Portuguese (Non-)Whiteness in the US: A Case of Legal ‘Schizophrenia’ in the late 19th and early 20th centuries

 Introduction

The Portuguese, as many other immigrants who came to the United States in the late 19^th century and early 20^th centuries, had a turbulent and challenging life upon their arrival. In fact, as we have already shown in our paper at the Peak Event, the Portuguese immigrants were subject to racialization in their own way during the 19^th and 20^th centuries, being described as unskilled, ignorant, stupid, and illiterate[1], and portrayed as a mixture of ‘Jews, Moors, Negro slaves, English and Italian’[2]. However, the way this racialization was translated to the legal system of the United States is not at all linear; indeed, the truth is that many of those who were stuck in the ambiguous middle of the black-white colour spectrum resorted to certain identities in order to claim whiteness or, at the very least, a ‘non-black’ identity. It is in this framework that the ‘Portuguese origin’ was used in courts as a legal argument to disprove the accusations of ‘blackness’.

 

Be as it may, before we expand on these issues, we first need to understand the context of the late 19^th and early 20^th century in the United States, and who were this people situated on the borderlands of the racial strict hierarchy set in place at the time, in order for us to comprehend the graveness of a ‘Negro blood’ accusation and, conversely, the importance of affirming one’s whiteness.

 Historical Context

At the end of the 19^th and the beginning of the 20^th century, we are before the aftermath of the 13^th Amendment which abolished slavery, and the dawn of the Jim Crow era, with its constant attempt at legally setting apart white people and the remaining people “of colour”. Even before the end of slavery, during the pre-Civil War period, there was already a legal attention to ensure the disempowerment of the so called “free people of colour”, who were individuals of African or mixed African and European descent that were born free or had gained their freedom through manumission (formal emancipation) or self-purchase[3]. These people, although free, were met with a series of restrictions in their lives: restrictions on freedom of movement, the ability to vote, sit on juries or hold public offices.[4]

All this system operated under a binary conception of race: white people could become citizens (having the right to vote, sit on juries, etc.)[5], while black people had no rights, whatsoever. However, this effort to clearly separate the population in binary racial terms was constantly hindered by the presence of racially ambiguous communities, like the Melungeons, Lumbee and Goins, groups which were mainly the product of white, black, Indian, and other ancestry[6], and which constantly defied this binary “white-black” racial hierarchy. It is in the context of these groups that we ought to understand the importance of “litigating whiteness” (this is the title of one of Ariela Gross’s work, author to whom we owe much of our research): it was when the members of these groups started to have their white identity challenged in courts and being accused of being “coloured” that we see, among others, the Portuguese origin legal argument being deployed. [7]

The Portuguese as a legal argument

In the infamous Perkins v. White case, in 1855, we see Jacob Perkins, from East Tennessee, attempt to win damages from John White for the accusation that he had “negro blood”. To prove someone had negro blood, the Court, as the judge explained to the jury, had to resort to the “one-eighth” rule:

“1/8 of his or her entire blood must be either of the Negro or of the Indian race or a mixture of the two amounting to 1/8. To illustrate what is meant by the language of the statute, " to the third generation inclusive though one ancestor of each generation may have been a white person." If the proof in this case shows that Jock Perkins was the great grandfather of Plaintiff on the paternal line and that he was a full blooded Negro and that by cohabitation between him and a full blooded white woman, Jacob Perkins was induced. Jacob would be the first generation, 1/2 of whose blood would be Negro, and Jacob cohabitation with a full blooded white woman and induced Joshua Perkins, then Joshua would be the second generation, 1/4 of whose blood would be Negro, and if Joshua and a full blooded white woman induced the Plaintiff, then the Plaintiff would be the third generation inclusive and 1/8 of his blood of the Negro race, and a person of color”[8]

The majority of the depositions for the Plaintiff consist in the affirmation of Perkins’s Portuguese origin, in contrast to the negro blood accusations. Just to list some: Samuel Vance, one of the witnesses, in cross examination stated “I do not believe they are pure white. I believe they are Portuguese”[9] [our italic]; similarly, Elizabeth Cook, another witness claimed “I heard Joshua Perkins’ uncle’s daughter say they were not known as negro to them, they were Portuguese”[10]; finally, Thomas Cook, another witness, says he “knew old Joshua Perkins. He was a dark-skinned man, darker than Joshua. Tall and spare. He resembled an Indian more than a negro. Was generally called a Portuguese”.[11] The depositions for the Defendant, by its turn, reproduce these claims almost entirely, but in a reverse way, stating that the Perkins family were black, instead of Portuguese.[12]

These types of arguments are again seen in Locklayer v. Locklayer (1903) and Gilliland v. Board of Education (1906). The former deals with the petition of Nancy Locklayer, widow of Jackson Locklayer, who wished to retrieve his husband’s personal property after his death and whose wish was contested by the appointed administrator of J. Locklayer’s estate, J. R. Locklayer, on the grounds that Nancy and Jackson weren’t ever truly husband and wife due to the fact that Jackson was supposedly a black man and Nancy a white woman, fact that would make their marriage illegal and, as such, void[13]. The latter deals with the action filed by Sylvia Gilliland and others, against the Board of Education of Buncombe County and School Committee of Avery’s Creek Township, for the exclusion of their children from the school for the white race, on the grounds of the children not being white, but rather of mixed blood, with a certain amount of negro blood.[14]

Unfortunately, we didn’t have access to the full trial records, but, nonetheless, in the case briefs we managed to find, it is mentioned, in Locklayer, that J. Locklayer, being accused by the contestant’s witnesses who testified that he was a negro, was instead “mixed blood, being part Indian, part Portuguese, and part Caucasian”;[15] and, in Gilliland, that the children’s ancestors “went to white schools, claiming to be of Portuguese descent”[16]. While Nancy Locklayer ended up losing the case, Gilliland’s action would be sustained, and the Board of Education would ultimately be forced to readmit the children into white school. Just by these summaries alone we can see that even entering the 20^th century, the ‘Portuguese origins’ of the racially ambiguous groups of the US were still being used in Court in order to fight for their white identity. In the Locklayer case it is especially suggestive the distinction made between the Portuguese origin and the Caucasian: as we said in the beginning, it seems that the Portuguese identity, rather than being used as the proof of whiteness, worked instead as a non-black identity.

That said, it is still unclear as to why the Portuguese were seen as an “alibi” from blackness, especially given the racialization that they suffered outside of the Court. Personally, we think this can be attributed to the European origin of the Portuguese, which, although southwestern, still invokes a kind of ‘whiteness myth’, as shown by Lewis Shepherd’s argument used in another famous case which dealt with the Malungeons: “these people belonged to a peculiar race, which settled in East Tennessee at an early day . . . known as ‘Melungeons.’ . . . It was proven by the tradition amongst these people that they were descendants of the ancient Carthagenians; they were Phoenicians, who after Carthage was conquered by the Romans, and became a Roman province, emigrated across the Straits of Gibraltar, and settled in Portugal”.[17] Furthermore, the own racial ambiguity of the Portuguese immigrants contributed to this idea of non-blackness: a Portuguese immigrant, in legal citizenship terms, could range from the lighter features of a citizen from mainland Portugal, to an Azorean or even to the darker complexions of a Cape Verdean with a Portuguese passport.

Conclusion

Regardless of the reasons, we think all of this can shed some light on the actual complexity of the racial hierarchy of the US, in contradistinction to the formal and rudimentary binary black-white spectrum: there was whiteness, blackness, non-whiteness and non-blackness, all different from each other, and all carrying different restrictions, rights, and freedoms. On top of that, this also illustrates how the social racialization of the Portuguese didn’t always correspond to their respective legal racialization, as one’s Portuguese origins could sometimes be invoked in Court in order to claim whiteness (or non-blackness), and to avoid at what that time was the heavy and insurmountable burden of blackness. Furthermore, the way these trials were conducted shows to us how much both parties created actual law while litigating: there was no formal criterion to determine a priori which skin colours/features and complexions should be considered as black and which ones should be considered white. It is through the arguments adduced in Court, and through the decisions of the jury, that the binary racial law of the US was ‘densified’, ‘materialized’ (densificada, densificação, as Portuguese doctrine calls it) and consequently transformed into a true spectrum.

Sofia Dias & Rafael Guerra (Nova)

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[1] Ross, Edward A. “The Lesser Immigrant Groups in America”, The Century Magazine 88, no. 6, October 1914: 934-40.

[2] Hoffman, Frederic L. “The Portuguese Population in the United States.” Publications of the American Statistical Association 6, no. 47 (1899): 327–36. https://doi.org/10.2307/2276463.

[3] Gross, Ariela. “‘Of Portuguese Origin’: Litigating Identity and Citizenship among the ‘Little Races’ in Nineteenth-Century America.” Law and History Review 25, no. 3 (2007): 469. http://www.jstor.org/stable/27641498.

[4] Berlin, Ira. 2007. Slaves without Masters : The Free Negro in the Antebellum South. New York: The New Press.

[5] Gross, Ariela. “‘Of Portuguese Origin’. 469.

[6] Ibid. 473.

[7] Ibid. 470.

[8] “Perkins Trial, Instructions to the Jury.” 2013. Web.archive.org. September 10, 2013. https://web.archive.org/web/20130910053830/http://jctcuzins.org/pam/perkins/jury.html.

[9] “Perkins Trial, Abstracts of Depositions for Plaintiff.” 2016. Archive.org. 2016. https://web.archive.org/web/20130910052423/http://jctcuzins.org/pam/perkins/plaintiff.html.

[10] Ibid.

[11] Ibid.

[12] Perkins Trial, Abstracts of Depositions for Defendant.” 2016. Archive.org. 2016. https://web.archive.org/web/20130910052423/http://jctcuzins.org/pam/perkins/defendant.html.

[13] Locklayer v. Locklayer, 139 Ala. 354 (1903), available at https://cite.case.law/pdf/8490257/Locklayer%20v.%20Locklayer. 2.

[14] Gilliland v. Board of Education, 141 N.C. 482 (1906), available at https://cite.case.law/pdf/11253446/Gilliland%20v.%20Board%20of%20Education,%20141%20N.C.%20482%20(1906).pdf. 2.

[15] Locklayer v. Locklayer, 3.

[16] Gilliland v. Board of Education, 5.

[17] Gross, Ariela. “‘Of Portuguese Origin’. 495.