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 Posted: Mon 22 Oct 2007 03:46 Post subject: Miscegenation & competing definitions of race in 20th C LA |
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| Quote: | Miscegenation and competing definitions of race in twentieth-century Louisiana.
Title Annotation: Marcus Bruce's works
Author: Brattain, Michelle
Geographic Code: 1U7LA
Date: Aug 1, 2005
Words: 18447
Publication: Journal of Southern History
ISSN: 0022-4642
MARCUS BRUCE CHRISTIAN, AN AUTHOR AND PROFESSOR AT DILLARD University, observed in the mid-nineteen-fifties that while New Orleans might be known for "gumbo, jambalaya, lagniappe, poor boy sandwiches, pralines, Mardi Gras and Creoles," it also has "another claim to distinction which has not been bruited about very loudly." New Orleans is a place, he wrote, where family lines "waver back and forth across color-lines like wet wash in a high March wind." The city has given to America "more 'passer pour blanches' [people who pass for white] than any other city in our country." A poet and scholar of black history, Christian anticipated much of the current academic interest in race as a social construction. (1) His meticulous histories of eighteenth--and nineteenth-century families recreated an era when racial lines were more fluid and southern society accepted--or at least expected--interracial sex. In the latter half of Christian's career, as a civil rights struggle charged with anxieties about interracial contact swirled around him, his interests broadened to include the progeny of those early families. Among thousands of newspaper clippings that Christian saved over his lifetime--documenting New Orleans history from the protracted fight over school desegregation to the debate over stereotypical and degrading representations of Africans in Mardi Gras--one finds dozens of society photographs, wedding announcements, and obituaries that he compiled, seemingly in an attempt to discover a similar secret interracial history of the twentieth century. In the margins, he sometimes annotated genealogies, alternate spellings, or anecdotes about similar names encountered on the other side of the color line. In 1959, for example, he noted, and documented, the strange coincidence of a death notice for a man he thought was a "Negro," who had died at an "all white" hospital, and speculated on the dead man's familial relationship to a realtor listing a "colored" apartment a couple of weeks later. Of the family name in question, he later wrote to himself, "Joubert? What about the white family that says it spells its name 'Jau' and not 'Jou' [?]" Christian often wrote simply, as he did on a 1960 photograph of a couple cutting their fiftieth-anniversary cake, the word miscegenation. (2) The basis for such judgments was rarely explained. Perhaps it was a distant memory, a rumor, or merely Christian asserting his ability as a black man to spot passer pour blanches. Unfortunately he never published his side of these stories.
For the historian who seeks to discover the secret history of the race line in the twentieth century, the record is both as suggestive and as cryptic as Marcus Christian's handwritten notes. Though interracial marriage had been illegal in Louisiana since the eighteenth century, it was common knowledge that few families could claim "pure" lineage from any group. (3) Louisianans had a saying in Christian's day that "You can take a bowl of rice and feed all the people of pure-white blood in the city." Local lore also celebrated, from the safe distance of the twentieth century, an exotic past of interracial romance symbolized by the legendary antebellum "quadroon balls." Though white Louisiana revered its cosmopolitan and interracial roots in Spanish, French, Caribbean, and African cultures, it had long ago confined such reverence to memory, adopting a more rigid, binary notion of black and white and the corresponding practices of American segregation. In the twentieth century, the law and racial etiquette absolutely prohibited amorous relationships across the color line. Yet scattered evidence, from anecdotes about "passing" to occasional newspaper reports of arrests on miscegenation charges, lends credence to Christian's hunches about the persistence of interracial relationships. Moreover, whites' concern about "race mixing," the purity of one's lineage, and the maintenance of segregation--in other words, too many whites protesting a little too much--provides grounds for suspecting the existence of significant cracks in racial solidarity. The leaders of Louisiana's White Citizens' Council, for example, frequently proclaimed that miscegenation was the secret, invidious, un-American goal of both the integrationists and the communists. (4) The state's laws formulated increasingly strict definitions of miscegenation and imposed ever-harsher penalties over the course of the first half of the twentieth century. By the 1950s the maximum punishment for a criminal conviction for interracial sex was five years in prison with or without hard labor. (5) The intensity of white anxiety in the twentieth century makes surviving traces of interracial contact more remarkable and compelling.
The realm of law was one of the few venues in which such private relationships became public. Miscegenation law and jurisprudence offer a unique, if somewhat problematic, view of a whole constellation of ideas that twentieth-century Louisianans associated with race. Although court cases permit only a limited view of actors in an artificially controlled context, recent scholarship has demonstrated the rich possibility that legal history affords for providing insight into the construction of race in the United States. An autonomous discourse in its own right, as Eva Saks has argued, miscegenation law consisted of an evolving, self-referential body of ideas and actions that acquired a power of its own, enabling it to create and sustain ideas such as the notion that race is, and resides in, "blood." (6) These statutes and cases also played a paramount role in shaping the legal status of race and racial identity, contributing to a deeply racialized but ostensibly "color blind" jurisprudence based on what Peggy Pascoe has described as a "new modernist racial ideology." (7) Moreover, the law is a matchless arena for witnessing the absurdities of racial belief and the "logic" of racial practice laid out plainly and unapologetically for the historical record.
This essay will focus on racial laws and four major case studies (only one of which is a criminal prosecution) from twentieth-century Louisiana in order to probe the meaning of race and miscegenation for one segregated but irrefutably interracial society in the Jim Crow South. ( The analysis is based primarily on court records, including testimony, briefs, and exhibits, as well as the judicial decisions and reasoning behind the resolution of each case. In spite of their limitations, these records represent a site where private relations were momentarily exposed and the indeterminate nature of race was often candidly admitted. (9) The courts themselves created a space where people expressed their unofficial "working" definitions of race, providing a fascinating insight into the adaptations of people who lived with the indeterminacy of race yet continued to believe in some essential meaning of the concept. Legal records also permit an examination of the construction of race at the legislative and judicial levels, the use of gender and sexuality in attempts to police the race lines, and, more generally, the evolution of ideas about what race meant in the mid-twentieth-century South.
Two striking conclusions emerge from an analysis of these records. First, Louisianans held much more complicated and historically contingent views of race than the statutes and court decisions alone would suggest. The legal adjudication of race in the twentieth century, as Pascoe has argued, historically had a complex, interdependent relationship with popular and scientific beliefs about race. This essay examines one aspect of that tension. By necessity, politics and the courts represented abstract law that could recognize only black and white, but the people who entered the courts worked with a more practical understanding that was also born of necessity. Most noteworthy about the testimony of people brought into Louisiana courts by miscegenation law is the fluidity and contextual nuance with which many people viewed race. In spite of the mid-twentieth century's increasingly rigid lines of demarcation with regard to race, many ordinary Louisiana citizens instinctively understood and accepted the essentially social nature of racial definitions, and they worked with these definitions in the most private areas of their lives.
Second, though miscegenation law frequently failed to prevent sex across the race line, it served another equally significant function in the twentieth century: a tool to monitor racial boundaries. Louisiana state law had often been able to tame and contain the contradictions of black and white, but by the mid-twentieth century, the demands of massive resistance increasingly brought about more ideological and less practical applications of jurisprudence. Official public records associated with essentially private and gendered actions such as birth and marriage became a gatekeeping mechanism for maintaining segregation in Louisiana schools, sports, and public conveyances. Government-employed bureaucrats carried out increasingly stringent investigations of once-routine applications for marriage licenses, death certificates, and birth certificates in order to police the boundaries of race and expose those who in the past might have "passed" as white or married across race lines. These private points of individual connection with the state, therefore, took on a substantial burden in the maintenance of racial boundaries, the punishment of miscegenation, and the defense of whiteness. The objective of anti-miscegenation law was ostensibly to discourage and punish sex across the race line, but it also permitted the state to use gender and private life to control the same boundary. In doing so, it made significant contributions to the redefinition of miscegenation and race itself.
Incidents of "race mixture" and white attempts to control such encounters have a long and infamous history in the South. Although prohibition of interracial sex was typically legislators' stated objective, recent scholarship also underscores the deeply contextual nature of the statutes' various incarnations. In colonial Virginia, where the earliest legislation on interracial liaisons appeared in 1662, the law reflected first the English conception of broadly defined racial hierarchy and later the social and economic dominance of explicitly racial slavery. At all times, colonial law addressed the reality of ongoing racial mixing, even as it represented what A. Leon Higginbotham Jr. and Barbara K. Kopytoff have aptly described as "attempts to patch holes in the fabric of the system." (10)
The solution, as Peter W. Bardaglio puts it, was a legal attempt "not so much to eliminate interracial sexual contacts as to channel them" in directions that bolstered the slave system and existing racial and gender hierarchies. (11) While the specific definitions of the crime and punishment varied, as Charles Robinson notes, "In each colony a violation of the law required some party, man, woman, and/or child, to make restitution by sacrificing freedom." Doubling the fine for interracial fornication, Virginia's assembly, for example, declared in 1662 that an interracial child's status would follow that of the mother. This ruling insured that the most common transgression of the color line--between black women and white men--would not undermine a social system increasingly based on a dichotomy between black slaves and free white persons. Maryland's 1664 anti-miscegenation law did not proscribe marriage, but it declared that a white woman who married a slave would serve that slave's master for the remainder of the husband's life and that any offspring would be required to labor for the parish for thirty-one years. After 1692 in Maryland and 1725 in Pennsylvania, free black men who married white women were sentenced to a lifetime of slavery. In the first half of the eighteenth century, Massachusetts, North Carolina, South Carolina, Delaware, and Georgia enacted provisions similar to those of Virginia, Maryland, and Pennsylvania. (12) Colonial officials also singled out white women who had sex with black men for special punishment, a double standard that reflected, among other concerns, a perceived need both to control white female sexuality and to eliminate the threat that interracial offspring posed to the institution of slavery. (13)
Because statutes were created and enforced on a state-by-state basis, it is difficult to generalize about American anti-miscegenation law prior to Loving v. Virginia, the 1967 U.S. Supreme Court decision that outlawed marriage regulations based on race. By the mid-nineteenth century, though, twenty-one of thirty-four states had passed legislation to proscribe or limit interracial sex. Most banned interracial marriage, but as Charles Robinson and Peter Wallenstein demonstrate in their histories of anti-miscegenation law, the level of enforcement and specific penalties varied considerably, even within the South. South Carolina, for example, forbade white women to have children with nonwhite men, but it did not outlaw marriage between them. Alabama and Mississippi, on the other hand, outlawed marriage, but those states did not have an antebellum law prohibiting interracial sex. Only Georgia and Florida explicitly banned interracial cohabitation. However, a lack of specific anti-miscegenation laws did not necessarily indicate state lenience, as Robinson shows, for other states occasionally punished interracial sex under adultery or fornication laws, particularly if the case involved a public relationship between a white woman and a black man. (14) Collectively, because many state laws shared a concern with defining races, the whole body of anti-miscegenation law made important contributions to the construction of race by establishing local, legal definitions of whiteness and affirming the conception of blackness as an algebraic function of one's "blood." (15) A number of state legislatures decreed how much--one-fourth or one-eighth--black ancestry or "blood" made a person legally black. (16)
Louisiana varied somewhat from the American and southern norms because of its background as a French and Spanish colony. Louisianans historically tolerated interracial unions and grudgingly acknowledged their existence, but most of the state's residents did not condone such relationships. French law, for example, did not initially prevent European settlers in Louisiana from intermarrying or cohabiting with Indians, though French authorities, fearing the material, social, and religious implications of race-mixing (or metissage), attempted to stop the practice by promoting the immigration of French women to be wives. (17) The French did introduce an anti-miscegenation law in 1724 with severe penalties for interracial sex, but colonial authorities seldom enforced it. Spanish colonial officials, who took control of the territory in 1769, found it equally difficult to prevent interracial sex, even though prohibitions on marriage and on public sexual affairs outside of marriage--known legally as "concubinage"--remained in place. Indeed interracial unions occurred often enough that the French and the Spanish legal systems recognized three distinct populations: Europeans, free people of color, and slaves. When Louisiana became part of the United States, some elements of this system persisted, as Louisiana outlawed marriages between people from three, rather than two, groups: free people of color, black slaves, and whites. However, American laws did not attempt to prohibit or punish concubinage, instead enacting measures to maintain the racial caste system and white supremacy. (1 White society also provided a ritualized outlet for such extramarital unions in quadroon balls, events organized by white entrepreneurs where wealthy white men courted quadroon women. This courting led not to marriage but to a similarly legal and contractual relationship known locally as placage, whereby a white gentleman supported a young quadroon woman and her mother, provided them with a home, and gave his name to any offspring. But as Monique Guillory has argued, the quadroon balls did not represent a thoroughgoing acceptance of interracial sex, for the whole ritual was carefully contained, institutionalized, and legally limited in contract. (19)
In the early nineteenth century, as moral reformers encouraged the spread of anti-miscegenation laws throughout the United States, Louisiana law continued to reflect a greater preoccupation with racial hierarchy and property than with sex. (20) In 1825, for example, the legislature revised the civil code to outlaw the legitimization of biracial children by white fathers, prohibit children of color from claiming paternity from white fathers, and make it more difficult for biracial children to receive an inheritance by disallowing all but formal legal acknowledgement as a basis for establishing paternity. Through such measures Louisianans eliminated the old French laws governing support of children born within placage and protected the interests of white heirs from siblings of color. Interracial marriage remained illegal in the sense that it was legally invalid, but the law did not prescribe punishment for violators. (21)
The Civil War and Reconstruction temporarily undermined but ultimately strengthened most southern anti-miscegenation laws. The end of slavery intensified white southern fears of interracial sex, and emancipation was frequently touted as the first step to total social equality and unrestricted sex across the race line. (22) Indeed, the term miscegenation was coined in 1863 in a pamphlet, falsely attributed to the Republican Party, that espoused interracial sex. (23) In their brief return to southern statehouses during the first phase of Reconstruction, former Confederates accordingly attempted to reiterate and strengthen antebellum anti-miscegenation laws in black codes and revised state constitutions. When congressional radicals took control of Reconstruction, however, the resulting empowerment of black Republicans throughout the South meant that a number of states effectively eliminated restrictions on interracial relationships, in many cases by simply failing to enforce existing laws. Across the South, in Robinson's words, Reconstruction "blurred the social lines just enough to encourage some blacks and whites to form conspicuous interracial relationships." In 1868 Louisiana became the only southern state to repeal its anti-miscegenation laws as a result of black Republican leadership in the legislature. The restoration of white Democratic control in the 1870s, however, resulted in renewed restrictions on formal interracial relationships, if not interracial sex, in every state but Louisiana. (24) Louisiana, for a short while, also remained unique in not adopting anti-miscegenation laws during Redemption.
In the 1890s, however, as white southern legislatures codified segregation, many state officials cracked down on interracial relationships with renewed legal vigor. Louisiana's legislature followed suit in 1894 and became the last southern state to reintroduce prohibitions on interracial marriage. Fear of interracial promiscuity likewise served as a compelling argument for segregation. Urbanization and industrialization at the turn of the century exacerbated the fears of white southerners because both black and white women moved freely in workplaces, on city streets, on streetcars and trains, and as patrons of commercial amusements--all sites outside the scope of traditional patriarchal and racial authorities. Many whites, in Edward Ayers's words, found "[t]he sexual charge that might be created among strangers temporarily placed in intimate surroundings" intolerable, even if it did not result in direct physical contact. In 1890 an editorial in a New Orleans newspaper argued in favor of segregated railcars, by stating that any person "who believe[d] that the white race should be kept pure from African taint" opposed the "commingling of the races inevitable in a 'mixed car.'" Articulating what the New Orleans editorial left to the imagination, a Tennessee newspaper recounted one unfortunate white man's horror upon discovering that the young object of an extended flirtation on an unsegregated train was not, in fact, white. (25)
Late-nineteenth-century courts also increasingly cited "racial integrity" as the goal of anti-miscegenation laws, claiming that interracial unions were biologically unsound and therefore subject to the state's intervention. As the courts repeatedly confronted the failure of such statutes and a growing population of mixed-race persons, proponents of banning interracial sex defended and refined their arguments, which reflected a mixture of scientific racism, eugenics, "reform" impulses, and the desirability of maintaining racial "purity." Significantly, in the late nineteenth and early twentieth centuries the shift from a law based on slavery to one based on the state's interest in racial integrity and public welfare also created a legislative opening to extend bans beyond black-white liaisons to whites' interactions with other nonwhite groups. Virginia's 1924 racial integrity law, for example, declared that it would be "unlawful for any white person in this State to marry any save a white person, or a person with no other admixture of blood than white and American Indian." The exception granted to American Indians--the so-called Pocahontas clause--also neatly demonstrated the susceptibility of law to current political and social concerns. Whiteness included Indian-ness as a concession to members of the Virginia elite who otherwise would have no longer been white. (26)
In twentieth-century Louisiana, anti-miscegenation jurisprudence continued to reflect concerns with property and, particularly, racial boundaries. (27) As Virginia Dominguez argues, laws banning interracial marriage and cohabitation, as well as statutes that denied nonwhite children the right to inherit or to receive legal acknowledgment of white paternity, "all amount[ed] to legal efforts historically to ensure that relationship by 'blood' did not entail equality of status or through equality of status equal access to property." Moreover, the position of anti-miscegenation law in the Louisiana state code suggests the strength of state prohibitions. The code paired prohibition of miscegenation with prohibition of incest of the first order between consanguineous relatives, rather than with other articles that dealt with adultery and second-order incest. In Dominguez's words, the pairing "seems awkward but is telling": white lawmakers equated miscegenation with the most socially abhorrent sexual deviance defined by the law. (2
If one looks back over Louisiana court records prior to Loving v. Virginia's invalidation of anti-miscegenation laws in 1967 and Louisiana's repeal of its own law in 1972, however, one finds a curious discrepancy between the large amount of white political rhetoric devoted to miscegenation and the small number of cases about sex across the race line. While state laws defining miscegenation and race itself ostensibly sought to insure that interracial sex could not go undiscovered or unpunished, the state's legal record of prosecutions and administrations of related issues in marriage, divorce, and inheritance proceedings is surprisingly sparse. The Louisiana Supreme Court reviewed more civil cases related to miscegenation than the highest court of any other southern state, a reflection, perhaps, of its unique cultural heritage, but this represented a total of only nineteen cases between 1868 and 1967. (29)
If one were to take the appellate court' s record as the measure of the incidence of interracial sex, it would seem as though such unions almost never happened and, from the white state's point of view, that segregation was working. (30) As Robinson has noted, Louisiana was "a southern state that legally both condemned and tolerated interracial sexual violators." In this respect it resembled other states in the region, as strict anti-miscegenation laws did not necessarily result in a strict execution of them. Rather, anti-miscegenation law seems to have functioned primarily as a social tool to discourage the public, domestic interracial relationships that were more easily monitored by the law. (31) Between 1894, when Louisiana passed its anti-miscegenation statute, and 1967, when anti-miscegenation laws were invalidated by the U.S. Supreme Court ruling in Loving v. Virginia, only five criminal cases appear in the state case law. (32) Only two criminal cases heard at the appellate level, State v. Daniel (1910) and State v. Harris (1922), resulted in conviction. Perhaps most surprising, State of Louisiana v. Brown and Aymond (1959)--a case prosecuted in the heat of conflict over integration and in which both of the accused confessed--was dismissed by the Louisiana Supreme Court. Yet such cases, even in their rarity, provide a provocative view of wider beliefs and practices.
The Brown and Aymond case, for example, not only reveals much about the complex of ideas and white anxieties surrounding miscegenation but also provides many clues to why prosecutions of miscegenation were so rare. The case concerned James Brown, Negro, and Lucille Aymond, white, co-workers at a dry-cleaner's shop in the rural, central Louisiana parish of Avoyelles. Local police arrested them after their boss, David Blalock, described their "suspicious" behavior to the sheriff. Blalock had become concerned that Brown and Aymond were too friendly. He said as much to Lucille Aymond and warned her to stay away from Brown. The deputy sheriff arrested Brown and then Aymond. After three hours of questioning, Brown confessed that he and Aymond had had intercourse in the bathroom of the shop one day when Blalock was out. After two hours of questioning, Aymond also confessed to the incident. Their confessions, which were riddled with leading questions, were read into the civil district court record. Both were indicted by the grand jury, tried and convicted together in the Avoyelles district court, and sentenced to a year of hard labor in the state penitentiary in Angola. (33)
Although Blalock had never seen physical contact between the two, their initial transgression had been a friendship that defied customary racial etiquette. "I told her there was too much familiarity between the two of them," he testified, and "that I'd like for her to stay on her side of the shop and do her work and stay away from his side where his work was." Indeed, Blalock confessed to the court that he had misgivings about hiring a black man to work with Aymond in the first place. "I asked Mrs. Aymond if it was agreeable and all right to have a colored man working along with her and if she could stay in her place and keep him in his place," he explained, "because I don't like to mix the two sexes and two races together." According to Blalock, Aymond had replied that "she had worked with [Brown] before and liked him and thought he was a nice fellow." (34)
When Blalock was pressed to define the "familiarity" he found so objectionable, he replied, "Well, [Aymond] waiting on him, serving him coffee, making him his coffee and bringing it to him, drinking coffee with him. She with her cup and he with his standing together drinking coffee." (35) Of course, drinking coffee together is not ordinarily indicative of sexual intimacy. But by defying the usual lines of servility and putting Aymond in the role of a white female employee serving a black man, their coffee breaks did breach the customs of Jim Crow. Racial etiquette strictly constrained the range of acceptable interactions between black men and white women. For the judge and jury, Aymond and Brown's breaks may have evoked other exchanges with sexual overtones--for example, the image of a secretary serving a boss, also an ostensibly professional relationship but one that labor historians have long understood to be emotionally charged. (36) Blalock made a point of noting that they drank coffee at the "back of the shop" rather than in areas where they would be subject to the scrutiny of customers. Simply putting themselves in such a position, he implied, merited suspicion. He also reported that neighbors were talking about the two and that Aymond and her husband socialized with Brown outside of work, attending boxing matches and traveling together to New Orleans. (37)
The Brown-Aymond affair thus dovetailed with many of the myths perpetuated by overwrought whites in the age of integration--namely, that integrated workplaces, lapses in etiquette, and social mixing were dangerous because they all led to one thing: interracial sex. Prompted by leading questions, Brown and Aymond each portrayed the other in ways that were consistent with cliches about interracial sex. In their confessions, neither admitted to a romantic or consensual affair. According to Brown, Aymond was, in his 1950s parlance, no "lady." She talked "about men and women all the time," Brown charged, "so finally one day she told me if I didn't lay her I would be sorry." In contrast, Aymond portrayed Brown as the aggressor and herself as a penitent victim, who had been inexplicably overwhelmed by Brown's advances: "I don't know what made me do it. It just seemed that when he asked me, I just had to give it to him. I don't know why, I don't know what came over me." (3
Although Brown and Aymond's defense attorney argued, among other points, that the statute against miscegenation was unconstitutional, the Louisiana Supreme Court took the opportunity to reassert the state's right to regulate sex. Citing two United States Supreme Court rulings, the justices noted that Pace v. State of Alabama (1883) held that antimiscegenation laws did not violate the equal protection clause of the Constitution because equal penalties were imposed on each race. Indeed the district attorney noted in his brief that "we most likely could have made a deal with one of the parties, say Mrs. Aymond, to turn State's evidence, but we felt that certainly both were equally guilty and that to do so would have been discriminatory." As to the constitutionality of antimiscegenation law, the Louisiana Supreme Court asserted that the law fell "squarely within the police power of the state, which has an interest in maintaining the purity of the races and in preventing the propagation of half-breed children." Then, in an odd twist, the court reworked the arguments put forth in Brown v. Board of Education as justification for its own ruling in State v. Brown and Aymond. "Half-breed" children found it difficult to be accepted, the Louisiana court declared, and quoting the Brown decision, it observed that there is "no doubt that children in such a situation are burdened 'with a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.'" (39)
Despite the court's ardent defense of the anti-miscegenation laws, details of the case reveal a lack of urgency on the matter at the local level. Blalock did not rush out to report the incident to the police. Nor were Brown and Aymond particularly secretive about their friendship. In fact, Brown had initially been arrested because Blalock charged that Brown had embezzled money from him. Only then had Blalock mentioned his other suspicions to Leon Franklin, a deputy sheriff who decided to conduct his own investigation of possible miscegenation. If the two had not confessed, it is easy to imagine that the charges might have been a subterfuge for Franklin to hassle Brown at the behest of Blalock, who was angry about something else. The questions posed to Brown suggested that Blalock had been suspicious for some time. He even claimed to have caught them in the act. According to a transcript of the interrogation, Franklin asked Brown, "James when Mr. David came to the laundry, one day, he said Miss Lucille come out of the rest room and he didn't see you ... when he got to the shop no one was in the front part, he called and no one answered, after a few minutes Lucille came out of the rest room straightening her clothes. A little later Mr. David said you came in the front door. He said he then suspicioned something was wrong, and he went into the back and the back door was opened which he said he always kept closed. Was that one of the days you had a sexual intercourse with Lucille?" Brown denied it, but he did so within the rules of Jim Crow, addressing the deputy as "Mr. Leon." Only much later did he admit an affair with Aymond, and then he conceded, "yes, sir, I know it was wrong." (40)
The other important factor with bearing on how to read the historical record was the difficulty of proving miscegenation in court. Article 79 of the Louisiana Criminal Code defined it as "the marriage or habitual cohabitation of with knowledge of their difference in race, between a person of the Caucasian or white race and a person of the colored or Negro race." (41) While the court read "cohabit" as including more generally "sexual relations or acts of sexual intercourse," the crime itself was difficult to prove. Sharing a home was "strong, if not convincing, evidence of habitual intercourse," according to the court. Interracial marriages were proof of a violation, but such cases were rarely before the judges. Had Aymond produced some of the "half-breed" children that so concerned the court, they might have served as proof. But in this particular case the only evidence that illegal sex had taken place was Blalock's suspicion and the confessions. On the witness stand, Blalock admitted that he had not seen Brown and Aymond have any physical contact. The state had, in the court's words, "no other evidence, 'literally none at all.'" Nor would the confessions suffice. A basic rule of criminal law holds that conviction requires a corpus delicti, or proof that a crime has been committed. Confessions could not be admitted into the record until the commission of a crime had been established. Thus, the Louisiana Supreme Court ruled that the confessions did not constitute grounds to convict and reversed the lower court's verdict. (42)
The difficulty of proving interracial sex outside of marriage, as demonstrated by State v. Brown and Aymond, may explain the sparse court record on the issue at the appellate level. Though many whites told themselves that informed, consensual sex between races was unimaginable, interracial sex did occur; when it occurred secretly, outside of marriage or a home, that circumstance could circumvent the state's usual legal gatekeeping mechanisms. (43) Appellate cases, in spite of their accessibility to historians, might not be the level where most convictions or accusations can be found. Brown and Aymond were atypical in choosing to appeal. Their attorney, armed with the decision in Perez v. Sharp, a 1948 California case that overruled the state's anti-miscegenation law, may have believed the time was right to challenge the constitutionality of Louisiana's law. (44) The Louisiana Supreme Court, in turn, may have granted a rehearing because the justices wanted to reassert the constitutionality of their state law. Criminal prosecutions probably occurred more often, and perhaps proceeded more successfully, at the local level. The Times-Picayune, for example, reported a handful of prosecutions in New Orleans and its vicinity in the postwar years. Marcus Christian kept records on official accusations as well as documents supporting his own suspicions. (45) Furthermore, not all cases went to court. A highly publicized racial identity case involving Ralph Dupas, a professional boxer who sued to obtain a "white" birth certificate necessary to compete in segregated bouts, was preceded by a 1956 miscegenation charge leveled against his brother Peter. That charge was dropped, and at least two couples charged with illegal marriages by the same grand jury resided in states that refused to extradite them. (46)
State v. Brown and Aymond also underlines the persistence of extralegal means to prevent sex across the race line. Communities deployed ostracism and gossip, and because white southern culture would not recognize the willing consent of white women, white anxiety and anger were also channeled into demonizing black men as rapists and using threats of lynching to punish alleged transgressions. (47) Blalock, for example, had first confronted Aymond directly, and his testimony suggested that talking may have also been intended to shame the couple into more discretion, if not an end to their affair.
Miscegenation does appear, however, with some regularity elsewhere in the state's legal record, and these cases suggest ways that couples may have hidden sexual relationships under the cover of more traditional black-white relationships. A large body of civil case law concerning inheritance, succession, and concubinage includes numerous cases of interracial relationships brought to the court's attention throughout the first half of the twentieth century. The significance of this category of law is suggested by the statutory record in Louisiana, which until 1942 addressed miscegenation primarily under laws about concubinage, rather than marriage. As the Louisiana Supreme Court acknowledged in Succession of Lannes (1936), "Various kinds of disguises have been utilized by parties to conceal the relation of concubinage--housekeeper, storekeeper, cook, maid, nurse, niece, sister-in-law, etc." (4 The first five categories were particularly meaningful for black women and white men, as black women more often held such jobs in white households. Christian's unpublished manuscript also contains similar anecdotes. (49) Historians have likewise recognized the intimacy inherent in such relationships as well as the sexual vulnerability that employment in white households imposed on black women. In at least a few cases, the record suggests that jobs otherwise conforming to expectations of white-black relationships may have provided cover for illicit relationships. (50)
The relationship between J.W. Jones, white, and his "cook" Amanda Kyle, Negro, seems to have been such a case. Kyle lived in Jones's house from 1904 until 1907 or 1908 and, after that, in a house he built for her on his property. Kyle cooked and kept house for Jones and waited on customers at his store. They did not have children, but, according to the neighbors, "general talk" was that Jones was "keeping" Kyle. One acquaintance even claimed to have found them in bed together. Apparently no one ever reported their activity as criminal. The relationship might have never appeared in the record had Jones not left all of his considerable estate, worth approximately $40,000 in 1926, to Kyle, provoking a challenge from Jones's nieces and nephews. In court, the nieces and nephews attacked the relationship and charged that Kyle and Jones had lived together in a state of illegal "open concubinage." As defined by Louisiana law, "open concubinage" was more morally repugnant and damaging to community morals than secret concubinage and was therefore punished by limiting the surviving partner's right to inherit from the other's estate. (51) Kyle denied that she was any more to Jones than his cook, and at least a dozen witnesses so testified on her behalf. Interestingly the legal issue was not the relationship per se, but whether it was open or secret, which had a direct bearing on her fight to inherit. The court concluded that Kyle and Jones had been a couple, citing among other evidence her access to Jones's cash drawer and their living together, but the court disagreed with Jones's nieces and nephews, concluding that the relationship was secret. Jones hid his relationship while keeping "her in his employ ostensibly as cook and housekeeper and assistant in his store...." In fact, by folding the document so that only the signature lines were exposed, he had even kept the contents of his will a secret from the witnesses who signed it. Therefore Kyle was allowed to inherit Jones's estate. (52)
It would of course be a mistake to draw too broad a conclusion from this case, as the employer-employee relationship can be entirely professional, entirely antagonistic, or simply abusive. In many situations, household service subjected women to sexual harassment and made them vulnerable to assault. The white mythology of black hypersexuality historically subjected black women to much abuse that white men described as consensual. But the existence of Amanda Kyle and those involved in a handful of similar cases in the twentieth century does suggest a significant loophole in Jim Crow laws where interracial relationships could escape attention. (53) As many labor historians note, the private and intimate nature of household service historically posed a latent ideological challenge to segregation, even if white society's commitment to having inexpensive and readily available black help always tromped such ideological inconsistencies. Indeed, some historians argue that the figure of an asexual, apolitical, maternal black household worker serving the white home was central to whites' self-image and exercise of power at the turn of the century. (54) It is thus deeply ironic that given white preoccupation with preventing interracial sex as the key to maintaining whiteness, the service of black workers provided a site where interracial intimacy could be hidden or denied. The employer-servant relationship was one that most whites accepted as natural, appropriate, and even benign. Significantly, in the case of J. W. Jones and Amanda Kyle, the neighbors talked, but no one challenged the appropriateness of a white man having a live-in black female housekeeper.
By far the most visible arena of state activism against miscegenation, however, was directed toward preventing it, not punishing it. In Louisiana, state definitions of who was white and who was black did not always correspond to social definitions, so anti-miscegenation law often required steps to prevent an inadvertent marriage of people across the race line. One of Marcus Christian's strategies in looking for clues to miscegenation, for example, was to scour the Times-Picayune white society pages for photographs of racially ambiguous "whites." (55) Interestingly, state officials often worked with some of the same "folk" indicators of race that Christian employed, and they sometimes delayed or denied marriage licenses on the basis of any number of factors: a suspicious surname, an applicant having been born in a locale known to have a large mixed-race population, and simply the officials' own doubts. Local registrars acted on their authority as long-term residents, who "knew" which families were black and which were white. The state bureau of vital statistics and its counterpart in New Orleans (the two offices under the state board of health charged with maintaining records) also used access to vital statistics to verify and maintain the integrity of racial statistics. (56) The requirement that race appear on marriage licenses probably prevented an untold number of persons from unknowingly marrying across the legal line separating black from white. Members of "white" families, when informed that the family had a "touch of the tar brush," might complain, write letters to their state representative, appeal to the directors of the board of health, or even bring a lineup of blue-eyed, blond relatives to the registrar's office, but, according to bureau employees, the angered family often avoided court because of the potential for public exposure. (57)
Licensing of marriage thus provided the state its main legal avenue to intervene against interracial relationships and, in turn, played a singular role in shaping the law of racial identity in Louisiana. Twentieth-century racial identity trials, including those in Louisiana, have received considerable attention from scholars, and the trials in the following case studies generally conform to the dynamics identified in those studies. The legal system in Louisiana, as elsewhere in the United States, defined whiteness in terms of exclusion. It said not what made a person white, but what put a person outside the favored class. As legal scholars and historians have shown, this standard has variously served to defend white supremacy, limit access to citizenship, deprive nonwhite groups of property and civil rights, and maintain "racial integrity." (5 Anti-miscegenation law has also played a primary role in defining whiteness and in shaping the legal discourse of race. (59)
In the first half of the twentieth century, Louisiana's legislature and supreme court attempted to eliminate any remaining loopholes allowing marriage between whites and mixed-race persons. In doing so the legislature and court imposed both the notorious "one-drop" rule and the extraordinary legal standard of "no room for doubt" for those who might challenge their legal racial designation. State v. Treadaway et al. (1910), for example, considered the legality of a relationship between Octave Treadaway, white, and his companion, Josephine Lightell, an octoroon (commonly understood in Louisiana to be someone "one-eighth Negro"). The law subject to debate in this case was a 1908 statute making interracial concubinage between whites and persons "of the [N]egro or black race" a felony. Given the historic use of the terms Negro and black in Louisiana, the state supreme court was forced to determine that an "octoroon" was perhaps "colored," but not a "Negro," and therefore not covered by the 1908 law. (60) However, the decision prompted the next session of the state legislature to make a hasty revision of the law to include any "person of the colored or black race...." (61) "Colored," the Louisiana Supreme Court bad decided, was a category broader than "Negro" and included a person of "mixed blood." As Dominguez argues, this case was an important turning point in Louisiana history away from the old tripartite system (black, white, and colored) toward a binary understanding of race (black/white) and reflected a changing ideological climate. (62) In 1938 another intermarriage case, Sunseri v. Cassagne, firmly established the "one-drop" rule in Louisiana jurisprudence, as the court decided that any trace of African ancestry required a person to be designated "colored." (63) The case did not involve criminal miscegenation, but the race of a wife and thus the legality of a marriage were at issue.
Sunseri, like all the cases considered in this essay, indicated the important and recurring role that knowledge of race--and particularly the state's control of that knowledge--played in cases involving miscegenation. In Brown and Aymond's case, one argument made by their defense had been that the state had not proven the race of the defendants or their knowledge of each other's race. The statute describing criminal miscegenation specifically noted that violation of the law required knowledge of race by the accused parties. Although the district attorney argued that "the jurors certainly had an opportunity to view the defendants and observe their color," observation often proved less important than knowledge of official records in establishing legal racial identity. (64) Inclusion of that phrase in the law itself gestured toward an important area in Louisiana jurisprudence, as the race of one party was often the issue under litigation.
While Sunseri is frequently cited as the preeminent example of white Louisiana's dogmatic inflexibility on matters of black and white, a closer examination of the full case record--a level of documentation often overlooked in legal studies--provides insight into the popular understandings of race that often governed relationships and ultimately decisions about marriage. In 1936 Cyril P. Sunseri, a New Orleans resident facing prosecution for nonpayment of alimony, filed for an annulment of his marriage on the grounds that his wife, Verna Cassagne, was "a person of color." The state supreme court eventually determined that Cassagne was a descendant of Fanny Ducre, a former slave, with traceable African ancestry and therefore annulled the marriage; however, the testimony collected in the civil district court provides a unique and revealing insight into the collective popular perceptions of race in mid-twentieth-century Louisiana. It poignantly speaks to the legal conundrum in distinguishing between representation and essence, as Eva Saks has so ably described. But the record also reveals the essentially epistemological, or socially learned, nature of race in everyday life. The court made a simple black-white decision, but repeatedly witnesses proved reluctant, if not unable, to do the same. (65)
Cyril Sunseri and Verna Cassagne met while she was attending a white high school. In 1935, when she was seventeen, they eloped and then moved in with her mother, Stella Cusachs Cassagne. They lived together for several months, until, according to Verna and Stella Cassagne and several friends of the family, Cyril Sunseri became abusive and Stella Cassagne evicted him from the house. Sunseri claimed that he left on his own accord "when he found out what kind of tramp she was." Because Verna Cassagne was a minor, the case fell under the jurisdiction of the juvenile court, which ordered Sunseri to pay support. Although his reference to Cassagne as a "tramp" deployed a common racial stereotype, he claimed that race was not the issue when they first separated. According to Sunseri, "It must have been three weeks or so after I had left her when someone told me they heard she had colored blood and I started investigating." (66) He contacted a lawyer and his senator and filed for annulment. His case rested on the status of Verna Cassagne's great-great-grandmother Fanny, a slave emancipated in 1837 by Leander Ducre, her white owner who later became her husband. Fanny Ducre was identified on subsequent documents, notarial acts under which she acquired slaves, as "F.W.C.," or "Free woman of color," and "F.C.L.," or Femme de Couleur Libre, ambiguous terms that applied in the antebellum period to anyone not recognized as purely "white," but these labels did not necessarily mean someone of African descent or someone who had been a slave. The term Colored became synonymous with Negro only after the Civil War. (67) Cassagne's lawyers appealed to Louisiana's equivalent of the Virginia Pocahontas clause and argued that Fanny Ducre was an Indian, not a Negro. (6
The court considered documentary evidence such as certificates of birth, marriage, and death; obituaries; and voter registration records, as well as witness testimony on how the Cassagnes conducted themselves as white people. Verna Cassagne had been born in a white maternity ward, had received her first communion in a white church, had attended white public schools, and had graduated from a white girls' school. Her mother was vice president of the New Orleans Linen Supply Company, a "white organization," according to the court; was a registered white Democratic voter; and had participated in several primary elections--without challenge, the court emphasized. Both women had occupied white seats on buses, streetcars, and trains, and they attended theaters, patronized hotels, and ate at restaurants for whites. Stella Cassagne's explanation for the most damning evidence, Verna's birth certificate identifying her as "colored," was that when a representative of the board of health had come to her home after the birth, she was ill, an aunt, now deceased, had filled out the card, and the board had made a mistake. The original card, according to the chief clerk, had been lost. (69)
Over a dozen witnesses who had known Fanny Ducre and her descendants were called to the stand, and much of the testimony concerned the appearances, both physical and social, of the family members in question. Witnesses disagreed on how to identify a white, a Negro, and an Indian, and they provided wildly contradictory descriptions. Various witnesses described Fanny Ducre as "a nigger woman, plain straight"; "dark skinned"; "black"; "of a copper color" with "long straight black hair"; "someone who always did go for white"; as having "tolerable fair hair, what we call Madagascar hair"; "just like an Indian and nice hair hanging straight back, just as straight as you want"; and always "taken for white people." (70) The distinction between "Indian" and "Negro" proved particularly difficult to pin down in court. Questioning a woman who identified herself as "colored," the district attorney asked, "Aunt Fanny was about your color, wasn't she?" He received the answer, "No, just like I tell you, just like an Indian." When he replied, "Don't tell us that. Tell us what an Indian looks like," she could only add, "Just like an Indian." The court then pressed for elaboration: "What do you mean by an Indian? How did she look?" "Well," the witness replied, "an Indian look a nice color. I can't say, me. You don't see Indian?" (71) The attorneys occasionally tried to pin down descriptions by asking witnesses to compare Fanny to themselves: "Your color is considered brown or yellow, isn't it?" and "Was your hair straight before it went gray?" (72) A woman identified as Fanny's daughter-in-law told the court, "She was black, she was about my color. She couldn't be white, you know I can't be white, can I? She was about my color, no difference in her and me." Even with such direct comparisons, the results were absurd, as the court recognized the subjectivity of descriptions and then entered its own opinion as fact. Of the daughter-in-law, the court "admitted that this witness is a very dark negress, the usual color of a person of Negro race, a full-blooded Negro." The record was peppered with such observations: "It is admitted the witness's hair is kinky." (73)
Though many witnesses entered physical descriptions with some certainty, few made confident pronouncements about the race of a subject in question. Most of the testimony merely underlined the uncertainty of whether Fanny and her descendants were white or black. Some suggested that Fanny and her children had "passed" as white, although the court in this case focused exclusively on the issue of the marriage rather than the question of deliberate deception. Many accounts made it clear that racial definitions were contextual and contingent. When the deputy recorder of births, deaths, and marriages in New Orleans was questioned about the death certificate of one of Fanny Ducre's sons, Drauzin Ducre, he said that he knew the deceased man but was uncertain about Ducre's race. "Well," he told the court, "I wasn't a native over there, but he was always considered colored, but of course I never looked in--had no occasion to look up whether he was or not." (74) Another witness who knew Drauzin Ducre said that "he might be a white man, he never told me, but he always used go with the white people, never come amongst us [colored] at all." (75) Another witness testified that Fanny's other son, Toussaint Ducre, was a "Negro" but looked like a white man. "He could pass anywhere for a white man," she told the court, "and I can prove it because he worked for a white man and went to the St. Charles [Hotel] with him." (76) When the registrar of Lacombe answered questions about Verna Cassagne's mother, Stella Cusachs, she said, "The hearsay was always they [the Cusachs] were colored and that I couldn't prove." When asked whether this was majority opinion in Lacombe, she could say only that "amongst the white people they were always considered colored." (77)
That the testimony about relatives several generations back should be contradictory is perhaps not surprising, but more striking were the conditional terms with which witnesses deployed racial categories with respect to themselves or the defendants. When a resident of Lacombe, who testified as an acquaintance of Fanny Ducre, was asked whether she herself was "colored," she replied, "Well, I will tell you the truth, I can't tell you I am colored and I can't tell you I am white, because I may be Italian, my mother and father, and l can't say if they were white or colored, you understand, a person should come with the truth." The court declared her "light tan or light brown" but did not admit whether she was "colored" or "white." Interestingly, this witness was nevertheless certain about what race Fanny Ducre's daughter should be: "She always did go for white, but she wasn't. She was colored." (7 A friend of the Cassagnes, Pauline Roubion, who lived with Stella Cassagne when the newlywed Sunseris moved in, described herself as being of "Italian descent"--ordinarily a marker for whiteness--but was surprisingly noncommittal when asked about her "race." Asked whether she was white, she replied: "I think I am.... Well, maybe, some might think I am colored because I am supposed to be staying with colored people or I stayed with colored people [the Cassagnes]." However, she had never heard anyone say that the Cassagnes were "colored." Verna Cassagne's attorney declared that Roubion was white; Cyril Sunseri's attorney admitted only that "she has the appearance of a white person." (79) Even Sunseri, when asked about his friends, who were not subjects of the proceedings at hand, answered vaguely and said only "I knew them as being white." (80) Neighbors, according to an acquaintance of the Cassagnes, had called them "Negroes," and though the Cassagnes allegedly threatened to file charges, they never did. (81) Verna Cassagne said she had "been taught" that she was of French, Spanish, and English descent. Sunseri's attorneys claimed that the Cassagnes had become known as white only when they moved to New Orleans. (82)
The manner in which witnesses described race was striking--resembling the observations of historians more than the answers one might expect from people living under segregation. However, mid-twentieth-century Louisianans did not believe that race was simply a social construction; most of the people in court, whether they identified themselves as "white" or "colored"--and certainly the ones who ventured speculation about people passing as white--probably did believe that there were genuine categories of "colored" and "white." Their testimony also indicated that they believed that there was a right answer about who belonged in which one. But they also believed that they could be wrong and seem to have intuitively understood the fluidity of one measure and the rigidity of the other.
The operative phrase for many was "to know someone as." Many of the witnesses implicitly recognized the distance between an epistemological understanding of race as something "known" and a kind of absolute, hidden essence of race that supposedly lay behind the legally valid, official designation. Yet they still seemed committed to the metaphysical view that there really was a racial fact of the matter. In other words they admitted that they could not read race on a body or know race with certainty when they encountered a person in day-to-day life. Until a person landed in court or official records were checked, social knowledge was the information that mattered. Even the Louisiana Supreme Court, which had granted Verna Cassagne a second opportunity to gather evidence to prove her whiteness, acknowledged the significance of such social validation. In the first trial, the court concluded, "the evidence, while persuasive, is not conclusive and does not warrant us in holding that defendant is a member of the colored race, particularly in view of the overwhelming testimony that she and her immediate associates have always been regarded as members of the white race and have associated with persons of that race." Both the court and the witnesses thus implicitly recognized two sorts of identity, neither of which could be absolutely determined by physical descriptions or, in this case, by documentary records. Unfortunately for Verna Cassagne, on a second hearing the court determined that birth and marriage certificates identifying her mother, her aunts, and herself as colored were more persuasive than testimony from friends and neighbors. Those documents left the court "no alternative" but to conclude that she had "a traceable amount of [N]egro blood" and to annul the marriage. (83)
Such logical conundrums had roots in Louisiana's unique history, a past with which many witnesses in this and other twentieth-century cases had direct experience. The enduring controversy over the racial meaning of Creole, for example, illustrated both the ambiguity of racial categories in Louisiana and the long history of white Louisianans' discomfort with that uncertainty. A term adopted in the early nineteenth century to describe Louisiana residents of European descent and to distinguish them from new American settlers, Creole was not originally a racial or racially exclusive category. Although, much to the consternation of white Creoles, outsiders occasionally assumed that Creole implied mixed blood, locals did not initially insist that the term apply to whites only. Rather, as historian Joseph G. Tregle Jr. notes, white New Orleanians constructed an elaborate myth about Creoles in contrast to Americans, as an exclusive local aristocracy descended from French and Spanish nobility, "renowned for ... cultural refinement and worldly sophistication...." In doing so, they felt no need to limit their use of Creole to whites, as they "perceived no danger from common acceptance of blacks and whites under the creole rubric, [and] no risk that such definitional partnership might diminish the social status or prerogative of the dominant class." (84)
After the Civil War, however, white Creoles no longer "feigned unconcerned amusement" whe |
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