CHAPTER III

DEFAMATION TO CALL A WHITE PERSON A NEGRO

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.

NOTES

Footnote 44:

Eden v. Legare, 1791, 1 Bays (S. C.) 171.

Footnote 45:

Wood v. King, 1818, 1 Nott & McC. (S. C.) 184.

Footnote 46:

Barrett v. Jarvis, 1823, 1 O. (1 Hammond) 84, note.

Footnote 47:

McDowell v. Bowles, 1860, 8 Jones (N. C.) 184.

Footnote 48:

Spotarno v. Fourichon, 1888, 40 La. Ann. 423.

Footnote 49:

Upton v. Times-Democrat Pub. Co., 1900, 28 So. 970.

Footnote 50:

Flood v. _News and Courier_ Co., 1905, 50 S. E. 63.

Footnote 51:

93 N. Y. 438 (1883).

Footnote 52:

Wolfe v. Ry. Co., 1907, 58 S. E. 899.

Footnote 53:

So. Ry. Co. v. Thurman, 1906, 90 S. W. 240; 28 Ky. L. Rep. 699; 2 L.

R. A. (N. S.) 1108.

Footnote 54:

Italics the writer’s.

Footnote 55:

Raleigh, N. C, _News and Observer_, July 25, 1906.

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