People v. Dean

Campbell J.

Defendant was prosecuted for illegal voting; he, as alleged, not being within the constitutional provisions regulating the *414 qualifications of voters. Two propositions were discussed on the trial, and charges were asked or made upon both of them; first, whether a person of less than one-half of African blood was white, within the meaning of the Constitution; second, whether one of not more than one-sixteenth African blood was white. The Circuit Judge charged against the prisoner on both points, and exceptions are taken to his rulings.

A decision of the second question would probably, (so far as we can judge from the testimony set forth,) disjDOse of this case; but as the case is evidently designed to obtain a ruling upon the general subject, in order to settle the position of persons of mixed blood under our Constitution, it would not be desirable to avoid the principal question. The Constitution now in force gives the right of voting, (under certain restrictions,) to “ white male" citizens or inhabitants, and certain civilized male inhabitants of Indian descent. The former Constitution confined the privilege to “white male” citizens or inhabitants. At the time when the present Constitution was submitted to a popular vote, a separate proposition was submitted with it, whereby, if adopted, “ every colored male inhabitant" would have been put uj>on precisely the same footing, as an elector, as if he were white. This proposition was rejected, and the Constitution, therefore, admitted none to be electors who were not “ white."

The origin of this regulation, so far as the State of Michigan is concerned, is to be found in the act of Congress of February 16, 1819, authorizing the election of a delegate to Congress from Michigan territory, giving the right of voting to “free white male citizens," who had resided here a certain time, and paid taxes. This was followed by the act of Congress of March 3,1823, (amendatory of the various territorial regulations of Congress,) which fixed the same standard for electors, in all elections for any purpose to be had within the territory. (L. 1827, pp. 34, 35.) The first act proposing the erection of a State Government, passed June 29, 1832, submitted the question to the votes of the “white male inhabitants,” in their respective *415 districts. (L. 1832, jp. 37.) The act of September 6, 1834, under which the census was taken as a preliminary to applying for admission into the Union, required the inhabitants to be classed as “white” or “colored” persons. (L. 1834, pp. 3, 4.) The latter were also divided into such as were “free" and such as were bound to serve for life, or for a term of years. This was probably to reach such colored persons as were retained by their former owners, within the terms of Jay’s treaty of 1794, under which some cases had been decided by the Supreme Court of the Territory as not subject to the ordinance of 1787. The act of Jammy 26, 1835, under which the delegates to the convention which framed the first Constitution were elected, provided that the “free white male inhabitants" of the Territory, who should have resided therein three months previous to the fourth day of April thereafter, should be authorized to vote for such delegates. (L. 1835, pp. 74-5.) That Constitution was by the convention required to be voted on by such persons as were thereby qualified “ to vote at all elections." (Schedule, Const. 1835, § 9.)

We are, therefore, to determine what was meant by the term “whitef when applied to the prevailing portion of the population, in whose hands the government of this region has been kept through this course of congressional, Territorial, conventional, and popular action, and from whose numbers the jurors were to be exclusively drawn, and who alone were, under the laws of the United States, subject to be enrolled among the militia. (L. 1827, p. 175; Act of Cong. of March 8, 1792; L. 1827, p. 417.)

There was no generally prevalent legal meaning which can be regarded as having become so attached to the word “white,” as to have been of any governing weight in its adoption. It stands like any other phrase, used in laws and acts of state, which must be so construed as to carry out the design which its framers may fairly be supposed to have had in their minds. The reasons for drawing distinctions, in this country between different classes of inhabitants are notorious; and while the *416 course of events has, with the destruction of slavery, very considerably modified public opinion upon questions which bore upon the people formerly enslaved, and their kindred, we cannot regard provisions made under the old state of things as at all changed in their meaning by any subsequent events. If a popular regulation of to-day becomes unpopular in its operation to-morrow, no construction can make it mean tomorrow what it does not mean to-day. The duty of repealing laws and altering constitutions has not been imposed upon the judiciary. And I think we cannot truly interpret the language of our Constitution upon the subject of voting, without giving due consideration to the fact that it sprang from the existence of an extensive and remarkable prejudice, which has been recognized in all countries as one of the peculiar features of American society. There are few, if any, states whose statutes and constitutions have not been tinged by it; and the lines have been so plainly drawn in the popular mind, that those who have opposed these regulations, and those who have maintained them, have seldom quarreled very much over the extent of their application. They have been recognized and treated on all sides as designed to keep up a dividing line in the law, which should prevent the offending of social prejudice. Our State legislation has never sanctioned the discreditable penal enactments which put black men in the category of suspected criminals under bonds for good behavior, as was done in the Territory, and we have never, in State or Territory, attempted to make color a test of veracity in the witness box. There has been no very serious difference between the privileges of any of our inhabitants, in matters of mere private concern. But political distinctions have been perpetuated in the same language, since the origin of our elective system, in spite of strong efforts to eradicate them. And, in all this conflict of ideas, it must be borne in mind, that it has never occurred to any one that different shades of color could afford even a plausible ground of compromise. The mooted principle has been recognized as entirely outside of any shades *417 and gradations of color or blood; and those have only become important, when a practical rule became necessary to determine who could be classed as white or not white, by any test of reasonably easy application. For no one has, so far as I know, advanced the absurd notion that a preponderance of mixed blood, on one side or the other of any given standard, has the remotest bearing upon personal fitness or unfitness to possess political privileges. The subject pannot be discussed upon philosophical grounds, because there is no philosophical distinction involved. The recognition of slavery, in all probability, chiefly, if not entirely, created and confirmed the feeling which has so jealously separated the white race into the privileged and dominant people in this country. But the right of the people to determine the qualification of electors is undisputed. We are bound to adhere to the rule which they have established. The right to vote is granted to a certain designated class, and to.no others. The voter must, without any undue straining of language in any direction, come within its terms. I think it has never been deemed improper to solve any reasonable doubts in his favor; and such is certainly the fair tendency of our institutions. But to go beyond this, from any motives of benevolence, or supposed public policy, would be to create, and not to construe, the law. The nature of the question precludes anything like absolute accuracy, because there are no infallible tests. Opinions may, therefore, very well differ as to the line which must be adopted, as, on the whole, most likely to divide electors from non-electors in. closest accordance with the expressed will of the people. And if the term “ white'1'1 had no ascertained and technically accurate legal meaning, when incorporated into the various instruments in which it is found to have operated in this State, then we must find its interpretation from the best sources open to us.

The cardinal rule of construction, concerning language, is to apply to it that meaning which it would naturally convey to the popular mind, in all cases where the propriety of such con *418 struction is not negatived by some settled rule of law. In all instruments which are submitted for confirmation to the people themselves, and which derive all their validity from a popular vote, such a construction is peculiarly necessary; for otherwise they would be defrauded of the right to frame their own government according to their own will.

When the people of Michigan decided to retain their ancient system, and to allow none but white persons to vote, they must have intended to embrace only such as were commonly so called and received. Was a person in whom white blood simply predominated over negro blood thus regarded ? There may have been persons, and possibly even communities, who imagined there was some rule of law which gave to those in that condition the electoral rights of white persons; and there may have been others with whom social prejudices did not seriously affect their intercourse; yet, even among these, it cannot be maintained that they would havb been esteemed white. And it has never been the case that any one having visible tokens of African descent has been regarded by the community generally as a white person. And where those tokens have been very slight, yet still perceptible to ordinary persons, they have caused their possessor to be distinctly classed among colored persons. I think the mere intensity or weakness of these signs, when unmistakable, has made no difference in the classification. And it is very well known that the associations of persons having visible portions of African blood, have generally been closer with each other than with those acknowledged as white. ' They consider themselves as of one race, and live and act together. This mutual recognition, coupled as it undoubtedly is with a general disposition on the part of white persons to avoid social relations with the mass of mixed, as well as unmixed, races of African descent, furnishes a commentary on the terms white and colored, which can hardly be resisted. I think a conclusion which would convict all persons Married in this State, of living in open adultery, where husband and wife are on diffeiv *419 ent sides of the mulatto standard, would shook the sense of the whole community, as contrary to all- practice and under-. standing of the received division of races. If this rule has been misunderstood, such results of course cannot change it; but where language is used by the people for their own government, the recognized meaning cannot be ignored, without leading to inevitable mischief.

We are not left, however, to any individual opinions concerning the incorrectness of .classifying those of visibly mixed blood among whites. There are many decisions upon the subject, made in different parts of the United States, and there have been many statutes passed, intended to furnish accurate means of determining the dividing line between the races. And in all of them, (except a class of decisions in Ohio), it is evident that it has not been deemed proper to class as white any not of pure blood, who could be distinguished without introducing uncertain tests. There is neither decision nor statute which places the criterion in the mere preponderance of either blood. And as the Ohio decisions stand alone, and have now been distinctly repudiated on principle by the courts of that State, and only adhered to in a single instance, whore they had determined a rule of right, it may be well to refer to them.

The first case was Gray v. The State, (4 Ohio, 354), where a defendant upon trial objected to the testimony of a negro offered against him, as incompetent under the statute forbidding negroes or mulattoes to testify against white persons. The defendant was assumed to be of less than half negro blood, and was held on that account to be a white person. The decision is very brief, and bears every evidence of haste. The court declare in substance that the statute in question undertakes to divide the population of the State into white, black and mulatto, and that they are unable to- point out any obvious distinction with certainty. They conclude by declaring that they were governed by two reasons in making the decision; first, because unwilling to extend the disabilities *420 of the statute; and, second, because of the difficulty of distinguishing among the several degrees of duskiness. It is somewhat singular, however, that the case itself exemplifies the fallacy of both of these positions. A penal statute applying in terms to none but blacks and mulattoes, could not under any circumstances include any others; and the defendant could not have been made out to be either a black or mulatto, by holding that he was not a white man. And, so far as relates to facility of distinction, the court in this case founded its judgment upon a finding of a judicial inspection of the party without any testimony whatever, and on the faith of such inspection was enabled to say that he was of mixed blood, somewhat more white than black; showing an ability to distinguish him- readily from the white race by his appearance, and acting upon a test of color which it at the same time professed to repudiate.

The next case was Williams v. School District No. 6 [Wright's R. 578), where a person three-quarters white, and taxed for schools, complained of the exclusion from school of his children by a white wife. - The law in express terms exempted none but negroes and mulattoes from school taxes, and then required all white children to be received. The court, while holding that his suit was too defective to be maintained, and therefore putting him out of court, asserted the authority of the former decision, .and were severe upon, the district for taking his money and yet refusing to receive his ■ children. They, however, would have been treated as. white by good authorities elsewhere.

In Jeffries v. Ankeny (11 Ohio, 372), where a person of one-fourth Indian and three-fourths white blood claimed the right to vote, the court saw fit to resort for the first time to the general rule concerning the condition of such persons as derived from public opinion, and declare ■ them white; and from the peculiar manner in which Gray's case is referred to and quoted, and the care with which they abstain from referring expressly to any similar rule as applying to Indian blood, *421 it is evident that they felt a little awkward in classing blacks and Indians together, and that they had been very careless in their previous language. They had found no such public opinion to aid them concerning mixed African blood, and it is too well known to require argument — and the facts stated in the decision show it — that Indian blood was never considered in that State, (as it was not considered here,) any detriment whatever to social consideration; and even half-breeds as well as quarter-breeds are by no means uncommonly reckoned among the whites, and are often quite undistinguishable from them in appearance and language.

Thacker v. Hawk, (11 Ohio, 376), was a case where the court below held that any mixture of African blood whatever disqualified a person from voting; (a doctrine which prevails nowhere;) and the judgment was reversed on the authority of Gray's case. There are also some other decisions resting on the same authority, but throwing no further light on the subject.

The old constitution of Ohio having received this settled construction, a new one was adopted retaining the same provision as to color; and it was held in Anderson v. Milliken, (9 Ohio State R. 568), that it must be considered as having been adopted subject to the construction expressly given to it upon that head, and that voters need only have a predominance of white blood, because that had been fixed by the re-adoption of a construed clause.

But the same bench at the previous term, in Van Camp v. Board of Education of Logan, (9 Ohio State R. 406), held that the rule was not maintainable on any other ground, and refused to follow the old decisions any further. They held that “ colored persons,” whether lighter or darker than mulattoes, had never been received or regarded as white by public sentiment, and should not be so held; and that the old decisions had never been able to satisfy the community, or to prevent the Legislature from considering the standard erroneous; and that they were evidently the result of a very natural *422 feeling, that some of the laws were discreditable and unjust. The very fact that it became necessary for the appellate court to repeat the same decisions so many times, is strong evidence that they were not acquiesced in as well founded; and shows the folly of attempting to assert by judicial authority that words mean what everybody knows they do not mean. It has, indeed, been considered a proper exercise of judicial courtesy to strain a point in favor of statutes, so as to give them a meaning Avhich shall save their constitutionality; but, with that someAvhat questionable exception, courts Avill always find it necessary to explain aAvay fewer of their own words, Avhen they fix a natural meaning upon the words of others, and leave the responsibility of every measure to fall where it belongs.

As the decisions now stand, so far as I have been able to folloAV them out, there is not a court in the United States which holds that a “ colored person,” in the popular acceptation, although lighter than a mulatto, can be called “ white” without doing violence to language. In this State, both before and since the constitution now under consideration, the population of African descent has always been divided into black, mulatto, and “ other persons of color," under statutes designed to protect them from illegal bondage; and every one must admit that statutes which protected none of a lighter shade than mulatto Avould have been of comparatively small service in that direction. (See R. S. 1838, p. 624; 2 Comp. L. § 5735; L. 1859, p. 526.) The term, “persons of colorf Avas used in a very broad sense, and in conformity with popular usage, or it Avas senseless altogether.

If a man is not made white by a mere predominance of white blood, then the question arises, where is the line to be drawn, and how is the distinction to be ascertained ? Rules of suffrage must be presumed uniform as far as possible. It must be admitted, therefore, that we are compelled to discover some mode of classification, and that persons of precisely the same blo.od «must be treated alike, although they may differ in *423 their complexions. There are white men as dark as mulattoes, and there are pure blooded Albino Africans as white as the whitest Saxons. This classification is no doubt a difficult task, and there is room for much disagreement in it, because no rule can be applied without some inconvenience; but that will not justify us, I think, in refusing- to assume the duty, and in holding- those to be white who can be easily seen by every one to be.otherwise. We are not, however, without some excellent guides upon the subject, in the Constitution and the laws which have governed our elections from the outset.

The Constitution does not impose any restriction of color, except upon electors. The aim of all election laws is to preserve the purity of elections by prevention of illegal voting as far as possible, so as to ensure a legal election as nearly as may be. The prevention of illegal voting has, until recently, always been mainly in the hands of inspectors of election; the registry system having been adopted long since the last Constitution. During a large portion of the time these inspectors have had no right to examine one claiming to be a qualified voter on oath, except as to certain facts entirely independent of his color; and under the statutes it would have been impossible for them to administer oaths to witnesses. - And it is apparent that if issues could be raised before them, and tried by witnesses, the trial of the first voter’s qualifications might exhaust the time for the entire poll, and destroy the election. We held in People v. Wattles, (13 Mich. 446), that the statute requiring a person who would take a certain oath, to be allowed to vote, did not dispense with the pre-requisite of registration; and the former Supreme Court in Gordon v. Farrar, (2 Doug., Mich. 411), held under a similar statute, entitling- a person to vote who took an oath, having no reference to his color, that the inspectors must in some way or other be satisfied that he was white. As they could generally do this only by inspection, (not being able to obtain testimony,) we must assume that it was intended that the division of persons, into white and other than white, must have been designed *424 to reach those who, as classes, are apparently white, and likely to be so regarded by men generally. No scientific or technical test could be admissible, because the inspectors must usually be plain men of miscellaneous occupations. In some States the rule of determining blood by appearance has been held applicable to individual cases without classification; and in Johnson v. Norwich, (29 Conn. 407), this rule is referred to as having much to recommend it. The Supreme Court of Ohio, in 6ray’s case, acted upon a similar principle of judging of blood by appearances. But it seems necessary, in .order to make the constitutional rule at all sensible and practicable, that any general classification must be based upon the distinction between those who as classes are apparently white, and those who are not. As all really legal voters should have their rights, the line must be so drawn as to include among the white all classes except those among whom persons apparently white are exceptional cases. And it remains to be seen whether any such division is feasible.

It will be found by inspection of vocabularies and books of reference that, among all the principal civilized nations Avhich have had to deal Avith'the African race, there have been but three Avell recognized divisions of pure and mixed blood, into blacks, mulattoes, and quadroons. None of these can be properly classified as white. Beyond this the division ceases to be general. The term Octoroon” in the English language, except possibly as a scientific term, belongs to the department of sensation literature, and has not, until very recently, been adopted into any of the dictionaries. It does not appear in such works generally. It is fair to presume — and I think such is' the general experience — that, Avhile quadroons are in most cases easily distinguished as not Avhite, persons having less than one-fourth African blood are often enough white in appearance to render any further classing difficult, and to require, in many instances, more than the usual knowledge of mankind to distinguish their mixed blood by'inspection. The Virginia rule of presumptions, adopted in the last century, *425 when opinions had not become heated on this subject, fixed the line of quarter blood as the dividing standard. (Dean v. Commonwealth, 4 Grattan, 541; Gentry v. McMinnis, 3 Dana, 382). Judge Bouvier recognizes this as a prevalent rule, (l Douv. Inst. TO). It is a rule less likely to cause litigation or mistake than any other, and one which does no violence to the general understanding by including among whites any great number of evidently Colored persons, while it is broad enough to admit all who have any reasonable claim to be called white.

I am of opinion that it should be considered, therefore, that persons are white within the meaning of our Constitution, in whom white blood so far preponderates that they have less than one-fourth of African blood; and that no other persons of African descent can be so regarded. As the defendant came very far within this rule, I think a new trial should be granted.

Cheistiancy and Cooley JJ. concurred.