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4186The "Passing" Fancy of 'The One-Eighth-Drop Rule'

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  • multiracialbookclub
    Dec 24, 2011
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      (Article) 
      "
      PASSING" FANCY: 


      In the Jim Crow South, courts understood 
      that rigidly enforcing the rules against 
      Mixed-Marriage would have been 
      a disaster—for 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
      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'
      [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
      very near-'the-line'?"

      The conductor answered,

      "I give the passenger 
      the benefit of the doubt."

      The conductor's answer—which 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
      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 [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,

      George Dionysius Tillman 
      (Photo of 'George Dionysus Tillman')
      older brother of the notorious Segregationist
      politician "Pitchfork Ben" Tillman, 
      Benjamin Ryan Tillman, detail 
      (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
      ." 


      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 [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 .
       

      Frank's lawyer,
      Frank Shepherd-Spruill,
      was a giant of the state bar.

      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." 

      [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
      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
      [racist] '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 [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./
      SEPTEMBER|OCTOBER 2003


      http://www.legalaffairs.org/issues/September-October-2003/story_sharfstein_sepoct03.msp

      Related Posts:

      http://groups.yahoo.com/group/Generation-Mixed/message/1386 
      http://groups.yahoo.com/group/Generation-Mixed/message/1385 
      http://ballotpedia.org/wiki/index.php/South_Carolina_Constitution#Notoriety 

      Links regarding the false "science" & theories 
      behind the infamous, racist One-Drop Rule:


      http://groups.yahoo.com/group/Generation-Mixed/message/4162 
      http://groups.yahoo.com/group/Generation-Mixed/message/4160 
      http://groups.yahoo.com/group/Generation-Mixed/message/4130
      http://groups.yahoo.com/group/Generation-Mixed/message/4157 

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