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Teresa Zackodnik - Fixing the Color Line: The Mulatto, Southern Courts, and Racial Identity - American Quarterly 53:3 American Quarterly 53.3 (2001) 420-451

Fixing the Color Line:
The Mulatto, Southern Courts, and Racial Identity

Teresa Zackodnik
University of Alberta

In July 1857 Abby Guy sued for her freedom and that of her four children in an Arkansas court. The court records state that Abby Guy had been supporting herself and her children by farming and selling her own crops. The Guy family "passed as free persons": Abby's oldest daughter "boarded out" so that she could attend school, and the family "visited among white folks, and went to church, parties, etc.,--[such that one] should suppose they were white." 1 Following these accounts of where and how the Guys lived, the court required that the family be presented for physical inspection by the jury, which was to base its decision of whether Abby Guy and her children were black or white, slave or free, on their appearance as well as on any testimony offered: "Here the plaintiffs were personally presented in Court, and the judge informed the jury that they . . . should treat their . . . inspection of plaintiffs' persons as evidence." 2 Following their evidentiary "inspection" of the Guy family, the jury was told that the Guys had lived as "free persons" in Arkansas since 1844. In 1855 they moved to Louisiana where a Mr. Daniel "took possession of them as slaves" roughly two years later, claiming that Abby Guy "came with . . . [him] from Alabama to Arkansas" as his slave. 3 Witnesses for Daniel testified that Abby's mother, Polly, was said to have been "a shade darker than Abby," such that they "could not say whether Polly was of African or Indian extraction." 4 Determining Abby Guy's status and race solely according to her complexion and that of her mother was complicated by the fact that neither woman's complexion was considered white, nor could they be said to be of either African or Native American descent. Consequently, the nature and degree of Abby Guy's "otherness" as [End Page 420] focused through the lens of "blackness" became the issue in this case; investigating how black Abby Guy was, not how white or "Indian," became the first step in containing the threat she posed. A Dr. Newton was then called to testify on Abby Guy's behalf and, in an attempt to clarify racial distinctions, he cited additional bodily evidence: "[T]he hair never becomes straight until after the third descent from the negro. . . . The flat nose also remains observable for several descents." Daniel countered this testimony by introducing his father's will which "devised Abby as a 'negro girl slave' to his daughter . . . bill of sale . . . 1825, conveying to him, for . . . $400 . . . 'one negro girl named Abby, thirteen years old.'" 5 Testimony apparently ended here, and the judge then gave the jury the following instructions:

If the jury find . . . that the plaintiffs had less than one-fourth of negro blood in their veins, the jury should find them to be free persons upon that fact alone--it being prima facie evidence of freedom--unless defendant . . . had proven them to be slaves. . . . If . . . less than one-fourth negro, . . . . defendant can only prove them to be slaves, by proving . . . that . . . plaintiffs are descended from a slave on the mother's side, who was one-fourth negro or more. 6

The jury found in Abby Guy's favor, and the judge ordered that she and her children "be liberated."

However, Abby Guy's freedom did not go uncontested by Daniel; he appealed the verdict, and upon appeal Justice C.J. English reversed the initial decision. The basis for his reversal was the legislature's interpretation of the term mulatto in the Arkansas act regulating suits for freedom. He argued that rather than adhering to the act's definition of a mulatto as "a person . . . not full negro, but one who is one-fourth or more negro," the legislature had "manifestly used the word in a more latitudinous sense, . . . . they meant to embrace . . . persons belonging to the negro race, . . . . of an intermixture of white and negro blood, without regard to grades." 7 Four years later, in January 1861, Abby Guy again sued Daniel for her freedom, and again the court required that she and her children be physically examined in order to decide their race. Abby and her children were "permitted" to remove their shoes and stockings, and to "exhibit their feet to the jury." 8 Apparently this evidence satisfied the jury who ruled in Abby Guy's favor; Daniel's subsequent motion for a new trial was overruled. When Daniel filed for appeal, the 1861 judgement was affirmed by the court of appeals on the following grounds: "Physicians, whose testimony was introduced, . . . [End Page 421] state that the color, hair, feet, nose and form of the scull [sic] and bones, furnish means of distinguishing negro . . . descent. . . . No one, who is familiar with the peculiar formation of the negro foot, can doubt, that an inspection of that member would ordinarily afford some indication of the race." 9

The court records that chronicle Abby Guy's tenuous liberty also reveal competing notions of race that hinge on a tension between appeals to the corporeal as the site of verifiable "quantities" and "expressions" of blood indicating one's racial identity and notions of race appealing to the social. Far from securing an unwavering and strict color line, as we might expect in a racially stratified South whose economic and social order we understand as historically dependent upon a clear distinction between white and black, southern conceptions of race were at best varied and, more often than not, contradictory in ways that were not, in fact, unique to the South alone. In Abby Guy's suit for freedom, race was biological, transmitted by blood, diluted by its mixture to quantifiable fractions, and expressed by such physical characteristics as kinky hair, flat noses, and the distinctive "negro foot." However, this same case illustrates that race was also social--a matter of reputation, personal conduct, and association. Moreover, in this case race was simultaneously a matter of fractional degree as legislated by the state and interpreted by Justice English as an absolute distinction between "pure" whiteness and the one drop of "negro blood" that signified blackness. For years, amidst these contradictions and interpretations, both literal and latitudinous, the Guys' liberty was never secure. Abby Guy's suit for liberty and similar cases heard in southern courts in which racial identities and commensurate social status were decided are instructive in tracing the contest over, and contradictions imbedded in, not only Southern notions of race but also those operative across the nation. Although the Guy family lived in their community in a manner that caused their white neighbors and acquaintances to "suppose they were white," a single man's claim that they were his property immediately altered their status and identity from white to black, free to enslaved. And while Abby Guy was clearly neither white nor black, the corporeal challenge she and other "mulattos" posed to a social system built upon this racial binary caused the courts to marshal contradictory notions of race in order to silence and subsume such threats. Contained within these deliberations of the mulatto's racial identity was a reaffirmation of whiteness as an "original," "natural" state of being [End Page 422] against which difference was repeatedly asserted as degrees of deviance. The courts did not codify whiteness directly, but as they debated the boundaries of what they considered to be blackness, they policed and enforced the limits of whiteness.

Critical race theory has tended to focus on miscegenation law in its examination of how "mixed-race" individuals have threatened, yet ultimately come to be contained by, racial definitions designed to secure whiteness as an untainted and inviolable identity. As a result, much critical race theory that considers "the mulatto" is also part of a larger trend interrogating whiteness as regulated property and privilege. 10 Cheryl Harris's "Whiteness as Property" is one such example and a key contribution to the field, in which she argues:

The state's official recognition of a racial identity that subordinated Blacks and of privileged rights in property based on race elevated whiteness from a passive attribute to an object of law and a resource deployable at the social, political, and institutional level to maintain control. . . . Whiteness as the embodiment of white privilege transcended mere belief or preference; it became usable property, the subject of the law's regard and protection. 11

However, a focus on miscegenation statutes and suits for divorce or annulment that appealed to them has produced misleading assertions regarding the ways in which race was conceived and deployed and in what contexts. Race in American courts and the popular imagination was a far more complex and shifting concept than these studies suggest. While courts were recognizing whiteness as privilege and property, they were far from uniformly concerned to regulate its "transfer" and "enjoyment" only amongst those biologically determined to be white. Moreover, our inquiry into whiteness and blackness as constructed in and through judicial decisions should not be largely confined to cases concerning the marriage contract and miscegenation, as though "miscegenation laws" alone "formed a virtual road map to American legal conceptions of race." 12 Instead, judges and juries determined racial identities by appealing both to the corporeal or biological and to the social in contexts ranging from one's ability to testify in court or to attend a particular school to the taxes one was assessed and one's freedom from enslavement.

I focus on the mulatto in order to suggestively complicate and extend our understanding of race and its attendant distinctions between whiteness and blackness beyond the statutory regulation of miscegenous relationships and their threat to whiteness as property to individual [End Page 423] nineteenth-century cases that were much more uneven in the allocation of whiteness as privilege. I will argue that this uneven or shifting understanding of whiteness turns on a significant tension between race as essentially biological and contingent upon the social as marked by reputation, social associations, and status. While we might be invested in an understanding of the judicial as the rule of law or the rational expression of objective and just determinations that rise above the social that it governs, these cases chronicle decisions that neither simply reflect "objective" determinations of race nor their subsequent public consumption as such. Rather they show us a judiciary mired in notions of race circulating in the popular imaginary of its present and actively constructing "whiteness" and "blackness" in ways that ensured their circulation as "the real" however contradictory or unstable those constructions might be. By focusing on these tensions between race as biological and social, between the public's view of the judiciary as rational or objective and its deep implication in what it ostensibly "observed," I will work to suggest how the law is able to "create and maintain" racial identities rather than simply remarking that it does so. Consequently, this paper also aims to take up Ian Haney López's call in White by Law: "Despite the spreading recognition [in critical race theory] that law is a prime suspect in the formation of races, however, to date there has been no attempt to evaluate systematically just how the law creates and maintains races." 13

I am here particularly concerned with the way in which the "margins" of race become bodily manifest in the figure of the mulatto, such that this figure is repeatedly called to function as a racial borderland that delimits both whiteness and blackness. Though social relationships in America were everywhere miscegenated since the arrival of the first Dutch slaver and enslaved Africans in the colonies, courts of law have attempted to clarify and regiment those relationships in order to preserve a distinction between white and black. As I will document, these distinctions were initially a matter of spirit; in other words, colonists originally evoked distinctions between "heathens" and "Christians" in order both to mark themselves off from Native and African Americans and to invest those distinctions with a divine authority that worked to naturalize race. That initial focus on spirit arguably recurs in a later focus on morality and moral legitimacy as the mulatto's "predisposed" acts and behaviors become a focus and already open the door to race as contingent upon the social. Turning to specific cases that [End Page 424] cluster at the turn into the twentieth century, we then see cases reading racial identity in and through social reputation and association. Repeatedly, however, legal decisions that fixed the mulatto's identity as black also appealed to a notion of race as naturalized by invoking bodily differences like complexion and fractional quantities of black "blood" and thereby reading the biological as "fact." Yet in this pursuit of a burden of proof in the body, American courts frequently confronted an "illegible" body that would not "tell" in acts or appearance with any reliability. David Theo Goldberg has argued that appeals to the body as "unproblematically observable" have established an "underlying . . . unity for the discourse of race." 14 Such notions of race as figured bodily are based, for Goldberg, on the equation of the body as "a 'bounded system,' a system the boundaries of which are formed by skin," with the body politic that "is constituted always in terms of the bordered criteria of inclusion and exclusion, identities and separateness, (potential) members, and inevitable nonmembers." 15 When the body politic is no longer assured of an "unproblematically observable" body in which to read race, we see a tension emerging in conceptualizations of race as discernible in the body's hidden interiors and their external expression or as evident in the social reputation and associations of individuals whose racial identity had come under question. I would argue, then, that while the courts persisted in attempting to consider both the biological and the social in their deliberations from the mid-nineteenth century onward, the variable rulings they produced resulted in larger contradictions that voice an emerging tension between two very different understandings of race. The mulatto's threat is perhaps most evident in the court's inability to address questions of racial identity with any consistency and in the schism that develops in conceptualizations of whiteness and blackness: we see a judiciary attempting to naturalize racial differences through appeals to the body even while it simultaneously acknowledges the social construction of race by subsequent appeals to common knowledge and reputation.

Denials and Deferrals

Varied judicial decisions and the contradictory notions of race legitimated through them are neither accidental nor benign but are rather the result of attempts to manipulate what Pierre Bourdieu, in [End Page 425] "The Force of Law: Toward a Sociology of the Juridical Field," calls "the law's elasticity":

To varying degrees, jurists and judges have at their disposal the power to exploit the polysemy or the ambiguity of legal formulas by appealing to such rhetorical devices as restrictio (narrowing), a procedure necessary to avoid applying a law which, literally understood, ought to be applied; extensio (broadening), a procedure which allows application of a law which, taken literally, ought not to be applied; and a whole series of techniques like analogy and the distinction of letter and spirit, which tend to maximize the law's elasticity, and even its contradictions, ambiguities, and lacunae. 16

Bourdieu reminds us of what we seem to take as less than obvious, that juridical sites and texts--laws, judgements, trials, briefs--reveal a larger social struggle for knowledge as power however much we might invest them with an ability to rise above such interests: "Thus the trial represents a paradigmatic staging of the symbolic struggle inherent in the social world. . . . What is at stake in this struggle is monopoly of the power to impose a universally recognized principle of knowledge of the social world--a principle of legitimized distribution." 17 Or, as Patricia Williams puts it in The Alchemy of Race and Rights, "[t]he word of law, whether statutory or judge-made, is a sub-category of the underlying social motives and beliefs from which it is born. It is the technical embodiment of attempts to order society according to a consensus of ideals." 18 However, Bourdieu argues that a key aspect of "the force of law" is our investment of the judicial system with an objectivity and impartiality that masks the very power struggles acted out and contained within it: "[T]he system of juridical norms seems (both to those who impose them and even to those upon whom they are imposed) totally independent of the power relations which such a system sustains and legitimizes. . . . It thus legitimizes victories over the dominated, which are thereby converted into accepted facts." 19 For my purposes, what is most important about this ethical, logical and objective quality acquired by juridical acts is that it enables the law not only to render local decisions regarding personal liberty, status, tax exemption, but also to construct and legislate identities as though it were simply "observing" them in the "evidence" presented.

The kind of deferral or denial of the judicial system's constitutive acts that Bourdieu speaks to is present in the first colonial statutes designed to regulate miscegenous relationships. The first American legal records that specifically deal with race are the colonial laws in [End Page 426] which the term mulatto, so open to contestation in Abby Guy's suit, first appears in a Virginian ruling of 1644 decreeing that "'A Mulatto named Manuel' was to be a slave." 20 While this ruling indicates that people of biracial descent were living in the colonies by at least the mid-seventeenth century, there was no attempt to legally determine the status of so-called mulatto children until 1662. 21 In the same year, Virginia enacted its first anti-miscegenation law and repealed the long-standing English law of descent: "'Whereas some doubts have arisen whether a child got by an Englishman upon a negro should be free or slave, be it therefore enacted by this present grand assembly, that all children born in the country shall be bound or free according to the condition of the mother.'" 22 However, it would rapidly become clear to white Virginians that this proclamation required revision in order to exclude all mulattos from whiteness and its attendant freedoms and privileges, since this Act did not take into account the status of children of white mothers and black fathers. Maryland recognized earlier than Virginia the "threat" to established order involved in allowing mulatto children of white mothers to be free and moved in its anti-miscegenation Act of 1663 to enslave these children: "'And forasmuch as divers freeborn English women . . . do intermarry with negro slaves, . . . all the issue of such free-born women, so married, shall be slaves as their fathers were. . . . And be it further enacted, that all issues of English, or other freeborn women, that have already married negroes, shall serve the master of their parents, till they be thirty years of age and no longer.'" 23 In 1664 Maryland became more punitive, ruling that white women bearing the children of slaves must serve "the masters of their husbands during the lifetime of the husband, and that the 'Issue of such freeborne wommen soe marryed shall be Slaues as their fathers were.'" 24

Nearly thirty years later, Virginia colonists believed it necessary to publicly denounce these children, who were already deemed the illegitimate offspring of an illegal union and bound out as punishment for their parents' transgressions, declaring them in one statute "'that abominable mixture and spurious issue'" 25 and then in another "banish[ing] . . . from the dominion forever" 26 any white man or woman who violated the anti-miscegenation statute. Virginia developed by far the harshest punitive laws regarding miscegenation, not only enslaving the biracial children of female indentures servants for thirty years but also providing for the control and discipline of future generations: "Where any female mulatto, or Indian, by law obliged to [End Page 427] serve [']til the age of thirty or thirty-one years, shall during the time of her servitude, have any child born of her body, every such child shall serve the master . . . until it shall attain the same age the mother of such child was obliged by law to serve unto." 27 The colonists not only drew a color bar that assigned "deviance" to the other side, but they also defined blackness as the site of an abjection that could "contaminate" whites who entered into interracial relationships and would result in their exile from the colonial family. With its stress on "abominable mixture and spurious issue," the Virginia assembly sought to represent this guarding of racial borders as motivated by neither political, economic, nor psychical concerns. Rather, couched as it was in religious rhetoric, the protection of white "purity" was represented as divinely ordained. In messianic form, the deity--not the Virginia Assembly--called for the weeding out and punishment of all that was "abominable" and "spurious." 28

The colonies established freedom as a privilege attendant solely upon whiteness, and by the early eighteenth century, Virginia and Maryland had enforced a racial distinction that would be upheld in most of America. These early acts established a binary opposition of black to white through a corresponding relegation of status--only whites were free, all "others" were bond. 29 And since in 1667 Virginia had established an act deeming "black or graduated shades thereof" as the mark of slavery, all subsequently enslaved mulattos were effectively black by virtue of their status and complexion--any middle ground between white and black was legislated out of existence. 30 However, as James Johnston documents, by the late 1700s African Americans so light-skinned they appeared to be white proved the failure of these anti-miscegenation controls: "A traveller in 1788 reports, 'I saw in this school a mulatto; one eighth a negro; it is impossible to distinguish him from a white boy. . . . In 1783 another observer reports that in Maryland, 'there were female slaves, who are now become white by their mixture.'" 31 The mulatto as tabooed figure on the American racial scene named not only the failed control of "illegitimate" racial mixing but more importantly threatened to expose the tenuous nature of whiteness. Despite repeated and complicated attempts to codify the mulatto's identity as black, individuals who were neither white nor black--but were, in fact, both--continued to threaten "cultural equilibrium" by unsettling the authority and stability of whiteness. Silencing this disruption by codifying the mulatto as black [End Page 428] moved to define borders and secure a color line, even while it acknowledged the impossibility of conceiving of race as a natural, closed, black-white binary. This silencing speaks volumes, then, about the production of racial identities through juridical acts that were ostensibly observing the "natural."

Moral Legitimacy as Normative Logic:
Silencing the Mulatto's Whiteness

White southerners rather quickly sought to shift responsibility for all "transgressions" resulting in this "spurious issue," mulatto children, to the servant class. Not only were African Americans "savages" obeying what were believed to be the instinctual forces that white Americans attempted to deny in themselves, but to the servant class was also imputed a life of "uncontrolled desire." In a 1717 South Carolina statute entitled "An Act for the better Governing and Regulating White Servants," children of inter-racial relationships were "condemned to servitude for the 'indiscretions' of [their] parents." 32 It continued to be popular among white Americans "theorizing" about the character and characteristics of the mulatto to argue, as Edward Reuter did in The Mulatto in the United States (1918), that mulattos were the result of relationships between "the outcast classes" of "the advanced race" and "the women of the inferior race." 33 If the "outcast classes" could not be blamed, whites could always appeal to a veritable lore detailing the "lascivious" sexuality of black women who, it was said, "everywhere seek sex relations with the men of the superior race . . . [and] feel honored by the attention of the higher class of men." 34

In part, bourgeois white sexuality came to be defined over and against images of the over-sexualized African American woman, but "bastardizing" the mulatto further served to criminalize black sexuality and reify white sexuality. 35 I would argue that the disruption posed by the mulatto's racial illegitimacy as neither white nor black, then, was neutralized to a certain extent by this concentration on issues of moral legitimacy. In "Interstices: A Small Drama of Words," Hortense Spillers has argued that both the asexed black bondswoman, whose labor served to masculinize her, and the over-sexualized black female, whose sexuality white men were powerless to resist, marked the boundaries of sexuality in antebellum American culture: [End Page 429]

Those outside the circle of culture . . . were robbed of legitimate sexual being and, to that degree, defined the point of passage between inner and outer. . . . The black American female, whether whore or asexed, serves an analogous function for the symbolically empowered on the American scene in fixing the frontier of "woman" with her own being. . . . [L]ife as the black person--female or male--leads it is the imagined site of an illegitimate sexuality. 36

For the black woman, the consequence of embodying a sexual borderland between sanctioned and illegitimate sexuality was the enduring legacy of an absence of sexuality, argues Spillers: "[T]he black female is, if anything, a creature of sex, but sexuality touches her nowhere. . . . [T]he black woman disappears as a legitimate subject of female sexuality." 37 The mulatto, however, functioned as a sort of zero limit of sexuality and morality. If the black woman was called to delineate a borderland in which legitimate sexuality was an impossibility for her, the mulatto as the product of inter-racial relationships under interdict proved doubly outlawed in American culture.

Dorothy Sterling's account of the system of plaçage in operation in antebellum Louisiana illustrates the way in which the mulatto acquired a different sort of sexuality in the South than Spillers ascribes to black women generally:

Slaves selected for their grace, beauty and light skins were shipped to the "fancy-girl markets" of New Orleans and other cities. . . . A plaçee, light skinned, well educated, chaste, was introduced to society at one of the famed quadroon balls, where attendance was limited to white gentlemen and free women of color. When her charms attracted a "protector," a period of courtship followed. The maman and protector signed a formal contract stipulating the support she and her future children could expect. . . . Her sons were taught a trade, while her daughters were trained to be the belles of future quadroon balls. 38

Monique Guillory notes that many of the unions resulting from the plaçage system "were as exclusive and lasting as legitimate marriages" with children "often recognized and named for their European fathers." 39 However, the white male's recognition of his plaçee as "wife" had its limits, especially when it came to admitting his biracial children into the full rights and privileges of the Louisiana aristocratic family: "[N]umerous cases were heard in the New Orleans courts in which whites contested and blacks demanded inheritance rights. . . . [F]ew free people of color won any of these cases." 40 Higher prices for mulatto slaves and the plaçage system were the consequences of a [End Page 430] white male belief that mulattos sought their attentions whether enslaved or free: "It was thought that a rather large proportion of the free colored females, particularly free mulattos, were unchaste." 41 Paradoxically, the mulatto's chastity was a commodity that held good only long enough to attract a buyer. In such cases we see the mulatto's body at once marking the limits of both lascivious sexuality and moral purity. Karen Sánchez-Eppler argues that "traditional notions of female purity attach . . . to the body--in its vulnerability to rape or enforced concubinage." 42 Since those "traditional notions" of vulnerability were race-specific and "attached" to a white skin, the mulatto's body has been read in two directions simultaneously: her fair skin signals notions of chastity, purity, and delicacy, but within that same body is believed to flow a "tainted" blood that carries the so-called traits of a wanton sexuality. These conflictual readings cohere in the mulatto as a figure of womanhood rendered sexually available, of chastity as a commodity that is valued precisely because it is presumed impossible to violate. The very qualities that might guarantee her the protection of respect as a morally chaste woman would have attracted a southern aristocrat excited by the paradox of an enslaved courtship. Even as she fixes the frontier of legitimate sexuality, arguably the mulatto's signal difference is that she has also been believed to contain the border between sanctioned and outlawed sexuality within her very person and readable if not on her body's surface then in its "tainted" interiors.

We might also read such an attention to morality in the construction of the mulatto operating in similar ways to fix not only the borders of sexuality but those of race itself, so that whatever disruption to a racialized social order this figure threatens is contained through a repeated silencing and exile. We would be mistaken to believe that these notions of moral illegitimacy circulated only within the popular imagination and not within courts of law. As the illegitimate offspring resulting from immoral and unsanctioned relationships, the mulatto was relegated to the periphery of the "normative." While the mulatto might have been an outcast as some sort of moral limit case, this figure was also called to occupy a mediating position through which the boundaries of race were marked and delimited. Significantly, as the immorality surrounding the mulatto figure was voiced, the mulatto's whiteness was denied and silenced through a socially sanctioned racial designation as black. Consequently, even though the mulatto represented a corporeal manifestation of the constructedness of race that [End Page 431] revealed, as Henry Louis Gates, asserts, that "the concepts of 'black' and 'white' . . . are mutually constitutive and socially produced," white Americans worked to foreclose such a challenge by labelling the mulatto a "bastard." 43 Any suggestion that race was not a stable and uniform entity was thereby silenced and exiled to the borders of civilized or moral society. These appeals to morality, then, were designed to outlaw the mulatto and to make her a figure through which boundaries between white and black were repeatedly, though silently, secured. Such moral appeals are, for Bourdieu, integral to the power of the law, although they often go unacknowledged as such: "It appears to partake both of the positive logic of science and the normative logic of morality and thus to be capable of compelling universal acceptance through an inevitability which is simultaneously logical and ethical." 44

The Body as Readable Text: The Mulatto's Blackness

Specifically, in the case of judicial decisions regarding the mulatto's racial identity, the dual logic of morality as a register of the social and science as "objective" or factual were repeatedly grounded in the body so that two rather different understandings of race appeal to the same ostensibly readable text. This construction of the mulatto as a corporeal text of racial and sexual frontiers is part of a historical attempt to define who is black and who is white through appeals to the body that rely upon an individual's acts, physical appearance and "blood." Significantly, what seems to be the first colonial law decreeing that one's color is evidence of one's status as free or bond arises from the contradiction baptised African American slaves embodied for colonists who believed bondage was an appropriate condition for "heathen" and "savage" races. Helen Catterall notes that upon passing the Virginia Act of 1667, "baptism ceased to be the test of freedom and color became the 'sign' of slavery: black or graduated shades thereof. A negro was presumed to be a slave." 45 This act documents the colonists' desire to define themselves through opposition to growing numbers of people of color in the colonies during the seventeenth century. Winthrop Jordan locates key changes in the colonists' terminology in the late 1600s: "From the initially most common term Christian, at mid-century there was a marked shift toward the terms English and free. After about 1680, taking the colonies as a whole, a new term of self-identification appeared--white." 46 The rationale for skin color as proof of freedom or [End Page 432] enslavement became entrenched rather quickly and reached out of the South; by "1709 Samuel Sewall noted in his diary that a 'Spaniard' had petitioned the Massachusetts Council for freedom but . . . 'Capt. Teat alledg'd that all of that Color were Slaves.'" 47

The move by white colonists to devise color as "the sign of slavery" after slavery had been instituted foregrounds a retrospective imagining that race is "natural" through what Colette Guillaumin calls "the system of marks." Guillaumin notes that such a "system of marks" accompanies the "social cleavages" for which it is only later called to function as cause: "the mark followed slavery . . . and [was] advanced as if 'being black' existed in itself, outside of any social reason to construct such a form, as if the symbolic fact asserted itself and could be a cause." 48 Moreover, when color was recognized to be an unreliable racial "mark" with growing numbers of "fair-skinned" African Americans, blood was evoked as a further natural division between white and black. We see a development, then, from relying on the body as a text of visible difference to reading the unseen in that body's genealogy or "blood kin" that "verified" fractional quantities of blackness. As the end of the eighteenth century approached, the distance between white and black in America widened. In 178 5, Virginia legally defined "a Negro as a person with a black parent or grandparent, a definition generally adopted at that time in the upper South." 49 Until 1785, a mulatto could possess up to one half "African blood," but with this law's enactment all persons possessing one quarter African blood or more were considered "Negroes" and presumed to be slaves. The statutes that defined one's "blackness" and caused one to be presumed a slave became the "observation" of the color line "nature" had created. Presumption of slavery "arising from color" or "color as prima facie evidence of slavery," as this rationale appeared in legal records, held sway into the nineteenth century indicating that the white American mind was long occupied with what W. E. B. Du Bois has called "grosser physical differences." The white American belief that "blood will tell" in some way or another was fed by the rapid development of "scientific" racial theories through the nineteenth century, and upheld by so-called "experts," to create an atmosphere in which individuals like Abby Guy and her children could be physically inspected in order to discover tell-tale signs of African blood. Statutes like Virginia's in 1785 and subsequent rulings through the nineteenth century show a judiciary informed by and working in concert with the emerging [End Page 433] racialist sciences and illustrate what Robyn Wiegman calls the "begin[ning of a] . . . break with the assurance of the visible, . . . to craft interior space, to open the body to the possibilities of subterranean and invisible truths and meanings." 50 The practice of determining racial identity by means of physical inspection of "externals," however, continued in some states into the 1920s, as Charles Mangum documents in The Legal Status of the Negro:

Where . . . the racial identity of a child is in question, that child may be exhibited to the jury (California 1923; Nebraska 1919). Furthermore, photographs of any one of the kinsmen of the person involved whose relationship is sufficiently close are admissible (Alabama 1928; Virginia 1914), and the same is true of a crayon portrait . . . (Federal Court case 1917). Evidence that such persons have kinky hair or some other peculiar characteristic of the Negro is also competent (Alabama 1928). 51

Not only were externals invoked as the way blood "tells" and simultaneously regarded as unreliable with preference given to those unseen interiors, but the turn to "experts" in the course of appealing to race as biologically registered opened up further contradictions. The southern definition of an "expert" on racial identity was rather loose, to say the least, as this North Carolina case illustrates. In State v. Jacobs, a man named Jacobs was indicted in June of 1859 "as a free negro, for carrying fire-arms." Jacobs was convicted, and the judgment was affirmed by Justice Battle upon appeal, based on "the testimony of an expert." This "expert" was a man named Pritchett, who by virtue of his occupation as "a planter, an owner and manager of slaves . . . [for] more than twelve years . . . was well satisfied that he could distinguish between the descendants of a negro and a white person, and the descendants of a negro and Indian . . . [and could] also say whether a person was full African . . . or had more or less than half . . . African blood in him. . . . [Pritchett] stated his opinion that the defendant was . . . a mulatto." 52 Peggy Pascoe situates this preference for "the opinion of the 'common man'" as a distinctly early twentieth-century phenomenon that resulted when judges sought to avoid the "heated" debates over biological or scientific determinations of racial identity growing with the rise of a culturalist challenge led by figures like Franz Boas. 53 However, we see in State v. Jacobs that an individual's social position and "vocation"--planter and manager of slaves--qualify him to become an "expert" for the purpose of offering determinations of blood, its quantity, and its expression based solely on his daily "experience" with slaves rather [End Page 434] than on any "scientific" knowledge. As early as the mid-nineteenth century, the distinction between expert or common man was becoming as muddied as that between race as visibly manifest in the body's externals or hidden in its interiors.

What Text Will Tell? Growing Tensions
Between the Corporeal and the Social

Cheryl Harris asserts that the law's "allocation of race and rights . . . relied on bounded, objective and scientific definitions of race," especially blood, through the nineteenth and into the mid-twentieth century. 54 She goes on to argue that social reputation was uniformly regarded as secondary to rules of hypodescent:

In adjudicating who was "white," courts sometimes noted that, by physical characteristics, the individual whose racial identity was at issue appeared to be white and, in fact, had been regarded as white in the community. Yet if an individual's blood was tainted, she could not claim to be "white" as the law understood, regardless of the fact that . . . she may have . . . lived as a white person. . . . Although socially accepted as white, she could not legally be white. Blood as "objective fact" dominated over appearance and social acceptance, which were socially fluid and subjective measures. 55

However, from the early nineteenth century until as late as 1938, we repeatedly find legal decisions regarding racial identity in which this simply is not the case. During the first half of the nineteenth century, southern courts increasingly questioned whether "the African color" alone was sufficient proof of one's race, a question that other states soon took up. Moreover, this uncertainty often caused conflicting rulings on racial identity between courts within the same state during the same period. Although Gobu v. E. Gobu (1802), a case centering on the contested liberty of a free person of color, had reaffirmed in North Carolina the long-held assumption that a black complexion was a sign of slavery and a complexion indicating admixture was not, 56 four years later, in the District of Columbia, public conduct and reputation were said to outweigh color. In Minchin v. Docker (1806): "Charles Cavender, a black man, was admitted to testify . . . after witnesses had testified that Charles had acted publicly for eleven years as a free man and was generally reputed as such. Duckett, Circuit Judge, said that . . . although color is prima facie evidence of slavery, yet the fact that the witness had, for a long time, publicly acted as free, turned the presumption the [End Page 435] other way." 57 However, the members of the District of Columbia bench were by no means in complete agreement on this point, for in 1811--just five years later--color was evoked as the sole deciding factor in an African American man's suit for "assault, battery and false imprisonment." The decision in Bell v. Hogan held that "if a colored man was born a slave, his being permitted to go at large . . . and to act as a free man, was no evidence of his being free . . . The plaintiff's color . . . justified his being taken up under suspicion of being a runaway." 58

From 1819 through the 1840s, New Jersey, Ohio, South Carolina, Delaware, and the District of Columbia held that "color was sufficient" to decide an individual's race and status. Yet in May 1835, a judge hearing State v. Cantey in South Carolina was required to rule on the race of several men who were presented as witnesses, since only whites could testify against whites in an American court of law. The genealogy of these men was submitted to the court "proving" that they had "one-sixteenth part of African blood"; however, they were also said to be "respectable, . . . received into society, and recognized as white men." 59 Their testimony was deemed admissible, and the presiding judge ruled that "if . . . the person has been received . . . as white, although there may be proof of some admixture . . . yet such a person is to be accounted white." 60 The case was appealed on the grounds that as men of color, their testimony was inadmissible. The court of appeals unanimously dismissed the motion for a new trial with Justice Harper arguing that the witnesses in this case must be regarded as white men:

We cannot say what admixture . . . will make a colored person. . . . The condition . . . is not to be determined solely by . . . visible mixture . . . but by reputation . . . and it may be . . . proper, that a man of worth . . . should have the rank of a white man, while a vagabond of the same degree of blood should be confined to the inferior caste. . . . It is hardly necessary to say that a slave cannot be a white man. 61

Eight years later in South Carolina, a case deciding the race of Thomas, John, and Harry Johnson for taxation purposes evoked a similar type of reasoning. Although the Johnsons' great grandfather was "a colored man," the judge in Johnson v. Boon (1843) instructed the jury to give reputation at least as much weight as they would genealogy: "'Color . . . ought to be compared with all the circumstances . . . and if the jury were satisfied that the color, blood, and reception in society, would justify them in rating the relators as free white men, they had a right to do so. . . . [W]hen men had been acknowledged as white men, and [End Page 436] allowed all their privileges, it was bad policy to degrade them to the condition of free negroes.'" 62 The jury "very properly" found the Johnsons to be white men and exempt from the taxes to which free persons of color were subject. These rulings reveal that considering reputation alongside genealogy in the same case could result in a legal definition of race as reputation overriding popular biological notions of race (degree of blood) and its expression (visible mixture). The practice of deciding racial identity by considering a person's reputation continued through the 1840s in the District of Columbia and the state of Delaware; in fact, in all cases, reputation was said to override complexion and other physical features, and at times reputation even outweighed genealogy. 63

Ian Haney López observes that in racial prerequisite cases deciding naturalization, citizenship and, by extension, "whiteness at law," late nineteenth-century courts "initially relied on both rationales [common knowledge and scientific evidence] to justify their decisions. However, beginning in 1909 a schism appeared among the courts over whether common knowledge or scientific evidence was the appropriate standard. Thereafter, the lower courts divided almost evenly on the proper test for whiteness. . . . No court used both rationales." 64 While López's focus produces his assertion that the schism between these conceptions of race emerged only in the twentieth century, I argue we find it much earlier. Whether a court chose "color" and complexion or genealogy and fractional quantities of blood as the evidence of race as biological, it set that rationale against reputation in those early nineteenth-century cases that I have cited. López argues that "by 1909 changes in immigrant demographics and in anthropological thinking combined to create contradictions between science and common knowledge," whereas prior to this time "science and popular beliefs jibed in the construction of racial categories." 65 However, if we turn to other phenomena like a growing slave population, slave revolts, white supremacy campaigns, and African American migrations from the rural South to urban centers in the North and South, we see a growing anxiety about whiteness that instead made "knowledge" or evidence of an individual's racial identity rather fraught and unstable.

Especially in the South, the additional consideration of an individual's reputation in determining race was the result of a growing concern that the body might be, in fact, fallible "evidence" given the increasing numbers of mulattos, slave and free. In Louisiana and South Carolina, [End Page 437] states with an established tradition of valuing their "free colored" population and maintaining good relations between whites and free persons of color, whites agitated against "social and legal definitions of blackness that bred a class of persons visibly black but legally white." 66 Newspapers frequently called for the exile of all free people of color from these states. 67 The complication of racial definition with further qualifications during the 1830s and 1840s registered an increasing fear of slave revolt from a growing slave population that in many places outnumbered the whites, but it also reflected a white southern emphasis on "purity of blood" that underpinned a threatened social order. 68 White southerners wanted to preserve their blood's so-called purity, but they also believed that white blood would be ultimately responsible for any mulatto-lead slave insurrection, as a Virginia minister wrote in 1833:

That the high notions of liberty, the ardent feeling, and proud unbending spirit of the South should be imparted with their [white] blood to the mixed race . . . is what must be expected. Many mulattos know that the best blood of the South runs in their veins, they feel its proud, impatient and spirit-stirring pulsations; and see themselves cast off and oppressed by those that gave them being. Such a state of things must produce characters fit for treason, stratagem, and spoil. 69

Frequently, this white fear was expressed in contradictory ways during the 1850s and early 1860s. During this period, white southerners attempted to enlist the loyalties of a large "free colored" population that they hoped would intercede in, and diffuse, any slave uprisings. Yet at the same time that white southerners sought an alliance with, and appeared to trust, free people of color, they also clearly felt threatened by the "other" among them: "[B]etween 1856 and 1859 no less than seventeen grand juries saw fit to call attention to the danger from free persons of color." 70

The heightened polarization of racial identities that resulted from this anxiety continued into the late nineteenth century. Grace Hale has argued that this was a particularly volatile period in the South:

The Civil War . . . ma[de] whiteness a more important category, a way to assert a new collectivity, the Confederacy, across lines of class and gender that divided free southerners. . . . But by the 1880s . . . political conflicts, as well as the economic trends toward centralization, standardization, urbanization, and mechanization, accelerated and permanently institutionalized by the war, meant that American collective identity itself was now anything but [End Page 438] clear. The overlapping of the aftermath of the Civil War and the fate of the ex-slaves with these economic changes destabilized the categories of power during the 1880s and 1890s. The question of what structure of social ordering would replace the familiar hierarchies . . . made this a period of volatility and uncertainty. Hierarchical structures founded in the personalized social relations of specific localities lost their authority in an increasingly mobile and rapidly changing society. 71

While old social orders were threatened during this period, attempts to reassert them continued nonetheless. Virginia Dominguez, in her study of Creole identity and racial classification in Louisiana, observes that "a near obsession with metasemantics ruled much of the 1880s and 1890s," as the state became "engulfed in the reclassification process intent on salvaging white Creole status." 72 Prior to this period, both whites and blacks freely acknowledged that the Creole identity was claimed by members of both races. But during the late nineteenth century, white Creoles, under pressure of suspicions regarding "impure blood," rejected black Louisianians who claimed a Creole identity. In order to secure their threatened social status, white Creoles insisted upon "the exclusive Caucasian composition of the category," established "a number of white Creole organizations . . . to protect the status of the 'true' Creole," and "actively fought the publication of any book or article that referred to, or even implied," the existence of Creoles of color. 73 Dominguez's account of the extremes white Creoles went to in order to "purify" their identity is a telling example of how whiteness was being constructed through exclusions that were dependent upon refining absolute distinctions between black and white.

Southern whites not only feared an African American so "'white as to easily pass for a white man,'" but they also feared those whites who appeared to sympathize or associate with African Americans. 74 Consequently, they applied the notion of race as reputation and behavior to call into question the racial identity and social position of certain whites as well. This practice reached a peak in North Carolina's white supremacy campaigns of 1898 and 1900; the result, Joel Williamson contends, was that "by about 1900 it was possible in the South for one who was biologically purely white to become behaviorally black. Blackness . . . had passed on to become a matter of inner morality and outward behavior." 75 In Following the Color Line, Ray Stannard Baker relates a report carried by the Atlanta Georgian on 6 March 1907 detailing the expulsion of a newcomer from South Carolina who was suspected of being a mulatto attempting to pass for white. The man [End Page 439] returned with "a number of reputable white Carolinians" who attested to his identity as a white man." 76 Neither reputation nor association but rather this man's status as unknown aroused the suspicion of white Georgians. The threat of the "white nigger," then, was used as a justification for effectively controlling those whites whose commitment to white southern economic, political, and social interests was questionable.

Yet however much the racial identity of white southerners may have been disputed in rumors and popular accusations like these, "blackness" and degrees of black blood remained the focus of legal disputes of the mulatto's racial identity. Historically the degree and definition of blackness, not whiteness, has been at issue in such cases both within and outside the South, a focus that has actively worked to obscure the historical and cultural contingency of whiteness. If whites were marked in the South and America at large, it was not by race but, as Guillaumin argues of all dominant groups, "by a convenient lack of interdiction." 77 Cases in which reputation or association decided the racial identity of plaintiffs said to be "black" span the years 1811 to 1938 but cluster around the 1890s through the early 1900s, those decades Hale calls particularly volatile for the South but ones in which other parts of the nation were clearly unsettled as well. North Carolina considered an individual's association with "one race or the other" admissible in determining that person's race in 1892. 78 And in 1894, a Texas court admitted as evidence "tending to show that she is a white woman," testimony proving "a woman's first husband was a white man." 79 The state of Alabama also used the race of spouses as a "criterion" to decide race in 1903 and added as admissible evidence proving an individual is a "Negro," testimony "that the person has been treated by a Negro couple as their offspring." 80 Kentucky and Oklahoma ruled in 1905 and 1912 respectively that attendance by the respective subjects under scrutiny in "white schools in their home state or in the state from which they had emigrated" could be considered proof of their race. 81

This clustering of legal decisions that read reputation as a marker of race is arguably part of a larger move to racialize class differences in response to greater social mobility in American society. The rapid change caused by increasing industrialization and urbanization, as well as an influx of immigrants and a migration of outhern African Americans from rural areas to urban centers in the North and South, created a fluid and highly mobile society at the turn into the twentieth [End Page 440] century. These shiftings of place were not only a matter of populations relocating but also of individuals attaining class positions that had previously been inaccessible. Hale has isolated just such changes as the impetus for the South's "culture of segregation" beginning in 1890: "A black middle class was rising, with its unhinging of black race and class identities, and hierarchies of personalized power were being subverted in the move to a more urban, less locally grounded, mass society. These threats made the ritualistic enactment of racial difference vital to the maintenance of white supremacy." 82 However, we see attempts to secure social divisions outside the South as well. Middle- and upper-class white Americans responded to this greater social mobility with an increased attention to, and regimentation of, the social. The increased publication and popularity of etiquette manuals is just one marker of this anxiety, which John Kasson argues "intensified in reaction to pressure from various directions, including the influx of new immigrant populations and the presence of a self-assertive new plutocracy." 83 Citing what he acknowledges is an incomplete enumeration, Kasson notes that "twenty-eight different manuals appeared in the 1830s, thirty-six in the 1840s and thirty-eight more in the 1850s. . . . In the period from 1870 to World War I, . . . the flow of volumes rose to a rate of five or six a year. . . . Etiquette books clearly constituted a major popular literary genre at this time as never before." 84 Robert Young also observes that bourgeois whites used rigid standards of behavior in an attempt to consolidate their power and position:

As the defining feature of whiteness, civilization merged with its quasi-synonym "cultivation," and thus the scale of difference which separated the . . . races was quickly extended so that culture became the defining feature of the upper and middle classes. . . . These racialized class differentiations offered some consolation and fantasized intrinsic qualities of class during a period when it was patently evident that you could simply buy your way into the middle and upper classes. 85

By racializing class differences, American society--built rhetorically upon individualism and equality "for all"--again attempted through naturalization to mask its social divisions of power so that white Americans could believe that their society was ordered around the natural divisions of race, not the artificial distinctions of class. [End Page 441]

The (In)visible Body and Internal Contradictions

Commensurate with the development of an increasingly narrow definition of whiteness from the mid-nineteenth through the first half of the twentieth century was an expansion of "otherness." This period saw the emphasis shift from what were regarded as external expressions of race like complexion, "grosser physical differences," reputation, and association, to the question of whether "one drop" would make a person black. Such a shift to increasingly finer distinctions between white and black in this focus on fractions of blood is a clear example of what Bourdieu has identified as the workings of the law to make the social reassuringly predictable during periods of flux: "By eliminating exceptions and the vagueness of uncertain groupings, and by imposing clear discontinuities and strict borders in the continuum of statistical limits, juridical formalization introduces into social relations a clarity and predictability." 86 The intent may have been to clarify racial distinctions and render less vague racial identities; however, the result was a South unable to achieve a stable racial classification in this period. Both North Carolina and Louisiana vacillated between a fractional and a one-drop definition of race in the early twentieth century. North Carolina had, in 1901, adopted the "third generation inclusive" definition of blackness and extended it in 1908; yet in 1903 a statute regarding school attendance held that "no child with Negro blood in his veins, 'however remote the strain,' shall attend a school for the white race." 87 Kentucky, after having adopted Virginia's classification of one-fourth in 1835, narrowed its definition of blackness to "one drop" in 1911. But in 1932, a Kentucky court ruled that "a person who looks white, has straight hair, is of copper color, and has other characteristics of the white man is not a mulatto within the statute prohibiting the marriage of whites and Negroes or mulattos." 88 And in 1910 Louisiana used the one-drop rule to define members of "the colored race within the meaning of the Jim Crow Law" but also decided that an "octoroon" was not a "colored" person when deciding anti-miscegenation cases: "the term 'Negro' does not necessarily include persons in whose veins there is only an admixture of Negro blood, and . . . it clearly would not be applicable to a person in whom the admixture is as slight that even a scientific expert could not be positive of its presence." 89 Yet Louisiana did seem to have had confidence in the ability of its "scientific experts" to discern traces of [End Page 442] African blood, for it had already adopted a fractional definition of blackness--one-eighth--in 1908 and 1910 and refined that definition to more than one-thirty-second in 1970. 90

While the Old South's internal contradictions and attempts to discern blackness in ever shrinking fractions seem extreme, they were far from limited to that region. Texas also failed to establish a consensus on its definition of racial identity as late as the 1920s and 1930s. In 1856 a Texas court had already expressed its trepidation of contradictory race and status designations that could result in an individual being considered "white enough" (removed from any African ancestor to the fourth generation) to "be a competent witness against a white person, but following the status of its mother, it would be a slave [sic]." 91 Contradictory racial definitions remained a matter of legal record in this state until at least 1925. Both the school law and the anti-miscegenation statute of 1925 define as black an individual with any African ancestry; however, the penal statute of 1925, which provided punishment for the crime of miscegenation, lists as black those of "Negro blood to the third generation inclusive." 92 Thus, it would have been possible for a Texas court to find a defendant guilty of violating the anti-miscegenation statute but then be unable to impose any fine or jail term upon that same individual. While many states moved toward a "one drop" definition of blackness and a "pure blood" definition of whiteness over time, a significant number vacillated in their designations of race. Moreover, while nineteenth- and twentieth-century white Americans generally adopted notions of race as "blood" traceable through genealogy to fractional amounts, there remained states more concerned with that blood's "expression."

Perhaps one of the best examples of conflicting notions of what made an individual white or black is a 1910 case deciding the race of a child and her right to attend "the Brookland School, a white institution" in Washington, D.C. 93 Isabel Wall was the daughter of Stephen Wall, a man "'of extraordinarily light complexion,' and his white wife." 94 The Washington, D.C. Board of Education ordered Isabel to "attend a Negro school," but her father petitioned the Court of Appeals to allow her to attend a white school. In order to argue that his daughter was white, Stephen Wall "denied that he himself was 'a colored man' or that he was so recognized by neighbors and friends." The Court countered with "proof" that Mr. Wall was "colored": he had operated "'a pool room in a colored neighborhood, that was frequented by colored [End Page 443] people,'" and his grandmother was "'a very light mulatto woman.'" They further "estimated" that Isabel possessed "'Negro blood of one-eighth to one-sixteenth,' even though she had blue eyes, blond hair, and an 'unusually fair' complexion." Consequently, the Court decided that Isabel Wall was "colored" and should attend a "colored school" because "complexion and physical appearance had little to do with determining one's racial status . . . '[P]ersons of whatever complexion, who bear Negro blood in whatever degree, and who abide in the racial status of the Negro, are colored in the common estimation of the people.'" 95 The Wall case evoked a number of contradictory notions of race: reputation may decide race but only when the individual in question is deemed to be "colored" because he or she "abides in the racial status of the Negro"; an "estimation" of the fractional admixture of one's "blood" based on a thorough account of one's genealogy is a more reliable determinant of race than one's appearance, yet it is effectively a moot point since one drop of "black blood" makes one "colored"; and an attempt to evoke the "objectivity" of science by quantifying the racial components of one's blood is given great weight, but ultimately the deciding factor is popular opinion or "the common estimation of the people."

We might wonder why such contradictory notions of race evoked in individual cases and the failure to establish consistent race and status designations across a variety of laws and statutes within states did not undermine people's faith in the judicial system to the extent that they might begin to doubt its decisions. Bourdieu proves quite helpful on this point. He argues that as a "legitimized discourse" the law's power lies in its "constitutive tendency to formalize and to codify everything which enters its field of vision." 96 Perhaps more important, however, is the attention Bourdieu draws to the need for, and the ability of, the law to repeatedly ensure that its arbitrariness goes unnoticed by a public whose belief in the "truth" of the law must be continually reproduced by the law itself:

As the quintessential form of legitimized discourse, the law can exercise its specific power only to the extent that it attains recognition, that is, to the extent that the element of arbitrariness at the heart of its functioning (which may vary from case to case) remains unrecognized. The tacit grant of faith in the juridical order must be ceaselessly reproduced. Thus, one of the functions of the specifically juridical labor of formalizing and systematizing ethical representations and practices is to contribute to binding laypeople to the fundamental principle of the jurists' professional ideology--belief in the neutrality and autonomy of the law and of jurists themselves. 97 [End Page 444]

These very cases, then, in which the juridical power to produce and legislate racial identities is challenged, also provide the necessary opportunities for juridical acts to claim, and through those claims maintain, the status of "truth":

In granting the status of judgement to a legal decision . . . the rationalization process provides the decision with the symbolic effectiveness possessed by any action which, assuming one ignores its arbitrariness, is recognized as legitimate. . . . The self-representation which describes the court as a separate and bounded space within which conflicts are transformed into specialist dialogues and the trial [is regarded] as an ordered progression toward the truth, accurately evokes one of the dimensions of the symbolic effect of juridical activity as the free and rational application of a universally and scientifically recognized norm. 98

Thus, despite a number of contradictory conceptions of race upheld in judicial decisions, and despite the inability of states to come to a definite decision about what constituted blackness and thereby whiteness, southern courts and courts in the nation at large routinely worked to "read" and define mulatto bodies and their behaviors in ways that shored up the law's symbolic effectiveness, the very thing the mulatto most threatened by challenging to racial distinctions. The courtroom physical inspections with their disturbing echoes of slave auction blocks, the litany of characteristics taken as evidence of African blood, and the idea that blood carried even the most minute trace of a blackness so powerful it could not be "overcome" by the white blood that may run alongside it in one's veins--all these criteria used to decide race reveal a white Southern, indeed white American, notion of race as "natural" and naturalized in the legal decisions that evoked them. Race was largely defined bodily, through examining and theorizing about African American bodies from "pure African" to "graduated shades thereof." When white blood was mentioned, it was reified as an agent of purity, as in this judge's instructions to a North Carolina jury in 1857:

[T]he descendants of negro ancestors become free white persons, not by being removed in generation only, but by that, coupled with purification of blood. . . . [N]o person in the fifth generation from a negro ancestor becomes a free white person, unless one ancestor in each generation was a white person; that is to say, unless there shall be such a purification of negro blood by the admixture of white blood . . . and unless there is such purification it makes no difference how many generations you should have to go back to find a pure negro ancestor; even . . . a hundred, still the person is a free negro. 99 [End Page 445]

White physical characteristics were rarely mentioned in cases deciding whether a person who looked white was in fact white; rather the focus centered on the gradual dissipation of African characteristics like the straightening of hair and lightening of complexion.

Grounding its decisions of identity and definitions of race repeatedly in the body, the courts attempted to naturalize legal disputes over race, and it is this turn to the body's interiors that eventually came to outweigh those earlier tensions between "legal" race as biological or social. Legal decisions could be regarded as upholding "natural" differences: the law could be said to "observe" the very racial distinctions it was actively creating. This ability of the law both to appear entirely objective and to be performative in its utterances, to be what Bourdieu calls "the quintessential form of the symbolic power of naming that creates the things named, and creates social groups in particular" because it is "able by its own operations to produce its effects," 100 is largely the result of rhetoric: "Juridical language . . . bears all the marks of a rhetoric of impersonality and of neutrality. . . . The neutralization effect is created by a set of syntactic traits such as the predominance of passive and impersonal constructions. These are designed to mark the impersonality of normative utterances and to establish the speaker as universal subject, at once impartial and objective." 101 Therefore, obvious contradictions within and between states when it came to defining race were not regarded as the fault of inconsistencies in law or in notions of racial difference as "normative utterances" but could be explained as differences in interpretations of what governing bodies had actually intended in legislature. However, those contradictions show us that some bodies were clearly difficult to "manage" and some identities shifted rather than remained stable. In turn, these instabilities threatened constantly to undo a construct that was proving ever more impossible to contain and increasingly difficult to police. That tension between race as biological or as social reputation is one we should keep plainly in sight, for it forestalls easy understandings of the way race circulated in both the popular imagination and courts of law and renders more complex a highly ambivalent social arena in flux. In an important sense, that tension and its prevalence makes manifest in the lived reality of the South Richard Dyer's contention that in filmic representations, "the South seems to be the myth that most consciously asserts whiteness and most devastatingly undermines it." 102

Teresa Zackodnik is an assistant professor of English at the University of Alberta.


I would like to thank American Quarterly's anonymous reviewers for their productive criticism. My thanks also to my colleagues Mark Simpson and Heather Zwicker, who generously read an earlier draft and offered very helpful suggestions. For her support, insightful reading, and pointing me toward Bourdieu, I thank my friend and colleague Susan Hamilton.

1. Helen T. Catterall, ed., Judicial Cases Concerning American Slavery and the Negro, 5 volumes (Shannon: Irish Univ. Press, 1968), vol. 5, 252.

2. Ibid.

3. Ibid., 253.

4. Ibid.

5. Ibid.

6. Ibid.

7. Ibid.

8. Ibid., 262.

9. Ibid.

10. In order to underscore my use of "the mulatto" as a figure or construct rather than as a naïve invocation of terminology at one time operative within a virulent system of racial categorization, I will use "mulatto" throughout even though we know that the term was gendered under that system, with "mulatta" referring to women and "mulatto" to men.

11. Cheryl Harris, "Whiteness as Property," Harvard Law Review 106 (June 1993): 1707-91. See, for example, Peggy Pascoe, "Race, Gender, and the Privileges of Property: On the Significance of Miscegenation Law in United States History," New Viewpoints in Women's History: Working Papers from the Schlesinger Library 50th Anniversary Conference, ed. Susan Ware (Cambridge: Cambridge Univ. Press, 1994), 99-122. Pascoe, "Miscegenation Law, Court Cases, and Ideologies of 'Race' in Twentieth-Century America," The Journal of American History 83 (June 1996): 44-69. Eva Saks, "Representing Miscegenation Law," Raritan 8 (fall 1988): 39-69. Ian F. Haney López's White By Law: The Legal Construction of Race (New York: New York Univ. Press, 1996), with its focus on citizenship and naturalization in the early twentieth century, is a notable exception.

12. Pascoe, "Miscegenation Law," 49.

13. López, White By Law, 13; emphasis added.

14. David Theo Goldberg, Racist Culture: Philosophy and the Politics of Meaning (Oxford: Blackwell, 1993), 53-54.

15. Ibid., 54.

16. Pierre Bourdieu, "The Force of Law: Toward a Sociology of the Juridical Field," trans. Richard Terdiman, The Hastings Law Journal 38 (July 1987): 805-53, 827.

17. Ibid.,837.

18. Patricia J. Williams, The Alchemy of Race and Rights (Cambridge, Mass.: Harvard Univ. Press, 1991), 138-39.

19. Bourdieu, "The Force of Law," 817.

20. Joel Williamson, New People: Miscegenation and Mulattoes in the United States (New York: Free Press, 1980), 8.

21. In The White Man's Burden, Winthrop Jordan notes that by 1666 Virginia laws were using the term "mulatto": "[L]aws dealing with Negro slaves began to add 'and mulattos,' presumably to make clear that mixed blood did not confer exemption from slavery." Winthrop Jordan, The White Man's Burden: Historical Origins of Racism in the United States (Oxford: Oxford Univ. Press, 1974), 84.

22. James H. Johnston, Race Relations in Virginia and Miscegenation in the South 1776-1860 (Amherst, Mass.: Univ. of Massachusetts Press, 1970), 167.

23. George W. Williams, History of the Negro Race in America, 1619-1880 (New York: Arno Press, 1968), 240.

24. Williamson, New People, 10.

25. Jordan, White Man's Burden, 44.

26. Johnston, Race Relations, 172-73. This law reveals the racial classification that held through the pre-Revolutionary era dividing whites from "others," as Joel Williamson documents: "By the middle of the eighteenth century . . . the legal status of mixed bloods was still only loosely defined, though in the white mind they were firmly classed as Negroes and in effect lumped on that side of the race bar. With them was a rather disparate collage of people of Indian and black ancestry, known as mustees, and offspring of Indian and white parents. For the most part, these people grew out of relations with the several hundred Indian slaves taken in each colony in the first few decades of settlement and cast indiscriminately with black slaves and white servants." Williamson, New People, 13.

27. Catterall, Judicial Cases, vol. 1, 70. The laws enslaving all individuals of African descent and Native Americans taken prisoner in battle and their descendants account in part for the rapid increase in Virginia's slave population from 1715 through the 1750s. The number of African slaves arriving in the American colonies from Africa had nearly doubled by the mid-1700s compared with those "imported" in the late 1600s. Williams, Negro Race in America, 544. However, the slave population in Virginia had increased more than four times during this period: " In 1671 they [slaves] were 2,000 strong, and all, up to that date, direct from Africa. In 1715 there were 23,000 slaves against 72,000 whites. By the year 1758 the slave population had increased to the alarming number of over 100,000, which was a little less than the numerical strength of the whites." Williams, Negro Race in America, 133.

28. The notion that racial difference was "divinely ordained" was alive and well some one hundred fifty years later. In 1842 Ohio courts were still ruling that "all nearer white than black [are] . . . entitled to enjoy every political and social privilege of the white citizens." Catterall, Judicial Cases, vol. 5, 6. However, Justice J. Read of the Ohio State Court of Appeals used similar religious rhetoric to argue against such a definition of whiteness: "The word 'white' means pure white, unmixed . . . . Whether a man is white or black, is a question of fact. . . . The two races are placed as wide apart by the hand of nature as white from black; . . . to break . . . the barriers, fixed . . . by the Creator himself, . . . . shocks us as something unnatural and wrong." Catterall, Judicial Cases, vol. 5, 6-7.

29. Colonists originally enslaved Native Americans "taken prisoner in war." However, in the late 1600s colonists began limiting their "service": "'It is resolved and enacted that all servants not being Christians imported into this colony by shipping shall be slaves for their lives; but what shall come by land shall serve, if boyes or girles, until thirty yeares of age, if men or women twelve yeares and no longer.'" Williams, Negro Race in America, 123.

30. Catterall, Judicial Cases, vol. 1, 57.

31. Johnston, Race Relations, 191.

32. A. Leon Higginbotham, In the Matter of Color: Race and the American Legal Process, The Colonial Period (Oxford: Oxford Univ. Press, 1978), 159.

33. Edward B. Reuter, The Mulatto in the United States (1918; repr. New York: The Basic Afro-American Reprint Library, 1970), 88-90.

34. Ibid., 93.

35. I have chosen to concentrate here on black female sexuality because it appears to be the only spoken way white Americans acknowledged their participation in inter-racial relationships. It seems to me that black male sexuality operates in an interracial context in a very different way, so that it "exists" as a taboo under the violent threat of excision through white male rituals of lynching that violently refuse acknowledgement of consensual relationships between black men and white women.

36. Hortense Spillers, "Interstices: A Small Drama of Words" in Pleasure and Danger: Exploring Female Sexuality, ed. Carole S. Vance (Boston: Routledge & Kegan Paul, 1984), 73-100, 86.

37. Ibid.,76.

38. Dorothy Sterling, ed., We Are Your Sisters: Black Women in the Nineteenth Century (New York: W.W. Norton, 1984), 27.

39. Monique Guillory, "Under One Roof: The Sins and Sanctity of the New Orleans Quadroon Balls" in Race Consciousness: African-American Studies for the New Century, ed. Judith Jackson Fossett and Jeffrey A. Tucker (New York: New York Univ. Press, 1997), 67-92, 81.

40. Ibid., 81-82.

41. Reuter, Mulatto, 150. Eugene D. Genovese documents that at the "fancy-girl" markets in Louisiana "girls, young, shapely, and usually light in color, went as house servants with special services required. First-class blacksmiths were being sold for $2,500 and prime field hands for about $1,800, but a particularly beautiful girl or young woman might bring $5,000." Eugene D. Genovese, Roll, Jordan, Roll: The World the Slaves Made (New York: Random House, 1972), 416.

42. Karen Sànchez-Eppler, "Bodily Bonds: The Intersecting Rhetorics of Feminism and Abolitionism," Representations 24 (fall 1988): 28-59, 42.

43. Henry Louis, Jr. Gates, "Criticism in the Jungle" in Black Literature and Literary Theory, ed. Henry Louis Gates, Jr. (New York: Routledge, 1984), 1-24, 21. Historically, this designation of the mulatto as bastard can be traced to the Victorian fascination with the "Hottentot," or the Khoisan of South Africa. The OED defines "bastard" as "A person of mixed breed; a Griqua (S. Afr) . . . 1814; W. Brown, Hist. Propag. Christianity II. ix. 425. "The term Bastard applied to a Hottentot, does not mean that he is illegitimate, but merely that he is of mixed breed" . . . 1900; A. H. Keane, Boer States vi. 85. "Many are in fact 'Bastards,' that is to say, Hottentot-Dutch half breeds."

44. Bourdieu, "Force of Law," 818.

45. Catterall, Judicial Cases, vol. 1, 57.

46. Jordan, White Man's Burden, 52.

47. Ibid., 52-53.

48. Collette Guillaumin, "Race and Nature: The System of Marks," trans. Mary Jo Lakeland, Feminist Issues 8 (spring 1988): 25-43, 33.

49. F. James Davis, Who is Black? One Nation's Definition (University Park, Penn.: Pennsylvania State Univ. Press, 1991), 34.

50. Robyn Wiegman, American Anatomies: Theorizing Race and Gender (Durham, N.C.: Duke Univ. Press, 1995), 30.

51. Charles S. Mangum, Jr., The Legal Status of the Negro (1940; repr. New York: Johnson Reprint Co., 1970), 14.

52. State v. Jacobs, 6 Jones N.C. 284, June 1859; Catterall, Judicial Cases, vol. 2, 226.

53. Pascoe, "Miscegenation Law," 52-55.

54. Harris, "Whiteness as Property," 1737-38.

55. Ibid., 1739-40.

56. Catterall, Judicial Cases, vol. 2, 18-19.

57. Ibid., vol. 4, 159.

58. Ibid., 164.

59. Ibid., vol. 2, 358.

60. Ibid.

61. Ibid., 359.

62. Ibid., 385-86.

63. See Ibid., vol. 4: 199 (U.S. v. West, 28 Fed. Cas. 529 [District of Columbia], Nov. 1836; Catterall, Judicial Cases, vol. 4, 227 (State v. Dillahunt, negro, 3 Harrington 551 [Delaware], Apr. 1840); and Catterall, Judicial Cases, vol. 4, 228 (State v. Warrington, negro, 3 Harrington 551 [Delaware], Oct. 1840).

64. López, White by Law, 6.

65. Ibid., 7.

66. Williamson, New People, 65.

67. The 8 Mar. 1856 edition of the New Orleans Picayune referred to free persons of color as "'a plague and a pest in our community, besides containing the elements of mischief to the slave population'" and called for their removal from Louisiana. Williamson, New People, 66. Arkansas and Mississippi had already passed laws that prohibited free persons of color from entering the state. The upper South moved earlier to control its "free colored" population: the Virginia Constitution of 1850 legalized re-enslavement of emancipated slaves if they remained in Virginia longer than a year after gaining their freedom. See Gilbert Thomas Stephenson, Race Distinctions in American Law (1910; repr. New York: Negro Universities Press, 1969), 38-39. These laws frequently left free persons of color expelled from one state, unable to enter another, all the while under the threat of re-enslavement.

68. I have in mind revolts like Denmark Vesey's in Charleston, South Carolina (1822), and Nat Turner's in Virginia (1831). It is important to note that Vesey was a free person of color, and so the impact of the revolt he led on southern views of "mulattos" should not be underestimated.

69. Johnston, Race Relations, 298-99.

70. Williamson, New People, 66.

71. Grace Elizabeth Hale, Making Whiteness: The Culture of Segregation in the South, 1890-1940 (New York: Pantheon, 1998), 6.

72. Virginia R. Dominguez, White By Definition: Social Classification in Creole Louisiana (New Brunswick, N.J.: Rutgers Univ. Press, 1986), 143.

73. Ibid., 146-48.

74. Johnston, Race Relations, 192.

75. Williamson, New People, 108.

76. Ray Stannard Baker, Following the Color Line: American Negro Citizenship in the Progressive Era (1908; New York: Harper and Row, 1964), 52.

77. Guillaumin, "Race and Nation," 41.

78. Mangum, Legal Status, 15; and Stephenson, Race Distinctions, 17, 262. Alabama considered association admissible evidence of race into the 1920s, and Louisiana did so into the 1930s. See Mangum, Legal Status, 262.

79. Stephenson, Race Distinctions, 17.

80. Mangum, Legal Status, 263.

81. Ibid., 15.

82. Hale, Making Whiteness, 284.

83. John F. Kasson, Rudeness and Civility: Manners in Nineteenth-Century Urban America (New York: Farrar Straus & Giroux, 1990), 60.

84. Ibid.,44.

85. Robert J.C. Young, Colonial Desire: Hybridity in Theory, Culture and Race (New York: Routledge, 1995), 95-96.

86. Bourdieu, "Force of Law," 849.

87. Stephenson, Race Distinctions, 174.

88. Ibid., 12.

89. Mangum, Legal Status, 5.

90. Louisiana abolished its one-thirty-second statute in May 1983 in favor of a "traceable amount rule" in the much publicized Phipps trial, Jane Doe v. State of Louisiana. Susie Guillory Phipps, the great-great-great-great-granddaughter of a French planter and his wife's slave, petitioned the Louisiana courts to change her parents' racial classification to white so that she and her siblings could also be classed as white. Mrs. Phipps had been denied a passport because she looked "white," while her birth certificate listed her race as "colored." And while several of Mrs. Phipps's relatives testified that they identified themselves as "colored," Mrs. Phipps claimed that the racial designation on her birth certificate was a shock to her since she had always believed that she was white and had "married white." The state's attorneys claimed they were able to prove Mrs. Phipps was "three-thirty-seconds black"; the district court was convinced, and Mrs. Phipps and her siblings were legally designated as black. This decision was upheld upon appeal in October 1983, December 1985, and by the U.S. Supreme Court who refused to hear Mrs. Phipps's case in December 1986. Davis, Who is Black, 9-11.

91. Catterall, Judicial Cases, vol. 5, 295.

92. Mangum, Legal Status, 8-9.

93. Willard B. Gatewood, Aristocrats of Color: The Black Elite, 1880-1920 (Bloomington, Ind.: Indiana Univ. Press, 1990), 166.

94. Ibid.

95. Ibid., 167.

96. Bourdieu, "Force of Law," 809.

97. Ibid., 844.

98. Ibid., 828-30.

99. State v. Chavers, Catterall, Judicial Cases, vol. 2, 209-10.

100. Bourdieu, "Force of Law," 838-39.

101. Ibid., 819-20.

102. Richard Dyer, White (London: Routledge, 1997), 36.

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