1920s: “a jury indicted Bob Lemmons, an African American married to a Mexican woman, for violating the law forbidding miscegenation. He would not have been prosecuted were it not for the fact that he and his wife attempted to send their children to the white school instead of the black school.” (Foley, The White Scourge)

Miscegenation laws forbade the marriage of blacks with whites, but because Mexicans were often regarded as nonwhite, even if they were legally white, they were rarely, if ever, prosecuted.[13] In one particular case the law was applied for entirely different reasons than that of intermarriage. During the 1920s a jury indicted Bob Lemmons, an African American married to a Mexican woman, for violating the law forbidding miscegenation. He would not have been prosecuted were it not for the fact that he and his wife attempted to send their children to the white school instead of the black school. Mexican children in this township attended the white school in separate classrooms for the first two or three years; afterwards, only a token few, usually the ones Anglo teachers singled out as being “clean” and “not like the others,” were permitted to continue their education. A judge from Dimmit County, where the case was tried, told Paul Taylor: “The Negroes with Negro-Mexican children and the Mexicans wanted to send their children to the white school, so when that started… they just indicted and tried them for violating the law against intermarriage. Then they tipped off the women that if they had nigger blood they could not put the men in jail.”[14] Lemmon’s Mexican [209] wife confessed that she must be part black in order to have charges dropped against her husband for marrying a white person. This “proved that all the Mexicans were black,” reported one county resident, “so we put the Mexicans and Negroes together in school and employed a part Negro to teach them.”[15] The judge solved the problem of segregating Mexicans from whites in a town that had only two schools for three ethnic groups by changing the racial classification of Mexicans to black.

Neil Foley, The White Scourge: Mexicans, Blacks, and Poor Whites in Texas Cotton Culture (Berkeley: University of California Press, 1997), 208-209.

 

  1. [13]Interview with H. H. Schultz, U.S. Department of Agriculture, Austin, Texas, no. 192-363, folder “American Government Officials,” 74-187c, Taylor Papers. When whites married Mexicans, especially of the “peon” class (dark-skinned), they were said to have descended “to the level of the Mexicans” (interview with Mr. Martin, county agent, El Paso County, Texas, no. 85-90, folder “Along Rio Grande,” 74-187c, Taylor Papers). For a fine study of miscegenation law and racial ideology, see Pascoe, “Miscegenation Law,” 44-69.
  2. [14]Interview with Judge Wildenthal, no. 54-644, folder “Dimmit County,” 74-187c, Taylor Papers.
  3. [15]Interview with John Asker, no. 42-634, folder “Dimmit County,” 74-187c, Taylor Papers, and interview with Bob Lemmons, no. 246-417, folder “Dimmit County,” 74-187c, Taylor Papers. Asker told Taylor that he liked Mexicans but added, “You can’t make a rose out of an onion.”

“Middle-class Mexican Americans … drew distinctions between themselves and lower-class Mexicans who they often regarded as ‘Indios’ or ‘Indian Mexicans’ and used terms like ‘mojados’ …” (Foley)

racial stratification within Tejanx community — “indios,” “mojados,” etc. / BB&W, 134

These middle-class Mexican Americans in El Paso sought to eliminate once and for all the ambiguity surrounding Mexican racial identity. First, they recognized that any attempt to define them as “nonwhite” could easily come to mean “noncitizen” as well, because many Anglos did not regard Mexicans, particularly of the lower class, as truly American or fit for American citizenship. Second, middle-class Mexican Americans themselves drew distinctions between themselves and lower-class Mexicans who they often regarded as “Indios,” or “Indian Mexicans” and used terms like “mojados” (“wetbacks”) and other terms of class and racial disparagement. Hamilton Price, the black El Pasoan, pointed out as much when he reminded El Pasoans about the close, even intimate, relations that existed between blacks and lower-class Mexicans in El Paso, from Mexican men shining the shoes of African American men to African American men marrying Mexican women.

Neil Foley, "Partly Colored or Other White: Mexican Americans and Their Problem with the Color Line," in Beyond Black and White: Race, Ethnicity, and Gender in the U.S. South and Southwest, ed. Stephanie Cole and Alison M. Parker, 123-144 (College Station: Texas A&M University Press, 204), 134.

 

Spanglish creole legal culture: Slave Law and Marriage Law in Anglo-Hispanic Texas

In the close of his chapter on antebellum Texas law, Campbell notes that race and slave law “drew its inspiration and precedents from practices in the southern United States, not from Hispanic America” (114). That might not seem like much of a surprise in Anglo governed antebellum Texas. If Texas lawmakers were predominantly Anglo white Southerners, then why wouldn’t the laws they made follow Anglo-American Southern models? But it wasn’t always the case in antebellum Texas, in areas of the law other than slavery. Texas laws often drew on Spanish colonial and Mexican precedents. In antebellum Texas, for example, community property marriage laws discarded Anglo-American traditions of coverture in favor of an existing Spanish model. Range law for livestock drew from English common law precedents, but innovated to adapt to open-range conditions. Anglo Texans preserved Mexican homestead exemptions in debt laws and Spanish law on water rights. Revolutionizing slave law according to the model of the Deep South U.S. was not a foregone conclusion but a political choice within the context of a Spanglish creole legal culture.

(As I wrote in a note to HOP # 5: “Republic of Texas lawmakers tended to be very emphatic about remaking Texas law along Anglo-American lines when it came to, for example, slave law, but Texas courts tended to be very flexible towards incorporating Spanish and Mexican precedent in the law of marriage; see for example Smith v. Smith, 1 Tex. 621 (1846), in which the judge’s opinion rejects an appeal based on Anglo-American law regarding bigamy and incorporates the Spanish Las siete partidas marriage code as binding.”)

 

“Neither black nor white, Mexicans were usually regarded as a degraded ‘mongrel’ race, a mixture…” (Foley)

The dyadic racial thinking of white southerners and northerners encountered some challenges in the mid-nineteenth century as European whites began their westward march across the continent. In the trans-Mississippi West whites encountered Mexicans in the present-day states of Texas, New Mexico, and California. From their first encounters, Anglos (the term used by Mexicans for white Americans) did not regard Mexicans as [125] blacks, but they also did not regard them as white. Neither black nor white, Mexicans were usually regarded as a degraded “mongrel” race, a mixture of Indian, Spanish, and African ancestry, only different from Indians and Africans in the degree of their inferiority to whites. Indeed, many whites considered Mexicans inferior to Indians and Africans because Mexicans were racially mixed, a hybrid race that represented the worst nightmare of what might become of the white race if it let down its racial guard. Where whites encountered groups who were neither black nor white, they simply created other racial binaries (Anglo Mexican; white Chinese, and so forth) to maintain racial hierarchies, while the quality that made whites superior–their “whiteness”–assumed a kind of racelessness, or invisibility, as they went about reaping the spoils of racial domination.

Neil Foley, "Partly Colored or Other White: Mexican Americans and Their Problem with the Color Line," in Beyond Black and White: Race, Ethnicity, and Gender in the U.S. South and Southwest, ed. Stephanie Cole and Alison M. Parker, 123-144 (College Station: Texas A&M University Press, 204), 124-125.

“In the name of racially regulating behavior, laws CREATED racial identities” — Tennessee use of “mulattoes, mestizos, and their descendants” (Haney Lopez)

Second, positive law has created the racial meanings that attach to physical features. In a sense, this is the heart of the prerequisite cases, which at root embody the efforts of the courts to inscribe on the bodies of individual applicants the term “White” or “non-White.” These cases established as legal precedent the racial identities of the various faces and nationalities entering the United States at the turn of the century. Again, however, the racial prerequisites to naturalization are not the only laws that explicitly defined racial identities. Almost every state with racially discriminatory legislation also established legal definitions of race. It is no accident that the first legal ban on interracial marriage, a 1705 Virginia act, also constituted the first statutory effort to define who was Black.[6] Regulating or criminalizing behavior in racial terms required legal definitions of race.[7] Thus, in the years leading up to Brown, most states that made racial distinctions in their laws provided statutory racial definitions, almost always focusing on the boundaries of Black identity. Alabama and Arkansas defined anyone with one drop of “Negro” blood as Black; Florida had a one-eighth rule; Georgia referred to “ascertainable” non-White blood; Indiana used a one-eighth rule; Kentucky relied on a combination of any “appreciable admixture” of Black ancestry and a one-sixteenth rule; Louisiana did not statutorily define Blackness but did adopt via its Supreme Court an “appreciable mixture of negro blood” standard; Maryland used a “person of negro descent to the third generation” test; Mississippi combined an “appreciable amount of Negro blood” and a one-eighth rule; Missouri used a one-eighth test, as did Nebraska, North Carolina, and North Dakota; Oklahoma referred to “all persons of African descent,” [119] adding that the “term ‘white race’ shall include all other persons”; Oregon promulgated a one-fourth rule; South Carolina had a one-eighth standard; Tennessee defined Blacks in terms of “mulattoes, mestizos, and their descendants, having any blood of the African race in their veins”; Texas used an “all persons of mixed blood descended from negro ancestry” standard; Utah law referred to mulattos, quadroons, or octoroons; and Virginia defined Blacks as those in whom there was “ascertainable any Negro blood” with not more than one-sixteenth Native American ancestry.[8]

The very practice of legally defining Black identity demonstrates the social, rather than the natural basis of race. Moreover, these competing definitions demonstrate that the many laws that discriminated on the basis of race more often than not defined, and thus helped to create, the categories they claimed only to elucidate. In defining Black and White, statutory and case law assisted in fashioning the racial significance that by themselves drops of blood, ascertainable amounts, and fractions never could have. In the name of racially regulating behavior, they created racial identities.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 118-119.
  1. [6]Finkelman, supra, at 2088. According to Finkelman, “This act also made the first stab at defining who was actually black. The law declared that anyone who was a child, grandchild, or great grandchild of a black was a mulatto under the statute. this meant that persons who were of one-eighth African ancestry were black for purposes of Virginia law.” See generally A. Leon Higginbotham, Jr., and Barbara K. Kopytoff, Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia, 77 GEO. L. J. 1967 (1989).
  2. [7]See Raymond T. Diamond and Robert J. Cottrol, Codifying Caste: Louisiana’s Racial Classification Scheme and the Fourteenth Amendment, 29 LOY. L. REV. 255, 265 (1983) They argue that “[s]tate supported or initiated discrimination required racial definitions. The law could not separate what it failed to categorize.”
  3. [8]Paul Finkelman, The Color of Law, 87 NW. U. L. REV. 937, 955 n. 96 (citing PAUL MURRAY, STATES’ LAWS ON RACE AND COLOR [1950]).

“Antimiscegenation laws… sought to maintain social dominance along specifically racial lines, and at the same time, sought to maintain racial lines through social dominance” (Haney Lopez)

Naturalization and immigration laws are not, however, the only or even the most important laws that have influenced the appearance of this country’s populace. More significant may be the antimiscegenation laws, which appeared in the statutes of almost every state in the union until they were struck down by the Supreme Court in 1967.[3] These laws purported merely to separate the races. In reality, they did much more than this: they acted to prevent intermixture between peoples of diverse origins so that morphological differences that code as race might be more neatly maintained.[4] Antimiscegenation laws, like lynch laws more generally, sought to maintain social dominance along specifically racial lines, and at the same time, sought to maintain racial lines through social domination. As Martha Hodes argues, “racial hierarchy could be maintained primarily through the development of a rigid color line: if blacks and whites did not have children together, then racial categories could be preserved.”[5] Cross-racial procreation erodes racial differences by producing people whose faces, skin, and hair blur presumed racial boundaries. Forestalling such intermixture is an exercise in racial domination and subordination. It is also, however, an effort to forestall racial blurring. Antimiscegenation laws [118] maintained the races they ostensibly merely separated by insuring the continuation of “pure” physical types on which notions of race are based in the United States.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 117ff.
  1. [3]The Supreme Court declared antimiscegenation laws unconstitutional in Loving v. Virginia, 388 U.S. 1 (1967). See generally ROBERT J. SICKELS, RACE, MARRIAGE, AND THE LAW (1972).
  2. [4]See VIRGINIA DOMINGUEZ, WHITE BY DEFINITION: SOCIAL CLASSIFICATION IN CREOLE LOUISIANA, 56-62 (1986); Paul Finkelman, The Crime of Color, 67 TUL. L. REV. 2063, 2081-87 (1993).
  3. [5]Martha Hodes, The Sexualization of Reconstruction Politics: White Women and Black Men in the South after the Civil War, 3 J. OF THE HIST. OF SEXUALITY 402, 415 (1993).

“it is not that women were unaffected by the racial bars, but that they were doubly bound by them, restricted both as individuals, and as less than individuals (that is, as wives)” (Haney López)

1855, 1868: only ‘white women’ can gain citizenship by marriage; loss of citizenship to white women married to barred men. / WBL p. 46

Notice the mention of gender in the statutory language ending racial restrictions in naturalization. The issue of women and citizenship can only be touched on here, but deserves significant study in its own right.[46] As the language of the 1952 Act implies, eligibility for naturalization once depended on a woman’s marital status. Congress in 1855 declared that a foreign woman automatically acquired citizenship upon marriage to a U.S. citizen, or upon the naturalization of her alien husband.[47] This provision built upon the supposition that a woman’s social and political status flowed from her husband. An 1895 treatise on naturalization put it, “A woman partakes of her husband’s nationality; her nationality is merged in that of her husband; her political status follows that of her husband.”[48] A wife’s acquisition of citizenship, however, remained subject to her individual qualification for naturalization–that is, on whether she was a “white person.”[49] Thus, the Supreme Court held in 1868 that only “white women” could gain citizenship by marrying a citizen.[50] Racial restrictions further complicated matters for noncitizen women in that naturalization was denied to those married to a man racially ineligible for citizenship, irrespective of the [47] woman’s own qualifications, racial or otherwise.[51] The automatic naturalization of a woman upon her marriage to a citizen or upon the naturalization of her husband ended in 1922.[52]

The citizenship of American-born women was also affected by the interplay of gender and racial restrictions. Even though under English common law a woman’s nationality was unaffected by marriage, many courts in this country stripped women who married noncitizens of their U.S. citizenship.[53] Congress recognized and mandated this practice in 1907, legislating that an American woman’s marriage to an alien terminated her citizenship.[54] Under considerable pressure, Congress partially repealed this act in 1922.[55] However, the 1922 act continued to require the expatriation of any woman who married a foreigner racially barred from citizenship, flatly declaring that “any woman citizen who marries an alien ineligible to citizenship shall cease to be a citizen.”[56] Until Congress repealed this provision in 1931,[57] marriage to a non-White alien by an American woman was akin to treason against this country: either of these acts justified stripping of citizenship from someone American by birth. Indeed, a woman’s marriage to a non-White foreigner was perhaps a worse crime, for while a traitor lost his citizenship only after trial, the woman lost hers automatically.[58] The laws governing the racial composition of this country’s citizenry came inseverably bound up with and exacerbated by sexism. It is in this context of combined racial and gender prejudice that we should understand the absence of any women among the petitioners named in the prerequisite cases: it is not that women were unaffected by the racial bars, but that they were doubly bound by them, restricted both as individuals, and as less than individuals (that is, as wives).

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 46-47.
  1. [46] See generally Ursula Vogel, Is Citizenship Gender-Specific? THE FRONTIERS OF CITIZENSHIP 58 (Ursula Vogel and Michael Moran eds., 1991).
  2. [47] Act of Feb. 10, 1855, ch. 71,§ 2, 10 Stat. 604. Because gender-based laws in the area of citizenship were motivated by the idea that a woman’s citizenship should follow that of her husband, no naturalization law has explicitly targeted unmarried women. GORDON AND MAILMAN, supra., at
    § 95.03[6] (“An unmarried woman has never been [statutorily] barred from naturalization.”).
  3. [48] PRENTISS WEBSTER, LAW OF NATURALIZATION IN THE UNITED STATES OF AMERICA AND OTHER COUNTRIES 80 (1895).
  4. [49] Act of Feb. 10, 1855, ch. 71, § 2, 10 Stat. 604.
  5. [50] Kelly v. Owen, 74 U.S. 496, 498 (1868).
  6. [51] GORDON AND MAILMAN, supra at § 95.03[6].
  7. [52] Act of Sept. 22, 1922, ch. 411, § 2, 42 Stat. 1021.
  8. [53] GORDON AND MAILMAN, supra at § 100.03[4][m].
  9. [54] Act of March 2, 1907, ch. 2534, § 3, 34 Stat. 1228. This act was upheld in MacKenzie v. Hare, 239 U.S. 299 (1915) (expatriating a U.S.-born woman upon her marriage to a British citizen).
  10. [55] Act of Sept. 22, 1922, ch. 411, § 3, 42 Stat. 1021.
  11. [56] Id. The Act also stated that “[n]o woman whose husband is not eligible to citizenship shall be naturalized during the continuance of the marriage.”
  12. [57] Act of March 3, 1931, ch. 442, § 4(a), 46 Stat. 1511.
  13. [58] The loss of birthright citizenship was especially harsh for those women whose race made them ineligible to regain citizenship through naturalization, especially after 1924, when the immigration laws of this country barred entry to any alien ineligible to citizenship. Immigration Act of 1924, ch. 190, § 13(c), 43 Stat. 162. See, e.g., Ex parte (Ng) Fung Sign, 6 F.2d 670 (W.D.Wash. 1925). In that case, a U.S. birthright citizen of Chinese descent was expatriated because of her marriage to a Chinese citizen, and was subsequently refused admittance to the United States as an alien ineligible to citizenship.

“If any white person shall, within this state, knowingly marry a negro, or a person of mixed blood, descended from negro ancestry …” (Texas Penal Code Revision of 1858)

[156/1028] An Act supplementary to and amendatory of an act entitled an act to adopt and establish a Penal Code for the State of Texas, approved 28th August, 1856.

Article 1. Be it enacted by the Legislature of the State of Texas, That the following Chapters and Articles of the act above recited, commonly known as the Penal Code, be, and they are hereby so amended as that the same shall hereafter respectively read as follows–that is to say:

[…]

[164/1036]

TITLE 12.

CHAPTER 1.

Unlawful Marriage.

Article 386 shall hereafter read as follows:

If any white person shall, within this state, knowingly marry a negro, or a person of mixed blood, descended from [165/1037] negro ancestry, to the third generation inclusive, though one ancestor of each generation may have been a white person, or having so married in or out of this State, shall continue within this State to cohabit with such negro, or such descendant of a negro, he or she shall be punished by confinement in the Penitentiary, not less than two nor more than five years.

[…]

CHAPTER 2.

Article 392 shall hereafter read as follows:

Every man and woman who shall live together in adultery, or fornication, shall be punished by fine, not less than one hundred, nor more than one thousand dollars.

Article 395a. Every white person who shall live in adultery or fornication with a negro, or a person of mixed blood, descended from negro ancestry, to the third generation inclusive, though one ancestor of each generation may have been a white person, shall be punished by fine, of not less than one hundred nor more than one thousand dollars.

“An Act supplementary to and amendatory of an act entitled an act to adopt and establish a Penal Code for the State of Texas, approved 28th August, 1856” (February 12, 1858). H. P. N. Gammel, The Laws of Texas, 1822-1897, Vol. 4 (Austin, Texas: Gammel's Book Store, 1898), 164-165 (link).

“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.

“an analysis of the persons with mixed Spanish-Anglo surnames shows that this group, taken as a component part of the Tejano population, declined in the years between 1850 and 1900” (de León and Stewart)

1850-1900: Intermarriage – decline in “persons with mixed Spanish-Anglo surnames” as an index of decline in intermarriages or “blending into white society” generally:

Indeed, other evidence suggests that the urban Tejanos resisted adopting an Anglo American way of life with equal or greater intensity than their compatriots in the countryside….

First, an analysis of the persons with mixed Spanish-Anglo surnames shows that this group, taken as a component part of the Tejano population, declined in the years between 1850 and 1900. The presence of persons with mixed surnames is indicative of a propensity toward structural assimilation since such surnames would result from a variety of Tejano behaviors aimed at blending into the white society. Such behaviors may have ranged from intermarriages or interethnic sexual relations to simply modifying one’s name to better fit the Anglo mold. What statistics show is that the extent of such assimilating behavior decreased. In 1850, for example, for every 100 persons in urban environments with Spanish surnames, there were 14 with mixed Spanish-Anglo surnames. By 1900, this number had dropped to just 3, and in rural areas the trend was the same.[15] Thus, to the extent [89] that mixed names resulted from conduct aimed at merging into white society, then resistance to such behavior increased both in cities and in rural settings during the nineteenth century.

Arnoldo de León and Kenneth L. Stewart, Tejanos and the Numbers Game: A Socio-Historical Interpretation from the Federal Censuses, 1850-1900 (Albuquerque: University of New Mexico Press, 1989), 88-89.

  1. [15]There were 11 persons with mixed Spanish-Anglo surnames for every 100 Spanish surnames in rural areas in 1850. By 1900, the number of mixed surnames dropped to 1 per 100 Spanish surnames. Admittedly, other factors such as the leveling out of the sex ratio among Anglos between 1850 and 1900 may have influenced this decline in the number of mixed surnames. Nonetheless, we take it also to be an indication of the increased degree of resistance to assimilation on the part of the Mexicans of Texas.