LITIGATING WHITENESS - TRIALS OF RACIAL DETERMINATION IN THE 19TH-CENTURY SOUTH

Judges in the nineteenth-centnry South repeatedly held that race was a matter of ''fact,'' not ''law,'' something best left to juries, who r epresented community consensus. Yet in a variety of disputes in ninete enth-century courts in which a person's racial status was on trial, fr om slaves' suits for freedom to inheritance battles, judges discovered that legal determinations of race could nor reflect community consens us because there was no consensus to reflect. This Article examines th e kinds of evidence witnesses and litigants brought forth at trial and argues that law broadly defined played an important role in constitut ing the cultural meaning of racial identities. Using a variety of loca l manuscript sources, the Article demonstrates that law became parr of the definition of race in two related ways. First, law made the ''per formance'' of whiteness especially important among the variety of type s of evidence litigants presented at trial. Doing the things a white m an or woman did became the law's working definition of whiteness. Seco nd one of the most important wars in which men in particular could per form whiteness was, paradoxically through the exercise of legal rights . Witnesses at trial frequently proved a person's whiteness by reporti ng on his performance of acts of citizenship-voting, mustering for the militia, sitting on a jury-that made rightsholding part of the defini tion of whiteness. The trials reveal the implications of a racial ideo logy that decreed that ''negro blood'' made a person inferior in virtu e, competency and behavior-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 ra ce as performance especially salient.