Most shamefully common": arkansas and miscegenation"

Abstract

IN JANUARY 1929, THE ARKANSAS SUPREME COURT reviewed a case involving an alleged violation of the state's antimiscegenation law. Martha Wilson, a white woman, and Ulysses Mitchell, a black man, both residents of Fort Smith, had been convicted of unlawful cohabitation. According to the facts of the case, Mitchell had been seen on several occasions at Wilson's home. He mowed her lawn, entertained her by playing music on an old guitar, and attended parties that Wilson had at her residence. Witnesses for the state recalled that Mitchell always came into the home and left by way of the front door, sometimes departing as late as 5:00 a.m. On one occasion after Mitchell left the house, Wilson came to the door in her nightclothes and called him back inside. Early one morning in August 1928, after receiving calls from Wilson's neighbors, Fort Smith police went to Wilson's home. There, in the rear of the house, police saw Mitchell and Wilson laying in bed together, and Mitchell's pants were unbuttoned. The police stormed into the room. Mitchell made no statement at all, but Wilson exclaimed, Oh that fellow wasn't there when I went to bed! The screen of the rear window had been cut and upon later questioning Mitchell informed the police that he had been drinking and mistakenly entered Wilson's residence believing it to have been his own.1 Upon reviewing the facts, the supreme court reversed the lower court's convictions of Wilson and Mitchell. The court held that although the weight of the evidence supported the state's position that Wilson and Mitchell frequently engaged in sexual relations with each other, the interracial sex alone did not constitute a violation of the law. In the state of Arkansas in 1929, in order for interracial couples to be in violation of antimiscegenation laws, they had to marry or formally live together. Because evidence showed that Mitchell lived at another residence, the supreme court reversed the lower court's decision.2 The Wilson case and many similar cases revealed the limited ways in which the state of Arkansas sought to regulate the sexual color line. Despite the presence of antimiscegenation laws, interracial sex often took place in Arkansas with little legal interference. This lack of judicial activism illustrated both the apathy of legal authorities and the relative tolerance that Arkansans sometimes demonstrated towards interracial sexual relationships. In Arkansas, interracial sex was never fully accepted, but it was often ignored. In October 1837, a little more than a year after statehood, the Arkansas legislature enacted its first antimiscegenation law. The measure declared illegal and void all marriages between white persons and Negroes or mulattos, yet it did not prescribe a specific punishment for violators.3 The relative mildness of Arkansas's first antimiscegenation law can be easily seen by comparing it to the bigamy and rape laws passed by the state in the same year. Persons convicted of bigamy were subject to imprisonment for no less than one year and were to be deemed infamous ever afterwards.4 For the crime of rape, the state legislated death for convicted persons. Even attempted rape could mean a fine and imprisonment for white men. Black men who attempted to rape white women would suffer death upon conviction.5 The state's first antimiscegenation law partially reflected demographic realities in Arkansas at the time that it was enacted. According to the 1840 census, Arkansas had a population of only 465 free blacks. The number of free blacks rose to a little less than one thousand by the time of the Civil War. Since slaves were by law denied the right to marry, the small number of free blacks did not necessitate the erecting of more stringent legislation prohibiting interracial marriage. The mildness of Arkansas's first antimiscegenation provision might also be explained by the relative tolerance that Arkansans demonstrated towards interracial sex prior to the Civil War, at least when it came to masters and slaves. …