“The first case in North America to turn on race” (Haney López)

First British North America case to turn on race — Re Davis — a miscegenation / interracial sex case.

The inability of judges to articulate who was White is a product of the transparency phenomenon. Within the logic of transparency, the race of non-Whites is readily apparent and regularly noted, while the race of Whites is consistently overlooked and scarcely ever mentioned. The first case in North America to turn on race exhibits this tendency. The full report of Re Davis, a Virginia case decided in 1630, reads as follows: “Hugh Davis to be soundly whipt before an assembly of negroes & others for abusing himself to the dishonor of God and shame of Christianity [24] by defiling his body in lying with a negro which fault he is to act Next sabbath day.”[54] As Leon Higginbotham notes, “Although the full picture can never be reconstructed, some of its elements can reasonably be assumed. … [B]ecause Davis’s mate was described as a ‘negro,’ but no corresponding racial identification was made of Davis, it can be inferred that Davis was white.”[55] Transparency is a legal tradition of long standing, not something new to the law today or to the prerequisite cases. As a threshold matter, then, defining “whites” taxed the prerequisite courts’ abilities not because the question was inherently abstruse, but because through the operation of transparency the judges had never really thought about it.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 23-24.

 

  1. [54]McIlwaine 479 (Sept. 1630), reprinted in HIGGINBOTHAM, supra, at 23.
  2. [55]HIGGINBOTHAM, supra, at 23.

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