BRIEF OF AMICI CURIAE Publications243_0 Part 4

NTERRACIALISM

Black-White Intermarriage in

American History, Literature, and Law

Edited by

Werner Sollors

OXFORD

UNIVERSITY PRESS

2000

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Library of Congress Cataloging-in-Publication Data

Interracialism: Black-white intermarriage in American history,

literature, and law / edited by Werner Sollors.

p. cm.

Includes bibliographical references and index.

ISBN 0-19-512856-7; ISBN 0-19-512857-5 (pbk.)

1.Interracial marriage—United States—History.

2.Miscegenation—United States—History. 3. Racially mixed people—

United States—History. 4. Miscegenation—Law and legislation—

United States—History. 5. Miscegenation in literature.

6.Racially mixed people in literature. I. Sollors, Werner.

HQ.1031.I8 2000

306.84’6’0973—dc21 99-32521

9 8 7 6 5 4 3 2

Printed in the United States of America

on acid-free paper

In metnoriam

A. Leon Higginbotham, Jr.

(February 25, 1928-December 14, 1998)

the operation of those natural laws which are so often quoted by Southern writers as the justification of all sorts of Southern “policies”—are questions which the good citizen may at least turn over in his mind occasionally, pending the settlement of other complications which have grown out of the presence of the Negro on this continent.

The Beginnings of Miscegenation of the Whites and Blacks*

CARTER G. WOODSON

Although science has uprooted the theory, a number of writers are loath to give up the contention that the white race is superior to others, as it is still hoped that the Caucasian race may be preserved in its purity, especially so far as it means miscegenation with the blacks. But there are others who express doubt that the integrity of the dominant race has been maintained.1 Scholars have for centuries differed as to the composition of the mixed breed stock constituting the Mediterranean race and especially about that in Egypt and the Barbary States. In that part of the dark continent many inhabitants have certain characteristics which are more Caucasian than negroid and have achieved more than investigators have been willing to consider the civilization of the Negro. It is clear, however, that although the people of northern Africa cannot be classed as Negroes, being bounded on the south by the masses of African blacks, they have so generally mixed their blood with that of the blacks that in many parts they are no nearer to any white stock than the Negroes of the United States.

This miscegenation, to be sure, increased toward the south into central Africa, but it has extended also to the north and east into Asia and Europe. Traces of Negro blood have been found in the Malay States, India and Polynesia. In the Arabian Peninsula it has been so extensive as to constitute a large group there called the Arabised Negroes. But most significant of all has been the invasion of Europe by persons of African blood. Professor Sergi leads one to conclude that the ancient Pelasgii were of African origin or probably the descendants of the race which settled northern Africa and southern Europe, and are therefore due credit for the achievements of the early Greek and Italian civilizations.2

There is much evidence of a further extension of this infusion in the Mediterranean world.

“Recent discoveries made in the vicinity of the principality of Monaco and others in Italy and western France,” says MacDonald, “would seem to reveal… the actual fact that many thousand years ago a negroid race had penetrated through Italy into France, leaving traces at the present day in the physiognomy of the peoples of southern Italy, Sicily, Sardinia and western France, and even in the western parts of the United Kingdom of Great Britain and Ireland. There are even at the present day some examples of the Keltiberian peoples of western Scotland, southern and western Wales, southern and western Ireland, of distinctly negroid aspect, and in whose ancestry there is no indication whatever of any connection with the West Indies or with Modem Africa. Still more marked is this feature in the peoples of southern and western France and of the other parts of the Mediterranean already mentioned.”3

Because of the temperament of the Portugese this infusion of African blood was still more striking in their country. As the Portugese are a good-natured people void of race hate they did not dread the miscegenation of the races. One finds in southern Portugal a “strong Moorish, North African element” and also an “old intermixture with those Negroes who were imported thither from Northwest Africa to till the scantily populated southern provinces.”4 This miscegenation among the Portugese easily extended to the New World. Then followed the story of the Caramarii, the descendants of the Portugese, who after being shipwrecked near Bahia arose to prominence among the Tupinambo Indians and produced a clan of half-castes by taking to himself numerous native women.5 This admixture served as a stepping stone to the assimilation of the Negroes when they came.

There immigrated later into Brazil other settlers who, mixing eagerly with the Amerindians, gave rise to a race called Mamelucos who began to mix maritally with the imported Negro women. The French and Dutch too in caring for their offspring by native women promoted the same. “They educated them, set them free, lifted them above servitude, and raised them socially to the level of the whites”6 so that today generally speaking there are no distinctions in society or politics in Brazil, Commenting on this condition in Brazil, Agassiz said: “This hybrid class, although more marked here because the Indian is added, is very numerous in all cities; perhaps, the fact, so honorable to Brazil, that the free Negro has full access to all privileges of any free citizen, rather tends to increase than to diminish that number.” After emancipation in Brazil in 1888, the already marked tendency toward this fusion of the slave and the master classes gradually increased.7

The Spaniards mixed less freely with the Negroes than did the Portugese but mixed just the same. At first they seriously considered the inconveniences which might arise from miscegenation under frontier conditions and generally refrained from extensive intermingling. But men are but men and as Spanish women were far too few in the New World at that time, the other sex of their race soon yielded to the charms of women of African blood. The rise of the mixed breeds too further facilitated the movement. Spaniards who refused to intermingle with the blacks found it convenient to approach the hybrids who showed less color. In the course of time, therefore, the assimilation of the blacks was as pronounced in some of the Spanish colonies as in those which originally exhibited less race antipathy. There are millions of Hispanicized Negroes in Latin America. Many of the mixed breeds, however, have Indian rather than Negro blood.8

Miscegenation had its best chance among the French. Not being disinclined to mingle with Negroes, the French early faced the problem of the half caste, which was given consideration in the most human of all slave regulations, the Code Noir9 It provided that free men who had children from their concubinage with women- slaves (if they consented to such concubinage) should be punished by a fine of two thousand pounds of sugar. But if the offender was the master himself, in addition to the fine, the slave should be taken from him, sold for the benefit of the hospital and never be allowed to be freed; excepting, that, if the man was not married to another person at the time of his concubinage, he was to marry the woman slave, who, together with her children, should thereby become free. Masters were forbidden to constrain slaves to marry against their will. Many Frenchmen like those in Haiti married their Negro mistresses, producing attractive half caste women who because of their wealth were sought by gentlemen in preference to their own women without dot.

Among the English the situation was decidedly different. There was not so much need for the use of Negro women by Englishmen in the New World, but there was the same tendency to cohabit with them. In the end, however, the English, unlike the Latins, disowned their offspring by slave women, leaving these children to follow the condition of their mother. There was, therefore, not so much less miscegenation among the English but there remained the natural tendency so to denounce these unions as eventually to restrict the custom, as it is today, to the weaker types of both races, the offspring of whom in the case of slave mothers became a commodity in the commercial world.

There was extensive miscegenation in the English colonies, however, before the race as a majority could realize the apparent need for maintaining its integrity. With the development of the industries came the use of the white servants as well as the slaves. The status of the one differed from that of the other in that the former at the expiration of his term of service could become free whereas the latter was doomed to servitude for life. In the absence of social distinctions between these two classes of laborers there arose considerable intermingling growing out of a community of interests. In the colonies in which the laborers were largely of one class or the other not so much of this admixture was feared, but in the plantations having a considerable sprinkling of the two miscegenation usually ensued.

The following, therefore, was enacted in Maryland in 1661 as a response to the question of the council to the lower house as to what it intended should become of such free women of the English or other Christian nations as married Negroes or other slaves.10 The preamble reads: “And forasmuch as divers freeborn English women, forgetful of their free condition, and to the disgrace of our nation, do intermarry with negro slaves,11 by which also divers suits may arise, touching the issue of such women, and a great damage doth befall the master of such negroes, for preservation whereof for deterring such free-born women from such shameful matches, be it enacted: That whatsoever free-born woman shall intermarry with any slave, from and after the last day of the present assembly, shall serve the master of such slave during the life of her husband; and that all the issues of such free-born women, so married, shall be slaves as their fathers were.” “And be it further enacted: That all the issues of English, or other free-born women, that have already married negroes, shall serve the master of their parents, till they be thirty years of age and no longer.”12

According to A. J. Calhoun, however, all planters of Maryland did not manifest so much ire because of this custom among indentured servants. “Planters,” said he, “sometimes married white women servants to Negroes in order to transform the Negroes and their offspring into slaves.”12(a) This was in violation of the ancient unwritten law that the children of a free woman, the father being a slave, follow the status of their mother and are free. The custom gave rise to an interesting case. “Irish Nell,” one of the servants brought to Maryland by Lord Baltimore, was sold by him to a planter when he returned to England. Following the custom of other masters who held white women as servants, he soon married her to a Negro named Butler to produce slaves. Upon hearing this, Baltimore used his influence to have the law repealed but the abrogation of it was construed by the Court of Appeals not to have any effect on the status of her offspring almost a century later when William and Mary Butler sued for their freedom on the ground that they descended from this white woman. The Provincial Court had granted them freedom but in this decision the Court of Appeals reversed the lower tribunal on the ground that “Irish Nell” was a slave before the measure repealing the act had been passed. This case came up again 1787 when Mary, the daughter of William and Mary Butler, petitioned the State for freedom. Both tribunals then decided to grant this petition.13

The act of repeal of 1681, therefore, is self explanatory. The preamble reads: “Forasmuch as, divers free-born English, or white women, sometimes by the instigation, procurement or connivance of their masters, mistresses, or dames, and always to the satisfaction of their lascivious and lustful desires, and to the disgrace not only of the English, but also of many other Christian nations, do intermarry with Negroes and slaves, by which means, divers inconveniences, controversies, and suits may arise, touching the issue or children of such free-born women aforesaid; for the prevention whereof for the future, Be it enacted: That if the marriage of any woman-servant with any slave shall take place by the procurement of permission of the master, such woman and her issue shall be free.” It enacted a penalty by fine on the master or mistress and on the person joining the parties in marriage.14

The effect of this law was merely to prevent masters from prostituting white women to an economic purpose. It did not prevent the miscegenation of the two races. McCormac says: “Mingling of the races in Maryland continued during the eighteenth century, in spite of all laws against it. Preventing marriages of white servants with slaves only led to a greater social evil, which caused a reaction of public sentiment against the servant. Masters and society in general were burdened with the care of illegitimate mulatto children, and it became necessary to frame laws compelling the guilty parties to reimburse the masters for the maintenance of these unfortunate waifs.”15 To remedy this laws were passed in 1715 and 1717 to reduce to the status of a servant for seven years any white man or white woman who cohabited with any Negro, free or slave. Their children were made servants for thirty-one years, a black thus concerned was reduced to slavery for life and the maintenance of the bastard children of women servants was made incumbent upon masters. If the father of an illegitimate child could be discovered, he would have to support his offspring. If not this duty fell upon the mother who had to discharge it by servitude or otherwise.16

As what had been done to prevent the admixture was not sufficient, the Maryland General Assembly took the following action in 1728:

Whereas by the act of assembly relating to servants and slaves, there is no provision made for the punishment of free mulatto women, having bastard children by negroes and other slaves, nor is there any provision made in the said act for the punishment of free negro women, having bastard children by white men; and forasmuch as such copulations are as unnatural and inordinate as between white women and negro men, or other slaves.

Be it enacted, That from and after the end of this present session of assembly, that all such free mulatto women, having bastard children, either within or after the time of their service, (and their issue,) shall be subject to the same penalties that white women and their issue are, for having mulatto bastards, by the act, entitled, An act relating to servants and slaves.

And be it further enacted, by the authority aforesaid, by and with the advice and consent aforesaid, That from and after the end of this present session of assembly, that all free negro women, having bastard children by white men, (and their issue,) shall be subject to the same penalties that white women are, by the act aforesaid, for having bastards by negro men.17

Virginia which faced the same problem did not kg far behind Maryland. In 1630 the Governor and Council in Court ordered Hugh Davis to be soundly whipped before an assembly of Negroes and others for abusing himself to the dishonor of God and shame of a Christian by defiling his body in lying with a Negro, which he was to acknowledge next Sabbath day. In 1662 the colony imposed double fines for fornication with a Negro, but did not restrict intermarriage until 1691.18 The words of the preamble give the reasons for this action. It says:

And for the prevention of that abominable mixture and spurious issue which hereafter may increase in this dominion, as well by negroes, mulattoes, and Indians intermarrying with English, or other white women, as by their unlawful accompanying with one another, Be it enacted by the authoritie aforesaid, and it is hereby enacted, That for the time to come, whatsoever English or other white man or woman being free shall intermarry with a negro, mulatto, or Indian man or woman bond or free shall within three months after such marriage be banished and removed from this dominion forever, and that the justices of each respective countie within this dominion make it their perticular care, that this act be put in effectuall execution.

If any free English woman should have a bastard child by any Negro or mulatto, she should pay the sum of fifteen pounds sterling, within one month after such bastard child should be born, to the church wardens of the parish where she should be delivered of such child, and in default of such payment she should be taken into the possession of the said church wardens and disposed of for five years, and such bastard child should be bound out as a servant by the church wardens until he or she should attain the age of thirty years, and in case such English woman that should have such bastard child be a servant, she should be sold by the church wardens (after her time is expired that she ought by law to serve her master) for five years, and the money she should be sold for divided as before appointed, and the child should serve as aforesaid.19

It was further provided in 1753 that if any woman servant should have a bastard child by a Negro or mulatto, over and above the year’s service due to her master or owner, she should immediately upon the expiration of her time, to her then present master, or owner, pay down to the church wardens of the parish wherein such child should be born for the use of the said parish, fifteen pounds current money of Virginia, or be sold for five years to the use aforesaid; and if a free Christian white woman should have such bastard child by a Negro, or mulatto, for every such offence, she should within one month after her delivery of such bastard child, pay to the church wardens for the time being, of the parish wherein such child should be born, for the use of the said parish, fifteen pounds current money of Virginia, or be by them sold for five years to the use aforesaid; and in both the said cases, the church wardens should bind the said child to be a servant until it should be of thirty-one years of age.

And for a further prevention of that “abominable mixture, and the spurious issue, which may hereafter increase in this his majesty’s colony and dominion as well by English, and other white men and women, intermarrying with Negroes or mulattoes, as by their unlawful coition with them” it was enacted that whatsoever English, or other white man or woman, being free, should intermarry with a Negro, or mulatto man or woman bond or free, should by judgment of the county court, be committed to prison and there remain during the space of six months, without bail or main-prize, and should forfeit and pay ten pounds current money of Virginia, to the use of the parish as aforesaid. It was further enacted that no minister of the Church of England, or other minister or person whatsoever, within that colony and dominion, should thereafter presume to marry a white man with a Negro, or mulatto woman, or to marry a white woman with a Negro or mulatto man, upon pain of forfeiting and paying for every such marriage, the sum of ten thousand pounds of tobacco.20

It developed later that these laws did not meet all requirements, for there were in subsequent years so many illegitimate children born of such mothers that they became a public charge.21 Those of Negro blood were bound out by law. According to Russell, “In 1727 it was ordered that David James a free negro boy, be bound to Mr. James Isdel ‘who is to teach him to read ye bible distinctly also ye trade of a gunsmith that he carry him to ye Clark’s office & take Indenture to that purpose.’ By the Warwick County court it was ‘ordered that Malacai, a mulatto boy, son of mulatto Betty be, by the Church Wardens of this Parish bound to Thomas Hobday to learn the art of a planter according to law.’ By order of the Norfolk County court, about 1770, a free negro was bound out ‘to learn the trade of a tanner.’ ”22

In making more stringent regulations for servants and slaves, North Carolina provided in 1715 that if a white servant woman had a child by a Negro, mulatto or Indian, she must serve her master two years extra and should pay to the Church wardens immediately on the expiration of that time six pounds for the use of the parish or be sold four years for the use aforesaid.23 A clergyman found guilty of officiating at such a marriage should be fined fifty pounds. This law, according to Bassett, did not succeed in preventing such unions. Two ministers were indicted within two years for performing such a marriage ceremony. “In one case the suit was dropped, in the other case the clergyman went before the Chief Justice and confessed as it seems of his own accord. . . . In 1727 a white woman was indicted in the General Court because she had left her husband and was cohabiting with a negro slave. . . . So far as general looseness was concerned this law of 1715 had no force. Brickell, who was a physician, says that white men of the colony suffered a great deal from a malignant kind of venereal disease which they took from the slaves.”24

By the law of 1741 therefore the colony endeavored to prevent what the General Assembly called “that abominable mixture and spurious issue, which hereafter may increase in this government, by white men and women intermarrying with Indians, Negroes, mustees, or mulattoes.” It was enacted that if any man or woman, being free, should intermarry with an Indian, Negro, mustee or mulatto man or woman, or any person of mixed blood, to the third generation, bond or free, he should, by judgment of the county court forfeit and pay the sum of fifty pounds, proclamation money, to the use of the parish.25 It was also provided that if any white servant woman should during the time of her servitude, be delivered of a child, begotten by any Negro, mulatto or Indian, such servant, over and above the time she was by this act to serve her master or owner for such offence, should be sold by the Church wardens of the parish, for two years, after the time by indenture or otherwise had expired.26

The miscegenation of the whites and blacks extended so widely that it became a matter of concern to the colonies farther north where the Negro population was not considerable. Seeking also to prevent this “spurious mixt issue” Massachusetts enacted in 1705 that a Negro or mulatto man committing fornication with an “English woman, or a woman of any other Christian nation,” should be sold out of the province. “An English man, or man of any other Christian nation committing fornication with a Negro or mulatto woman,” should be whipped, and the woman sold out of the province. None of her Majesty’s English or Scottish subjects, nor of any other Christian nation within that province should contract matrimony with any Negro or mulatto, under a penalty imposed on the person joining them in marriage. No master should unreasonably deny marriage to his Negro with one of the same nation; any law, usage or custom to the contrary notwithstanding.27

There was much social contact between the white servants and the Negroes in Pennsylvania, where the number of the latter greatly increased during the first quarter of the nineteenth century. Turner says a white servant was indicted for this offence in Sussex County in 1677 and a tract of land there bore the name of “Mulatto Hall.”28 According to the same writer Chester County seemed to have a large number of these cases and laid down the principle that such admixture should be prohibited,

“For that hee,” referring to a white man, “Contrary to his Masters Consent hath . . . got wth child a certaine molato wooman Called Swart anna.” “David Lewis Constable of Haverford Returned a Negro man of his And a white woman for having a Bastard Childe . . . the Negroe said she Intised him and promised him to marry him: she being examined, Confest the same: the Court ordered that she shall receive Twenty one lashes on her bare Backe . . . and the Court ordered the negroe never more to meddle with any white woman more uppon paine of his life.”29

Advertising for Richard Molson in Philadelphia in 1720, his master said, “He is in company with a white woman named Mary, who is supposed now goes for his wife”; “and a white man named Garrett Choise, and Jane his wife, which said white people are servants to some neighbors of the said Richard Tilghman.”30 In 1722 a woman was punished for abetting a clandestine marriage between a white woman and a Negro. In the Pennsylvania Gazette, June 1, 1749, appeared the notice of the departure of Isaac Cromwell, a mulatto, who ran away with an English servant woman named Anne Greene.31

The Assembly, therefore, upon a petition from inhabitants inveighing against this custom enacted a prohibitory law in 1725. This law provided that no minister, pastor or magistrate or other person whatsover who according to the laws of that province usually joined people in marriage should upon any pretence whatever join in marriage any Negro with any white person on the penalty of one hundred pounds. And it was further enacted that if any white man or woman should cohabit or dwell with any Negro under pretense of being married, such white man or woman should be put out of service as above directed until they come to the age of thirty-one years; and if any free Negro man or woman should intermarry with a white man or woman, such Negro should become a slave during life to be sold by order of the justice of the quarter sessions of the respective county; and if any free Negro man or woman should commit fornication or adultery with any white man or woman, such Negro or Negroes should be sold as a servant for seven years and the white man or woman should be punished as the law directs in cases of adultery or fornication.32

This law seemed to have very little effect on the miscegenation of the races in certain parts. In Chester County, according to the records of 1780, mulattoes constituted one fifth of the Negro population.33 Furthermore, that very year when the State of Pennsylvania had grown sufficiently liberal to provide for gradual emancipation the law against the mingling of the races was repealed. Mixed marriages thereafter became common as the white and the blacks in the light of the American Revolution realized liberty in its full meaning. Thomas Branagan said:

There are many, very many blacks who . . . begin to feel themselves consequential, . . . will not be satisfied unless they get white women for wives, and are likewise exceedingly impertinent to white people in low circumstances…. I solemnly swear, I have seen more white women married to, and deluded through the arts of seduction by negroes in one year in Philadelphia, than for eight years I was visiting (West Indies and the Southern States). I know a black man who seduced a young white girl. . . who soon after married him, and died with a broken heart. On her death he said that he would not disgrace himself to have a negro wife and acted accordingly, for he soon after married a white woman…. There are perhaps hundreds of white women thus fascinated by black men in this city, and there are thousands of black children by them at present.34

A reaction thereafter set in against this custom during the first decade of the nineteenth century, when fugitives in the rough were rushing to that State, and culminated in an actual campaign against it by 1820. That year a petition from Greene County said that many Negroes had settled in Pennsylvania and had been able to seduce into marriage “the minor children of the white inhabitants.”35 This county, therefore, asked that these marriages be made an offence against the laws of the State. Such a marriage was the cause of a riot in Columbia in 1834 and in 1838 the members of the Constitutional Convention engaged in a heated discussion of the custom.36 Petitions were frequently sent to the legislature asking that this admixture be penalized by law, but no such action was ever taken. Relying upon public opinion, however, the advocates of racial integrity practically succeeded. Marriages of whites and blacks eventually became so odious that they led to disturbances as in the case of the riot of 1849, one of the causes of which was that a white man was living with a Negro wife.37 This was almost ineffective, however, in the prevention of race admixture. Clandestine intermingling went on and tended to increase in enormous proportions. The conclusive proof of this is that in 1860 mulattoes constituted one third of the Negro population of Pennsylvania.

Persons who professed seriously to consider the future of slavery, therefore, saw that miscegenation and especially the general connection of white men with their female slaves introduced a mulatto race whose numbers would become dangerous, if the affections of their white parents were permitted to render them free.38 The Americans of the future would thereby become a race of mixed breeds rather than a white and a black population. As the lust of white persons for those of color was too strong to prevent this miscegenation, the liberty of emancipating their mulatto offspring was restricted in the slave States but that of selling them remained.39

These laws eventually, therefore, had their desired effect. They were never intended to prevent the miscegenation of the races but to debase to a still lower status the offspring of the blacks who in spite of public opinion might intermarry with the poor white women and to leave women of color without protection against white men, who might use them for convenience, whereas white women and black men would gradually grow separate and distinct in their social relations. Although thereafter the offspring of blacks and whites did not diminish, instead of being gradually assimilated to the type of the Caucasian they tended to constitute a peculiar class commonly called people of color having a higher social status than that of the blacks but finally classified with all other persons of African blood as Negroes.

While it later became a capital offence in some of the slave States for a Negro man to cohabit with a white woman, Abdy who toured this country from 1833 to 1834 doubted that such laws were enforced. “A man,” said he, “was hanged not long ago for this crime at New Orleans. The partner of his guilt—his master’s daughter—endeavored to save his life, by avowing that she alone was to blame. She died shortly after his execution.”40 With the white man and the Negro woman the situation was different. A sister of President Madison once said to the Reverend George Bourne, then a Presbyterian minister in Virginia: “We Southern ladies are complimented with the name of wives; but we are only the mistresses of seraglios.” The masters of the female slaves, however, were not always the only persons of loose morals. Many women of color were also prostituted to the purposes of young white men41 and overseers.42 Goodell reports a well-authenticated account of a respectable Christian lady at the South who kept a handsome mulatto female for the use of her genteel son, as a method of deterring him, as she said, “from indiscriminate and vulgar indulgences.”43 Harriet Martineau discovered a young white man who on visiting a southern lady became insanely enamored of her intelligent quadroon maid. He sought to purchase her but the owner refused to sell the slave because of her unusual worth. The young white man persisted in trying to effect this purchase and finally informed her owner that he could not live without this attractive slave. Thereupon the white lady sold the woman of color to satisfy the lust of her friend.44

The accomplishment of this task of reducing the free people of color to the status of the blacks, however, was not easy. In the first place, so many persons of color had risen to positions of usefulness among progressive people and had formed connections with them that an abrupt separation was both inexpedient and undesirable. Exceptions to the hard and fast rules of caste were often made to relieve the people of color. Moreover, the miscegenation of the races in the South and especially in large cities like Charleston and New Orleans had gone to the extent that from these centers eventually went, as they do now, a large number of quadroons and octoroons,45 who elsewhere crossed over to the other race.

White men ashamed of the planters who abused helpless black women are now trying to minimize the prevalence of this custom. Such an effort, however, means little in the face of the facts that one seventh of the Negroes in the United States had in their veins any amount of Caucasian blood in 1860 and according to the last census more than one fifth of them have this infusion. Furthermore the testimony of travelers in this country during the slavery period support the contention that race admixture was common.46

So extensive did it become that the most prominent white men in the country did not escape. Benjamin Franklin seems to have made no secret of his associations with Negro women.47 Russell connects many of these cases with the master class in Virginia.48 There are now in Washington Negroes who call themselves the descendants of two Virginians who attained the presidency of the United States.

The abolitionists made positive statements about the mulatto offspring of Thomas Jefferson. Goodell lamented the fact that Jefferson in his will had to entreat the legislature of Virginia to confirm his bequest of freedom to his own reputed enslaved offspring that they might remain in the State of their nativity, where their families and connections were.49 Writing in 1845, the editor of the Cleveland American expressed regret that notwithstanding all the services and sacrifices of Jefferson in the establishment of the freedom of this country, his own son then living in Ohio was not allowed to vote or bear witness in a court of justice. The editor of the Ohio Star said: “We are not sure whether this is intended as a statement of actual fact, or of what might possibly and naturally enough be true.” The Cincinnati Herald inquired: “Is this a fact? If so, it ought to be known. Perhaps ‘the Democracy’ might be induced to pass a special act in his favor.” The Cleveland American, therefore, added: “We are credibly informed that a natural son of Jefferson by the celebrated ‘Black Sal,’ a person of no little renown in the politics of 1800 and thereafter, is now living in a central county of Ohio. We shall endeavor to get at the truth of the matter and make public the result of our inquiries.”50

A later report of miscegenation of this kind was recorded by Jane Grey Swis- shelm in her Half a Century, where she states that a daughter of President John Tyler “ran away with the man she loved in order that she might be married, but for this they must reach foreign soil. A young lady of the White House could not marry the man of her choice in the United States. The lovers were captured and she was brought to His Excellency, her father, who sold her to a slave-trader. From that Washington slave-pen she was taken to New Orleans by a man who expected to get twenty-five hundred dollars for her on account of her great beauty.”51

Interracial Marriage and the Law*

WILLIAM D. ZABEL

In the past decade, the law and the Supreme Court have done a great deal to ensure the equality of all races and to guarantee equal civil rights. But in the area of interracial marriage, the statutes of nineteen states continue to deny the individual the freedom to marry the person of his choice. The vagaries of these statutes and the failure of the Supreme Court to act are here set forth by William D. Zabel, a practicing lawyer in New York.

When a reporter asked former President Harry S. Truman if interracial marriage—miscegenation—would become widespread in the United States, Mr. Truman said, “I hope not; I don’t believe in it.” Then Mr. Truman asked the reporter that hackneyed question often spouted at anyone advocating racial integration, “Would you want your daughter to marry a Negro?” The reporter responded that he wanted his daughter to marry the man she loved whoever he might be. “Well, she won’t love someone who isn’t her color,” the former President continued, and, as if he had not said enough, added that racial intermarriage ran counter to the teachings of the Bible.

The question of miscegenation can make a man like Truman, whose past support of integration in other respects is not open to question, appear unthinking if not bigoted. The fact of interracial marriage can cause a young Radcliffe- educated “liberal” to refuse to attend the wedding of her only brother, or a civilized, intelligent judge to disown and never again speak to his daughter. How many persons are repelled or at least disconcerted at the mere sight of a Negro- white couple? Perhaps their number tells us how far we are from achieving ai) integrated society.

If usually tolerant and rational persons can react this way, it is not surprising that many experts consider the fear of miscegenation the strongest reason for the desire of whites to keep the Negro permanently segregated. Next in importance in the “white man’s rank order of discrimination,’’ according to Gunnar Myrdal in his classic study, An American Dilemma, are other social conventions, the use of public facilities, political franchise, legal equality, and employment. On the other hand, the social and legal barriers to miscegenation rank at the bottom of the Negro’s list of grievances; quite naturally, he is more concerned with obtaining a job, decent living accommodations, and an education than with marrying “your daughter.” A recent Ford Foundation study of more than seven hundred Negro families in Chicago concluded: “There is no evidence of a desire for miscegenation, or even interest in promoting it, except among a tiny minority.”

Even though the Negro has finally attained equality under the law in most areas of American life, a Negro and a white still cannot marry in nineteen states having antimiscegenation statutes—mostly Southern and “border” states, but also including Indiana and Wyoming. No other civilized country has such laws except the Union of South Africa.

The United States Supreme Court has never ruled on the constitutionality of these statutes. In 1954, a few months after its historic decision prohibiting segregation in public schools, the Court refused to review the case of Linnie Jackson, a Negro woman who had been convicted under the Alabama miscegenation statute. Later, in 1956, the Court again avoided the issue, dismissing an appeal in a miscegenation case from Virginia. This dismissal was termed “wholly without basis in law” by a leading authority on constitutional law, Professor Herbert Wechsler of the Columbia Law School, because there was no appropriate legal reason for avoiding the decision.

In December, 1964, the Court upset the conviction of Connie Hoffman, a white woman, and Dewey McLaughlin, a Spanish-speaking merchant seaman from British Honduras. They had violated a Florida criminal law punishing extramarital cohabitation only if the offending couple were a Negro and a white person. The Court invalidated this statute as a denial of equal protection of the law guaranteed by the Fourteenth Amendment but refused to express “any views about [Florida’s] prohibition of interracial marriage.”

The Court may again be confronted with this question in a case instituted by a white construction worker and his part-Negro wife, Richard and Mildred Loving. They are seeking to have the Virginia miscegenation law declared unconstitutional so that they and their three children may reside in the state from which they have been banished. The Lovings have no connection with the civil rights movement and are not represented by attorneys of a Negro civil rights organization. Both had spent all their lives in Caroline County, Virginia, south of Fredericksburg. They were married in Washington, D.C., in 1958 and returned to Virginia. Five weeks later, they were charged with the crime of marrying each other, and because of this crime were convicted and sentenced to one year in prison. But Virginia County Circuit Judge Leon M. Bazlie suspended the sentences and provided instead that the Lovings leave Virginia “at once and do not

Dangerous Liaisons

Sex and Love in the Segregated South

–

The University of Arkansas Press

Fayetteville

2003

Manufactured in the United States of America

07 06 05 04 03 5 4 3 2 1

Designer: John Coghlan

The paper used in this publication meets the minimum requirements of the American National Standard for Permanence of Paper for Printed Library Materials Z39.48-1984.

Library of Congress Cataloging-in-Publication Data

Robinson, Charles F. (Charles Frank)

Dangerous liaisons: sex and love in the segregated South / Charles Frank Robinson II.

p. cm.

Includes bibliographical references and index.

ISBN 1-55728-755-4 (cloth: alk. paper)

1. Miscegenation—Southern States—History. 2. Miscegenation—Law and legislation—Southern States—History. 3. African Americans—Legal status, laws, etc.—Southern States—History. 4. African Americans—Southern States—Social conditions. 5. Southern States—Race relations. 6. Southern States—Social conditions—1865-1945. I. Title.

El 85.62 R66 2003

306.84’6’0975—dc21

2003010651

This book is dedicated to the absolute love of my life, my son, “C3”—Charles F. Robinson III

Virginia expanded its anti-miscegenation efforts in 1691 with the passage of a law that prohibited marriage between blacks and whites. The edict threatened white violators with banishment while providing no direct penalty for the black person involved in the interracial liaison. Although Virginia lawmakers left no record to indicate why they punished only whites with physical ostracism, one can conjecture that because most blacks were slaves, lawmakers probably did not want to deprive masters of their laborers.11

The Virginia law of 1691 had other clauses that demonstrated its link to maintaining labor. The measure penalized English women who produced children from black men with a fine of fifteen pounds. Failure to pay resulted in the woman being “disposed of for five years” so that she could pay the fine through her labor. Further, the law empowered authorities to take possession of the woman’s child and to bind him out for service until he reached the age of thirty.12

The anti-miscegenation codes of other colonies also revealed the tie between the law and slavery. Maryland’s 1664 anti-miscegenation law required a white woman who married a male slave to serve the master for the lifetime of her slave husband. In addition, Maryland’s law insisted that any children resulting from the union be required to labor for the parish for thirty-one years. In a subsequent measure passed by the Maryland assembly in 1692, free blacks who married white women suffered the penalty of life in bondage.13

Pennsylvania’s anti-miscegenation law, erected in 1725, followed that of Maryland, punishing free blacks who married whites with the sentence of life bondage. The Pennsylvania law, likewise, outlawed interracial sexual relations outside the institution of marriage. All free persons convicted of interracial fornication could receive the sentence of seven years in bondage.14

Proscriptions similar to those found in the laws of Virginia, Maryland, and Pennsylvania also marked the anti-miscegenation statutes of Massachusetts (1705), North Carolina (1715), South Carolina (1717), Delaware (1726), and Georgia (1750). In each colony a violation of the law required some party, man, woman, and/or child, to make restitution by sacrificing freedom. Anti-miscegenation laws, therefore, definitely served as one of the colonial cornerstones in sustaining and expanding the institution of slavery.15

Interracial sexual codes in colonial history also had another purpose. Although the laws did not prevent interracial sex, they attempted to control how and between whom it occurred. As has already been suggested, by implication the laws allowed sex between white masters and slave women. Because a slave’s paternity did not matter, colonial authorities would scarcely attempt to prosecute white men for sex with slave women. The laws, however, did bring the sexual choices of white women under greater public scrutiny, making them special targets of enforcement. In practice white women who had sex with black men ran a greater risk of being punished for their activities because in most cases they were not slave owners and because many anti-miscegenation laws specifically singled out white women for punishment. Hence, the white men of the Virginia assembly probably viewed the colony’s first antimiscegenation law as a means of placing stricter controls on the sexuality of white women.16

Indeed, colonial officials made white women special targets of anti-miscegenation enforcement As mentioned earlier, the antimiscegenation laws of Virginia and Maryland levied special punishments on white women who crossed the color line. The colonial records detailed a number of cases of courts punishing white women for their interracial sexual transgressions. For example, in Elizabeth City County, Virginia, a court convicted Ann Hall, a free English woman, of “having two mulatto bastards by a Negro.” In Chester County, Pennsylvania, a court ordered a white woman to “receive twenty-one lashes on her bare” back for “inticing” a black man to cross the sexual color line.17 In Westfield, Massachusetts, the general court dissolved the marriage of a white couple, Nicholas and Agnes Brown, after Nicholas charged Agnes with engaging in sexual relations with several black men.18

Why did white colonials target the sexuality of white women? The answer appears to be five-fold. First, bastardy constituted a special problem in and of itself to colonial communities as it placed greater pressure on the community to provide for the children bom out of wedlock. By establishing severe penalties for bastardy, colonial officials hoped to discourage white women from delivering children outside of marriage and thus mitigate economic burdens on the local community.19 Second, Englishmen had very negative perceptions of female morality. Many colonials believed that women were particularly vulnerable to satanic proved critical. If she confessed to sharing mutual affection with a black man, the state would most likely indict them both or in a few cases ignore them. If the white woman intimated that a black man had forced himself upon her, whites would likely employ lynch law and murder the black man.

By the last decade of the nineteenth century, race relations in the South had moved far away from Reconstruction’s egalitarianism or Redemption’s delicate balance. Southern white conservatives solidified their dominance by disenfranchising blacks and relegating them to second-class citizenship. The federal government that had at one time served as a guardian of black rights relinquished that role, choosing to view the repressive actions of the white South through the blinders of a “separate but equal” legal philosophy. Under these conditions interracial couples found it more difficult to publicly sustain their relationships. To Southern white authorities, formal black/white intimacy, especially that involving black men and white women, could no longer be tolerated. To allow such affiliations to go unchallenged undermined both white male gender privileges and notions of white supremacy. Undoubtedly, this repressive environment discouraged many from daring to choose intimacy across the color line. For those who did maintain their relationships, this hostile atmosphere gave them little choice but to mask them.

THE ANTI-MISCEGENATION EFFORT IN THE 1890s

CHAPTER V

Expanding the Color Divide

The Anti-miscegenation Effort during the Progressive Era

On December 12,1912, James Arthur Johnson of Galveston, Texas, the first black heavyweight boxing champion, married Lucille Cameron, a nineteen-year-old white woman from Minnesota. Instead of holding a private ceremony, the controversial Johnson opened his nuptials to the public, knowing that his actions would produce national rancor. Newspapers throughout the country reported the virulent condemnation of the Johnson marriage. A Los Angeles Times article recorded the reaction of a group of Louisiana whites who questioned whether or not the people of Illinois knew what “sea-grass ropes were made for” and announced that they had started a fund to “take care” of Johnson. The Cleveland Gazette noted the anger of an Oklahoma woman who declared that the people of Oklahoma would never have allowed Johnson to marry Cameron. The official organ of the NAACP, the Crisis, announced that two Southern ministers had recommended the lynching of Johnson.1

Prominent officials across the nation also expressed their strident disapproval of the Johnson marriage. Governor William Mann of Virginia called the marriage “a desecration of one of our sacred rites.” Governor John Dix of New York referred to the Johnson marriage as “a blot on our civilization.” Cole Blease, the governor of South Carolina, explained that Johnson, “the boasted hero of blacks… could not disgrace South Carolina by having himself united to a white woman within its borders.”2

NORTHERN ATTITUDES TOWARDS

INTERRACIAL MARRIAGE ★

Legislation and

Public Opinion In the

Middle Atlantic and the

States of the Old

Northwest, 1780-1930

David H. Fowler

Garland Publishing Inc.

New York & London ★ 1987

Library of Congress Cataloging-in Publication Data

Fowler, David H., 1924-

Northern attitudes towards interracial marriage.

(American legal and constitutional history)

Originally presented as the authors thesis (Ph.D.—

Yale University 1963)

Bibliography: p

1. Miscegenation—Law and legislation—Middle Atlantic States—History. 2. Miscegenation—Law and legislation—Northwest. Old—History. 3. Miscegenation—Middle Atlantic States—Public opinion—History, 4.Public opinion—Middle Atlantic States—History. Miscegenation—Northwest, Old—Public opinion—History. 6. Public opinion—Northwest, Old—History.

I. Title. II. Series.

KFS11.F69 1987 346.7301’6 86-27077

ISBN 0-8240-8266-4 347.30616

All volumes in this series are printed on acid-free

250-year-life paper.

Printed in the United States of America

NORTHERN ATTITUDES TOWARDS INTERRACIAL MARRIAGE

Legislation and Public Opinion in the Middle Atlantic States and the States of the Old Northwest, 1790-1930

David H. Fowler

about the negro race, and that, by pursuing a proper course towards them, they might be elevated far above the poeition they now occupy?

Still another speaker argued later in the convention debates against the theory of polygenesis:

All respectable authority on zoology, physiology, and divinity agree, In reference to (the unity of origin of the white and black man. They are the same In organization and governed by the same laws of organization. They are subject to the same disease–they have the same mental faculties– they possess the same sympathies and instinct. Kith different species it is not so.142

One theory set forth by Dr. Nott, used often to support the position that genetic intermixture of Negroes and whites violated the law of nature as well as the law of God, argued that hybrid offspring of whites and blacks were weaker than either parent stock and tended to die out rapidly.143 The difficulties of free Negroes, many of whom were mulattoes, under the conditions of life in the North, lent obvious force to this argument. In legislative debates, occasional mention was made of the idea of mulatto inferiority, but it was usually treated as a self-evident fact rather than a proposition requiring proof by evidence or even illustration

If state statutes, taken by themselves, furnished a reliable guide to social conditions, the observer would be forced to conclude that in the years before the Civil war caste lines were becoming more rigid in the East North Central states, while weakening only slightly in the Middle Atlantic area Yet laws tell only a part of the story. The emergence of interracial marriage as a public issue, debated in legislatures and the press, helps the reader to see how deeply divided were whites in the North. especially in the East but also In parts of the Midwest–on the question of public responsibility for the maintenance of caste. This discussion also reveals how subversive to caste were the ideas and ideals of Revolutionary liberalism and Christian humanitarianism, given fresh, strength by their application to the anti-slavery movement.

Both advocates and opponents of intermarriage laws agreed, as the debates make clear, on the social value of caste lines. But where advocates insisted on a total social separation of Negroes and white, which, could be achieved only by open and forceful public sanctions, opponents argued that virtual social separation of the races, which would be enforce in any case by private social pressure, was good enough. Moreover, the opponents continued, public enforcement of caste violated social values even more primary than caste, namely, Christian brotherhood and the political equality of free individuals. The danger to caste, however enforced, of these ideas can be seen in the fact that they left social separation without any ideological support where caste in India has had strong religious Justifications and occupational identification, and where caste in the American South had both slavery and actual fear of racial conflict to support it, caste in the American North had comparatively weak support from any of these justifications or identifications. The use of Christianity and democratic philosophy to attack legalized caste thus served to undermine all caste lines.

This interpretation of Christian and democratic principles grew in influence among Northern whites during the pre-civil war period. The repeal of the Massachusetts Intermarriage law, the. repeal of some of the Ohio black laws (the Ohio Intermarriage law of 1861 notwithstanding), the resistance to intermarriage legislation in Pennsylvania and Wisconsin and the absence of sentiment for such laws in New York and New Jersey, and finally, the repeated attacks on the disfranchisement of Negroes in nearly all the states with restrictions, spelled out a serious challenge to caste everywhere in that section. How Northern whites might have answered that challenge without a Civil War no one can say, but the challenge did exist.

The agitation over intermarriage laws probably did not, however, carry as much significance for the future of caste in the North as did agitation over suffrage restrictions. The high value accorded the franchise in the United States stems from the peculiar force of popular suffrage in a democracy with widespread literacy, widespread economic opportunity, and traditions of individualism, and political participation. Prevention of social mobility at any given time is as essential to the perpetuation of caste as is the intermarriage taboo, and. of the possible levers which free Negroes had available to them to bring about improvements in their perish status, the franchise was the most obvious. Opponents of Negro suffrage argued, with much logic, that if this particular right were granted, Negroes would use their new political power to obtain other rights. It is worth noting that while four of the states being examined had no intermarriage laws in this period, all eight limited the franchise pretty effectively to whites. It was easy to envision Negroes in large numbers taking immediate advantage of the suffrage, but to conceive of a change in the intermarriage rate in the near future required much greater imagination. Thus the controversy over Negro suffrage had a reality and an immediacy which gave it added significance end more frequent exposure.

The passage of repeal of intermarriage laws elsewhere in the United States between 1831 and 1865 shows both strong similarities and sharp contrasts to the trends seen in there eight states. Inastion in New England resembled that In New York and New Jersey. New Hampshire, Vernon and Connecticut continued without prohibitions. The Massachusetts law was of course, repealed in 1843, but the laws of Maine and Rhode Island remained undisturbed. one suspects that outside Massachusetts, abolitionis activity against the laws was not militant, while racial relations in the whole region were quite stable in the years before the Civil war. Negroes in New England increased in number from 21,379 to only 24,711 between 1830 and 1860, constituting only 0.8 per cent of the region’s population in the latter year.144 Problems of Negro-white relationships ware probably insignificant compared to those arising from contact of the native-born with the hundreds of thousands of foreign-born who arrive in New England in the 1840’s and 1850’s.

The slave states adopted relatively little legislation on intermarriage during these years, partly because most of them had laws already partly, no doubt, because the caste line was generally so sacrosanct that intermarriage did not become an issue, two states which did not possess intermarriage laws before the Civil war, Alabama and Mississippi, had negligible numbers of free Negroes, and thus the slave codes effectually prevented intermarriages. South Carolina, which retained it a colonial punishment of interracial bastardy, did not prohibit intermarriage, nor did Georgia., The latter acted in 1852 and 1861 however, to punish interracial cohabitation. New laws were passed in Florida in 1832, Missc in 1834 or 1835, Texas (then an independent nation) in 1837, and Arkansas in 1838, while North Carolina altered its law slightly in 1837 and again in 1838, and Kentucky revamped it’s prohibition in a revision of its law code in 1852.145

The above new laws, like those of Maine, Michigan, Indiana, and perhaps Illinois, suggest that it was commonplace for an area which achieved separate territorial or state status to adopt an intermarriage law during the early years of independent: jurisdiction. This tendency also appeared in the new territories and states beyond the Mississippi, Iowa Territory prohibited intermarriage in 1840, California in 1850, Kansas Territory, Nebraska Territory, and Washington Territory in 1855, Hew Mexico Territory in 1857,Nevada Territory in 1861, Oregon in 1862, Idaho Territory and Colorado Territory in 1864, and Arizona Territory in 1865. Utah. Territory, which did not prohibit intermarriage at this time, did in 1852 ban sexual intercourse between whites and “persons of the African race,” Minnesota was the only trans-Mississippi jurisdiction to violate this pattern; like neighboring Wisconsin, it never prohibited intermarriage. Finally, west Virginia took no action to prohibit inter-marriage in the first years of its separation from Virginia.146

Before the Civil war only two of these Western jurisdictions joined Massachusetts on repealing their intermarriage statutes. They were Iowa, which omitted its 1840 law from a statutory revision in 1850, and Kansas where in 1859 anti-slavery adherents repealed the whole code of black law adopted by the earlier pro-slavery legislature in 1855.147 New Mexico and Washington territories were to repeal their laws in 1866 and 1868 after the war.148

In the absence of detailed study, it is impossible to evaluate the strengths of the various factors which impelled the Western jurisdictions which had few Negroes, to adopt intermarriage laws. Undoubtedly routine imitation of the law codes of Eastern states took place. Certainly the transplanted Easterners who wrote those codes took their habits and prejudices along with them. An additional factor which may have had some significance, however, was one which achoad the frontier experience of seventeenth century Virginia and early nineteenth century Indiana: there existed a characteristic, and sometimes acute, shortage of white women in frontier areas, A federal census report in 1864 observed:

The great excess of males in the newly settled Territories, illustrates the influence of immigration in effecting a disparity in the sexes. The males of California outnumber the females near 67,000, or about one-fifth of the population. In Illinois the excess of males amounts to about 92,000, or one- twelfth of the entire population. In Massachusetts the females outnumber the males some 37,600. Michigan shows near 40,000 excess of males; Texas, 36,000; Wisconsin, 43,000. In Colorado the males to females, are as twenty to one. In Utah the numbers are nearly equal; and while in New York there is a small preponderance of females, the males are more numerous in Pennsylvania.149

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