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The Color Line Became Legally Important Around 1800
The first appealed court case on record where a person’s endogamous group membership was an issue was decided in 1802. This seems strange. The endogamous color line had been in force since 1691, and penalties for intermarriage became increasingly severe in the decades immediately thereafter. Nevertheless, for over a century no appealed case was recorded where a court had to decide on which side of the color line someone belonged. Some have suggested that this is because virtually all Americans in this period were visibly of either northern European or African descent; that few ambiguous-looking people of dual heritage had yet emerged. But this explanation seems unlikely. As explained elsewhere, it takes only three generations of intermarriage—under 75 years—to produce European-looking adults with as much as 25 percent African admixture.24 A more likely explanation is that endogamous group membership per se (as opposed to slavery) had few legal ramifications under British colonial law. Laws restricting the rights of free Black citizens (other than laws forbidding their marrying Whites) seem to be a post-Revolutionary invention. Whatever the reason for the hiatus, the first court case where endogamous group membership was an issue was also the first case that overturned the burden-of-proof precedent.
The change in burden of proof for slavery arose in 1802 North Carolina. A twelve-year-old girl surnamed Gobu claimed to have found an abandoned eight-day-old male infant lying in a barn. The baby had straight hair and an “olive color” (yellowish) skin tone. The girl took the baby home and raised him as her slave. Upon reaching maturity, the young man sued for his freedom. He argued, in Gobu v. Gobu, 1802 North Carolina, that Ms. Gobu lacked evidence proving his legal slave status.25 Her lawyer argued that, because it was clear that the plaintiff was not of pure European ancestry, the burden of proof should rest upon him, not upon his alleged owner. The judge agreed with this altered burden of proof.
I acquiesce in the rule laid down by the defendant’s counsel, with respect to the presumption of every black person being a slave. It is so, because the negroes originally brought to this country were slaves, and their descendants must continue slaves until manumitted by proper authority. If therefore a person of that description claims his freedom, he must establish his right to it by such evidence as will destroy the force of the presumption arising from his color.26
The judge thus overturned six centuries of Spanish law and established two new precedents that reverberated in U.S. courts from then on. First, he ruled that the burden of proof was not always upon the alleged slaveowner. Second, he ruled that the burden of proof depended on the alleged slave’s endogamous group membership (“the presumption of every black person being a slave”). Thenceforth, a Black person would be presumed a slave unless proven otherwise. A White person would be presumed free.
Interestingly, the Gobu v. Gobu judge then went on to free the young man, denying that the new burden of proof standard applied to him, thereby establishing a third precedent: a person of dual heritage did not necessarily fall on the Black side of the color line:
I am not aware that the doctrine of presuming against liberty has been urged in relation to persons of mixed blood, or to those of any color between the two extremes of black and white; and I do not think it reasonable that such a doctrine should receive the least countenance. Such persons may have descended from… a white parent in the maternal line or from mulatto parents originally free, in all which cases the offspring, following the condition of the mother, is entitled to freedom. Considering how many probabilities there are in favor of the liberty of these persons, they ought not to be deprived of it upon mere presumption, more especially as the right to hold them in slavery, if it exists, is in most instances, capable of being satisfactorily proved.27
And so, the Gobu v. Gobu ruling thus established that a person of mixed ancestry was not necessarily a member of the Black endogamous group for the purpose of determining onus probandi in a slavery case
Four years then passed before the issue arose again. The court in the second case confirmed the Gobu v. Gobu ruling and accepted case law was changed once and for all. That case was Hudgins v. Wrights, 1806 Virginia.28 Hanna Hudgins and her daughter sued for their freedom. They won in the lower court, on the ground that the alleged owner had not made a case. The lower court explicitly followed the old Spanish law of 1265, ruling that:
freedom is the birthright of every human being, which sentiment is strongly inculcated by the first article of our “political catechism,” the bill of rights… [and] that whenever one person claims to hold another in slavery, the onus probandi lies on the claimant.29
The five appeals judges in Hudgins v. Wrights unanimously voided the principle upon which this decision was based. They held, following Gobu v. Gobu, that the burden of proof did not always lie on the alleged slave owner:
Where white persons, or native American Indians, or their descendants in the maternal line, are claimed as slaves, the onus probandi lies on the claimant; but it is otherwise with respect to native Africans and their descendants, who have been and are now held as slaves.30
Also, as in Gobu v. Gobu, the appeals court freed the plaintiffs because, “the youngest of the appellees was perfectly white, and that there were gradual shades of difference in colour between the grand-mother, mother, and grand-daughter, (all of whom were before the court).” Three of the judges wrote a separate opinion stressing even more firmly that the burden of proof depended on an alleged slave’s endogamous group membership.31
Hudgins v. Wrights decisively confirmed the case law that slavery’s burden of proof depended on the color line. This principle was then followed regularly in U.S. courts thereafter. Subsequent courts, even outside Virginia, cited Hudgins v. Wrights as precedent.32 Hook v. Nanny Pagee and her Children, 1811 Virginia, ruled that a single mother and her children were presumed free because “clear and distinct perception” revealed them to be White.33 In Edwards v. M’Connel, 1813 Tennessee, a “deep yellow” family was ruled to be Black (hence, presumed slaves) despite being from Guadalupe.34 In Welborn v. Little, 1818 South Carolina, an indigent young apprentice was freed from an attempt to enslave him by the presumption of his freedom, based on his being a member of the White endogamous group by virtue of his appearance.35
Endogamous group membership soon became important in courts well beyond just those cases held to resolve slave status. Many states forbade Black witnesses from testifying in trials involving White litigants. Between 1794 and 1811, five cases hinged on whether a witness would thus be allowed to testify.36 And, of course, people continued to intermarry despite the law. One case in this period resolved on which side of the color line someone belonged in order to decide the validity of a marriage.37 Before long, dozens of laws were passed and precedents established that hinged upon upon whether you were Black or White. Which side of the color line you were on affected more than just your slave status, testimony, and marriage. It also determined: what school you could attend, whether you could inherit, whether you could vote, the taxes you paid, public transportation carrier liability for your escape, whether a racial epithet was slanderous, how you would be sentenced as a criminal, whether you could carry a gun, and dozens of other aspects of daily life.38
A century before Jefferson wrote his explanation, Governor Gooch had realized that preserving an endogamous color line, based on the notion that colonists of African descent were slaves and those of European descent were free, would depend upon preventing the birth of hybrids. He probably did not foresee just how hopeless this goal would turn out to be. As explained elsewhere, the steady rate of Black-to-White genetic leakage across the color line had produced, by the turn of the nineteenth century, many thousands of Americans who were of mixed Afro-European ancestry. Also, as explained elsewhere, less than a dozen superficial genes determine the physical features that Americas see as “racially” significant, and the non-European versions of those few genes are often replaced by the genetic recombination (meiosis) that takes place with each generation, thus erasing “racialized” features in mixed descendants. Finally, as explained elsewhere, Americans of about 15 percent African admixture or less are usually accepted as members of the White endogamous group. And those of roughly 35 percent African admixture or more are usually relegated to the Black side of the U.S. color line.39 This means that, while some Americans of mixed ancestry looked European and some looked African, many others looked ambiguously Mediterranean. How could law courts be expected to resolve to which side of the color line such people belonged?
The first appealed court case on record where a person’s endogamous group membership was an issue was decided in 1802. This seems strange. The endogamous color line had been in force since 1691, and penalties for intermarriage became increasingly severe in the decades immediately thereafter. Nevertheless, for over a century no appealed case was recorded where a court had to decide on which side of the color line someone belonged. Some have suggested that this is because virtually all Americans in this period were visibly of either northern European or African descent; that few ambiguous-looking people of dual heritage had yet emerged. But this explanation seems unlikely. As explained elsewhere, it takes only three generations of intermarriage—under 75 years—to produce European-looking adults with as much as 25 percent African admixture.24 A more likely explanation is that endogamous group membership per se (as opposed to slavery) had few legal ramifications under British colonial law. Laws restricting the rights of free Black citizens (other than laws forbidding their marrying Whites) seem to be a post-Revolutionary invention. Whatever the reason for the hiatus, the first court case where endogamous group membership was an issue was also the first case that overturned the burden-of-proof precedent.
The change in burden of proof for slavery arose in 1802 North Carolina. A twelve-year-old girl surnamed Gobu claimed to have found an abandoned eight-day-old male infant lying in a barn. The baby had straight hair and an “olive color” (yellowish) skin tone. The girl took the baby home and raised him as her slave. Upon reaching maturity, the young man sued for his freedom. He argued, in Gobu v. Gobu, 1802 North Carolina, that Ms. Gobu lacked evidence proving his legal slave status.25 Her lawyer argued that, because it was clear that the plaintiff was not of pure European ancestry, the burden of proof should rest upon him, not upon his alleged owner. The judge agreed with this altered burden of proof.
I acquiesce in the rule laid down by the defendant’s counsel, with respect to the presumption of every black person being a slave. It is so, because the negroes originally brought to this country were slaves, and their descendants must continue slaves until manumitted by proper authority. If therefore a person of that description claims his freedom, he must establish his right to it by such evidence as will destroy the force of the presumption arising from his color.26
The judge thus overturned six centuries of Spanish law and established two new precedents that reverberated in U.S. courts from then on. First, he ruled that the burden of proof was not always upon the alleged slaveowner. Second, he ruled that the burden of proof depended on the alleged slave’s endogamous group membership (“the presumption of every black person being a slave”). Thenceforth, a Black person would be presumed a slave unless proven otherwise. A White person would be presumed free.
Interestingly, the Gobu v. Gobu judge then went on to free the young man, denying that the new burden of proof standard applied to him, thereby establishing a third precedent: a person of dual heritage did not necessarily fall on the Black side of the color line:
I am not aware that the doctrine of presuming against liberty has been urged in relation to persons of mixed blood, or to those of any color between the two extremes of black and white; and I do not think it reasonable that such a doctrine should receive the least countenance. Such persons may have descended from… a white parent in the maternal line or from mulatto parents originally free, in all which cases the offspring, following the condition of the mother, is entitled to freedom. Considering how many probabilities there are in favor of the liberty of these persons, they ought not to be deprived of it upon mere presumption, more especially as the right to hold them in slavery, if it exists, is in most instances, capable of being satisfactorily proved.27
And so, the Gobu v. Gobu ruling thus established that a person of mixed ancestry was not necessarily a member of the Black endogamous group for the purpose of determining onus probandi in a slavery case
Four years then passed before the issue arose again. The court in the second case confirmed the Gobu v. Gobu ruling and accepted case law was changed once and for all. That case was Hudgins v. Wrights, 1806 Virginia.28 Hanna Hudgins and her daughter sued for their freedom. They won in the lower court, on the ground that the alleged owner had not made a case. The lower court explicitly followed the old Spanish law of 1265, ruling that:
freedom is the birthright of every human being, which sentiment is strongly inculcated by the first article of our “political catechism,” the bill of rights… [and] that whenever one person claims to hold another in slavery, the onus probandi lies on the claimant.29
The five appeals judges in Hudgins v. Wrights unanimously voided the principle upon which this decision was based. They held, following Gobu v. Gobu, that the burden of proof did not always lie on the alleged slave owner:
Where white persons, or native American Indians, or their descendants in the maternal line, are claimed as slaves, the onus probandi lies on the claimant; but it is otherwise with respect to native Africans and their descendants, who have been and are now held as slaves.30
Also, as in Gobu v. Gobu, the appeals court freed the plaintiffs because, “the youngest of the appellees was perfectly white, and that there were gradual shades of difference in colour between the grand-mother, mother, and grand-daughter, (all of whom were before the court).” Three of the judges wrote a separate opinion stressing even more firmly that the burden of proof depended on an alleged slave’s endogamous group membership.31
Hudgins v. Wrights decisively confirmed the case law that slavery’s burden of proof depended on the color line. This principle was then followed regularly in U.S. courts thereafter. Subsequent courts, even outside Virginia, cited Hudgins v. Wrights as precedent.32 Hook v. Nanny Pagee and her Children, 1811 Virginia, ruled that a single mother and her children were presumed free because “clear and distinct perception” revealed them to be White.33 In Edwards v. M’Connel, 1813 Tennessee, a “deep yellow” family was ruled to be Black (hence, presumed slaves) despite being from Guadalupe.34 In Welborn v. Little, 1818 South Carolina, an indigent young apprentice was freed from an attempt to enslave him by the presumption of his freedom, based on his being a member of the White endogamous group by virtue of his appearance.35
Endogamous group membership soon became important in courts well beyond just those cases held to resolve slave status. Many states forbade Black witnesses from testifying in trials involving White litigants. Between 1794 and 1811, five cases hinged on whether a witness would thus be allowed to testify.36 And, of course, people continued to intermarry despite the law. One case in this period resolved on which side of the color line someone belonged in order to decide the validity of a marriage.37 Before long, dozens of laws were passed and precedents established that hinged upon upon whether you were Black or White. Which side of the color line you were on affected more than just your slave status, testimony, and marriage. It also determined: what school you could attend, whether you could inherit, whether you could vote, the taxes you paid, public transportation carrier liability for your escape, whether a racial epithet was slanderous, how you would be sentenced as a criminal, whether you could carry a gun, and dozens of other aspects of daily life.38
A century before Jefferson wrote his explanation, Governor Gooch had realized that preserving an endogamous color line, based on the notion that colonists of African descent were slaves and those of European descent were free, would depend upon preventing the birth of hybrids. He probably did not foresee just how hopeless this goal would turn out to be. As explained elsewhere, the steady rate of Black-to-White genetic leakage across the color line had produced, by the turn of the nineteenth century, many thousands of Americans who were of mixed Afro-European ancestry. Also, as explained elsewhere, less than a dozen superficial genes determine the physical features that Americas see as “racially” significant, and the non-European versions of those few genes are often replaced by the genetic recombination (meiosis) that takes place with each generation, thus erasing “racialized” features in mixed descendants. Finally, as explained elsewhere, Americans of about 15 percent African admixture or less are usually accepted as members of the White endogamous group. And those of roughly 35 percent African admixture or more are usually relegated to the Black side of the U.S. color line.39 This means that, while some Americans of mixed ancestry looked European and some looked African, many others looked ambiguously Mediterranean. How could law courts be expected to resolve to which side of the color line such people belonged?
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