Litigating whiteness: trials of racial determination in the Nineteenth-Century South.

• Author: Gross, Ariela J.

In April of 1855, Abby Guy sued William Daniel in the Circuit Court for Ashley County, Arkansas, complaining that he held her and her children unfairly in slavery despite the fact that she was white.(1) The trial was held in the small town of Hamburg's brand-new courthouse, no doubt drawing spectators from all over the county to witness the dramatic determination of Guy's racial status.(2) After Guy won her case, William Daniel appealed it to the state supreme court, and it was tried again in a neighboring county before she finally prevailed in the Arkansas Supreme Court on the eve of the Civil War. At the two trials, jurors watched Guy and her children display themselves for inspection, read documents of sale and a will, and listened to the opinions and descriptions of medical experts and witnesses from several counties. Witnesses testified about Guy's appearance, her reception in society, her conduct, her self-presentation, and her inherited status. In each case, the judge left the question of "race" for the jury to decide, because the jury represented the community consensus.(3)

Trials like Abby Guy's, at which the central issue became the determination of a person's racial identity, were a regular occurrence in Southern county courts in the nineteenth century. While nineteenth-century white Southerners may have believed in a racial "essence" inhering in one's blood,(4) there was no agreement about how to discover it. Legal determinations of race could not simply reflect community consensus, because there was no consensus to reflect. Despite the efforts of legislatures to reduce racial identities to a binary system, and of judges to insist that determining race was a matter of common sense, Southern communities harbored disagreement, suspicion, and conflict--not only over who was black and who was white, but over how to make such determinations at all.(5)

By examining the kinds of evidence witnesses and litigants brought forth at trial, I hope to suggest that law, broadly defined, played an important role in constituting the cultural meaning of racial identities. In this Article, I argue that, over the course of the antebellum period, law made the "performance" of whiteness increasingly important to the determination of racial status.(6) Doing the things a white man or woman did became the law's working definition of what it meant to be white.(7) This definition of race as performance operated in a law-like fashion, prescribing certain rules of behavior for people of different races. Furthermore, one of the most important ways in which men in particular could perform whiteness was, paradoxically, through the exercise of legal rights. Witnesses at trial frequently proved a man's whiteness by reporting on his performance of acts of citizenship--voting, mustering for the militia, sitting on a jury--that made rightsholding part of the definition of whiteness for men. The trials thus reveal the implications of a racial ideology that decreed that "negro blood" made a person inferior in virtue, competency and behavior--that "blood" made a person act in certain ways. The "laws" of race could be subverted by people who followed all the rules of whiteness but "hid" their intrinsic blackness. Law, which provided the forum for these challenges, made a discourse of race as performance especially salient.(8)

Recognizing that this discourse of performance rose together with "scientific" ways of thinking about race may unsettle the comfortable certainty that race was "that way then, and this way now." Many contemporary arguments about race on both sides of the political spectrum depend on a view of racism in the past as biological essentialism.(9) Peggy Pascoe has identified "modernist" or "color-blind" racial ideology with two views, analytically distinct but sometimes conflated: one in which "race" is culturally constructed, with no biological basis, and one in which race is biologically based but culturally irrelevant. Academic opinion has adhered to the first vision, whereas American courts have tended to accept the second.(10) Both of these views depend on an understanding of a past in which race once meant simply biology, and racism was something "hard," scientifically based, and natural.

I will say a few words about where this study fits into the cluttered landscape of writing about race. There is an enormous literature on the social construction of race, in a variety of disciplines, and I want neither to reproduce nor to critique that literature here. Historians of race and racial ideology often cite legal rules defining race in terms of fractions of "blood" as evidence of race's "social construction."(11) The fact that these statutory definitions of race changed over time and varied across place--especially the fact that our contemporary definition of black by a one-drop standard developed only in the last 130 years--has suggested to scholars that what "race" means is historically contingent, dependent on political and social circumstances. There are a number of claims included in the "social construction" argument. First, and probably least controversial, is the claim that whether or not there is some inner, "real" essence to race, whether or not racial designations have a biological or anthropological basis in fact, the social meaning of race--which cultural attributes are attached to racial designations, which rights and disabilities accompany racial status, and so on--has changed over time and varied across space. Second, most of the work on the social construction of race seeks to pinpoint a moment at which race was "invented" or when it "originated."(12) Thus, historical writing in this area has a "chicken-and-egg" quality because it has revolved around a debate over which came first: racism or slavery.(13) Those who emphasize the social construction of race argue that racism, defined basically as meaningful social recognition of racial difference, developed out of the relations of slavery, which arose from primarily economic causes.(14) At its most extreme, some scholars have claimed that race is an "illusion"--that there is no basis in science, culture, or shared history to group human beings by "race." Under this view, race is pure ideology.(15)

The debate over constructivism--not only with respect to race but also in relation to a variety of aspects of human identity--is an important one. For the purposes of this Article, however, I want to assume at least the weaker version of the social construction of race, in order to open certain questions about how that construction might have taken place in the courtroom.(16)

One way of understanding the relationship of law and race in the South is to read formal expressions of law, such as statutes and common law rules regarding racial definition, as evidence of changing social beliefs about race. Implicit in this approach is a functionalist view of law: Law changes in response to the needs and "interests" of society, or of the class with power in society.(17) Of course, this view makes the most sense when one focuses on legislation, the legislative branch of government being the most susceptible to the pressures of public opinion and "interest groups." By contrast, some critical race scholars insist on the importance of law in the process of racial construction.(18) Ian Haney Lopez, one of the few legal scholars to go beyond the study of statutes to look at the case law on racial determination, subtitled his study, "The Legal Construction of Race," suggesting a powerful role for courts in the creation of racial identity.(19) Legal scholars and historians, however, have paid scant attention to the records of trials in local courts.(20)

This relative inattention is perplexing, given that ancestry rules were often insufficient to decide actual cases. Juries made the racial determinations in the great majority of cases in the nineteenth century. Indeed, courts consistently held that juries should be allowed to see and hear the widest array of evidence and should have great discretion in finding the "facts" of race. Particularly in the antebellum period, the realms of "law" and "fact" were far from distinct; although the nineteenth-century trend was towards greater power for the judge, vigorous popular efforts to limit judicial power, and strong customary traditions of juries deciding "law" questions, meant that the battle was far from won.(21) Juries received instructions about the "legal" definition of "negro" and "mulatto" in these trials, but such instructions did not settle the question of racial determination. In some cases, the judge did not specify a definition of "negro" or "white." Instead, the judge simply charged the jury that if they found the person to be negro, it would lead, to one result, and if they found her to be white, it would lead to another. In ,other cases, the judge instructed the jury about the kinds of evidence they could consider in making their determination but said nothing more about the nature of what they were determining. In still other cases, the jury instructions specified some fraction of African ancestry as the definition of "negro" or "mulatto." Regardless of the instructions, however, most of the testimony in court traveled far afield from questions of ancestry.(22)

This Article will spotlight the trials themselves in order to suggest a more complex interplay between legal and cultural meanings of race. Trial testimony provided glimpses of ordinary people's, as well as lower-level legal actors', legal understandings of racial categories and of their own places in the racial hierarchy. Trials brought to the surface conflicting understandings of identity latent in the culture; people who had lived lives on the "middle ground" of ambiguous status for years now had to fall on one side of the line. Trials required a confrontation between everyday ways of understanding race and definitions that fit into the...