4186The "Passing" Fancy of 'The One-Eighth-Drop Rule'
- Dec 24, 2011
(Article) "PASSING" FANCY:
In the Jim Crow South, courts understood
that rigidly enforcing the rules against
Mixed-Marriage would have been
a disasterfor most `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
[any part-]"black", [THEN]
Frank would be entitled to an
Annulment AND relieved of
his obligations to provide
Alimony 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 w
[categorized] as 'White' or "black"
determined a range of outcomes
in divorce proceedings and
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'
[in] separate [categories] ---
from maternity ward to cemetery lot.
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' [that had been] 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" [a socially-constructed
"racial" categorization which included
any `Colored' / `Mixed-Race Person
whose ancestry contained 'any' amount
of 'Black' "racial" lineage] 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 n***er 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
The conductor answered,
"I give the passenger
the benefit of the doubt."
The conductor's answerwhich Chesnutt,
[a visibly 'White' man of Multiracial ancestry
who was also a member of the Ethnic group
that has, today, been given the misnomer of]
African-American who was at that moment
[based on the racist social-construct known
as the 'One-Drop Rule']"posing" as [being
"pure"] `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 [any visible] 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"
[i.e. he admitted to being a person of
`Mixed-Race' lineage that included
'any' given amounts of 'Black' ancestry].
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" --
[THEN] 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
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 [non-scientific, black-lineage mocking
and exceedingly racist] `One-Drop Rule',
--- under which anyone with `any'
African ancestry was [to then be]
legally [categorized as] "black".
Instead, most laws across the South used
`Fractional-Rules', defining [and categorizing] as
"black" -- those with a ['known' mono-racially]
Black grandparent, or great-grandparent, or
great-great-grandparent -- depending on the state.
[In fact,]during the South Carolina
Constitutional Convention in 1895 color ,
Congressman George Dionysus Tillman,
(Photo of 'George Dionysus Tillman')
older brother of the notorious Segregationist
politician "Pitchfork Ben" Tillman,
(Photo of 'Benjamin "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."
Such actions prompted Charles Chesnutt to muse,
"I could almost write a book about these laws,
their variations, their applications and [the]
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 [and also
spreading unproven falsehoods of] "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
[racist, yet classic] 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 Carolina .
was a giant of the state bar.
Bickett and Spruill
argued vigorously over
one point of law:
the construction of
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."
[In other words, he contended that]
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
[that was unscientifically] 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
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
[racist] 'One-Drop Rules'.
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 braggedin 1943that
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 [racist] '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 [categorized as] `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./
Links regarding the false "science" & theories
behind the infamous, racist One-Drop Rule:
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