Mixed Race Studies

“Freedom By A Judgment”: The Legal History of an Afro-Indian Family

Law and History Review
Volume 30, Issue 1 (February 2012)
pages 173-203
DOI: 10.1017/S0738248011000642

Honor Sachs, Assistant Professor of History
Western Carolina University, Cullowhee, North Carolina

Forum: Ab Initio: Law in Early America

On May 2, 1771, John Hardaway of Dinwiddie County, Virginia posted a notice in the Virginia Gazette about a runaway slave. The notice was ordinary, blending in with the many advertisements for escaped slaves, servants, wives, and horses that filled the classified section of the Gazette in the eighteenth century. Like countless other advertisements posted in newspapers wherever slaves were held, Hardaway’s advertisement read: “Run away from the subscriber, a dark mulatto man slave named Bob Colemand, 25 years old, tall, slim, and well made, wears his own hair pretty long, his foretop combed very high, a blacksmith by trade, claimed his freedom under pretense of being of an Indian extraction.”

Read or purchase the article here.

The Loving Story

Home Box Office (HBO)
2012-02-14, 21:00 EST

Nancy Buirski, Director and Producer

In June 2, 1958, a white man named Richard Loving and his part-black, part-Cherokee fiancée Mildred Jeter travelled from Caroline County, VA to Washington, D.C. to be married. At the time, interracial marriage was illegal in 21 states, including Virginia. Back home two weeks later, the newlyweds were arrested, tried and convicted of the felony crime of “miscegenation.” To avoid a one-year jail sentence, the Lovings agreed to leave the state; they could return to Virginia, but only separately. Living in exile in D.C. with their children, the Lovings missed their families and dearly wanted to return to their rural home. At the advice of her cousin, Mildred wrote a letter to Attorney General Robert F. Kennedy, who wrote her back suggesting she get in touch with the American Civil Liberties Union.

Two young ACLU lawyers, Bernard S. Cohen and Philip J. Hirschkop, took on the Lovings’ case, fully aware of the challenges posed at a time when many Americans were vehement about segregation and maintaining the “purity of the races.” In interviews filmed at the time, the two lawyers dissect the absurdities of the laws and the difficulties of trying a case over five years old. Today, Hirschkop recalls that Mildred was quiet and articulate, while joking that his initial impression of Richard was that he looked like a crew-cut “redneck.” As they came to know them, however, it became apparent that the couple was deeply committed to each other. With an eye towards taking their case to the highest possible court, Cohen filed a motion to vacate the judgment on the Lovings’ original conviction and set aside the sentence. Local Judge Leon Bazile denied the motion, stating that God had separated people by continents and did not “intend for the races to mix.” After the Virginia Supreme Court responded with similarly antiquated and racist sentiments, Cohen and Hirschkop seized the opportunity to take the case to the U.S. Supreme Court.

Although the odds of getting a case heard by the Court were slim, Cohen and Hirschkop learned that Loving v. Virginia would be heard on April 10, 1967. Aware that their case had the potential to set a landmark precedent, the two green lawyers (Hirschkop was only two years out of law school and had never argued before the Supreme Court) prepped in New York before heading to the famous Supreme Court building in D.C. In oral arguments heard on audiotape, the State compared anti-miscegenation statutes to the right to prohibit incest, polygamy, and underage marriage, claiming that children are victims in an interracial marriage. The plaintiff’s lawyers, by contrast, included legal arguments interspersed with references to sociology and anthropology. And though the Lovings chose not to attend, Cohen may have made the most compelling case by relaying to Chief Justice Warren and his fellow judges Richard’s simple message: “Tell the court that I love my wife, and it is unfair that I can’t live with her in Virginia.”

After a two-month wait, the U.S. Supreme Court ruled unanimously in favor of the Lovings on June 12, 1967. This precedent-setting decision resulted in 16 states being ordered to overturn their bans on interracial marriage. Alabama was the last holdout, finally repealing its anti-miscegenation law in 2000.

Virginia’s Caroline County, ‘Symbolic of Main Street USA’

The Washington Post
2012-02-10

Carol Morello

Bowling Green, Va. — Only a few easily overlooked markers note the importance of Mildred and Richard Loving in Caroline County, where five decades ago the sheriff rousted the white man and his black bride from their bed and carted them off to jail.

A small brass plaque in the county courthouse credits their landmark 1967 U.S. Supreme Court case, Loving v. Virginia, with overturning laws prohibiting interracial marriage. Their names are engraved on a granite obelisk, at the end of a list of prominent local African Americans. The county Web site devotes a page to their case.

Yet their legacy is everywhere in the small Tidewater towns and family farms that make up Caroline County, where a soaring number of people identify themselves as multiracial.

In the 2010 Census, 3 percent of Caroline County’s 28,500 residents were counted as of two or more races. Most are younger than 20. The phenomenon is both old and new.

Historical records show multiracial children in the county going back to slave-holding Colonial times. Today, their increasing ranks are part of a national trend that is changing the way people think and talk about race.

…Even in 1958, Caroline County was an unlikely place for an interracial couple to be arrested. An area known as Central Point had so many multiracial residents of white, black and Native American heritage that during segregation, their children all attended the county’s all-black high school. A major feature of Central Point is Passing Road — a name attributed in local lore to the many residents who could “pass” as white. Elderly residents of Central Point say they recall other interracial couples who had married out of state and lived quietly in the area….

…It’s not known how Mildred Loving, with her black and Native American heritage, identified herself in the 2000 Census. She died in 2008, 33 years after her husband died in a car crash. But in the 2010 Census, their daughter decided to check only one box when faced, like so many millions of other Americans, with boiling down a complex ancestry on a bureaucratic form.

“Native American,” said Peggy Loving Fortune, who is 52. “Just Native American.”…

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Film retells Lovings’ love story

The Free Lance-Star
Fredericksburg, Virginia
2012-02-06

Jonas Beals

Mildred and Richard Loving were probably the last people you would expect to make legal history, but in 1967 they won a U.S. Supreme Court case that nullified laws against interracial marriage in Virginia and the 15 other states that still banned miscegenation. And it happened in Caroline County.

Their story has become legend in certain legal and civil rights circles, but their historic ordeal is less well known to younger generations and people in other areas of the country. That’s about to change.

HBO will première “The Loving Story” on Valentine’s Day—Feb. 14.

The producers have been screening the film across the country, and on Saturday they brought it home. Friends, family and admirers packed the auditorium of the Caroline County Community Services Center. The screening ended with a standing ovation.

The documentary, directed by Nancy Buirski, is mostly made up of black-and-white footage shot by Hope Ryden in 1965 and black-and-white photos taken by Life magazine photographer Grey Villet, also in 1965…

Read the entire article here.

‘The Loving Story’ to premiere in Caroline County

The Free Lance-Star
Fredericksburg, Virginia
2012-02-04

Jonas Beals

Caroline County will get the red-carpet treatment Saturday evening.

HBO, Comcast and the American Civil Liberties Union of Virginia are hosting an invitation-only screening of the new HBO documentary “The Loving Story” at the Caroline County Community Services Center.

The film tells the story of Mildred and Richard Loving, an interracial couple from Caroline County who married in 1958, only to be arrested and convicted of violating Virginia’s anti-miscegenation laws. Their case eventually made it to the U.S. Supreme Court, where their victory ended laws against interracial marriage across the country…

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Unfixing Race: Class, Power, and Identity in an Interracial Family

The Virginia Magazine of History and Biography
Volume 102, Number 3 (July, 1994)
pages 349-380

Thomas E. Buckley, S.J., Professor of American Religious History
Jesuit School of Theology, Berkeley
Santa Clara University

This article is also available as a chapter in Martha Hode’s (ed.) Sex, Love, Race: Crossing Boundaries in North American History.

In November 1816 Robert Wright, a slaveholding farmer from Campbell County in the Virginia Piedmont, petitioned the General Assembly for a divorce. Because the state courts lacked jurisdiction over divorce in the early nineteenth century, the legislators regularly considered such requests. Wright’s petition, however, was unlike any other the assembly had ever received. According to Wright’s account, his marriage to Mary Godsey in 1806 had been a happy one. Describing his behavior toward her as ‘kind and affectionate,” Wright acknowledged that Mary had brought him “great domestic comfort, and felicity” until 1814, when William Arthur “by his artful, and insidious attentions” replaced Wright “in her affections.” The couple eloped in January 1815, taking with them some of Wright’s property including a female slave, but were caught in neighboring Bedford County. Wright reclaimed his possessions, and Mary consented “to return to the Home, and the Husband she had so ungratefully, and cruelly abandoned.” Despite her infidelity, Wright maintained that he had again treated his wife with affection, hoping “time… would reconcile her to her situation and restore her to Happiness.” His hopes proved illusory. Ten months later, Mary and William ran off to Tennessee. Charging her with desertion and adultery, Wright asked the assembly to pass a law ending their marriage.

Thus far the case was familiar. Tales of infidelity, desertion, and scorned love the legislators had heard before. What made Wright’s petition unique was his frank admission that as “a free man of color” he had married a white woman and so violated Virginia’s law forbidding interracial marriage. While avoiding a rhetorical style that was either defiant or obsequious, Wright defended the validity of his union and presented his case in matter-of-fact fashion. His free status apparently empowered him with a sense of personal worth and dignity and a claim to equal treatment that he was unafraid to assert publicly.  Equally noteworthy were the affidavits submitted with the memorial.  Defying the mores historians commonly ascribe to white southerners, more than fifty white citizens of Campbell County ignored Wright’s miscegenation, endorsed his request for a divorce, and testified to his good standing in their community…

Purchase the article here.

Why Race Isn’t as ‘Black’ and ‘White’ as We Think

The New York Times
2005-10-31

Brent Staples

People have occasionally asked me how a black person came by a “white” name like Brent Staples. One letter writer ridiculed it as “an anchorman’s name” and accused me of making it up. For the record, it’s a British name—and the one my parents gave me. “Staples” probably arrived in my family’s ancestral home in Virginia four centuries ago with the British settlers.

The earliest person with that name we’ve found—Richard Staples—was hacked to death by Powhatan Indians not far from Jamestown in 1622. The name moved into the 18th century with Virginians like John Staples, a white surveyor who worked in Thomas Jefferson’s home county, Albemarle, not far from the area where my family was enslaved…

…As with many things racial, this story begins in the slave-era South, where sex among slaves, masters and mistresses got started as soon as the first slave ship sailed into Jamestown Harbor in 1619. By the time of the American Revolution, there was a visible class of light-skinned black people who no longer looked or sounded African. Free mulattos, emancipated by guilt-ridden fathers, may have accounted for up to three-quarters of the tiny free-black population before the Revolution.

By the eve of the Civil War, the swarming numbers of mixed-race slaves on Southern plantations had become a source of constant anguish to planters’ wives, who knew quite well where those racially ambiguous children were coming from.

Faced with widespread fear that racial distinctions were losing significance, the South decided to define the problem away. People with any ascertainable black ancestry at all were defined as black under the law and stripped of basic rights. The “one drop” laws defined as black even people who were blond and blue-eyed and appeared white.

Black people snickered among themselves and worked to subvert segregation at every turn. Thanks to white ancestry spread throughout the black community, nearly every family knew of someone born black who successfully passed as white to get access to jobs, housing and public accommodations that were reserved for white people only. Black people who were not quite light enough to slip undetected into white society billed themselves as Greek, Spanish, Portuguese, Italian, South Asian, Native American—you name it. These defectors often married into ostensibly white families at a time when interracial marriage was either illegal or socially stigmatized…

Read the entire essay here.

Statistics On Miscegenation

Franklin Repository
1864-04-27
page 1, column 6

Source: Valley of the Shadow: Civil War Era Newspapers, University of Virginia Library

Summary: The Repository details the disproportionate number of “mulattoes” in the South relative to the North.

Full Text of Article:

There were 411,613 mulatto slaves in the south in 1840, of whom 69,979 were in Virginia; 43,281 in Kentucky, and 36,900 in Georgia. These numbers are considerably beyond the legitimate proportion of those States. There were also 176,739 free mulattoes in the United States in 1860, of whom 106,770 belonged to the south, and 69,969 to the free States. Of the free mulattoes Virginia contained 23,485, which number, added to her slave mulattoes makes a total of miscegenated population of 93,824. Her mulatto slaves alone exceeded the total number of mulattoes in the free States.

The whole number of mulattoes, slave and free, in the Union, in 1860, was 588,352, of whom 69,969 belonged to the free States, and 518,383 to the slave States—a number greater than the combined white population of Arkansas, Delaware and Florida—greater than the white population of Maryland—almost twice as great as that of South Carolina, and twice as great as the combined populations of Delaware and Florida. The mulatto population of Virginia alone exceeds the number of whites in Delaware or Florida.

(No Title)

Franklin Repository
1863-12-09
page 4, Column 4

Source: Valley of the Shadow: Civil War Era Newspapers, University of Virginia Library

Summary: Argues that “amalgamation” is common in the South and “very rare” in the North. A Southern correspondent concerned with the number of mixed marriages occurring wanted “amalgamation” outlawed. The Repository claims that the grooms are Southerners or foreigners because “amalgamation” is no stranger to a social system that includes slavery. In the free North, on the other hand, mixed marriages are “very rare.”

Full Text of Article:

A clerical correspondent writes us from the Southern coast protesting against the rapid tendency to amalgamation. He says that he has been called upon to perform the marriage service repeatedly where the bride was mulatto, quadroon or octoroon, and he calls upon Congress to arrest this unnatural mingling of the races, which, to use his own language, “threatens the annihilation of the white race in the United States.”

We beg our correspondent to quiet his fears on the subject. He cites some half a dozen cases to vindicate his apprehensions; but not one of them presents the union of a northern man with the southern negress. All the happy grooms were either southerners or foreigners, and they have been adopting no novel social system. Slavery has never fastened its desolation on any land without carrying the social evil of amalgamation with it; and the crime has been peculiar to the chivalric and opulent rather than to the lowly. Had our correspondent cast a thought as to the origin of the mulatto, quadroon and octoroon brides of whom he speaks, he might have cherished a reasonable suspicion that amalgamation is not just dawning upon the world, but has blotted and blurred the whole social organization of the South ever since slavery came with its endless train of crime.

In the North, where the negro race is free and not the legitimate prey of a brutal master’s lust, amalgamation is very rare, and embraces only the most abandoned of both sexes; and we regard the destruction of Slavery as the only hope of dealing a death-blow to that unnatural evil. Slavery has been its parent, its shield, its apologist and stripped it of its hideous moral deformity by bringing virtuous wives and daughters and sensual sons in daily contact with it; and when its great foundation is destroyed, the whole structure of social pollution will fall with it. The remedy is not in Congress, but in the moral tone of the people, and that seems to be progressing well toward a better and brighter Nationality, free from the blistering stains of both legalized and lawless mingling of the distance races of the Continent.

A Very Sad Occurrence

Staunton Vindicator
1869-08-27
page 3, Column 2

Source: Valley of the Shadow: Civil War Era Newspapers, University of Virginia Library

Summary: The paper prints an account of the killing of Jacob Scherer by John Stanley. Stanley had been co-habiting with a woman of mixed race. Scherer led a party to break up the union. They broke into the house and Stanley shot Scherer in the process. Stanley was arrested for murder. The article includes a transcript of the testimony before the grand-jury.

(Names in announcement: Jacob Scherer, John B. Scherer Sr., John Stanley, Ginnie Sorrel, Clinedinst, Anderson, Dr. B. B. Donaghe, James Gilmore, Joseph Ryan, Trayer, N. S. White, Dr. Fauntleroy, J. T. Parrent, Robert Campbell, M. G. Harman)

Full Text of Article:

Our people were startled, about midnight Saturday night last, by the announcement that Jacob Scherer, third son of Jno. B. Scherer, Sr., had been killed by Mr. John Stanley.

Jacob Scherer was a young, unmarried man, about twenty years of age, full of fun, sociable, of an amiable disposition, which caused all our people to esteem him highly, and it may well be imagined, that the announcement that he had been cut down, in the vigor of life, caused a thrill of pain in the very breast of every one.

Mr. Stanley is a man of middle age, with a wife and one child, a son, about 15 or 16 years old, and was regarded as a steady, quiet, well-meaning man.

The circumstances attending the killing are as follows:

A party of some eight or ten young men, learning that Mr. Stanley was co-habiting with a mulatto girl, named Ginnie Sorrel, blacked their faces and went to her house, on Market Street, Saturday night last, for the purpose of breaking up the illicit connexion. Several entered the house and immediately a pistol was fired, killing Jacob Scherer, almost instantly.

Mr. Stanley was identified by several of the party present, as the one who fired the shot, and was arrested, at his house, about two hours after and lodged in jail.

The examination of the case was entered into before Justices Pearce, Clinedinst and Anderson, on Tuesday morning last. We give below a synopsis of the testimony of the witnesses examined…

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