In New England, many residents think of the region’s history as a paragon of opposition to slavery and support for racial equality. That’s far from the whole picture, however, and a Maine Law Court decision from 1852 shows this clearly.[1] We may wish to forget or relegate this short case to history’s dustbin – but it is part of the state’s legal history and we can, and should, learn from it.
The case was an inheritance dispute in which Tobias Jones, husband of Abigail Jones, died without a will and his children tried to inherit from him through the laws that cover such situations.[2] The state’s highest court held that although Tobias and Abigail Jones had been married for 59 years, they actually were not married because it was an interracial marriage. Therefore, the children were ‘illegitimate’ and could not inherit from their father.[3]
The court’s entire opinion, all seven sentences of it, focused on the race of Tobias and Abigail. A Massachusetts Law passed in 1786 banned interracial marriage; Tobias and Abigail Jones had been married in 1793.[4] What is now Maine, not yet a state, was still governed by Massachusetts law at that time.[5] Tobias, they said, definitely was not white because one of his parents was Black and one of his parents was white. Then the court turned to his widow Abby. She testified in the lower court that she was ‘one-sixteenth part of Indian blood.’ This made her white, the justices said, and therefore the marriage was invalid.
But how did the justices know that having ‘one-sixteenth part of Indian blood’ made a person white? They relied on a footnote in an influential book, Chancellor Kent’s Commentaries on American Law.[6] This footnote discussed the rules outlining how much ‘African blood’ would make someone “not white” was used in different states and countries. The footnote’s context was not marriage but rather the interpretation of a law about citizenship.[7] Kent stated: ‘[i]f the amount of white, of African blood does not exceed the proportion of one-eighth, the person is deemed white [in Louisiana, French colonies, and Carolina].’[8] The Maine court relied on this passage to conclude that because Abby had only ‘one-sixteenth Indian blood’, she was white, and her marriage was invalid.[9]
When I tell people in Maine about Bailey v. Fiske, they are often surprised that Maine once banned interracial marriage and then they sometimes say something to the effect of, “well, that was then and people had blind spots; we have blind spots too and things are different now.” It is undeniable that understandings change and that things are different now in many ways. But after much reflection, I think the Law Court and the state could have done better.
Here are three ideas of what the Law Court could have done differently.
First, the court could have focused on the fact that Massachusetts had repealed the 1786 law banning interracial marriage in 1843, nine years before this decision. The justices could have crafted a persuasive argument that even if Abby and Tobias’ marriage initially had been invalid because of that law, the repeal of the law had effectively validated the marriage for inheritance purposes. Therefore, the children could inherit.[10]
Second, the court could have chosen a different rule. It could have held that in view of Abby having ‘Indian blood,’ she was not white for purposes of this case. If the court had done that it could have held that the marriage was valid, because Tobias also was not white, and the children would inherit. Maine’s Supreme Court did not have to rely on Kent’s Commentaries; it chose to. Further, the passage from Kent showed that there was considerable state-by-state variation in how people were identified as members of certain races. Thus, the door was wide open for the Court to craft a different rule for Maine that would uphold the marriage.
Third, the justices could have used the family’s decades of reliance on the marriage to recognize it, as courts often did as far back as colonial times. From what we can guess from the decision, the wife and children had no idea that the marriage was invalid until the lawsuit after Tobias’ death. If Tobias had known his marriage was invalid, perhaps he would have made a will, and this case probably would have been avoided! To invalidate the marriage in this situation likely would have negative societal consequences – a poverty-stricken widow and children. Any of these three approaches would have been legally justifiable. Any of these approaches would have been in line with the courts’ general approach to marriages at that time, which was to try to find ways to validate them.
Neither New Hampshire nor Vermont ever had an interracial marriage ban. Therefore, it is not as if the Maine court was simply trying to be consistent with neighboring states’ rules. Plus, if the family had moved to one of those states and Tobias had died there, no one would have thought to challenge the marriage (even if the couple entered into marriage ‘illegally’).[11]
I find the Law Court’s rigid opinion chilling and cruel. It was an injustice to a family that may have had impacts for generations, it reflected a racism that was influential but not universal at that time, and it did not have to come out that way.
[1] 34 ME 77 (1852): Full Opinion Text Bailey & al v. Fiske: SHEPLEY, C. J.- There is a difference of opinion respecting the proportion of African blood, which will prevent a person possessing it from being regarded as white. Some Courts appear to have held, that a person should be so regarded, when his white blood predominated both in proportion and in appearance. Those least disposed to consider persons to be white, who have any proportion of African blood, have admitted, that persons possessing only one-eighth part of such blood should be regarded as white. 2 Kent’s Com. 36, note, 7th Ed. There was in Abigail Jones, according to her testimony, but one-sixteenth part of Indian blood, and she must be considered a white woman. She was married to a mulatto, who could not be regarded as a white man. The marriage of white with colored persons was then forbidden by statute. Their children were therefore illegitimate, and they could not inherit from their father. Exceptions overruled and nonsuit confirmed.
Thank you to Maine Law Library Interim Director Maureen Quinlan and librarian Megan York for invaluable assistance with this piece. I also appreciate the help of Professor Deirdre M. Smith.
[2] This is known as intestate succession; each state has a law specifying a sequence of what relatives inherit when a family member dies without a will. During this period, generally only the children would inherit because of the legal treatment of the wife; children were considered orphans if their father died but their mother was alive. The mother was not eligible to be appointed as the child’s guardian of the inherited property. Someone else was appointed as a guardian (some male relative, such as an uncle or older brother) to manage any property the child inherited from the father.
[3] 34 ME 77 (1852).
[4]1786 Mass. Acts of 1786, ch 3, sec. 7.
[5] Maine became a state in 1820 and promptly passed its own law banning interracial marriage. Maine Acts Title 5 ch. 59 sec. 2 (1821) Massachuetts repealed its law in 1843. Maine did not repeal its law until 1883.
[6] 2 Kent’s Com. 36, note, 7th Ed. This practice of looking at ‘fractions’ of ‘blood’ is an instructive example of the social construction of race about which many scholars have written. See, e.g. Ian Haney Lopez, White by Law (1996), R. Michael Higginbotham & Barbara Kopytoff, Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia, 77 Geo. L. Rev. 1967 (1989).
[7] Kent’s Commentaries on American Law (7th Edition 1851). Kent’s commentaries were very important in the development of U.S. Law. Commentators who laud his work tend not to mention the section that the Maine court relied on, which is steeped in ideas and assumptions of white supremacy. See e.g., David W. Raack, ‘To Preserve the Best Fruits’: The Legal Thought of Chancellor James Kent, 33 Amer. Jnl. of Legal History 320 (1989).
[8] 2 Kent’s Com. 36, note, 7th Ed.
[9] 34 ME 77 (1852)
[10]While some might wish that the Law Court had held the interracial marriage ban unconstitutional, this is unrealistic because the 14th Amendment, which was the ground on which the interracial marriage bans were finally struck down in 1967, was ratified after this decision, in 1867. Further, the first state supreme court case holding an interracial ban unconstitutional was not decided until 1948. See Perez v. Lippold, 32 Cal. 2d 711, 198 F.2d 17 (cal. 1948).
[11] There’s so much we don’t know about the case; Maine Supreme Court records of briefs do not go that far back so we can not read the arguments made by the parties. Here are a few questions: Who were the children and what did they lose by losing this case? And what about Abby, Tobias’ widow? What happened to her now that her husband was deceased and her adult children disinherited? Why was the case challenging the inheritance brought? More research that I hope to do might bring information to light about these and other aspects of the case, including the puzzling fact that William Pitt Fessenden, a prominent abolitionist, represented the challenger to the children’s inheritance, who is identified in the report of the opinion as ‘the tenant.’