Race Distinctions in American Law

by Gilbert Thomas Stephenson

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.

PROPER NAME FOR BLACK MEN IN AMERICA

Having considered how the law defines that heterogeneous group of people called Negroes, one is brought face to face with the question: What, in actual practice, is the proper name for the black man in America? Is it “Negro?” Is it “colored person?” Is it “Afro-American?” If not one of these, what is it? Among the members of that group, the matter of nomenclature is of more than academic interest. Thus, Rev. J. W. E. Bowen, Professor of Historical Theology at Gamman Seminary, Atlanta, and editor of The Voice of the Negro, in 1906, published an article in that paper with the pertinent title, “Who are We?”

The ways of speaking of members of the Negro race are various. In the laws, as has been shown, they are called “Negroes,” “Persons of Color,” “Colored Persons,” “Africans,” and “Persons of African Descent”—more often “Persons of Color.” By those who would speak dispassionately and scientifically they are called Negroes and Afro-Americans. Those who are anxious not to wound the feelings of that race speak of them as “Colored People” or “Darkies”; while those who would speak contemptuously of them say “Nigger” or “Coon.” “Nigger” is confined largely to the South; “Coon,” to the rest of the country. Again, one occasionally finds “Blacks” and “Black Men” in contradistinction to “Whites” and “White Men.”

The question of the proper name for persons of African descent was brought into prominence in 1906. In that year a bill was laid before Congress relative to the schools of the City of Washington, which provided that the Board of Education should consist of nine persons, three of whom should be “of the colored race.” Representative Thetus W. Sims, of Tennessee, objected to the phrase on the ground that it would include “Indians, Chinese, Japanese, Malays, Sandwich Islanders, or any persons of the colored race,” and insisted that “Negroes” or “persons of the Negro race” should be substituted in its place. He wrote to Dr. Booker T. Washington, as one of the leaders of the Negro race, asking his views as to the proper word. The following is part of his reply: “... It has been my custom to write and speak of the members of my race as Negroes, and when using the term ‘Negro’ as a race designation to employ the capital ‘N.’ To the majority of the people among whom we live I believe this is customary and what is termed in the rhetorics ‘good usage.’... Rightly or wrongly, all classes have called us Negroes. We cannot escape that if we would. To cast it off would be to separate us, to a certain extent, from our history, and deprive us of much of the inspiration we now have to struggle on and upward. It is to our credit, not to our shame, that we have risen so rapidly, more rapidly than most other peoples, from savage ancestors through slavery to civilization. For my part, I believe the memory of these facts should be preserved in our name and traditions as it is preserved in the color of our faces. I do not think my people should be ashamed of their history, nor of any name that people choose in good faith to give them.”[^[42]]

Representative Sims’s objection to the phrase “of the colored race” precipitated a discussion throughout the country. The New York Tribune[^[43]] made a canvass of a great many prominent Negroes and white persons to ascertain what they thought the Negro should be called. The result of its inquiry is this: An average of eleven Negroes out of twenty desired to be spoken of as Negroes. The other nine spurned the word as “insulting,” “contemptuous,” “degrading,” “vulgar.” Two argued for “Afro-American,” two for “Negro-American,” one for “black man,” and one was indifferent so long as he was not called “Nigger.” Of the white men interviewed, ten out of thirteen, on an average, preferred the word “Negro.” The Negroes made a specially strong plea for capitalizing the word “Negro,” saying that it was not fair to accord that distinction to their dwarfish cousins, the Negritos in the Philippines, and to the many savage tribes in Africa and deny it to the black man in America. They were also strongly opposed to the word “Negress” as applied to the women of their race. This, they asserted, is objectionable because of its historical significance. For in times of slavery, “Negress” was the term applied to a woman slave at an auction, in contradistinction to “buck,” which referred to a male slave.

E. A. Johnson, Professor of Law in Shaw University, North Carolina, said: “The term ‘Afro-American’ is suggestive of an attempt to disclaim as far as possible our Negro descent, and casts a slur upon it. It fosters the idea of the inferiority of the race, which is an incorrect notion to instill into the Negro youth, whom we are trying to imbue with self-esteem and self-respect.”

Rev. J. W. E. Bowen, to whom reference has already been made, said: “Let the Negroes, instead of bemourning their lot and fretting because they are Negroes and trying to escape themselves, rise up and wipe away the stain from this word by glorious and resplendent achievements. Good names are not given; they are made.”