BRIEF OF AMICI CURIAE Publications243_0 Part 2


Tell the Court I Love My Wife

Race, Marriage, and Law—An American History

Peter Wallenstein



“Indian Foremothers” by Peter “Wallenstein, from The Devil’s Lane: Sex and Race in the Early South, edited by Catherine Clinton and Michele Gillespie, (c) 1996 by Catherine Clinton and Michele Gillespie. Used by permission of Oxford University Press, Inc.



Copyright (c) Peter Wallenstein, 2002.


All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles or reviews.


First published in hardcover in 2002 by Palgrave Macmillan

First PALGRAVE MACMILLAN(un) paperback edition: January 2004

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ISBN 1-4039-6408-4

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Wallenstein, Peter.

Tell the court I love my wife: race, marriage, and law: an American history / by Peter Wallenstein,

p. cm.

Includes index.

ISBN 1-4039-6408-4

1. Interracial marriage—Law and legislation—United States—History. I. Title.

KF511.W35 2002



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Chapter i

Sex, Marriage, Race, and Freedom in the Early Chesapeake

“For prevention of that abominable mixture and spurious issue which hereafter may encrease in this dominion, as well by negroes, mulattoes, and Indians intermarrying with English, or other white woman, as by their unlawfull accompanying with one another”


—Law of Virginia (1691)

No wedding photos, no baby pictures, commemorate the events. John Rolfe and Pocahontas married in 1614, and their son Thomas was born in 1615, when the English colony that was planted in 1607 at Jamestown, Virginia, was still very new. Multiracial Virginians originated as early as that time, and many people—sojourners and residents, English and Native Americans alike—welcomed the interracial marriage that enhanced the likelihood of peace in the Chesapeake region of North America.1

No law at that time specifically governed interracial sex, interracial marriage, or multiracial children. Law or no law, few whites married Native Americans in colonial Virginia, so the union of John Rolfe and Pocahontas proved a notable exception. Restrictive laws, when they emerged, reflected lawmakers’ overriding concerns regarding Virginians of African ancestry, but they affected people in all other groups, too. At about the same time that Virginia began to legislate on the identity and status of mixed-race people, Maryland did as well.

When slavery supplanted servitude in supplying a labor force for the Chesapeake colonies, more African Americans lived in Virginia and Maryland combined than in all the other British North American colonies put together. For some years after the American Revolution, the two states on the Chesapeake Bay continued to contain a majority of all people with African ancestry living in the new nation. Thus the Chesapeake region generated the dominant experience of black and multiracial people in the settler societies of British North America and the early American republic.

Race, sex, slavery, and freedom commingled with society, economics, politics, and law in Virginia and Maryland in various and changing ways. In 1607—just before men on three ships from England made their way up what they named the James River, arrived at a place they called Jamestown, and established a colony there—the many residents of the Chesapeake region were all Native Americans. Over the next two centuries, newcomers and their progeny from both Europe and Africa soared in numbers while Indians seemed to vanish.

If the patterns had been more simple than they were, it might be possible to speak as though everyone was either white or black, and as though all blacks were slaves, whether in 1750 or 1850. But such was not the case, and boundaries were not so clear. Some black residents were free; Indians refused to vanish; and many people in Maryland and Virginia were multiracial. Some mixed-race people, though born unfree, were designated to remain so only for specific (though lengthy) periods—18, 21, 30, or 31 years. Some people, moreover, though born into lifelong slavery, gained their freedom.

Within marriage or outside it, people of European origin had children with Native Americans or people of African ancestry. This chapter and the next explore each of those complicating features of the social landscape, emphasizing two groups, those descended from white mothers and black (or mixed-race) fathers and those claiming Indian foremothers. Both chapters focus on a region— where most Virginians lived, east of the Blue Ridge mountains—whose population, in the years between 1760 and 1860, was roughly half white and half nonwhite, half free and half slave. In many times and places, only a minority was white, yet only a minority was slave. Tilting the balance was a middle group of people who were considered free but not white. This chapter takes a fresh look at their origins. In particular, it offers a history of the beginnings of legal restrictions on marriage between colonists who were defined as white and people who were defined as nonwhite.


Like Mother, Like Child

Before a law of race could fully develop, definitions of racial categories had to be put in place. In seventeenth-century Virginia and Maryland, these took a while to develop, although some kind of line separating white from nonwhite was ever-present. When, for example, the Virginia House of Burgesses wanted to refer to people of various groups, Europeans might variously be termed “Christians,” “English,” and “English or other white” persons. Race or color, religion, language or nation of origin—any category might do. Other people tended to get lumped under such categories as “negroes, mulattoes, and other slaves”; “negroe slaves”; “Indians or negroes manumitted, or otherwise free”; and any “negroe, mulatto, or Indian man or woman bond or free.”2

In 1662, Virginias colonial assembly first addressed the question of the status of the children of interracial couples. The question before the legislators was whether “children got by any Englishman upon a negro woman should be slave or ffree.” The new law supplied a formula: “all children borne in this country [shall be] held bond or free only according to the condition of the mother.”3

According to the 1662 law, children would follow the status of their mothers. Slave women would have slave children, regardless of who the father was; if she were a slave, then any child she had, even with a white father, would be a slave. Free women, whether white or not, would have free children, again no matter who the father was; if the woman was free, her child—black, white, or mixed-race—would be free too. All depended on whether the woman—whatever her racial identity—was slave or free. The fathers identity did not matter, so neither could his race or his status. Moreover, the 1662 law assumed that the mixed-race child was born to a couple who were not married to each other—in many cases, a slave woman and the white man who owned her. It did not address the question of interracial marriage itself.


Marriage, Children, and the Racial Identity of the Father

A successor act in 1691 took on the matter of marriage. That year, the Virginia assembly took action against sexual relations between free whites and nonwhites, at least in certain circumstances, regardless of whether the couple were single or had married. As a rule, colonial governments and churches fostered marriages between adults, but—reflecting a widespread pattern in colonial America—the Virginia assembly was not necessarily going to do any such thing regarding interracial unions. Slaves could contract no marriages that the law recognized. Free people could, but, after 1691, white people were not free to marry across racial lines. Prior to this time, some white women had married nonwhite men; the assembly tried to curtail the practice, punish infractions, and contain the consequences.4

The 1691 act, couched in the language of hysteria rather than legalese, was designed “for prevention of that abominable mixture and spurious issue which hereafter may encrease in this dominion, as well by negroes, mulattoes, and Indians intermarrying with English, or other white woman, as by their un-lawfull accompanying with one another.” In the cultural world that these legislators inhabited, it was anathema for white women to have sexual relations with nonwhite men. For the relationship to be sanctified in marriage was no better—if anything, it was worse—than if the couple remained unwed.5

The 1691 statute targeted sexual relations between white women and black men (the “abominable mixture”) and the children of such relationships (the “spurious issue”). The first thing the new law did was to outlaw interracial marriage for white men and white women alike. Actually, it did not ban the marriage but, rather, mandated the banishment of the white party to any interracial marriage that occurred, if that person was free and thus owed labor to no planter: “Whatsoever English or other white man or women being free shall intermarry with a negroe, mulatto, or Indian man or woman bond or free, shall within three months after such marriage be banished and removed from this dominion forever.”6 If the bride in the interracial couple was white, then she would vanish from Virginia, and her mixed-race child would be born and raised outside Virginia.

The law began by condemning all marriages between whites and nonwhites, but its main intent was to target white women who strayed across racial lines, whether they actually married nonwhite men or not. An occasional white woman, even though unmarried, would have a child whose father was “negro or mulatto” (here lawmakers did not include Indians). Concerned about that contingency, legislators targeted the white mothers of interracial children—“if any English woman being free shall have a bastard child by any negro or mulatto,” she must, within a month of the birth, pay a fine of 15 pounds sterling to the church wardens in her parish. Her crime, such as it was, entailed a sexual relationship with a nonwhite man—in particular, a relationship that resulted in a mixed-race child.7

If the white mother of a multiracial child was free but could not pay the fine, the church wardens were to auction off her services for five years. The penalty called for her to pay in either money or time, property or liberty. But if she was an indentured servant, the law did not mean to punish her owner by denying him her labor (and thus his property). If she was a servant and thus not the owner of her own labor at the time of the offense, her sale for five years would take place after she had completed her current indenture.

 In view of the provision for banishment, few white Virginians involved in interracial marriages would still be in the colony when their children came along. But this addressed only the question of the children—the “spurious issue”—of white women who actually went through a wedding ceremony, whose relationship would have been, before 1691, lawful. What about children whose parents’ “accompanying with one another” was “unlawful”—that is, the couple was unmarried? Any “such bastard child,” mixed-race and born in Virginia, was to be taken by the wardens of the church in the parish where the child was born and “bound out as a servant. . . untill he or she shall attaine the age of thirty yeares.”8

If the mother stayed in Virginia and retained her freedom, therefore, she lost her child, who would be bound out as a servant until the age of 30. As is evident from this act, mixed-race children troubled the Virginia assembly if their mothers were white, not if they were black. The old rule continued to operate for the mixed-race children of white fathers, but a new rule targeted the problem of mixed-race children of white mothers. The law said nothing, however, about the nonwhite father of a white womans child. It imposed no penalty of loss of labor or liberty, though it surely broke up any family there might have been. The father was important to the law because, regardless of whether he was free or slave, he was nonwhite and had fathered a child by a white woman. But the penalties were imposed on the woman and the child.

The status, slave or free, of the child of a white man and a black woman continued, under the 1662 law, to depend on the status of the mother. The 1691 legislature worried about other questions, and it devised a new rule to address them. The new rule meant that the fathers identity could be as important as the mother’s. By 1691, the central question regarding the status of a child in Virginia had to do with whether the mother was white or black as much as whether she was free or slave. Most black women were slaves, so most children of black women would be slaves, although nonslave, nonwhite mothers would still bear nonslave children. If the mother was white, the answer depended on the racial identity of the father.

The legislature had, as its primary object, seeing that white men retained exclusive sexual access to scarce white women. It also had, as a significant secondary object, propelling the mixed-race children of a white mother out of the privileged white category and into a racial category that carried fewer rights, and out of the group born free and into long-term servitude to a white person.9


Eighteenth-Century Amendments

Legislation in 1705 modified the 1691 statute in several significant ways. In framing an act “declaring who shall not bear office in this country” that excluded “any negro, mulatto, or Indian,” the Virginia legislature defined “mulatto”—for the purpose of “clearing up all manner of doubts” that might develop regarding “the construction of this act, or any other act”—as “the child, grand child, or great grand child, of a negro.”10 It thereby defined as “mulatto” any mixed-race Virginian with at least one-eighth African ancestry. The statute probably sufficed at the time to exclude virtually all Virginians with any traceable African ancestry. In 1705, only some 86 years after the arrival in 1619 of



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Figure 4. What Miscegenation Is! (1865). The word was widely adopted soon after its introduction in the 1864 presidential election year, and this pamphlet—its caricature of an African American man with a Caucasian woman reflecting, and designed to foster, fears of black men mixing with white women—came out soon after Abraham Lincoln was reelected. Courtesy of the Library of Congress.


(left) Figure 5 Justice John Marshall Harlan was the U.S. Supreme Courts sole dissenter in The Civil Rights Cases (1883) and again in Plessy v. Ferguson (1896), but in Pace v. Alabama (1883), also about the Fourteenth Amendment and “equal protection of the laws, ” he failed to dissent, so the Court unanimously upheld a miscegenation statute. Courtesy of the Library of Congress.


(below) Figure 6. The South was solid in its allegiance to the antimiscegenation regime in 1866—one year after the Confederacy’s defeat in 1865 and one year before Congress passed the Reconstruction acts of 1867. But many states outside the South also had such laws at that time. Some of the former Confederate states had just inaugurated such laws during the previous year; and seven—whether by legislative or judicial actionsoon dropped their miscegenation laws for at least a few years. Produced by John Boyer, geography department, Virginia Tech.



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Figure 7. Of the 37 states in 1874, at least 9 (of 21) in the North and another 9 (of 16) in the South had miscegenation laws. Many western territories (hot shown here) also had such laws, but most states of the Lower South had lifted them. Produced by John Boyer, geography department, Virginia Tech.

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Figure 8. Between 1913 (when the last state enacted such a Law) and 1948 (when the California Supreme Court overturned that state’s law), the antimiscegenation regimes power was at its peak, and its territory held at 30 of the 48 states. Produced by John Boyer, geography department, Virginia Tech.

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Figure 9. When the Lovings were arrested in 1958 in Virginia for their interracial marriage, 24 of the 48 states still had miscegenation laws on the book. Virginias law dated all the way back to 1691, Wyoming’s only to 1913. Produced by John Boyer, geography department, Virginia Tech.

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Figure 10. By 1966, the territory controlled by the antimiscegenation regime had shrunk to one-third of the nation17 of the 50 states, clustered in the South. Into the 1960s, laws that banned interracial marriage continued to be enforced in those states. Produced by John Boyer, geography department, Virginia Tech.


Appendix i

Permanent Repeal of State Miscegenation Laws, 1780–1967

The territory governed by the antimiscegenation regime kept changing. After beginning in the seventeenth century in the Chesapeake colonies, it spread north as well as south and then, in the nineteenth century, west to the Pacific. Over the years, some states peeled away from the regime, either temporarily or permanently. Suspensions of miscegenation laws took place in most of the Deep South during Reconstruction but proved temporary. With restoration there, and repeal in some northern states, the territory took on its twentieth-century contours, and was eventually—very briefly—restricted to the South.

As many as 12 states (or as few as 8) never had laws restricting interracial sex or marriage. Four of these were among the original 13 states: New Hampshire, Connecticut, New Jersey, and New York (although New York, when it was New Amsterdam, a Dutch colony, had a law against interracial sex). Five other states never had such laws: Vermont, Minnesota, and Wisconsin, together with Hawaii and Alaska, both admitted in 1959. Three territories had such laws for a time but repealed them before statehood: Kansas (1859), New Mexico (1866), and Washington (1868); Wyoming did so, too (1882), but then it passed a new miscegenation law in 1913.

Between 1780 and 1887, 8 states (in addition to those 3 territories) permanently repealed their miscegenation laws (and 7 southern states abandoned the antimiscegenation regime for some years after 1867). Then, for many years, no states repealed such measures, while additional states inaugurated miscegenation laws as late as 1913, and 30 states (out of 48) retained those laws at the end of World War II. Repeal by 13 of the 30 by 1965 left 17 holdout states—Maryland (which repealed its law shortly before the Supreme Court handed down the decision in Loving v. Virginia, in June 1967) and 16 other states, from Delaware, Florida, Georgia, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, and West Virginia.

A list of states with miscegenation laws follows, together with the years in which—through state action, between 1780 and the eve of the Loving decision in 1967—they permanently ended their participation in the antimiscegenation regime:1









Rhode Island


Maine and Michigan




California (court decision)






North Dakota


South Dakota and Colorado


Idaho and Nevada




Utah and Nebraska


Wyoming and Indiana




Appendix 2

Intermarriage in Nazi Germany and Apartheid South Africa

The antimiscegenation regime in America endured from a Maryland law in 1664 to the Supreme Court decision in Loving v. Virginia in 1967; corresponding systems developed in the twentieth century on other continents. In Europe, Germany’s was born in 1935, and it died with Allied victory in World War II in 1945. A South African version, in place by 1949, was repealed in 1985; and Protas Madlala and American-born Suzanne Leclerc married that summer.1

For ten years, the color line in the law of marriage and the family in the United States had its counterparts in Hider’s Germany. Who had what racial identity? What pool of prospective marriage partners did that identity allow? What was the status, and the identity, of the children of a mixed marriage? What penalties might await violations of the law of race and marriage? A number of the major themes of America’s antimiscegenation regime recurred in Hider’s Germany under the Nuremburg Laws of 1935. Though American culture tends to view the term “Jewish” as connoting “religion” rather than “race,” race was the more relevant category in Hider’s Germany. There the preferred equivalent for the term “miscegenation” was “Rassenschande,” or “race defilement.”

Under the Nazi regime, people were classified in terms of their ancestry going back two generations, and that classification could change if a grandparent remarried and this time the spouse was Jewish rather than Aryan. Germans were divided into several categories, chiefly “Jews” (people with either three or four Jewish grandparents) and “Aryans” (who had none), although “mixed blood” people, “Mischlinge,” fell in between. The rules governed which group could marry within which other groups. Mixed marriages were viewed as better if the man was “Aryan” than if he was the “Jewish” partner.

Mixed marriages already entered into could cause enough of a problem, but entering new ones could be out of the question. Authorities and informal influences alike pressured people in mixed marriages to separate and divorce. Partners