3%) and a larger group of enslaved mulattoes (83.7%). The Lower South came closer to a three-tier society because mulattoes made up 76% of the population of free people of color, whereas they were only 35% of the free black population in the Upper South. Williamson attributes this situation to the greater number of Revolutionary-era emancipations of slaves with no blood relation to their masters in the Upper South than in the Lower South. This is partly a distinction between the Old South areas settled in the 18th century, which had a tradition of free mulattoes, and later-settled areas of the Deep South and Southwest, which did not. See id. at 26-27. Gary Mills's research on free blacks and mulattoes in Alabama suggests more local variation than Williamson's general study revealed. First, Mills's findings contradict "[t]he routine assumption that the free Negro class owes its origins in the Lower South to white planter manumission of slave offspring." Gary B. Mills, Miscegenation and the Free Negro in Antebellum "Anglo" Alabama: A Reexamination of Southern Race Relations, 68 J. AM. HIST. 16, 19 (1981). While most free people of color in Alabama were mulattoes, most were born free, apparently as a result of "the natural increase of the small percentage of mulattoes who were freed for one of various reasons." Id. at 20. Mills concluded that significant numbers of white women were giving birth to mulatto children in antebellum Alabama, and that many of these women were married to white men; that the rates of "passing" from black to white were high; and that courts often protected from slavery mulattoes who appeared nearly white, especially if they had been passing for white. In sum, "miscegenation" took place outside the Upper South, New Orleans, and Charleston; and even in a rural Deep Southern locale, toleration among both judges and society was greater than might be expected for sex across racial lines and for people who themselves straddled those lines. For social histories of free people of color, including mulattoes, in the 19th-century South, see ADELE LOGAN ALEXANDER, AMBIGUOUS LIVES: FREE WOMEN OF COLOR IN RURAL GEORGIA, 1789-1879 (1991); BERLIN, supra; TOMMY L. BOGGER, FREE BLACKS IN NORFOLK, VIRGINIA, 1790-1860: THE DARKER SIDE OF FREEDOM (1997); DOMÍNGUEZ, supra note 23; JOHN HOPE FRANKLIN, THE FREE NEGRO IN NORTH CAROLINA, 1790-1860 (Russell & Russell 1969) (1943); and JOHNSTON, supra note 25.
87. Free people of color and mulattoes were distinct, but overlapping, groups. In the Upper South, the proportion of African Americans who were free slowly but steadily grew over the course of the antebellum period, reaching 12.8% on the eve of the Civil War; in the Lower South, the percentage of free people of color dropped from 3.5% in 1820 to 1.5% in 1860. See IRA BERLIN, SLAVES WITHOUT MASTERS: THE FREE NEGRO IN THE ANTEBELLUM SOUTH 137 tbl.8 (1974). "Although the majority of free Negroes, like the vast majority of Southern people, resided in the countryside, free Negroes were the most urban caste in the South." Id. at 175. In 1860, more than a third of free people of color lived in cities or towns, compared to only one in 20 slaves. See id. The Upper South had a relatively large population of mulattoes (two-thirds of the total number in the South in 1850), many of whom were free (37%), and, "having sprung from elements of the lower orders, were generally treated by the white elite much as if they were black." JOEL WILLIAMSON, NEW PEOPLE: MISCEGENATION AND MULATTOES IN THE UNITED STATES 14 (1980). The Lower South, by contrast, according to Joel Williamson, had fewer mulattoes, divided between a wealthy free mulatto elite concentrated in Charleston and New Orleans (17.3%) and a larger group of enslaved mulattoes (83.7%). The Lower South came closer to a three-tier society because mulattoes made up 76% of the population of free people of color, whereas they were only 35% of the free black population in the Upper South. Williamson attributes this situation to the greater number of Revolutionary-era emancipations of slaves with no blood relation to their masters in the Upper South than in the Lower South. This is partly a distinction between the Old South areas settled in the 18th century, which had a tradition of free mulattoes, and later-settled areas of the Deep South and Southwest, which did not. See id. at 26-27. Gary Mills's research on free blacks and mulattoes in Alabama suggests more local variation than Williamson's general study revealed. First, Mills's findings contradict "[t]he routine assumption that the free Negro class owes its origins in the Lower South to white planter manumission of slave offspring." Gary B. Mills, Miscegenation and the Free Negro in Antebellum "Anglo" Alabama: A Reexamination of Southern Race Relations, 68 J. AM. HIST. 16, 19 (1981). While most free people of color in Alabama were mulattoes, most were born free, apparently as a result of "the natural increase of the small percentage of mulattoes who were freed for one of various reasons." Id. at 20. Mills concluded that significant numbers of white women were giving birth to mulatto children in antebellum Alabama, and that many of these women were married to white men; that the rates of "passing" from black to white were high; and that courts often protected from slavery mulattoes who appeared nearly white, especially if they had been passing for white. In sum, "miscegenation" took place outside the Upper South, New Orleans, and Charleston; and even in a rural Deep Southern locale, toleration among both judges and society was greater than might be expected for sex across racial lines and for people who themselves straddled those lines. For social histories of free people of color, including mulattoes, in the 19th-century South, see ADELE LOGAN ALEXANDER, AMBIGUOUS LIVES: FREE WOMEN OF COLOR IN RURAL GEORGIA, 1789-1879 (1991); BERLIN, supra; TOMMY L. BOGGER, FREE BLACKS IN NORFOLK, VIRGINIA, 1790-1860: THE DARKER SIDE OF FREEDOM (1997); DOMÍNGUEZ, supra note 23; JOHN HOPE FRANKLIN, THE FREE NEGRO IN NORTH CAROLINA, 1790-1860 (Russell & Russell 1969) (1943); and JOHNSTON, supra note 25.
88. Free people of color and mulattoes were distinct, but overlapping, groups. In the Upper South, the proportion of African Americans who were free slowly but steadily grew over the course of the antebellum period, reaching 12.8% on the eve of the Civil War; in the Lower South, the percentage of free people of color dropped from 3.5% in 1820 to 1.5% in 1860. See IRA BERLIN, SLAVES WITHOUT MASTERS: THE FREE NEGRO IN THE ANTEBELLUM SOUTH 137 tbl.8 (1974). "Although the majority of free Negroes, like the vast majority of Southern people, resided in the countryside, free Negroes were the most urban caste in the South." Id. at 175. In 1860, more than a third of free people of color lived in cities or towns, compared to only one in 20 slaves. See id. The Upper South had a relatively large population of mulattoes (two-thirds of the total number in the South in 1850), many of whom were free (37%), and, "having sprung from elements of the lower orders, were generally treated by the white elite much as if they were black." JOEL WILLIAMSON, NEW PEOPLE: MISCEGENATION AND MULATTOES IN THE UNITED STATES 14 (1980). The Lower South, by contrast, according to Joel Williamson, had fewer mulattoes, divided between a wealthy free mulatto elite concentrated in Charleston and New Orleans (17.3%) and a larger group of enslaved mulattoes (83.7%). The Lower South came closer to a three-tier society because mulattoes made up 76% of the population of free people of color, whereas they were only 35% of the free black population in the Upper South. Williamson attributes this situation to the greater number of Revolutionary-era emancipations of slaves with no blood relation to their masters in the Upper South than in the Lower South. This is partly a distinction between the Old South areas settled in the 18th century, which had a tradition of free mulattoes, and later-settled areas of the Deep South and Southwest, which did not. See id. at 26-27. Gary Mills's research on free blacks and mulattoes in Alabama suggests more local variation than Williamson's general study revealed. First, Mills's findings contradict "[t]he routine assumption that the free Negro class owes its origins in the Lower South to white planter manumission of slave offspring." Gary B. Mills, Miscegenation and the Free Negro in Antebellum "Anglo" Alabama: A Reexamination of Southern Race Relations, 68 J. AM. HIST. 16, 19 (1981). While most free people of color in Alabama were mulattoes, most were born free, apparently as a result of "the natural increase of the small percentage of mulattoes who were freed for one of various reasons." Id. at 20. Mills concluded that significant numbers of white women were giving birth to mulatto children in antebellum Alabama, and that many of these women were married to white men; that the rates of "passing" from black to white were high; and that courts often protected from slavery mulattoes who appeared nearly white, especially if they had been passing for white. In sum, "miscegenation" took place outside the Upper South, New Orleans, and Charleston; and even in a rural Deep Southern locale, toleration among both judges and society was greater than might be expected for sex across racial lines and for people who themselves straddled those lines. For social histories of free people of color, including mulattoes, in the 19th-century South, see ADELE LOGAN ALEXANDER, AMBIGUOUS LIVES: FREE WOMEN OF COLOR IN RURAL GEORGIA, 1789-1879 (1991); BERLIN, supra; TOMMY L. BOGGER, FREE BLACKS IN NORFOLK, VIRGINIA, 1790-1860: THE DARKER SIDE OF FREEDOM (1997); DOMÍNGUEZ, supra note 23; JOHN HOPE FRANKLIN, THE FREE NEGRO IN NORTH CAROLINA, 1790-1860 (Russell & Russell 1969) (1943); and JOHNSTON, supra note 25.
89. Free people of color and mulattoes were distinct, but overlapping, groups. In the Upper South, the proportion of African Americans who were free slowly but steadily grew over the course of the antebellum period, reaching 12.8% on the eve of the Civil War; in the Lower South, the percentage of free people of color dropped from 3.5% in 1820 to 1.5% in 1860. See IRA BERLIN, SLAVES WITHOUT MASTERS: THE FREE NEGRO IN THE ANTEBELLUM SOUTH 137 tbl.8 (1974). "Although the majority of free Negroes, like the vast majority of Southern people, resided in the countryside, free Negroes were the most urban caste in the South." Id. at 175. In 1860, more than a third of free people of color lived in cities or towns, compared to only one in 20 slaves. See id. The Upper South had a relatively large population of mulattoes (two-thirds of the total number in the South in 1850), many of whom were free (37%), and, "having sprung from elements of the lower orders, were generally treated by the white elite much as if they were black." JOEL WILLIAMSON, NEW PEOPLE: MISCEGENATION AND MULATTOES IN THE UNITED STATES 14 (1980). The Lower South, by contrast, according to Joel Williamson, had fewer mulattoes, divided between a wealthy free mulatto elite concentrated in Charleston and New Orleans (17.3%) and a larger group of enslaved mulattoes (83.7%). The Lower South came closer to a three-tier society because mulattoes made up 76% of the population of free people of color, whereas they were only 35% of the free black population in the Upper South. Williamson attributes this situation to the greater number of Revolutionary-era emancipations of slaves with no blood relation to their masters in the Upper South than in the Lower South. This is partly a distinction between the Old South areas settled in the 18th century, which had a tradition of free mulattoes, and later-settled areas of the Deep South and Southwest, which did not. See id. at 26-27. Gary Mills's research on free blacks and mulattoes in Alabama suggests more local variation than Williamson's general study revealed. First, Mills's findings contradict "[t]he routine assumption that the free Negro class owes its origins in the Lower South to white planter manumission of slave offspring." Gary B. Mills, Miscegenation and the Free Negro in Antebellum "Anglo" Alabama: A Reexamination of Southern Race Relations, 68 J. AM. HIST. 16, 19 (1981). While most free people of color in Alabama were mulattoes, most were born free, apparently as a result of "the natural increase of the small percentage of mulattoes who were freed for one of various reasons." Id. at 20. Mills concluded that significant numbers of white women were giving birth to mulatto children in antebellum Alabama, and that many of these women were married to white men; that the rates of "passing" from black to white were high; and that courts often protected from slavery mulattoes who appeared nearly white, especially if they had been passing for white. In sum, "miscegenation" took place outside the Upper South, New Orleans, and Charleston; and even in a rural Deep Southern locale, toleration among both judges and society was greater than might be expected for sex across racial lines and for people who themselves straddled those lines. For social histories of free people of color, including mulattoes, in the 19th-century South, see ADELE LOGAN ALEXANDER, AMBIGUOUS LIVES: FREE WOMEN OF COLOR IN RURAL GEORGIA, 1789-1879 (1991); BERLIN, supra; TOMMY L. BOGGER, FREE BLACKS IN NORFOLK, VIRGINIA, 1790-1860: THE DARKER SIDE OF FREEDOM (1997); DOMÍNGUEZ, supra note 23; JOHN HOPE FRANKLIN, THE FREE NEGRO IN NORTH CAROLINA, 1790-1860 (Russell & Russell 1969) (1943); and JOHNSTON, supra note 25.
90. Free people of color and mulattoes were distinct, but overlapping, groups. In the Upper South, the proportion of African Americans who were free slowly but steadily grew over the course of the antebellum period, reaching 12.8% on the eve of the Civil War; in the Lower South, the percentage of free people of color dropped from 3.5% in 1820 to 1.5% in 1860. See IRA BERLIN, SLAVES WITHOUT MASTERS: THE FREE NEGRO IN THE ANTEBELLUM SOUTH 137 tbl.8 (1974). "Although the majority of free Negroes, like the vast majority of Southern people, resided in the countryside, free Negroes were the most urban caste in the South." Id. at 175. In 1860, more than a third of free people of color lived in cities or towns, compared to only one in 20 slaves. See id. The Upper South had a relatively large population of mulattoes (two-thirds of the total number in the South in 1850), many of whom were free (37%), and, "having sprung from elements of the lower orders, were generally treated by the white elite much as if they were black." JOEL WILLIAMSON, NEW PEOPLE: MISCEGENATION AND MULATTOES IN THE UNITED STATES 14 (1980). The Lower South, by contrast, according to Joel Williamson, had fewer mulattoes, divided between a wealthy free mulatto elite concentrated in Charleston and New Orleans (17.3%) and a larger group of enslaved mulattoes (83.7%). The Lower South came closer to a three-tier society because mulattoes made up 76% of the population of free people of color, whereas they were only 35% of the free black population in the Upper South. Williamson attributes this situation to the greater number of Revolutionary-era emancipations of slaves with no blood relation to their masters in the Upper South than in the Lower South. This is partly a distinction between the Old South areas settled in the 18th century, which had a tradition of free mulattoes, and later-settled areas of the Deep South and Southwest, which did not. See id. at 26-27. Gary Mills's research on free blacks and mulattoes in Alabama suggests more local variation than Williamson's general study revealed. First, Mills's findings contradict "[t]he routine assumption that the free Negro class owes its origins in the Lower South to white planter manumission of slave offspring." Gary B. Mills, Miscegenation and the Free Negro in Antebellum "Anglo" Alabama: A Reexamination of Southern Race Relations, 68 J. AM. HIST. 16, 19 (1981). While most free people of color in Alabama were mulattoes, most were born free, apparently as a result of "the natural increase of the small percentage of mulattoes who were freed for one of various reasons." Id. at 20. Mills concluded that significant numbers of white women were giving birth to mulatto children in antebellum Alabama, and that many of these women were married to white men; that the rates of "passing" from black to white were high; and that courts often protected from slavery mulattoes who appeared nearly white, especially if they had been passing for white. In sum, "miscegenation" took place outside the Upper South, New Orleans, and Charleston; and even in a rural Deep Southern locale, toleration among both judges and society was greater than might be expected for sex across racial lines and for people who themselves straddled those lines. For social histories of free people of color, including mulattoes, in the 19th-century South, see ADELE LOGAN ALEXANDER, AMBIGUOUS LIVES: FREE WOMEN OF COLOR IN RURAL GEORGIA, 1789-1879 (1991); BERLIN, supra; TOMMY L. BOGGER, FREE BLACKS IN NORFOLK, VIRGINIA, 1790-1860: THE DARKER SIDE OF FREEDOM (1997); DOMÍNGUEZ, supra note 23; JOHN HOPE FRANKLIN, THE FREE NEGRO IN NORTH CAROLINA, 1790-1860 (Russell & Russell 1969) (1943); and JOHNSTON, supra note 25.
91. See BARBARA JEANNE FIELDS, SLAVERY AND FREEDOM ON THE MIDDLE GROUND: MARYLAND DURING THE NINETEENTH CENTURY at xii (1985). It is difficult to gauge either the extent of interracial sex or the prevalence of people of ́mixed racé in 19th-century society. Beginning in 1850, census takers noted ́B́ or ́Ḿ on their population schedules to indicate ́blacḱ or ́mulatto,́ but these were hardly precise designations. They do not necessarily reveal ancestry, community status, or self-presentation; they reflect only the census-taker's opinion. See Census of 1850, supra note 35.
92. There has been a new focus in recent years in literary and cultural studies on the "middle ground" between black and white, including whites' dressing up as blacks, blacks' "passing" for white, and whites' and blacks' crossing of the color line in sex and marriage. See, e.g., ERIC LOTT, LOVE AND THEFT: BLACKFACE MINSTRELSY AND THE AMERICAN WORKING CLASS (1993); PASSING AND THE FICTIONS OF IDENTITY (Elaine K. Ginsberg ed., 1996); SOLLORS, supra note 5. These works forcefully assert the cultural centrality of supposedly marginal practices.
93. There has been a new focus in recent years in literary and cultural studies on the "middle ground" between black and white, including whites' dressing up as blacks, blacks' "passing" for white, and whites' and blacks' crossing of the color line in sex and marriage. See, e.g., ERIC LOTT, LOVE AND THEFT: BLACKFACE MINSTRELSY AND THE AMERICAN WORKING CLASS (1993); PASSING AND THE FICTIONS OF IDENTITY (Elaine K. Ginsberg ed., 1996); SOLLORS, supra note 5. These works forcefully assert the cultural centrality of supposedly marginal practices.
94. Haney Lo"pez shows that federal appellate courts in the late 19th and early 20th centuries mainly used two tests, science and "common knowledge," to decide whether immigrants should be considered "white persons." See HANEY LO"PEZ, supra note 19, at 63-64. By 1923, he argues, "common knowledge" had eclipsed science as the test of choice, because anthropologists and other "experts" on race had begun to move away from the simple, naturalized view of race that the judges preferred. See id. at 93-94. Increasingly, if "science" did not corroborate "common knowledge," courts upheld the latter criterion. See id. at 92-100. Peggy Pascoe's study of 20th-century miscegenation cases offers valuable insight into the reception of the new anthropology of race in the courts. Pascoe charts a movement in the cases she studies from racialism to culturalism. Racial experts in court made two arguments: (1) "biological race [is] nonsense"; and (2) "race [is] merely biology [which is insignificant]." Pascoe, supra note 10, at 55. Judges' preference for the latter argument, however, made biology significant because law requires racial categorization. Pascoe shows the judges' frustration with the complexity of new modernist definitions of race, which helps explain why they abandoned some of their faith in "expert" knowledge and turned to "common knowledge" to explain racial identity. See id. at 55-69.
95. State v. Davis, 18 S.C.L. (2 Bail.) 558, 560 (1831); see also State v. Cantey, 20 S.C.L. (2 Hill) 614, 616-17 (1835) (stating, regarding the determination of someone's racial status, that "this Court will very rarely feel itself authorised to interfere with the verdict of a jury").
96. Transcript of Trial, Morrison v. White, supra note 24, at 81 (testimony of P.C. Perret).
97. See Transcript of Trial, Miller v. Belmonti, No. 5623 (La. New Orleans Dist. Ct. May 1845) (collection of Earl K. Long Library, Special Collections & Archives, Univ. of New Orleans, New Orleans, La., Supreme Court Records), rev'd, 11 Rob. 339 (La. 1845) (testimony of C. Pollock) [hereinafter Transcript of Trial, Miller v. Belmonti].
98. Transcript of Trial, Daniel v. Guy, supra note 1, at 2 (petition of Abby Guy).
99. Id.
100. Id. at 3.
101. David Roediger has traced the uses of the term "white slavery" in the 19th century in the context of the Northern labor movement deploring wage-working conditions through the comparison to unfree labor. He notes that after the Civil War, the term fell out of use except to denote white prostitutes. See ROEDIGER, supra note 7, at 65-87. Yet "white slavery" before the Civil War also appeared in the abolitionist literature to refer to this small class of unjustly enslaved light-skinned women, for whom the connotation of prostitution was unmistakable. For a discussion of "white slavery" as it referred to prostitution, see Mara Keire, The Vice Trust: A Reinterpretation of the White Slavery Scare in the United States, 1907-1917 (Nov. 6, 1997) (unpublished manuscript, on file with The Yale Law Journal). For a discussion of the role of depraved sexuality in American abolitionist narratives, see Ronald G. Walters, The Erotic South: Civilization and Sexuality in American Abolitionism, 25 AM. Q. 177 (1973). See also SOLLORS, supra note 5, at 288-97 (discussing instances of incest and miscegenation in antebellum literature); Nancy Bentley, White Slaves: The Mulatto Hero in Antebellum Fiction, 65 AM. LITERATURE 501 (1993) (comparing mulatto men and women as heroes in antebellum novels).
102. David Roediger has traced the uses of the term "white slavery" in the 19th century in the context of the Northern labor movement deploring wage-working conditions through the comparison to unfree labor. He notes that after the Civil War, the term fell out of use except to denote white prostitutes. See ROEDIGER, supra note 7, at 65-87. Yet "white slavery" before the Civil War also appeared in the abolitionist literature to refer to this small class of unjustly enslaved light-skinned women, for whom the connotation of prostitution was unmistakable. For a discussion of "white slavery" as it referred to prostitution, see Mara Keire, The Vice Trust: A Reinterpretation of the White Slavery Scare in the United States, 1907-1917 (Nov. 6, 1997) (unpublished manuscript, on file with The Yale Law Journal). For a discussion of the role of depraved sexuality in American abolitionist narratives, see Ronald G. Walters, The Erotic South: Civilization and Sexuality in American Abolitionism, 25 AM. Q. 177 (1973). See also SOLLORS, supra note 5, at 288-97 (discussing instances of incest and miscegenation in antebellum literature); Nancy Bentley, White Slaves: The Mulatto Hero in Antebellum Fiction, 65 AM. LITERATURE 501 (1993) (comparing mulatto men and women as heroes in antebellum novels).
103. David Roediger has traced the uses of the term "white slavery" in the 19th century in the context of the Northern labor movement deploring wage-working conditions through the comparison to unfree labor. He notes that after the Civil War, the term fell out of use except to denote white prostitutes. See ROEDIGER, supra note 7, at 65-87. Yet "white slavery" before the Civil War also appeared in the abolitionist literature to refer to this small class of unjustly enslaved light-skinned women, for whom the connotation of prostitution was unmistakable. For a discussion of "white slavery" as it referred to prostitution, see Mara Keire, The Vice Trust: A Reinterpretation of the White Slavery Scare in the United States, 1907-1917 (Nov. 6, 1997) (unpublished manuscript, on file with The Yale Law Journal). For a discussion of the role of depraved sexuality in American abolitionist narratives, see Ronald G. Walters, The Erotic South: Civilization and Sexuality in American Abolitionism, 25 AM. Q. 177 (1973). See also SOLLORS, supra note 5, at 288-97 (discussing instances of incest and miscegenation in antebellum literature); Nancy Bentley, White Slaves: The Mulatto Hero in Antebellum Fiction, 65 AM. LITERATURE 501 (1993) (comparing mulatto men and women as heroes in antebellum novels).
104. WILLIAM CRAFT & ELLEN CRAFT, RUNNING A THOUSAND MILES FOR FREEDOM OR, THE ESCAPE OF WILLIAM AND ELLEN CRAFT FROM SLAVERY 3 (New York, Arno Press 1969) (1860).
105. White Slavery in Connecticut, ARK. STATE GAZETTE & DEMOCRAT, Sept. 12, 1857, at 2.
106. Id.
107. Suit for Freedom Decided, ARK. STATE GAZETTE & DEMOCRAT, May 30, 1851, at 1.
108. ETHERIDGE, supra note 36, at 93.
109. See Ariela Gross, Pandora's Box: Slave Character on Trial in the Antebellum Deep South, 7 YALE J.L. & HUMAN. 267, 300-14 (1995).
110. Bryan v. Walton, 33 Ga. 11, 24 (Supp. 1864) [Bryan III].
111. 11 Va. (1 Hen. & M.) 134 (1806).
112. This case also held that native American Indians could not be enslaved and defined the distinctions between Indians and "negroes." Id. at 139-40. For insightful discussions of Hudgins, see ALAN HYDE, BODIES OF LAW 228-31 (1997); and Adrienne D. Davis, Identity Notes Part One: Playing in the Light, 45 AM. U. L. REV. 695, 702-11 (1996).
113. This case also held that native American Indians could not be enslaved and defined the distinctions between Indians and "negroes." Id. at 139-40. For insightful discussions of Hudgins, see ALAN HYDE, BODIES OF LAW 228-31 (1997); and Adrienne D. Davis, Identity Notes Part One: Playing in the Light, 45 AM. U. L. REV. 695, 702-11 (1996).
114. Hudgins, 11 Va. (1 Hen. & M.) at 139.
115. Id. at 139-40.
116. Id. at 141.
117. Likewise, the rhetoric of racial common sense did not require jury decisionmaking. Indeed, the stock arguments for racial knowability could allow a judge to make the decision of racial status in the first instance, before trial. For example, a judge could make a finding that the defendant was "of color," without hearing testimony, in order to deny jurisdiction. Justice John Belton O'Neall of the South Carolina Supreme Court, sitting as trial judge in the prosecution of Mary Hayes for keeping a disorderly house, "was satisfied from inspection that she was a mulatto." He therefore sent her case to a court of magistrates and freeholders. State v. Hayes, 17 S.C.L. (1 Bail.) 275, 275 (1829). While State v. Hayes was pending, Justice Nott sat as a trial judge in a similar case, State v. Scott, whose only difference was that the defendant himself sought to overturn his conviction by objecting to the court's jurisdiction, arguing that he was "a free person of colour, to wit, a mulatto, as would appear upon inspection." State v. Scott, 17 S.C.L. (1 Bail.) 270, 270 (1829). Judge Nott suspended sentence in the case, declining to decide whether Scott was mulatto, until a decision came down in State v. Hayes. Scott then moved in arrest of judgment, bringing the case before the court of appeals. In this case, Justice Johnson, who heard Scott's appeal, did not think it so obvious that the judge could determine Scott's race based on his appearance. Johnson echoed the now-familiar judicial fear of deceptive appearances: "[W]e know that nature has clothed her children in all the variety which can exist between European fairness and the African black; . . . in this country where all the shades are so mixed up and blended together, [color] is not an infallible criterion . . . ." Id. at 272-73. The presumptions of color are "mere presumptions, [which] must yield to positive proof." Id. at 273. Johnson's concerns, however, did not lead him to send the case back to the jury. He affirmed Scott's conviction. So although, in general, the discourse of race as common sense justified a preference for jury decisionmaking, the coincidence of the two was not complete. There was always the possibility that race's self-evidence could make it a simple matter of pretrial disposition - or that the jury needed to decide it precisely because it was not self-evident. There was also a small class of cases in which racial status was determined in a bench trial: criminal cases in which the state or the defendant sought to exclude witnesses because they were of color. When William Dupree shot a man named Smith who had lived on his property, he admitted the shooting but sought to introduce three children as witnesses who would testify that he had acted in self-defense. See Transcript of Trial, State v. Dupree, No. 5 (Ala. Mobile City Ct. Jan. 1859) (collection of Ala. Dep't of Archives & History, Montgomery, Ala., Supreme Court Records, Book 229, No. 1-2), rev'd, 33 Ala. 380 (1859) [hereinafter Transcript of Trial, State v. Dupree]. The solicitor for the state stated that he had been informed "that these boys . . . were not competent witnesses, being of mixed blood." Id.; see also Dupree, 33 Ala at 384. The judge then both inspected the boys and heard testimony regarding their racial status to determine their competency as witnesses. Although the trial judge "ha[d] some doubt whether this question should not be decided by a jury and so express[ed] himself," and the defendant offered to submit the issue to the jury, "the Court upon reflection would not suffer it to be done and excluded the witnesses." Transcript of Trial, State v. Dupree, supra; see also Dupree, 13 Ala. at 385.
118. I will discuss medical testimony in greater detail infra Section II.B.
119. Transcript of Trial, State v. Jacobs, No. 7915 (N.C. Brunswick County Super. Ct. 1859) (collection of N.C. Dep't of Archives & History, Raleigh, N.C., Supreme Court Records), aff'd, 51 N.C. 284 (1859).
120. See id.
121. 18 Ala. 276, 277 (1850).
122. Martha Hodes employs the distinction between reputation and self-presentation. See HODES, supra note 20, at 103. Although the individuals at issue did not speak for themselves at trial, witnesses reported on the way they held themselves out in society. Most often, however, witnesses did not distinguish between the way people held themselves out and the way they were perceived, or what they "passed for."
123. Transcript of Trial, Daniel v. Guy, supra note 1, at 20 (bill of exceptions).
124. Id. at 23-24.
125. ETHERIDGE, supra note 36, at 84.
126. Id. at 85.
127. See id. at 84-85.
128. He had managed to acquire $1400 worth of property by 1860. See Census of 1850, supra note 35; Census of 1860, Manuscript Population Schedules, Ashley County, Ark. [hereinafter Census of 1860].
129. See Transcript of Trial, Daniel v. Guy, supra note 1, at 23 (bill of exceptions).
130. See id. at 21.
131. See id. at 32-34 (exhibits A and B).
132. Id. at 65-67 (answer of William Daniel).
133. See id.
134. Id. at 3 (petition of Abby Guy).
135. Daniel v. Guy, 19 Ark. 121, 126 (1857).
136. Transcript of Trial, Daniel v. Guy, supra note 1, at 25 (bill of exceptions). In the statement of facts in the state supreme court report, this was summarized as "Had seen half-breeds as white as she was." Daniel, 19 Ark. at 125.
137. Transcript of Trial, Daniel v. Guy, supra note 1, at 28 (bill of exceptions)
138. Id. at 27.
139. See id. at 28.
140. See, e.g., id. at 29-30 (testimony of James Kates); id. at 30 (testimony of K.B. Thompson).
141. Id. at 29 (testimony of James Barnett) (emphasis added). In 1860, J.D. Barnette was a 47-year-old farmer from Georgia, with $1200 worth of real property and $3000 worth of personal property. See Dwelling 700, Census of 1860, supra note 72.
142. Daniel, 19 Ark. at 129.
143. Id.
144. See id.
145. See Transcript of Trial, Daniel v. Guy, supra note 1, at 16; Census of 1850, supra note 35.
146. See Daniel, 19 Ark. at 131-32.
147. See Daniel v. Guy, 23 Ark. 50, 51 (1861).
148. Id. at 54.
149. See id. at 52, 55. The headnote to the case emphasized that it was, "as often held, [the] province of the jury to pass upon the weight of the evidence." Id. at 51.
150. Id. at 54-55.
151. See id. This was not the end of the story for Abby Guy and William Daniel. In June 1863, Abby Guy, now Abby Roper, was back in the Ashley County Circuit Court, trying to recover the horses, oxen, and cart Daniel had taken from her when he brought her back from the bayou in 1856. Daniel claimed, first, that Guy could not sue in trover because she was a slave, and second, that the statute of limitations had run out on her suit. The court, in chancery, gave Guy a preliminary injunction against Daniel's interposition of a plea of the statute of limitations. Daniel took that as a final judgment and appealed it to the Arkansas Supreme Court, where he lost. See Daniel v. Roper, 24 Ark. 131 (1863). There is no record of the outcome of Guy's trover suit.
152. Garvin v. State, 52 Miss. 207, 209 (1876).
153. Warlick v. White, 76 N.C. 175, 179 (1877).
154. Transcript of Trial, Daniel v. Guy, supra note 1, at 21.
155. See, for example, Chancellor v. Milly, Transcript of Trial, Chancellor v. Milly (Ky. Mason County Cir. Ct. Fall 1838) (collection of Ky. State Archives, Lexington, Ky., Supreme Court Files), rev'd, 39 Ky. (9 Dana) 23 (1839), in which Milly's lawyer exhibited her to the jury to prove her whiteness, and she won her freedom from slavery. The appellate court found error in the trial judge's refusal to admit testimony to rebut the presumption of freedom raised by her white looks. See Milly, 39 Ky. (9 Dana) at 24.
156. Daniel v. Guy, 23 Ark. 50, 51 (1861). In Warlick v. White, Transcript of Trial, Warlick v. White, No. 11,775 (N.C. Catawba County Super. Ct. Aug. 1876) (collection of N.C. Dep't of Archives & History, Raleigh, N.C., Supreme Court Records), rev'd, 76 N.C. 175 (1877) [hereinafter Transcript of Trial, Warlick v. White], the race of 11-year-old Sarah Carpenter was at issue. The plaintiffs, seeking to prove that she had black blood, "proposed to exhibit Sarah J. Carpenter to the jury and for that purpose to place her upon the witness stand." Id. at 4. The defendant (Sarah's mother) objected to the jury's inspection of Sarah, raising concerns about delicacy and decency in 12 men's inspection of a young girl. The trial court "declined to have the child subjected to the inspection of the jury," id., but the appellate court remanded the case for a new trial to allow the inspection to take place, in an opinion addressing the issue of jury inspections for the purpose of racial determination, see Warlick, 76 N.C. at 179-80. The court noted the concern that some, including Sarah's mother, had raised - that such an inspection would be "indecent or indelicate." Id. at 178. The court distinguished this case from one in which a woman's pregnant condition was displayed to the jury, implying that Sarah's race would be immediately more evident without disrobing before the jury, and thus an unseemly display would not be required. See id. And yet, although the details of this inspection do not appear in the record, it is clear that many jury inspections involved just such a disrobing. Indeed, as Walter Johnson has suggested, these disrobings reenacted the inspections of the slave trader's yard. See Johnson, supra note 20, at 18. In order to prove whiteness, one often had to perform whiteness through the rituals of the slave market. Thus, Johnson suggests the contradictions inherent in finding these women "white." After all, what good white woman would submit herself to such indelicate inspection? If she were truly, purely white, what good white man would look at her disrobed? Rather, he suggests, these women represented "enslaved whiteness," the tantalizing, hypersexualized, and commodified whiteness of the "fancy girls" sold as concubines - white in beauty but not in social status. "Fancy girls" in the slave market and women suing for their freedom underwent the same "inspections." Id.
157. See infra Appendix.
158. Ulzere v. Poeyfarre, No. 468 (La. New Orleans Parish Ct. May 1820) (collection of Earl K. Long Library, Special Collections & Archives, Univ. of New Orleans, New Orleans, La., Supreme Court Records), rev'd, 8 Mart, (o.s.) 155 (La. 1820).
159. See, e.g., Transcript of Trial, State v. Chavers, supra note 27.
160. Gary v. Stevenson, 19 Ark. 580, 584-85 (1858).
161. Transcript of Trial, State v. Watters, No. 3540 (N.C. Ashe County Super. Ct. Feb. 1842) (collection of N.C. Dep't of Archives & History, Raleigh, N.C., Supreme Court Records), aff'd, 25 N.C. (3 Ired.) 455 (1843).
162. Watters, 25 N.C. (3 Ired.) at 456.
163. Id.
164. See Transcript of Trial, State v. Dempsey, No. 4723 (N.C. Bertie County Super. Ct. Mar. 1849) (collection of N.C. Department of Archives & History, Raleigh, N.C., Supreme Court Records), aff'd, 31 N.C. (9 Ired.) 384 (1849).
165. Dempsey, 31 N.C. (9 Ired.) at 385. The court instructed the jury that even one black great-great-grandfather was enough to make a person black. See id.
166. Transcript of Trial, State v. Chavers, supra note 27.
167. Transcript of Trial, Williamson v. Norton, No. 2427 (La. New Orleans Dist. Ct. 1850) (collection of Earl K. Long Library, Special Collections & Archives, Univ. of New Orleans, New Orleans, La., Supreme Court Records), aff'd in part and rev'd in part, 7 La. Ann. 393 (1852) [hereinafter Transcript of Trial, Williamson v. Norton].
168. Williamson, 7 La. Ann. at 394.
169. See Transcript of Trial, Williamson v. Norton, supra note 111, at 56 (deposition of Rufus Blanchard).
170. See id. at 48-50, 54-59 (depositions of Rufus Blanchard and Lyman Cole). Lyman Cole noted that Robert "had more the appearance of the gentleman than the plebeian." Id. at 49.
171. Transcript of Trial, State v. Jacobs, No. 7915 (N.C. Brunswick County Super. Ct. Mar. 1859) (collection of N.C. Dep't of Archives & History, Raleigh, N.C., Supreme Court Records), aff'd, 51 N.C. (6 Jones) 284 (1859).
172. See Bryan v. Walton, 14 Ga. 185 (1853) [Bryan I].
173. See, e.g., Davis v. Wood, 14 U.S. (1 Wheat.) 6 (1816) (involving a suit for freedom that turned on the plaintiff's mother's descent from an Englishwoman); Gregory v. Baugh, 25 Va. (4 Rand.) 611 (1827) (involving a suit for freedom that turned on whether the plaintiff's mother was descended from an Indian woman who was entitled to her freedom); Pegram v. Isabell, 12 Va. (2 Hen. & M.) 193 (1808) (involving a suit for freedom that turned on the plaintiff's descent from her Indian ancestor in her maternal line).
174. See Hudgins v. Wrights, 11 Va. (1 Hen. & M.) 134 (1806).
175. In general, Indian status, like slave status, followed that of the mother. This was in sharp contrast, however, to racial identity as "negro"; it was possible to be considered white with half Indian "blood." See, e.g., United States v. Sanders, 27 F. Cas. 950, 950-51 (C.C.D. Ark. 1847) (No. 16,220) ("[T]he child of a white woman by an Indian father, would . . . be deemed of the white race; the condition of the mother, and not the quantum of Indian blood in the veins, determining the condition of the offspring.").
176. Membership in one of the Indian "nations" could be gained by intermarriage more easily than an Indian racial identity could. See, e.g., Transcript of Trial, State v. Melton, No. 6431 (N.C. Stanley County Super. Ct. Dec. 1852) (collection of N.C. Dep't of Archives & History, Raleigh, N.C., Supreme Court Records), aff'd, 44 N.C. (Busb.) 49 (1852) (holding that "Indian" racial identity, for the purposes of a statute prohibiting intermarriage, meant one-eighth Indian ancestry, or Indian "blood . . . to the third degree"); Transcript of Trial, Tuten's Lessee v. Martin (collection of Tenn. State Archives, Nashville, Tenn., Supreme Court Records), rev'd, 11 Tenn. (3 Yer.) 452 (1832) (noting that because Tuten had married Rachel Coody of the Cherokee nation, lived within the territory of the Cherokees, and followed their practices and habits, he was "the head of an Indian family" for the purposes of land ownership).
177. The lesser stigma attached to the Indian race by whites can be seen in racial determination trials in the ways witnesses discussed someone interchangeably as "Indian" and "white," in contrast to "colored" and "black" or "negro." In Boullemet v. Phillips, Transcript of Trial, Boullemet v. Phillips, No. 4219 (La. New Orleans Parish Ct. Feb. 1840) (collection of Earl K. Long Library, Special Collections & Archives, Univ. of New Orleans, New Orleans, La., Supreme Court Records), rev'd, 2 Rob. 365 (La. 1842) [hereinafter Transcript of Trial, Boullemet v. Phillips]. French witnesses who had come to Louisiana from Santo Domingo and from New Orleans testified both that Mr. Boullemet's mother was Indian and that she was white. Jean Fauchet testified on direct examination that the Boullemets "were considered as a respectable family, they were considered as white." Id. at 13. On cross examination, he explained that he had heard that Mr. Boullemet's mother "was a descendant of an Indian race . . . that [her] mother . . . was of a dark colour like the Indians (elle était brune comme les Indiens) . . . that he knew many white persons who had the same complexion and who had no African or Indian blood in their veins." Id. at 14. Suzanne Mouchon testified that "Mrs. Boullemet was considered as a white person . . . . [S]he appeared to be of an Indian race she was of a dark white color (Blanche Brune)." Id. at 28-29. Characterizing her as Indian, or having Indian blood, did not prevent them from also seeing her as white. Mrs. Lavigne even noted, in one breath, that "Mr. Boullemet's wife she was considered as white she was an Indian she did not look like a negro or colored person -she visited nobody but was always hunting in the woods." Id. at 32. Of course, in Mrs. Lavigne's story, Mrs. Boullemet may have been considered to be white but still not have been white.
178. In State v. Belmont, 35 S.C.L. (4 Strob.) 445, 449 (1850), Amelia Marchant's witnesses claimed that she was Indian and Portuguese. Witnesses for Ambrosio Belmont, who sought to disqualify her from testifying against him in a criminal trial, produced witnesses who claimed she was the daughter of a "colored man." Whereas the trial court charged the jury that Indians were included in the same class as other people of color, the South Carolina Supreme Court distinguished "free Indians in amity with this government," even if the person in question no longer lived with the tribe in a separate national existence but had become a resident of the state and intermarried with whites. McMillan v. School Committee, Transcript of Trial, McMillan v. School Comm., No. 16,384 (N.C. Robeson County Super. Ct. Fall Term 1889) (collection of N.C. Dep't of History & Archives, Raleigh, N.C., Supreme Court Records), aff'd, 12 S.E. 330 (N.C. 1890), reveals the difficulty of drawing legal distinctions between Indians and blacks, even after slavery, given the social history of "colored" communities of Indians and free blacks. The Croatan Indians were by legend considered to be survivors of the last Roanoke colony. Yet Nathan McMillan, suing the School Committee of the "Croatan" District in 1888 to gain his children's entry into school, claimed that "[t]he people or class now called Croatans were reputed to be and were called Mulattoes before the Croatan Act [of the North Carolina legislature] was passed." Id. at 19. Before the Civil War, they "were always a separate race to themselves - attended their own churches and some schools of their own and would not associate with the negroes." Id. at 26-27 (testimony of J.C.M. Eachin). No one disputed that Nathan's wife was a "Croatan," but Nathan's racial status was contested.
179. Transcript of Trial, Butcher v. Vaughan, No. 5626 (Tenn. Sumner County Cir. Ct. Aug. 1823) (collection of Tenn. State Library and Archives, Nashville, Tenn., Summer County Court Records, Roll A-5083), rev'd sub nom. Vaughan v. Phebe [sic], 8 Tenn. (Mart. & Yer.) 4 (1827) [hereinafter Transcript of Trial, Butcher v. Vaughan].
180. See THOMAS E. PARTLOW, WILSON COUNTY, TENNESSEE, DEED BOOKS C-M, 1793-1829, at 353 (1984) [hereinafter PARTLOW, WILSON COUNTY DEED BOOKS C-M] (DEED BOOK E); THOMAS E. PARTLOW, WILSON COUNTY, TENNESSEE, DEED BOOKS N-Z, 1829-1853, at 105 (1854) [hereinafter PARTLOW, WILSON COUNTY DEED BOOKS N-Z] (deed book P); THOMAS E. PARTLOW, WILSON COUNTY, TENNESSEE MISCELLANEOUS RECORDS, 1800-1875, at 95-100, 151, 159 (1982) [hereinafter PARTLOW, WILSON COUNTY MISCELLANEOUS RECORDS].
181. See THOMAS E. PARTLOW, WILSON COUNTY, TENNESSEE, DEED BOOKS C-M, 1793-1829, at 353 (1984) [hereinafter PARTLOW, WILSON COUNTY DEED BOOKS C-M] (DEED BOOK E); THOMAS E. PARTLOW, WILSON COUNTY, TENNESSEE, DEED BOOKS N-Z, 1829-1853, at 105 (1854) [hereinafter PARTLOW, WILSON COUNTY DEED BOOKS N-Z] (deed book P); THOMAS E. PARTLOW, WILSON COUNTY, TENNESSEE MISCELLANEOUS RECORDS, 1800-1875, at 95-100, 151, 159 (1982) [hereinafter PARTLOW, WILSON COUNTY MISCELLANEOUS RECORDS].
182. See THOMAS E. PARTLOW, WILSON COUNTY, TENNESSEE, DEED BOOKS C-M, 1793-1829, at 353 (1984) [hereinafter PARTLOW, WILSON COUNTY DEED BOOKS C-M] (DEED BOOK E); THOMAS E. PARTLOW, WILSON COUNTY, TENNESSEE, DEED BOOKS N-Z, 1829-1853, at 105 (1854) [hereinafter PARTLOW, WILSON COUNTY DEED BOOKS N-Z] (deed book P); THOMAS E. PARTLOW, WILSON COUNTY, TENNESSEE MISCELLANEOUS RECORDS, 1800-1875, at 95-100, 151, 159 (1982) [hereinafter PARTLOW, WILSON COUNTY MISCELLANEOUS RECORDS].
183. See PARTLOW, WILSON COUNTY DEED BOOKS C-M, supra note 124, at 329 (deed book H); PARTLOW, WILSON COUNTY MISCELLANEOUS RECORDS, supra note 124, at 147
184. See PARTLOW, WILSON COUNTY DEED BOOKS C-M, supra note 124, at 329 (deed book H); PARTLOW, WILSON COUNTY MISCELLANEOUS RECORDS, supra note 124, at 147
185. See Transcript of Trial, Butcher v. Vaughan, supra note 123 (depositions of Rachel Bowers and James Weir ).
186. Id. (depositions of Joseph Davenport and Nancy Davenport).
187. Id. (deposition of Rachel Bowers).
188. Id. (depositions of Rachel Bowers, Nancy Davenport, and James Weir).
189. John Telford was a native of the region, son of one of the first settlers, and a large landowner. See PARTLOW, WILSON COUNTY MISCELLANEOUS
190. See Transcript of Trial, Butcher v. Vaughan, supra note 123. With Bonner's assistance as "agent," Davy and Tom also sued Vaughan for assault. Although suits for freedom were often formally filed as writs of trespass, using the traditional language of assault and battery, this suit appears to have been genuine. John Bonner also described in an affidavit to the Sumner County Court Vaughan's further efforts to rid himself of the freedom suit. First, he tried to bribe Bonner with a Lodge membership to convince Phoebe to drop the suit. He then pursued a change of venue from Wilson County to Sumner County for purposes of delay. Bonner also asserted that Vaughan had prohibited Phoebe and her sons from attending depositions in the suit, effectively preventing them from taking place. At that point, the court shifted control over the plaintiffs from Vaughan to Bonner.
191. Bonner had been found guilty in the Wilson County Court in 1815 for assault and battery against Seth P. Pool. See THOMAS E. PARTLOW, THE PEOPLE OF WILSON COUNTY, TENNESSEE, 1800-1899, at 3 (1983). Phoebe's other witnesses included James McDonald, Vaughan's son-in-law, and Booth Warren, a slaveholder who had been indicted for assault and battery just a year before.
192. The 1815 jury that found Bonner guilty of assaulting Pool had fined Bonner only one cent. It may have been that Pool had something of a bad reputation in Wilson County. Matthew Figures, a miller and justice of the peace, one of the oldest and most prosperous landowners in the county, and William Steele, a trustee of the biggest church in town, a second major in the militia, and a major landowner, however, both vouched for Pool's character on Phoebe's behalf. Character witnesses against Pool were Charles Locke, a small landowner, Elizabeth Sanders, and Booth Warren. See FRANK BURNS, WILSON COUNTY 17, 18 (1983); PARTLOW, supra note 132, at 25, 89; THOMAS E PARTLOW, WILSON COUNTY, TENNESSEE, CIRCUIT COURT RECORDS 182 (1988) ; PARTLOW, WILSON COUNTY DEED BOOKS C-M, supra note 124, at 15, 283 (deed books C and G); PARTLOW, WILSON COUNTY DEED BOOKS N-Z, supra note 124, at 285 (deed book Q) ; THOMAS E. PARTLOW, WILSON COUNTY, TENNESSEE, DEEDS, MARRIAGESS, AND WILLS, 1800-1902, at 160, 162, 176, 187, 190 (1987) [hereinafter PARTLOW, WILSON COUNTY: DEEDS]; PARTLOW, WILSON COUNTY MISCELLANEOUS RECORDS, supra note 124, at 84, 94, 99, 103; Census of 1820, Manuscript Population Schedules, Wilson County, Tenn.
193. The 1815 jury that found Bonner guilty of assaulting Pool had fined Bonner only one cent. It may have been that Pool had something of a bad reputation in Wilson County. Matthew Figures, a miller and justice of the peace, one of the oldest and most prosperous landowners in the county, and William Steele, a trustee of the biggest church in town, a second major in the militia, and a major landowner, however, both vouched for Pool's character on Phoebe's behalf. Character witnesses against Pool were Charles Locke, a small landowner, Elizabeth Sanders, and Booth Warren. See FRANK BURNS, WILSON COUNTY 17, 18 (1983); PARTLOW, supra note 132, at 25, 89; THOMAS E PARTLOW, WILSON COUNTY, TENNESSEE, CIRCUIT COURT RECORDS 182 (1988) ; PARTLOW, WILSON COUNTY DEED BOOKS C-M, supra note 124, at 15, 283 (deed books C and G); PARTLOW, WILSON COUNTY DEED BOOKS N-Z, supra note 124, at 285 (deed book Q) ; THOMAS E. PARTLOW, WILSON COUNTY, TENNESSEE, DEEDS, MARRIAGESS, AND WILLS, 1800-1902, at 160, 162, 176, 187, 190 (1987) [hereinafter PARTLOW, WILSON COUNTY: DEEDS]; PARTLOW, WILSON COUNTY MISCELLANEOUS RECORDS, supra note 124, at 84, 94, 99, 103; Census of 1820, Manuscript Population Schedules, Wilson County, Tenn.
194. The 1815 jury that found Bonner guilty of assaulting Pool had fined Bonner only one cent. It may have been that Pool had something of a bad reputation in Wilson County. Matthew Figures, a miller and justice of the peace, one of the oldest and most prosperous landowners in the county, and William Steele, a trustee of the biggest church in town, a second major in the militia, and a major landowner, however, both vouched for Pool's character on Phoebe's behalf. Character witnesses against Pool were Charles Locke, a small landowner, Elizabeth Sanders, and Booth Warren. See FRANK BURNS, WILSON COUNTY 17, 18 (1983); PARTLOW, supra note 132, at 25, 89; THOMAS E PARTLOW, WILSON COUNTY, TENNESSEE, CIRCUIT COURT RECORDS 182 (1988) ; PARTLOW, WILSON COUNTY DEED BOOKS C-M, supra note 124, at 15, 283 (deed books C and G); PARTLOW, WILSON COUNTY DEED BOOKS N-Z, supra note 124, at 285 (deed book Q) ; THOMAS E. PARTLOW, WILSON COUNTY, TENNESSEE, DEEDS, MARRIAGESS, AND WILLS, 1800-1902, at 160, 162, 176, 187, 190 (1987) [hereinafter PARTLOW, WILSON COUNTY: DEEDS]; PARTLOW, WILSON COUNTY MISCELLANEOUS RECORDS, supra note 124, at 84, 94, 99, 103; Census of 1820, Manuscript Population Schedules, Wilson County, Tenn.
195. The 1815 jury that found Bonner guilty of assaulting Pool had fined Bonner only one cent. It may have been that Pool had something of a bad reputation in Wilson County. Matthew Figures, a miller and justice of the peace, one of the oldest and most prosperous landowners in the county, and William Steele, a trustee of the biggest church in town, a second major in the militia, and a major landowner, however, both vouched for Pool's character on Phoebe's behalf. Character witnesses against Pool were Charles Locke, a small landowner, Elizabeth Sanders, and Booth Warren. See FRANK BURNS, WILSON COUNTY 17, 18 (1983); PARTLOW, supra note 132, at 25, 89; THOMAS E PARTLOW, WILSON COUNTY, TENNESSEE, CIRCUIT COURT RECORDS 182 (1988) ; PARTLOW, WILSON COUNTY DEED BOOKS C-M, supra note 124, at 15, 283 (deed books C and G); PARTLOW, WILSON COUNTY DEED BOOKS N-Z, supra note 124, at 285 (deed book Q) ; THOMAS E. PARTLOW, WILSON COUNTY, TENNESSEE, DEEDS, MARRIAGESS, AND WILLS, 1800-1902, at 160, 162, 176, 187, 190 (1987) [hereinafter PARTLOW, WILSON COUNTY: DEEDS]; PARTLOW, WILSON COUNTY MISCELLANEOUS RECORDS, supra note 124, at 84, 94, 99, 103; Census of 1820, Manuscript Population Schedules, Wilson County, Tenn.
196. The 1815 jury that found Bonner guilty of assaulting Pool had fined Bonner only one cent. It may have been that Pool had something of a bad reputation in Wilson County. Matthew Figures, a miller and justice of the peace, one of the oldest and most prosperous landowners in the county, and William Steele, a trustee of the biggest church in town, a second major in the militia, and a major landowner, however, both vouched for Pool's character on Phoebe's behalf. Character witnesses against Pool were Charles Locke, a small landowner, Elizabeth Sanders, and Booth Warren. See FRANK BURNS, WILSON COUNTY 17, 18 (1983); PARTLOW, supra note 132, at 25, 89; THOMAS E PARTLOW, WILSON COUNTY, TENNESSEE, CIRCUIT COURT RECORDS 182 (1988) ; PARTLOW, WILSON COUNTY DEED BOOKS C-M, supra note 124, at 15, 283 (deed books C and G); PARTLOW, WILSON COUNTY DEED BOOKS N-Z, supra note 124, at 285 (deed book Q) ; THOMAS E. PARTLOW, WILSON COUNTY, TENNESSEE, DEEDS, MARRIAGESS, AND WILLS, 1800-1902, at 160, 162, 176, 187, 190 (1987) [hereinafter PARTLOW, WILSON COUNTY: DEEDS]; PARTLOW, WILSON COUNTY MISCELLANEOUS RECORDS, supra note 124, at 84, 94, 99, 103; Census of 1820, Manuscript Population Schedules, Wilson County, Tenn.
197. The 1815 jury that found Bonner guilty of assaulting Pool had fined Bonner only one cent. It may have been that Pool had something of a bad reputation in Wilson County. Matthew Figures, a miller and justice of the peace, one of the oldest and most prosperous landowners in the county, and William Steele, a trustee of the biggest church in town, a second major in the militia, and a major landowner, however, both vouched for Pool's character on Phoebe's behalf. Character witnesses against Pool were Charles Locke, a small landowner, Elizabeth Sanders, and Booth Warren. See FRANK BURNS, WILSON COUNTY 17, 18 (1983); PARTLOW, supra note 132, at 25, 89; THOMAS E PARTLOW, WILSON COUNTY, TENNESSEE, CIRCUIT COURT RECORDS 182 (1988) ; PARTLOW, WILSON COUNTY DEED BOOKS C-M, supra note 124, at 15, 283 (deed books C and G); PARTLOW, WILSON COUNTY DEED BOOKS N-Z, supra note 124, at 285 (deed book Q) ; THOMAS E. PARTLOW, WILSON COUNTY, TENNESSEE, DEEDS, MARRIAGESS, AND WILLS, 1800-1902, at 160, 162, 176, 187, 190 (1987) [hereinafter PARTLOW, WILSON COUNTY: DEEDS]; PARTLOW, WILSON COUNTY MISCELLANEOUS RECORDS, supra note 124, at 84, 94, 99, 103; Census of 1820, Manuscript Population Schedules, Wilson County, Tenn.
198. See Transcript of Trial, Butcher v. Vaughan, supra note 123 (depositions of Benjamin Bennett, Judith Bennett, Nancy Hicks, and Rebecca Yeargin).
199. Ten of the jurors in the Sumner County trial appeared in the 1820 census, and of these, five had remained in the county when the census taker returned ten years later. In 1820, all but one of the jurors listed their occupations as "agriculture," and the median number of slaves owned by jurors was four. The one juror who owned more than a handful of slaves, George D. Blackmore, one of the earliest settlers in Sumner County, had twenty-six in 1820, but only ten slaves in 1830. On the other hand, the four other slaveholders appearing in the 1830 census all increased their slaveholding in the ten-year period. Compare Census of 1820, Manuscript Population Schedules, Sumner County, Tenn., with Census of 1830, Manuscript Population Schedules, Sumner County, Tenn. Although all were farmers, their circumstances varied considerably. Josiah Walton, who was also a stock dealer, was the chairman of the county court for several years and private secretary to Andrew Jackson in 1818. He was born in Sumner County to a large slaveholding family. See GOODSPEED'S GENERAL HISTORY OF TENNESSEE, at 924 (C. & R. Elder Booksellers 1973) (1887). John Parsons, on the other hand, was of meagre enough means that he specified a bequest of $25 to one of his sons in his will. See SHIRLEY WILSON, SUMNER COUNTY, TENNESSEE BOND BOOK, 1787-1835, at 14 (1994). William Chapman's family had been in Sumner County for at least three generations, whereas Artemus Tufts moved there from Massachussettes by way of Charlestone, South Carolina. See CAROL WELLS, SUMNER COUNTY, TENN. COURT MINUTES, 1787-1805 AND 1808-1810, at 107 (1995).
200. Ten of the jurors in the Sumner County trial appeared in the 1820 census, and of these, five had remained in the county when the census taker returned ten years later. In 1820, all but one of the jurors listed their occupations as "agriculture," and the median number of slaves owned by jurors was four. The one juror who owned more than a handful of slaves, George D. Blackmore, one of the earliest settlers in Sumner County, had twenty-six in 1820, but only ten slaves in 1830. On the other hand, the four other slaveholders appearing in the 1830 census all increased their slaveholding in the ten-year period. Compare Census of 1820, Manuscript Population Schedules, Sumner County, Tenn., with Census of 1830, Manuscript Population Schedules, Sumner County, Tenn. Although all were farmers, their circumstances varied considerably. Josiah Walton, who was also a stock dealer, was the chairman of the county court for several years and private secretary to Andrew Jackson in 1818. He was born in Sumner County to a large slaveholding family. See GOODSPEED'S GENERAL HISTORY OF TENNESSEE, at 924 (C. & R. Elder Booksellers 1973) (1887). John Parsons, on the other hand, was of meagre enough means that he specified a bequest of $25 to one of his sons in his will. See SHIRLEY WILSON, SUMNER COUNTY, TENNESSEE BOND BOOK, 1787-1835, at 14 (1994). William Chapman's family had been in Sumner County for at least three generations, whereas Artemus Tufts moved there from Massachussettes by way of Charlestone, South Carolina. See CAROL WELLS, SUMNER COUNTY, TENN. COURT MINUTES, 1787-1805 AND 1808-1810, at 107 (1995).
201. Ten of the jurors in the Sumner County trial appeared in the 1820 census, and of these, five had remained in the county when the census taker returned ten years later. In 1820, all but one of the jurors listed their occupations as "agriculture," and the median number of slaves owned by jurors was four. The one juror who owned more than a handful of slaves, George D. Blackmore, one of the earliest settlers in Sumner County, had twenty-six in 1820, but only ten slaves in 1830. On the other hand, the four other slaveholders appearing in the 1830 census all increased their slaveholding in the ten-year period. Compare Census of 1820, Manuscript Population Schedules, Sumner County, Tenn., with Census of 1830, Manuscript Population Schedules, Sumner County, Tenn. Although all were farmers, their circumstances varied considerably. Josiah Walton, who was also a stock dealer, was the chairman of the county court for several years and private secretary to Andrew Jackson in 1818. He was born in Sumner County to a large slaveholding family. See GOODSPEED'S GENERAL HISTORY OF TENNESSEE, at 924 (C. & R. Elder Booksellers 1973) (1887). John Parsons, on the other hand, was of meagre enough means that he specified a bequest of $25 to one of his sons in his will. See SHIRLEY WILSON, SUMNER COUNTY, TENNESSEE BOND BOOK, 1787-1835, at 14 (1994). William Chapman's family had been in Sumner County for at least three generations, whereas Artemus Tufts moved there from Massachussettes by way of Charlestone, South Carolina. See CAROL WELLS, SUMNER COUNTY, TENN. COURT MINUTES, 1787-1805 AND 1808-1810, at 107 (1995).
202. For a discussion of Daniel v. Guy, see supra Subsection II.B. 1.
203. For the history of the Middle Tennessee frontier, see generally THOMAS PERKINS ABERNETHY, FROM FRONTIER TO PLANTATION IN TENNESSEE: A STUDY IN FRONTIER DEMOCRACY (University of Ala. Press 1967) (1932); STEPHEN V. ASH, MIDDLE TENNESSEE SOCIETY TRANSFORMED, 1860-1870: WAR AND PEACE IN THE UPPER SOUTH (1988); and ROBERT TRACY MCKENZIE, ONE SOUTH OR MANY? PLANTATION BELT AND UPCOUNTRY IN CIVIL WAR-ERA TENNESSEE (1994).
204. For the history of the Middle Tennessee frontier, see generally THOMAS PERKINS ABERNETHY, FROM FRONTIER TO PLANTATION IN TENNESSEE: A STUDY IN FRONTIER DEMOCRACY (University of Ala. Press 1967) (1932); STEPHEN V. ASH, MIDDLE TENNESSEE SOCIETY TRANSFORMED, 1860-1870: WAR AND PEACE IN THE UPPER SOUTH (1988); and ROBERT TRACY MCKENZIE, ONE SOUTH OR MANY? PLANTATION BELT AND UPCOUNTRY IN CIVIL WAR-ERA TENNESSEE (1994).
205. For the history of the Middle Tennessee frontier, see generally THOMAS PERKINS ABERNETHY, FROM FRONTIER TO PLANTATION IN TENNESSEE: A STUDY IN FRONTIER DEMOCRACY (University of Ala. Press 1967) (1932); STEPHEN V. ASH, MIDDLE TENNESSEE SOCIETY TRANSFORMED, 1860-1870: WAR AND PEACE IN THE UPPER SOUTH (1988); and ROBERT TRACY MCKENZIE, ONE SOUTH OR MANY? PLANTATION BELT AND UPCOUNTRY IN CIVIL WAR-ERA TENNESSEE (1994).
206. See Davis v. Wood, 14 U.S. (1 Wheat.) 6 (1816) (holding that hearsay and general reputation are admissible to prove pedigree but not status); Pegram v. Isbell, 12 Va. (2 Hen. & M.) 193 (1808) (holding that prior litigation deciding the status of a woman is not conclusive evidence of the status of the woman's offspring).
207. Transcript of Trial, Cauchoix v. Dupuy, supra note 30; see also Transcript of Trial, Lange v. Richoux, No. 2491 (La. New Orleans Dist. Ct. May 1833) (collection of Earl K. Long Library, Special Collections & Archives, Univ. of New Orleans, New Orleans, La., Supreme Court Records), aff'd, 6 La. 560 (1833) (involving the elaborate genealogy of a family of tree people of color).
208. See Cauchoix, 3 La. at 207. This case was unusual. In the vast majority of cases, record evidence was on the side of the party asserting someone's blackness or slave status. Whiteness was an argument in itself, expected to stand outside and beyond documentary evidence. Documentation of status as a slave or free person of color was the best available evidence of African ancestry, and it was the source most commonly resorted to by those trying to prove a person's blackness.
209. 17 Tex. 211 (1856).
210. Id. at 215.
211. See id.
212. Transcript of Trial, Boullemet v. Phillips, supra note 121. Some of the circumstances under which questions of racial determination arose underscore both the financial benefit that accompanied white status in the 19th-century South, which Cheryl Harris has eloquently described, see Harris, supra note 18, at 1715-45, and the honor attached to whiteness.
213. Transcript of Trial, Boullemet v. Phillips, supra note 121 at 9 (testimony of Francis Oboyd).
214. Id.
215. Id. at 36 (testimony of William Emerson).
216. See id. at 11 (testimony of Thomas Spear).
217. Id. at 12 (testimony of Jean Chaillot); see also id. at 24 (testimony of Jean Chaillot); id. at 14, 26 (testimony of Jean Fauchet).
218. Id. at 24 (testimony of Jean Chaillot). On cross-examination, he explained that he "knew that the mother of Mr. Boullemet was a descendent from Indians because she told him so. She told him so without being asked." Id. at 25; see also id. at 14, 28, 29, 32 (testimony of Mrs. Louis Engelhim, Jean Fauchet, Mrs. Lavigne, and Suzanne Mouchon). At the second trial, Jean Fauchet testified that he could not "state if they were Indians but heard that they descended from zinguies (Bohemions)." Id. at 69 (testimony of Jean Fauchet).
219. Id. at 31 (testimony of Mrs. Lavigne).
220. Id. at 18 (testimony of Norbert Vaudry).
221. Id. at 19-20.
222. Id.
223. Id. at 41 (testimony of Joseph P. Baude-[illegible]).
224. Id. at 42-43.
225. See id. at 41, 45 (testimony of Joseph P. Baude-[illegible] and Norbert Vaudry).
226. Id. at 48 (testimony of P.D. Henry); see also id. at 49, 50 (testimony of Barthelemy Bacas and Thomas Bausy).
227. Id. at 50 (testimony of Thomas Bausy).
228. See id. at 52 (testimony of Mr. Barnett).
229. See id. at 62-63, 75-76 (testimony of Franois Carlon and deposition of Madame Verine Laplante).
230. See id. at 68-69 (testimony of Mrs. Preaux). The first jury in this case could not reach a verdict. The second jury gave a verdict for Stephen Boullemet, showing that they believed he was a white person. The trial judge indicated that he disagreed with their reading of the facts of the case but felt that he could not disturb the verdict. The Louisiana Supreme Court, however, finding the verdict "contrary to the evidence," overturned it and remanded the case for a new trial. Boullemet v. Phillips, 2 Rob. 365, 366-67 (La. 1842). Similarly, in Cauchoix v. Dupuy, Transcript of Trial, Cauchoix v. Dupuy, supra note 30, the plaintiff sued for slander because his impending marriage had been scuttled by the rumor that his aunt was a woman of color in New York. Witnesses on both sides reported that they had known Mr. Cauchoix and his family in Havana and had known his aunt, Madame Allien, in New York, but they gave completely conflicting views of their racial status. See id. Some witnesses said that they had never even heard it rumored in Havana that the Cauchoix had colored blood; others claimed to have known them as colored people. See id. Similarly, one witness said that Madame Allien "was invited by a great many ladies of the City of New York," and another noted that "there was current report there in Circulation that [Madame Allien] was a colored woman." Id.
231. Transcript of Trial, Hare v. Board of Educ., No. 17,552 (N.C. Gates County Super. Ct. June 1893) (collection of N.C. Dep't of Archives & History, Raleigh, N.C., Supreme Court Records), aff'd, 18 S.E. 55 (N.C. 1893).
232. Id. at 14.
233. Id. at 15.
234. Id.
235. Id.
236. Id. at 16.
237. Id. at 17. The court instructed that marriage was prohibited between whites and people with up to the "third degree" of African ancestry (a black ancestor within three generations). Id. at 18. Thus, if Hare's father was Charles Jones, then Hare would have been considered to have one-eighth "negro blood," enough to make him "negro." For an example of a late 19th-century slander case, see Spotorno v. Fourichon, Transcript of Trial, Spotorno v. Fourichon, No. 18,349 (La. New Orleans Civ. Dist. Ct. 1888) (collection of Earl K. Long Library, Special Collections & Archives, Univ. of New Orleans, New Orleans, La., Supreme Court Records), aff'd, 4 S. 71 (La. 1888), which involved the black-balling of a grocer at the St. Maurice Benevolent Society. Fourichon was a grocer who kept a store at the corner opposite Spotorno's and had often used the rumor of Spotorno's color in business competition. For example, he told a black customer that "his negro friend across the street keeps a grocery" and asked a white customer why he did not "buy from a white man instead of buying from a negro." The plaintiff, Spotorno, testified that his children played with all the other children in the neighborhood, except on one occasion when "I told my child go tell Mr. Senac that his children are calling you a nigger. I want it stopped, I want it to stop or I will stop it, I will go and see him and stop it." The lawyer prompted Spotorno, "Well, what did Mr. Senac do?" and he answered, "Mr. Senac gave a good lamming to his child, that was the end of it." Id.
238. On the developments of the 1840s and 1850s, see BERLIN, supra note 38, at 343-80; and MORRIS, supra note 33, at 371-423.
239. See, e.g., An Act to Remove the Free Negroes and Mulattoes from this State, 1859 Ark. Acts 175.
240. According to Ira Berlin, "In 1860, only 144 mostly elderly free Negroes remained in [Arkansas]." BERLIN, supra note 38, at 374; see also MORRIS, supra note 33, at 30-36.
241. See Peter Wallenstein, Race, Marriage, and the Law of Freedom: Alabama and Virginia, 1860s-1960s, 70 CHI.-KENT L. REV. 371, 373 (1994).
242. See 1838 Miss. Digest of Laws Ch. 75, § 1, at 560.
243. See 1857-1858 TENN. CODE §§ 2437, 2445-2447, at 481-82; 1870 Tenn. Laws, ch. 39. For discussions of bans on interracial sex and marriage, see PETER W. BARDAGLIO, RECONSTRUCTING THE HOUSEHOLD: FAMILIES, SEX, AND THE LAW IN THE NINETEENTH-CENTURY SOUTH 48-64 (1995); and JOHNSTON, supra note 25, at 165-216.
244. On the slave trade, see MICHAEL TADMAN, SPECULATORS AND SLAVES: MASTERS, TRADERS, AND SLAVES IN THE OLD SOUTH (1989). On social and geographic mobility, see JAMES OAKES, THE RULING RACE: A HISTORY OF AMERICAN SLAVEHOLDERS 69-95 (1982); RICHARD C. WADE, SLAVERY IN THE CITIES: THE SOUTH 1820-1860, at 243-81 (1964); and Johnson, supra note 20, at 6-7. During the 1850s, according to the federal census, mulatto slavery rose by 66.9%, to 10.4% of the total slave population. See BUREAU OF THE CENSUS, NEGRO POPULATION IN THE UNITED STATES, 1790-1915, at 220-21 (1918).
245. On the slave trade, see MICHAEL TADMAN, SPECULATORS AND SLAVES: MASTERS, TRADERS, AND SLAVES IN THE OLD SOUTH (1989). On social and geographic mobility, see JAMES OAKES, THE RULING RACE: A HISTORY OF AMERICAN SLAVEHOLDERS 69-95 (1982); RICHARD C. WADE, SLAVERY IN THE CITIES: THE SOUTH 1820-1860, at 243-81 (1964); and Johnson, supra note 20, at 6-7. During the 1850s, according to the federal census, mulatto slavery rose by 66.9%, to 10.4% of the total slave population. See BUREAU OF THE CENSUS, NEGRO POPULATION IN THE UNITED STATES, 1790-1915, at 220-21 (1918).
246. On the slave trade, see MICHAEL TADMAN, SPECULATORS AND SLAVES: MASTERS, TRADERS, AND SLAVES IN THE OLD SOUTH (1989). On social and geographic mobility, see JAMES OAKES, THE RULING RACE: A HISTORY OF AMERICAN SLAVEHOLDERS 69-95 (1982); RICHARD C. WADE, SLAVERY IN THE CITIES: THE SOUTH 1820-1860, at 243-81 (1964); and Johnson, supra note 20, at 6-7. During the 1850s, according to the federal census, mulatto slavery rose by 66.9%, to 10.4% of the total slave population. See BUREAU OF THE CENSUS, NEGRO POPULATION IN THE UNITED STATES, 1790-1915, at 220-21 (1918).
247. On the slave trade, see MICHAEL TADMAN, SPECULATORS AND SLAVES: MASTERS, TRADERS, AND SLAVES IN THE OLD SOUTH (1989). On social and geographic mobility, see JAMES OAKES, THE RULING RACE: A HISTORY OF AMERICAN SLAVEHOLDERS 69-95 (1982); RICHARD C. WADE, SLAVERY IN THE CITIES: THE SOUTH 1820-1860, at 243-81 (1964); and Johnson, supra note 20, at 6-7. During the 1850s, according to the federal census, mulatto slavery rose by 66.9%, to 10.4% of the total slave population. See BUREAU OF THE CENSUS, NEGRO POPULATION IN THE UNITED STATES, 1790-1915, at 220-21 (1918).
248. There was a rise in appellate cases of racial determination from seven per decade before 1850 to 24 per decade between 1850 and the first year of the Civil War. See infra Appendix.
249. Before 1850, 58% of the 68 trials in which race was an issue ended in a finding of whiteness; after 1850, only 25% of trials ended in a finding of whiteness. See infra Appendix.
250. See e.g., GEORGE M. FREDRICKSON, THE BLACK IMAGE IN THE WHITE MIND: THE DEBATE ON AFRO-AMERICAN CHARACTER AND DESTINY, 1817-1914, at 74 (1971) (dating scientific racism to the emergence of the "American school of ethnology" in the 1840s and 1850s). For the history of scientific racism, see generally REGINALD HORSMAN, RACE AND MANIFEST DESTINY: THE ORIGINS OF AMERICAN RACIAL ANGLO-SAXONISM (1981); and Bruce R. Dain, A Hideous Monster of the Mind: American Race Theory, 1787-1859 (1996) (unpublished Ph.D. dissertation, Princeton University) (on file with the Princeton University Library).
251. See e.g., GEORGE M. FREDRICKSON, THE BLACK IMAGE IN THE WHITE MIND: THE DEBATE ON AFRO-AMERICAN CHARACTER AND DESTINY, 1817-1914, at 74 (1971) (dating scientific racism to the emergence of the "American school of ethnology" in the 1840s and 1850s). For the history of scientific racism, see generally REGINALD HORSMAN, RACE AND MANIFEST DESTINY: THE ORIGINS OF AMERICAN RACIAL ANGLO-SAXONISM (1981); and Bruce R. Dain, A Hideous Monster of the Mind: American Race Theory, 1787-1859 (1996) (unpublished Ph.D. dissertation, Princeton University) (on file with the Princeton University Library).
252. See e.g., GEORGE M. FREDRICKSON, THE BLACK IMAGE IN THE WHITE MIND: THE DEBATE ON AFRO-AMERICAN CHARACTER AND DESTINY, 1817-1914, at 74 (1971) (dating scientific racism to the emergence of the "American school of ethnology" in the 1840s and 1850s). For the history of scientific racism, see generally REGINALD HORSMAN, RACE AND MANIFEST DESTINY: THE ORIGINS OF AMERICAN RACIAL ANGLO-SAXONISM (1981); and Bruce R. Dain, A Hideous Monster of the Mind: American Race Theory, 1787-1859 (1996) (unpublished Ph.D. dissertation, Princeton University) (on file with the Princeton University Library).
253. For a summary of this literature, see Pascoe, supra note 10, at 46.
254. Eight of these took place after 1848. See infra Appendix.
255. See Daniel v. Guy, 19 Ark. 121, 136 (1857). The Arkansas Supreme Court commented that this was appropriate, "[i]f they were skilled in the natural history of the races of men." Id.
256. Transcript of Trial, Daniel v. Guy, supra note 1, at 31 (bill of exceptions).
257. Id.
258. See Census of 1850, supra note 35.
259. See Transcript of Trial, Daniel v. Guy, supra note 1, at 32 (bill of exceptions).
260. See Gary v. Stevenson, 19 Ark. 580, 583-84 (1858).
261. Id. at 583.
262. Id.
263. Id.
264. Id. at 584.
265. Id.
266. 32 Ga. 316, 322-23 (1861).
267. See id. at 317; see also HODES, supra note 20, at 108-16 (discussing Sullivan).
268. Sullivan, 32 Ga. at 319.
269. Id. at 322-23.
270. Id. at 323.
271. See id. at 324.
272. Transcript of Trial, Daniel v. Guy, supra note 1, at 27 (cross-examination of Thomas S. Thompson).
273. See id.
274. See, e.g., Transcript of Trial, Hopkins v. Bowers, No. 16,598 (N.C. Orange County Super. Ct. Mar. 1890) (collection of N.C. Dep't of Archives & History, Raleigh, N.C. Supreme Court Records), rev'd on the other grounds, 12 S.E. 984 (N.C. 1891). In this property dispute, one of the plaintiffs, John Hopkins, testifying to Ann Bowers's mixed blood, was asked by the plaintiff's counsel, "what degree of african descent, in his opinion, was Ann." Id. at 21 (testimony of John Hopkins). After the defendant objected, the judge asked Hopkins "if he had ever given any attention to, or had any experiences in the admixtures of races." Id. When Hopkins said he had not, "[h]is Honor adjudged him not to be an expert in this matter and excluded the question." Id. at 21-22.
275. Many trials of racial determination appear to have involved people of some African or Indian ancestry claiming whiteness for its advantages - freedom, property rights, public school attendance. On the other hand, in some cases, the person at issue was a child, or someone who had no direct interest in the suit herself (for example, a witness disqualified in a criminal case). In those instances, the subject of the inquiry may not have been consciously presenting herself as white. Even in those cases, however, witnesses who reported on the person's racial performance sometimes made reference to the way a person held herself out, distinguishing self-presentation from reception by others.
276. See KENNETH S. GREENBERG, HONOR & SLAVERY 16 (1996); BERTRAM WYATT-BROWN, YANKEE SAINTS AND SOUTHERN SINNERS 185-94 (1985); Gross, supra note 54, at 269. Historians identify this as a crucial difference between an honor-based and a guilt-based society. See, e.g., Bertram Wyatt-Brown, The Mask of Obedience: Male Slave Psychology in the Old South, 93 AM. HIST. REV. 1228, 1233 (1988). Charles Sydnor, in one of the earliest articles to discuss Southern law and culture, explains the caning of William Sumner in similar terms. See Charles S. Sydnor, The Southerner and the Laws, 6 J.S. HIST. 3 (1940). For an illuminating discussion of the legal and political ramifications of 19th-century Northerners' "look within," see Jacob Katz Cogan, Note, The Look Within: Property, Capacity, and Suffrage in Nineteenth-Century America, 107 YALE L.J. 473 (1997).
277. See KENNETH S. GREENBERG, HONOR & SLAVERY 16 (1996); BERTRAM WYATT-BROWN, YANKEE SAINTS AND SOUTHERN SINNERS 185-94 (1985); Gross, supra note 54, at 269. Historians identify this as a crucial difference between an honor-based and a guilt-based society. See, e.g., Bertram Wyatt-Brown, The Mask of Obedience: Male Slave Psychology in the Old South, 93 AM. HIST. REV. 1228, 1233 (1988). Charles Sydnor, in one of the earliest articles to discuss Southern law and culture, explains the caning of William Sumner in similar terms. See Charles S. Sydnor, The Southerner and the Laws, 6 J.S. HIST. 3 (1940). For an illuminating discussion of the legal and political ramifications of 19th-century Northerners' "look within," see Jacob Katz Cogan, Note, The Look Within: Property, Capacity, and Suffrage in Nineteenth-Century America, 107 YALE L.J. 473 (1997).
278. See KENNETH S. GREENBERG, HONOR & SLAVERY 16 (1996); BERTRAM WYATT-BROWN, YANKEE SAINTS AND SOUTHERN SINNERS 185-94 (1985); Gross, supra note 54, at 269. Historians identify this as a crucial difference between an honor-based and a guilt-based society. See, e.g., Bertram Wyatt-Brown, The Mask of Obedience: Male Slave Psychology in the Old South, 93 AM. HIST. REV. 1228, 1233 (1988). Charles Sydnor, in one of the earliest articles to discuss Southern law and culture, explains the caning of William Sumner in similar terms. See Charles S. Sydnor, The Southerner and the Laws, 6 J.S. HIST. 3 (1940). For an illuminating discussion of the legal and political ramifications of 19th-century Northerners' "look within," see Jacob Katz Cogan, Note, The Look Within: Property, Capacity, and Suffrage in Nineteenth-Century America, 107 YALE L.J. 473 (1997).
279. See KENNETH S. GREENBERG, HONOR & SLAVERY 16 (1996); BERTRAM WYATT-BROWN, YANKEE SAINTS AND SOUTHERN SINNERS 185-94 (1985); Gross, supra note 54, at 269. Historians identify this as a crucial difference between an honor-based and a guilt-based society. See, e.g., Bertram Wyatt-Brown, The Mask of Obedience: Male Slave Psychology in the Old South, 93 AM. HIST. REV. 1228, 1233 (1988). Charles Sydnor, in one of the earliest articles to discuss Southern law and culture, explains the caning of William Sumner in similar terms. See Charles S. Sydnor, The Southerner and the Laws, 6 J.S. HIST. 3 (1940). For an illuminating discussion of the legal and political ramifications of 19th-century Northerners' "look within," see Jacob Katz Cogan, Note, The Look Within: Property, Capacity, and Suffrage in Nineteenth-Century America, 107 YALE L.J. 473 (1997).
280. See KENNETH S. GREENBERG, HONOR & SLAVERY 16 (1996); BERTRAM WYATT-BROWN, YANKEE SAINTS AND SOUTHERN SINNERS 185-94 (1985); Gross, supra note 54, at 269. Historians identify this as a crucial difference between an honor-based and a guilt-based society. See, e.g., Bertram Wyatt-Brown, The Mask of Obedience: Male Slave Psychology in the Old South, 93 AM. HIST. REV. 1228, 1233 (1988). Charles Sydnor, in one of the earliest articles to discuss Southern law and culture, explains the caning of William Sumner in similar terms. See Charles S. Sydnor, The Southerner and the Laws, 6 J.S. HIST. 3 (1940). For an illuminating discussion of the legal and political ramifications of 19th-century Northerners' "look within," see Jacob Katz Cogan, Note, The Look Within: Property, Capacity, and Suffrage in Nineteenth-Century America, 107 YALE L.J. 473 (1997).
281. See FREDRICKSON, Aristocracy and Democracy, in THE ARROGANCE OF RACE, supra note 12, at 134, 138-41. Fredrickson attributes this insight to Wilbur J. Cash. See W.J. CASH, THE MIND OF THE SOUTH (1941). On honor, see generally GREENBERG, supra note 203; BERTMAN WYATT-BROWN, HONOR AND VIOLENCE IN THE OLD SOUTH (1986); and BERTRAM WYATT-BROWN, THE HOUSE OF PERCY: HONOR, MELANCHOLY, AND IMAGINATION IN A SOUTHERN FAMILY (1994). On herrenvolk democracy, see FREDRICKSON, supra note 179, at 61-71; J. WILLIAM HARRIS, PLAIN FOLK AND GENTRY IN A SLAVE SOCIETY: WHITE LIBERTY AND BLACK SLAVERY IN AUGUSTA'S HINTERLANDS 5-6, 94-119 (1985); OAKES, supra note 176, at 138-47; and J. MILLS THORNTON III, POLITICS AND POWER IN A SLAVE SOCIETY: ALABAMA, 1800-1860, at 442-59 (1978).
282. See FREDRICKSON, Aristocracy and Democracy, in THE ARROGANCE OF RACE, supra note 12, at 134, 138-41. Fredrickson attributes this insight to Wilbur J. Cash. See W.J. CASH, THE MIND OF THE SOUTH (1941). On honor, see generally GREENBERG, supra note 203; BERTMAN WYATT-BROWN, HONOR AND VIOLENCE IN THE OLD SOUTH (1986); and BERTRAM WYATT-BROWN, THE HOUSE OF PERCY: HONOR, MELANCHOLY, AND IMAGINATION IN A SOUTHERN FAMILY (1994). On herrenvolk democracy, see FREDRICKSON, supra note 179, at 61-71; J. WILLIAM HARRIS, PLAIN FOLK AND GENTRY IN A SLAVE SOCIETY: WHITE LIBERTY AND BLACK SLAVERY IN AUGUSTA'S HINTERLANDS 5-6, 94-119 (1985); OAKES, supra note 176, at 138-47; and J. MILLS THORNTON III, POLITICS AND POWER IN A SLAVE SOCIETY: ALABAMA, 1800-1860, at 442-59 (1978).
283. See FREDRICKSON, Aristocracy and Democracy, in THE ARROGANCE OF RACE, supra note 12, at 134, 138-41. Fredrickson attributes this insight to Wilbur J. Cash. See W.J. CASH, THE MIND OF THE SOUTH (1941). On honor, see generally GREENBERG, supra note 203; BERTMAN WYATT-BROWN, HONOR AND VIOLENCE IN THE OLD SOUTH (1986); and BERTRAM WYATT-BROWN, THE HOUSE OF PERCY: HONOR, MELANCHOLY, AND IMAGINATION IN A SOUTHERN FAMILY (1994). On herrenvolk democracy, see FREDRICKSON, supra note 179, at 61-71; J. WILLIAM HARRIS, PLAIN FOLK AND GENTRY IN A SLAVE SOCIETY: WHITE LIBERTY AND BLACK SLAVERY IN AUGUSTA'S HINTERLANDS 5-6, 94-119 (1985); OAKES, supra note 176, at 138-47; and J. MILLS THORNTON III, POLITICS AND POWER IN A SLAVE SOCIETY: ALABAMA, 1800-1860, at 442-59 (1978).
284. See FREDRICKSON, Aristocracy and Democracy, in THE ARROGANCE OF RACE, supra note 12, at 134, 138-41. Fredrickson attributes this insight to Wilbur J. Cash. See W.J. CASH, THE MIND OF THE SOUTH (1941). On honor, see generally GREENBERG, supra note 203; BERTMAN WYATT-BROWN, HONOR AND VIOLENCE IN THE OLD SOUTH (1986); and BERTRAM WYATT-BROWN, THE HOUSE OF PERCY: HONOR, MELANCHOLY, AND IMAGINATION IN A SOUTHERN FAMILY (1994). On herrenvolk democracy, see FREDRICKSON, supra note 179, at 61-71; J. WILLIAM HARRIS, PLAIN FOLK AND GENTRY IN A SLAVE SOCIETY: WHITE LIBERTY AND BLACK SLAVERY IN AUGUSTA'S HINTERLANDS 5-6, 94-119 (1985); OAKES, supra note 176, at 138-47; and J. MILLS THORNTON III, POLITICS AND POWER IN A SLAVE SOCIETY: ALABAMA, 1800-1860, at 442-59 (1978).
285. See FREDRICKSON, Aristocracy and Democracy, in THE ARROGANCE OF RACE, supra note 12, at 134, 138-41. Fredrickson attributes this insight to Wilbur J. Cash. See W.J. CASH, THE MIND OF THE SOUTH (1941). On honor, see generally GREENBERG, supra note 203; BERTMAN WYATT-BROWN, HONOR AND VIOLENCE IN THE OLD SOUTH (1986); and BERTRAM WYATT-BROWN, THE HOUSE OF PERCY: HONOR, MELANCHOLY, AND IMAGINATION IN A SOUTHERN FAMILY (1994). On herrenvolk democracy, see FREDRICKSON, supra note 179, at 61-71; J. WILLIAM HARRIS, PLAIN FOLK AND GENTRY IN A SLAVE SOCIETY: WHITE LIBERTY AND BLACK SLAVERY IN AUGUSTA'S HINTERLANDS 5-6, 94-119 (1985); OAKES, supra note 176, at 138-47; and J. MILLS THORNTON III, POLITICS AND POWER IN A SLAVE SOCIETY: ALABAMA, 1800-1860, at 442-59 (1978).
286. See FREDRICKSON, Aristocracy and Democracy, in THE ARROGANCE OF RACE, supra note 12, at 134, 138-41. Fredrickson attributes this insight to Wilbur J. Cash. See W.J. CASH, THE MIND OF THE SOUTH (1941). On honor, see generally GREENBERG, supra note 203; BERTMAN WYATT-BROWN, HONOR AND VIOLENCE IN THE OLD SOUTH (1986); and BERTRAM WYATT-BROWN, THE HOUSE OF PERCY: HONOR, MELANCHOLY, AND IMAGINATION IN A SOUTHERN FAMILY (1994). On herrenvolk democracy, see FREDRICKSON, supra note 179, at 61-71; J. WILLIAM HARRIS, PLAIN FOLK AND GENTRY IN A SLAVE SOCIETY: WHITE LIBERTY AND BLACK SLAVERY IN AUGUSTA'S HINTERLANDS 5-6, 94-119 (1985); OAKES, supra note 176, at 138-47; and J. MILLS THORNTON III, POLITICS AND POWER IN A SLAVE SOCIETY: ALABAMA, 1800-1860, at 442-59 (1978).
287. See Transcript of Trial, Bryan v. Walton, No. A-1154 (Ga. Houston County Super. Ct. April 1853) (collection of Ga. Dep't of Archives & History, Atlanta, Ga., Supreme Court, Case F., Box 17) rev'd, 14 Ga. 185 (1853) [hereinafter Transcript of Trial, Bryan I]; Transcript of Trial, Bryan v. Watson [sic], No. A-1836 (Ga. Houston County Super. Ct. Apr. 1856) (collection of Ga. Dep't of Archives & History, Atlanta, Ga., Supreme Court, Case F, Box 21), rev'd, 20 Ga. 480 (1856) [hereinafter Transcript of Trial, Bryan II]; Transcript of Trial, Bryan v. Walton, No. A-3737, (Ga. Houston County Super. Ct. April 1859) (collection of Ga. Dep't of Archives & History, Atlanta, Ga., Supreme Court, Case F, Box 46), aff'd, 33 Ga. 11 (Supp. 1864) [hereinafter Transcript of Trial, Bryan III]. See generally HODES, supra note 20, at 98-108 (discussing the Nunez case as an example of racial ambiguity and the apparent community acceptance, before the Civil War, of a possibly interracial marriage). This case is a good example of performance as a "thing done," since witnesses were reporting on the past performances of one no longer living. For a discussion of performance as a "doing" and a "thing done," see Diamond, supra note 8, at 1.
288. See Transcript of Trial, Bryan I, supra note 205, at 21a-25 (containing the defendant's requested instructions and the judge's charge to the jury).
289. See Bryan v. Walton, 14 Ga. 185, 194-95 (1853) [Bryan I]. In this opinion, Judge Lumpkin made his more famous pronouncements about free blacks' rightslessness, including the statement that "[t]he prejudice, if it can be called so, of caste, is unconquerable." Id. at 202.
290. See Bryan v. Walton, 20 Ga. 480, 491-92 (1856) [Bryan II] (testimony of Mary Rogers); id. at 494 (testimony of Harriett Kilpatrick). Most of the testimony of this trial was reprinted in id.
291. See id. at 491 (testimony of Joseph Bush).
292. Id. at 492.
293. Id. (emphasis added).
294. Id. at 494.
295. Id. at 492.
296. Id. at 496. This evidence of good dancing style, incidentally, went to prove Jim's whiteness, contrary to modern stereotypes.
297. Id.
298. Id. at 494; see also HODES, supra note 20, at 100-03 (discussing the contradictory testimony in the first Nunez trial).
299. Bryan II, 20 Ga. at 498.
300. Id.
301. Id.
302. Id.
303. See, e.g., id. at 500 (testimony of Charles Ward); id. at 501 (testimony of Thomas Cosnahan).
304. See Transcript of Trial, Bryan III, supra note 205, at 13-31 (exhibit B).
305. Id. at 17.
306. Id. at 18.
307. Id. at 18-19.
308. Id. at 19-21 (testimony of Dr. Green B. Powell, Fielding Stephens, and James T. McNowell). On cross-examination, these witnesses had to swear to their own whiteness, asserting that they and their parents are as white as most white people, and especially as white as the interrogator, and that they are not advocating a free negro cause. Witnesses say that their hair is not kinky or curly, or straight, and one of them has little or no hair on his head, and rushes like Elijah of old, when he shall have shuffled off this mortal coil to go up thou old bald head. They all swear that they are white men and gentlemen. We have no negro veins, you old rake, and advise you to amend yourself. We have known white men to live with negro wives. Id. at 21.
309. In a wonderful study of interracial sex in the 19th-century South, Martha Hodes discusses the Nunez case at length. She concludes from the complete lack of community consensus about the racial identity of the Nunezes that, "[u]nlike the categories of slave and free . . . color and race must have been less urgent to white neighbors." HODES, supra note 20, at 103. She argues that before the Civil War, matters of interracial sex and of racial line-drawing were less important than they later became. See Id. I am less persuaded, however, that disagreement and conflict necessarily signify contentment with a lack of consensus.
310. Bryan III, 33 Ga. at 25-27.
311. See id. at 24. It is quite likely that Moses Nunez was Jewish. According to the leading historian of American Jewry, Dr. Samuel Nunez was a Portuguese Jew who arrived in Georgia in 1733 by way of England. "[H]is sons ate and slept with Indians, blacks, and Christians" and became fur merchants. 1 JACOB RADER MARCUS, UNITED STATES JEWRY, 1776-1985, at 34, 44, 108 (1989). By the 19th century, the "Nunezes of Georgia" were a well-known Jewish family. It is striking that the question of religion was never raised at trial.
312. Bryan III, 33 Ga. at 23.
313. Robert Gordon discusses law's constitutive role in culture this way: [I]n practice, it is just about impossible to describe any set of "basic" social practices without describing the legal relations among the people involved - legal relations that don't simply condition how the people relate to each other but to an important extent define the constitutive terms of the relationship, relations such as lord and peasant, master and slave, employer and employee, ratepayer and utility, and taxpayer and municipality. . . . Slavery is a legal relationship: It is precisely the slave's bundle of jural rights (or rather lack of them) and duties vis-à-vis others (he can't leave, he can't inherit, he has restricted rights of ownership, he can't insist on his family being together as a unit, etc.) that makes him a slave. Gordon, supra note 17, at 103.
314. State v. Cantey, 20 S.C.L. (2 Hill) 614, 614 (1835).
315. Id. at 614-15.
316. Id. at 615.
317. Id. at 616.
318. Accord White v. Tax Collector, 37 S.C.L. (3 Rich.) 136, 139 (1846) ("[T]he question [of racial determination] . . . must partake more of a political than a legal character.").
319. For other cases from South Carolina, see, for example, White v. Tax Collector, a case about payment of the capitation tax on free negros, in which the tax collector made the case that "[t]heir father is a man of some property, but was never admitted to any of the privileges of a white man," whereas the plaintiffs gave evidence that Elijah Bass had been a witness in the Court of Common Pleas at Camden with free white persons as parties. Id. at 137-38; see also Transcript of Trial, Johnson v. Boon (Walterborough Cir. Ct. Spring 1842) (collection of S.C. Dep't of Archives & History, Columbia, S.C., Court of Appeals Loose Opinions, 1843, Box 7), aff'd, 29 S.C.L. (1 Spears) 268, 269 (1842) (stating that the persons at issue "had been raised as white, and had been so received in society, and had exercised all the privileges of white people, such as mustering and voting"); Johnson v. Basquere (Colleton Ct. C.P. 1842) (collection of S.C. Dep't of Archives & History, Columbia, S.C., Court of Appeals Loose Opinions, 1843, Box 7), aff'd, 29 S.C.L. (1 Spears) 329, 329-30 (1843) ("The narrator was in court, and had the appearance of a white man. He had been a member of a volunteer company, and had voted at the general election for members of the Legislature. There was no question but what his lineage on his father's side, was that of white, and rather respectable people.").
320. Raby v. Batiste, 27 Miss. 731, 732 (1854).
321. 42 Va. (4 Gratt.) 541 (1847).
322. Id. at 541; see also White v. Clements, 39 Ga. 232 (1869) (holding that evidence that the plaintiff's name was marked "colored" in voter registration list was not enough to determine his racial status).
323. State v. Cantey, 20 S.C.L. (2 Hill) 614, 615 (1835). But see White, 37 S.C.L. (3 Rich.) at 141 (holding that there was "no prescriptive right to civil and political franchises" just because no one in the family has ever previously paid the (free negro) capitation tax; and also holding that a jury can determine racial status based on color and features, evidence about social intercourse, respectability, and marriage to a white person).
324. Cantey, 20 S.C.L. (2 Hill) at 616.
325. Of sixteen manumission suits, twelve were by women, of which eleven were won by the plaintiffs and the last ended in hung juries. See Transcript of Trial, Morrison v. White, supra note 24, at 33-36, 47-49. Of the four suits by men, two were won and two were lost. See infra Appendix.
326. See Transcript of Trial, Miller v. Belmonti, supra note 44.
327. Id. (testimony of C. Pollock).
328. See id. (testimony of Mde. Henon, Daniel Muller, Mrs. Schultze-Heimer, and Mrs. Shubert).
329. Id. (notes by plaintiff's counsel on the rule for a new trial, in support of said rule). In his motion for a new trial, plaintiff's counsel "repeat[ed] . . . in as nearly the same words as possible, what [he] did say on this point at the trial." Id.
330. Id.
331. See id.
332. Id. (emphasis added).
333. Id.
334. Miller v. Belmonti, 11 Rob. 339, 341 (La. 1845).
335. Id. at 342. He was presumably referring to the fact that her suit was aided by various others, including her purported German relatives. This also suggests that Judge Bullard was impressed by the "moral influence" argument.
336. See District Court, DAILY PICAYUNE (New Orleans, La.), Apr. 9, 1844, at 2 [hereinafter District Court I]; District Court, DAILY PICAYUNE (New Orleans, La.), May 25, 1844, at 2 [hereinafter District Court II].
337. See District Court, DAILY PICAYUNE (New Orleans, La.), Apr. 9, 1844, at 2 [hereinafter District Court I]; District Court, DAILY PICAYUNE (New Orleans, La.), May 25, 1844, at 2 [hereinafter District Court II].
338. District Court I, supra note 254, at 2.
339. See District Court II, supra note 254, at 2.
340. Id.
341. See John Miller, To the Public, DAILY PICAYUNE (New Orleans, La.), May 31, 1844, at 1.
342. See John Miller, To the Public, NEW ORLEANS BEE, June 1, 1844, at 1.
343. See Miller, supra note 258, at 1.
344. Id.
345. Miller explained that he needed to defend himself because "numerous publications in the papers have repeated the rather romantic pretensions of the plaintiff in a manner to give rise to injurious imputations upon my character." Id.
346. Literary critics suggest several explanations for the appeal of the tragic octoroon story, in which a very light-skinned young woman grows up free or nearly free, often in the household of her white father, and then, because of some tragic event such as her owner/father's bankruptcy, is sold into true slavery. This plot was, first, an "attempt to appeal to a common humanity" with white readers, "a bit of reverse racism anchored in the idea that a nearly white person enslaved was more pitiable than a pure African similarly situated." JAMES KINNEY, AMALGAMATION!: RACE, SEX, AND RHETORIC IN THE NINETEENTH-CENTURY AMERICAN NOVEL 63 (1985). But the tragic octoroon story also appealed to Northern readers because it fed their sense of moral superiority to Southern slaveholders by directly attacking the depravity of the individual slaveholder. Further, the audience of middle-class women dependent on their husbands or fathers empathized with the "sudden, horrible reversal of the tragic octoroon's fortunes," which represented a real threat to them. Id. at 65; see also, e.g., H. LORD HOSMER, ADELA, THE OCTOROON (New York, Follett, Foster & Co. 1860); JOSEPH HOLT INGRAHAM, THE QUADROONE; OR, ST. MICHAEL'S DAY (New York, Harper & Brothers 1841). Werner Sollors also calls attention to the fact that black authors used the quadroon or octoroon character as often as did whites, sometimes for black audiences, in order to call "race" into question. See SOLLORS, supra note 5, at 234-45.
347. Literary critics suggest several explanations for the appeal of the tragic octoroon story, in which a very light-skinned young woman grows up free or nearly free, often in the household of her white father, and then, because of some tragic event such as her owner/father's bankruptcy, is sold into true slavery. This plot was, first, an "attempt to appeal to a common humanity" with white readers, "a bit of reverse racism anchored in the idea that a nearly white person enslaved was more pitiable than a pure African similarly situated." JAMES KINNEY, AMALGAMATION!: RACE, SEX, AND RHETORIC IN THE NINETEENTH-CENTURY AMERICAN NOVEL 63 (1985). But the tragic octoroon story also appealed to Northern readers because it fed their sense of moral superiority to Southern slaveholders by directly attacking the depravity of the individual slaveholder. Further, the audience of middle-class women dependent on their husbands or fathers empathized with the "sudden, horrible reversal of the tragic octoroon's fortunes," which represented a real threat to them. Id. at 65; see also, e.g., H. LORD HOSMER, ADELA, THE OCTOROON (New York, Follett, Foster & Co. 1860); JOSEPH HOLT INGRAHAM, THE QUADROONE; OR, ST. MICHAEL'S DAY (New York, Harper & Brothers 1841). Werner Sollors also calls attention to the fact that black authors used the quadroon or octoroon character as often as did whites, sometimes for black audiences, in order to call "race" into question. See SOLLORS, supra note 5, at 234-45.
348. Literary critics suggest several explanations for the appeal of the tragic octoroon story, in which a very light-skinned young woman grows up free or nearly free, often in the household of her white father, and then, because of some tragic event such as her owner/father's bankruptcy, is sold into true slavery. This plot was, first, an "attempt to appeal to a common humanity" with white readers, "a bit of reverse racism anchored in the idea that a nearly white person enslaved was more pitiable than a pure African similarly situated." JAMES KINNEY, AMALGAMATION!: RACE, SEX, AND RHETORIC IN THE NINETEENTH-CENTURY AMERICAN NOVEL 63 (1985). But the tragic octoroon story also appealed to Northern readers because it fed their sense of moral superiority to Southern slaveholders by directly attacking the depravity of the individual slaveholder. Further, the audience of middle-class women dependent on their husbands or fathers empathized with the "sudden, horrible reversal of the tragic octoroon's fortunes," which represented a real threat to them. Id. at 65; see also, e.g., H. LORD HOSMER, ADELA, THE OCTOROON (New York, Follett, Foster & Co. 1860); JOSEPH HOLT INGRAHAM, THE QUADROONE; OR, ST. MICHAEL'S DAY (New York, Harper & Brothers 1841). Werner Sollors also calls attention to the fact that black authors used the quadroon or octoroon character as often as did whites, sometimes for black audiences, in order to call "race" into question. See SOLLORS, supra note 5, at 234-45.
349. WILLIAM WELLS BROWN, CLOTEL OR THE PRESIDENT'S DAUGHTER: A NARRATIVE OF
350. See id. at 90.
351. See CRAFT & CRAFT, supra note 47, at 3-6.
352. Id. at 2. William Craft noted that his wife Ellen was nearly white, but that this had caused nothing but trouble for her under slavery, triggering the resentment of her mistress, who was her father's widow. Craft introduced Sally Miller's story to prove "that he who has the power, and is inhuman enough to trample upon the sacred rights of the weak, cares nothing for race or colour . . . ." Id. at 3. Craft gave even more details of the arrival of Daniel Miller and his daughters Dorothea and Salomé, their travel to Attakapas parish to work on the plantation of John F. Miller, and the disappearance of the girls after their father's death. Craft quoted the Law Reporter's account of the gathering of German emigrants of 1818 to establish Salomé's identity, including the midwife who had assisted at her birth. According to Craft, "There was no trace of African descent in any feature of Salomé Muller [sic]. She had long, straight, black hair, hazel eyes, thin lips, and a Roman nose. The complexion of her face and neck was as dark as that of the darkest brunette." Id. at 5. Although so many years under the hot Louisiana sun had darkened her exposed skin, "[t]hose parts of her person which had been shielded from the sun were comparatively white." Id. at 5-6. This and other stories of free children sold into slavery provided the Crafts with evidence of the moral depravity to which the institution of slavery had reduced white men.
353. See, e.g., OAKES, supra note 176, at 171-74. Most Civil War historians now emphasize the role of abolitionists in escalating the sectional conflict to the point of war. See, e.g., 1 WILLIAM W. FREEHLING, THE ROAD TO DISUNION: SECESSIONISTS AT BAY 1776-1854, at 289-352 (1990); DAVID M. POTTER, THE IMPENDING CRISIS 1848-1861, at 18-50 (1976).
354. See, e.g., OAKES, supra note 176, at 171-74. Most Civil War historians now emphasize the role of abolitionists in escalating the sectional conflict to the point of war. See, e.g., 1 WILLIAM W. FREEHLING, THE ROAD TO DISUNION: SECESSIONISTS AT BAY 1776-1854, at 289-352 (1990); DAVID M. POTTER, THE IMPENDING CRISIS 1848-1861, at 18-50 (1976).
355. See EUGENE D. GENOVESE, ROLL, JORDAN, ROLL: THE WORLD THE SLAVES MADE 648 (1974).
356. Of course, like all efforts to turn the weapons of the oppressor against himself, the politicization of "white slavery" was a double-edged sword; it did not ultimately repudiate the racial hierarchy that made whiteness supreme.
357. Johnson, supra note 20, at 10.
358. See Transcript of Trial, Morrison v. White, supra note 24, at 33-36, 47-49 (depositions of B.F. Giles and Moses Morrison); Johnson, supra note 20, at 1.
359. Transcript of Trial, Morrison v. White, supra note 24, at 63.
360. Id. at 14 (interrogatories to Benjamin F. Danby, Christopher C. Danby, Josiah Gildes, Andre Hutt, and John T. Trigg).
361. Id. at 24. As Walter Johnson has pointed out, Morrison had to pay for her freedom by performing the rituals of the slave market, stripping before white men who would consider it indecent to inspect a respectable white girl in the same way. Alexina Morrison, rather, was white in the same way that "fancy girls" sold at New Orleans quadroon balls were white, a whiteness that could be purchased. Johnson also suggests, however, the irony that slaveholders had to rely on "[t]he saving abstraction 'black blood' . . . to distinguish nearly white women from really white ones, to distinguish what was essentially performance from what was the performance of essence." Johnson, supra note 20, at 6. An excellent performance "could breach the categories designed to contain and commodify hybridity, [and] a slave could step over the color line and onto the other side." Id. That was just what Alexina Morrison tried to do.
362. G.H. Lyon, for example, had to be asked twice. On reexamination, he explained that he "[d]id not understand the question first put to him, as whether he knew the difference between the Caucasian and African Race, says now that he knows the difference." Transcript of Trial, Morrison v. White, supra note 24, at 24-25; see also id. at 25 (testimony of J.B. Clauson); id. at 26-27 (testimony of S.N. Cannon); id. at 28-29 (testimony of J.H. Breaux).
363. Id. at 28 (testimony of J.H. Breaux).
364. Id. at 29 (testimony of B. Preston).
365. Id. at 34-35 (deposition of Moses Morrison).
366. Id. at 62 (petition for change of venue by James White).
367. Id. at 63.
368. Id. at 80 (testimony of P.C. Perret).
369. Id. at 81.
370. See id. at 82.
371. See id. at 84 (testimony of William Dennison).
372. Id. at 89-90 (testimony of Dr. Brickell); see also id. at 92-96 (testimony of Dr. Riddell).
373. Id. at 88 (testimony of Seaman Hopkins).
374. See id. at 87. He explained that he had undertaken this study "before [Massachusetts] legislated itself out of the Union." Id.
375. Johnson, supra note 20, at 12.
376. See Transcript of Trial, Morrison v. White, supra note 24, at 156-58 (testimony of S.N. Cannon).
377. Johnson, supra note 20, at 13.
378. Id. at 15.
379. Id. at 16.
380. Morrison v. White, 16 La. Ann. 100, 102 (1861).
381. See Transcript of Trial, Morrison v. White, supra note 24, at 170.
382. For an example of such a case far from New Orleans, see Miller v. Denman, Transcript of Trial, Miller v. Denman (Jan. 1835) (collection of Tenn. State Archives, Nashville, Tenn., Supreme Court Records), rev'd, 16 Tenn. 232 (1835). James Denman sued Isaac Miller for enticing his slave Harriett away from their home in Georgia to Sevier County, Tennessee, where she lived free for two years under the name Irene Sanders. When Denman came to reclaim "Harriet," the neighbors tried to stop him and demanded proof of her slave status. Although Miller was inclined to let Denman take her away, because she admitted that she was a slave, Richard Shields, John Cattell, and John Evans were not willing to let her go, arguing that the girl might have been bound when a child to the plaintiff and raised as a negro and did not know any better - and that Shields added the girl had lived at his house so long and conducted herself so well he did not think it would be right to let her be taken off in that way . . . . Id. at 13 (testimony of John Cattell).
383. See, e.g., HODES, supra note 20, at 146; Johnson, supra note 20, at 20-21.
384. See HODES, supra note 20, at 6, 198.
385. See WILLIAMSON, supra note 38, at 61-109. Williamson suggests that this resulted both from the decisions of the mulatto elite to align themselves politically and culturally with the freedpeople and from white efforts to force mulattoes into the "negro" class. He writes: "There began a melding of mulatto and black worlds, not only in politics but in the whole broad array of human endeavor." Id. at 78. Most observers agreed that interracial sex declined dramatically after the Civil War. See id. at 88-89. There is a voluminous literature on how much "room" there was for alternative social arrangements during Reconstruction, when segragation, racial violence, and disfranchisement were less widespread than they would become in the later 19th century. It is safe to say, however, that the trend in social and political life in the 1870s was already toward the exclusion and separation of people with African ancestry, although this campaign did not succeed entirely until the last decade of the century, accompanied by an epidemic of violence and lynching aimed at black people and whites who allied themeselves with them. On the violence of the 1890s, see JACQUELYN DOWD HALL, REVOLT AGAINST CHIVALRY: JESSIE DANIEL AMES AND THE WOMEN'S CAMPAIGN AGAINST LYNCHING (1993); and JOEL WILLIAMSON, THE CRUCIBLE OF RACE: BLACK-WHITE RELATIONS IN THE AMERICAN SOUTH SINCE EMANCIPATION (1984). On the rise of segragation after Reconstruction, see generally HAROLD D. WOODMAN, NEW SOUTH - NEW LAW: THE LEGAL FOUNDATIONS OF CREDIT AND LABOR RELATIONS IN THE POSTBELLUM AGRICULTURAL SOUTH (1995); C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW (3d rev. ed. 1974); and Barbara Y. Welke, When All the Women Were White, and All the Blacks Were Men: Gender, Class, Race, and the Road to Plessy, 1855-1914, 13 L. & HIST. REV. 261 (1995).
386. See WILLIAMSON, supra note 38, at 61-109. Williamson suggests that this resulted both from the decisions of the mulatto elite to align themselves politically and culturally with the freedpeople and from white efforts to force mulattoes into the "negro" class. He writes: "There began a melding of mulatto and black worlds, not only in politics but in the whole broad array of human endeavor." Id. at 78. Most observers agreed that interracial sex declined dramatically after the Civil War. See id. at 88-89. There is a voluminous literature on how much "room" there was for alternative social arrangements during Reconstruction, when segragation, racial violence, and disfranchisement were less widespread than they would become in the later 19th century. It is safe to say, however, that the trend in social and political life in the 1870s was already toward the exclusion and separation of people with African ancestry, although this campaign did not succeed entirely until the last decade of the century, accompanied by an epidemic of violence and lynching aimed at black people and whites who allied themeselves with them. On the violence of the 1890s, see JACQUELYN DOWD HALL, REVOLT AGAINST CHIVALRY: JESSIE DANIEL AMES AND THE WOMEN'S CAMPAIGN AGAINST LYNCHING (1993); and JOEL WILLIAMSON, THE CRUCIBLE OF RACE: BLACK-WHITE RELATIONS IN THE AMERICAN SOUTH SINCE EMANCIPATION (1984). On the rise of segragation after Reconstruction, see generally HAROLD D. WOODMAN, NEW SOUTH - NEW LAW: THE LEGAL FOUNDATIONS OF CREDIT AND LABOR RELATIONS IN THE POSTBELLUM AGRICULTURAL SOUTH (1995); C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW (3d rev. ed. 1974); and Barbara Y. Welke, When All the Women Were White, and All the Blacks Were Men: Gender, Class, Race, and the Road to Plessy, 1855-1914, 13 L. & HIST. REV. 261 (1995).
387. See WILLIAMSON, supra note 38, at 61-109. Williamson suggests that this resulted both from the decisions of the mulatto elite to align themselves politically and culturally with the freedpeople and from white efforts to force mulattoes into the "negro" class. He writes: "There began a melding of mulatto and black worlds, not only in politics but in the whole broad array of human endeavor." Id. at 78. Most observers agreed that interracial sex declined dramatically after the Civil War. See id. at 88-89. There is a voluminous literature on how much "room" there was for alternative social arrangements during Reconstruction, when segragation, racial violence, and disfranchisement were less widespread than they would become in the later 19th century. It is safe to say, however, that the trend in social and political life in the 1870s was already toward the exclusion and separation of people with African ancestry, although this campaign did not succeed entirely until the last decade of the century, accompanied by an epidemic of violence and lynching aimed at black people and whites who allied themeselves with them. On the violence of the 1890s, see JACQUELYN DOWD HALL, REVOLT AGAINST CHIVALRY: JESSIE DANIEL AMES AND THE WOMEN'S CAMPAIGN AGAINST LYNCHING (1993); and JOEL WILLIAMSON, THE CRUCIBLE OF RACE: BLACK-WHITE RELATIONS IN THE AMERICAN SOUTH SINCE EMANCIPATION (1984). On the rise of segragation after Reconstruction, see generally HAROLD D. WOODMAN, NEW SOUTH -NEW LAW: THE LEGAL FOUNDATIONS OF CREDIT AND LABOR RELATIONS IN THE POSTBELLUM AGRICULTURAL SOUTH (1995); C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW (3d rev. ed. 1974); and Barbara Y. Welke, When All the Women Were White, and All the Blacks Were Men: Gender, Class, Race, and the Road to Plessy, 1855-1914, 13 L. & HIST. REV. 261 (1995).
388. See WILLIAMSON, supra note 38, at 61-109. Williamson suggests that this resulted both from the decisions of the mulatto elite to align themselves politically and culturally with the freedpeople and from white efforts to force mulattoes into the "negro" class. He writes: "There began a melding of mulatto and black worlds, not only in politics but in the whole broad array of human endeavor." Id. at 78. Most observers agreed that interracial sex declined dramatically after the Civil War. See id. at 88-89. There is a voluminous literature on how much "room" there was for alternative social arrangements during Reconstruction, when segragation, racial violence, and disfranchisement were less widespread than they would become in the later 19th century. It is safe to say, however, that the trend in social and political life in the 1870s was already toward the exclusion and separation of people with African ancestry, although this campaign did not succeed entirely until the last decade of the century, accompanied by an epidemic of violence and lynching aimed at black people and whites who allied themeselves with them. On the violence of the 1890s, see JACQUELYN DOWD HALL, REVOLT AGAINST CHIVALRY: JESSIE DANIEL AMES AND THE WOMEN'S CAMPAIGN AGAINST LYNCHING (1993); and JOEL WILLIAMSON, THE CRUCIBLE OF RACE: BLACK-WHITE RELATIONS IN THE AMERICAN SOUTH SINCE EMANCIPATION (1984). On the rise of segragation after Reconstruction, see generally HAROLD D. WOODMAN, NEW SOUTH - NEW LAW: THE LEGAL FOUNDATIONS OF CREDIT AND LABOR RELATIONS IN THE POSTBELLUM AGRICULTURAL SOUTH (1995); C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW (3d rev. ed. 1974); and Barbara Y. Welke, When All the Women Were White, and All the Blacks Were Men: Gender, Class, Race, and the Road to Plessy, 1855-1914, 13 L. & HIST. REV. 261 (1995).
389. See WILLIAMSON, supra note 38, at 61-109. Williamson suggests that this resulted both from the decisions of the mulatto elite to align themselves politically and culturally with the freedpeople and from white efforts to force mulattoes into the "negro" class. He writes: "There began a melding of mulatto and black worlds, not only in politics but in the whole broad array of human endeavor." Id. at 78. Most observers agreed that interracial sex declined dramatically after the Civil War. See id. at 88-89. There is a voluminous literature on how much "room" there was for alternative social arrangements during Reconstruction, when segragation, racial violence, and disfranchisement were less widespread than they would become in the later 19th century. It is safe to say, however, that the trend in social and political life in the 1870s was already toward the exclusion and separation of people with African ancestry, although this campaign did not succeed entirely until the last decade of the century, accompanied by an epidemic of violence and lynching aimed at black people and whites who allied themeselves with them. On the violence of the 1890s, see JACQUELYN DOWD HALL, REVOLT AGAINST CHIVALRY: JESSIE DANIEL AMES AND THE WOMEN'S CAMPAIGN AGAINST LYNCHING (1993); and JOEL WILLIAMSON, THE CRUCIBLE OF RACE: BLACK-WHITE RELATIONS IN THE AMERICAN SOUTH SINCE EMANCIPATION (1984). On the rise of segragation after Reconstruction, see generally HAROLD D. WOODMAN, NEW SOUTH - NEW LAW: THE LEGAL FOUNDATIONS OF CREDIT AND LABOR RELATIONS IN THE POSTBELLUM AGRICULTURAL SOUTH (1995); C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW (3d rev. ed. 1974); and Barbara Y. Welke, When All the Women Were White, and All the Blacks Were Men: Gender, Class, Race, and the Road to Plessy, 1855-1914, 13 L. & HIST. REV. 261 (1995).
390. For example, Alabama, which had no explicit law against interracial marriage before the Civil War, passed a law 1866 punishing interracial marriage, adultery, or fornication by two to seven years imprisonment or hard labor. See REV. CODE ALA. §§ 3602-3603, at 690 (1867). The Alabama Supreme Court found this statue unconstitutional in 1872 but overruled itself quickly in 1877. Compare Burns v. State, 48 Ala. 195 (1872), with Green v. State, 58 Ala. 190 (1877). For a summary of legal developments in Southern states, see BARDAGLIO, supra note 175, at 179-89. Indeed, the word "miscegenation" was coined as an anti-Republican epithet in 1864. As Robert J. Sickels notes: "Miscegenation," from the Latin miscere (mix) and genus (race) was coined by the authors of an anonymous pamphlet, Miscegenation: The Theory of the Blending of the Race, published in 1864, in reality an attempt by Democrats David Croly and George Wakeman to attribute favorable views on racial mixing to the Republicans and thereby aid the Democratic candidate for president. ROBERT J. SICKELS, RACE, MARRIAGE, AND THE LAW 151 n.2 (1972).
391. For example, Alabama, which had no explicit law against interracial marriage before the Civil War, passed a law 1866 punishing interracial marriage, adultery, or fornication by two to seven years imprisonment or hard labor. See REV. CODE ALA. §§ 3602-3603, at 690 (1867). The Alabama Supreme Court found this statue unconstitutional in 1872 but overruled itself quickly in 1877. Compare Burns v. State, 48 Ala. 195 (1872), with Green v. State, 58 Ala. 190 (1877). For a summary of legal developments in Southern states, see BARDAGLIO, supra note 175, at 179-89. Indeed, the word "miscegenation" was coined as an anti-Republican epithet in 1864. As Robert J. Sickels notes: "Miscegenation," from the Latin miscere (mix) and genus (race) was coined by the authors of an anonymous pamphlet, Miscegenation: The Theory of the Blending of the Race, published in 1864, in reality an attempt by Democrats David Croly and George Wakeman to attribute favorable views on racial mixing to the Republicans and thereby aid the Democratic candidate for president. ROBERT J. SICKELS, RACE, MARRIAGE, AND THE LAW 151 n.2 (1972).
392. Here it is important to use caution in drawing conclusions from the numbers of cases that reached their state's highest court. It is possible that people were litigating race steadily in trial courts but that for some reason, the rate of appeals accelerated in the 1840s and 1850s and dropped after the Civil War. For the antebellum period, I feel fairly comfortable concluding that the cases in state supreme courts roughly reflect the cases in county trial courts, based on my research in civil cases involving slaves. See Gross, supra note 21, at 17-25. In that study, I compared trials in five Deep Southern states that were appealed to the states' highest courts with a large sample of unappealed trials in Adams County, Mississippi, drawn from a survey of all causes of action brought in the Adams Circuit Court between 1798 and 1861. I found that the cases from my five-state sample and those from my Adams County sample differed in few important ways. Litigation rates in Adams County rose over the antebellum period, and cases involving slaves rose as a percentage of all litigation. This rise was mirrored in the rise of appeals to the five state supreme courts. During the antebellum period, state supreme courts took all appeals brought to their attention. See id. I cannot exclude the possibility that after the Civil War more cases were litigated in county trial courts than were heard on appeal in state supreme courts, so that the drop-off after the Civil War seen in my sample of trials does not demonstrate a lower frequency of litigation. It is worth noting, however, that there were no particularly widespread changes in the rules of appellate procedure in the immediate aftermath of the Civil War. Only in the 20th century did most states add intermediate courts of appeal and limit the number of appeals heard by their highest courts. See ROSCOE POUND, APPELLATE PROCEDURE IN CIVIL CASES 106-320 (1941).
393. Ann Bowers, in her answer to the suit, claimed title to the land both as Nash Booth's widow and also as the heir of Lydia Bowers. According to Ann, her mother Lydia had deeded her house and land to Nash Booth on her deathbed. Ann had been ready to challenge Nash's title by charging that he had exercised undue influence on Lydia, but he "prevailed upon her not to bring suit," saying that "if she would marry him it would secure the land to both." Transcript of Trial, Hopkins v. Bowers, supra note 201, at 20-21. So Nash Booth married his lover Lydia's daughter in order to retain control of her land. See id.
394. Id. at 20-21 (testimony of H.R. Lloyd).
395. Id. at 21-22.
396. Id. at 22.
397. Id. at 22-23.
398. Id. Ann called no witnesses on her own behalf. She herself testified, as did one of her daughters, about her marriage to Nash and his paternity of their children, and she exhibited her six-month-old baby again to the jury. See id. at 24. Ann's counsel was awarded the right to open and conclude the trial. Id. at 25. The jury rendered a verdict for Ann and her children, but the plaintiffs won their appeal on the ground that exhibiting Ann and her children for inspection by the jury did not make them witnesses for the plaintiffs; therefore, the defendant had no right to call them to testify. See Hopkins v. Bowers, 12 S.E. 984 (N.C. 1891).
399. See Transcript of Trial, Warlick v. White, supra note 100.
400. Id. at 4.
401. Gordon, supra note 17, at 103 ("[I]t is precisely the slave's bundle of jural rights (or rather lack of them) and duties vis-à-vis others . . . that makes him a slave.")
402. See Susan F. Hirsch & Mindie Lazarus-Black, Introduction: Performance and Paradox: Exploring Law's Role in Hegemony and Resistance, in CONTESTED STATES, supra note 6, at 1, 2-13 (arguing that scholars should recognize both the "contestability" and "hegemony" of law).
403. Sedgwick, supra note 6, at 15; see also Amy Robinson, Forms of Appearance of Value: Homer Plessy and the Politics of Privacy, in PERFORMANCE AND CULTURAL POLITICS, supra note 8, at 239 (seeking to transcend the subversion-hegemony dichotomy).
404. See Stoler, supra note 9, at 196.
405. The literature on the social construction of race stands in uncomfortable counterpoise to the ideology of "colorblindness." Barbara Fields and K. Anthony Appiah come closest to using the history of racial "construction" as an argument for abolishing "race," and by implication, racial remedies, in the present day. Barbara Fields ends her tendentious article, Slavery, Race and Ideology in the United States of America, by admonishing contemporary readers not to "recreate" race by teaching their children that people with brown skin are in fact "black." See Fields, supra note 14, at 118. As David Roediger notes, Fields does not escape the Marxist tendency to make race "disappear into the 'reality' of class." ROEDIGER, supra note 7, at 8. Appiah calls for replacing the "illusioquot; of race with "culture" instead, arguing that even strategic uses of essentialism, deploying racial pride to unify oppressed classes, backfire because their historicism folds back into an essentially biological understanding of race. That is, black people cannot simply be people with a "shared history," because you need biology or morphology to define the group who "share" the history. See APPIAH, supra note 15, at 28-46. A number of writers, among them critical race theorists studying the role of law, have tried to salvage the social constructionist position on race from these conclusions, sometimes using Fields's and Appiah's work as a starting point to resurrect race as a useful and "real" category. Jayne Lee, for example, makes a subtle effort to recapture some ground for "race" by recognizing its usefulness as a strategic identity category for progressive political projects. See Lee, supra note 18, at 770-80. For a more typical argument, see Hickman, supra not 18, at 1240 (arguing that "[h]istory created this race and gave it its significance" but now "there is race").
406. For a discussion of the historical narratives embedded in the colorblind ideology of the Rehnquist Court and the Reagan-Bush Justice Department, see Robert W. Gordon, Undoing Historical Injustice, in JUSTICE AND INJUSTICE IN LAW AND LEGAL THEORY 35, 51-52 (Austin Sarat & Thomas R. Kearns eds., 1996). Many of the lawyers conservative writers associated with the Reagan Administration devoted a great deal of their attention to this history. See, e.g., CLINT BOLICK, THE AFFIRMATIVE ACTION FRAUD: CAN WE RESTORE THE AMERICAN CIVIL RIGHTS VISION? (1996); CLINT BOLICK, CHANGING COURSE: CIVIL RIGHTS AT THE CROSSROADS (1988); CHARLES FRIED, ORDER AND LAW: ARGUING THE REAGAN REVOLUTION - A FIRSTHAND ACCOUNT (1991). A more celebrated "conservative" historical account is that of DINESH D'SOUZA, THE END OF RACISM: PRINCIPLE FOR A MULTIRACIAL SOCIETY (1995) which devotes the first 244 pages to chronicling the history of slavery, Jim Crow, and the civil rights movement. For critical reviews of D'Souza, see, for example, DAVID THEO GOLDBERG, RACIAL SUBJECTS: WRITING ON RACE IN AMERICA 189-226 (1997); Paul Finkelman, The Rise of the New Racism, 15 YALE L. & POL'Y REV. 245 (1996); and George M. Fredrickson, Demonizing the American Dilemma, N.Y. REV. BOOKS, Oct. 19, 1995, at 10. In these histories, racial classification figures as the evil of past systems of racial subordination, and racism - defined as the official recognition of race in the law - is consigned to the deep past of the 19th century. On the academic Left, there is also a tendency to contrast the racism of the past with the racism of today. As Michael Omi and Howard Winant write: "[T]he racism of today is no longer a virtual monolith, as was the racism of yore. Today, racial hegmony is 'messy.'" MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE 1960S TO THE 1990s, at 75 (2d ed. 1994).
407. For a discussion of the historical narratives embedded in the colorblind ideology of the Rehnquist Court and the Reagan-Bush Justice Department, see Robert W. Gordon, Undoing Historical Injustice, in JUSTICE AND INJUSTICE IN LAW AND LEGAL THEORY 35, 51-52 (Austin Sarat & Thomas R. Kearns eds., 1996). Many of the lawyers conservative writers associated with the Reagan Administration devoted a great deal of their attention to this history. See, e.g., CLINT BOLICK, THE AFFIRMATIVE ACTION FRAUD: CAN WE RESTORE THE AMERICAN CIVIL RIGHTS VISION? (1996); CLINT BOLICK, CHANGING COURSE: CIVIL RIGHTS AT THE CROSSROADS (1988); CHARLES FRIED, ORDER AND LAW: ARGUING THE REAGAN REVOLUTION - A FIRSTHAND ACCOUNT (1991). A more celebrated "conservative" historical account is that of DINESH D'SOUZA, THE END OF RACISM: PRINCIPLE FOR A MULTIRACIAL SOCIETY (1995) which devotes the first 244 pages to chronicling the history of slavery, Jim Crow, and the civil rights movement. For critical reviews of D'Souza, see, for example, DAVID THEO GOLDBERG, RACIAL SUBJECTS: WRITING ON RACE IN AMERICA 189-226 (1997); Paul Finkelman, The Rise of the New Racism, 15 YALE L. & POL'Y REV. 245 (1996); and George M. Fredrickson, Demonizing the American Dilemma, N.Y. REV. BOOKS, Oct. 19, 1995, at 10. In these histories, racial classification figures as the evil of past systems of racial subordination, and racism - defined as the official recognition of race in the law - is consigned to the deep past of the 19th century. On the academic Left, there is also a tendency to contrast the racism of the past with the racism of today. As Michael Omi and Howard Winant write: "[T]he racism of today is no longer a virtual monolith, as was the racism of yore. Today, racial hegmony is 'messy.'" MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE 1960S TO THE 1990s, at 75 (2d ed. 1994).
408. For a discussion of the historical narratives embedded in the colorblind ideology of the Rehnquist Court and the Reagan-Bush Justice Department, see Robert W. Gordon, Undoing Historical Injustice, in JUSTICE AND INJUSTICE IN LAW AND LEGAL THEORY 35, 51-52 (Austin Sarat & Thomas R. Kearns eds., 1996). Many of the lawyers conservative writers associated with the Reagan Administration devoted a great deal of their attention to this history. See, e.g., CLINT BOLICK, THE AFFIRMATIVE ACTION FRAUD: CAN WE RESTORE THE AMERICAN CIVIL RIGHTS VISION? (1996); CLINT BOLICK, CHANGING COURSE: CIVIL RIGHTS AT THE CROSSROADS (1988); CHARLES FRIED, ORDER AND LAW: ARGUING THE REAGAN REVOLUTION - A FIRSTHAND ACCOUNT (1991). A more celebrated "conservative" historical account is that of DINESH D'SOUZA, THE END OF RACISM: PRINCIPLE FOR A MULTIRACIAL SOCIETY (1995) which devotes the first 244 pages to chronicling the history of slavery, Jim Crow, and the civil rights movement. For critical reviews of D'Souza, see, for example, DAVID THEO GOLDBERG, RACIAL SUBJECTS: WRITING ON RACE IN AMERICA 189-226 (1997); Paul Finkelman, The Rise of the New Racism, 15 YALE L. & POL'Y REV. 245 (1996); and George M. Fredrickson, Demonizing the American Dilemma, N.Y. REV. BOOKS, Oct. 19, 1995, at 10. In these histories, racial classification figures as the evil of past systems of racial subordination, and racism - defined as the official recognition of race in the law - is consigned to the deep past of the 19th century. On the academic Left, there is also a tendency to contrast the racism of the past with the racism of today. As Michael Omi and Howard Winant write: "[T]he racism of today is no longer a virtual monolith, as was the racism of yore. Today, racial hegmony is 'messy.'" MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE 1960S TO THE 1990s, at 75 (2d ed. 1994).
409. For a discussion of the historical narratives embedded in the colorblind ideology of the Rehnquist Court and the Reagan-Bush Justice Department, see Robert W. Gordon, Undoing Historical Injustice, in JUSTICE AND INJUSTICE IN LAW AND LEGAL THEORY 35, 51-52 (Austin Sarat & Thomas R. Kearns eds., 1996). Many of the lawyers conservative writers associated with the Reagan Administration devoted a great deal of their attention to this history. See, e.g., CLINT BOLICK, THE AFFIRMATIVE ACTION FRAUD: CAN WE RESTORE THE AMERICAN CIVIL RIGHTS VISION? (1996); CLINT BOLICK, CHANGING COURSE: CIVIL RIGHTS AT THE CROSSROADS (1988); CHARLES FRIED, ORDER AND LAW: ARGUING THE REAGAN REVOLUTION - A FIRSTHAND ACCOUNT (1991). A more celebrated "conservative" historical account is that of DINESH D'SOUZA, THE END OF RACISM: PRINCIPLE FOR A MULTIRACIAL SOCIETY (1995) which devotes the first 244 pages to chronicling the history of slavery, Jim Crow, and the civil rights movement. For critical reviews of D'Souza, see, for example, DAVID THEO GOLDBERG, RACIAL SUBJECTS: WRITING ON RACE IN AMERICA 189-226 (1997); Paul Finkelman, The Rise of the New Racism, 15 YALE L. & POL'Y REV. 245 (1996); and George M. Fredrickson, Demonizing the American Dilemma, N.Y. REV. BOOKS, Oct. 19, 1995, at 10. In these histories, racial classification figures as the evil of past systems of racial subordination, and racism - defined as the official recognition of race in the law - is consigned to the deep past of the 19th century. On the academic Left, there is also a tendency to contrast the racism of the past with the racism of today. As Michael Omi and Howard Winant write: "[T]he racism of today is no longer a virtual monolith, as was the racism of yore. Today, racial hegmony is 'messy.'" MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE 1960S TO THE 1990s, at 75 (2d ed. 1994).
410. For a discussion of the historical narratives embedded in the colorblind ideology of the Rehnquist Court and the Reagan-Bush Justice Department, see Robert W. Gordon, Undoing Historical Injustice, in JUSTICE AND INJUSTICE IN LAW AND LEGAL THEORY 35, 51-52 (Austin Sarat & Thomas R. Kearns eds., 1996). Many of the lawyers conservative writers associated with the Reagan Administration devoted a great deal of their attention to this history. See, e.g., CLINT BOLICK, THE AFFIRMATIVE ACTION FRAUD: CAN WE RESTORE THE AMERICAN CIVIL RIGHTS VISION? (1996); CLINT BOLICK, CHANGING COURSE: CIVIL RIGHTS AT THE CROSSROADS (1988); CHARLES FRIED, ORDER AND LAW: ARGUING THE REAGAN REVOLUTION - A FIRSTHAND ACCOUNT (1991). A more celebrated "conservative" historical account is that of DINESH D'SOUZA, THE END OF RACISM: PRINCIPLE FOR A MULTIRACIAL SOCIETY (1995) which devotes the first 244 pages to chronicling the history of slavery, Jim Crow, and the civil rights movement. For critical reviews of D'Souza, see, for example, DAVID THEO GOLDBERG, RACIAL SUBJECTS: WRITING ON RACE IN AMERICA 189-226 (1997); Paul Finkelman, The Rise of the New Racism, 15 YALE L. & POL'Y REV. 245 (1996); and George M. Fredrickson, Demonizing the American Dilemma, N.Y. REV. BOOKS, Oct. 19, 1995, at 10. In these histories, racial classification figures as the evil of past systems of racial subordination, and racism - defined as the official recognition of race in the law - is consigned to the deep past of the 19th century. On the academic Left, there is also a tendency to contrast the racism of the past with the racism of today. As Michael Omi and Howard Winant write: "[T]he racism of today is no longer a virtual monolith, as was the racism of yore. Today, racial hegmony is 'messy.'" MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE 1960S TO THE 1990s, at 75 (2d ed. 1994).
411. For a discussion of the historical narratives embedded in the colorblind ideology of the Rehnquist Court and the Reagan-Bush Justice Department, see Robert W. Gordon, Undoing Historical Injustice, in JUSTICE AND INJUSTICE IN LAW AND LEGAL THEORY 35, 51-52 (Austin Sarat & Thomas R. Kearns eds., 1996). Many of the lawyers conservative writers associated with the Reagan Administration devoted a great deal of their attention to this history. See, e.g., CLINT BOLICK, THE AFFIRMATIVE ACTION FRAUD: CAN WE RESTORE THE AMERICAN CIVIL RIGHTS VISION? (1996); CLINT BOLICK, CHANGING COURSE: CIVIL RIGHTS AT THE CROSSROADS (1988); CHARLES FRIED, ORDER AND LAW: ARGUING THE REAGAN REVOLUTION - A FIRSTHAND ACCOUNT (1991). A more celebrated "conservative" historical account is that of DINESH D'SOUZA, THE END OF RACISM: PRINCIPLE FOR A MULTIRACIAL SOCIETY (1995) which devotes the first 244 pages to chronicling the history of slavery, Jim Crow, and the civil rights movement. For critical reviews of D'Souza, see, for example, DAVID THEO GOLDBERG, RACIAL SUBJECTS: WRITING ON RACE IN AMERICA 189-226 (1997); Paul Finkelman, The Rise of the New Racism, 15 YALE L. & POL'Y REV. 245 (1996); and George M. Fredrickson, Demonizing the American Dilemma, N.Y. REV. BOOKS, Oct. 19, 1995, at 10. In these histories, racial classification figures as the evil of past systems of racial subordination, and racism - defined as the official recognition of race in the law - is consigned to the deep past of the 19th century. On the academic Left, there is also a tendency to contrast the racism of the past with the racism of today. As Michael Omi and Howard Winant write: "[T]he racism of today is no longer a virtual monolith, as was the racism of yore. Today, racial hegmony is 'messy.'" MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE 1960S TO THE 1990s, at 75 (2d ed. 1994).
412. For a discussion of the historical narratives embedded in the colorblind ideology of the Rehnquist Court and the Reagan-Bush Justice Department, see Robert W. Gordon, Undoing Historical Injustice, in JUSTICE AND INJUSTICE IN LAW AND LEGAL THEORY 35, 51-52 (Austin Sarat & Thomas R. Kearns eds., 1996). Many of the lawyers conservative writers associated with the Reagan Administration devoted a great deal of their attention to this history. See, e.g., CLINT BOLICK, THE AFFIRMATIVE ACTION FRAUD: CAN WE RESTORE THE AMERICAN CIVIL RIGHTS VISION? (1996); CLINT BOLICK, CHANGING COURSE: CIVIL RIGHTS AT THE CROSSROADS (1988); CHARLES FRIED, ORDER AND LAW: ARGUING THE REAGAN REVOLUTION - A FIRSTHAND ACCOUNT (1991). A more celebrated "conservative" historical account is that of DINESH D'SOUZA, THE END OF RACISM: PRINCIPLE FOR A MULTIRACIAL SOCIETY (1995) which devotes the first 244 pages to chronicling the history of slavery, Jim Crow, and the civil rights movement. For critical reviews of D'Souza, see, for example, DAVID THEO GOLDBERG, RACIAL SUBJECTS: WRITING ON RACE IN AMERICA 189-226 (1997); Paul Finkelman, The Rise of the New Racism, 15 YALE L. & POL'Y REV. 245 (1996); and George M. Fredrickson, Demonizing the American Dilemma, N.Y. REV. BOOKS, Oct. 19, 1995, at 10. In these histories, racial classification figures as the evil of past systems of racial subordination, and racism - defined as the official recognition of race in the law - is consigned to the deep past of the 19th century. On the academic Left, there is also a tendency to contrast the racism of the past with the racism of today. As Michael Omi and Howard Winant write: "[T]he racism of today is no longer a virtual monolith, as was the racism of yore. Today, racial hegmony is 'messy.'" MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE 1960S TO THE 1990s, at 75 (2d ed. 1994).
413. For a discussion of the historical narratives embedded in the colorblind ideology of the Rehnquist Court and the Reagan-Bush Justice Department, see Robert W. Gordon, Undoing Historical Injustice, in JUSTICE AND INJUSTICE IN LAW AND LEGAL THEORY 35, 51-52 (Austin Sarat & Thomas R. Kearns eds., 1996). Many of the lawyers conservative writers associated with the Reagan Administration devoted a great deal of their attention to this history. See, e.g., CLINT BOLICK, THE AFFIRMATIVE ACTION FRAUD: CAN WE RESTORE THE AMERICAN CIVIL RIGHTS VISION? (1996); CLINT BOLICK, CHANGING COURSE: CIVIL RIGHTS AT THE CROSSROADS (1988); CHARLES FRIED, ORDER AND LAW: ARGUING THE REAGAN REVOLUTION - A FIRSTHAND ACCOUNT (1991). A more celebrated "conservative" historical account is that of DINESH D'SOUZA, THE END OF RACISM: PRINCIPLE FOR A MULTIRACIAL SOCIETY (1995) which devotes the first 244 pages to chronicling the history of slavery, Jim Crow, and the civil rights movement. For critical reviews of D'Souza, see, for example, DAVID THEO GOLDBERG, RACIAL SUBJECTS: WRITING ON RACE IN AMERICA 189-226 (1997); Paul Finkelman, The Rise of the New Racism, 15 YALE L. & POL'Y REV. 245 (1996); and George M. Fredrickson, Demonizing the American Dilemma, N.Y. REV. BOOKS, Oct. 19, 1995, at 10. In these histories, racial classification figures as the evil of past systems of racial subordination, and racism - defined as the official recognition of race in the law - is consigned to the deep past of the 19th century. On the academic Left, there is also a tendency to contrast the racism of the past with the racism of today. As Michael Omi and Howard Winant write: "[T]he racism of today is no longer a virtual monolith, as was the racism of yore. Today, racial hegmony is 'messy.'" MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE 1960S TO THE 1990s, at 75 (2d ed. 1994).
414. For a discussion of the historical narratives embedded in the colorblind ideology of the Rehnquist Court and the Reagan-Bush Justice Department, see Robert W. Gordon, Undoing Historical Injustice, in JUSTICE AND INJUSTICE IN LAW AND LEGAL THEORY 35, 51-52 (Austin Sarat & Thomas R. Kearns eds., 1996). Many of the lawyers conservative writers associated with the Reagan Administration devoted a great deal of their attention to this history. See, e.g., CLINT BOLICK, THE AFFIRMATIVE ACTION FRAUD: CAN WE RESTORE THE AMERICAN CIVIL RIGHTS VISION? (1996); CLINT BOLICK, CHANGING COURSE: CIVIL RIGHTS AT THE CROSSROADS (1988); CHARLES FRIED, ORDER AND LAW: ARGUING THE REAGAN REVOLUTION - A FIRSTHAND ACCOUNT (1991). A more celebrated "conservative" historical account is that of DINESH D'SOUZA, THE END OF RACISM: PRINCIPLE FOR A MULTIRACIAL SOCIETY (1995) which devotes the first 244 pages to chronicling the history of slavery, Jim Crow, and the civil rights movement. For critical reviews of D'Souza, see, for example, DAVID THEO GOLDBERG, RACIAL SUBJECTS: WRITING ON RACE IN AMERICA 189-226 (1997); Paul Finkelman, The Rise of the New Racism, 15 YALE L. & POL'Y REV. 245 (1996); and George M. Fredrickson, Demonizing the American Dilemma, N.Y. REV. BOOKS, Oct. 19, 1995, at 10. In these histories, racial classification figures as the evil of past systems of racial subordination, and racism - defined as the official recognition of race in the law - is consigned to the deep past of the 19th century. On the academic Left, there is also a tendency to contrast the racism of the past with the racism of today. As Michael Omi and Howard Winant write: "[T]he racism of today is no longer a virtual monolith, as was the racism of yore. Today, racial hegmony is 'messy.'" MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE 1960S TO THE 1990s, at 75 (2d ed. 1994).
415. Stoler, supra note 9, at 196 (footnote omitted). Unlike Stoler, I am less struck by the progressive uses of constructivist arguments about race than by their conservative uses. Of course, constructivism can be used on both sides of the political debate - Janet Halley has made this point well in the context of sexual orientation, see Halley, supra note 16, at 517 - but the history of defining race in the law has often been employed recently to suggest the continuing futility, absurdity, and/or injustice of racial classification for any purpose. Thus, progressive scholars have seen it as a problem for their histories of the construction of whiteness to keep their readers from reaching the conclusion that they seek the abolition of all racial categorization in the present day. There is now a substantial and growing body of literature that seeks to avoid this dilemma by calling for the "abolition of whiteness" rather than the abolition of "race." See, e.g., DAVID ROEDIGER, TOWARDS THE ABOLITION OF WHITENESS (1994). A new journal called Race Traitor, edited by Noel Ignatiev and John Garvey, is devoted to this goal. This literature emphasizes the important insight that classification was not itself the evil in past systems of racial subordination. Indeed, classification was simply one way of accomplishing subordination. Changing or undoing those classifications will not undo racial hierarchy. Robert Gordon points in the more promising direction of structural approaches to "undoing historical injustices," see Gordon, supra note 315, at 66-75, which focus less on the "sins" of the past and more on strategies to remake society. So, for example, affirmative action should be seen not as "reparations" but as one piece of "the architecture of a racially integrated future." Kathleen M. Sullivan, Sins of Discrimination: Last Term's Affirmative Action Cases, 100 HARV. L. REV. 78, 80 (1986).
416. Stoler, supra note 9, at 196 (footnote omitted). Unlike Stoler, I am less struck by the progressive uses of constructivist arguments about race than by their conservative uses. Of course, constructivism can be used on both sides of the political debate - Janet Halley has made this point well in the context of sexual orientation, see Halley, supra note 16, at 517 - but the history of defining race in the law has often been employed recently to suggest the continuing futility, absurdity, and/or injustice of racial classification for any purpose. Thus, progressive scholars have seen it as a problem for their histories of the construction of whiteness to keep their readers from reaching the conclusion that they seek the abolition of all racial categorization in the present day. There is now a substantial and growing body of literature that seeks to avoid this dilemma by calling for the "abolition of whiteness" rather than the abolition of "race." See, e.g., DAVID ROEDIGER, TOWARDS THE ABOLITION OF WHITENESS (1994). A new journal called Race Traitor, edited by Noel Ignatiev and John Garvey, is devoted to this goal. This literature emphasizes the important insight that classification was not itself the evil in past systems of racial subordination. Indeed, classification was simply one way of accomplishing subordination. Changing or undoing those classifications will not undo racial hierarchy. Robert Gordon points in the more promising direction of structural approaches to "undoing historical injustices," see Gordon, supra note 315, at 66-75, which focus less on the "sins" of the past and more on strategies to remake society. So, for example, affirmative action should be seen not as "reparations" but as one piece of "the architecture of a racially integrated future." Kathleen M. Sullivan, Sins of Discrimination: Last Term's Affirmative Action Cases, 100 HARV. L. REV. 78, 80 (1986).
417. GEORGE FREDRICKSON, Understanding Racism: Reflections of a Comparative Historian, in THE COMPARATIVE IMAGINATION: ON THE HISTORY OF RACISM, NATIONALISM, AND SOCIAL MOVEMENTS 77, 79 (1997).
418. Id. at 81.
419. Id.
420. See D'SOUZA, supra note 315, at 525-56.
421. FREDRICKSON, supra note 317, at 81.