• PlessyvFerguson.pdf: PlessyvFerguson? .pdf

• StatevTreadaway.pdf: StatevTreadaway? .pdf

• StatevNewOrleansGreatNorthernRCo.pdf: StatevNewOrleansGreatNorthernRCo? .pdf

Racial Classifications of “Black” and “White” in American Legal and Social History

Introduction

Much significance has often been placed on a person’s race in American history—specifically on whether a particular person was black or white. Yet, it is less often discussed what constituted “black” or “white” during the time period in which the person lived. Racial classification, particularly with regard to those considered black and those considered white, has been an integral part of American legal and social history. In the beginning, classification was a means of differentiating the free or indentured from the slave, or superior from inferior, and thus the classifications for black have almost always been more inclusive than that for white. Racial classifications continued to play a prominent role in the shaping of American society even in the wake of slavery, as which group one was placed in by law and social perception could determine in much of the country whether one had to privilege to vote, whether one had access to adequate schooling, what facilities one might use in public spaces, and even who one could legally marry. For as long as the concept of race has been important to American society, so has the classification of human beings into specific categories.

Classifications During the Slave Era (1600-1863)

Attempts to classify blacks and whites began very early in American history, though in the beginning such classifications seem to have been more about separating blacks and whites who were in similar situations in society and expanding the class of slaves. A well-known aspect of American history is that while many Africans were brought over as slaves, there were also many whites brought over as indentured slaves, a temporary form of semi-slavery. Many feared the coalition of slaves, free blacks and indentured whites, with good reason. So from very early on in American society, efforts were made not only to classify blacks as slaves, thus increasing the slave population and decreasing the potential for a free black population, and to create laws to separate blacks and whites in social/sexual settings. These classifications showed a clear concern for the status of mixed race individuals, particularly those who had one free and one slave parent.

A 1662 act in Virginia (Act XII) stated: “Children got by an Englishman upon a Negro woman shall be bond or free according to the condition of the mother…”(1) Englishman in this situation is thought to have been synonymous with white. (2) Traditionally, English law at that time dictated that a child would take the status of his father (3), so the rules determining the freedom or slavery of the child of a white man and a slave woman were somewhat anomalous. Additionally, the laws in Virginia punished much more harshly white women who had sexual relations with black men than white men who had sexual relations with black women, charging her with fines or placing her into indentured servitude. (4) Presumably, this was because women were more guarded by family members at this time, and while the law dealt with the status of children of slave women, there were not similar laws to deal with the children of white women and slave men. As most women of African descent were brought to the Americas as slaves, and interracial relations between white men and black women were typically between masters and slaves, a system which gave racially mixed children the status of their mother typically created more slaves. This meant that interracial relations were less likely to increase the free black population that was feared in much of the south and more likely to produce a greater number of valuable slaves. Furthermore, specifically aligning the status of bi-racial children with their mother, so long as the mother was of African-descent, began a prevailing system of designating mixed raced individuals with lower social status and minorities, rather than with whites, regardless of the percentage of white blood running through their veins.

While such racial and social classifications had an obvious value to the southern states, southern states were not the only ones that legally distinguished between black and white and sought to classify mixed race individuals before the Civil War. In Connecticut, for instance, in 1860, the Supreme Court of Errors of Connecticut decided Johnson v. Norwich, a case dealing with the racial classification of a “quadroon.” (5) A “quadroon” was the name, both popular and legal, for a person that was a quarter black based on racial ancestry. (6) At that time in Connecticut, there was a law (Rev. Stat., tit. 55, § 6) that exempting “person[s] of color” from personal and property taxation. (7) The defendant in Johnson was a man of one quarter African blood who was testator to an estate and seeking to avoid the property taxes on that estate; he claimed that because he was of one quarter African blood, he counted as a “person of color” under the statute and should be exempt from taxes. (8) In deciding the case, the Court declared that to determine the legal meaning of the phrase “person of color,” which was not a term of art, it had to look at the phrase’s “common, ordinary and popular meaning.” (9) Ultimately, the Court decided that the phrase’s popular meaning included not only those of solely African descent, but also those who have in any part African heritage that is visibly discernible; thus, it stated, the tax exemption for a “person of color” applied to anyone of wholly or partly African descent that could prove that heritage and had “visibly the peculiar and distinctive color of the African race.” (10)

During this period, in both North and South, those of African heritage were classified according to their black ancestry, whether it provided a benefit, as was the case in Johnson v. Norwich, or a detriment, as was more commonly the case. Often, those classified as black or colored, as demonstrated by Johnson v. Norwich, had less black heritage than they did white. Yet, the common understanding of the word colored by the time of the Civil War included those who had any visible African descent at all.

"Jim Crowe" Classifications (1863-1954)

The end of the Civil War heralded massive Constitutional legal changes meant to create a more equal, less discriminatory society. With a Congress controlled by the northern victors of the Civil War and a subdued southern constituency, the Thirteenth, Fourteenth Amendments and Fifteenth Amendments were passed. While the Thirteenth Amendment freed all slaves from bondage, the Fourteenth and Fifteenth Amendments granted equal protection and voting rights without regard to race respectively. Given the grant of equal protection of the laws by the Fourteenth Amendment in particular, one might think that racial classifications under the law would cease to be a significant part of American society; yet, if anything, such classifications became even more important and stringent with the birth of the Jim Crowe laws.

In 1866, just a few years before the Fifteenth Amendment was passed, the Supreme Court of Michigan decided People v. Dean, a case over the alleged “illegal voting” of a non-white. (11) Under Michigan law at this time, the right to vote was restricted to white males. (12) In this case, Dean, a man of miniscule African ancestry, was charged with “illegal voting” for voting in an election despite not being “white.” (13) The majority in this case ultimately determined after a thorough consideration of similar case law in Michigan and other states that a person was white within the meaning of the Michigan constitution if they had less than a quarter of African blood, rejecting the argument that one should be considered white if he has more white blood than African. (14)

In 1896, the infamous case of Plessy v. Ferguson was decided by the US Supreme Court in a very different fashion. Plessy, the petitioner in that case, was convicted of violating Louisiana’s segregation laws; he had ridden in a white train car despite the fact that he was technically “colored.” (15) The interesting thing about Plessy was that he was seven eighths white; in fact, he could pass for completely white and was only caught by the conductor because Plessy chose to inform him that he was colored. (16) One of the arguments that Plessy presented to the Court was that because his African-American heritage was so minimal as to not even be discernible upon visual examination, he was entitled to all the privileges of a white man. (17) The Court disagreed. It felt that while there was a definite property right in the reputational benefit that came from being white, anyone with any admixture of African descent wasn’t entitled to such right, (18) though it did concede that it was up to each state individually to determine what percentage of African blood was necessary to exclude someone from the white race. (19)

A Louisiana case before the Louisiana Supreme Court, State v. Treadaway, offered an even more detailed and expansive examination of popular understandings of racial classifications during the Jim Crowe era. In that case, the court was given the task of determining whether a white man and a woman of one-eighth African blood, or an “octoroon,” had violated a Louisiana law prohibiting the cohabitation of a white person and a black person. (20) To decide, the court had to rule on whether an “octoroon” was a “person of negro or black race” under the statute. In order to find the popular meaning of the word “negro,” the court performed a comprehensive evaluation of dictionary definitions of the word “negro” and its synonyms in 1910. What follows are their findings: Webster’s International Dictionary, definition of the word ‘negro’:

“Negro. A black man, especially, one of a race of black or very dark persons who inhabit the greater part of tropical Africa, and are distinguished by crisped or curly hair, flat noses, and thick protruding lips; also any black person of unmixed African blood, wherever found.”

Id., definition of word “colored”: “Colored. (Ethnologically) Of some other color than white; specifically applied to negroes or persons having negro blood; as, a ‘colored man’; the ‘colored’ people.”

Century Dictionary, p. 3960, definition of word “negro”: A black man; specifically, one of a race of men characterized by a black skin and hair of a wooly or crisp nature. Negroes are distinguished from other races by various other peculiarities— such as the projection of the visage of the forehead; the prolongation of the upper and lower jaws; the small facial angle; the flatness of the forehead and of the hinder part of the head; the short, broad, and flat nose; and the thick projecting lips. The negro race is generally regarded as comprehending the native inhabitants of Sudan, Senegambia, and the region southward to the vicinity of the equator and the great lakes, and their descendants in America and elsewhere; in a wider sense, it is used to comprise also many other tribes further south, as the Zulus and the Kafirs. The word “negro” is often loosely applied to other dark or black skinned races, and to mixed breeds.”

Id., definition of the word “colored,” p. 1111: “Having a dark or black color of the skin; black or mulatto; specifically, in the United States, belonging wholly or partly to the African race; having or partaking of the color of the negro.” 29 Cyc. P. 661, definition of the word ‘negro’: “A black man descended from the black race of South Africa.” Id., definition of word “colored”: “Not a phrase of art, but often applied to black people, Africans, or their descendants, mixed or unmixed; persons of African descent or negro blood; persons of the negro race; persons who have any perceptible admixture of African blood.”

A. & E. E. of Law, p. 213, definition of “colored people”: “‘Colored’ or black people, African or their descendants, mixed or unmixed.”

In Zell’s Encyclopaedia, ‘negro’ is defined as follows: “A name properly applied to a race or variety of the human species, inhabiting the central portion of Africa, principally between the latitudes 10 degrees north and 20 degrees south, on account of some of their striking characteristics—their black color. They do not include Egyptians, Nubians, Abyssinians, etc., of the North, or Hottentots of the South African. Their characteristics are: Skin black, hair woolly, lips thick, nose depressed, jaws protruding, forehead retiring, proportions of the extremities abnormal.”

7 Encyclopaedia Britannica, p. 316, and also 7 Americanized Encyclopaedia Britannica, p. 4416, defined the word “negro” as follow: “Distinctly dark, as opposed to the fair, yellow, and brown varieties of mankind. The negro dominion originally comprised all Africa south of the Sahara; negro, members or the dark race whose original home is in the intertropical and subtropical regions of the Eastern hemisphere.”

Webster’s Dictionary (Thompson & Thompson Ed. 1907) p. 747, describes “negro” as follows: “A native or descendant of the black race of men in Africa. The name is never employed to the tawny or olive-colored natives of the northern coast of Africa, but to the most southern race of man, who is quite black.”

Standard Dictionary, definition of word “colored”: “Of a dark-skinned or non-Caucasian race; specifically, in the United States, of African descent, wholly or in part. Originally the epithet was applied only to those of mixed blood, making three classes of inhabitants—white, black, and colored.”

Id., definition of word “negro”: “One belonging to the Ulotrichi or woollyhaired type of mankind; a black man, especially of African blood, and particularly one belonging to the stock of Senegambia, Upper Guinea, and the Sudan. In North Carolina a person who has in his veins one-sixteenth or more of African blood.” (21)

In addition to common dictionary definitions of “negro” and “colored,” the court also looked at varying state court decisions and state statutes relating to the classification of black and mixed individuals. The court found that other state’s had used varying standards to determine when someone was black or colored under the law. A North Carolina Statute proclaimed that all those that had black ancestors up to the fourth generation away would be considered black, meaning that a person who was 1/16 black would be considered black under the statute. (22) Conversely, South Carolina classified those who had 1/8 or more black blood as black under its anti-miscegenation law, and Florida, Georgia, and Mississippi did the same. (23) Virginia, on the other hand, stated that those with ¼ or more of black blood should be considered black under law, and that anyone with less would not be. (24)

Given the lack of agreement on the definition of “negro” or “colored” within and without the state and a lack of a definition of “negro” within the contested statute itself, the Supreme Court of Louisiana in Treadaway ruled that the statute could not be read to include mixed persons such as mulattoes, quadroons, octoroons, etc., who had a significant amount of white blood. (25)

Interestingly, in the same year the Louisiana Supreme Court decided Lee v. New Orleans Great Northern Railway Co. with a very different outcome. In that case, a couple claiming to be white sought damages on behalf of their minor daughters, whom they also claimed were white under Louisiana law. (26) The law in question was one that created separate train facilities for coloreds and whites and made it a misdemeanor for a conductor to assign anyone to a coach for the wrong race. (27) The parents claimed that their girls, both white, were forced by the conductor to leave the train after refusing to move to a colored car. (28) The railroad, conversely, argued that the girls were not white because their maternal grandfather had been mixed, though whether of Native American or African descent no one could agree. (29) The court sided with the railroad. According to the court, the word colored applied to any person with “any appreciable mixture of African blood” at all. (30)

Though different states offered different understandings of the meaning of racial classifications and who qualified as white or colored, states generally agreed that there had to be a relatively small amount of African blood for a person to be considered white. Whether that amount was less than a quarter, less than an eighth, or such a small amount that the African heritage could not be visibly or historically discovered at all, it was clear that mixed individuals were much more likely to be considered “colored” or “negro” than white in both popular and legal contexts.

Modern Classifications

In the modern era, since Brown v. Board and the Civil Rights Act began moving us increasingly toward a “color-blind” society, legally-determined racial classifications have become less acceptable. Laws, whether state or federal, cannot constitutionally differentiate based on race unless they can pass strict scrutiny. Formal discrimination is no longer officially tolerated after Brown v. Board. In most cases, if race is requested, on applications for instance, it is usually done so for the purposes of affirmative action, and generally is based upon the applicants own self-identification rather than state based identification. However, if in recent years, there have still been problems with racial classification.

Thomas v. Louisiana State Board of Health, for example, was a case decided in 1973. In that case, a woman and her children’s birth certificates had been changed by the Louisiana State Board of Health and the city of New Orleans Health Department. (31) The three had initially been designated as white on their birth certificates, but the Health Department changed each of their racial designations to “Negro” after purportedly doing research and discovering that the woman was 5/32 black and each of her children were consequently 2.5/32 black. (32) According to the state, under a Louisiana statute (LSA-R.S. 42:267), anyone with more than 1/32 of African blood would be designated as black. (33) The husband/father in the family, who was white, objected to this change of his family member’s racial designation. The Court of Appeal of Louisiana, sided with the father because it stated that the Health Department had no appropriate process for determining the percentages of different races in an individual; the court did not, however, make any comment on the constitutionality of the law. (34)

Though formal classifications designated by law may be on their way out, people often still associate those with African heritage, if discernible, as black. Even in the case where an individual is in fact mixed, as with Barack Obama, with equal parts black and white, he is often designated as black.

Footnotes

1. In the Matter of Color, page 43
2. In the Matter of Color, page 43
3. In the Matter of Color, page 44
4. In the Matter of Color, page 45
5. Johnson v. Town of Norwich, 29 Conn. 407 (1860) at 407
6. Id.
7. Id.
8. Id.
9. Id. at 408
10. Id.
11. People v. Dean, 14 Mich. 406 (1866) at 406
12. Id.
13. Id. at 414
14. Id. at 418
15. Plessy v. Ferguson, 163 U.S. 537 (1896) at 538
16. Id.
17. Id.
18. Id. at 549
19. Id. at 552
20. State v. Treadaway, 126 La. 300 (1910) at 301
21. Id. at 302-304
22. Id. at 304
23. Id. at 309
24. Id. at 310
25. Id. at 331
26. Lee v. New Orleans Great Northern R. Co., 125 La. 236 (1910) at 237
27. Id. at 237-238
28. Id. at 239
29. Id. at 236
30. Id. at 238
31. Thomas v. Louisiana State Board of Health, 278 So.2d 915 (1973) at 916.
32. Id.
33. Id.
34. Id.

-- VanessaWheeler - 23 Dec 2012

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