Fayette County herald. [volume] (Washington [Washington Court House], Fayette County, O. [Ohio]) 1860-1???, 1868-05-14

1t is then decided that the word
"white" in the new Constitution is
used in the same sense as in the old
Constitution, and includes persons
having a mixture of African blood,
if they have a preponderance of
white blood. Judge Gholson in
delivering the opinion Of the Court,
saws: 'fWho should be deemed
white within the meaning of the
Constitution p "This question"
he continues, "was answered by re-
peated judicial decisions under the
old Constitution. TWAS consider
ed in view of blood or race, and the
rule adopted to meet the obvious
difficulty Of a mixture of blood or
races was that the white race must
predominant. There was white
race and black race and the obyi
Gus intent was to exclude the latter
from the elective franchise. If an
inhabitant Of the State had an equal
portion of the blood Of each race
the exclusion still applies. But il
he had larger proportion of the
blood Of the white race, he was to
be regarded as white within the
meaning Of the Constitution. Gray
vs.. the State, 4th Ohio Rep. 1853.
Wright's Rep. $40; 11th Ohio Rep.
372, do 376, do 1856; 18th do 337
18th do 402, Continuing, Judge
Gholson further remarks that There
was probably no word in the Con
stitution Of 1902, the meaning el
which had been more fully or au-
thoritatively settled by Judicial con-
struction than the word "white" as
connected with the elective fran
chise.' ,"
The Judge then proceeds to show
by citations from the debates of the
Constitutional Convention Of 1851,
that the word white in the new, was
used in the same sense as in the old
Constitution, and holds such con-
struction to be so well known and
we'll settled, and so long acted up
on and recognized, as to be binding
and conclusive upon the Courts.
Without citing further authorities
upon this subject, | may safely say
to you that this much is well set
lied, that for more than fifty years,
n this State under the old and new
Constitution the word white as used
n connection with the elective fran
3hise has been held by our highest
judicial tribunals to refer to race or
blood, and to include persons of
mixed blood as well as poor
whites.
A distinct and visible admixture
IF African blood is not, therefore,
, sufficient ground Of exclusion
rom the privileges of the elector.
That a person Offering to vote is a
negro OF mulatto, half blood, is a
sufficient ground Of exclusion
But this act does not put the excIu-
sion upon the ground that the per
son challenged is q negro or mulat-
to, no such fact is required to be
established.
The challenge and of course the
exclusion is placed solely upon the
ground of a visible admixture of
African blood,
If fitwas the intent of the Legis-
lature in passing this act to exclude
from the privileges Of an elector
any person having a distinct and
visible admixture Of African blood,
without regard to the fact whether
he has a preponderance Of white
blood or not, and SO ! understand
it, then, in obedience TO the con
struction Of the word white repeat
edly declared by the Supreme Court,
| am bound to say to you that the
act is in conflict with the Constilu-
ton, and utterly null and void.
Judge Burke then amplities his
opinion by giving several illustra-
tions to show that "the act cannot
be enforced according to its spirit
and provisions without depriving
more or less of their constitution
al rights" He concludes as fol-
lows:
| wish before concluding to call
your particular attention TO the fact
that the legislature has no power to
confer the elective franchise on any
person nor to deprive any person
of such franchise,
The people by the constitution
having declared and settled the cleo
tive franchise, the whole subject is
thus withdrawn from legislative
control, and any enactment of the
legislature which restricts, limits or
abridges the constitutional right OF
the citizen, is void.
The act under consideration is,
in my Judgment, clearly in conflict
with the Constitution, in this, that
it makes n distinct and visible ad-
mixture of African blood a ground
of challenge, and sufficient ground
Of exclusion of the voter in provid-
ing that the person challenged
shall be at once excluded if any
witness called by him shall refuse
to answer fully any question put to
him.
In providing that no evidence of
reputation as to parentage, nor pre-
ponderance of white blood shall
avail, unless the marriage Of the
parents is first proved. And final
ly, in providing that after it is clear
ly established that the voter is
white, he shall, before his vote shall
be received, take an oath that he is
white and knotes the fact to be so,
from knowledge Of both his pa
rents and his pedigree,
II being clear then that this act