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

Posted: 24 May 1998

See all articles by Ariela Julie Gross

Ariela Julie Gross

University of Southern California Law School

Date Written: May 1998


Judges in the nineteenth-century South repeatedly held that race was a matter of "fact," not "law," something best left to juries to decide, because juries represented the sense of the community. Race was something common-sensical something a Southerner just knew. Witnesses in the courtroom reinforced the notion of race as common sense by invoking an ineffable something that made someone white which any Southerner could discern and, likewise, the belief that a drop of African blood would make itself known, and a Southerner could sense it "as the alligator . . . knows three days in advance that a storm is brewing."

This paper examines the litigation of whiteness in nineteenth-century trial courts in a variety of disputes in which a person's racial status came into question, from slaves' suits for freedom to inheritance battles. It is based on my reading of most of the extant trial records of racial determination cases which were appealed to state high courts in the nineteenth century South, a database of sixty-eight cases. My research demonstrates that legal determinations of race could not simply reflect community consensus as comfortably as some judges hoped, because there was no consensus to reflect. These trials, despite the rhetoric of racial common-sense, tapped deep cultural anxiety about the unknowability of hidden essences. While nineteenth-century white Southerners believed in an inner racial essence, there was no agreement about how to discover it. By examining the kinds of evidence witnesses and litigants brought forth at trial, I hope to suggest that law, broadly defined, played an important role in constituting the cultural meaning of racial identities.

In this paper, I argue that law became part of the definition of race in two related ways. First, among the variety of kinds of evidence litigants might present at trial, law made the "performance" of whiteness especially important. Doing the things a white man or woman did became the law's working definition of what it meant to be white. This definition of race as performance operated in a law-like fashion, prescribing certain rules of behavior for people of different races. Furthermore, one of the most important ways in which men in particular could perform whiteness was, paradoxically, through the exercise of legal rights. Witnesses at trial frequently proved a person's whiteness by reporting on his performance of acts of citizenship; voting, mustering for the militia, sitting on a jury which made rightsholding part of the definition of whiteness. The trials thus reveal the implications of a racial ideology which decreed that "negro blood" made a person inferior in virtue, competency, and behavior and that "blood" made a person act in certain ways. The "laws" of race could be subverted by people who followed all the rules of whiteness but "hid" their intrinsic blackness. Law, which provided the forum for these challenges, made a discourse of race as performance especially salient.

Section II of this paper examines the various bases on which litigants, witnesses, jurors and judges relied to make their arguments and decisions about someone's racial status. This Section discusses the lack of consensus in the courtroom, and the tension between common-sense and different kinds of "expertise" as a basis for racial knowledge. It looks at the tremendous profusion and confusion of criteria for whiteness within any given moment or particular case, as well as the rise, over the course of the antebellum period, of two discourses of "race," one of science and another of performance.

Section III explores the performative, prescriptive aspect of race: the way in which people whose racial status was at issue had to perform white womanhood or manhood, both within the courtroom and without, and the way race depended on understandings of identity that were essentially social and legal in nature. Finally, Section IV concludes with a discussion of the contemporary uses of the history of the social and legal construction of race, across the political spectrum.

Suggested Citation

Gross, Ariela Julie, Litigating Whiteness: Trials of Racial Determination in the Nineteenth Century South (May 1998). Available at SSRN:

Ariela Julie Gross (Contact Author)

University of Southern California Law School ( email )

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Los Angeles, CA 90089
United States
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213-740-5502 (Fax)

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