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September|October 2003
Marshall's Law By Diane McWhorter
Passing Fancy By Daniel J. Sharfstein
Cleaning House By Eric Pape

Passing Fancy

In the Jim Crow South, courts understood that rigidly enforcing the rules against mixed marriage would have been a disaster—for whites.

By Daniel J. Sharfstein

IN 1903, A YOUNG NORTH CAROLINA farmer named Frank Ferrell went a-courting. Nineteen years old and working on his father's farm in the town of Zebulon, Frank settled his attentions on Susie Patterson, a quiet woman in her early 20s whose family had lived in nearby Riley since the 1880s. Riley was a town on two borders, smack on the line separating Franklin and Wake counties, in the rolling hills where the Atlantic Coastal Plain meets the Piedmont Plateau.

Evidently, a third boundary ran through Riley as well. While Frank wooed her, rumors circulated that she had some Indian or Portuguese ancestry—and some suggested that her blood ran a few shades darker. Perhaps because she feared the rumors would one day bring trouble, Susie refused Frank's marriage proposal. But her suitor persisted and won her over. The couple married in January 1904 at the home of a justice of the peace on the Wake County side.

By April of the following year, the couple had a daughter, and Frank had become a drunk. He beat his wife, stopped providing for her and their baby, and in early 1907 abandoned them entirely. Soon after, he hired a lawyer and filed a complaint alleging that he had unwittingly married a black woman.

At the time, North Carolina law voided marriages "between a white person and a person of negro or Indian blood to the third generation inclusive." In other words, if one of Susie's great-grandparents were black, Frank would be entitled to an annulment and relieved of his obligations to provide alimony or child support. Susie countersued for divorce with alimony. She denied that she was black while at the same time claiming that during their courtship Frank had been "repeatedly informed" of possible "taints" in her ancestry. In 1909, a jury trial was held in Franklin County Superior Court on the single issue of Susie Patterson Ferrell's race.

Drawing the color line was a necessary item of business at local Southern courthouses in the early years of Jim Crow. Whether a plaintiff or defendant was white or black determined a range of outcomes—in divorce proceedings and miscegenation prosecutions, inheritance disputes, libel and slander cases, and challenges to segregated schools and railroads. Although dozens of these cases had arisen during the years of slavery, they took on a new intensity between the Supreme Court's establishment of the "separate but equal" rule in the 1896 decision Plessy v. Ferguson and the start of World War I, as the South remade itself into a segregated society. Racial classification was an inevitable if vexing task in a world obsessed with keeping blacks and whites separate from maternity ward to cemetery.

Yet the legal outcomes of these cases were often at odds with the paranoid and even murderous insistence on racial purity that dominated the politics of the day. Courts showed great reluctance to change the legal status of ostensibly white people to black and penalized those who made unproven accusations. In the courtroom, hyperbolic fears of racial mixing gave way to messy family histories pieced together from whispered gossip, unstated understandings, and stories purposely forgotten. Often these shreds of proof suggested that white racial purity was more myth than reality. Courts treaded softly near the color line because a more rigid approach would have been a disaster—for whites.

AT THE END OF THE 19TH CENTURY, a lawyer, court stenographer, and soon-to-be-acclaimed author named Charles Waddell Chesnutt rode a train through Virginia. Sitting in a car reserved for whites, Chesnutt asked the conductor about the "Jim Crow car system" recently legitimated by Plessy v. Ferguson, which upheld a Louisiana statute mandating separate railroad cars for blacks and whites. In Chesnutt's account, the conductor vowed to enforce the law vigorously: "Personally I don't mean to take any chances," he said. "I'd put a white man out of the colored car as quick as I'd put a nigger out of this one."

Chesnutt took their conversation one seemingly innocent step further. "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."

The conductor's answer—which delighted Chesnutt, an African-American who was at that moment posing as white—was rooted in Plessy itself. The case that deputized railroad conductors as the gatekeepers of white supremacy also limited their authority to make close calls. Homer Plessy was not discernibly of African descent. He challenged Louisiana's segregation of railroad cars for, among other things, depriving him of his reputation for being white—a form of property, he said—without due process of law. The court held that Plessy had no such property interest because he admitted he was black. But in a seldom-cited portion of the majority opinion, the justices agreed that if a white person were to be deprived of his reputation for whiteness—what the court termed his "so-called property"—he could sue for damages. Every time a conductor did not give someone the benefit of the doubt, the railroads faced a potential defamation suit. Even as it elevated racial segregation to the level of constitutional truth, Plessy inhibited enforcement when a passenger's race was ambiguous.

In the decades that followed, many Southern state courts made it difficult to challenge someone who claimed to be white. The standards for proving blackness were exacting and often impossible to meet. And in defamation suits brought by people who'd been accused of hiding their color, judges refused to hold that the state interest in segregation justified allowing accusers to be as emphatic or inquisitive as they wished. On the one hand, these decisions affirmed the privileges of white racial status by equating it with property. On the other, the cases reflected the segregated South's uncomfortable secret: Thousands of people who were socially recognized as white had African ancestry. In Chesnutt's words, a "stream of dark blood has insinuated itself into the veins of the dominant, or . . . the 'domineering' race."

The statutes of the time implicitly acknowledged as much. Racial purists sought to define race in terms of a "one-drop rule," under which anyone with any African ancestry was legally black. Instead, most laws across the South used fractional rules, defining as black those with a black grandparent, or great-grandparent, or great-great-grandparent, depending on the state.

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." The convention adopted a one-eighth rule. Such actions prompted Charles Chesnutt to muse, "I could almost write a book about these laws, their variations, their applications and curious stories that one hears continually concerning them." The color line is palpably present in many of the short stories that he published in The Atlantic Monthly at the turn of the century. And a character in one of Chesnutt's novels became white simply by moving to a state with a more forgiving definition.

THE CASES INTERPRETING THESE LAWS depended primarily on lay witnesses who either personally knew the parties alleged to be black or were old enough to remember their parents or grandparents. (Courts were less willing to rely on "experts" who claimed to be able to look a person over and conclude, as one did in a Virginia trial, that "there is some negro there.") The witnesses often matter-of-factly described how they worked, ate, and prayed with people who were rumored or known to have mixed blood. They didn't seem to care that these racially ambiguous neighbors were marrying into their communities, though politicians and the press were exhaustively detailing the dangers of unrestrained black sexuality and even "New South" moderates were proclaiming the need to maintain white supremacy at any cost.

There was no outcry over Frank and Susie Ferrell. Evidence from court documents suggests that the rumors during their courtship might have had some basis in fact. Frank identified one great-grandfather as the root of his wife's "negro blood." That man came from a large local family that was known to be part black, part white, and part Native American. Still, no one particularly objected to the Ferrells' marriage, and the trial drew neither spectators nor press coverage.

It may seem unsurprising that few people took the time to watch a divorce trial involving country people who signed their affidavits with an "X." But there were plenty of reasons to attend. The subject matter was undoubtedly of widespread interest at the time; three years later, bestselling author Thomas Dixon, whose fiction provided the basis for the film The Birth of a Nation, wrote a novel and a widely performed play about the paramount threat to the white race posed by women with invisible traces of African ancestry.

Just as important, the litigants each retained the services of lawyers with statewide reputations. 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. "So many honors were showered on Spruill," said one of his colleagues, "that a compatriot once offered to bet his Sunday hat" that Spruill would get "the job when the Episcopal Church was sitting to elect a successor to its bishop."

Bickett and Spruill argued vigorously over one point of law: the construction of North Carolina's one-eighth rule. 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." It was almost a reverse one-drop rule: If Susie's great-grandfather had one drop of white blood, she would be legally white. The jury decided in Susie's favor.

In a post-trial motion, Spruill argued that the court's instruction was an impossible standard to meet. By that yardstick, no one had been a "real Negro" in North Carolina for more than a century, he said. Instead, Spruill contended, the term "negro" was purely "descriptive" and should be defined as "the descendant of any person whose social status, associations and daily living stamped him as being a negro, without respect to the smallness of the quantity or infusion of negro blood in him." If Susie's great-grandfather was socially recognized as black, then she should be legally black under the one-eighth rule. It was an interpretation of the law rooted in the often professed view that the white race would be destroyed unless it remained "altogether free of the African taint." And it convinced the trial judge to set aside the verdict and order a new trial.

Bickett promptly appealed, and Spruill's theory was less kindly received by the North Carolina Supreme Court, which unanimously granted Susie a divorce with alimony. In a concurring opinion, 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.

In other words, there were times when race was nobody's business.

Yet in the segregated South, race was supposedly everybody's business. That Clark would hint otherwise suggests that he understood the risks of enforcing a one-drop rule. If courts turned the law against the thousands of Southern whites with a "minute strain of colored origin," the racial paranoia of the time could have sparked riots, feuds, and witch hunts. Hundreds of husbands could have abandoned their wives by claiming they had unwittingly married black women. Every falling out between neighbors could have triggered an accusation of blackness. By preserving a porous color line, the courts saved white people from themselves.

A DECADE AFTER SUSIE FERRELL'S 1910 DIVORCE, the uncompromising politics of segregation caught up with the court decisions that had held racial purists at bay. States across the South embraced one-drop rules. In the 1920s, Virginia and Louisiana empowered administrative agencies to investigate people's family backgrounds. 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. Plecker's agency used its findings to alter racial designations on birth, marriage, and death certificates. He bragged—in 1943—that his records were as thorough as Hitler's genealogies of Jews. For 16 years, the New Orleans vital statistics supervisor Naomi Drake refused to issue thousands of birth and death records because families did not consent to a designation of "Negro." Enormous numbers of complaints finally led to her dismissal in 1965. Among the enumerated grounds: "Lack of courtesy and tact by making such statements to a citizen as, 'All of the people born in White Castle, La., are half breeds.'"

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. That passage of time seems to have allowed white Southerners to develop a collective amnesia about their racially mixed origins. Even so, supporters of Virginia's racial purity law scrapped a provision that would have required everyone in the state to register with the agency and prove their racial purity. And an exception from the one-drop rule allowed the many First Families of Virginia who claimed to be descended from Pocahontas and John Rolfe to remain white.

The collective amnesia extends to Franklin County, N.C., where the case of Frank and Susie Ferrell has been completely forgotten. According to a great-niece, Frank married twice more, first to a widow who lived near his father's farm in Zebulon. She had been married to a Native American. After her death in 1923, he moved from the area and may have left the state. His third wife was rumored to be a mail-order bride.

Susie moved with her daughter to Louisburg, the Franklin County seat, where she stayed for 40 years. No one ever questioned her race again. Her daughter married a white man and had four children, and Susie spent her last years living with them. She kept to herself, leaving her room only to buy food with a small purse pinned to the inside of her slip. They rented a home by the Tar River, right between the black and white sections of town.

Daniel J. Sharfstein is a law clerk to Judge Rya W. Zobel in Boston. This article is adapted from "The Secret History of Race in the United States," which appeared in the April issue of the Yale Law Journal.

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