Читать книгу Race Distinctions in American Law - Gilbert Thomas Stephenson - Страница 16

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There are certain words which are so universally considered injurious to a person in his social or business relations if spoken of him that the courts have held that the speaker of such words is liable to an action for slander, and damages are recoverable even though the one of whom the words were spoken does not prove that he suffered any special damage from the words having been spoken of him. The speaking of such words is said to be actionable per se. In short, all the world knows that it is injurious to a man to speak such words of him, and the court does not require proof of facts which all the world knows. Such words are (1) those imputing an infamous crime; (2) those disparaging to a person in his trade, business, office, or profession; and (3) those imputing a loathsome disease. Thus, to say that a man is a murderer is to impute to him an infamous crime, and if he brings a suit for slander, it is not necessary for him to prove that he has been damaged by the statement. The result is the same if one says that a person will not pay his debts, because that injures him in his profession or business; or that a man has the leprosy, because that is imputing to him a loathsome disease.

From early times, it has been held to be slander, actionable per se, to say of a white man that he is a Negro or akin to a Negro. The courts have placed this under the second class—that is, words disparaging to a person in his trade, business, or profession. The first case in point arose in South Carolina^[44] in 1791, when the courts held that, if the words were true, the party (the white person) would be deprived of all civil rights, and moreover, would be liable to be tried in all cases, under the “Negro Act,” without the privilege of a trial by jury, and that “any words, therefore, which tended to subject a citizen to such disabilities, were actionable.” In 1818, it was held actionable by a court of the same State to call a white man’s wife a mulatto.^[45] But an Ohio^[46] court, the same year, held that it was not slander, actionable per se, to charge a white man with being akin to a Negro inasmuch as it did not charge any crime or exclude one from society. The only explanation, apparently, of this conflict between the decisions of South Carolina and Ohio is that in the latter State it was not considered as much an insult to impute Negro blood to a white man as in the former. In North Carolina,^[47] in 1860, there was the surprising decision that it was not actionable per se to call a white man a free Negro, even though the white man was a minister of the gospel.

The Supreme Court of Louisiana,^[48] in 1888, said: “Under the social habits, customs, and prejudices prevailing in Louisiana, it cannot be disputed that charging a white man with being a Negro is calculated to inflict injury and damage.... No one could make such a charge, knowing it to be false, without understanding that its effect would be injurious and without intending to injure.”

In 1900, a Reverend Mr. Upton delivered a temperance address near New Orleans. The reporters, desiring to be complimentary, referred to him as a “cultured gentleman.” In the transmission of the dispatch by wire to the New Orleans paper, the phrase was, by mistake, changed to “colored gentleman.” The Times-Democrat of that city, unwilling to refer to a member of the Negro race as a “colored gentleman,” changed it to “Negro,” and that was the word finally printed in the report. As soon as he learned of the mistake, the editor of the paper duly retracted and apologized. But Mr. Upton, not appeased, brought a suit for libel and recovered fifty dollars damages.^[49]

The News and Courier, of Charleston, South Carolina, in 1905, in reporting a suit by A. M. Flood against a street car company, referred to Mr. Flood as “colored.” The latter brought suit against the newspaper and recovered damages. In the course of its opinion, the court said: “When we think of the radical distinction subsisting between the white man and the black man, it must be apparent that to impute the condition of the Negro to a white man would affect his [the white man’s] social status, and, in case anyone publish a white man to be a Negro, it would not only be galling to his pride, but would tend to interfere seriously with the social relation of the white man with his fellow white men; and, to protect the white man from such a publication, it is necessary to bring such charge to an issue quickly.”^[50] The court adds that its decision does not violate the Amendments to the Federal Constitution, for these do not refer to the social condition of the two races, but serve rather to give the two races equal civil and political rights. Finally, the court says, quoting People v. Gallagher: “... if one race be inferior to the other socially, the Constitution of the United States cannot put them on the same plane.”^[51]

Where laws separating the races in railroad trains and street cars are in force, and the duty devolves upon the conductors to assign passengers of the two races to their respective coaches or compartments, it is surprising that they do not more often make the mistakes of assigning bright mulattoes to the white coach and dark-skinned white persons to the colored. There are several instances where the latter mistake has been made. One would not expect a mulatto to resent being assigned to the white coach and nothing would come of it, unless some white passenger recognized him as being a Negro and objected; but one would expect a white person to resent being assigned to the “Jim Crow” compartment.

In Atlanta, in 1904, a certain Mr. Wolfe and his sister boarded a street car and took seats in the part of the car reserved for white passengers. The conductor asked them to move back, and when they asked the reason, he answered that the rear of the car was for colored passengers. The lady asked if he thought they were colored, to which he replied: “Haven’t I seen you in colored company?” Mr. Wolfe demanded an apology, and later brought suit against the company. The court held that the street car company was liable, and that the good faith of the conductor in honestly thinking that they were Negroes would serve only in mitigation of damages. Two judges were of opinion that the company would not be liable if the conductor used “extreme care and caution” to ascertain the race of the passengers. The court held that it would take judicial notice of the social status of the two races and of their respective superiority and inferiority, saying: “The question has never heretofore been directly raised in this State as to whether it is an insult to seriously call a white man a Negro or to intimate that a person apparently white is of African descent. We have no hesitation, however, after the most mature consideration of every phase of the question, in declaring our deliberate judgment to be that the wilful assertion or intimation embodied in the declaration now before us constitutes an actionable wrong. We cannot shut our eyes to the facts of which courts are bound to take judicial notice. Certainly every court is presumed to know the habits of the people among which it is held, and their characteristics, as well as to know leading historical events and the law of the land. To recognize inequality as to the civil or political rights belonging to any citizen or class of citizens, or to attempt to fix the social status of any citizen either by legislation or judicial decision, is repugnant to every principle underlying our republican form of government. Nothing is further from our purpose. Under our institutions ‘every man is the architect of his own fortune.’ Every citizen, white and black, may gain, in every field of endeavor, the recognition his associates may award. That is his right, and his own concern. But the courts can take notice of the architecture without intermeddling with the building of the structure. It is a matter of common knowledge that, viewed from a social standpoint, the Negro race is in mind and morals inferior to the Caucasian. The record of each from the dawn of historic times denies equality. The fact was recognized by two of the leaders on opposite sides of the question of slavery, Abraham Lincoln and A. H. Stephens.”^[52]

The following is a recent case arising in Kentucky, in which it was held that it is not slander per se to call a white person a Negro: A white woman entered a coach set apart for white people. The passengers therein complained that she was a Negro, and the brakeman, on hearing their remarks, asked her to go into the next coach. When, upon reaching the other coach, she found that it was set apart for Negroes, she left the train, which had not yet started from the station. She met the conductor, who, upon hearing her explanation, permitted her to go her journey in the white coach. Later, she brought suit against the railroad company and recovered a judgment for four thousand dollars. Upon appeal, the judgment of the lower court was reversed, the higher court saying: “What race a person belongs to cannot always be determined infallibly from appearances, and mistake must inevitably be made. When a mistake is made, the carrier is not liable in damages simply because a white person was taken for a Negro, or vice versa. It is not a legal injury for a white person to be taken for a Negro. It was not contemplated by the statute that the carrier should be an insurer as to the race of its passengers. The carrier is bound to exercise ordinary care in the matter, but if it exercises ordinary care, and is not insulting to the passenger, it is not liable for damages.”^[53]

Probably the most recent case on the subject is one which arose about two years ago in Virginia. A certain Mrs. Stone boarded a train at Myrtle, Virginia. In spite of her protests, the conductor compelled her to go into the “Jim Crow” coach, thinking that she was a Negro. After she had entered the car, a Negro passenger recognized her and said, “Lor’, Miss Rosa, this ain’t no place for you; you b’long in the cars back yonder.” Mrs. Stone rode on to Suffolk, the next station, and left the train. She sued the railroad company for one thousand dollars damages. It appeared that Mrs. Stone was much tanned: this probably caused the conductor to mistake her for a Negro.

It will have been noticed that all the courts which have held it actionable per se to call a white person a Negro have been in the Southern States. It is doubtful whether the courts in other sections would take the same view, and even Kentucky, a Southern State, has refused so to do. The attitude of the court depends upon whether it is the consensus of opinion among the people of the community that it is injurious to a white man in his business and social relations to be called a Negro.

The above is clearly another race distinction. Although there are many decisions to the effect that it is actionable per se to call a white person a Negro, not one can be found deciding whether it would be so to call a Negro a white person. One event looks, in a measure, in this direction. The city of Asheville, North Carolina, in 1906, contracted with a printer to have a new city directory issued. The time-honored custom of the place was to distinguish white and Negro citizens by means of an asterisk placed before the names of all Negroes. After the directory had been distributed, it was found that asterisks had been placed before the names of two highly respected white citizens, thus indicating that they were of Negro lineage. From what has been seen, there is no doubt that this would found an action for libel. The newspaper report says: “On the heels of this suit brought by Mr. Lancaster [one of the white persons], it is said that Henry Pearson is seriously considering bringing suit against the same people because an asterisk was not^[54] placed before his name. Henry is a Negro. In fact he is one of the best-known Negroes in Asheville. He is at present proprietor of the Royal Victoria, a Negro hotel, and complains that he has been the object of many unpleasant jests since the publication of the directory, and likewise inquiries as to just ‘when he turned white.’ Pearson fears that if the report goes abroad that he is a white man it will damage his hotel, and that the Negroes who make his place headquarters and who pay into Henry’s hands many shekels will cease to patronize his hotel, and that his losses will be grievous.”^[55] This case is unique; whether it has been brought to court is as yet unknown. It is probable that to sustain his action it would be necessary for the Negro to prove special damage to his business; whereas Mr. Lancaster would not have to allege or prove any damage at all. But, save in such a case as the above, it would be hard to imagine a circumstance in which a court would hold that it is injurious to a Negro in his trade, business, office, profession, or in his social relations to be called a white man.