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]