Miscegenation

Miscegenation

By Jeremy M Yancey

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. 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. Martha Hodges'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.

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. 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. 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.

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. 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. 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. 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.

Alabama, like most southern states, suffered great economic and social devastation during the Civil War and experienced turbulent politics in the immediate postbellum period. 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.

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. 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." 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.

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 decriminalize miscegenation, establishing the basic form of the statute that would persist until 1970. The legislature established sanctions against both parties to miscegenous relationships and for any person attempting to officiate 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:

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