Hernandez v Robles New York County Clerk’s Index No. 103434/2004 Part 2

Appendix 2

Intermarriage in Nazi Germany

and Apartheid South Africa

The antimiscegenation regime in America endured from a Maryland law in 1664 to the Supreme Court decision in Loving v. Virginia in 1967; corresponding systems developed in the twentieth century on other continents. In Europe, Germany’s was born in 1935, and it died with Allied victory in World War II in 1945. A South African version, in place by 1949, was repealed in 1985; and Protas Madlala and American-born Suzanne Leclerc married that summer.1

For ten years, the color line in the law of marriage and the family in the United States had its counterparts in Hider’s Germany. Who had what racial identity? What pool of prospective marriage partners did that identity allow? What was the status, and the identity, of the children of a mixed marriage? What penalties might await violations of the law of race and marriage? A number of the major themes of America’s antimiscegenation regime recurred in Hider’s Germany under the Nuremburg Laws of 1935. Though American culture tends to view the term “Jewish” as connoting “religion” rather than “race,” race was the more relevant category in Hider’s Germany. There the preferred equivalent for the term “miscegenation” was “Rassenschande,” or “race defilement.”

Under the Nazi regime, people were classified in terms of their ancestry going back two generations, and that classification could change if a grandparent remarried and this time the spouse was Jewish rather than Aryan. Germans were divided into several categories, chiefly “Jews” (people with either three or four Jewish grandparents) and “Aryans” (who had none), although “mixed blood” people, “Mischlinge,” fell in between. The rules governed which group could marry within which other groups. Mixed marriages were viewed as better if the man was “Aryan” than if he was the “Jewish” partner.

Mixed marriages already entered into could cause enough of a problem, but entering new ones could be out of the question. Authorities and informal influences alike pressured people in mixed marriages to separate and divorce. Partners

Interracial

Intimacy

The Regulation of Race

Romance

Rachel F. Moran

The University of Chicago Press

Chicago & London

The University of Chicago Press, Chicago 60637

The University of Chicago Press, Ltd., London

Paperback edition 2003

Printed in the United States of America

12 11 10 09 08 07 06 05 04 03 2 3 4 5

ISBN: 0-226-53662-9 (cloth)

ISBN: 0-226-53663-7 (paperback)

Library of Congress Cataloging-in-Publication Data

Moran, Rachel F.

Interracial intimacy : the regulation of race and romance / Rachel F.

Moran.

Includes index.

ISBN 0-226-53662-9 (cloth : alk. paper)

Miscegenation—Law and legislation—United States—History. 2. Interracial marriage—United States. 3. United States—Race relations. Title.

KF4757. M667 2001

305.8 0973—dc21

00-011008

The paper used in this publication meets the minimum requirements of the American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI Z39.48-1992.

To my parents, who taught me how to

cross boundaries and how to love

Conclusion

Williams’s memoir reminds us of the power of race and intimacy. Looking back on his early years as a boy navigating uneasily between black and white worlds, he realizes that all of his later professional success cannot shield him from the impact of his racial heritage and family ties:

I was fortunate to be able to achieve my goal of becoming a lawyer, and later my dream of being a law professor. I have held positions that even in my wildest fantasies during the nights at 601 1/2 Railroad Street I could not envision for myself. Yet when I stand in front of students, my mind often wanders back to the pain and rejection of the Muncie years. Almost as if it were yesterday, I vividly recall watching Dad being beaten by the police, and the day we were chased from the “white” waiting room in Louisville. I never felt more impotent and powerless to control my life than I did in those days. When I think of those times, I remember what Dad used to say:

“Son, one day this will all pale into insignificance.”

He was wrong. Muncie has never paled into insignificance. It has lived inside me forever.42

The time is long overdue to recognize the singular importance of interracial intimacy. It has not paled into insignificance, nor should it. Interracial intimacy is far more than an incidental consequence of racial equality or a particular proof of personal autonomy. As this book will show, those who choose love across the color line challenge the conventional wisdom that racial equality can be achieved in the absence of a rich network of interracial relationships and that love is truly free when it is cabined by pervasive segregation.

TWO

Antimiscegenation Laws and

the Enforcement of Racial

Boundaries

Any history of antimiscegenation laws must begin with the regulation of black-white intimacy, but it must not end there. Laws barring sex and marriage between blacks and whites had the longest history and the widest application in the United States. As one historian of intermarriage has pointed out, however, antimiscegenation “laws were enacted first—and abandoned last—in the South, but it was in the West, not the South, that the laws became most elaborate. In the late nineteenth century, western legislators built a labyrinthine system of legal prohibitions on marriages between whites and Chinese, Japanese, Filipinos, Hawaiians, Hindus, and Native Americans, as well as on marriages between whites and blacks.”1 At one time or another, thirty eight states adopted laws regulating interracial sex and marriage. All of these laws banned black–white relationships, but fourteen states also prohibited Asian–white marriages and another seven barred Native American-white unions.2 No state ever officially banned Latino-white intermarriage, though, presumably because treaty protections formally accorded former Spanish and Mexican citizens the status of white persons.

Antimiscegenation laws have played an integral role in defining racial identity and enforcing racial hierarchy.3 To understand the distinctive ways in which antimiscegenation statutes were used to establish norms about race, it is essential to focus on the two groups that suffered the most onerous legal burdens: blacks and Asians. For blacks, the laws identified them as diminished persons marked with the taint of slavery and inferiority, even after they were nominally free. Although the statutes formally limited the freedom of blacks and whites alike, the restrictions clearly functioned to block black access to the privileges of associating with whites. For Asians, antimiscegenation laws confirmed their status as unassimilable foreigners. Already marked as racially distinct and unfit for citizenship by federal immigration laws, state constraints on intermarriage prevented Asian male immigrants from integrating into communities by thwarting their sexuality, hindering them from developing ties to the United States through marriage, and deterring them from having children who would be American citizens by birth. For both blacks and Asians, segregation in sex, marriage, and family was a hallmark of intense racialization and entrenched inequality.

The Black Experience: Drawing the Color Line and Keeping It in Place

The regulation of sex and marriage played a singularly important role in drawing the color line between whites and blacks. Antimiscegenation laws in the South laid a critical foundation for securing the full personhood of whites and entrenching the diminished status of blacks. Whenever racial ambiguity threatened the established social order, statutory restrictions on interracial sex and marriage were imposed to keep the color line firmly in place. During the colonial era, Southern states faced special challenges in drawing racial boundaries and establishing sexual norms. In New England, settlers were mostly farmers and artisans who arrived with families, settled in towns, and had strong religious traditions. In these homogeneous communities, same-race families were the norm and sex outside of marriage was relatively rare.4 By contrast, in the Chesapeake world of Virginia and Maryland, settlers came from a wide range of backgrounds. Many arrived alone as indentured servants, who had contracted to work until they paid for their passage to America. No sense of community based on shared origins, townships, or religious beliefs bound the newcomers together. Men outnumbered women by four to one. In addition, the scarcity of marriageable women was exacerbated because indentured female servants could not marry until they completed their terms of service. Under these circumstances, rates of extramarital sex and out-of-wedlock pregnancy soared despite laws punishing fornication, adultery, and rape.5

When slavery began to replace indentured servitude as the primary source of labor in the upper South during the last decades of the seventeenth century, white indentured servants often worked in close proximity to black slaves. In some instances, coworkers became sexual intimates, and interracial sex and marriage began to blur the color line.6 Antimiscegenation laws became a way to draw a rigid boundary between slave and free, black and white. Maryland enacted the first antimiscegenation statute in 1661, and Virginia followed suit one year later. Even before that, Virginia authorities in the 1630s and 1640s had whipped and publicly humiliated those who participated in interracial sexual liaisons.7

By punishing interracial sex severely, authorities in Maryland and Virginia sent a clear message that whites were not to adopt the sexual practices of slaves. Slaves typically did not enjoy access to the formal institution of marriage, although they did conduct their own slave marriage rituals. Some slaves practiced polygamy or polygyny, and many did not condemn premarital intercourse. Without social stigma, a woman might have sex and even bear children by a man before having been recognized by other slaves as “married” to him.8 Legislation prohibiting interracial intimacy clearly condemned these alternative sexual and marital practices as heathen and unfit for right-minded, white Christians.

In the early settlement years, interracial marriage had been tolerated, presumably because of the uncertain racial status of blacks and the shortage of women. As the institution of slavery was consolidated in the late seventeenth century, marriages across the color line became anomalous and dangerous exceptions to the emerging racial hierarchy. Interracial unions enabled black women to control access to their sexuality through marriage, and it enabled black men to occupy a superior position to white women in a patriarchal institution that treated the husband as master. Marriages across the color line could give blacks and their mixed-race offspring access to white economic privileges by affording them the property protections that marriage and inheritance laws offered.9 Black-white marriages threatened the presumption that blacks were subhuman slaves incapable of exercising authority, demonstrating moral responsibility, and capitalizing on economic opportunity. If whites could share their emotional lives and economic fortunes with blacks, how could blacks be anything less than full persons?

The Chesapeake colonies enacted statutes to ensure that, rather than benefit blacks, interracial marriages would simply degrade Whites. Under Virginia’s 1691 law, a white spouse was to be banished from the colony within three months of an interracial wedding. In 1705, Virginia authorized jail sentences of six months for whites married to blacks or mulattoes. In Maryland, “freeborne English women” who married “Negro slaves” were required to serve their husbands’ masters during their husbands’ lifetimes.10 These laws stripped whites of racial privileges based on their intimacy with blacks.

Despite these harsh sanctions, some whites paid the price to marry across the color line. In Maryland in 1681, Nell Butler, known as “Irish Nell,” fell in love with a slave known as “Negro Charles.” When Nell, an indentured servant, informed Lord Baltimore, her master, of the planned marriage, he warned her that she and all her descendants would live as slaves. Unswayed and defiant, Nell replied that she would rather marry Charles than Lord Baltimore himself. She did marry Charles and spent the rest of her life working for his masters, probably as an indentured servant. Had she not married Charles, her contract of servitude with Lord Baltimore would have ended in four or five years. Nell reportedly died “much broken and an old woman.” Still, Lord Baltimore was wrong about Nell’s offspring. In the eighteenth century, a Maryland court held that neither Nell nor her descendants could be slaves. Subsequendy, masters complained of runaway mulatto slaves who claimed to be “descendants of the famous Nell Butler.”11

As the story of Irish Nell suggests, the problem of mulatto offspring was a serious one in a slave economy predicated on a clearcut boundary between whites and blacks. Despite laws punishing interracial sex, one- fifth of children born out of wedlock at the end of the seventeenth century were mulattoes.12 Whether slave or free, these mulattoes complicated the enforcement of slavery and compromised its claims to moral authority. Mulatto slaves who could pass as white were considered particularly risky property because they could easily run away and escape detection. In 1835 in Virginia, whites refused to bid on one male slave because he was “too white” and might “too easily escape from slavery and pass himself as a free man.” Later on, light-skinned mulatto slaves were used to call into question the very propriety of slavery. A favorite theme of abolitionist literature was the “white slave,” who reminded white audiences that they too might be held in bondage.13

With widespread interracial sex that threatened the color line, the Virginia legislature had to define and ultimately confine the relevance of the mulatto. A 1705 law classified a mulatto as “the child of an Indian and the child, grandchild, or great grandchild of a negro.”14 During the Revolutionary era, high rates of emancipation coupled with Virginia’s “one-fourth black” rule allowed some free mixed-race individuals to claim the privileges of whites, although they obviously had some African ancestry. Officials concluded that “[m]ulattoes must be made black, and the unfreedom of blacks must be defined and made universal.”15 To this end, the upper South adopted a one-drop rule, which defined as black any person with traceable African ancestry.

The adoption of a rule of hypodescent kept blacks from transmitting special privileges to the next generation through interracial sex or marriage. This racial tax on offspring precluded them from gaining official recognition of their white ancestry. By erasing their white heritage, the racial classification scheme converted mulattoes into blacks by a type of parthenogenesis: It was almost as though the child had been generated by a single parent without intercourse across the color line. As slavery hardened the lines between whites and blacks, the racial tax on mulattoes increased. Their curtailed privileges clearly identified them as nonwhite, and even the lightest mulattoes were denied the privileges of whiteness.

The imperative of consolidating racial boundaries was so great that Chesapeake authorities were willing to undo the legal tradition of paterfamilias. A long-standing English rule mandated that a child’s status follow that of the father. Given the initial scarcity of white women in the Chesapeake, most interracial sex probably took place between white men and black women. As a result, the majority of mulatto offspring were free under the English approach. In 1662, Virginia departed from tradition by making a child’s status follow that of the mother.16 Under this matrilineal approach, children like Irish Nell’s would be free, but most mulattoes would be slaves. Even mulattoes born to white mothers enjoyed only tenuous liberties. Under a 1691 Virginia law, they could still be sold as servants until the age of thirty. Mulattoes could not hold public office, and by 1723, free mulattoes were stripped of many of the privileges—including voting and the unrestricted right to bear arms— that white citizens enjoyed.17 Virginia authorities also were concerned that doting white fathers might subvert laws that made their mulatto offspring slaves by emancipating them. To discourage manumission of mulatto offspring, masters had to send their freedmen out of the colony, and authorities were encouraged to eliminate roving bands of “negroes, mulattoes, and other slaves [perhaps Indians].”18 In 1723, Virginia made private emancipation even more difficult.19 Restricting the liberty of racially ambiguous mulattoes was essential to ensuring their definition as nonwhite.

Despite formal, legal restrictions, an influential and powerful white father sometimes could rely on his privileged position to win local—albeit fragile and informal—acceptance of a mixed-race child. In 1805 in Campbell County, Virginia, Robert Wright, the mulatto son of a wealthy white landowning father and black slave mother, inherited his father’s estate and became a well-to-do planter. Robert’s father, a lifelong bachelor, was estranged from his white brothers and sisters and determined to pass on his substantial holdings to his beloved only son. With his father’s support and guidance, Robert learned to manage the land and gained entry into the uppermost echelons of Campbell County’s white society. One year after inheriting his father’s property, Robert married a white woman. Although the county clerk and minister never recorded the marriage because of its illegality, Robert and his wife lived openly as a married couple and had a child together without being ostracized by their white neighbors.

Robert’s troubles began when his wife ran away with a white man. In petitioning Virginia legislators for divorce so that he could marry another white woman, Robert sought formal acceptance of his white privilege, but the jerry-built, informal status of his father’s making could not survive legal scrutiny. In his petition, Robert emphasized that he, his wife, and her lover were all free. He argued that despite the ban on interracial marriage, the union was “to all intents and purposes valid and binding between the parties” because they had obtained a marriage license and been married by a clergyman. Even if the minister had destroyed the marriage certificate, the marriage clearly had been recognized as valid for approximately a decade in the Campbell County community. White citizens in the community wrote in support of Robert’s petition, noting his propriety, kindness to his wife, and reputation as “an honest, upright, and good citizen.”20

Despite Robert’s status in Campbell County, the state of Virginia could not permit its official ban on interracial marriage to be subverted. The Virginia House of Delegates decisively rejected Robert’s divorce petition, making clear that “Robert Wright could be married to a white woman in his community, [but] he could not be married to her in law.”21 With the illusion of his whiteness destroyed, Robert lost standing in Campbell County. On tax rolls, his designation was changed from “White” to “M,” for mulatto. When he persisted in living with the white woman he had hoped to wed, many of his neighbors condemned his public adultery. Humiliated and ostracized, Robert died at the age of 38, two years after the House of Delegates stripped away the pretense of his whiteness.22

Robert Wright’s story is remarkable primarily because it demonstrates the privileges that white fathers could confer on mulatto offspring even in the face of antimiscegenation laws. Robert’s father demonstrated his power as a white landowner in the community by subverting the legal restrictions on his mulatto son’s ability to manage a white man’s estate, mingle with the white elite, and marry a white woman. Yet even someone as influential as Robert’s father could not create a foolproof escape from restrictions on personhood and identity that were essential to the preservation of racial inequality. Once Robert’s wife left him for a white lover, the mulatto’s manliness and his entidement to the privileges of whiteness were called into question. Robert was no longer free to marry the woman of his choice, and his neighbors ceased to think of him as morally deserving or racially white. Robert’s despoiled identity as mulatto was marked by incursions on his autonomy to associate with whites as he pleased.

In other instances, though, informal recognition of mulatto children reinforced racial hierarchy and subverted sexual mores that condemned incest and adultery. For example, in antebellum Loudon County, Virginia, a quadroon slave woman named Ary lived with her white paternal uncle. There she became the concubine of her young master, who also was her cousin. Far from challenging racial privilege, Ary’s circumstances reinforced it: She avoided associating too closely with blacks, perhaps remembering her master’s admonition not to get involved with “colored men” because they “weren’t good enough” for her.23 Nor did the situation trigger outrage at her sexual exploitation: Ary insisted that she was her father’s favorite child, and she proudly described her elite white heritage and her young master’s attentions to her. The price of Ary’s sense of superiority to blacks was a complete dependency on white male relatives for validation of her racial and sexual worth. Because of their racial privilege, these men could define Ary’s identity wholly in relation to their sexual needs, regardless of their relationship to her as father, uncle, or cousin.

In general, interracial relationships were tolerated only insofar as they left norms of racial and sexual privilege intact. By deprecating white women who cohabited or had intercourse with blacks, the affairs could be dismissed as indecent and depraved. According to historian Martha Hodes, local communities regularly turned a blind eye to black or mulatto men and poor white women who lived together as man and wife, so long as they remained on the outskirts of white society. These long term liaisons as well as brief sexual encounters could be explained by characterizing the women as low-class and licentious.24 For instance, in North Carolina in 1825, Polly Lane, a white indentured servant, accused Jim, a slave, of rape. Although Jim pleaded innocent, he was convicted and sentenced to death. As Jim awaited execution, white neighbors noted that Polly appeared to be pregnant, and they became suspicious of her claim of rape.25 Four doctors submitted a statement that “without an excitation of lust, or the enjoyment of pleasure in the venereal act, no conception can probably take place.”26 When Polly gave birth to a child declared to be of “mixed blood,” Jim was eventually pardoned “in part by invoking the white woman’s bad reputation, thereby demonstrating that a poor and transgressing white woman could be worth less to elite whites than the profitable labor of a slave.”27

Where the pressure to consolidate racial and sexual norms was less intense, sex across the color line was commonplace despite its racially ambiguous consequences. White men enjoyed ready and open access to black and mulatto women as a mark of their untrammeled freedom and privilege. In the lower South, for example, free mulattoes were rare and posed little threat to the system of slavery. The issue of interracial sex was openly debated in newspapers in South Carolina in the 1730s, and one anonymous poet wondered: “Kiss me black or white, why need it trouble you?”28 This laissez-faire attitude toward sex across the color line allowed wealthy white planters regularly to indulge their appetite for black and mulatto women. In New Orleans and Charleston, there was a profitable “fancy trade” in mulatto women, who brought twice the price of a prime field hand. Free mulatto women went to quadroon balls in New Orleans to meet wealthy white men. Under a system of concubinage known as “placage,” the men could make formal arrangements to support the women for a few years or for life in exchange for sexual services.25 Without fear of social reprisal, plantation owners set up special residences for black and mulatto mistresses, and some slave owners even went so far as to bring concubines into their own homes, where their white wives had to endure the humiliation in silence.30 At a time when the New England colonies and upper South frowned on extramarital sexuality, planters in the lower South openly flouted the norm of fidelity in marriage. Tolerance of concubinage commodified black and mulatto women, but it also damaged the status of white women. One northern visitor to the South in 1809 remarked that the “dull, frigid insipidity, and reserve” of southern women was one of the most insidious costs of slavery.31

The lower South’s tolerance for interracial relationships was linked to an unwillingness to adopt hard and fast legal definitions of blackness. As Judge William Harper wrote in 1835:

We cannot say what admixture of negro blood will make a colored person. The condition of the individual is not to be determined solely by distinct and visible mixture of negro blood, but by reputation, by his reception into society, and his having commonly exercised the privileges of a white man. . . . [I]t may be well and proper, that a man of worth, honesty, industry, and respectability, should have the rank of a white man, while a vagabond of the same degree of blood should be confined to the inferior caste.32

A flexible classification scheme permitted mulattoes to earn the privileges of whiteness through personal accomplishments and social connections. This reward system enhanced the mulattoes’ value to whites as racial mediators: Mulattoes would not identify too closely with blacks, for fear of jeopardizing the benefits associated with their White heritage. Tolerance for mulattoes was so great in some parts of the lower South that they were able to establish themselves as a separate elite. In Louisiana, mulattoes amassed large estates and slaves to work their properties, educated their children abroad, and developed their own elegant, cultural traditions. Labeled “Creoles,” these highly successful mulattoes kept their social distance from both whites and blacks by adopting a norm of endogamy, or in-marriage.33

By the 1850s, the industrial revolution had transformed the textile industry, and the demand for cotton had grown dramatically. Southern planters needed a growing number of slaves, and the proportion of mulattoes in bondage increased. As the slave population became “lighter,” the free mulatto population seemed increasingly anomalous and dangerous. Grand juries were convened to identify the hazards associated with free mulattoes. As one jury concluded, “We should have but two classes, the Master and the slave, and no intermediate class can be other than immensely mischievous to our peculiar institution.”34 When the lower South found it necessary to rigidify racial boundaries, it followed the lead set in the upper South. States punished interracial sexual contacts, encouraged free people of color (of whom 75 percent were mulatto) to leave the jurisdiction, and adopted a one-drop rule that denied the relevance of mixed-race origins altogether. Vigilantes reinforced these legal changes by punishing those who had interracial sex and by threatening free people of color with violence.35

Although the one-drop rule had been consolidated in the South before the Civil War, the war and its aftermath threatened to undo racial boundaries. Nothing was better calculated than the prospect of interracial sex and marriage to stir up fears that the color line was crumbling completely. For this reason, when calling for emancipation, orthodox abolitionists shunned the issue of sex and marriage across racial boundaries. Indeed, when freethinker Francis Wright established an interracial community and called for amalgamation of the races, she was promptly dubbed the “priestess of Beelzebub” and dropped by mainstream abolitionists who feared her radicalism would hurt the movement.36 Similarly, after the war, most Reconstruction efforts focused on “political” equality, such as the right to vote, sit on juries, and hold office. Republican reformers deflected concerns that political equality would lead to “social” equality, as typified by race-mixing in integrated communities. When southern Democrats coined the term miscegenation to ridicule the quest for racial equality during Reconstruction, Republicans chided their opponents for implying that cross-racial sexual liaisons were even tempting.37 The distinction between political and social equality made clear that the races would remain separate and distinct. Blacks would be formally rehabilitated as full persons before the law, but they would remain subordinate in informal and intimate spheres of life.

Although a few southern states did eliminate antimiscegenation laws after the Civil War, black-white intermarriage dropped sharply. The decline is particularly striking because of the strong incentives for white women to cross the color line. The ranks of white males had been decimated by the bloody conflict, and black men enjoyed newfound status and freedom of movement. Yet only in places with a particularly liberal view of race relations like New Orleans did some white women become involved with black men.38 Presumably, the harsh pressures of public opinion prevented white women and black men from crossing the color line. Many white southerners blamed their defeat on the corrupting influence of miscegenation:

It does seem strange that so lovely a climate, and country, with a people in every way superior to the Yankees, should be overrun and destroyed by them. But I believe that God has ordered it all, and I am firmly of the opinion . . . that it is the judgement of the Almighty because the human and brute blood have mingled to the degree it has in the slave states. Was it not so in the French and British Islands and see what has become of them.39

To prevent further transgressions, self-appointed vigilante groups delivered swift and terrible punishment to black men suspected of consorting with white women. The Ku Klux Klan formed at about this time, and it sometimes lynched freedmen prominent in Reconstruction politics under the guise of retribution for the mistreatment of white women.40 Through this clandestine attack on interracial relations, whites were able to send a clear message that political equality would not dismantle the color line. Restrictions on sex, marriage, and family would continue to be a cornerstone in defining racial difference.

Although black men suspected of having sex with white women could be lynched,41 black women were unable to fend off the advances of white men. Ironically, once slavery ended, black and mulatto women found it more difficult than during the antebellum period to limit their sexual availability to only one white male. As a result, the number of mulatto offspring increased after emancipation. Reconstruction legislators did try to protect black and mulatto women from sexual exploitation. Efforts to outlaw concubinage failed, but some states adopted bastardy statutes that enabled black and mulatto women to file paternity suits so that white men would be forced to support their illegitimate mulatto children. These bastardy statutes eventually were repealed.42

Even though interracial marriages were exceedingly rare during Reconstruction, white southern males promptly reinstated antimiscegenation laws when they regained control of state legislatures in the post- Reconstruction era. With the one-drop rule of racial classification in place,43 the color line could once again be officially consolidated by regulating sex and marriage. Under this regime, antimiscegenation laws became critical to conserving the integrity and purity of the white race. Without these prohibitions, blacks could gain access to white wealth and privilege through marriage. After all, in black-white marriages, the one-drop rule dictated that the heirs to white fortunes would be black.

Interracial sexuality outside of marriage became a means of establishing racial power and domination. White men could enjoy the sexual favors of black women with impunity, but black men would pay with their lives for sexual contact with white women. When white men impregnated black women, the offspring were illegitimate and generally could not even seek support from their fathers. The children of these black-white relationships threatened neither white identity nor privilege. By contrast, if black men had adulterous relations with married white women, any resulting offspring threatened the racial integrity of white men’s families. After Reconstruction, then, antimiscegenation laws reaffirmed antebellum definitions of racial identity and reasserted the superiority of whites as marital partners. White men expressed their sexual dominance by policing access to white women and enjoying the favors of black women without obligations of marriage or support.

The Chinese and Japanese Experience: Racial Unassimilability and Sexual Subordination

Although antimiscegenation laws were used to draw racial boundaries between whites and blacks during the colonial era and early years of nationhood, the color line was well-established by the time Chinese and Japanese began to immigrate to the United States in substantial numbers during the mid- to late 1800s.44 Definitions of blackness evolved through state legislation, but for Asians, federal immigration law made their status as nonwhite wholly unambiguous. Much of the racialization of Asians took place as successive waves of immigrants were labeled nonwhite, unassimilable, and unfit for citizenship. The Chinese were the first to arrive, coming in substantial numbers after 1848 when gold was discovered in California.45 Early on, the U.S. government made plain that the Chinese were not white. Under a 1790 naturalization law, only “free white persons” were eligible for citizenship.46 When Chan Yong applied for citizenship in 1854, a federal district court denied his application because he did not qualify as white, although newspaper accounts at the time stated that he was lighter-skinned than most Chinese.47

After the Civil War, race relations in America were contested. Congress amended the naturalization law to permit “aliens of African nativity” and “persons of African descent” to petition for citizenship. When the naturalization law was codified in 1875, the reference to “free white person” was dropped, leaving open the possibility that the Chinese could naturalize. Chinese immigrants quickly capitalized on the statutory uncertainty by filing petitions for naturalization in San Francisco.48 Shortly thereafter, a federal court made clear that as nonwhites, Chinese immigrants continued to be ineligible for citizenship.49

A few years later, the federal government went even further in defining the Chinese as undesirable nonwhite aliens. In 1882, by an overwhelming margin, Congress passed the Chinese Exclusion Act, the first statute to ban a group from immigrating to the United States based solely on race or ethnicity. The Act prohibited any Chinese laborer or miner from entering the United States, and it barred any state or federal court from naturalizing any Chinese.50 After passage of the Act, the Chinese population in the United States declined precipitously.51 Periodically renewed and strengthened by Congress,52 the law remained in force until 1952 when the McCarran-Walter Act nullified racial restrictions and substituted a quota system for immigration based on national origin.53

The Japanese began to arrive in the United States about twenty years after the Chinese. Most Japanese emigrated to Hawaii to work in the sugar industry, and their numbers were small because of restrictive Japanese emigration policies.54 After 1890, two important changes in Japanese immigration occurred. First, the number of immigrants increased substantially so that by 1910, the Japanese outnumbered the Chinese; and second, Japanese immigrants began to arrive in the western continental United States, particularly California, to replace the dwindling numbers of Chinese laborers and to escape low wages and poor working condi-, tions in Hawaii.55 Having observed the mistreatment of the Chinese, the Japanese struggled to avoid occupying the same place in the racial hierarchy by distinguishing themselves from the Chinese under federal naturalization policy. Although the 1790 law permitted only whites to become citizens, the Chinese Exclusion Act of 1882 withheld the privilege of naturalization only from the Chinese. Several hundred Japanese successfully petitioned for citizenship in lower federal courts on the ground that they were not covered by legislation targeting the Chinese.56 The federal government soon moved to clarify the status of the Japanese as nonwhite. In 1905, the U.S. attorney general informed President Theodore Roosevelt that the Japanese were and always had been ineligible for naturalization based on their race. One year later, the attorney general issued a formal opinion to that effect.57

Despite this setback, the Japanese continued to try to win favorable treatment under immigration laws by highlighting their capacity to assimilate to an American way of life. In a 1922 case, Takao Ozawa asked that his petition for naturalization be granted because the word free was more important than the word white in determining eligibility of “free white persons” for citizenship. Ozawa insisted that even though he was nonwhite, he should be allowed to naturalize because he could successfully shoulder the responsibilities of democratic freedom.58 Despite Ozawa’s proofs of good moral character and individual accomplishment, the U.S. Supreme Court denied his eligibility for citizenship. According to the Court, Ozawa’s status as nonwhite barred him from naturalization, regardless of his ability to conform to an American way of life.59 Race was a categorical stigma, one that did not permit individuals to escape through acculturation and achievement.

The federal government’s treatment of immigrants from India cemented the racialization of Asians.60 Unlike the Chinese and Japanese, Asian Indians were treated as Caucasian under the prevailing scientific taxonomy. Even so, the U.S. attorney general refused to find that Asian Indians qualified as “free white persons,”61 but several federal district courts reached a different conclusion.62 To remedy the confusion, the U.S. Supreme Court made clear in its 1923 decision in United States v. Thind63 that Asian Indians were ineligible for citizenship because they were nonwhite. According to Thind, Congress used the term white rather than Caucasian because it was relying on popular, not scientific, conceptions of race. As the Court explained: “It may be true that the blond Scandinavian and the brown Hindu have a common ancestor in the dim reaches of antiquity, but the average man knows perfectly well that there are unmistakable and profound differences between them today. . . .”64 Just as personal accomplishments could not save the Japanese, science could not save the Asian Indian from racialization. All Asians—whether Chinese, Japanese, or Asian Indian—had been definitively categorized as nonwhite. Any claims of racial ambiguity were decisively laid to rest by Congress, the attorney general, and the Supreme Court.

By labeling Asian immigrants unassimilable and unfit for citizenship, the federal government made them easy targets for racial discrimination in the western states where they settled. Bans on intermarriage were one of a number of state restrictions on Asian immigrants’ liberties, all of which were designed to mark them as inferior and undesirable. With the color line clearly drawn by federal immigration laws, the statutes reinforced the temporary status of Asian sojourners, who came to the United States to work and then return to their home countries. Anti-miscegenation laws marked the newcomers’ marginal and subordinate status, prevented them from developing permanent ties to America through marriage and family, and severely restricted sexual options for Asian men in bachelor communities.

The racialized imagery that informed federal immigration policy dominated debates about the personhood of Asians. Popular accounts analogized the Chinese to blacks because of their willingness to work in conditions akin to slavery, their incapacity to handle freedom, and their distinctive physical appearance.65 One politician compared the Chinese to Native Americans and recommended their removal to reservations.66 These racial images in turn were linked to a degraded sexuality. One California magazine confirmed the depravity of Chinese women by noting that their physical appearance was “but a slight removal from the African race.”67 As early as 1854, the New York Tribune characterized the Chinese as “lustful and sensual in their dispositions; every female is a prostitute of the basest order.”68 Other journals claimed that debauched Chinese males went to Sunday school only to ravage white female teachers. Readers were warned that Chinese men could not be left alone with children, especially little girls. Sexual anxieties about the Chinese were exacerbated by religious differences, as Christian missionaries sought to proselytize a people characterized as base and lecherous pagans.65

California’s laws were particularly important because so many Asian immigrants resided there. During the convention to draft the 1879 California constitution, the chairman of the Committee on the Chinese warned: “Were the Chinese to amalgamate at all with our people, it would be the lowest, most vile and degraded of our race, and the result of that amalgamation would be a hybrid of the most despicable, a mongrel of the most detestable that has ever afflicted the earth.”70 To address these concerns, the delegates proposed an 1878 constitutional amendment to restrict intermarriage of Chinese and whites: “The intermarriage of white persons with Chinese, negroes, mulattoes, or persons of mixed blood, descended from a Chinaman or negro from the third generation, inclusive, or their living together as man and wife in this State, is hereby prohibited. The Legislature shall enforce this section by appropriate legislation.”71 The California electorate ratified the provision the following year, and the California legislature quickly moved to enact antimiscegenation statutes. The California Civil Code was amended in 1880 to prohibit the issuance of marriage licenses authorizing the union of “a white person with a negro, mulatto, or Mongolian.”72

Although levels of interracial sex and marriage among whites and Chinese were quite low, the California legislature criminalized Chinese- white intermarriage in 1901.73 That same year, the legislation was held unconstitutional based on a procedural defect.74 California did not reenact the statute until 1905, primarily in response to intensified concerns about amalgamation with a new group of Asian immigrants, the Japanese.75 As with the Chinese, Americans feared what they presumed to be Japanese immigrants’ alien racial identity and unbridled sexual impulses. When the Japanese government successfully lobbied for its nationals to be exempted from laws that segregated the Chinese, political leaders warned of the dangers of white girls “sitting side by side in the school rooms with matured Japs, with their base minds, their lascivious thoughts, multiplied by their race and strengthened by their mode of life.”76 California’s 1905 antimiscegenation law reflected fears of both racial difference and sexual deviance. The statute addressed eugenic concerns that Asian immigrants were a threat to the “self-preservation of [the white] race”77 as well as anxieties about the lawless sexuality of Japanese.78 immigrants.

Even with state antimiscegenation laws in place, concerns about Asian intermarriage persisted. In 1907, Congress had passed an Expatriation Act,79 which stripped American women of their citizenship if they married foreign nationals. In 1922, in response to protests from women’s groups, Congress passed the Cable Act. In general, the Act did away with the practice of treating a woman’s nationality as derivative of her husband’s, thereby assuring a wife the freedom to choose her own allegiance. In the area of race, though, women who crossed the color line to marry Asian immigrants remained disempowered. The Cable Act continued to strip American women of their citizenship if they married aliens ineligible to naturalize. The marital autonomy of white women was sacrificed to preserve racial distinctions.

Moreover, the Cable Act made it more difficult than before for American men, usually native-born Chinese, to bring their wives from China. Because a woman’s nationality was now independent of her husband’s, the U.S. Supreme Court interpreted the Act as barring Chinese women from entering the country based on marriage to an American citizen. Previously, the women had been able to come to the United States but not naturalize. These provisions remained in effect for ten years.80 Unable to bring wives from China and barred by antimiscegenation laws from marrying white women, even American-born Chinese had limited marital options. Citizenship by birth did not spare them from the adverse consequences of racial difference.

Restrictive immigration policies and state bans on intermarriage had particularly harsh consequences for the Chinese, who were denied access to wives of any race. Federal policy treated the Chinese as sojourners— temporary male workers who would eventually return to their homelands after fulfilling their labor contracts. Poor, unable to speak English, and unfamiliar with American customs, Chinese immigrants were ill- equipped to challenge their isolation. Many of them could not even afford their wives’ additional passage. These obstacles were compounded by cultural tradition, which dictated that Chinese women join their husbands’ extended families. This practice cemented the family’s expectation that the men would return someday and send remittances in the meantime.81

Given this combination of federal policy, limited resources, and cultural traditions, the number of Chinese women coming to the United States during the 1800s was minuscule. In 1852, of 11,794 Chinese, only 7 were female. By 1870, Chinese men outnumbered Chinese women in the United States by 14 to I. These severe imbalances in turn led to images of sexual deprivation and degradation. Men living without women in bachelor communities seemed deviant and dangerous. The few Chinese women in the United States were vulnerable to sexual exploitation, which reinforced the image of sojourners as predatory and debauched. According to the 1870 census, 61 percent of Chinese women were “prostitutes,” while only 21 percent were “housekeepers.”82 Chinese women regularly worked in the sex trade after having been lured to the United States with promises of marriage, abducted, or sold into indentured servitude by needy families.

Antimiscegenation laws arguably played a more significant role in sending messages of racial inferiority than in thwarting interracial relationships. Anxieties about lustful Chinese bachelors harming white women appear to have been largely unfounded. Although interracial sex between blacks and whites remained relatively commonplace even under antimiscegenation laws, Chinese men were unlikely to cross the color line to cohabit and procreate with white women. During the early decades of Chinese migration, only the most affluent and powerful Chinese might dare to take a white wife or mistress.83 The linguistic and cultural isolation of the Chinese, their segregation in immigrant enclaves, and their vulnerability to deportation—all of these factors undoubtedly made affairs with white women an unlikely prospect, and Chinese men frequently remained childless bachelors. Indeed, even as late as the 1920s and 1930s, many Chinese men chose to remain single rather than intermarry. According to Los Angeles County marriage records for 1924— 1933, of the Chinese who married, only 23.7 percent had a non-Chinese spouse. Given that there were nine Chinese men for every two Chinese women at the time, the majority of Chinese men must have remained alone.84 Although there is little evidence that the Chinese pursued white women for sex and marriage, western states continued to threaten the immigrants with criminal prosecution under antimiscegenation laws.

Far from alleviating the problems of bachelor communities, Congress consistendy enacted immigration policies that worsened the gender imbalances. In 1875, the Page Law barred Chinese prostitutes from entering the country. Tough interrogation techniques were used to enforce the ban. In fact, the law was so intimidating that the number of Chinese women coming to the United States dropped by 62 percent between 1876 and 1882.85 Shortly after the Chinese Exclusion Act was passed, a federal court in 1844 held that Chinese women assumed the status of their laborer husbands and were barred from entry. Only the wives of lawfully domiciled merchants could enter the United States.86 Immigration laws were so effective in deterring family creation that, in 1890, only 8.7 percent of the Chinese in the United States were native born.87 Restrictive immigration policies coupled with antimiscegenation laws confirmed the sojourner’s status as a dehumanized and degraded laborer: “Permitted neither to procreate nor to intermarry, the Chinese immigrant was told, in effect, to re-emigrate, die out—white America would not be touched by his presence.”88

The only relief that the Chinese had from harsh immigration policies came with the 1906 San Francisco earthquake. Because official records had been destroyed, Chinese men claimed to be native-born citizens who could bring their wives from China to the United States. Between 1907 and 1924, ten thousand Chinese women entered the country. By contrast, before 1900, only slighdy more than forty-five hundred Chinese women lived in America.89 This loophole was closed in 1924 when Congress restricted entry of Chinese women to students and wives of clergymen, professors, and government officials.90 One year later, the U.S. Supreme Court upheld the law, even though it barred native-born Chinese from bringing their spouses to America.91 The Chinese themselves felt the bitter sting of the federal government’s efforts to restrict female immigration: “”We were beginning to repopulate a little now so they passed this law to make us die out altogether.”92

In contrast to the Chinese, Japanese immigrants were able to build same-race families in the United States. Although the Japanese also arrived as dekaseginin, or “men who go out to work,” they soon were converted to teiju, or “permanent residents abroad.”93 Arriving in California in the midst of anti-Chinese hysteria, the Japanese quickly concluded that sojourner status would subordinate and humiliate them. With the support of the Japanese government, the newcomers embarked on a strategy of settlement to ensure economic independence, social standing, and self-respect.94 Integral to this strategy was the immigration of Japanese women, who could help to build stable, self-sufficient families and communities. “When the United States moved to restrict immigrant labor from Japan, a 1908 “Gentleman’s Agreement” permitted Japanese residents to bring members of their immediate family to the United States.95 The agreement protected the Japanese from the hardships of bachelor communities. In 1905-8, 16 percent of Japanese immigrants were women, but by 1909—14, the proportion exceeded 50 percent.96 The ongoing arrival of Japanese women rapidly rectified gender imbalances in the immigrant community. In 1900, there were almost five Japanese men for every Japanese woman. By 1910, the ratio had dropped to 3.5 to 1, and by 1920, it was only 1.6 to 1. Moreover, nearly every adult Japanese female was married.97

Despite these important differences between the Chinese and Japanese immigrant experiences, both groups triggered anxieties about race- mixing. Fears associated with bachelor communities persisted for the Chinese, but the fears surrounding the Japanese arguably should have dissipated by the 1920s. The Japanese had built prosperous families and communities in the United States. Carefully screened by the Japanese government, immigrants arrived with higher rates of literacy and more material resources than their counterparts from Europe.98 A number of Japanese became entrepreneurs, running successful farms and small businesses. In addition to their economic accomplishments, Japanese immigrants were able to forge stable, same-race families due to the steady influx of women from their home country.

Because the Japanese represented the anomaly of nonwhites with material resources, however, their self-contained communities sparked conflicting anxieties about their sexual and marital proclivities among whites. Some whites concluded that the Japanese setdements were proof of the immigrants’ unassimilability and chauvinism. As one witness from California testified before the Senate Committee on Immigration in 1924:

[W]ith great pride of race, they have no idea of assimilating in the sense of amalgamation. They do not come to this country with any desire or intent to lose their racial or national identity. They come here specifically and professedly for the purpose of colonizing and establishing here permanently the proud Yamato race. They never cease to be Japanese. They have as little desire to intermarry as have the whites, and there can be no proper amalgamation, you will agree, without intermarriage. In Hawaii, where there is every incentive for intermarriage, the Japanese have preserved practical racial purity. . . .99

At the same time, the Japanese immigrants’ ability to establish farms and businesses raised fears that they would try to convert their economic success into sexual and marital privilege. One farmer worried that property and wealth would lead Japanese men to covet white wives with disastrous consequences:

Near my home is an eighty-acre tract of as fine land as there is in California. On that tract lives a Japanese. With that Japanese lives a white woman. In that woman’s arms is a baby. What is that baby? It isn’t Japanese. It isn’t white. I’ll tell you what that baby is. It is a germ of the mightiest problem that ever faced this state; a problem that will make the black problem of the South look white.100

Concerns about the Japanese immigrants’ sexuality were magnified by their integration into white schools and communities. Anti-Japanese propaganda warned that the Japanese were “casting furtive glances at our young women. They would like to marry them.”101

Despite widespread fears that prosperous Japanese men would prey on white women, the rate of outmarriage among first-generation Japanese, or Issei, was quite low. Los Angeles County marriage records between 1924 and 1933 indicate that of Issei women who married, only 1.7 percent wed non-Japanese men; of the Issei men who married, fewer than 3 percent had non-Japanese brides. This was the lowest rate of outmarriage for any racial group in the area. By comparison, of blacks who married, 11.3 percent had nonblack spouses, and of Chinese who married, 23.7 percent wed non-Chinese.102 Nor is there any evidence that the Japanese regularly evaded antiscegenation laws through extramarital affairs with whites that produced illegitimate offspring.

The self-sufficiency and success of Japanese communities presented a singular challenge in interpreting the significance of antimiscegenation laws. Although bans on intermarriage could be interpreted as an unequivocal mark of racial subordination for blacks and Chinese, the same was not true for the Japanese. By building prosperous, autonomous communities, Japanese immigrants appeared to be exercising the freedom to forge a separate but equal society in the shadow of racial restrictions. Confronted with a nonwhite population that defied easy categorization as inferior or dependent, whites could no longer assume that low intermarriage rates automatically signalled a diminished status. To preserve a sense of white superiority, the lack of Japanese—white relationships had to be attributed either to Japanese chauvinism or to thwarted sexuality.

The Filipino Experience: Not Compliance but Defiance

Although the Chinese and Japanese generally abided by restrictions on intermarriage, one group of Asian immigrants refused to accept race- based limits on their sexual and marital autonomy. Unlike other Asian immigrants, Filipinos arrived in the United States steeped in the American democratic tradition. Convinced of their entitlement to full personhood, Filipinos fought vigorously for the freedom to date and marry as they saw fit.

Filipinos arrived on the West Coast, particularly California, in the 1920s and 1930s.103 Like the Chinese, most Filipino immigrants were male: In 1930, there were 40,904 Filipino men but only 1,640 women. By 1940, of the Filipinos in the United States, there were still seven men for every woman.104 They, too, formed bachelor communities and sparked fears of miscegenation.105 Popular accounts portrayed the Filipinos as lascivious dandies with a taste for white women. One anti-Filipino spokesman described the immigrants as “little brown men attired like ‘Solomon in all his glory,’ strutting like peacocks and endeavoring to attract the eyes of young American and Mexican girls.”106 The president of the Immigration Study Commission warned of race-mingling between “Filipino coolie fathers and low-grade white mothers,” whose numerous offspring could become “a serious burden.”107 Sexual anxieties reached such a pitch that race riots broke out in 1930 when white men became angry at Filipino men who were socializing with white women.108

Filipinos reacted defiantly to efforts to control their sexuality. Unique among Asian immigrants, Filipinos arrived not from a foreign country but from an American territory. As a result, they had been educated in American schools, spoke English, and were familiar with American history and civics. They felt that their discriminatory treatment betrayed the ideals taught in their classrooms: “In school in the Islands we learn from the Declaration of Independence that all men are created equal. But when we get over here we find people treating us as if we were inferior.”109 Filipinos confounded their critics by reveling in their depiction as sexually powerful and threatening. In 1936, a San Francisco municipal court judge wrote in Time magazine that Filipinos “have told me bluntly and boastfully that they practice the art of love with more perfection than white boys.”110 The Philippine Resident Commissioner responded dryly: “[T]he Judge admits that Filipinos are great lovers.”111 Another Filipino wrote to Time that “We, Filipinos, however poor, are taught from the cradle up to respect and love our women. . . . If to respect and love womenfolks is savagery, then make the most of it, Judge. We plead guilty.”112

Filipinos in California strongly resisted the application of antimiscegenation laws. Most of California’s Filipino population resided in Los Angeles County. California forbade marriages between whites and Mongolians, but the Los Angeles City Council announced in 1921 that Filipinos were exempt because they were not Mongolian. Eight years later, the California attorney general issued a contrary opinion, concluding that the term Mongolian included Filipinos as well as Chinese and Japanese.113 Nevertheless, county clerks in Los Angeles continued to issue marriage licenses to Filipino—white couples.114 In 1930, a lawsuit was filed to force the clerks to cease issuing licenses to Filipinos who were marrying whites. When a superior court judge held that the California attorney general’s opinion was binding,115 the Filipino community reacted with outrage.116

Filipino leaders promptly spearheaded efforts to fight the decision. By 1931, four cases were pending in Los Angeles superior courts on the legality of Filipino–white marriages.117 Reversing itself after only one year, the superior court held that the term Mongolian did not include Filipinos. The California court of appeals agreed, affirming the lower court decision by a 3—3 vote. According to the court of appeals, the California legislature had not intended to cover Filipinos under the antimiscegenation law because anthropologists typically classified Filipinos as “Malays,” not “Mongolians,” and the legislature presumably had adopted this usage. Moreover, the original legislative debate was focused on Chinese, not Filipinos. The court added that the legislature could always amend the statute if it wanted to bar marriages between Filipinos and whites.118 The California legislature did not take long to act on this suggestion. Nine days before the court’s decision, a state senator introduced a bill that would amend the antimiscegenation statute to preclude Filipino-white marriages. Within a few months, California had adopted a new law to cover “negroes, Mongolians, members of the Malay race, or mulattoes.”119 The 1933 provision remained in effect until the California Supreme Court declared it unconstitutional fifteen years later.120

Faced with the ban on intermarriage, Filipinos did not concede defeat. Instead, they evaded California’s antimiscegenation law by leaving the state to marry. Efforts to close this loophole met with limited success. In 1936, a California court of appeals ruled that a Filipino-white marriage that took place in New Mexico was valid in California. In that case, a white woman sought to annul her marriage on the ground that her Filipino husband had falsely represented himself to be “of Spanish Castilian descent.” She testified that she would not have married him had she known he was Filipino because the marriage was illegal in California. The judge held that marriages between whites and Filipinos were legal in New Mexico, so “the ethnological status of the parties was not a ground of annulment.”121 In 1938, the California legislature passed a resolution calling on Utah to prevent whites and Filipinos from going there to evade the ban on miscegenation. Utah obliged by outlawing white–Filipino marriages that same year. Still dissatisfied, a California legislator introduced a bill to void interracial marriages that took place outside the state if they would be illegal in California. The bill died in committee.122

In addition to circumventing the law by going out of state, Filipinos married Mexican, Chinese, Japanese, and Eskimo women. In fact, most mixed couples in Los Angeles were Filipino–Mexican. There were some cultural affinities between Filipino immigrants and Mexican women because Spain had at one time colonized the Philippines. Consequently, many Filipinos spoke Spanish and were devout Catholics. Although Mexican-origin women were formally classified as white under California law, registrars seldom stood in the way of a marriage between a Mexican woman, particularly one who was dark skinned, and a Filipino man.123 The prevalence of intermarriage among Filipinos was so great that by 1946, over half of the immigrants’ children were biracial.124 Far from accepting their relegation to bachelor communities, Filipino immigrants drew on their familiarity with American law and culture to challenge the ban on intermarriage. Unlike the Japanese who relied on separate settlements, Filipinos invoked their rights to freedom and equality before the law. When Filipino demands for recognition of their full personhood failed, they asserted their autonomy by using loopholes to circumvent racial restrictions.

Conclusion

Although antimiscegenation laws were identical in form, they served different functions at different times and for different groups. In the colonial era and during the early years of nationhood, bans on intermarriage were critical to drawing the color line between indentured white servants and blacks. Once the color line was in place, the statutes became a way to enforce racial hierarchy by barring blacks from assimilating through marriage to whites. Interracial sex continued to occur on a widespread basis, but it did not threaten white identity and privilege because the one-drop rule classified any illegitimate offspring as black. Nor did the extramarital liaisons jeopardize white superiority since white men could have their way with black women, but black men faced severe sanctions for having sex with white women.

Asian immigrants were subject to harsh restrictions on intermarriage, although their racial identities already were clear from federal immigration law. The use of antimiscegenation laws to subordinate the Chinese was in some ways harsher than their use to subordinate blacks. Blacks could form same-race families, but Chinese men often remained single and childless for life because of the shortage of Chinese women. Although forced to live in bachelor communities, Chinese men did not cross the color line to procreate. Linguistically, culturally, and economically isolated, Chinese men were ill-equipped to pursue extramarital liaisons with white women. Their emasculation reinforced their powerlessness, even as they were portrayed as sexually degraded and lascivious. The penalties for whites who became involved with the Chinese also were in certain respects more severe than for those who became involved with blacks. Although a white spouse in a black-white marriage remained white, American women who wed Chinese immigrants were stripped of their nationality, thereby taking on some of their spouses’ unassimilable, alien qualities.

Enforcing racial subordination was particularly critical where the prosperous Japanese were concerned. The ability of Japanese immigrants to build stable, successful businesses, families, and communities threatened a sense of white superiority. In response, nativists insisted that the Japanese could not assimilate through naturalization or intermarriage, whatever their personal accomplishments. At the same time, though, nativists feared that Japanese racial pride made them spurn assimilation to a white way of life. While intermarriage remained a daunting prospect, the possibility that the Japanese might choose to remain a separate people also threatened white superiority. Just when proof of racial subordination was most urgently needed, antimiscegenation laws could no longer offer unambiguous evidence of white desirability and unattainability.

Although the Chinese and Japanese generally complied with antimiscegenation laws, Filipino immigrants defied the statutes. Rather than simply evade the restrictions through illicit liaisons, Filipinos demanded the right to cross the color line to date and many women of their choice. Explicitly linking their masculinity to romantic and marital freedom, Filipinos were unwilling to forgo intimacy as the price of admission to the American workforce. Though economically marginal, Filipinos were not hampered by the linguistic and cultural isolation that doomed the Chinese to perennial bachelorhood. Often able to communicate in English and aware of American political ideals, Filipinos had a well- developed sense of democratic entitlement and acted on it. Their collective, confrontational approach to restrictions on sexual and marital freedom is unique in the annals of antimiscegenation law.

NTERRACIALISM

Black-White Intermarriage in

American History, Literature, and Law

Edited by

Werner Sollors

OXFORD

UNIVERSITY PRESS

2000

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stored in a retrieval system, or transmitted, in any form or by any means,

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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.

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 memoriam

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, he 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 bom, 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 return together or at the same time” for twenty-five years.

Hernandez v Robles New York County Clerk’s Index No. 103434/2004 Part 2

Appendix 2

Interracial

Intimacy

NTERRACIALISM

View Original PDF