Читать книгу Race Distinctions in American Law - Gilbert Thomas Stephenson - Страница 13

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“I had not been long engaged in the study of the race problem when I found myself face to face with a curious and seemingly absurd question: ‘What is a Negro?’” said Mr. Baker.^[8]

Absurd as the question apparently is, it is one of the most perplexing and, at times, most embarrassing that has faced the legislators and judges.

If race distinctions are to be recognized in the law, it is essential that the races be clearly distinguished from one another. If a statute provides that Negroes shall ride in separate coaches and attend separate schools, it is necessary to decide first who are included under the term “Negroes.” It would seem that physical indicia would be sufficient, and, in most instances, this is true. It is never difficult to distinguish the full-blooded Negro, Indian, or Mongolian one from the other or from the Caucasian. But the difficulty arises in the blurring of the color line by amalgamation. The amount of miscegenation between the Mongolian and other races represented in the United States is negligible; but the extent of intermixture between the Caucasian and the Negro, the Negro and the Indian, and the Caucasian and the Indian is appreciable, and problems arising from it are serious.

It is absolutely impossible to ascertain the number of mulattoes—that is, persons having both Caucasian and Negro blood in their veins—in the United States. Mr. Baker^[9] says: “I saw plenty of men and women who were unquestionably Negroes, Negroes in every physical characteristic, black of countenance with thick lips and kinky hair, but I also met men and women as white as I am, whose assertions that they were really Negroes I accepted in defiance of the evidence of my own senses. I have seen blue-eyed Negroes and golden-haired Negroes; one Negro girl I met had an abundance of soft, straight, red hair. I have seen Negroes I could not easily distinguish from the Jewish or French types; I once talked with a man I took at first to be a Chinaman but who told me he was a Negro. And I have met several people, passing everywhere for white, who, I knew, had Negro blood.”

A separate enumeration of mulattoes has been made four times—in 1850, 1860, 1870, and 1890 respectively. The census authorities themselves said that the figures were of little value, and any attempt to distinguish Negroes from mulattoes was abandoned in the census of 1900. If a person is apparently white, the census enumerator will feel a delicacy in asking him if he has Negro blood in his veins. If the enumerator does ask the question and if the other is honest in his answer, it is often that the latter does not know his own ancestry. Dr. Booker T. Washington, for instance, has said that he does not know who his father was.^[10] Marital relations among Negroes during slavery were so irregular, and illicit intercourse between white men and slave women was so common that the line of ancestry of many mulattoes is hopelessly lost. But Mr. Baker makes the rough estimate, which doubtless is substantially correct, that 3,000,000 of the 10,000,000 (circa) Negroes are visibly mulattoes. This one third of the total Negro population represents every degree of blood, of color, and of physical demarcation from the fair complexion, light hair, blue eyes, thin lips, and sharp nose of the octoroon, who betrays scarcely a trace of his Negro blood, to the coal-black skin, kinky hair, brown eyes, thick lips, and flat nose of the man who has scarcely a trace of Caucasian blood. It is this gradual sloping off from one race into another which has made it necessary for the law to set artificial lines.

The difficulty arising from the intermixture of the races was realized while the Negro was still a slave. Throughout the statutes prior to 1860, one finds references to “persons of color,” a generic phrase including all who were not wholly Caucasian or Indian. This antebellum nomenclature has been brought over into modern statutes. It is surprising to find how seldom the word “Negro” is used in the statutes and judicial decisions.

Some States have fixed arbitrary definitions of “persons of color,” “Negroes,” and “mulattoes”; others, having enacted race distinctions, have then defined whom they intended to include in each race. This has been done particularly in the laws prohibiting intermarriage. The Constitution of Oklahoma^[11] provides that “wherever in this Constitution and laws of this State, the word or words, ‘colored,’ or ‘colored race,’ or ‘Negro,’ or ‘Negro race,’ are used, the same shall be construed to mean, or apply to all persons of African descent. The term ‘white’ shall include all other persons.”

Taking up these definitions in the various States—many of them included within broader statutes—one finds that Alabama,^[12] Kentucky,^[13] Maryland,^[14] Mississippi,^[15] North Carolina,^[16] Tennessee,^[17] and Texas^[18] define as a person of color one who is descended from a Negro to the third generation inclusive, though one ancestor in each generation may have been white. The Code Committee of Alabama of 1903 substituted “fifth” for “third,” so that at present in that State one is a person of color who has had any Negro blood in his ancestry in five generations.^[19] The laws of Florida,^[20] Georgia,^[21] Indiana,^[22] Missouri,^[23] and South Carolina^[24] declare that one is a person of color who has as much as one-eighth Negro blood: the laws of Nebraska^[25] and Oregon^[26] say that one must have as much as one-fourth Negro blood in order to be classed with that race. Virginia^[27] and Michigan apparently draw the line in a similar way. In Virginia, a marriage between a white man and a woman who is of less than one-fourth Negro blood, “if it be but one drop less,” is legal. A woman whose father was white, and whose mother’s father was white, and whose great-grandmother was of a brown complexion, is not a Negro in the sense of the statute.^[28] In 1866, the court of Michigan, under a law limiting the suffrage to “white male citizens,” held that all persons should be considered white who had less than one-fourth of African blood.^[29] That State gave the right to vote also to male inhabitants of Indian descent, but its court held that a person having one-eighth Indian blood, one-fourth or three-eighths African, and the rest white was not included in that class.^[30] Ohio limited the suffrage to white male citizens and made it the duty of judges of election to challenge any one with a “distinct and visible admixture of African blood,” but the latter requirement was held unconstitutional in 1867,^[31] the court saying that, where the white blood in a person predominated, he was to be considered white. This definition is interesting because it is the only instance found of a court’s saying that a person with more than half white blood and the rest Negro should be considered white. In contrast with this is the following sweeping definition laid down in the Tennessee statute: “All Negroes, Mulattoes, Mestizoes,^[32] and their descendants, having any African blood in their veins, shall be known in this State as ‘Persons of Color.’”^[33] Arkansas also, in its statute separating the races in trains, includes among persons of color all who have “a visible and distinct admixture of African blood.”^[34]

In everyday language, a mulatto is any person having both Caucasian and Negro blood. But several States have defined “mulatto” specifically. The Supreme Court of Alabama^[35] held, in 1850, that a mulatto is the offspring of a Negro and a white person, that the offspring of a white person and a mulatto is not a mulatto; but this definition was enlarged in 1867^[36] to include anyone descended from Negro ancestors to the third generation inclusive, though one ancestor in each generation be white. It has been seen already that this was recently extended to the fifth generation. The law of Missouri^[37] defines a mulatto thus: “Every person other than a Negro, any one of whose grandfathers or grandmothers is or shall have been a Negro, although his or her other progenitors, except those descending from the Negro, may have been white persons, shall be deemed a mulatto, and every such person who shall have one-fourth or more Negro blood shall in like manner be deemed a mulatto.”

Some States have allowed facts other than physical characteristics to be presumptive of race. Thus, it has been held in North Carolina^[38] that, if one was a slave in 1865, it is to be presumed that he was a Negro. The fact that one usually associates with Negroes has been held in the same State proper evidence to go to the jury tending to show that he is a Negro.^[39] If a woman’s first husband was a white man, that fact, in Texas,^[40] is admissible evidence tending to show that she is a white woman.

One may ascertain how some of the States define the other races from their laws against miscegenation. Thus, Mississippi, in prohibiting intermarriage between Caucasians and Mongolians, includes one having as much as one-eighth Mongolian blood. Oregon makes its similar law applicable to those having one-fourth or more Chinese or Kanakan^[41] blood, or more than one-half Indian blood. Thus, three-eighths of Indian blood would not be sufficient to bar a man from intermarriage with a Caucasian, but one-fourth Negro, Chinese, or Kanakan blood would.

The above are the laws which define the races. The interpretation of them is a different question. Some statutes say that one is a person of color—in effect, a Negro—if he is descended from a Negro to the third generation inclusive, though one ancestor in each generation may have been white; others define as a person of color a man who has as much as one-eighth Negro blood; and still others, one who has as much as one-fourth Negro blood.

The following diagram will probably clarify these definitions:

Suppose it is desired to ascertain whether the son X is a white person or a Negro. The first generation above him is that of his parents, M and N. If either of them is white and the other a Negro, X has one-half Negro blood and would be considered a Negro everywhere. The second generation is that of his grandparents, I, J, K, and L. If any one of them is a Negro and the other three white, X has one-fourth Negro blood, and would be considered a Negro in every State except possibly Ohio. The third generation is that of his great-grandparents, A, B, C, D, E, F, G, and H. If any one of these eight great-grandparents is a Negro, X has one-eighth Negro blood and would be considered a Negro in every State which defines a person of color as one who has one-eighth Negro blood or is descended from a Negro to the third generation inclusive. Suppose, for instance, the great-grandfather A was a Negro and all the rest of the great-grandparents were white. The grandfather I would be half Negro; the father M would be one-fourth Negro; and X would be one-eighth Negro. Thus, though of the fourteen progenitors of X only three had Negro blood, X would nevertheless be considered a Negro.

In the above illustrations only one of the progenitors has been a Negro and his blood has been the only Negro blood introduced into the line. Suppose, however, that there is Negro blood in both branches of the family, as where a mulatto marries a mulatto or a mulatto marries a Negro. One with a mathematical turn of mind may take these three generations and work out the various other combinations which would give X one-half, one-fourth, one-eighth, or any other fraction of Negro blood.

It is safe to say that in practice one is a Negro or is classed with that race if he has the least visible trace of Negro blood in his veins, or even if it is known that there was Negro blood in any one of his progenitors. Miscegenation has never been a bridge upon which one might cross from the Negro race to the Caucasian, though it has been a thoroughfare from the Caucasian to the Negro. Judges and legislators have gone the length of saying that one drop of Negro blood makes a man a Negro, but to be a Caucasian one must be all Caucasian. This shows very clearly that they have not considered Negro blood on a par with Caucasian; else, race affiliation would be determined by predominance of blood. By the latter test, if one had more Negro blood than white, he would be considered a Negro; if more white than Negro, a Caucasian. Therefore, at the very threshold of this subject, even in the definitions of terms, one discovers a race distinction. Whether it is a discrimination depends upon what one considers the relative desirability of Caucasian and Negro ancestry.