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“The law recognizes racial instinct”: Tucker v. Blease and the Black–White Paradigm in the Jim Crow South

Published online by Cambridge University Press:  09 May 2011

Extract

On January 24, 1913, the trustees of the Dalcho School, a segregated, all-white public school in Dillon County, South Carolina, summarily dismissed Dudley, Eugene, and Herbert Kirby, ages ten, twelve, and fourteen, respectively. According to testimony offered in a subsequent hearing, the boys had “always properly behaved,” were “good pupils,” and “never …exercise[d] any bad influence in school.” Moreover, the boys’ overwhelmingly white ancestry, in the words of the South Carolina Supreme Court, technically “entitled [them] to be classified as white,” according to state law. Nevertheless, because local whites believed that the Kirbys were “not of pure Caucasian blood,” and that therefore their removal was in the segregated school's best interest, the court, in Tucker v. Blease (1914), upheld their expulsion.

Type
Forum: Racial Determination and the Law in Comparative Perspective
Copyright
Copyright © the American Society for Legal History, Inc. 2011

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References

1. The phrase “always properly behaved” comes from the testimony of J.F. Williams. Tucker v. Blease, 81 S.E. 668 at 669 (South Carolina, 1914). The phrase “good pupils” comes from the testimony of Will Baxley. Ibid., 670. The phrase “never exercised any bad influence in school” comes from the testimony of L.E. Dew. Ibid., 670.

2. Tucker v. Blease, 81 S.E. 668 at 675 (1914).

3. Ibid.

Ibid

4. Ibid., 673.

Ibid

5. See McGovney, Dudley O., “Naturalization of the Mixed-Blood: A Dictum,” California Law Review 2 (1934): 377–91CrossRefGoogle Scholar; Ransmeier, Joseph S., “The Fourteenth Amendment and the ‘Separate but Equal’ Doctrine,” Michigan Law Review, 50 (1951): 203–60CrossRefGoogle Scholar; Sharfstein, Daniel J., “Crossing the Color Line: Racial Migration and the One–Drop Rule, 1600-1860,” Minnesota Law Review, 91 (2007): 592656Google Scholar; Paredes, J. Anthony, ed., Indians of the Southeastern United States in the Late Twentieth Century (Tuscaloosa: University of Alabama Press, 1992), 82Google Scholar; Sweet, Frank W., Legal History of the Color Line (Palm Coast: Backintyme, 2005), 403–4Google Scholar. These sources’ interpretations are discussed in greater detail below.

6. Seigel, Macol, “Beyond Compare: Comparative Method after the Transnational Turn,” Radical History Review 91 (2005): 73Google Scholar.

7. See, most famously, Tanenbaum, Frank, Slave and Citizen: The New Negro in the Americas (New York: Alfred A. Knopf, 1947)Google Scholar. Regarding DuBois's use of the Brazilian contrast to critique United States race relations, see Seigel, “Beyond Compare” (2005): 71–72. Portuguese scholar Gilberto Freyre's The Masters and the Slaves, published in Portuguese in 1933 and in English in 1946, influenced many U.S. scholars. Freyre, Gilberto, Casa-grande & senzala; formação da familia brasileira sob o regimen de economia patriarchal (Rio de Janeiro: Schmidt, 1936)Google Scholar; and The Masters and the Slaves: A Study in the Development of Brazilian Civilization (New York: Knopf, 1946)Google Scholar. Regarding Freyre and his influence, see Skidmore, Thomas E., “Racial Mixture and Affirmative Action: The Cases of Brazil and the United States,” American Historical Review 108 (2003): 1393CrossRefGoogle Scholar.

8. Frazier, E. Franklin, “Brazil Has No Race Problem,” Common Sense (November 11, 1942): 363–65Google Scholar.

9. Quoted in Eder, Donald Gray, “Time under the Southern Cross: The Tannenbaum Thesis Reappraised,” Agricultural History 50 (1976): 600–14Google Scholar.

10. Elkins, Stanley M., Slavery: A Problem in American Institutional and Intellectual Life (Chicago: University of Chicago Press, 1959), 63Google Scholar.

11. Ibid., 79.

Ibid

12. Hoetink, H[arry], The Two Variants in Caribbean Race Relations (London: Oxford University Press, 1967), 4647Google Scholar.

13. Micol Seigel, “Beyond Compare,” 76.

14. “Dr. Frank Tannenbaum, 76, Dies,” New York Times (June 2, 1969): 45.

15. See Jacobson, Matthew Frye, Roots Too: White Ethnic Revival in Post-Civil Rights America (Cambridge: Harvard University Press, 2006CrossRefGoogle Scholar); Hollinger, David A., “Amalgamation and Hypodescent: The Question of Ethnoracial Mixture in the History of the United States,” American Historical Review 108 (2003): 1381CrossRefGoogle Scholar; and Novak, Michael, The Rise of the Unmeltable Ethnics (New York: The Macmillan Company, 1971)Google Scholar.

16. See, for example, Feagin, Joe R., “White Supremacy and Mexican Americans: Rethinking the ‘Black-White Paradigm,” Rutgers Law Review 54 (2002): 959–87Google Scholar; Gee, Harvey, “Race, Rights, and the Asian American Experience: A Review Essay,” Georgetown Immigration Law Journal 13 (1999): 635–51Google Scholar; Espiritu, Yen Le, “Colonial Oppression, Labour Importation, and Group Formation: Filipinos in the United States,” Ethnic and Racial Studies 19 (1996): 2948CrossRefGoogle Scholar; Webb, Clive, “The Lynching of Sicilian Immigrants in the American South, 1886–1910,” American Nineteenth Century History 3 (2002): 4576CrossRefGoogle Scholar; Carrigan, William D. and Webb, Clive, “The Lynching of Persons of Mexican Origin or Descent in the United States, 1848–1928,” Journal of Social History 37 (2003): 411–38CrossRefGoogle Scholar; Brownrigg, Coya Paz, “‘Lynchocracia’: Performing ‘America’ in ‘El Clamor Publico,’” California History 84 (2006–07): 4053CrossRefGoogle Scholar; Sheridan, Clare, “‘Another White Race’: Mexican Americans and the Paradox of Whiteness in Jury Selection,” Law and History Review 21 (2003): 109144CrossRefGoogle Scholar; and Moran, Rachel F., Interracial Intimacy: The Regulation of Race and Romance (Chicago: University of Chicago Press, 2001)Google Scholar. All of these works seek to transcend the “black–white paradigm.”

17. Degler, Carl N., Neither Black nor White: Slavery and Race Relations in Brazil and the United States (New York: The MacMillan Company, 1971), xiGoogle Scholar. Degler's designation as a “liberal historian” comes from Drimmer, Melvin, “Neither Black nor White: Carl Degler's Study of Slavery in Two Societies,” Phylon, 40 (1979)CrossRefGoogle Scholar: 97.

18. Wilkerson, Isabel, “The All American,” Essence 28 (1997): 99100 + Google Scholar.

19. Lopez, Ian Haney, White by Law: The Legal Construction of Race (New York: New York University Press, 1996)Google Scholar; Pascoe, Peggy, “Miscegenation Law, Court Cases, and Ideologies of ‘Race’ in Twentieth-Century America,” Journal of American History 83 (1996): 4469CrossRefGoogle Scholar; Gross, Ariela, “‘Of Portuguese Origin’: Litigating Identity and Citizenship among the ‘Little Races’ in Nineteenth-Century America,” Law and History Review 25 (2007): 467512CrossRefGoogle Scholar; and Gross, Ariela, What Blood Won't Tell: A History of Race on Trial in America (Cambridge: Harvard University Press, 2008)CrossRefGoogle Scholar.

20. Pascoe, “Miscegenation Law,” 51; Haney Lopez, White by Law.

21. Judge Samuel L. Pattee in Kirby v. Kirby, cited in Pascoe, “Miscegenation Law,” 51.

22. Dillon County was carved out of Marion County in 1910. Thomas Hunter McEaddy, “The Creation of Dillon County” (Columbia: University of South Carolina, c. 1971), paper prepared for graduate course in South Carolina history at the University of South Carolina, held at the Dillon County Library. The new county had about twenty-two thousand residents, many of whom were farm laborers who worked the cotton crop. Thirteenth Census of the United States, vol. 3: 661.

23. “Act to Provide for Separate Schools for Croatan Indians in Robeson County,” Laws of North Carolina, 1885, ch. 51, in Dial, Adolph L. and Eliades, David K., The Only Land I Know: A History of the Lumbee Indians (Syracuse, N.Y.: Syracuse UP, 1996), Appendix B, 182–83Google Scholar; and McMillan, Hamilton, Sir Walter Raleigh's Lost Colony (Raleigh, NC: Edwards & Broughton, 1907), 4041Google Scholar; “An Act to Change the Name of the Indians in Robeson County and to Provide for Said Indians Separate Apartments in the State Hospital,” Public Laws of North Carolina, ch. 215, 1911, in Dial and Eliades, Appendix B; “An Act to Restore to the Indians Residing in Robeson and Adjoining Counties their Rightful and Ancestral Name,” Public Laws of North Carolina, ch. 123, 1913, in Dial and Eliades, Appendix B; United States Senate, Indians of North Carolina: Letter From the Secretary of the Interior Transmitting, In Response to a Senate Resolution of June 30, 1914, A Report on the Condition and Tribal Rights of the Indians of Robeson and Adjoining Counties of North Carolina, 63rd Congress, 3rd Session, Document No. 677, 1915; “An Act Relating to the Lumbee Indians of North Carolina,” North Carolina Session Laws, ch. 874, 1953, Dial and Eliades, 18–21. Also see “30,000 North Carolinians Vote Themselves a Name,” The Carolina Indian Voice, December 14, 1978, 9, reprinted from The State, January 26, 1952; Padget, Cindy D., “The Lost Indians of the Lost Colony: A Critical Legal Study of the Lumbee Indians of North Carolina,” American Indian Law Review 21 (1997): 408–09CrossRefGoogle Scholar; McCulloch, Anne M. nd Wilkins, David E., “‘Constucting’ Nations within States: The Quest for Federal Recognition by the Catawba and Lumbee Tribes,” American Indian Quarterly 19 (Summer 1995): 378–80CrossRefGoogle Scholar.

24. Only the Cherokee, Chippewa, Choctaw, Creek, Navajo, and Teton Sioux ranked ahead of the Croatans in population. Department of Commerce, Bureau of Census, Indian Population in the United States and Alaska, 1910 (Washington, D.C.: Government Printing Office, 1915), 1721Google Scholar.

25. According to one contemporary estimate, 6,278 Croatan Indians lived in North Carolina in 1910, 5,895 of whom lived in Robeson County. “Report on Tribal Rights of Croatans,” Charlotte Observer, May 18, 1915, 12.

26. Laws and Resolutions of the State of North Carolina, 1885, Public Laws, ch. 51; E. Dale Davis, “The Lumbee Indians of Robeson County, North Carolina, and Their Schools,” paper presented at the National Conference of Christians and Jews, Pembroke, NC, December 19, 1986, 1–4; and V. Ray Thompson, “A History of the Education of the Lumbee Indians of Robeson County, North Carolina from 1885 to 1970” (Ed.D. Dissertation: University of Miami, 1973), 39–43. For more on the Lumbee and segregated schools, see Dial, Adolph L., The Lumbee (New York: Chelsea House, 1993), 5761Google Scholar; “Legislature's Dull Day,” Charlotte Observer January 19, 1907, 1; and Wertheimer, John, Law and Society in the South: A History of North Carolina Court Cases (Lexington: University Press of Kentucky, 2009), 165–89Google Scholar.

27. According to contemporary press reports, Croatan Indians resided “chiefly in Robeson County,” although a “few of the same class of people reside in Bladen, Columbus, Cumberland, Scotland, and Hoke Counties, North Carolina, and in Sumter, Marlboro, and Dillon Counties, South Carolina” “Report on Tribal Rights of Croatans,” Charlotte Observer, May 18, 1915, 12.

28. According to the 1910 census, Dillon County had 10,999 whites, 11,539 “Negros,” and seventy-seven Indians. Thirteenth Census of the United States, vol. 3, 660.

29. Ibid.

Ibid

30. One sample of twenty-four Dillon County “Indians” listed in the 1910 census contained thirteen who had been born in North Carolina. Many of these Dillon County Indians had surnames that, despite unusual spellings, Robeson County residents would, to this day, recognize as distinctly “Lumbee”: e.g., Oxendine, Locklayer, Chavas, Dials. United States Census, 1910.

31. “Negro Badly Beaten,” The State [Columbia, S.C.], July 18, 1911, 3.

32. “Further Details of Berry Killing: Many Rumors Conflict with Accepted Version,” The State [Columbia, S.C.], March 8, 1911, 9.

33. Shot in Family Row: Bob Locklear Seriously Wounded by Ed Chavis,” The State [Columbia, S.C.], May 30, 1911, 12.

34. Constitution of the State of South Carolina, 1895, Art. XI, Sec. 7.

35. See, for example, Annual Records of the State Superintendent of Education of South Carolina; “Public Schools of Dillon County, S.C.,” State Department of Education Bulletin (October 1915); and “What the Schools Cost,” Dillon Herald, November 6, 1913, 7.

36. “Well Meant Criticisms and Timely Suggestions,” Dillon Herald, April 23, 1914, 1. Another example was Colleton County, South Carolina, which maintained Native American schools at Four Holes and Creeltown. See Perdue, Theda and Green, Michael D., The Columbia Guide to American Indians of the Southeast (New York: Columbia University Press, 2001), 138Google Scholar.

37. For contemporary evidence of these phenomena in the Carolinas, see “Croatan Case Was Decided,” The State [Columbia, S.C.] June 12, 1908, 11 (the South Carolina State Board of Education upheld a local decision to dismiss a pupil alleged to contain one-fourth Indian blood from a white school); and Charlotte Observer, September 11, 1902, 4 (a story about Edgecombe County, NC, where “[t]he law forbids Croatan children attending white schools, but it seems that they are not willing for their children to attend colored schools” for “[t]hey don't like the negroes”).

38. “What the Schools Cost,” Dillon Herald, November 6, 1913, 7. Per capita expenditure by counties for schoolchildren completed by J.E. Swearingen, State Superintendent of Education. Here are the per capita educational figures: Dillon County spent $25.56 per white student, $1.28 per “Negro” student, and $12.34 per capita for both races. South Carolina spent $13.99 per white student, $1.87 per “negro” student, and $7.29 per capita for both races. Of forty-four reporting counties in the state, Dillon ranked sixth in per capita spending for whites and twenty-eighth in per capita spending for “Negroes.”

39. Dillon County had at least one other Native American School at that time: the Sardis Indian School. See Stokes, Durward T., The History of Dillon County, South Carolina (Columbia: Univerity of South Carolina Press, 1978), 150Google Scholar. The Sardis Indian School continued to operate until 1952. See Paredes, J. Anthony, ed., Indians of the Southeastern United States in the Late Twentieth Century (Tuscaloosa: University of Alabama Press, 1992), 82Google Scholar. The Sardis Indian School appears to have been located near the town of Latta, approximately four miles away from Dalcho's white public school, where the Kirby boys studied.

40. Tucker v. Blease, 81 S.E. 668 at 669 (1914).

41. Ibid., 671.

Ibid

42. 1900 Census, Dillon County, South Carolina. Roll 1535: 154; and 1910 Census, Dillon County, South Carolina. Roll 1458: 171.

43. Of the 176,434 acres of used farmland in Dillon County, 65,213 acres were worked by 711 farm owners. The remaining 111,221 acres were run by 1934 renters, including both sharecroppers and tenant farmers. See Thirteenth Census of the United States, Vol. VII, Agriculture. For evidence of the Kirbys’ landownership, see “J.D. McLucas to John C. Kirby,” Marion County Deed Book CCC: 192–93; “E.B. Berry to John C. Kirby,” Marion County Deed Book ZZ: 56–57; “J. Kirby to Tilghman Lumber Co.,” Marion County Conveyances, Book III (1905): 104; and Tucker v. Blease, 81 S.E. 668 at 669 (1914).

44. “Physician Shoots, Perhaps Kills: Dr. H.A. Edwards and John Kirby of Dillon Fight,” The State [Columbia, S.C.], June 16, 1909, 1. At the coroner's inquest, the jury deemed the killing “justifiable.” “John Kirby Succumbs to his Many Wounds,” The State [Columbia, S.C.], June 18, 1909, 1. Ex Parte Mrs. Annie Kirby (1909).

45. Lucy Kirby died on November 16, 1909, just days before her eighteenth birthday. Headstone, Mt. Holly Cemetery, Dillon County.

46. The children were: Eddie, 15; Lila, 10; Herbert, 9; Eugene, 8; Dudley, 7; Dessie, 5; and John C, 3. United States Census of 1910, South Carolina, Dillon County, Manning Township, Supervisor's District no. 60; Enumeration District No. 68, sheet no. 17B.

47. Annie Kirby died on November 11, 1910. Headstone, Mt. Holly Cemetery, Dillon County, South Carolina.

48. The “industrious and successful farmer” quotation comes from George Tucker's obituary, “Death Notices,” The State [Columbia, S.C.], March 3, 1916. Additional information in this paragraph comes from: Tucker v. Blease, 81 S.E. 668 at 670–72 (1914); Thirteenth Census of the United States (1910), South Carolina, Dillon County, Bethea Township; and Tucker family headstones, Catfish Creek Baptist Church Cemetery, Latta, South Carolina.

49. One contemporary of the Kirby brothers who studied at Dalcho during these years reported that many Dalcho teachers “would compare with the best.” This Kirby peer, who later studied at Yale University, noted that many Dalcho alumni went on to distinguished collegiate and professional careers. Clarence Boyce Allen, quoted in Stokes, Durward T., The History of Dillon County, South Carolina (Columbia, South Carolina: University of South Carolina Press, 1978)Google Scholar, 146.

50. Tucker v. Blease, 81 S.E. 668 at 670 (1914).

51. Sam Edwards was the brother of Dr. H. A. Edwards, who killed John Kirby in 1909. Sam Edwards's protestation at a subsequent hearing that neither he nor his petition had “anything to do with the killing of John Kirby” reveals local suspicion that a connection may have existed. Tucker v. Blease, 81 S.E. 668 at 670 (1914); “Physician Shoots, Perhaps Kills: Dr. H. A. Edwards and John Kirby of Dillon Fight,” The State [Columbia, S.C.], June 16, 1909, 1; and “John Kirby Succumbs to His Many Wounds,” The State [Columbia, S.C.], June 18, 1909, 1.

52. Tucker v. Blease, 81 S.E. 668 at 670 (1914).

53. Ibid., 669.

Ibid

54. Ibid., 669.

Ibid

55. Ibid., 669.

Ibid

56. Ibid., 669, 672.

Ibid

57. Constitution of the State of South Carolina, 1895, Sec. 33, art. III.

58. Tucker v. Blease, 81 S.E. 668 at 669 (1914).

59. Ibid.

Ibid

60. Ibid.

Ibid

61. Ibid.

Ibid

62. Ibid., 672.

Ibid

63. Ibid., 670–71.

Ibid

64. Ibid., 669. Coleman referred to the children as neither white nor black, but “Croatan or mulatto.” Indians were often categorized as “mulatto.” The 1910 census, indeed, reports no Indians in Bethea Township near the Dalcho School, but does list eight families as “mulatto” including the family of Millard Locklear. Locklear is a common Lumbee (Croatan) surname, strongly suggesting that the census listed Croatans as mulatto. For more on the use of “mulatto” to refer to Native Americans, see Gross, Ariela, “‘Of Portuguese Origin’: Litigating Identity and Citizenship among the ‘Little Races’ in Nineteenth-Century America,” Law and History Review 25 (2007)CrossRefGoogle Scholar: 478.

Ibid

65. Department of Commerce, Bureau of Census, Indian Population in the United States and Alaska, 1910 (Washington, D.C.: Government Printing Office, 1915), 3638Google Scholar. As a general matter, the census suspected that Indian–black mixing was underreported nationally, because of what the census described as a general “disinclination to admit Negro blood.” Therefore, the 12% estimate for Croatans of partial African ancestry may be an understatement. Ibid., 38.

66. Tucker v. Blease, 81 S.E. 668 (1914).

67. Annual Records of the South Carolina State Superintendent of Education, Dillon County, “Table 3. Schools, Enrollment, Average Attendance,” 325.

68. Ibid. Securing teachers for Native American schools was a persistent problem at the time. See Berry, Brewton, Almost White (London: Collier-Macmillan Ltd., 1963) 123–26Google Scholar. The trustees claimed that they had “been paying the tuition of children of this class anywhere they could get in school,” given the absence of local alternatives. Ibid., 669.

Ibid

69. Trustee Chair Coleman further distinguished the Kirbys’ “class” from “Negroes” when adding that “people of this class had a space set apart for them in Catfish Baptist church, as did also the negroes [emphasis added].” Ibid.

70. Gibson was a future president of the Dillon County Bar Association. See Snowden, Yates, ed., History of South Carolina, Vol. IV (Chicago: Lewis Publishing Company, 1920), 141Google Scholar.

71. Lanneau Lide was from Marion County, which abutted Dillon County to the south. Prior to participating in Tucker v. Blease, Lide had worked as a private secretary to a State Supreme Court justice; subsequently, he would serve in the state legislature and on the state bench. Snowden, ed., History of South Carolina, 133; “Lanneauu Durant Lide, 1876–1953,” University of South Carolina School of Law's “Memory Hold the Door”, available at http://law.sc.edu/memory/1958/lideld.shtml, accessed June 10, 2009.

72. The case began with a Dillon County Board of Education hearing, proceeded to a South Carolina Board of Education appeal, and ended in the State Supreme Court. Tucker v. Blease, 81 S.E. 668 (1914); and “Former Students Get Scholarships,” The State [Columbia, S.C.], August 29, 1913, 12.

73. Tucker v. Blease, 81 S.E. 668 at 669 (1914).

74. Ibid.

Ibid

75. Ibid., 670.

Ibid

76. Ibid., 670.

Ibid

77. Ibid., 670.

Ibid

78. Ibid., 669.

Ibid

79. Ibid., 669, 671.

Ibid

80. Ibid., 669–71.

Ibid

81. Ibid., 670.

Ibid

82. John C. Sellers testified that John Kirby “didn't associate with Negroes.” Tucker v. Blease, 81 S.E. 668 at 671 (1914).

83. J.F. Williams stated that he did “not know of these children [the Kirbys] associating with Negroes.” Ibid., 669.

84. Ibid., 671.

Ibid

85. Ibid., 670. G. F. Bethea did not know “whether [John Kirby] associated with white people, except in a business way.” Ibid., 671. Note also that Trustee Coleman reported that John Kirby, the boys’ father, “associated with colored people.” Ibid., 669.

Ibid

86. For more on Tillman, including his relation to the South Carolina Constitution of 1895, see Kantowitz, Stephen, Ben Tillman and the Reconstruction of White Supremacy (Chapel Hill: University of North Carolina Press, 2000)Google Scholar.

87. Constitution of the State of South Carolina, 1895, Sec. 7, art. III, quoted in Tucker v. Blease, 81 S.E. 668 at 673 (1914).

88. Constitution of the State of South Carolina, 1895, Sec. 33, art. III, quoted in Tucker v. Blease, 81 S.E. 668 at 673 (1914).

89. 163 U.S. 537 (1896), cited in Tucker v. Blease, 81 S.E. 668 at 674 (1914).

90. 59 Mass. 198 (1850), cited in Tucker v. Blease, 81 S.E. 668 at 674 (1914).

91. State v. Cantey, 20 S.C.L. 614 (1835), cited in Tucker v. Blease, 81 S.E. 668 at 673 (1914).

92. White v. Tax Collector, 37 S.C.L. 136 (1846), cited in Tucker v. Blease, 81 S.E. 668 at 673 (1914).

93. U.R. Brooks, “Associate Justice Eugene B. Gary,” in South Carolina Bench and Bar, vol. I (Columbia: The State Co., 1908): 78–80.

94. Kantowitz, Ben Tillman and the Reconstruction of White Supremacy, 143.

95. “South Carolina Democrats: Nominate Tillman for Governor—The Platform,” Springfield [Mass.] Republican, September 12, 1890, 5. Gary's stump speeches against the 1868 constitution are reported in “All Efforts to Harmonize Have Failed,” The State [Columbia, S.C.], July 29, 1895, 1.

96. “South Carolina: Tillman and the Regular Democrats Carry Off Everything,” Omaha [Nebraska] Morning World-Herald, November 5, 1890, 1.

97. “Want Subservient Judges: An Alleged Plot to Change the State Judiciary,” The State [Columbia, S.C.], October 2, 1893, 6.

98. “The New and the Old,” The State [Columbia, S.C.], December 2, 1893, 4.

99. “Latest Dispatches,” Savannah [Georgia] Tribune, August 4, 1894.

100. “The Imperial Ukase,” The State [Columbia, S.C.], July 23, 1894, 4.

101. Snowden, Yates, ed., History of South Carolina, vol. V (Chicago: Lewis Publishing Co., 1920), 3Google Scholar.

102. Constitution of the State of South Carolina, 1895, Sec. 33, art. III.

103. Tucker v. Blease, 81 S.E. 668 at 673 (1914). Emphasis in original.

104. Ibid., 671.

Ibid

105. Ibid., 675.

Ibid

106. Tucker v. Blease, 97 S.C. 326 (1914).

107. Subdivision 3 of section 1761, South Carolina Code of Laws 1912, providing that public schools’ boards of trustees “shall . . . have authority . . . to dismiss pupils, when the best interest of the schools make it necessary.”

108. “The Lawmakers of South Carolina: Gage Gets Promotion,” The State [Columbia, S.C.], January 16, 1914, 9; and “Judge Gage's Election,” The State [Columbia, S.C.], January 17, 1914, 4.

109. For evidence suggestive of Gage's comparative liberalism, see “No Verdict Yet in Risinger Case: Fate of Erastus Risinginer in the Hands of Lexington,” The State [Columbia, S.C.], September 24, 1910, 2; “Judge Censures Lexington: Jury Utters Scathing Words after Acquittal of Risinger,” The State [Columbia, S.C.], September 25, 1910, 1; “No Aid for Negroes,” The State [Columbia, S.C.], February 14, 1916, 5; “The Risinger Case,” The State [Columbia, S.C.], September 26, 1910, 4; and “Iguorance [sic] Cause of Crime: Judge Gage Charges Grand Jury to See that Good School Houses and Teachers Abound,” The State [Columbia, S.C.], March 2, 1911, 8.

110. “Sustains Ruling of State Board: Supreme Court Decides the Dalcho School Case,” The State [Columbia, S.C.], April 22, 1914, 14.

111. See “South Carolina Supreme Court: Synopses of Opinions in the Highest Tribunal,” The State [Columbia, S.C.], July 15, 1914, 15.

112. Tucker v. Blease, 81 S.E. 668 (1914).

113. Sharfstein, Daniel J., “Crossing the Color Line: Racial Migration and the One-Drop Rule, 1600–1860,” Minnesota Law Review 91 (2007): 654Google Scholar.

114. “Three Children Are Prohibited in School Rooms”, Columbia [South Carolina] Record, April 22, 1914, 5.

115. See “Supreme Court Bars Children of Caucasian Blood,” Greenville [S.C.] Daily News, April 23, 1914, 8; “These Children Must Quit School for Whites,” News and Courier [Charleston, S.C.], April 22, 1914, 3; “Barred from White School,” Charlotte [North Carolina] Observer, April 22, 1914, 9. For a more neutral write-up of the ruling, one that does not mention the “condition of the Negro,” see “Sustains Ruling of State Board: Supreme Court Decides the Dalcho School Case,” The State [Columbia, SC], April 22, 1914, 14.

116. McGovney, Dudley O., “Naturalization of the Mixed-Blood: A Dictum,” California Law Review 22 (1934): 386CrossRefGoogle Scholar.

117. Ransmeier, Joseph S., “The Fourteenth Amendment and the ‘Separate but Equal’ Doctrine,” Michigan Law Review, 50 (1951): 254CrossRefGoogle Scholar.

118. Sharfstein, Daniel J., “Crossing the Color Line: Racial Migration and the One-Drop Rule, 1600–1860,” Minnesota Law Review, 91 (2007): 655Google Scholar. See also Ibid., 595.

119. Sharfstein, “Crossing the Color Line”: 654. Even a book dedicated to Native American affairs overlooks the Kirbys’ seeming Native American ancestry. See Paredes, J. Anthony, ed., Indians of the Southeastern United States in the Late Twentieth Century (Tuscaloosa: University of Alabama Press, 1992), 82Google Scholar. For a different, but also inaccurate, take on Tucker, see Sweet, Frank W., Legal History of the Color Line (Palm Coast: Backintyme, 2005), 403–4Google Scholar. Sweet asserts that witnesses in the Dalcho School case sought the Kirby children's expulsion only because “the ‘Kirby’ surname reminded people of the Croatans,” even though “no allegation was ever made that the Kirby children were anything other than of pure European ancestry.”

120. Johnson v. Board of Education., 166 N.C. 468 at 475 (1914).

121. Jelsma v. Butler, 80 Okla. 46; 194 P. 436 at 438 (1920).

122. Gong Lum v. Rice, 275 U.S. 78 (1927).

123. “Case Summary,” Tucker v. Blease, 8801, Supreme Court of South Carolina, 97 S.C. 303; 81 S.E. 668; 1914 S.C. LEXIS 189, April 21, 1914, Decided. The “late twentieth century” date of this blurb's creation is based on discussions with LexisNexis representatives, reported in “Susanna Boylston to John Wertheimer”, e-mail message, August 19, 2008. A copy of this note is in the author's possession and is available upon request.

124. Constitution of the State of South Carolina, 1895, Sec. 33, art. III.

125. In 1918, Herbert Kirby registered for military service at the age of eighteen. His draft card lists him as a white man. His brother Eugene also joined the army. The 1920 census records that he was stationed at an army camp in Brownsville, Texas. The census lists him as white; 1920 Census, Cameron County, Texas, Roll 1784: 178. The draft registration card of older brother Edward Kirby, who was not part of the Tucker case, also lists him as white. See Sharfstein, 655.

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“The law recognizes racial instinct”: Tucker v. Blease and the Black–White Paradigm in the Jim Crow South
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“The law recognizes racial instinct”: Tucker v. Blease and the Black–White Paradigm in the Jim Crow South
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“The law recognizes racial instinct”: Tucker v. Blease and the Black–White Paradigm in the Jim Crow South
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