JULIE NOVKOV

Racial Constructions: The Legal Regulation of Miscegenation in Alabama, 1890–1934

For over one hundred years--from the post–Civil War era to the post–Civil Rights era--the state of Alabama maintained a legal and social commitment to keeping blacks and whites from engaging in long-term sexual relationships with each other. Recent studies addressing the laws that barred miscegenation have shown that investigating governmental reactions to intimate interracial connections reveals much about the interplay between legal and social definitions of race as well as about the development of whiteness as a proxy for superior social, political, and legal status.¹ As scholarly interest in whiteness as an ideological category has grown, historians have sought the roots of modern conceptions of whiteness as an oppositional category to blackness in legal, social, and economic relations in the southern United States during the era of Jim Crow.² 1

     Prosecutions for miscegenation were an important component in the process of defining race and entrenching white supremacy.³ Interracial sexual relationships challenged the boundaries between white and non-white in the most fundamental way by subverting the model of the white family and often by threatening to produce or producing mixed-race children. In most southern states, even before the rise of the so-called "Redeemer" governments and the establishment of Jim Crow, lawmakers in the new postbellum legislatures moved quickly to bar specifically marriages between blacks and whites. By doing so, they sent a signal that even if the national government were intent upon imposing civil and political equality, so-called social equality would not result from emancipation or constitutional reform. The struggle against miscegenation was at bottom a struggle to establish and maintain whiteness as a separate and impermeable racial category that all observers could easily identify. While individuals whose race could not easily be determined threatened this system, the greater threat was the establishment of the miscegenic family. A black man with a white wife, as well as a white man with a black wife, not only had the potential to produce racially ambiguous children but also undermined white supremacy, and thus whiteness itself, by openly melding black and white into the most fundamental unit of society, the family. 2

     Thus, keeping black and white separate required preventing individuals from being able to challenge the boundary between them. In order to do so, however, understandings of what constituted blackness and whiteness had to be in place. Prior to the Civil War, these had rested largely in social context and interaction; whiteness was intimately connected to performance and its constitution depended upon an individual's ability to do the things that whites characteristically did.⁴ While free blacks posed a problem for this schema, their existence did not challenge the fundamental nature of the system in place, which became increasingly stringent and rigid as sectional conflict increased. In the wake of the Civil War, both whiteness and blackness had to be renegotiated and reconstructed, since slavery was no longer a yardstick.⁵ Some legislators and legal actors turned to science both to define blackness and whiteness and to understand their significance for public policy. Defining "race" was always in the background of the prohibition against miscegenation, but during the period when genetic understandings of race were most popular, the question of defining blackness was central in Alabama. 3

     Because of the wealth of data, studying Alabama's regulation of miscegenation is particularly helpful in understanding the generation and shifting of ideological conceptions of race. Other Southern and Western states were also grappling with these questions, as evinced by appellate decisions regarding convictions for miscegenation, but Alabama's appellate courts were particularly engaged with these questions. They produced thirty-eight opinions concerning miscegenation--more reported decisions on the appellate level than any other state--between the end of the Civil War and the U.S. Supreme Court's invalidation of such statutes in 1967. The number of individuals charged with violating a statute and convicted of violations is a significant measure of the law's importance. But reviewing appellate litigation reveals more about the questions that were settled and in flux at particular historical moments.⁶ Charles Robinson speculates that Alabama had significantly more cases than any other state both because of its large black population from the postbellum era to the present and because Alabama's prohibitionary law was more broadly framed than comparable laws in neighboring states; a legal climate in which appeals were sometimes successful probably also contributed to the frequency of litigation.⁷ Because of the large number of appellate cases, more information is available about the development of legal and social questions regarding miscegenation in Alabama than anywhere else. 4

     This article focuses on a subset of these cases, analyzing the development of racial definitions in the law through the interplay between changing scientific understandings of race and legal actors' manipulations of these understandings. In the 1890s and early 1900s, appeals of convictions for miscegenation raised evidentiary questions that set the stage for a struggle over proving race in the courts that began in 1918 and continued into the 1930s. In the appellate cases, the focused contention over racial definitions partially resulted from and coincided with the growing presence of eugenic theories about race in public and legal discourse. The science of eugenics captured the popular imagination shortly after the turn of the century and provided a new framework for arguing in terms of scientific expertise that non-whites were inherently and irremediably inferior to whites. This shift toward eugenic explanations of race and racial definition paralleled and partially initiated a shift from evidentiary concerns in the courts to a direct confrontation with questions about racial definition. The new focus on genetic framings of race, however, had an ironic result: criminal defendants convicted of miscegenation were able, often successfully, to challenge their convictions on the ground that the state had not adequately proven that they were black. This temporarily undermined the state's efforts to maintain whiteness as a separate and impenetrable category. 5

     As background to this argument, the article first addresses the evolution of the prohibition of miscegenation and the scope of appellate litigation that it generated. It then explains the evidentiary battles of the turn of the century and outlines the rise of eugenic theories and their impact on the law. With this legal, social, and scientific context established, the article turns to the question of how defense attorneys were able to exploit genetic framings of racial definitions for their clients convicted of miscegenation. 6

Historical Background on Miscegenation and an Introduction to the Legal Problem

In the years immediately after the Civil War, the South faced a racial crisis. The rigid lines between the races that slavery had maintained by marking blacks as undeniably subordinate and inferior were called into question, First through emancipation and then through Reconstruction.⁸ Racial inferiority and the connection between interracial sexual relationships and white supremacy had not existed in a single unchanging form over the years, but slavery had set the boundaries for these relationships. White patriarchy had defined the authority and responsibility of white men, the subordination and rights to protection for white women, and the gendered forms of subordination to which slaves and free blacks were subject.⁹ Martha Hodes's study of relationships between white women and black men suggests that an initial tentative tolerance for such relationships gradually gave way to disapproval, intolerance, and ultimately to nearly total repression in the immediate postbellum era. Under slavery, while such transgressions violated the established systems of racial subordination and patriarchy, they did not ultimately threaten the systems themselves.¹⁰ 7

     The North's victory in the war and the emancipation of the slaves disrupted the repressive modus vivendi by eliminating slavery as a legal status that maintained most blacks' structural subordination. The white South had to develop new means of linking whiteness to superior status, rights, and authority in both the legal and social realms. This goal was achieved by establishing a rigid division between white and black through the prevention of any black incursions across a newly defined color line.¹¹ In the matter of interracial sex, the southern states thus took over the task of direct patriarchal control previously left in the hands of individuals.¹² Even after the key questions of the constitutionality of legal racial separation were eventually settled in favor of white supremacy in the 1880s and 1890s, the changes brought about by the end of slavery and the rise of a new national government could not be resolved quickly. 8

     The struggle of the immediate postwar era was most visibly over race but incorporated issues of gender as well. In the days of slavery, anti-miscegenation laws could serve simply to channel interracial relationships rather than to eliminate them completely, since black women's children were slaves regardless of their fathers' ancestry.¹³ This double standard changed in the postwar period. As Mary Frances Berry has argued, controlling whites' sexual behavior after the Civil War meant more than just curbing any attempt on the part of white women to engage in sexual relations with black men. While actors in the legal system were cautious about limiting white men's sexual behavior, judges and juries recognized a tension between allowing complete license for white men and upholding norms of support and nurture for white women.¹⁴ The protection of white women, however, was not the only justification for pursuing white male miscegenators. Cheryl Harris's work on whiteness as property suggests that whites had a common interest in preserving the purity of whiteness as a racial identity for a myriad of concrete legal and economic privileges, as well as for the psychological benefits.¹⁵ As the analysis shows, bans on miscegenation clearly sought to limit white men's capacity to threaten whiteness by producing with their black partners children who could potentially pass for white. 9

     Alabama, like most southern states, suffered great economic and social devastation during the Civil War and experienced turbulent politics in the immediate postbellum period. ¹⁶ The one constant, however, was a legal commitment to barring interracial relationships that approximated the loving bonds of marriage. The years to come would see intensive efforts on the part of legal actors connected to the state to maintain laws against miscegenation and to punish those who violated them. The deep stake that the state had in such laws was in part responsible for prosecutors' and courts' willingness to pursue battles over convictions on the appellate level.

10

Alabama's Statutory Prohibition of Miscegenation

Even before the end of slavery, the Alabama code prohibited the establishment of relationships giving the appearance of marriage between whites and blacks. The first statute became part of the Alabama code in 1852 and its basic form remained constant through the Civil War. The 1852 version of the code allowed the solemnization of marriages between free blacks, but barred weddings between members of different races. The statutory language prohibited individuals from performing interracial marriage ceremonies, declaring such acts misdemeanors punishable by one-thousand-dollar fines.¹⁷ The law did not provide for specific criminal penalties against the persons attempting to marry each other. The crime was an offense of strict liability; in other words, the person solemnizing an interracial match could be penalized regardless of whether he realized that the man and woman were of different races. "Negroes" were defined in a separate section of the code, which identified the class as including "person[s] of mixed blood, descended, on the part of the father or mother, from Negro ancestors, to the third generation inclusive, though one ancestor of each generation may have been a white person."¹⁸ Interracial sex was not prohibited per se, as this could have posed problems for white men, but the state made clear its horror at the thought that black men might partake of forcible sex with white women. If a black man, free or slave, raped or attempted to rape a white woman, he was legally subject to the death penalty.¹⁹ 11

     After the end of the Civil War and in the wake of the congressional Radical Republicans' revision of the legal status of blacks, Alabama law regarding race was left in disarray. The legislature quickly moved to recriminalize miscegenation, establishing the basic form of the statute that would persist until 1970. ²⁰ The legislature established sanctions against both parties to miscegenous relationships and for any person attempting to of ficiate at a miscegenous marriage. The law regarding sexual relations between members of different races was framed neutrally with respect to gender and provided for a lengthy prison term upon conviction:

12

If any white person and any Negro, or the descendant of any Negro, to the third generation inclusive, though one ancestor of each generation was a white person, intermarry or live in adultery or fornication with each other, each of them must on conviction be imprisoned in the penitentiary, or sentenced to hard labor for the county for not less than two nor more than seven years.²¹

     The nature of whiteness was left undefined, but the statute provided that a person with seven white great-grandparents would be defined as black as long as the eighth great-grandparent was a "Negro."²² Section sixty-two provided that anyone attempting to officiate at such a marriage could be fined between one hundred and one thousand dollars and could be imprisoned or sentenced to hard labor for up to six months. 13

     The law's operation was more complex than it appeared, for the usual form of prosecutions under the statute would be through the operation of Alabama's criminal statutes barring adultery and fornication. Since no marriage between a white and black could be legally valid, whites and blacks who had sexual intercourse with each other could be tried for committing adultery if one of the parties was married or fornication if neither was married. While adultery and fornication were addressed in separate sections of the Alabama code, the Alabama courts ruled repeatedly that prosecutions for miscegenation not involving an accusation of an attempt to marry required proof of all of the elements of adultery or fornication in addition to the allegation that the parties were of different races. In the appellate records, the form of the charges was often felonious adultery or felonious fornication rather than miscegenation; the identification of the charged crime as a felony signaled that the parties were of different races.²³ 14

     The anti-miscegenation statute thus had the practical effect of increasing the severity of the offense. Adultery and fornication were both misdemeanors, but miscegenation was a felony punishable by a prison term in the state penitentiary. Therefore, only the statute that provided for criminal penalties for those who officiated at miscegenous marriages had a truly independent standing. As explained below, the courts determined quickly that prosecutions for miscegenation would take place under the same analytical and evidentiary frameworks as prosecutions for adultery and fornication. 15

     The statute nonetheless provided room for many legal and factual questions. Legal questions tend to shift over time as different issues take center stage in litigation. The legal and factual debates over sections sixty-one and sixty-two and their successors were no exceptions. The migratory process was both intrinsic to the law and its relationship with constitutional standards and extrinsic, linked to the statute's relationship with changing beliefs about race. In what follows, I explore this process in detail.

16

Patterns of Appellate Litigation Concerning Miscegenation

It is helpful to get a sense of when appellate litigation concerning miscegenation was taking place. Figure 1 provides this information, with the graph line indicating the number of cases for which the Alabama appellate courts produced written opinions in a particular decade.²⁴ As it demonstrates, appeals concerning outcomes in miscegenation cases were concentrated in two time periods. A First flurry of litigation took place in the post-Reconstruction years, leading to a peak in the 1870s and 1880s when the Alabama Supreme Court heard five cases. The appellate courts were also active in the mid-twentieth century in the years between the rise of northern black opposition to white supremacy in the early twentieth century and the Civil Rights movement's mass growth in the 1950s.²⁵ 17

Figure 1.
Frequency of Appellate Litigation, 1865–1974

     This article focuses on the period between 1915 and 1934, which saw twelve cases, although appellate litigation continued to occur at a relatively high rate after 1934.²⁶ While the numbers of cases decided at particular times suggests general controversy over miscegenation, the particular issues that generated appeals shifted over time, creating clear patterns. Issues that obsessed the courts during the tumultuous years immediately after the Civil War were nearly invisible in later years, while concerns that troubled judges and lawyers in the 1920s were absent earlier. Between 1890 and 1914, evidentiary concerns were the main questions that the courts addressed. In the late teens, twenties, and early thirties, these issues gave way to questions about racial definition, though the evidentiary struggles informed the analysis of racial definition in significant ways. Aside from the early constitutional debates over how Alabama's laws would square with the Fourteenth Amendment, the evidentiary debate and the debate over racial definitions were the two most discrete and temporally confined struggles. 18

     After the settling of constitutional questions in the immediate postbellum era, periodic debates over particular evidentiary issues gave rise to a number of appeals. These questions ranged widely, encompassing conflicts from the admissibility of confessions to the precise nature that a sexual relationship had to have in order to give rise to criminal liability under the anti-miscegenation statutes. As these evidentiary debates developed, they incorporated a nuanced understanding of the prevalent cultural beliefs about sexuality and race, which they reflected back to the surrounding culture. Such questions often turned on the natures of the defendants in the cases and on the natures of their relationships with each other. Most of these concerns centered around whites' major worry of the time: that miscegenation would ultimately result in the degradation of white blood. This influenced strongly the kinds of evidentiary questions about which lawyers argued intensely throughout these years. 19

     To some extent, the problem of racial definition was a subcategory of evidentiary questions. Nonetheless, the question of what was legally sufficient to prove race was significant enough to warrant a separate analysis. The intensive conflict over what constituted blackness and whiteness for legal purposes spanned sixteen years, with two cases taking place in 1918 and the final case in which the definition of blackness was a central issue occurring in 1934. (Not all miscegenation cases taking place at this time addressed definitional issues: of the twelve decided between 1915 and 1934, seven involved questions about one defendant's race.) As shown below, much of the focus centered on questions of how blackness could be defined and proved at a time when individuals' racial origins were fast receding into the past. 20

     Those convicted of miscegenation were often able to convince the courts on appeal that the conviction was improper. Unsurprisingly, defendants had more success with some issues than with others. Of the eight constitutional challenges in the immediate postbellum years, only one resulted in the invalidation of a conviction. While this was only one case, its repercussions should not be underestimated; it produced statewide consternation and national controversy over both regulations of miscegenation and the meaning of the fourteenth amendment. As constitutional questions gave way to challenges based on evidentiary questions, defendants' prospects improved. The first of these five cases took place in 1890 and the last in 1917; three of these convictions were invalidated. In 1912, the Alabama Supreme Court also invalidated on evidentiary grounds the conviction of a black man who had allegedly raped a white woman. The challenges of the late teens through the early thirties to convictions based on claims that the prosecution had not adequately charged or proven race produced seven cases. In five of these the appellate court struck down the defendant's conviction. 21

     The framing of the legal issues in these cases depended, of course, upon the relevant statutes and the particular circumstances of each individual case. However, in order to understand how these questions developed within the legal system, one must look beyond the opinions produced in the appellate cases. Although reading them reveals the analytical frameworks that resonated for the judges, the rulings alone do not show how these frameworks came into being and translated into the legal context. Thus, the argument must include elite and public discourse that either influenced or represented the development of thinking about miscegenation in the United States during the early twentieth century and at the height of the eugenics movement. As understandings of race and mixed race changed over time, these changes had a profound impact on the ways that judges grappled with both legal and factual questions. These legal changes ultimately influenced dominant whites' efforts to secure their political and social power. Judges did not, of course, simply pick up such popular understandings and employ them in their reasoning with no mediation. The link between these nonlegal understandings and the judges' framings of miscegenation in their opinions was attorneys' translation and manipulation of these ideas. An investigation of the records of the appellate cases reveals the process of translation, its unpredictable elements, and its implications. 22

     The following pages trace the history of these prosecutions and appeals, leading to the intensive focus on the race of the defendant in the late 1910s through the early 1930s. The discussion begins with the early twentieth-century battles over evidence, showing how these arguments related to beliefs about the nature of adultery and prostitution in the context of miscegenation. These evidentiary battles settled some standards for the admissibility of certain kinds of evidence that would ultimately ground the courts' responses to challenges of racial definition. After the evidentiary questions were settled, the next phase was a confrontation over the definition of race, which arose in the wake of concerns about eugenics and new quasi-scientific theories of race. To streamline the analysis, the article refers to mixed-race individuals according to the race of their parents, grandparents, or great-grandparents, though, as the analysis shows, this racial shorthand could become problematic in some circumstances.²⁷ 23

     Ultimately this analysis demonstrates the instability and dynamism of racial ideology in Alabama. While the whites in power worried throughout these years about the impact that racial mixing might have on the white race, the bases and implications of these fears changed over time. Prosecutions of individuals for engaging in interracial sex were the front line of defense for the white race and thus were a primary tool to articulate and reinforce an ideology of racism. Nonetheless, such prosecutions depended upon popular conceptions of race and racism in order to succeed. This interplay between social beliefs and the legal process produced constant shifts in the ways that the state was able to address miscegenation and ultimately affected the ways that the law publicly regulated race. 24

Initial Evidentiary Battles: Adultery, Fornication, and the Prosecution of Prostitutes, 1890–1917

Between 1890 and 1917 appeals tended to be based in evidentiary or technical concerns. Seven cases took place on the appellate level in these years; six reached the Alabama Supreme Court. During this time, litigants were more successful than in the earlier period of constitutional challenges. Between the end of the Civil War and 1889, only one appellant, Justice of the Peace Burns, had his conviction overturned by a higher court. Between 1890 and 1917, four of the seven appellants succeeded with their appeals. 25

     The issues in the cases ranged from the precise interpretation of the anti-miscegenation statute and its relationship to the prohibition against adultery to the question of what had to be proven to demonstrate that miscegenation had indeed occurred. In these years, the legal system struggled with emerging evidentiary standards, in particular with questions about what kind of sexual relationship had to be proven to support a conviction and what kind of evidence could constitute an admission or confession that a person was engaged in a sanctionable relationship. In doing so, the legal system remained sensitive to the emerging discourse on race in the broader society. 26

     By 1890, the criminal charges filed in the cases producing appellate opinions no longer included simple accusations of intermarriage. Instead, the defendants were accused of adultery; adultery or fornication; adultery, fornication, or intermarriage; and in one case, rape. Three of the defendants in the miscegenation cases were charged with adultery alone, though the 1890 case of Linton v. State involved an accusation of adultery and could also be placed in this category. In these six cases, four defendants saw their convictions reversed and two convictions were upheld on appeal. Given that the rape case resulted in the invalidation of a conviction, one might expect that it involved a white man and a black woman. In fact, the accused rapist was a black man. It would be surprising to see any acknowledgment by the legal system that white men could rape black women or indeed that black women could be raped. The case nonetheless fit well into the emerging racial ideology. Individuals who were married or whose interracial sexual partners were married did not necessarily have a hard time in the courts. At this point in the analysis and in the later cases as well, the nature of the relationship between the couple became significant in shaping the way that the courts viewed the claims. 27

     In considering the facts of these cases, one can distinguish between allegations of isolated acts of fornication and adultery on the one hand and relationships that de finitely or possibly involved prostitutes on the other. As the analysis shows, the courts had less trouble finding justi fications to uphold sentences for prostitutes or for those convicted of having intercourse with prostitutes--of the four cases in this category, two resulted in reversals. Taken together, these six cases helped to develop standards on how to address interracial prostitution and on how to view incriminatory admissions that the defendants made to each other or to others about their relationship.

28

Adultery, Prostitution, and Developing Evidentiary Standards

Alabama's primary statute barring miscegenation, which had undergone only minor wording changes since 1866, identified three different acts that could provide the basis for a prosecution: intermarriage, adultery, or fornication. The technical form that began to emerge in prosecutions was that the prosecutor would charge the defendant with committing adultery, adultery or fornication, or adultery, fornication, or intermarriage in violation of Section 5096. A conviction for miscegenation thus had several required elements. First, the prosecutor had to show that one of the defendants was a "Negro" or the descendant of a "Negro" within three generations. He then had to show that the other was white.²⁸ He then had to prove either that an intermarriage had taken place (this could be shown with documentary evidence, like a marriage license) or that the defendants had fulfilled the elements of the criminal statute forbidding adultery or fornication.²⁹ 29

     These elements gave defendants some room for legal maneuvering. Theoretically, those accused of miscegenation could defend themselves by raising a reasonable doubt about any of them. The claims that defendants tended to make, however, clustered temporally around particular elements. In the late nineteenth and early twentieth centuries, defendants sought to show that the prosecutors had not proven the required elements of adultery or fornication. 30

     By the end of the nineteenth century, the Alabama courts had settled on the rule that convictions for adultery had to rest on evidence that the sexual relationship was ongoing.³⁰ This rule applied to interracial as well as intraracial encounters. A single act of sexual intercourse was not enough, unless the couple agreed explicitly or implicitly to continue having intercourse in the future.³¹ The courts' paradigm of adultery was apparently one in which a married person was carrying on a long-term relationship with another individual behind his or her spouse's back. Fornication required a similar resolve to continue a relationship. These interpretations fit in well with the social purposes behind the anti-miscegenation statutes--the laws were principally in place to prevent the formation of marriage-like relationships and other types of relations between blacks and whites that could lead to mixed-race offspring. With respect to prostitutes, the requirement that the prosecutor demonstrate adultery or fornication was thus problematic: how could a prosecutor prove an ongoing sexual relationship as opposed to individual, contractually based acts of immorality?³² What kind of evidence would be necessary to make such a showing? Five different cases addressed this question. 31

     In 1889, a bailiff and two witnesses caught Martha Linton, a white woman, in a house with two black brothers, John and George Blue. When they entered the house, they found John undressed in bed and Martha hiding under the bed in her nightclothes. She and John Blue were charged with miscegenation, and after a severance was granted, Linton was convicted. She appealed on several different grounds. First, she claimed that the state had not adequately proven that Blue was a "Negro" for purposes of the statute. Because Blue was married, Linton could and did argue that a proper showing of adultery had not been made. Finally, she asserted that the state's evidence did not rise to the standard of reasonable doubt, arguing, ironically, both that the state had not shown that she was a lewd woman or that she had definitely had intercourse with John rather than George.³³ The record does not reveal the ultimate fate of the brothers. 32

     Linton based her appeal on two of the elements of miscegenation. She raised the technical point that the prosecution had not properly alleged that her sexual partner, John Blue, was a "Negro." She also claimed that the evidence was insufficient to warrant a finding that she had committed adultery with him, because the state had shown neither that she had a poor reputation for chastity nor that she had actually had intercourse with him rather than his brother. The high court dismissed both claims relatively quickly. It ruled that the prosecutor had properly exhibited Blue to the jury to allow them to determine his race. Further, even though the indictment described Blue as a "Negro," a term generally used to refer to individuals with no white ancestors, and Blue was in fact a mulatto, this technical difficulty raised no problems for the court.³⁴ Linton's ploy in claiming the relevance of her reputation and the possibility that she had slept with the other man was an attempt to suggest that her illicit connection with Blue was not an adulterous affair. The court, however, refused to allow this tactic to exonerate her. Her conviction was upheld. The next case would involve a different set of claims. 33

     Will McAlpine, like John Blue, was a married black man. His 1897 conviction for miscegenation arose from his connection with Lizzie White, a white woman known or suspected to be running a house of prostitution; she was also convicted. Both appealed, complaining that White's acknowledgment of their relationship was not admissible and that several of the witnesses had introduced irrelevant evidence. Finally, they argued that the judge improperly neglected to charge the jury that evidence of a single act of intercourse with a prostitute did not necessarily constitute proof of adultery.³⁵ 34

     McAlpine and White, convicted on the basis of witnesses' testimony that they had been seen in bed together, succeeded. They had sought to convince the high court that multiple errors took place in their trial. The court agreed that the prosecution had not laid a proper predicate for the admission of a hearsay confession by White and that the state's attempts to impeach some of the defense's witnesses were inappropriate. McAlpine's and White's convictions were reversed on this basis. The court did not, however, agree that the trial judge should have specifically instructed the jury that proof of prostitution did not constitute proof of adultery.³⁶ The next defendant would use a similar strategy to appeal his conviction. 35

     John Love was a white man. In 1899, the chief of police had gone out to the home of Alice Pinckard, a black woman, to arrest her for violating a city ordinance, and when he arrived, he found Pinckard in bed and Love in the act of putting on his clothes. The police chief arrested both Love and Pinckard for disorderly conduct, and while in police custody, John said to Alice, "I've spent a heap of money on you to get you out of your troubles, and now you have gone and raised the devil; and if I had a gun I would shoot your brains out and kill myself." His ill-timed remark became part of the evidence against him in his prosecution for miscegenation, for which he was convicted. Like Will McAlpine, Love claimed that his sexual relations with a prostitute did not rise to the level of adultery; he also claimed that the state had not shown that Pinckard was a married woman.³⁷ 36

     Love was not as fortunate as McAlpine and White. The court ruled that his angry outburst at Pinckard when both were in custody was admissible.³⁸ Love had tried to show that he and Pinckard had not agreed to continue their relationship: "the defendant did on several occasions have sexual intercourse with her, but that each act was separate and distinct, and he paid her each time for the privilege; and that there was no other adulterous cohabitation between them."³⁹ (The justices did not find this argument convincing, pointing in their opinion to the fact that he had indeed had intercourse with Pinckard more than once.) From this information they could imply an agreement to continue the relationship, even though the agreement was based on a continued exchange of money for sex.⁴⁰ This, in their view, was sufficient to support a prosecution for adultery or fornication, even in the absence of any proof that either party was married. An alleged prostitute would also play a role in the next case, which involved an alleged rape. 37

     Clarence Story was in a dangerous position. He was a black man whom the attorney general had indicted in 1912 under two counts: the first was rape, and the second was having carnal knowledge of a woman without her consent by administering a drug to her to overcome her resistance. His alleged victim, Beatrice McClure, was a white woman. Remarkably escaping a legal or extralegal death penalty, he was convicted under the second count and sentenced to thirty-Five years in the state penitentiary. Story appealed his sentence, claiming that the judge improperly disallowed testimony to the effect that McClure was a prostitute with a reputation for sleeping with black men.⁴¹ 38

     Story's conviction for rape depended upon the jury's belief that his alleged victim, Beatrice McClure, had not consented to have intercourse with him. No one denied that McClure was a prostitute, but because she was white and Story was black, this information did not prevent a rape prosecution on her behalf as it would have under ordinary circumstances. The court approved this reasoning, explaining that "though a white woman be a prostitute, the presumption is strong, nearly conclusive, among both the races, that she will not yield--has not yielded--even in her confirmed depravity, to commerce with a Negro charged with an offense against her person."⁴² A white woman's reputation for lack of chastity alone did not imply a reputation for lack of chastity with blacks, since freely having sexual intercourse with blacks was a completely different level of depravity, one from which redemption was nearly impossible. The high court went on to reason, however, that in the rare instance in which a white woman was alleged to prostitute herself with blacks, evidence to this effect should be admitted in a rape prosecution to prevent the jury from assuming automatically that it would be impossible for a white woman to so debase herself.⁴³ Story had tried to introduce such evidence at the trial, but the judge had disallowed it. The final case would also address questions of what one could assume, but in a different context. 39

     The final defendant in this series of cases, George Smith, was a white man accused of living in adultery with Mattie Leonard, a young black woman, in 1916. He had allegedly visited her at her home frequently and a witness testified that he had stated his intentions of taking Leonard away to the city of Dothan and establishing her there where she would not have to work. Since Smith was already married, the state charged him with adultery or fornication.⁴⁴ Convicted and sentenced to two years in the penitentiary, Smith appealed; his claims on appeal largely rested upon the admissibility of evidence tending to show the existence of a relationship and upon the trial judge's refusal to give various charges to the jury.⁴⁵ 40

     The Court of Appeals of Alabama heard the case in 1917 and upon rehearing ruled in Smith's favor. The court believed that a refused charge addressing the credibility of one of the witnesses should have been given. While his conviction was overturned on this basis, the court also held that "Statements made by the defendant tending to show his feeling toward the woman with whom he was charged with having adulterous relations . . . were admissible."⁴⁶ In general, these kinds of conversations would be admissible to show both that intercourse had taken place and that the defendants had intended to continue their relationship. 41

     The reasons for these outcomes relate to developing interpretations of the laws and the emergence of a conception of how miscegenation was to relate to illicit sex in general. The legal community struggled to develop standards to address the relationship between adultery and miscegenation and to determine when statements by defendants could be used against them to show that they were engaged in an inappropriate interracial relationship. The cases involving suspected or con firmed prostitutes gave rise to some principles that would carry through. First and foremost, while adultery involved more than an isolated act of intercourse, any man who paid a woman of a different race to have intercourse with him more than once was running a serious risk. While prostitution did not fit the paradigmatic image of adultery, it was suf ficient to support a prosecution for miscegenation in addition to the criminal penalties that applied to prostitution regardless of the race of client and prostitute. The treatment of prostitutes and their clients supported the fears expressed by popular authors; if a woman had a habit of entertaining a client of a different race, she was much more of a threat to the racial order than if she had only engaged in intercourse with him once.

42

The Emerging Rule on the Admissibility of Confessions: Setting the Stage for Questions about Race

Prosecutors operating after the high court's ruling in McAlpine were more careful to lay the foundations for the admissibility of confessions. Therefore, interracial couples had to be careful what they said to and about each other; under the right circumstances, such statements could become confessions. These cases built on the analytical framework of white fears regarding miscegenation. A single fleeting encounter that was not repeated did not form the basis for criminal liability, but an ongoing sexual relationship did, even if it was a relationship between a prostitute and her client. Miscegenation was primarily a threat to the extent that it subverted or made a mockery of the marriage bond. In the constitutional battles of the 1870s and 1880s, the courts had established that marriage constituted a special kind of contract in which the state had a deep and abiding interest. Now the legal community established a context in which contracts for sex outside of marriage--agreements with prostitutes--could be understood as violating the institution of marriage if such contracts were formed between individuals of different races. 43

     The emerging rules concerning admissibility of confessions would be more important in later appeals. Most of the criminal cases during these years involved situations in which the couples were caught together in the same physical location in questionable circumstances, so the admissions that defendants made were simply additional evidence. Furthermore, it would have been difficult for a known prostitute to claim credibly that she had not had sexual intercourse with a man. Nonetheless, these cases provided the fact patterns in which the rule developed, so future defendants would have to be more creative in finding ways to keep their statements to and about each other from reaching juries. The idea that admissions or confessions could be used to prove the elements of the crime would transfer readily from the context of questions about whether the defendants had an ongoing sexual relationship to the context of questions about whether one of the defendants was black. 44

     Attitudes about race, as suggested above, were in transition. The late nineteenth-century cases dealt with race in a straightforward, matter-of-fact manner. In Barbara Welke's analysis of discrimination by common carriers, she notes specifically that many of the plaintiffs were light-skinned mulattos who had all of the markers of class status, but the courts did not question their race.⁴⁷ The paradigmatic example of this dynamic was Plessy v. Ferguson; Homer Plessy apparently had only one black great-grandparent. The same lack of concern prevailed in the miscegenation cases. In Linton, for instance, the high court simply approved the practice of exhibiting Linton's partner to the jury in order to prove the element of a racial difference between the couple. The Story court, writing twenty-two years later, began to articulate a theory of domination and subordination that translated the norms of interaction established during slavery to the modern age. The justices explained that the white race had taken on a posture of guardianship and generosity toward the black race, endorsing the popular construction of "full-blooded Negroes" as childlike, humble, and dependent. Blending an analysis of old beliefs with new practices, the justices claimed that Alabama's choice to establish separate social spheres for whites and blacks appropriately protected the white race and "its preservation from the degeneration social equality, between the races, would inevitably bring."⁴⁸ The key elements necessary to prevent such degradation were, in order, prohibition of intermarriage, the separation of children of different races in the public schools, and the segregation of passengers on the state's common carriers.⁴⁹ 45

     While the high court articulated the need for separation and endorsed the idea that the races were fundamentally different and socially incompatible, it did not spend any time articulating a definition or explanation of race as a concept. In 1912, everyone still knew what a "Negro" was and felt no need to waste any energy litigating this question with respect to miscegenation. But only six years later, this certainty began to evaporate in the concrete context of litigation. 46

The Triumph of Eugenics and Heredity's Place in the Law

The years of the evidentiary battles reflected widely accepted beliefs about race, but a new set of beliefs began to influence the legal community during the late 1910s. While scientific racism was not a new concept in the twentieth century,⁵⁰ the scientific racism that dominated the early twentieth century differed from its predecessors in the scope and breadth of its influence as well as in its basis in the now-dominant genetic theory of heredity. Multidisciplinary investigations of fitness and descent along with their normative implications became known as the science of eugenics. 47

     While framed as a science, eugenics was often not based on neutral scientific inquiry. While some practitioners undoubtedly believed themselves to be engaging in disinterested and neutral research that simply led them to racist conclusions, many prominent promoters of eugenics had backgrounds suggesting a commitment to white supremacy independent of their research findings.⁵¹ While scientific language was prominent in these analyses, discussions of blacks' inferiority in the late nineteenth and early twentieth centuries differed from earlier analyses more in their framing than in any other way. Earlier authors had spoken of mongrelization; the scientific authors of the turn of the century explained difference in the language of genetics. These men were not marginal figures but well-respected professionals in their various disciplines.⁵² 48

     Such individuals first insisted that the social and political difficulties between the races were merely proxies for the fundamental biological differences, which truly grounded the conflicts.⁵³ In their view, the lowest and meanest white remained white and therefore biologically and culturally superior, while the most educated and intelligent black was irremediably linked to inferiority. In such analyses, this inherent inferiority and superiority that would descend from generation to generation inexorably had to be contained within rigid boundaries of black and white. Interracial sexual activity threatened these boundaries and thus attracted attention from the scientists, who predicted unmitigated disaster from any breach. For instance, one author cautioned that the superiority of the white race in absolute physiological terms could only be preserved if the state prevented miscegenation.⁵⁴ 49

     These ideas could have been expressed earlier and in some cases were. But by the turn of the century, scientific authors had the growing prestige of their disciplinary backgrounds and the increasing faith in scientific discovery to bolster their arguments. The 1910s marked a shift from the earlier views about race to discussions couched in normative scientific and social scientific language. The legal system would incorporate these new "breakthroughs" in the social sciences, believing that the scientific method would lead to rationalized legal results.⁵⁵ Simultaneously, anthropologists, sociologists, and other social scientists were becoming increasingly interested in race. A debate broke out in the 1910s as Franz Boas presented anthropological research showing that culture rather than nature accounted for differences among groups of people and challenging the very idea of race itself.⁵⁶ Eugenicist responses rested upon beliefs about race and mixed race grounded in background assumptions regarding heredity and the nature of race. In particular, they used the motif of blood to describe ancestry and heredity. They did not have an underlying coherent conception of what race meant, even in the ideal sense, but they did not appear to realize this. These beliefs were amplified and reflected among individuals who sought to advance the project of differentiating white from black by creating a deep gulf between emerging conceptions of whiteness and blackness.⁵⁷ 50

     Beliefs about the inheritability of racial characteristics deserve some explanation. Rather than thinking of race as a composite of skin color, facial features, and other characteristics that children inherited individually from their parents, these social scientists connected race with blood. In this analysis, a person's place in the racial order would be determined by how much "black blood" she or he inherited. The fraction of black blood represented unitary inheritance of black characteristics, a confusion about heredity that replicated beliefs about the unitary nature of intelligence.⁵⁸ 51

     Thus, the key element in blackness was not appearance but blood.⁵⁹ The authors spoke frequently in terms of black blood and what was to be done with it. Blood was the bearer of blackness, the means through which its dangerous and backward characteristics were conveyed from generation to generation. Ultimately, many of them (both scientific and popular) saw only two options regarding blood: either complete amalgamation would take place, producing one race in the United States combining white and black, or a complete separation would have to be enforced, with the current mixed-race people being permanently and irrevocably defined as black.⁶⁰ The problem was thus not solved by simply preventing whites and blacks from marrying. As one author explained, it was also how to deal with the legacy of past intermarriages.⁶¹ 52

     Therefore, the proper solution to racial problems was to maintain the purity of the blood of both whites and blacks. This solution tied in well with beliefs in a natural antipathy of the races, and authors encouraged the development of racial pride among blacks as well as whites.⁶² Racial pride alone was insufficient, however. Strict prohibitions were the only reliable means of protecting the integrity of blood. Miscegenation had to be rooted out at every turn through severe legal and social sanctioning.⁶³ 53

     Ultimately the prospect of complete amalgamation terrified both scientists and popular authors because of the tainting nature of black blood. As Cheryl Harris has shown, whites had a great deal at stake in maintaining the integrity of whiteness and its link to identity.⁶⁴ Much of the tension over miscegenation rested in the contradictions inherent in thinking about blood. If black blood could be successfully concealed, why was it problematic? On the one hand, both scientists and popular writers agreed that the white race was superior in most ways to the black race and that the natures of both races were determined by genetics. Mulattoes' success in becoming the leaders of the black race was solely due to the dominance of superior intelligence and refinement, which was a direct result of the white blood flowing through their veins.⁶⁵ They aspired to membership in the social class of whites because they were misplaced with the lower fully black race. 54

     If this were the whole story, there would be no reason to worry about racial mixture. White blood would simply overwhelm black blood and mask its damaging qualities; the mixture of blacks with whites would ultimately bring the black race closer to the level of the white race. The story was, however, more complex. Along with these beliefs, many people simultaneously believed that black blood had an almost magical quality that enabled it to overcome white blood, even when it was only present in the smallest quantities. At bottom was a deep need to render white completely separate and completely pure as its own independent entity.⁶⁶ Racists presented the specter of the white person contemplating a grandchild who was both truly a direct descendant and truly and evidently black. Eva Saks has speculated that these fears related to a sense among whites that they had a property interest in their blood.⁶⁷ The fear of taint arose from an interest that people had in their blood and its dispensation in future generations. Both individuals and the state could be understood to possess this interest. The state enforced its interest in preventing the tainting of white blood through continuing and strengthening its legal pursuit of couples who engaged in interracial sex. 55

     These emerging beliefs provided the legal community with a framework within which to justify increasingly rigid separation between blacks and whites and increasingly stringent definitions of blackness. One clear example may be found in Judge Thomas M. Norwood's remarks in 1907, entitled "Address on the Negro," in which he reflected upon his experiences dealing with black defendants over the years. After detailing the inferiority of the black race, Norwood explained to his audience that miscegenation was a horrible threat to the nation.⁶⁸ Even though the law forbade interracial sex, having legal prohibitions on the books was not sufficient to curb the evil: "illicit miscegenation thrives and the proof stalks abroad in breeches and petticoats along our streets and highways."⁶⁹ This proof was the mixed-race issue of such unions. 56

     Norwood's beliefs about black inferiority did not permit him to blame "pure" blacks for the increases in racial mixing. He placed the blame squarely on white men, who made and enforced the laws against miscegenation and prevented black men from crossing the color line, while simultaneously "wallow[ing] with dusky Diana with impunity."⁷⁰ This practice by white men, in Norwood's view, was particularly damaging to white women. Women married to men who engaged in interracial sex would bear the shame of knowing that their children had black half siblings. Their white daughters would flinch at having to acknowledge a black child's salute of them as sisters.⁷¹ 57

     While Norwood saw "full-blooded Negroes" as childlike, easily led, humble, and nonthreatening, he believed that mulattoes, due to the admixture of whiteness, were a genuine threat both in their prominence and in their attitudes. He argued that all prominent black persons in the United States had white or Native American ancestry to thank for their abilities and that all were hostile to whites.⁷² His solution to this problem, which would have been unconstitutional even under the prevailing racist standards,⁷³ was to "Draw a dead line between the races. Tell the Negro, when he crosses it the penalty is death. Tell the white man, when he crosses it the penitentiary is there."⁷⁴ 58

     The constitutional convention in 1901 provides the best evidence of the growing concern in Alabama with mulattoes and "racial mixing." While the state's constitution did need an overhaul to replace the patchwork efforts of conventions in the immediate postwar years, the explicit goal of the convention was to base white supremacy in law. In his opening remarks, the convention's president, John Knox, emphasized this, explaining, "If we would have white supremacy, we must establish it by law--not by force or fraud."⁷⁵ For Knox, the necessity of grounding white supremacy in the highest laws of the state arose from the inherent differences between the races, expressed in hereditary terms. He insisted that the new constitution would not discriminate against blacks because of race but rather "on account of his intellectual and moral condition."⁷⁶ Why did drawing a rigid line between white and black not constitute racial discrimination? He explained that whites, unlike blacks, had an inherited capacity for democratic governance. This native, natural capacity rendered the lowest white man capable of self-government and barred every black individual from this responsibility. 59

     In light of the goals of the constitution, the members of the convention addressed miscegenation directly. The framers took up the issue on July 22, 1901, considering proposed section 62 of the new constitution. The new section was to read: "The Legislature shall never pass any law to authorize or legalize any marriage of any white person and Negro, or the descendant of a Negro, to the third generation inclusive, though one ancestor of each generation be a white person."⁷⁷ This language, which tracked the language of the various statutes barring miscegenation in the postbellum years, might have appeared at first to be uncontroversial. 60

     In fact, however, the proposed section initiated a debate because some delegates believed that it did not go far enough. They suggested removing the phrase defining blacks as including only those who had black great-grandparents, resulting in a provision that would bar anyone with any black ancestors, no matter how far back, from engaging in a legal marriage with a white person. Other delegates believed this to be unnecessary, claiming that the amendment as proposed was sufficient. Supporters of a "one-drop rule" responded that the more expansive version was the only way to assure that no marriages between whites and "the descendants of Negroes" would ever occur, raising the possibility that without the broader rule, the legislature could legalize marriages between whites and people who were fourth-generation descendants of blacks. When the delegates voted, they opted for the version that did not define any degree of ancestry, thus rendering any marriage between a white person and an individual with any black ancestors at all void.⁷⁸ 61

     The convention thus revealed a growing concern with black ancestry generally and with the dangers of mulattoes specifically. This concern, however, did not translate directly into legislative action. The impact remained on the constitutional level, where racist ideology was reflected in its pure and coherent form. It is difficult to know why change took place only in the constitution, but possibly the legislature did not act because there appeared to be no reason for action. Blackness, whatever its essence really was, was simply not a matter of great controversy in the actual workings of Alabama's legal system in 1901, and the growth and dissemination of genetic understandings of blackness appeared to promise greater certainty. As eugenics gained prominence, old conceptions of race based largely in the belief that blacks were fundamentally different from whites in their natures and souls began to give way. The implications of genetically based inferiority were significant for policy makers, but an embrace of the belief that blackness was genetic had unforeseen dangers for those who wanted to maintain absolute separation between white and black. 62

The Battle over Who Was a "Negro": Proving Race, 1918–1934

The conflict over how a prosecutor could successfully show that an individual was a "Negro" for purposes of the anti-miscegenation statute lasted only a short time--the first set of cases arose in 1918 with the prosecution of Ophelia Metcalf and Jim Simmons for miscegenation, and the last, the second prosecution of Jesse Williams, took place in 1934. In these years, the courts moved from certainty over race to uncertainty. Despite efforts to resolve the problem of racial definition through both common law and statutory revisions, the two Williams cases revealed the untenable nature of even carefully crafted efforts to integrate scientific definitions of race with common knowledge in some circumstances. Much of the difficulty that the legal system had in these years related to the full emergence of eugenics, which presented new reasons for racial discrimination couched in the language of science. Ironically, the emphasis of eugenics on heredity briefly made it more difficult for prosecutors to gain convictions that would stand on appeal. 63

     In the years between 1918 and 1934, the Alabama appellate courts ruled in seven cases in which the race of one of the defendants was a major issue. In six of the cases, a central evidentiary question at trial or on appeal was whether the prosecution had appropriately proven that one of the defendants was black (or white, in one case). Five of the defendants were successful in convincing a higher court to overturn their convictions, while two failed. Six of the couples were white women and black men, and the seventh was a black woman and a white man. 64

     The two upheld convictions were in cases involving prosecutions for adultery and intermarriage. Those charged more generally under the statute had more success, though one alleged adulterer and one person convicted of intermarriage also had their convictions reversed. In contrast to the previous decades, none of the cases involved alleged prostitutes. Three involved relationships that were long term or analogous to marriage, one concerned allegations of isolated acts of intercourse, and the remaining three involved alleged adulterous connections. 65

     These cases provide the fullest information regarding the emerging public discussion of race, its de finition, and its signi ficance. During these years, as described above, eugenicists articulated their theories concerning heredity and race to their fullest extents. As eugenics incorporated scienti fic discourse and public policy, racist theories grounded political practice. ⁷⁹ Attorneys on both sides of the miscegenation cases were aware of these theories and struggled on both sides to use them to support their arguments. The courts were left with the task of determining how this pseudo-scienti fic discourse was to be integrated with the legal principle of racial separation.

66

Regulating Miscegenation and the Thorny Problem of Defining Race

The reasoning described above had an ironic impact on legal attempts to address miscegenation. Upon casual consideration, it would seem that a strengthened and more scientifically couched explanation of the dangers posed by racial mixing would lead to stricter legal regulation both at the trial level and on appeal. In fact, the new beliefs about race and mixed race temporarily made it more difficult for prosecutors to secure convictions that would stand up on appeal. Defense attorneys initiated the crisis by grasping the opportunity to use the new conventional wisdom about heredity and blackness to challenge the state's capacity to prove one of the elements of the offense of miscegenation. Ultimately, this difficulty became so pronounced that Alabama responded by changing its statute, but the two cases that arose after the statutory change resulted in the reversal of both convictions. 67

     The problem that racist theories of eugenics presented for prosecutions of alleged miscegenators was in the definition of race and the identification of individuals as black or white. Before the rise of the eugenics movement, everyone knew what was meant by the word "Negro." An 1851 ruling had defined a "Negro" as "a black man descended from the black race of Southern Africa."⁸⁰ The statute, as described above, expanded this definition to include mulattoes down to the third generation, which meant that a person would be considered black for purposes of the anti-miscegenation statute as long as one of his or her great-grandparents was a "Negro."⁸¹ While this formulation was quite specific, it was unproblematic--anyone who looked like a black person simply was a black person. Whiteness was even vaguer, not even having a statutory definition. No one raised a recorded appeal in a prosecution for miscegenation based on not having sufficient black or white ancestry to count as black or white under the statute, because ancestry was simply not as important as appearance. All a prosecutor had to do was to exhibit the defendants to the jury, as in the Linton case, and that would suffice to show race as long as he was careful to claim in the indictment as well that the defendants were of different races. 68

     The racist eugenicists based their theories in heredity. This rendered ancestry much more important in the grand scheme of things. If blackness and whiteness were not simply physical characteristics or natural qualities that existed within individuals but rather were inheritable, defendants had an opportunity to avoid conviction by demonstrating that they or their companions did not, in fact, have the wrong kind of ancestors. Given that these cases were criminal, a "black" defendant did not even have to prove that he or she had no black ancestors; because of the prosecutor's duty to prove his case beyond a reasonable doubt, the prosecutor now had the burden of showing definitively that the defendant or his or her partners did indeed have at least one black great-grandparent. Even making this showing was difficult, since the genetic framework made blood the metaphorical and literal medium for the transmission of traits from generation to generation. By the 1920s and 1930s, prosecutors were often finding it necessary to go back to the antebellum period to show the requisite black ancestry. The only solution to this pressing problem was to develop a standard that did not require proof of heredity, but this was difficult in light of the statute's language and the cultural beliefs about heredity prevalent at the time. 69

     In 1918, an Alabama attorney first realized that raising questions about the state's ability to prove the races of the defendants could result in reversals of convictions. Ironically, the claim involved a challenge of white ancestry, not black. Between the summer of 1916 and the summer of 1917, Ophelia Metcalf and Jim Simmons were indicted, tried, and convicted of living in adultery or fornication with each other in violation of the anti-miscegenation statute. The indictment charged that Metcalf was a "Negro" and Simmons was a white person.⁸² Metcalf was sentenced to seven years in the state penitentiary for her crime.⁸³ No one had actually caught the defendants together in bed, and much of the evidence in the case centered around witnesses who had seen Metcalf and Simmons together in a buggy or at Metcalf's house.⁸⁴ Metcalf testified that, while she lived near Simmons and had dealings with him frequently, her relationship with him was strictly limited to her use of his livery service. She also asserted that she had never committed adultery with Simmons, nor had she ever had sexual intercourse with him.⁸⁵ Simmons apparently did not testify at Metcalf's trial. 70

     Metcalf and Simmons both appealed their convictions. The attorney for both, Charles Erastus Mitchell, was a prominent Democrat who had been practicing law in Hamilton, Alabama, since 1893.⁸⁶ Mitchell, handling Metcalf's appeal, raised two issues: First, that the state had not produced enough evidence to prove that she had committed adultery with Simmons, and second, that the state had not introduced evidence showing that Simmons was a white man. The appellate court considered her claims and ruled that, while Metcalf's presence at the trial and her testimony before the jury provided the jury with a sufficient opportunity to determine her race, the state had not done enough to establish that Simmons was white.⁸⁷ Because a crucial element of the crime had not been proven, Metcalf's conviction could not be sustained. The court overturned Simmons's conviction on the same basis, allowing him to escape a lengthy prison term because the state had not sufficiently identified him as a member of the dominant race.⁸⁸ Both defendants thus escaped prison terms on the basis of questions about the meaning of race, ironically in this first case the meaning of whiteness specifically. Defense attorneys were now on notice that this tactic could succeed for their clients, and they were quick to exploit it. Further, the appellate ruling did not give prosecutors any real guidelines about how to prevent this problem from arising again, leading to further litigation. 71

     Percy Reed and Helen Corkins began living together in around 1915. They had been living alone together in a house for five years when they were arrested for miscegenation and charged with intermarrying illegally. At their trial, a witness reported that Corkins referred to Reed as her husband, and the pair did not contest the allegation that they considered themselves to be married and lived together as a married couple.⁸⁹ Instead, they argued that Percy Reed was not black within the limitations of the statute. 72

     The trial did not focus on Percy's race, but rather on the race of his great-grandmother and her daughter, his grandmother. When the trial judge charged the jury, he framed the question in these terms: "Was this woman, the mother of Rose Reed, a Negro; was this child Rose Reed her child; was she the mother of Reuben Reed. Was Reuben Reed the father of this man [Percy Reed]."⁹⁰ If Rose Reed's mother was a full-blooded "Negro," then Rose Reed was black. If she was black, then her son Reuben and grandson Percy could face criminal penalties for marrying or having sexual relations with white women. 73

     Percy Reed claimed that his grandmother Rose had been of mixed race, but not of black descent. Rather, her parents had been an Indian woman and Mr. Gaines, a white slaveholder. The court admonished the jury that even if they found that Rose Reed's mother was a "half breed," this would not be sufficient to support a conviction under the statute.⁹¹ They needed to identify a full-blooded "Negro" among Percy Reed's recent ancestors. This would not be easy to do, given that there was no evidence that could show definitively the racial makeup either of Rose Reed or of her mother. 74

     The state relied on witness testimony to establish Rose Reed's parentage. One witness explained in a sworn affidavit that "I knew Rose Reed and heard that she was George S. Gaines' daughter and that one of the Gaines' cooks was her mother."⁹² In his affidavit he could not identify which cook was Rose's mother. At the trial, however, he testified that he knew which cook was Percy Reed's great-grandmother but simply did not remember her name. The unnamed woman was "ginger cake color, and cooked for old man Gaines. She was Percy Reeds' [sic] great Grandmother--she was a mighty old woman when I knew her."⁹³ While she was a mulatto, her daughter Rose was "brighter" in skin color. 75

     A witness for the defense countered this story, repeating information that had been introduced in an earlier trial regarding the Reeds. This witness claimed that "an Indian woman was the mother of Rose Reed and that George S. Gaines was her father. I always heard and understood that those were the ancestors of the Reeds. I never heard that a Negro cook or a Negro woman in the household of George S. Gaines was the mother of Rose Reed."⁹⁴ Another witness corroborated this account, testifying that he had never heard that the Reeds were descended from "Negroes."⁹⁵ 76

     This flat contradiction left the question of Percy Reed's race unanswered. The prosecution could not prove its case through an investigation of Reed's ancestry alone, so it used other tactics as well. Another witness testified that he knew Reed to be a mulatto because he was "moxed [sic] with Negro--have been told that, and I also judge from his looks."⁹⁶ Evidence about the physical appearance of those alleged to be black was not that helpful to the state, however. On cross-examination, John Richardson admitted, "I don't know about the length of Rose Reed's hair, but remember that she sometimes wore it plaited, and sometimes in a little knot on her head."⁹⁷ Another state witness testified that Percy's mother had long straight hair and appeared to be a Native American.⁹⁸ Percy Reed's cousin also testified that Rose Reed's hair was one and a half or two feet long and straight, not kinky.⁹⁹ 77

     Reed's defense attorney also sought to raise reasonable doubt by introducing evidence about Reed's associations. The state's own witness testified that, while he had seen Reed with "Negroes," he did not know that Reed associated with "Negroes" particularly.¹⁰⁰ A. G. Richardson also testified that the Reed family didn't associate with whites, but the defense attorney was not seeking to prove that the Reeds had white associates. John Richardson testified that the Reed's family not only did not associate with "Negroes" but, moreover, that his maternal relations had owned slaves.¹⁰¹ Reed's cousin, Reuben, testified that Rose Reed did not "talk like a Negro" and both he and Henry Rivers, another defense witness, supported the claim that Reed's family had never associated with "Negroes."¹⁰² 78

     What, then, was the defense trying to suggest about Reed's racial background? Victoria Bynum has explored the tangled genealogical lines of another such community in southeastern Mississippi.¹⁰³ In 1948, an appellate court overturned the conviction for miscegenation of a young man named Davis Knight on the ground that the state had not sufficiently proven his blackness. The Knights had descended from a white man who had allowed two of his children to marry mulattoes and possibly had fathered mixed-race children himself. The Knights largely intermarried with each other and established a separate school for the clan. Without clear physical markers of blackness in the defendant, and with contradictory testimony regarding the physical features and associates of his ancestors, Davis Knight was able to achieve, if not whiteness, at least the ability to continue his married life in peace.¹⁰⁴ Likewise, Naomi Zack describes isolated mixed-race communities that existed in the south, east, and midwest in the 1930s. While members of these communities did not consider themselves to be black, some would acknowledge a small degree of black ancestry. Most emphasized their Native American ancestors to explain their nonwhite physical characteristics. They tended to associate neither with whites nor with blacks, choosing rather to keep to themselves. Their precarious status did not persist in a racially divided society; ultimately they had to deny either their white or non-white ancestry.¹⁰⁵ For a time, however, such communities survived and even thrived, as perhaps the Reed clan did. 79

     One of the defense witnesses identified Percy Reed's father as Spanish and Indian, suggesting that Reed's family may have been such a mixed-race community.¹⁰⁶ Other witnesses testified that the family associated mostly with each other and that their children did not attend the local school for black children.¹⁰⁷ Most damaging for the state's case, however, was the testimony that many members of the family had intermarried with local whites. George Sullivan identified four white families with whom the Reeds and Weavers had intermarried, and Robert Dorman claimed that they had established blood or marital connections with "in fact two thirds of the people in that part of the county."¹⁰⁸ A Finding that Percy Reed was a black man would thus have serious implications for the entire community. 80

     The jury, confronted with all of this contradictory evidence, apparently had difficulty in deciding how to decide whether Reed was indeed black. After beginning deliberations, they sent their foreman to ask the judge whether they could consider the appearance both of Percy Reed and of the other witnesses as evidence in the case.¹⁰⁹ The judge allowed them to do so, and they found Reed guilty, determining that he was indeed a black man. Reed was sentenced to three to four and a half years in the state penitentiary. 81

     Reed's attorney saw an opportunity in this confusion. Reed filed an appeal in the case, claiming that the state had not submitted sufficient evidence of his race to sustain his conviction. Central in this appeal was the extent to which Reed's appearance or his associations constituted an adequate admission that he was a "Negro" or mulatto. The appellate court that reviewed his case took a dim view of the state's evidence, pointing out that "The best that can be said of their [the state's witnesses'] testimony is, from the state's viewpoint, that one of them did state that the defendant was a mulatto or of Negro blood, and that he drew this conclusion from the defendant's color."¹¹⁰ (The prosecution's use of hearsay evidence to prove the race of Rose Reed's mother was deemed inappropriate by the appellate court; in the future, prosecutors would almost always have to search for people who had actually known the people whose race they were trying to establish.) This application of the rules on hearsay suggested that only direct evidence from defendants themselves or from or about others alleged to be black could be used to prove race. 82

     The most significant blunder, however, was not by the prosecutor but the trial court judge. Before sentencing a convicted defendant, the judge was required to assess the convict's occupation, health, and race. After Reed was convicted, Judge Ben Turner found that Reed was a farmer by occupation, that his health was not good, and that he was of Indian and Spanish origin!¹¹¹ The judge on appeal wrote sarcastically, "one cannot help asking how the trial judge made this ascertainment, when the verdict of the jury must of necessity have been arrived at upon an ascertainment that the defendant was of African origin."¹¹² Reed's conviction was overturned on the ground that the state had not sufficiently proved a key element of its case. 83

     Again, the appellate court did not issue a definitive ruling in the case. The state had not done enough to prove race, but the court did not explain fully what would be enough. Clearly, concluding that a person was black based solely on skin color was insufficient. Having dark skin was neither proper proof of black ancestry nor an adequate admission that the individual was black. In earlier cases, exhibition had been sufficient to constitute definitive proof of whiteness and blackness, so sufficient that it was almost never even raised as an issue. The inroads that eugenics had made allowed Reed's defense attorney to exploit his questionable racial heritage. Further, the trial judge's statements in sentencing the defendant had constituted an admission by the state that Reed was not black, thus negating the racial element of the crime of miscegenation. 84

     One year after the announcement of the decision in the Reed case, the same issue arose again at the trial of Sarah Wilson, also known as Shreveport Sarah. The state alleged that Wilson had developed an adulterous connection with Charles Medicus, a white married man. The trial was based heavily on the testimony of Medicus's wife, Ivy, who claimed that she had gone to Wilson's house looking for her husband and had seen Wilson and Medicus having intercourse through the window.¹¹³ Ivy Medicus was an enthusiastic participant at Wilson's trial, describing her husband's infidelities and her interactions with Wilson in great detail. 85

     On cross-examination, Wilson's defense attorney, Edward Grove, sought to raise as many doubts about Medicus's testimony as possible and then turned to the question of race, asking Medicus if she knew how much "Negro" blood Wilson had. Medicus replied, "I cannot prove that, but she lives in a Negro house with Negro people. You can tell by her looks she is Negro." The defense attorney repeated the question and asked Medicus if Wilson's mother, grandmother, or great-grandparents were "Negroes." Medicus, apparently a bit flustered, responded "I do not know which one, but one of them certainly must have been, or two or three." Grove persistently elicited an admission from Medicus that she did not know anything about Wilson's ancestors, and the trial judge interjected to clarify that Medicus had no personal knowledge beyond information about Wilson's appearance. When the trial judge asked Medicus if she knew who Wilson's ancestors were, Medicus answered, "No,--but don't she live with Negroes,--she could not surely be white." On redirect, the prosecutor attempted to repair the damage, suggesting that Medicus knew that Wilson was a "Negro" because of her physical appearance, the color of her skin, and her associates.¹¹⁴ 86

     Like the prosecutor in the Reed case, the prosecutor in the Wilson case introduced evidence about Wilson's associates. One witness testified that he had seen Wilson coming into the courthouse with other "Negroes" and that he had seen her kiss a "Negro" woman goodbye after they left the courtroom.¹¹⁵ Another witness, Cliff Adams, testified that a male associate of Wilson's was a full-blooded "Negro."¹¹⁶ 87

     Wilson's defense attorney used the same strategy with Adams that had rattled Ivy Medicus, asking him how he knew that either Wilson or her associate was a "Negro." After getting the witness to define a full-blooded "Negro" as a full-blooded African, he asked him whether Wilson's parents were Africans or Americans. Adams answered that he did not know and also admitted that he did not know how much "Negro" blood Wilson had. But he truculently continued to maintain that Wilson was a "Negro," claiming that a great part of her blood was "Negro" blood. When Grove asked Adams how he knew that a high proportion of Wilson's blood was "Negroid," Adams responded that he knew her race by her color and her associates.¹¹⁷ 88

     Throughout the trial, the interactions between state witnesses and Wilson's defense attorney highlighted the difficulties that arise when concepts such as race are in transition. Repeatedly, state witnesses insisted that Wilson was black while simultaneously admitting that they did not know anything about her ancestry. In the transcripts, their responses to Grove, Wilson's attorney, exhibited both frustration with his repeated questioning and blank incomprehension of the emphasis he was placing on ancestry as a measure of blackness. Their attitude was that they knew Wilson was black as a matter of common sense in a society that placed great weight upon categorizing people by race. The trial record preserved no physical description of Wilson, but the witnesses' responses seem to suggest that she was readily identifiable as a black person. Their attitude appeared to be that a discussion of ancestry was irrelevant when a person was obviously black. The jury also did not see or accept the point at which Grove was driving: Wilson was convicted and sentenced to between three and three and a half years in the state penitentiary.¹¹⁸ 89

     The main issues that Wilson raised on appeal related to her contention that the state had not proved her race beyond a reasonable doubt according to the legal definition established by the statute. Ironically, the emerging consensus in the eugenics movement concerning heredity formed the basis for Wilson's argument. None of the state's witnesses had been able to testify about Wilson's ancestors from personal knowledge, and defense attorney Grove's reading of the statute required the state to prove either that Wilson herself was a "Negro" or mulatto or that one of her parents, grandparents, or great-grandparents was a full-blooded "Negro." The brief explained that the state's witnesses did not establish the legal definition of race in any way: "Well, how did they reach the conclusion that she was a Negro? Can it be said that every dark person, or every brown-skinned person, who happens to be seen with Negroes, is a Negro? Should their association with persons be the sole evidence upon which to base a conviction?"¹¹⁹ 90

     The appellate court understood Wilson to be arguing that the establishment of race was partly a legal and partly a factual question. In this view, the prosecution would have the duty to introduce evidence about the defendant's ancestry and the jury would then decide if the evidence was credible. The appellate court ruled against this reasoning, Finding that these questions were questions of fact. The jury was competent to determine whether a particular defendant was white or black, and the de finition of race was not a fully legal issue. ¹²⁰ The court explained its ruling in pragmatic terms. First, it would often be impossible for the state to find such evidence. Furthermore, common sense enabled ordinary individuals, including judges and attorneys, to identify a "Negro" when they saw one:

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Racial Constructions: The Legal Regulation of Miscegenation in Alabama, 1890–1934

JULIE NOVKOV

Historical Background on Miscegenation and an Introduction to the Legal Problem

Figure 1. Frequency of Appellate Litigation, 1865–1974

Initial Evidentiary Battles: Adultery, Fornication, and the Prosecution of Prostitutes, 1890–1917

The Triumph of Eugenics and Heredity's Place in the Law

The Battle over Who Was a "Negro": Proving Race, 1918–1934

Figure 1.
Frequency of Appellate Litigation, 1865–1974