By Reginald Leamon Robinson
Professor of Law
Howard Law School
Washington, DC 20008
Elizabeth M. Smith-Pryor, Property Rites: The Rhinelander Trial, Passing, and the Protection of Whiteness. UNC Press, 2009. 391 pp.
Why did Philip Rhinelander fund the annulment trial of his son’s, Kip’s, marriage to Alice Jones? It was the 1920s, and so perhaps the easy answer is race and class. In her ordinary but complicated thesis, Smith-Pryor bets on the dovetailing of race and racial ideologies. More than just retelling Rhinelander v. Rhinelander’s racist and legal saga, especially by stewing race passing, racial culture, and upper class consciousness together, Smith-Pryor hopes Property Rites contributes to and elaborates on growing studies of northern racism. Although I believe she succeeds on that hope, does Smith-Pryor race and racial ideologies thesis really expose Rhinelander v. Rhinelander’s the deep, existential cause?
Kip’s annulment trial has a family back story. In 1884, Kip’s uncle, William, married an Irish domestic, which erupted a bonfire, implicating money, property, and class. After all, in the 1880s, the Irish were some of the new Negroes. Undoubtedly, after William’s marriage, the Rhinelander clan wanted to kill off the offending marriage by buying her off Margueretta and urging her back to Ireland. Both refused. For his disobedience, his father humiliated and perhaps traumatized, if not destroyed, him. William was cut off, became Rynlander, moved about, settled in Brooklyn, had two children, fell on hard times, felt cheated by the family’s stipend-dispensing lawyer, and shot the lawyer, who he felt cheated him and attempted to seduce his wife. By the shooting, William had left his wife and kids and was living in a boardinghouse. More than that, the Rhinelander patriarch wiped William’s name from the family tree. To annul William’s marriage and keep him out of jail for felonious assault, the Rhinelander clan sought to have him declared temporarily insane. Clearly then, the Rhinelander children and grandchildren knew that if they disobeyed patriarchs, dirtied whiteness, and rejected high society’s morays by befouling filial purity with offending blood and brood, they’d become non-beings.
In Kip’s case, Alice Jones, a Nigger, was a domestic, just like William’s Margueretta. William, an heir to a fortune, was like Leonard, or Kip. Both sought love and well-being in low, dark, societal straits, and thus both married beneath their station. Both had their own minds. Or did they? Philip watched his Uncle, William, suffer ignominy. He’d learn well; he’d tow the line. So would his children, including Kip, or so he’d hope. But to avoid William’s weak-minded felonious assault on the family lawyer, a second, scandalous embarrassment for the clan, Philip would use similar legal tools, but he’d not drive Kip to ruin. Perhaps he didn’t need to do so, for William’s fall was likely widely shared in whispered tones as Kip grew to manhood. So, does that explain the Philip Rhinelander’s legal assault on Kip and Alice’s marriage?
Perhaps. Property Rites is not very clear on this question, even though Smith-Pryor ventures the historically situated answer: race and racial ideologies. As the later chapters confess, especially where we learn that Alice Jones prevailed, Smith-Pryor tells us that, in the annulment trial, the Rhinelanders ostensibly pursued the legal theory of racial misrepresentation but really wanted to preserve their fortune. At the time, New York like other common law jurisdictions recognized dower and curtsey. Upon marrying Kip, dower granted Alice a one-third life interest in whatever property he’d already owned or would acquired. Alice’s interest included rental income. Moreover, Kip had to get Alice’s permission and release before he sold property, and if he didn’t, Alice still retained her dower interest in that property. Alice did out lived Kip by 35 years. If Kip were a co-owner of property with the Rhinelander clan, including Philip, he could not sell that property without Alice’s permission, and if she agreed, she released her dower interest in the sold property. If Kip sold the property without her release, then the buyer took the property subject to Alice’s dower interest if she survived Kip’s death. Thus, by operation of law, when Kip married Alice, a penniless, domestic of questionable but still colored racial origins, he flung open some of the Rhinelander fortune and property holdings to a blood, low society stranger. Yet, because New York had limited fault-based pleadings for either a divorce, which was adultery, or annulment, which has material misrepresentation, retired Judge Isaac Mill and Leon Jacobs, Kip’s family retained lawyers, sought annulment for racial concealment. It’s a tactic that Philip had learned directly or otherwise in the legal maelstrom that cast William into filial oblivion. So, was Philip Rhinelander driven by Plymouth-Rock arrogance or by material high-mindedness coupled with racial insecurity?
After all, Rhinelander v. Rhinelander was held in the 1920s when Jim Crow and its offspring like Eugenics rabidly stalked the country. It took place before Perez v. Sharpe (1948), which denied a marriage license to a biracial couple, until the California’s high court overturned it. It was after United States v. Bhagat Singh Thind (1923), in which the High Court denied immigration to a dark-skinned Brahman, who argued not for a common, every white man’s understanding of Caucasian, but for a more technical, anthropological one.
Yet, Smith-Pryor also noted that Property Rites was not just a non-fictional, legal historical narrative about a bygone era. One-part historical legal drama, it was also a current discourse, dealing with our extant struggles around racial, class, and wealth.
Given Property Rites apparent scope, I initially thought otherwise.
Then I recalled that in October 2009, Keith Bardwell, Justice of the Peace, Tangihaposa Parish, Louisiana, had denied a marriage license to Beth Humphrey and Terence McKay, both of Hammond, Louisiana, because he utterly rejected biracial marriages. What really confused Bardwell was this question: why did white women want to marry black men? Apart from this existential and psychological query, Bardwell was burdened by an unconstitutional, non-legal social justification for rejecting such license applicants: it was bad for biracial children, often the product of such marriages, and he opined that when such marriages failed, often leaving their product, i.e., biracial children, in the lurch, it’d be grandparents’ custodial hands into which these unfortunate children would fall.
Hadn’t Bardwell heard of Loving v. Virginia (1968) or even perused the pages of Zablocki v. Redhail (1978)? Motivated by what others thought, especially his black friends, Bardwell frustrated, at least delayed, biracial couples by requiring them to go else where to get such a license.
Was Philip Rhinelander driven by Bardwell’s fears or cares? That is, was Philip attempting to buttress the clearly and increasingly erstwhile racial divide between whites and blacks? As more blacks migrated out of the South and found higher wages, better housing, and greater political rights in northern geographies, century-old, well-defended racial pinions faced slow oxidizing pressures. And so yes, Rhinelander turned on real race-based fears, or Philip’s legal team cynically exploited the usual fears of the existentially insecure masses, which for them made Rhinelander about their racial fears. Hence, Property Rites becomes both a historical narrative and contemporary critique. To present this reveal, especially in New York where racial rules did not bar such marriages, Smith-Pryor’s deft writing and keen insights in Property Rites thoroughly disentombed whatever racial bones had existed in the case’s records. And if Philip learned this strategic play at the knees of the Rhinelander patriarch, his father, then he gambled wisely that fears, money, and power could get proper results. As tabloid journalists waded in, poor and society whites pledged their fear-based sympathies. In the end, Philip would destroy an offense to God, and along the way, he’d drag Kip back to the filial nest where white, wealth, and power conjoined appropriately.
In Property Rites, Smith-Pryor deftly weaves race, power, privilege, and wealth together, which were especially clear in the post-trial unfoldings. In 1927, years after the jury had turned away Philip’s cynical race-based annulment claim, Alice sought a legal separation and support, alleging that Kip abandoned her and treated her cruelly and inhumanely. Having no ability to serve Kip, Alice’s petition died. After losing the annulment trial, Kip got a Nevada divorce, at one point seeking help under that state’s antimiscegenation laws. Urged perhaps by his family, he needed to quiet Alice’s claims against his money and property. Under Pennoyer v. Neff, a New York court held that Nevada’s 1929 divorce decree was powerless against Alice Jones’ support claims. In 1929, Alice filed a claim against Philip, alleging alienation of Kip’s affection, and demanding $500,000.00. In 1930, Alice pursued Kip again, now a Nevada citizen, seeking support, and a New York court ordered temporary support and later sequestered his property when he refused to comply. With Alice’s petitions, especially Philip’s reaction to the alienation claim and court’s sequestering ruling, money and property – the case’s stalking horses – became the Brailled text that even the socially and legally blind could read. From the beginning, that text had always been writ large for Philip and the Rhinelander clan. By Kip’s and the clan’s legal reaction, by which I mean the legal pawing at Nevada’s divorce laws, the fears that had driven the Rhinelander patriarch to disinherit William were now before them.
Even though Smith-Pryor had interlaced race and racial ideologies with subsidiary issues of society and wealth, the Kip-Alice saga refined itself in later years into chess-like moves to protect the Rhinelander purse. As such, property and preventing wealth transfers through common law mechanisms like dower were not subsidiary but primary forces. It was these forces that were Rhinelander v. Rhinelander’s maison script, now lifting the 1924 flat, two-dimensional legal pleadings into sharp relief.
What of the primacy of race and racial ideologies? Did they govern later negotiations? Perhaps, because we simply can’t reduce the noise of our biases; yet, in the Psychology of Consciousness (1972), Robert Ornstein would argue that the Rhinelander clan could tune it out, at least long enough to legally end the risk that Alice could impact how the Rhinelander clan did business. With Alice’s order for temporary support, the sequestration of Kip’s property and income, and her claim for $500,000.00 against Philip, they had to focus. They had to get to the issues that drove Philip’s father to truly humiliate William: money and the privilege that it purchased. In the deal, where race and racial ideologies played an ever decreasing if no role, they released each other’s property interest, even though Alice had nothing to risk or lose. Under this economic and financial deal, Alice would abandon her then existing claims, and she would extinguish “all rights or claims of dower, inheritance and descent, and all rights or claims to a distributive share of his [Leonard’s] personal estate, and all other rights and interests or claims in any manner arising or accruing out of the marriage relation.” The specter of race and racial ideologies did not occupy a seat at the table. It may have hovered in the room. Money, wealth, power, and the loss of it were whips on Philip’s privileged flesh. It drove Philip’s father to kill William symbolically. In the end, the Rhinelander had to shield their raison d’etre from any offending invader whether poor, Irish or Colored.
Now, back to Philip. It is clear that the Rhinelanders were elite snobs, who viewed other non-society folks through downcast eyes. Despite such elitism and perhaps racism, Kip could sow his royal oats with racial filth and secretly entertain other flirtations. However, he could not marry low caste or racial trash. That was William’s and Kip’s unpardonable offenses. And these breaches of social etiquette and racial codes were most threatening to the Rhinelander clan because they carried unacceptable wealth implications. Hence, in a choice between love, tenderness, and happiness on the one hand, and power, wealth and status on the other, William and Kip had to embrace the family credo: absens haeres non erit (an absent person will not inherit). This credo required William’s “death” because it kept Margueretta and her children from getting anything. Yet, I imagine that Philip suffered greatly when William was so humiliated and roundly rejected, and so for his own selfishness, he’d not visit such disgrace on Kip, who by all appearances was not as resolute as William. Rather than destroyed Kip, Philip targeted Alice. Philip cynically used race and racial ideologies. Slight diminution of Rhinelander wealth by Alice survived Kip would garner no sympathetic appeal. (Alice’s annuity of $3,600.o0 per year amounted to 0.004 of Philip Rhinelander’s gross estate.) Racism coupled with a dark, wily vamp who stole her way into an easily influenced Kip’s heart would sell. Such a theory might sway a proper jury. It certainly sold lots of newspapers. If Philip used race and racial ideologies cynically, even if he were privately a racist snob, then something else, even besides property and wealth, was at stake. After privileging race and racial ideologies in her argument, and after interlacing them deftly with culture, privilege, and property, Smith-Pryor hints at other equally powerful motives for Rhinelander v. Rhinelander. However, she doesn’t gumshoe these pulp-novel threads down the mental dark allies where they scurry and hide.
What could be more powerful than race and racial ideologies, especially in a legal narrative that culturally situated in the Jim Crow 1920s, and more pointedly, what scurries and hides in the recesses of our minds? Typical of the times, the Rhinelander fathers were rulers, and they more than likely engaged in emotional if not physical maltreatment of their children. Consider what William risked. He risked everything for love, emotional touch, and real companionship. He wanted to marry not for more money but for love. Despite his father’s appeal to either not marry her or to abandon her after he did, William, who was named after his father, did not relent, having been perhaps ordered about and humiliated for the last time. For his refusal, William humiliated his son by denying him what he clearly viewed as vital to the Rhinelander clan: money, society, and power.
Consider Kip and the effects of his maltreatment. He suffered a stutter, which we know today at the very least suggests emotional abuse. He was more than likely emotionally broken. For example, Alice’s letter reveals her frustration with Kip’s fear, inability, or unwillingness to stand up to his father, Philip. Even if she were cynically motivated, she pled with him to take control of his own life. Irked by Kip’s diffidence, Alice wrote: “I will help you fight [your father] . . . . If you only had a trade, and you would not after look forward, for your father’s help.”
Another effect of emotional maltreatment was Kip’s learning challenges and physical awkwardness. Kip, taught by private tutors, was a slow but an eventual learner. Judge Mill and Leon Jacobs relied on Kip’s emotional challenges to argue that Alice had easily duped him. Less than 18 years old, and perhaps exhibiting too few fruits of his father’s efforts, Philip “dropped him off at a Connecticut institute for nervous and mental disorders and never visited him.” Philip either didn’t care about Kip, or he’d never forged a close, emotionally supportive relationship with his son. Regardless, Kip had to feel abandoned, perhaps again. If he had an emotional ally and supporter, it was Kip’s mother, Adelaide Kip, who died unexpectedly from burns when he was 12. This sudden loss would have been bewildering and traumatizing, especially if he were different from his siblings, not close to his father, and in need of special care and emotional feeding. If Philip at the very least emotionally maltreated him, then Kip also lost in his mother a protector. Adelaide thus would have been Kip’s “helping witness.” According to Alice Miller, a helping witness is:
someone who acts (routinely, or even once at a critical time) with kindness toward the child and who somehow, by looking into the child's eyes, shows the child another way to live and be. This helper may have no idea of his or her role but nonetheless acts as a counterweight to the cruelty or neglect a child experiences.
According Alice Miller’s For Your Own Good (2002), the “helping witness” offers love, compassion, and kindness to the maltreated child, so that she does not completely identify with her tormentor, and thus believe that the world at large is violent and must be dealt with accordingly. By the time Adelaide passed, Kip had already experienced life-shaping maltreatment, even if his mother blunted her husband’s power to thoroughly poison him. Stuttering thus reveals the emotional and psychological effect of Philip’s suffocating control and perhaps emotional indifference. Although he had no conscious ill will toward Philip, Kip’s body retained a memory of the repression, which impacted his ability to speak fluently and forcefully. This inability confessed Kip’s willingness to suppress what his body knows. Kip, in order to live with his parents, especially Philip, and around his siblings, had to suppress his hurt and angry feelings, which is self-denial and self-deception. Based on The Body Never Lies (2005), Alice Miller would argue that Kip “emotional traumas, repressed humiliation, and bottled rage can manifest themselves as serious adult health problems.”
Eventually, Kip’s self-deception caught up to him. He’d done as he was told. Dropping petitions and releasing all claims, Alice made the deal, and she submitted to the Nevada courts. They were finally divorced. She’d surrendered the Rhinelander brand. Philip’s wealth and the Rhinelander holdings were secured from this interloper. Alice agreed to an annuity, unfortunately without adjustments for present value. He and Alice never lived together again. Yet, I believe that Kip actually loved Alice. In her, he perhaps found what was lost in his mother’s sudden passing: love, support, acceptance, compassion, and strength. And yet, Kip kept repressed his deep pain over his childhood maltreatment and the then-present realization that he was controlled, weak, and broken, especially in having to give up Alice’s love. After the deal making, Kip worked for his father, and by the time he died at a very young age, he suffered from bloating, pneumonia, and perhaps deep loneliness. Having repressed his true feelings, Kip suffered lung ailments, which eventually suffocated him.
Despite what he suffered and how he lived, Kip unconsciously wanted to live an authentic life. By simply viewing the on-and-off again relationship between Kip and Alice through a racialized lens, Smith-Pryor’s narrative and analysis corral Kip and Alice’s amorous and nuptial doings simply within Jim Crow sensibilities, thus permitting us to downplay their powerful psychological and complex existential features. Indeed, Philip did control Kip and perhaps his other children with a powerful hand and economic blackmail. Alice thought of Kip as too yielding to his father’s wishes, especially because they kept Kip away from her. Yet, despite Kip’s apparent masochistic personality, which gave him a more subservient and surrendered acceptance of his father’s overpowering style, Stephen Johnson’s Character Styles (1994) would argue that Kip was really passive-aggressive and spiteful. Smith-Pryor use of the personal data between Kip and Alice revealed that he could be as controlling of her as he was perhaps controlled by his father. In this sense, Kip was not devoid of personal power; he’d rather deploy it in a non-confrontational way. For example, Kip, through a letter read by the Rhinelander lawyer, encouraged Alice to fight, and in so doing, Kip indirectly brought notoriety and ill-repute to Philip and the Rhinelander clan. Second by encouraging Alice to fight back, Kip indirectly placed at risk what Philip cherished more than he loved his own children: money, property, and wealth. Third, Kip also indirectly exposed his father to Alice’s alienation of affection claim for $500,000.00, and along with the judge’s sequestration of Kip’s income and property within New York, Philip begrudgingly sent his lawyer to the bargaining table. In this way, while he looked weak, withdraw, and diffident, Kip knew what frightened Philip, and rather than suffer the fate that befell his uncle, William, Kip drew Philip into a no-win legal battle with Alice, who he knew was strong and determined, and to the extent that he viewed Adelaide and Alice as genuinely devoted to his happiness and well-being, then Kip attempted to pay homage to both by inflicting a grievous wound in Philip’s soft underbelly: money.
In Rhinelander v. Rhinelander’s legal historical drama, do race and racial ideologies matter? Of course, they do. As Smith-Pryor aptly uncovers, this case and its handlers just exploited the cesspool of eugenics. It was not ultimately about these distractions, for the real soft underbelly was preventing Alice from relying on dower to influence the Rhinelander holdings and its wealth accretions. So, while race and racial ideologies were critically indispensable stage props, the case’s chorus was money and property, which posed characters and put words in their mouths. Together, race, racial ideologies, and property drove the case’s legal theory and courtroom tactics. But property was this play’s central character, which only takes on added meaning in Property Rites if Smith-Pryor would have followed the existential breadcrumbs that laid about this critically important legal narrative.
Yet, if race, society, whiteness, and property are the soft underbelly of Rhinelander v. Rhinelander, Smith-Pryor’s Property Rites shares a table at which other great luminaries like Sharon Davies, Rising Road (2009) and Kevin Boyle, Arc of Justice (2004) eat silver-plated dinners. In Rising Road (2009), Sharon Davies exquisitely accounts the race, whiteness, and religious context in which Edwin Stephenson, a Methodist minister, murdered James Doyle, a Catholic priest, after he married Stephenson’s daughter, Ruth, to Pedro Gussman, a Puerto Rican immigrant and practicing Catholic. As the Rhinelander clan had done to protect William and to annul his marriage to Margueretta, the future Supreme Court Justice Hugo Black argued that Stephenson was temporarily insane, and then he attempted to distract the jury with religious hysteria and with baiting claims that Pedro was really a “Negro.” In Arc of Justice (2005), Kevin Boyle’s award winning treatment masterfully retells the trial of Dr. Ossian Sweet and 10 others, including his wife Gladys, for the murder of Leon Breiner after a neighborhood improvement association and a mob of at least 600 surrounded his newly bought bungalow, all in the hopes of keeping this Detroit neighborhood lily white. In the masterful hands of Clarence Darrow, Sweet and the other defendants were acquitted, but having lost his infant daughter and shortly thereafter his wife, he was never the same. And despite his financial success, he declined, sold his house to another black family, moved into a flat above his pharmacy in the ghetto, and eventually put a bullet in his head.
Notwithstanding its overlooked but critically important and driving psychological and existential elements, which add but don’t detract from this contextualized work, Smith-Pryor’s Property Rites will be recognized for its textual richness, deep research, moving prose, and analytical power.
Copyright © 2010 by Reginald Leamon Robinson. Professor of Law, Howard Law School, Washington, DC. B.A., Howard University (Phi Beta Kappa, Magna Cum Laude), 1981; M.A., The University of Chicago (Political Science), 1983; Exchange Scholar (Political Science & Economics), 1984-85; J.D., The University of Pennsylvania, 1989. Of course, the politics and errata belong exclusively to me.
