Litigating Whiteness: Trials of Racial Determination in the Nineteenth-Century South Ariela J. Grosst CONTENTS I. INTRODUCTION ................................................................................... 111 II. THE SHIFTING ESSENCES OF RACE IN THE NINETEENTH-CENTURY SOUTH ................................................................................................. 123 A . Racial Knowledge ........................................................................ 124 B. Evidence and Essences ................................................................. 132 1. A bby Guy ............................................................................... 133 2. Race as Physical Marker....................................................... 137 3. Race as Documented Ancestry ............................................... 141 4. Race as Ascriptive Identity: Reputation, Associations, and Reception in Society ............................................................... 147 5. The Rise of Race as Science and Performance...................... 151 IH. PERFORMING WHITENESS ................................................................... 156 t Associate Professor of Law, University of Southern California. I am indebted to Scott Altman, Jody Armour, Jacob Cogan, David Cruz, Mary Dudziak, Karen Dunn-Haley, Laura Edwards, Harry Elam, George Fredrickson, Ron Garet, Jon Goldman, Bob Gordon, Tom Green, Janet Halley, Leslie Harris, Hendrik Hartog, Greg Keating, Bill Nelson, Peggy Pascoe, Rick Pildes, Renee Romano, Mike Shapiro, Larry Simon, Dave Slawson, Nomi Stolzenberg, Eric Talley, Chris Waldrep, Wendy Wall, Ted White, and participants of the NYU Legal History Colloquium and of faculty colloquia at USC, UCLA, and Rutgers-Newark Law Schools for reading and commenting on drafts of this Article. Discussions at the Center for Feminist Research and the Faculty Women's Writing Group at USC helped to clarify my thinking. Peggy Pascoe generously provided the list of cases that began this research, and Anthony Kaye guided me to new sources. The archival research for this Article was generously supported by the USC Law School and the Zumberge Research and Innovation Fund at USC. Many librarians and archivists made this work possible; I thank in particular Charles Miller, Laura Cadra, and Corrin Gee of the USC Law Library; Charles Sherrill of the Tennessee State Archives; Norwood Kerr of the Alabama Department of Archives and History; Marie Windell of the Earl K. Long Library at the University of New Orleans; Nicky Sherman of the Pulaski County, Arkansas Law Library; Ann Webster of the Mississippi Department of Archives and History; and Mark Stone of the Kentucky State Archives. Bill D'Angelo, Sonya Springer, Karin Lewicki, Debra Mayfield, and Rebecca Wolff provided valuable research assistance. 110 The Yale Law Journal [Vol. 108: 109 A . Performing W hite Manhood ......................................................... 158 B . Performing W hite W omanhood .................................................... 166 IV . CONCLUSION ....................................................................................... 177 A . PostwarContinuities .................................................................... 177 B . Trials, Law, and Performance ...................................................... 180 C. Law, Race, and Racism Today ..................................................... 181 APPENDIX .................................................................................................. 186 19981 Litigating Whiteness I. INTRODUCTION 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.' 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 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 1. Transcript of Trial, Daniel v. Guy, No. 4109 (Ark. Ashley County Cir. Ct. July 1855) (collection of Pulaski County Law Library, Little Rock, Ark., Ark. Supreme Court Records & Briefs), rev'd in part, 19 Ark. 121 (1857), aff'd after remand, 23 Ark. 50 (1861) [hereinafter Transcript of Trial, Daniel v. Guy]. 2. Ashley County was first settled in the 1830s and established as a county in 1848. The courthouse was built in 1854. The April term of 1855 was probably the first term of the circuit court held in the new courthouse. See REFLECTIONS OF ASHLEY COUNTY 73 (Robert A. Carpenter, Sr. & Mary Imogene Noble Carpenter comp., 1988). 3. It is strildng how much discretion judges gave juries to decide racial status, given the frequent use during this period of legal presumptions to take control from the jury. While presumptions based on appearance governed slave or free status, they were always held to be rebuttable, and no presumptions governed racial status itself. The major treatises on presumptions and the law of evidence more generally made no mention of racial determination. See, e.g., JOHN D. LAWSON, THE LAW OF PRESUMPTIVE EVIDENCE (1886); JOHN H. MATHEWS, A TREATISE ON THE DOCTRINE OF PRESUMPTION AND PRESUMPTIVE EVIDENCE (1830). 4. For a discussion of the rhetoric of "blood" with regard to race in 19th-century antimiscegenation law, see Eva Saks, Representing Miscegenation Law, RARITAN, Fall 1988, at 39. The Yale Law Journal [Vol. 108:109 harbored disagreement, suspicion, and conflict-not only over who was black and who was white, but over how to make such determinations at all.' 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 5. Of course, trial records necessarily reveal much more about the racial ideology of the Southern whites than that of people of color, because whites controlled the courts, composed the juries, and gave most of the testimony. It is beyond the scope of this Article to investigate the ideology of "color" of people of color in the 19th century, although I am pursuing this research elsewhere. My preliminary findings based on other records of ex-slaves and free people of color suggest that they exhibited no more agreement than did the white "community" over racial identities. Werner Sollors touches on many issues regarding "mulattoes" and racial identity in his study of "interracial literature" by black authors. See WERNER SOLLORS, NEITHER BLACK NOR WHITE YET BOTH: THEMATIC EXPLORATIONS OF INTERRACIAL LITERATURE (1997). 6. On courts as sites of performance, see generally CONTESTED STATES: LAW, HEGEMONY AND RESISTANCE (Mindie Lazarus-Black & Susan F. Hirsch eds., 1994) [hereinafter CONTESTED STATES]. I follow Judith Butler in my use of the notion of performativity. See JUDITH BUTLER, BODIES THAT MATIER: ON THE DISCURSIVE LIMITS OF "SEX" 1-23, 167-242 (1993) [hereinafter BUTLER, BODIES THAT MATTER]; JUDITH BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY 128-141 (1990). Academic studies of "performance" draw on "two quite different discourses, that of theater on the one hand, of speech-act theory and deconstruction on the other." Eve Kosofsky Sedgwick, Queer Performativity: Henry James's The Art of the Novel, 1 GLQ 1, 2 (1993). In this study, I am concerned both with courtrooms as arenas for the performance of dramatic cultural rituals and, like Butler and Sedgwick, with the ways personal identities are iterated through a series of acts. Cf.generally BUTLER, BODIES THAT MATTER, supra, at 171 & 275 n.4 (discussing Nella Larsen's 1929 novel Passing and noting the way Bellew, the husband of a woman who passes for white, "produces his whiteness" through "reiteration and exclusion [of blackness]"). 7. I focus on the litigation of whiteness-asopposed to blackness-because the boundary that mattered most, both before and