Litigating Whiteness: Trials of Racial Determination in the Nineteenth-Century South

Ariela J. Gross

Judges in the nineteenth-century South repeatedly held that race was a matter of "fact," not "law," something best left to juries, who represented community consensus. Yet in a variety of disputes in nineteenth-century courts in which a person’s racial status was on trial, from slaves’ suits for freedom to inheritance battles, judges discovered that legal determinations of race could not reflect community consensus because there was no consensus to reflect. This Article examines the kinds of evidence witnesses and litigants brought forth at trial and argues that law, broadly defined, played an important role in constituting the cultural meaning of racial identities.

Using a variety of local manuscript sources, the Article demonstrates that law became part of the definition of race in two related ways. First, law made the "performance" of whiteness especially important among the variety of types of evidence litigants presented at trial. Doing the things a white man or woman did became the law’s working definition of whiteness. Second, one of the most important ways in which men in particular could perform whiteness was, paradoxically, through the exercise of legal rights. Witnesses at trial frequently proved a person’s whiteness by reporting on his performance of acts of citizenship—voting, mustering for the militia, sitting on a jury—that made rightsholding part of the definition of whiteness.

The trials reveal the implications of a racial ideology that decreed that "negro blood" made a person inferior in virtue, competency, and behavior—that "blood" made a person act in certain ways. The "laws" of race could be subverted by people who followed all the rules of whiteness but "hid" their intrinsic blackness. Law, which provided the forum for these challenges, made a discourse of race as performance especially salient.

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