The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Tuesday, January 20, 2004

The Jim Crow South's Nelson's eye for miscegenation

An excellent article by Daniel J. Sharfstein from the September/October Legal Affairs is full of goodness on the realities of miscegenation and law in the Jim Crow era [1].

That old Magnolia Madness is never stronger than when focussing on bedroom matters (right up to the present day, as the Strom Thurmond-Carrie Butler episode amply illustrates). But the piece sheds a little light on the realities, through the medium of the case of Frank Ferrell.

Ferrell married Susie Patterson in 1904; he was a bad husband who left her in 1907, and sued for an annulment on the grounds that she had Negro blood; and, under North Carolina law, marriages
between a white person and a person of negro or Indian blood to the third generation inclusive
were void.

In 1909, there was a trial of Patterson's race, involving fancy lawyers:
Susie was represented at trial by Thomas Walter Bickett, who would soon be elected governor of North Carolina. Frank's lawyer, Frank Shepherd Spruill, was a giant of the state bar.

In the result,
The trial court agreed with Bickett's position on behalf of Susie and instructed the jury that for her to be legally black, her great-grandfather would have to be a "real Negro," meaning "one that did not have any white blood in him."

The verdict for Patterson was upheld on appeal at the North Carolina Supreme Court. If miscegenation was a horror, there were worse:
Chief Justice Walter Clark damned Frank Ferrell not only for abusing and abandoning his wife but also for revealing what should have been kept a secret:
If indeed, the plaintiff had discovered any minute strain of colored origin after the youth of his wife has been worn away for his pleasure and in his service, justice and generosity dictated that he keep to himself that of which the public was unaware, or, if the knowledge had become public and was disagreeable, the plaintiff, if possessed of any sentiment of manhood, would have shielded his wife and children by removing to another locality or to a state where the fact, if known, would not be deemed a stigma.

There were eminently practical reasons why there should be an almost unrebutable presumption that a person reputed white was white: the piece cites Plessy v Ferguson [2] to the effect that whites wrongly ejected from trains could sue for damages.

He refers to an incident related by Charles Waddell Chesnutt (a writer with his own site, with etexts). Chesnutt discusses the Jim Crow rules with a conductor:
"Do you ever," he said, "have any difficulty about classifying people who are very near the line?" The conductor answered, "I give the passenger the benefit of the doubt."

I think there was a Rummy smirk right there!

In Chesnutt's words, a "stream of dark blood has insinuated itself into the veins of the dominant, or . . . the 'domineering' race."

The piece cites a famous name on the subject:
During the South Carolina Constitutional Convention in 1895, Congressman George Dionysus Tillman, older brother of the notorious segregationist politician "Pitchfork Ben" Tillman, argued strenuously against a proposal to prohibit marriage between whites and people who had "any" African ancestry. Tillman said that the provision would affect "at least 100" families in his district that had sent their boys to fight for the Confederacy-and that no delegate on the floor could claim to be a "full-blooded Caucasian."

Imagine! Right there in the Palmetto State (where Strom made time (and Essie Mae) with Carrie, thirty years on), a leading politician was charging his colleagues with being part Negro!

In the Magnolia Fantasy, surely there should have been a riot at that point. Or at least a lot of challenges to a duel.

The piece doesn't mention that either event occured. It does say that
The convention adopted a one-eighth rule.

Which rather suggests that the truth of Tillman's comments was accepted.

Later on, things tightened up (there is no stasis in Jim Crow!):
States across the South embraced one-drop rules. In the 1920s, Virginia and Louisiana empowered administrative agencies to investigate people's family backgrounds.

The piece mentions that one
Walter Ashby Plecker, the head of Virginia's Bureau of Vital Statistics, was so enthusiastic about his mission that he personally wrote cemeteries to warn them against integrating the dead...He bragged-in 1943-that his records were as thorough as Hitler's genealogies of Jews.

It suggests that
The shift to the one-drop rule may have been tolerated only because, for a full generation after Plessy, the courts had discouraged people from investigating the racial origins of their friends, enemies, and neighbors.

As for Susie Patterson, she remarried, and ended up living in Louisburg, NC
by the Tar River, right between the black and white sections of town.

Tar brush to Tar River. Or maybe not.

  1. Real downer: no damned footnotes - the worse because the piece is a hacked down version of the guy's (no doubt, amply footnoted) The Secret History of Race in the United States 112 Yale L.J. 1473 (2003) - to which the Great Unwashed will tend not to have access. Beggars, however, cannot be choosers.

  2. He points out that
    Homer Plessy was not discernibly of African descent.
    Much as Walter White, NAACP Secretary and author of Rope and Faggot, could pass (and could only have written the book because he could!).

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