Concubinage Law Reaches Negro Only
page 1, columns 3-4
Source: Chronicling America: Historic American Newspapers (Library of Congress)
By Vote of 3 to 2 Supreme Court Upholds Decision of the Lower Court.
LOUISIANA STATUTE HELD TO BE OF LIMITED SCOPE.
Mulattoes, Quadroons and Octaroons Not included—Opinion Read by Justice Provosty.
Justices Nicholls and Land dissenting, the State Supreme Court Monday handed down a decision sustaining the decision of Judge Chretien, in the case of the State vs. Octave Treadway and Josephine Treadway, charged with violating the law prohibiting concubinage. In the Criminal Court the defense maintained that Josephine Treadway could not be considered a “colored person,” because she is an octoroon. It was pointed out that the Supreme Court had already decided that an octaroon is not a colored person in the accepted sense of the term as employed years ago. Judge Chretien sustained this argument, and dismissed the accused of the charge of concubinage. Both accused came to New Orleans from Plaquemine Parish.
Associate Justice O. O. Provosty, who was the organ of the Court, says in part:
“This sole question is whether an octoroon is ‘a person of the negro or black race’ within the meaning of the statute.”
Scientifically or ethnologically, a person is Caucasian or negro in the same proportion in which the two strains of blood are mixed in his veins; and therefore, scientifically or ethnologically, a person with seven-eighths white blood in his veins and one-eighth negro blood is seven-eighths white and one-eighth negro. But the words of a statute are not to be understood in their technical, but in their popular sense; and the prosecution contends that the popular meanings of the word negro includes an octoroon. The dictionaries show that the word negro does not include an octoroon within its meaning. In North Carolina a person who has one-sixteenth or more of African blood is a negro, but it gives as us authority for that statement the decision of the Supreme Court of the State, the Court having simply applied or enforced the following statute:
“All free persons descended from negro ancestors to the fourth generation inclusive, though one ancestor in each generation may have been a white person, shall be deemed free negroes and persons of mixed blood.”
The court points out the fact that the Louisiana statute does not define the word negro as including a person of mixed blood. Had it done so there would, be an end of all questions. The prosecution contends that the word does not need to be defined in a statute; that popularly it has a definite well-known meaning.
The Court says: “There is a word in the English language which does express the meaning of a person of mixed negro and other blood, which has been coined for the very purpose of expressing that meaning, and because the word negro was not known to express it, and the need of a word to express it made itself imperatively felt. That word is the word ‘colored.’ The word ‘colored,’ in the United States at least, when used to designate the race of a person is unmistakable; it means a person of negro blood, pure or mixed, and the term applies no matter what may be the proportion of the mixture, so long as the negro blood is traceable. In our constitution and laws when it has become necessary to use a word comprehending within its meaning both negroes, properly so called, and persons of mixed blood, the term ‘colored’ has invariably been used.”
The court says there are no negroes who are not persons of color, but there are persons of color, who are not negroes. The term ‘color’ as applied to race, was given the meaning of the word negro for the very purpose of having in the language a term including within its meaning both persona of pure and of mixed blood; but the converse is not true.
The word negro was never adopted into the language for the purpose of designating persons of mixed blood. On the contrary, it was for the purpose and the sole purpose of expressing the meaning of persons of the pure race, and it can have now a different or more enlarged meaning only by wrenching it from its original meaning, as was done with the word “colored” and imparting to it a meaning different from that which it was intended to bear and has always borne in the language. The legislature might do this but the statute by which it did it would have authority only in Louisiana and the word negro would still continue to mean, the world over, outside of Louisiana, a person of the pure African race.
“We do not think,” says the court, “there could be any serious denial of the fact that in Louisiana the meaning of the words, mulatto, quadroon and octoroon are of a definite meaning as the words man or child, and that among educated people at least, they are as well and widely known, and we think that there can be no serious denial of the fact that in Louisiana and indeed throughout the United States, except on the Pacific slope, the word colored when applied to race, has the definite and well-known meaning of a person having negro blood in his veins. We think also that any candid mind must admit that the word ‘negro’ of itself unqualified, does not necessarily include within its meaning persons possessed of only an admixture of negro blood; notably those whose admixture is so slight that in their case even an expert can not be positive.”