The One-Drop Rule Arrives in the Postbellum Lower South

Essays on the Color Line and the One-Drop Rule
by Frank W Sweet
October 1, 2005


en days after Florida seceded, the state’s Senators David Levy Yulee, and Junior Senator Stephen Mallory (both born and raised in the British West Indies) walked out of the U.S. Capitol in Washington to lead the Confederacy in a war to preserve slavery. Eyewitness Virginia Clay-Compton wrote of the sad event in her diary:

One by one, Senators Yulee, Mallory, Clay, Fitzpatrick and Jefferson Davis rose, the emotion of their brother senators and of us in the galleries increased, women grew hysterical and waved their handkerchiefs…men wept and embraced each other mournfully,… scarcely a member of that Senatorial body but was pale with the terrible significance of the hour.1

Throughout the United States, sons and husbands went to war. Like countless other American families, the Osbornes of St. Augustine were torn between loyalty to their state and to their country. The Osborne family was of Hispanic heritage, light-brown complexion, and middle-class status. They were listed as members of the White endogamous group in the 1850 and 1860 censuses. The father, Samuel Osborne was a shipwright. His elder son, Sam Jr., was a journeyman in his father’s trade. His younger son, Manuel, was an apprentice who drilled once a month with the local militia unit, the St. Augustine Grays. When war broke out, the Grays were activated into the Third Florida Infantry, Company “A,” and young Manuel marched off as a White solder to fight for the Confederacy.

A few months later, in March of 1862, a U.S. Army regiment under General David Hunter landed in St. Augustine and recruited for the Union. Samuel and his elder son joined the fight to end slavery. To the Yankee eyes of the U.S. Army, the two Osborne men looked Black, despite the family’s census records. And so, the Army shipped them to X Corps HQ in Hilton Head, South Carolina, for basic training.2 They were posted to the First South Carolina Volunteer Infantry (later renamed the 33rd US Colored Troops), and served as Black soldiers until war’s end.

The divided brothers and father never met in battle. All survived and they reconciled after the war. Manuel moved to Ft. Lauderdale, then retired back home to St. Augustine. All three men received military pensions; two from the U.S. Army, one from the former Confederate State of Florida. Manuel’s name appears prominently in the town’s muster roll of heroes who wore gray; the Confederacy saw him as White. His father and brother, who wore blue, only recently received recognition from the city; the Union saw them as Black. During Reconstruction, an avalanche of well-meaning Northerners buried Florida’s lower South culture. The 1870 and 1880 censuses list the entire Osborne family as “Negroes.”3 Times were changing and the color line was shifting in the direction of the one-drop rule.

* * * * *

This essay presents three topics. Florida and Georgia shows two societies in transition. At mid-century, Florida was still in the process of adopting an endogamous color line. By Reconstruction, one was firmly in place and moving towards invisible Blackness. Similarly, the color line in Tidewater Georgia hardened between 1860 and 1880, but had not yet become a one-drop rule. Louisiana describes a post-war struggle between the old aristocracy, who strove unsuccessfully to preserve their biracial French culture and, on the other hand, an alliance of Yankee occupiers and Anglo-American Louisianans who crushed Colored Creole society out of existence by merging it with freed Blacks. South Carolina depicts a third society in transition. It describes the nation’s second attempt to write a one-drop law. The second attempt, like the first in 1853 Virginia, failed when lawmakers realized that it would penalize elite South Carolina families.

Florida and Georgia

Two biographical vignettes and a court case show that color-line attitudes in Florida and Georgia had also begun to change around mid-century. The court case is Dillon v. Dillon, 1878 Georgia. The biographical vignettes are about the two candidates for the U.S. Senate from Florida in 1845.

As discussed earlier, Andrew Jackson undermined Florida’s biracial Spanish culture by flouting Article VI of the Adams-Oniz treaty that ceded Florida to the United States.4 Some dark-complexioned members of Florida’s genetically mixed population fled to Mexico or Cuba, some joined the maroons and became Seminoles, and others were accepted into mainstream society as White Americans. Among those who successfully redefined themselves as White were both 1845 senatorial candidates, Joe Hernandez and David Levy.

José Mariano Hernandez‘s three plantations, San José, Malacompra, and Bella Vista, stretched along what is now Florida’s highway A1A from Painter’s Hill, just north of Flagler Beach, to Marineland.5 His parents, Martin and Dorotea, had been among the original indentured servants of the New Smyrna Colony.6 In September of 1822, President James Monroe appointed Hernandez as Florida’s first territorial representative. He took his seat in the Seventeenth U.S. Congress at the age of thirty-five. In his six-month term, Hernandez accomplished two projects. First, he persuaded the president and Congress to repeal Jackson’s discriminatory laws as they applied to light-complexioned Hispanic Floridians.7 Second, he persuaded them to uphold Jackson’s disfranchisement of free Blacks, Seminoles, former slaves, and the descendants of runaways.8 One might plausibly suspect that these were a quid pro quo. In order to save his own people, the Minorcans of St. Augustine, Hernandez may have thought it necessary to throw to the wolves those who were poorer and darker yet.

On February 19, 1823, Congressman Hernandez asked the chairman of the House Committee on Indian Affairs to remove the Seminoles to a reservation between Ocala and Tampa Bay.9 He wrote that, consequent to their decimation by invading Americans from 1811 to 1818, the Seminoles “being thus broken up have continued ever since, without the least Kind of Spirit of industry or enterprize, [sic]—they could at one time have been considered as having arrived at the First Stage Civilization.” But now, he concluded, they had degenerated to uselessness.10 On February 21, Congress agreed and ordered the Seminoles to a reservation “south of Charlotte’s River.”11 This resulted in the 1823 Treaty of Moultrie Creek, which ordered the Seminoles moved to a four-million-acre reservation between Ocala and Tampa, thus starting the chain of events that led to the Seminole trail of tears, over a decade later.12

In the fall of 1835, President Jackson ordered the U.S. Army to take the dark Seminoles into custody, return them to slavery, and deport the light-skinned ones to Oklahoma. The Seminoles did not accept their fate supinely. Jackson’s order triggered what historian Larry Rivers calls “the largest slave rebellion in U.S. history.”13 Like other New World maroon communities, the Seminoles (a corruption of cimarrones, Spanish for “runaways”) are descendants of Europeans, Africans, and Native Americans who fled slavery generations ago. Culturally, they still consider themselves Native Americans and speak either Mikasuki or Muskogee.14 On Christmas Day, Seminoles and their allies attacked San José, Malacompra, Bella Vista, and the other plantations owned by the anti-Seminole faction. Anglo-American militia under Hernandez (now a U.S. general) retaliated by attacking Bulowville, Carrickfergus, Rosetta and the other plantations owned by Seminole supporters.

The conflict became the longest, bloodiest, and costliest interracial war in U.S. history. It was waged, if any war can be said to have a single cause, in order to enforce the endogamous color line. In 1817 and again in 1823, the U.S. Army had offered peace if the Seminoles would give up their Negroes. Tribal leaders insisted that no Negroes lived among them—just dark Seminoles.15 For ten years, U.S. troops pursued the Seminoles, trying to split Black from Indian in a culture that lacked the very concept of “race.” As Major General Thomas Sidney Jesup wrote in 1836, “This… is a negro, not an Indian war.”16 In 1837, General Joe Hernandez thought he had won by capturing the enemy commanding general Asi-Yahola (nowadays known as “Osceola”), a man of Scottish descent. Hernandez had lured him into an ambush under a sham flag of truce.17 But instead of surrendering, the Seminoles fought on. Seven years later, when Colonel William Worth finally announced that, “hostilities with the Indians within this Territory have ceased,” two thousand U.S. soldiers and the same number of Seminole soldiers had lost their lives.18 Dark-skinned families who had lived free for generations were “returned to slavery.” Light-skinned Seminoles were deported to Oklahoma. A few hundred Seminole families refused to be torn apart, abandoned their homes and farms and fled deep into the Everglades.19

Throughout ten years of war, Hernandez demonstrated his loyalty and his adopted Anglo-American culture. By the time it was over, he had been fully accepted into the White side of the endogamous color line despite his parents’ ancestry as members of the group once known as “Turnbull’s niggers.”20 His sons went to the best private schools.21 By 1845, he had become an influential Whig politician.

David Levy descended from Sephardic Jews in Africa. Centuries earlier, the Ladino-speaking Levy family had been expelled by Spain’s Inquisition and joined the Sephardic Diaspora that enriched Mediterranean art, commerce, and politics for hundreds of years. They rose in Ottoman civil service. In 1776, Moses Levy’s father, Jacob, was the Yulee of Morocco, the grand vizier or chief advisor to the king. A palace revolution drove the Levy family to flee to Gibraltar.22 Young Moses sought his fortune in St. Thomas, Virgin Islands and married there. He entered a business partnership with another Sephardic Jew, Philip Benjamin. The Levy’s son, David, was born in 1810. The Benjamin’s son, Judah, was born the following year and the two boys became friends. Moses Levy moved to Cuba in 1816 and became wealthy as commissary supplies contractor to the Spanish Army in Havana. Anticipating Florida’s transfer to the United States, he bought 60,000 acres of Florida land in 1818. He took up Florida residence in July 1821, thereby becoming a U.S. citizen. A few years later, David Levy was admitted to Harvard. His childhood friend, Judah Benjamin, simultaneously went to Yale.

When David Levy graduated from college, he became a Presbyterian, a politician, and a businessman. He built a huge sugar cane plantation near Cedar Key and the county was named after him—Levy County. In 1841, he became Florida’s territorial delegate to the US Congress, like Hernandez before him, and changed his surname by adopting his grandfather’s old title, “Yulee.” The arrival in Congress of a swarthy, multi-cultural, African Jew did not sit well with everyone. His election prompted New England’s John Quincy Adams to sniff:

Levy is said to be a Jew, and what will be, if true, a far more formidable disqualification, that he has a dash of African blood [italics mine] in him, which sub rosa, is the case with more than one member of the house.23

Adams’s words reveal two points. First, Levy’s “dash of African blood” was common knowledge. Second, since slight African ancestry was “the case with more than one member of the house,” it was surely not a “formidable disqualification” in most people’s minds. John Quincy Adams and other Northerners may have been horrified, but it was obviously not a problem with Levy’s electorate or with other members of Congress from the lower South.

Levy served on the committee that wrote Florida’s constitution. Together with Whig Governor Richard Keith Call, he spent the next five years leading the drive for Florida’s statehood. In 1845, Congress accepted Florida as the twenty-seventh state (Iowa was the balancing free state). Levy (Democrat) and Hernandez (Whig) ran against each other for the state’s first U.S. Senate seat.24 Levy won and Hernandez retired to Cuba.25

Even at mid-century, as the upper South was in the process of considering the one-drop rule which had been invented in the North 20 years earlier, Florida was still struggling to implement the endogamous color line itself. The voters accepted both senatorial candidates as White even though both possessed widely known African ancestry.

The first stirrings of the one-drop rule in Florida appeared during Reconstruction when, as narrated in this essay’s opening anecdote, light-brown Hispanic soldiers who were White when they fought for the Confederacy, became re-defined as Black by occupying Northerners in the war’s aftermath.

The hardening of the color line in late nineteenth-century Georgia is also evident. In 1877, Rachel Dillon (born Rachel Black) of Savannah divorced her husband of twenty years and sued for alimony and child support in Dillon v. Dillon, 1878 Georgia. According to the testimony of her neighbors, the Dillon couple and their children were well liked in the neighborhood. Until the sudden divorce, the marriage had been considered a model in the community.26

The community knew that Rachel had a touch of African ancestry, but they considered her White nonetheless. When they were newlyweds, Mr. Dillon had shown his love for his new bride by obtaining a special act from the Georgia general assembly publicly declaring that Rachel was legally positioned on the White side of the endogamous color line. Although late antebellum Georgia resembled North Carolina in having a one-eighth blood-fraction statute, attitudes towards color line permeability in mid-century Savannah resembled the class-based rules in nearby Charleston, South Carolina.27 Nevertheless, Mr. Dillon had realized in the chaotic pre-war decade, that times were changing and the endogamous color line was hardening. He had ensured his bride’s future social standing in December of 1857 by obtaining an act of the state legislature that declared:

Whereas doubts have existed whether [Rachel Black], of the county of Chatham, is entitled to the rights and privileges of citizenship; and whereas satisfactory proof has been furnished to establish her said rights and privileges; and whereas it is just and proper that said doubts should be forever removed: Be it enacted, that from and after the passage of this act, the said (naming her as before) and her children (naming them) be, and they are hereby, declared to be severally entitled to all and singular, the rights and privileges of citizens of Georgia, and to be fully capable, each or any of them, of inheriting, holding and receiving all manner of property, real or personal, by bequest, deed, or in any other manner whatever.28

The record is silent as to why Mrs. Dillon divorced her husband, much less why the divorce came after two decades of apparently happy marriage. His defense, however, must have stunned the community. He claimed that Rachel had been Black all along and that, per the state’s anti-intermarriage law, they had never been legally married, and so he would pay neither alimony nor child support.

The jury was asked to decide on five questions of fact: First, did Mr. Dillon procure the act of the legislature asserting his bride’s Whiteness? Second, was Rachel Dillon (the plaintiff) the same person as Rachel Black (named in the act)? Third, assuming that Rachel Dillon had less than the one-eighth statutory blood fraction, was she legally Mr. Dillon’s wife? Fourth, did she in fact have less than the statutory one-eighth blood fraction? Fifth, if Rachel were found to be non-White due to having more than the statutory one-eighth blood fraction, then was her marriage valid anyway?29

The jury quickly decided in the affirmative for every question but the fourth. The marriage was valid if she had less than one-eighth Negro blood, the marriage was also valid if she had more than one-eighth Negro blood, and it was Mr. Dillon himself who had her Whiteness enacted by the legislature. But the jury could not reach a verdict on the fourth point (Rachel’s actually blood fraction). They considered the question irrelevant in light of their findings on the other four. The court ordered the defendant to pay alimony and child support.

The lack of a jury decision on Mrs. Dillon’s actual blood fraction was the basis for Mr. Dillon’s appeal. In January of 1878, the Supreme Court of Georgia, Judge Bleckley presiding, upheld the decision with a pedagogical essay on the legal principle of estoppel, ruling that Mr. Dillon should never have been allowed to testify in court as to his wife’s “race” because, twenty years earlier, he had sworn under oath that she was White. In sum, Mr. Dillon had correctly foreseen in 1857 that the color line would become harsher in coming decades. As it turned out, he was one of the first to try to take advantage of the new one-drop rule when his marriage collapsed.


As discussed earlier, mid-century Louisiana was also under pressure to change from Franco-American to Anglo-American customs, especially regarding the status of the in-between endogamous group, the Colored Creoles.30 Slowly, the English-speaking immigrants had their way. They passed a succession of laws restricting the rights of free Blacks (limiting marriage, travel, firearms, property ownership, judicial standing, education, and so forth). In the early years, such anti-Black laws explicitly exempted the Colored endogamous group. By 1843, the Colored group was no longer named as legislative special case, but they still considered themselves exempt, and the courts still usually upheld their special status. Numerous court cases held that the Colored Creoles were not considered Black regarding freedom papers, curfews, and the like.31 But by the 1850s, the courts had begun to treat all but the wealthiest and most powerful Colored Creoles as free Blacks.32

The Colored Creole community began to split into two groups. Light-complexioned ones urged their darker relatives to emigrate. Those who were too dark to prosper under American rule (and who lacked the wealth to stay anyway) began to leave. Two groups went to Haiti shortly before 1850. In 1857, two shiploads went to Tampico. Another ship left for Vera Cruz a few months later. In one parish alone, the number of Colored Creoles too dark to pass into the White world fell from 351 in 1855, to 153 in 1860.33

In 1850, one Colored Creole in three owned at least $2,000 in real estate (about $100,000 in today’s money).34 But by 1860, only two groups of Colored Creoles remained. First, were those with such fair complexions that they were accepted as White, despite French accents. Pierre Gustave Toutant Beauregard was of this kind. Short, courtly and light-skinned, he was born in 1818 to a prosperous family of St. Bernard Parish.35 Second, were those who were so wealthy that their darkness was politely ignored. Examples of this swarthy-but-rich kind included Aristide Mary, who owned real estate valued at $30,000 ($1,500,000 in today’s money) and Antoine Dubuclet, a sugar planter with over 100 slaves who became state treasurer after the war.36

At the war’s outbreak, the Colored Creoles owned property worth $2 million ($100 million in today’s money), and their working class still dominated such skilled crafts as bricklaying, cigarmaking, carpentry, and shoemaking.37 When the shooting started, a substantial majority of Colored Creoles formed up their traditional militia units on behalf of the Confederacy.38 Light complexioned ones were accepted. West Point graduate P.G.T. Beauregard of St. Bernard Parish became a Confederate general. But the Confederacy did not accept free Blacks in combat roles, so most Colored Creoles were turned away. Nevertheless, as in Brazil or Cuba today, money whitened. Even dark-complexioned Creoles could escape the free Black label if they had enough money. Jean-Baptiste Pierre-Auguste, Charles Lutz, and Leufroy Pierre-Auguste of St. Landry’s Parish joined the Confederate army as combat soldiers. They saw action at Shiloh, Fredericksburg, and Vicksburg.”39

As the war ground on to its conclusion, wealthy Colored Creoles adopted a certain noblesse oblige towards the Black freedmen. As officers, they had once commanded their own slaves in the state militia. Now they expected to resume a position of power. In 1864 they were horrified to learn that, far from granting them suffrage, the Union occupation forces under General Nathaniel Banks restricted their movement and civil rights, treating them as if they were freedmen themselves. In numbers, they dominated the New Orleans Equal Rights League of 1865, but found their political power hampered by the language barrier. English, it seems, had become the language of politics.40

The tension between the Colored Creoles and the Black freedmen became evident even as the war was ending. The Colored Creole-backed New Orleans Tribune supported the idea that the elite should lead and the freedmen should follow. The competing liberal newspaper, the Black Republican, editorialized that “We all know that not one in a hundred of our brethren on the plantations would ever receive his just earnings if the [Colored] planter were left to himself.” During postwar Reconstruction, many Colored Creoles refused to send their children to school with former slaves. Although this may have been due to language difference, it exacerbated tension between them and the freedmen, and this led to a self-perceived distinction between Colored Creoles and freedmen politicians. During the Constitutional Convention, a freedman delegate vowed that he did not intend “to have the whip of slavery cracked over us by no [Colored] slaveholder’s son.”41

They joined a three-way struggle for power, trying to wrest political control from Black freedmen and Black Yankees. According to the New Orleans Tribune, they were subject to “innumerable petty antagonisms,” and prey to scheming [Black Yankee] carpetbaggers who took “advantage of the apparent jealousy existing between free colored people and freedmen to assert political leadership among rural blacks.” The Tribune’s editor, spokesman of the “old free population” insisted that only the Colored Creoles had the education and breeding to rule. Reconstruction’s shaky start and premature collapse in Louisiana was, in part, due to the Colored Creoles’ difficulty in making common cause with the Black freedmen—a difficulty exacerbated by their French-English language barrier.42

The Colored Creoles did not gracefully join common cause with their former slaves—they were gradually pushed into it by Northern attitudes towards the color line. They found themselves compelled to defend newly won Black rights, like it or not. “The civil rights struggle was waged, for the most part, by the [Creole] elite. The issue had little meaning for the freedmen-farmers whose life-style precluded dinner at hotels or first-class seats on trains.”43

In 1864, General Nathaniel Banks of the occupying U.S. Army in New Orleans tried one last time to preserve the Jamaica-like class-based alliance between the White and Colored endogamous groups on the one hand, against the free Blacks and newly freed former slaves on the other. Lincoln had asked Banks to satisfy the Abolitionist Congress while at the same time cultivating a single color line (rather than Louisiana’s traditional two lines) separating only two endogamous groups (rather than the traditional three). Banks secured the agreement of a Louisiana federal judge named Durrell to rule that anyone with “a major part of white blood, should possess all the rights of a white man.”44 But the attempt failed before the solidarity that was growing between former biracial slave-owners and their former slaves. “As far as the law is concerned,” declared the Mobile Nationalist, “the [Colored] Creole and freedman stand upon the same level…. They must, in the future, rise or fall together.”45 Many dark-skinned freeborn Colored Creoles realized that their future was in the hands of Yankees, Black and White. They refused to dissociate themselves from the freedmen because the freedmen were the only source of political power still open to them. Banks’s plan failed. As Banks put it, “a few men, who wanted to break the bundle of sticks without loosening the band, defeated [the plan].”46

The splitting of Louisiana’s Colored Creole families into Black and White branches accelerated after the war. Ultimately, the problem was the evaporation of the Coloured/Black color line and the hardening of the White/Colored color line. It was becoming increasingly accepted among all English-speaking Americans, Yankees and Rebels alike, Blacks and Whites alike, that anyone of any discernable African descent was a member of the endogamous Black group.47 (Contrast this with post-emancipation Jamaica, where the beleaguered White population allied with the Mulatto elite to keep down the free Blacks.) And so, Anglo-American attitudes forced light-complexioned Creoles to pass into the White world, like it or not. And dark-complexioned Creoles were pushed into the ranks of Black freedmen, again like it or not. As Judith Schafer put it, “Little did they know that emancipation would lower their status, as whites increasingly lumped freed slaves and former free people of color together as one large and highly objectionable part of the state’s population.”48

Two cases show Louisiana in transition: Walsh v. Lallande, 1873 and Succession of Fortier, 1899. Charles Lallande was a member of Louisiana’s Colored Creole endogamous group. His paternal grandparents were Spanish and Native American, his maternal grandparents were French and African, and all had been born free. He had homesteaded a tract of federally owned land in Pointe Coupee Parish, Louisiana on December 31, 1844 and had “been in quiet possession of the property” ever since. On November 14, 1860, an ex parte proceeding by the commissioner of the U.S. general land office ordered the cancellation of Lallande’s homestead on the ground that he was a free Negro, and so could not be a citizen of the United States. The land was then awarded to a person on the White side of the White/Colored color line, William Walsh, who, in 1866, obtained a ruling from the U.S. Secretary of the Interior dispossessing Lallande on the same grounds. Lallande refused to vacate his homestead, Walsh sued and won a court order removing Lallande. The court grounded its decision on the U.S. Supreme Court ruling in Scott v. Sandford, 1857, that Negros could not be U.S. citizens.49 Lallande appealed the order to the Louisiana Supreme Court in Walsh v. Lallande, 1873 Louisiana, justices Ludeling, Taliaferro, Wyly, and Morgan presiding.50

In March, 1873, the state supreme court overturned the lower court and awarded the property back to Charles Lallande. They ruled that gens de couleur libre had been citizens of Louisiana “in the full enjoyment of those rights [of citizenship]” since long before the Dred Scott case, which was inapplicable in any event. According to the Louisiana Supreme Court, the Dred Scott decision, “was that a negro of African descent, whose ancestors were of pure African blood, and were brought into this country and sold as negro slaves, was not a citizen.” But, according to the Louisiana justices, Charles Lallande and those of his Colored Creole endogamous group were not “free Negroes.” They were Colored, not Black, and so they were not subject to laws regarding free Negroes. In fact, the justices unanimously ruled, “by the treaty whereby Louisiana was acquired, the free colored inhabitants of Louisiana were admitted to citizenship of the United States.” In an interesting moment of historical irony, Redemptionist Louisiana’s highest court held that the Reconstruction federal government could not revoke a Colored person’s citizenship. Curiously, everyone involved in the case—litigants as well as judges—pointedly ignored the fourteenth amendment to the U.S. Constitution, which had been ratified on July 9, 1868, guaranteeing national as well as state citizenship to all native-born residents.51

The first lower South case arguably decided by the one-drop rule upheld on appeal happened twenty-six years later. It was the estate dispute, Succession of Fortier, 1899 Louisiana.52 “Angela Fortier, widow of Placide Bienvenu, died in the city of New Orleans on the 8th of April, 1896.” So begins the court record of a turn-of-the-twentieth-century case, which reveals that a one-drop rule was starting to be applied in New Orleans at that time. Angela was at least 80 years old when she died intestate and childless. But shortly after the Parish of New Orleans took possession of her estate, a niece named Delphine Fortier, who was at least 60 years old, appeared on the scene and claimed possession as Angela’s sole surviving blood kin.

Testimony would show that, three years after the Louisiana Purchase, Jean Michel Fortier, an influential member of New Orleans’s White endogamous group and director of the Bank of Louisiana established a plaçage relationship with Marguerette Henriette Milon, a woman of the Colored endogamous group.53 They lived as husband and wife for thirty years, he dying in 1836 and she in 1838. They left a son, Edmond Gustave Fortier, who was accepted into the White side of the White/Colored color line and a daughter, Angela Fortier (the woman after whom this case is named), who lived her life as a member of the Colored group.

Edmond Gustave Fortier, like his father, also established a long-term monogamous plaçage relationship. He and Caroline Delzey, a Colored woman, lived as husband and wife for nearly forty years and had a daughter, Delphine (Angela’s niece). In 1862, Edmond Gustave was on his deathbed. The priest who was summoned to administer the Sacrament of Extreme Unction said that Edmond’s sins could not be absolved as long as he and Caroline remained unmarried in the eyes of the Church. Witnesses were assembled and the elderly couple was wed just hours before Gustave perished. Over thirty years later, their now-elderly daughter Delphine fought the Parish of New Orleans over her Aunt Angela’s estate.

Everyone agreed that Delphine was the late Aunt Angela’s next of kin. The issue was whether Delphine was legitimate. It seems that by 1862, when Delphine’s dying father married her mother, it was illegal in Louisiana to marry across the Colored/White color line.54 (It had been illegal since 1808 to marry across the Black/Colored color line.55) The state argued that, since Gustave was White and Caroline was Colored, the deathbed wedding was illegal, their daughter Delphine was illegitimate, and could not inherit her Colored Aunt Angela’s estate. Delphine argued that her father had been White only by courtesy because his mother (Delphine’s paternal grandmother) had been Colored. According to Delphine, when the deathbed wedding took place, the entire Fortier family, except for long-departed bank director Jean Michel, had actually been Colored.56

On June 19, 1899, The Supreme Court of Louisiana, Justices Nicholls and Watkins presiding, ruled that Edmond Gustave had been Colored all along, despite his having lived his life as an accepted member of White society. The court ruled that the deathbed wedding was thus valid, and that Delphine could claim her aunt’s estate. Neither appearance nor blood fraction was cited in making this determination. Appearance seems to have been disregarded because the entire family looked European, as far as anyone can tell from the testimony. Blood fraction seems to have been disregarded because Louisiana’s Constitution of 1892 had just changed the statutory definition from one-fourth (like Virginia) to one-eighth (like North Carolina) and, although Edmond Gustave was clearly White by either criterion, the point was never raised in court by either side.57 Like Scott v. Raubb, 1892 Virginia, Succession of Fortier, 1899 Louisiana was apparently decided on the basis of the one-drop rule of invisible Blackness. And like Scott v. Raubb the one-drop rule was invoked at the request of the individual herself, wanting to be declared non-White so that she could inherit a non-White ancestor’s estate.

South Carolina

At war’s end, South Carolina’s Mulatto elite quickly moved to seize power. Across the South, only one fourth of the delegates of Reconstruction constitutional conventions were of the Black endogamous group. In South Carolina they were in the majority—seventy-six out of 124.58

At first, they were decidedly ambiguous about the future role of freedmen, their former slaves and inferiors. The conflict was felt in all social institutions. In 1866, Rev. Henry M. Turner wrote about his parishioners, “the blacks were arrayed against the brown or mulattoes, and the mulattoes in turn against the blacks.”59 The educated Mulatto elite found freedmen’s religious practices alien and were appalled by the anti-intellectualism of freedmen leaders.60 Although many welcomed slavery’s end, most resented their loss of status and felt, correctly, that they were being submerged in a sea of freedmen. Most “avoided politics either because their business commitments took precedence, or so as not to jeopardize the personal connections with wealthy whites on which their economic standing depended.”61

There were exceptional leaders, however, and their influence soon became decisive. Francis L. Cardozo, the son of a Jewish businessman and a free biracial mother, had attended the University of Glasgow and in 1865 took charge of the American Missionary Association’s largest Charleston school. He made no distinction between freeborn and freed children and ridiculed the elitist idea that biracial children were more intelligent than African-looking ones. His influence was strong. Soon, the sons and daughters of elite South Carolina Mulatto families fanned out across the state to teach former slaves, a mission closed to the Louisiana Creoles, trapped behind their language barrier. Many South Carolina Mulattos then gained political power among working class freedmen and were elected as Constitutional Convention delegates and later as state legislators. Despite a few initial clashes between freedmen and the Mulatto elite, the latter soon came to throw their lot in with the former, as in Louisiana.62

Things were different for White planters, even those with slight African ancestry. Attitudes changed after Reconstruction, when South Carolina’s color line hardened and its well-deserved reputation for color line permeability began to dwindle. By the custom of a dying past, such planters were still accepted as White. Then, South Carolina legislators explicitly debated the endogamous color line in the Constitutional Convention of 1895. The convention was called through the power and influence of “Pitchfork” Ben Tillman with the specific goal of disenfranchising South Carolina’s entire Black endogamous group.63 Among influential White delegates (including some of slight African ancestry) were: John Gay Evans, John Laurens Manning Irby, George Dionysius Tillman (Pitchfork Ben’s brother), and John Pendleton Kennedy Bryan. Among the Black delegates (including some of significant European ancestry) were: Robert Smalls,64 Thomas E. Miller, William J. Whipper, James Wigg, and Isiah R. Reed, from Beaufort; and Robert B. Anderson from Georgetown.65

The White delegates (including those with slight African ancestry) proposed to insert a prohibition of marriage across the Black/White color line into the new constitution.66 Since the prohibition was ostensibly intended to protect “racial” purity, Robert Smalls proposed an amendment that any White person guilty of cohabiting with a Negro be barred from holding public office. The uproar that this caused prompted James Wigg to crow that, for once, “the coons had the dogs up a tree.”67 Smalls followed up by proposing that “all white men now cohabiting with Negro women be disbarred from voting in this convention.” He was gaveled down when a White member replied that “if the amendment should prevail… this convention would have to be adjourned sine die for lack of a quorum.”68

Once the intermarriage prohibition was passed, a discussion ensued as to the definition of a “negro.” The original committee had proposed a one-eighth blood-fraction rule, bringing South Carolina into line with North Carolina to the north and Georgia to the south. But now Mr. Johnstone, the young delegate from Newberry, proposed amending this to a one-drop rule of endogamous group membership. He proposed to forbid “marriage between a white person and a person having any negro blood at all in his or her veins.” A hush settled over the White delegates and the Black delegates sat back to observe their discomfort.69 It was an eerie re-play of the Virginia debates of 1853.70

“Pitchfork” Ben rose and tried to persuade Johnstone to withdraw his motion. Johnstone was adamant. Another delegate spoke quietly to Johnstone privately, to no avail. George Dionysius Tillman realized that such a definition would relocate many valued White citizens to the Black side of the endogamous color line. Perceiving the injustice of this proposal as well as its threat to White supremacy, and foreseeing that it could socially rip his state apart, he rose to his feet and gave the best-remembered speech of his political career:

If the law is made as it now stands respectable families in Aiken, Barnwell, Colleton, and Orangeburg will be denied the right to intermarry among people with whom they are now associated and identified. At least one hundred families would be affected to my knowledge. They have sent good soldiers to the Confederate Army, and are now landowners and taxpayers. Those men served creditably, and it would be unjust and disgraceful to embarrass them in this way. It is a scientific fact that there is not one full-blooded Caucasian on the floor of this convention. Every member has in him a certain mixture of… colored blood. The pure-blooded white has needed and received a certain infusion of darker blood to give him readiness and purpose. It would be a cruel injustice and the source of endless litigation, of scandal, horror, feud, and bloodshed to undertake to annul or forbid marriage for a remote, perhaps obsolete trace of Negro blood. The doors would be open to scandal, malice and greed; to statements on the witness stand that the father or grandfather or grandmother had said that A or B had Negro blood in their veins. Any man who is half a man would be ready to blow up half the world with dynamite to prevent or avenge attacks upon the honor of his mother in the legitimacy or purity of the blood of his father.71

The Charleston News and Courier reported the above speech under the headline “All Niggers, More or Less!” What is interesting to this study is that the Black delegates did not see the one-drop rule of invisible Blackness as a threat. By definition, such an endogamous group membership rule could affect only those who were middle class, looked European, and had no documented blood fraction. It was apparently a matter of indifference to the Black delegates—a White-on-White squabble. Only the White delegates saw it as a threat.

Two generations earlier, Virginia had gone through a similar debate, with a similar sudden realization, and a similar result.72 One more generation would have to pass before White Southerners forgot enough about their own heritage to swallow the one-drop rule.

* * * * *

This essay showed three societies in transition. At mid-century, Florida was still in the process of adopting an endogamous color line, but one was firmly in place and moving towards invisible Blackness by Reconstruction. The color line in Tidewater Georgia hardened between 1860 and 1880, but had not yet become a one-drop rule. Louisiana was the site of a struggle between the old aristocracy, who strove unsuccessfully to preserve their biracial French culture, and an alliance of Yankee occupiers and Anglo-American Louisianans who crushed Colored Creole society out of existence by merging it with freed Blacks. Finally, South Carolina lawmakers tried to write a one-drop law. This second attempt, like the first in 1853 Virginia, failed when the lawmakers realized that it would penalize elite South Carolina families.

1 As quoted by Celeste H. Kavanaugh, David Levy Yulee: A Man and His Vision (Fernandina FL, 1995) 27.

2 For a similar account of differences in the perception of “racial” feature between Northerners and lower Southerners, see the diary of General Joshua Lawrence Chamberlain, of Little Round Top fame as mentioned under topic “A Permeable, Shifted Color Line” in the essay, Barbadian South Carolina: A Class-Based Color Line.

3 Most of the Osborne family’s story is reported in Jaqueline K. Fretwell, Civil War Times in St. Augustine (St. Augustine, 1986), 96. Their census and tax records are available at the Research Library of the St. Augustine Historical Society.

4 See the topic “Society Changed When the Americans Arrived” in the essay, Spanish Florida: No Endogamous Color Line.

5 Charlton W. Tebeau, A History of Florida (Coral Gables FL, 1971) 160, 163-64; Michael V. Gannon, ed. The New History of Florida (Gainesville, 1996) 210-11; Alfred J. Hanna, A Prince in Their Midst: The Adventurous Life of Achille Murat on the American Frontier (Norman OK, 1946) 82, 86.

6 In 1768, several hundred bondsmen and women from the Balearic Islands, southern Italy, Sicily, Africa, and Greece had been brought to work indigo plantations in New Smyrna by Scotsman planter Andrew Turnbull. In a rare example of successful servile insurrection, they had fled the plantations during the chaos of the American Revolution and migrated to St. Augustine. By 1821, the “Minorcans” (as they are still called today, despite their genetic diversity) had become yeomen, shopkeepers, tradesmen, and professionals. A few, like Hernandez, had become wealthy planters. See Carita Doggett, Dr. Andrew Turnbull and The New Smyrna Colony of Florida (Eustis FL, 1919); United States Congress, Biographical Directory of the United States Congress, 1774-1989 (Washington, 1989); Kathryn Hall Proby, Audubon in Florida (Coral Gables FL, 1974), 60; Daniel L. Schafer, “U.S. Territory and State,” in The New History of Florida, ed. Michael V. Gannon (Gainesville, 1996), 207-30, 210-11; Philip D. Rasico, The Minorcans of Florida: Their History, Language, and Culture (New Smyrna Beach, 1990), 80; Alfred J. Hanna and Kathryn A. Hanna, Florida’s Golden Sands (Indianapolis, 1950), 59; Alfred J. Hanna, A Prince in Their Midst: The Adventurous Life of Achille Murat on the American Frontier (Norman OK, 1946), 82.

7 Kathryn Abbey Hanna, Florida: Land of Change (Chapel Hill, 1941), 146-47.

8 John A Clegg, The History of Flagler County (Bunnell FL, 1976), 26 .

9 George Klos, “Blacks and the Seminole Removal Debate,” in The African American Heritage of Florida, ed. David R. Colburn and Jane L. Landers (Gainesville, 1995), 128-56, 153.

10 John K. Mahon, History of the Second Seminole War 1835-1842, revised ed. (Gainesville, 1985), 30.

11 Ibid., 39.

12 Clegg (1976), 26.

13 Larry Eugene Rivers, Slavery in Florida: Territorial Days to Emancipation (Gainesville, 2000), 13.

14 John K. Mahon and Brent R. Weisman, “Florida’s Seminole and Miccosukee Peoples,” in The New History of Florida, ed. Michael Gannon (Gainesville, 1996), 183-206.

15 Kenneth W. Porter, The Black Seminoles (Gainesville, 1996) 19, 28.

16 Ibid., 67.

17 Ibid., 82-85.

18 As quoted in Frank Laumer, Dade’s Last Command (Gainesville, 1995), 241-43.

19 Idem.

20 See the topic “Society Changed When the Americans Arrived” in the essay, Spanish Florida: No Endogamous Color Line.

21 See, for example, José Mariano Hernandez, “Hernandez to Hallowell,” (1843).

22 Daniel L. Schafer, “U.S. Territory and State,” in The New History of Florida, ed. Michael V. Gannon (Gainesville, 1996), 207-30 221; Alfred J. Hanna and Kathryn A. Hanna, Florida’s Golden Sands (Indianapolis, 1950) 130.

23 From Adams’s famous diary, as quoted by Celeste H. Kavanaugh, David Levy Yulee: A Man and His Vision (Fernandina FL, 1995) 10.

24 Alfred J. Hanna and Kathryn A. Hanna, Florida’s Golden Sands (Indianapolis, 1950) 130.

25 John K. Mahon, History of the Second Seminole War 1835-1842, revised ed. (Gainesville, 1985) 99.

26 60 Ga. 204.

27 For the generational permeability of tidewater Georgia’s color line, see Mark R. Schultz, “Interracial Kinship Ties and the Emergence of a Rural Black Middle Class,” in Georgia in Black and White: Explorations in the Race Relations of a Southern State, 1865-1950, ed. John C. Inscoe` (Athens GA, 1994), 141-72.

28 60 Ga. 204.

29 To a modern reader, point five seems to be a question of law, not fact, but this is the way that it was framed. Apparently, the distinction between issues of law (the judge’s turf) versus fact (the jury’s) was not always as clear-cut in the late nineteenth century as it is today.

30 See the topic “French-Speaking Louisiana” in the essay, Antebellum Louisiana and Alabama: Two Color Lines, Three Endogamous Groups.

31 Judith Kelleher Schafer, Becoming Free, Remaining Free: Manumission and Enslavement in New Orleans, 1846-1862 (Baton Rouge, 2003), 97-98.

32 Virginia Meacham Gould, “The Free Creoles of Color of the Antebellum Gulf Ports of Mobile and Pensacola: A Struggle for the Middle Ground,” in Creoles of Color of the Gulf South, ed. James H. Dormon (Knoxville, 1996), 28-50, 44.

33 Ibid., 45-46.

34 Loren Schweninger, “Socioeconomic Dynamics among the Gulf Creoles,” in Creoles of Color of the Gulf South, ed. James H. Dormon (Knoxville, 1996) 54.

35 John S. Bowman, ed. Who was Who in the Civil War (New York, 1994), 21-22.

36 Gould (1996), 28-50, 46.

37 Eric Foner, Reconstruction: America’s Unfinished Revolution (New York, 1988), 47.

38 James G. Hollandsworth, The Louisiana Native Guards: The Black Military Experience During the Civil War (Baton Rouge, 1995), 1-20.

39 Schweninger (1996), 60.

40 Foner (1988), 64-65.

41 Ibid., 65, 101, 113.

42 Ibid., 306; John David Smith, Black Voices From Reconstruction (Gainesville, 1997), 93.

43 Dorothy Sterling, ed. The Trouble They Seen: The Story of Reconstruction in the Words of African Americans (New York, 1994), 239; Foner (1988), 285.

44 Nathaniel Prentiss Banks, “Report to the President,” Appletons Annual Cyclopaedia and Register of Important Events, 1864 1864, 480-1.

45 As quoted in Foner (1988), 215.

46 Ibid., 480. For a slightly garbled account of these events, see Lerone Bennett Jr., Forced Into Glory: Abraham Lincoln‘s White Dream (Chicago, 1999), 620.

47 Adam Fairclough, Race & Democracy: The Civil Rights Struggle in Louisiana, 1915-1972 (Athens, 1995), 5.

48 Judith Kelleher Schafer, Becoming Free, Remaining Free: Manumission and Enslavement in New Orleans, 1846-1862 (Baton Rouge, 2003), 165.

49 60 U.S. 393.

50 25 La. Ann. 188.

51 To put this point in context, Louisiana at the time was in the throes of what can only be called an intrastate civil war. Even as the Walsh v. Lallande decision was being announced, The First Battle of the Cabildo (5 March 1873) was being fought, when all-White state troops loyal to Democrat governor-elect John McEnery were defeated by integrated soldiers of the Metropolitan Police, loyal to Republican governor-elect William Pitt Kellogg. One year later, The White League triumphed and captured the state when their all-White forces used artillery to crush the integrated state militia under former Confederate General James Longstreet in the Battle of Liberty Place (14 September 1874). Apparently, the federal Constitution was not in the forefront of Louisianians’ minds at this time. For a summary of the military events of these years, see Kimberly S. Hanger, A Medley of Cultures: Louisiana History at the Cabildo (New Orleans, 1996a), Chapter 9.

52 51 La. Ann. 1562.

53 Although usually described as concubinage where White men took Colored mistresses, the custom of plaçage provided legally enforceable rights for the woman. It was unrelated to endogamous group membership per se, but is an aspect of the French upper class. As Susanne Heine puts it, “The latest public figure known to have pursued this way of living was the late Prime Minister, Mitterand, whose parallel family came to light only after his death.” See Interracial Voice, Politically Correct Revisionism: Or Why Mixed-Race Heroes Blacken Over Time, March/April [Electronic Magazine] (2002).

54 H. E. Sterkx, The Free Negro in Ante-Bellum Louisiana (Cranbury NJ, 1972), 285-315 passim.

55 Louisiana Code of 1808, page 24, Article 8.

56 Many witnesses phrased their testimony as if endogamous group membership were biologically determined, rather than socially assigned.

57 Some scholars suggest that a later case—State v. Treadaway, 1910 Louisiana, 126 La. 300—was more important in the rise of the one-drop rule. See, for example, Luther Wright, Jr., “Who’s Black, Who’s White, and Who Cares: Reconceptualizing the United States’s Definition of Race and Racial Classifications,” Vanderbilt Law Review, 48 (no. 2, 1995), 513-70, 528-29 and Virginia R. Dominguez, White by Definition: Social Classification in Creole Louisiana (New Brunswick NJ, 1986), 30-33. For an contemporary account of Louisiana’s switch from 1/4 to 1/8 blood fraction, see Succession of Gabisso, 1907 Louisiana, 119 La. 704.

58 Thomas Holt, Black Over White: Negro Political Leadership in South Carolina During Reconstruction (Urbana, 1977), 57; Dorothy Sterling, ed. The Trouble They Seen: The Story of Reconstruction in the Words of African Americans (New York, 1994), 123.

59 Eric Foner, Reconstruction: America’s Unfinished Revolution (New York, 1988), 101.

60 Ibid., 361.

61 Leon F. Litwack, Been in the Storm So Long: The Aftermath of Slavery (New York, 1979), 513-14.

62 Thomas Holt, Black Over White: Negro Political Leadership in South Carolina During Reconstruction (Urbana, 1977), 58; Joel Williamson, After Slavery: The Negro in South Carolina During Reconstruction, 1861-77 (Chapel Hill, 1965), 313; Foner (1988), 102, 318-19; John David Smith, Black Voices From Reconstruction (Gainesville, 1997) 94, 109.

63 George Brown Tindall, South Carolina Negroes, 1877-1900 (Columbia, 1952), 81-91; Holt (1977), 220. “Pitchfork” Ben Tillman is probably best remembered as the politician who, upon hearing that President Roosevelt had dined with Booker T. Washington at the White House in October 1901, said, “Now we will have to kill a thousand niggers to get them back in their place.”

64 Smalls was a famous Civil War hero, best-known for having captured a Confederate ship in 1862 and delivering it to the U.S. Navy. A year later, he was commissioned a ship’s captain in the U.S. Navy.

65 Tindall (1952), 81.

66 Ibid., 298.

67 News and Courier, “The Miscegenation Matter,” The News and Courier, Oct. 4 1895b, 1.

68 Theodore D. Jervey, The Slave Trade: Slavery and Color (Columbia, 1925), 196-200.

69 News and Courier, “The Miscegenation Matter,” The News and Courier, Oct. 4 1895b, 1.

70 See the topic “Virginia Rejects the One-Drop Rule” in the essay, The Antebellum South Rejects the One-Drop Rule.

71 The speech is quoted in Joel Williamson, New People: Miscegenation and Mulattoes in the United States (New York, 1980) 93; Lerone Bennett Jr., Before the Mayflower: A History of Black America, 6th rev. ed. (New York, 1993) 319; J.A. Rogers, Sex and Race, 3 vols. (St. Petersburg, Fla.: Helga M. Rogers, 1944) II:367-70; and Theodore D. Jervey, The Slave Trade: Slavery and Color (Columbia: The State Company, 1925) 199. See News and Courier, “All Niggers, More or Less!,” The News and Courier, Oct. 17 1895a, 5 for the full-length original.

72 See the topic “Virginia Rejects the One-Drop Rule” in the essay, The Antebellum South Rejects the One-Drop Rule.

Frank W. Sweet is the author of Legal History of the Color Line (ISBN 9780939479238), an analysis of the nearly 300 appealed cases that determined Americans’ “racial” identity over the centuries. It is the most thorough study of the legal history of this topic yet published. He was accepted to Ph.D. candidacy in history with a minor in molecular anthropology at the University of Florida in 2003 and has completed all but his dissertation defense. He earned an M.A. in History from American Military University in 2001. He is also the author of several state park historical booklets and published historical essays. He was a member of the editorial board of the magazine Interracial Voice, and is a regular lecturer and panelist at historical and genealogical conferences. To send email, click here.

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