CHAPTER X

NEGRO IN COURT ROOM

The Negro goes into a court room in one or more of six capacities,

namely: as spectator, witness, juror, party to a suit, attorney, or

judge. It is in each of these capacities that the Negro in the court

room is to be considered, but some of them permit of only brief mention.

How the Negro actually fares in the court room—whether he gets justice

as often as the white person does, whether his testimony has as much

weight with the jury and court as that of the white witness, whether the

Negro attorney or judge is accorded as much courtesy as the white man in

a similar position—would make an interesting and profitable study, but

such a study is largely outside the field of this investigation. It

should be kept in mind now, as in the previous chapters, that only those

distinctions are considered which have come within the pale of the law

since 1865, either in the form of statutory enactment or judicial

decision. Where mention is made of some of the actual extralegal race

distinctions in the court room, it is only for illustration.

AS SPECTATOR

The court room, while the court is in session, is open to all citizens,

regardless of race or color. No instance has been found either in the

statutes or judicial reports of one’s admission to or exclusion from the

court room being dependent upon his race or color. It is to be noticed,

however, in Southern court rooms that the spectators are separated by

race, Negroes usually occupying seats on one side of the room and white

people on the other. This must be entirely a matter of custom, as no

case has been found of such separation being required by law or

ordinance. While this point has not been deemed important enough for a

special investigation, it is presumed that one will find the races

separated in the court room in those States or communities where they

are separated in other places—as in public conveyances, schools, and

churches.

A Negro in the South, as elsewhere, has, legally and actually, as good

an opportunity to observe court proceedings as a white person, though

custom may require him to sit in a different part of the court room from

that occupied by the latter.

AS JUDGE

Little within the scope of this chapter can be said of the Negro as a

judge. There are cases still in the North of Negroes sitting on the

bench, mostly in lower courts, and there may be instances, here and

there, in the South, of Negroes holding judicial offices. Certainly, the

Negro elector is eligible, both under Federal and State Constitutions,

to hold a judgeship. Whether or not there are Negroes on the bench in a

given State is not determined by the legislatures or the courts, but by

the appointing power or by the choice of the people at the polls.

AS LAWYER

A Negro is eligible to practice law in every State; that is, nothing to

the contrary appears in any of the State or Federal statutes now in

force. Negroes may be admitted to the bar everywhere upon proving the

same qualifications and passing the same examinations as required of

other applicants for license. But this has not always been so. The

privilege of practicing law in Iowa,[589] for instance, was, until 1870,

restricted to white males. In that year it was extended to women and to

members of other races than the white. Only one State appears to have

considered it needful to guarantee by statutory enactment the right to

practice law to the Negro. An act of the Colorado[590] legislature in

1897 reads: “No persons shall be denied the right to practice as

aforesaid on account of race or sex.”

In 1877, a Negro, with a license to practice law in Massachusetts and

the Circuit and District courts of the United States in the city of

Baltimore, applied for a license to practice in the State courts of

Maryland. The laws of Maryland[591] of 1872 limited the privilege of

admission to the bar to white male citizens. The Negro brought suit

because he was refused admission to the Maryland bar, and the Court of

Appeals of Maryland[592] held that the State had a right to limit the

privilege of practicing law to white males, holding that such a

limitation did not violate the Fourteenth Amendment. The court said, in

part: “The privilege of admission to the office of an attorney cannot be

said to be a right or immunity belonging to the citizen, but is governed

and regulated by the Legislature, which may prescribe the qualifications

required and designate the class of persons who may be admitted. The

power of regulating the admission of attorneys in the courts of a State

is one belonging to the State, and not to the Federal Government. As

said by Mr. Justice Bradley in Bradwell’s case:[593] ‘In the nature of

things it is not every citizen of every age, sex and condition that is

qualified for every calling and position. It is the prerogative of the

legislator to prescribe regulations founded on nature, reason and

experience, for the due admission of qualified persons to professions

and callings demanding special skill and confidence. This fairly belongs

to the police power of the State.’” According to the opinion in this

case, which has not been overruled so far as has been found, a State

legislature may, in the exercise of its police power, limit the

privilege of practicing law to white males or to white people, and thus

debar the Negro altogether. In the latest collection of Maryland laws,

however, that of 1904, no mention is made of race in the prescribed

qualifications for admission to the bar, but no express repeal has been

found in the annual statutes of the law of 1872 which limited the

privilege of practicing law to white males. The presumption is, however,

that Maryland, in common with the other States, now admits Negro

applicants on the same terms as white.

It is generally known that Negro lawyers in the Southern States are few,

and it is considered that the field there for the Negro lawyer is not

promising. There were seven hundred and twenty-eight Negro lawyers in

the United States in 1900. The following notice in _The Emmanuel

Magazine_ of July 3, 1909, a monthly publication by a Negro in

Washington, North Carolina, is interesting in this connection: “Mr. E.

W. Canady, a respectable colored lawyer of Durham, N. C., not long since

received three thousand four hundred dollars for his service at the bar

in representing one case. This speaks more for him than anything else

possibly could. It shows the public’s confidence in his ability both as

a lawyer and a gentleman of integrity. It also shows that, at least in

some cases, a Negro can get justice in a Southern court, not only for

himself, but for others. The profession of law is the most difficult one

a colored man can follow in the South, because he must deal with white

judges, white jurors, white lawyers, and, sometimes, white witnesses,

and a public sentiment which is created by the whites. If he keep his

soul well equipoised and act gently and manfully—not bootlicking, but

seeking the peace of the city wherein he dwelleth, as Jeremiah advised

the Jews of Babylon to do, he can fare equally as well, if not better,

in the South as he can in the North. I was not a little surprised when I

asked Mr. Canady how the judges treated him and he said, ‘Oh, they’ll

treat you all right, if you act rightly; they are bound to follow the

law, you know.’ This should encourage more young men to take up this

profession.”

AS WITNESS

When one comes to the Negro as a witness, he finds much legislation and

many judicial decisions, but they are confined largely to the first

years after Emancipation; that is, to the years during which the rights

and privileges of the Negro as a freeman were being defined and fixed.

The Negro slave had been either deemed incompetent as a witness, or, if

deemed competent, his testimony was admitted only in certain actions.

In 1866, a white man in Kentucky was indicted for entering the house of

a Negro and committing larceny. At the time a Negro in that State could

not testify against a white man. A Circuit Court[594] of the United

States decided that it could take jurisdiction of this case under the

Civil Rights Bill of 1866, holding that the Negro, as a citizen, had the

right to be a witness in court. This appears to be the only case in

which the Federal court has adjudicated upon the right of a Negro to

testify.

A law of Alabama[595] of 1865 made Negroes competent to testify only in

open court and only in cases, civil or criminal, to which a freedman,

free Negro, or mulatto, was a party. This was reënacted in 1867.[596] In

1886, a white man in Mobile was tried for the murder of a Negro. All the

witnesses for the prosecution were Negroes, and all for the defendant,

white people. The question of the color of witnesses was raised, and the

city court of Mobile charged: “... it is immaterial whether the

witnesses were white or black, if you believe beyond a reasonable doubt

that black witnesses are telling the truth, it is as much your duty to

convict on their evidence as though they were white.” There was an

exception to this charge, but the Supreme Court of Alabama[597]

overruled the exception. The present law of Alabama seems to be that the

color of the witness is immaterial in determining his competency.

The Supreme Court of Arkansas,[598] in 1869, held that by the Civil

Rights Bill of 1866 the laws prohibiting Negroes from testifying became

inoperative. No other case on the point seems to have arisen in the

State.

The Constitution[599] of Florida of 1865 permitted Negroes to testify

only in proceedings founded upon injury to a Negro or in cases affecting

the rights and remedies of Negroes. A statute[600] of the same year,

relative to testimony in general, provided that the testimony of Negroes

should not be taken by deposition in writing or upon written

interrogation, or “otherwise than in such manner as will enable the

court or jury to judge the credibility of the witness.”

The Constitution[601] of Georgia of 1865 made it the duty of the general

assembly to provide laws prescribing in what cases the testimony of

Negroes should be admitted in the courts. This is the only reference to

the Negro as a witness found in the Georgia statutes or court reports.

Kentucky,[602] in 1865, provided that Negroes and mulattoes should be

competent witnesses in all civil proceedings in which Negroes or

mulattoes were the only parties interested in the issue, and in all

criminal proceedings in which Negroes or mulattoes were the defendants.

In 1867, the Court of Appeals of Kentucky[603] held that the law of

Kentucky prohibiting a Negro from testifying against a white person was

still in force and was not rendered inoperative by the Civil Rights Bill

of 1866.

The Constitution[604] of Maryland of 1867 provided that no person should

be incompetent as a witness on account of race or color unless

thereafter so declared by an act of the general assembly. The general

assembly appears not to have acted.

Mississippi,[605] in 1865, provided that freedmen, free Negroes, and

mulattoes, should be competent in all civil cases to which a freedman,

free Negro, or mulatto was a party, and in criminal cases in which the

crime charged was alleged to have been committed by a white person upon

a freedman, free Negro, or mulatto. But in 1867, Negroes were given the

right to testify on the same terms as white people.[606] In 1865, South

Carolina[607] declared that Negroes might testify in cases to which a

person of color was a party. Tennessee,[608] the same year, provided

that Negroes and Indians should be competent as witnesses “in as full

measure as such persons are by an act of Congress competent witnesses in

all the courts of the United States.”

The Constitution[609] of Texas of 1866 contains the following section:

“Africans and their descendants shall not be prohibited, on account of

their color or race, from testifying orally, as witnesses, in any case,

civil or criminal, involving the right of injury to, or crime against,

any of them in person or property, under the same rules of evidence that

may be applicable to the white race; the credibility of their testimony

to be determined by the court or jury hearing the same; and the

legislature shall have power to authorize them to testify as witnesses

in all other cases, under such regulations that may be prescribed, as to

facts hereafter occurring.” In pursuance of this authority, the

legislature[610] enacted that persons of color should not testify except

where a prosecution was against a person of color or where the alleged

offence was against the person or property of a person of color. But in

1868, the Supreme Court[611] of Texas held that the first section of the

Civil Rights Bill gave Negroes the right to testify, and in 1871 the

legislature[612] said that in the courts of that State there shall be no

exclusion of any witness on account of color.

Virginia,[613] in 1866, provided that Negroes and Indians should be

competent to testify in cases in which a Negro or Indian was a party.

The testimony of Negroes had to be “_ore tenus_, and not by deposition.”

The next year, this law was repealed and a statute[614] enacted that

colored persons should be competent to testify “as if they were white.”

Thus far the legislation on Negro testimony in the Southern States only

has been given. Similar questions have arisen in some of the other

States. Thus, by an early statute of California[615] “no Indian, or

person having one-half or more Indian blood, or Mongolian, or Chinese,”

was permitted to give evidence in favor of or against a white person.

The Supreme Court[616] of the State held in 1869 that this statute

violated the Civil Rights Bill and was therefore null and void. A

minority of the court, however, dissented on the ground that the Civil

Rights Bill itself was unconstitutional as interfering with the domestic

relations of citizens.

A law of Indiana[617] of 1865 provided that all persons of competent

age, without distinction as to color or blood, should be competent as

witnesses, but provided that no Negro or mulatto who had come, or who

should thereafter come into this State in violation of the thirteenth

article of the Constitution of the State (prohibiting the immigration of

free Negroes) should, while said article continued in force, be

competent as a witness in any case in which a white person was a party

in interest. It also provided[618] that where a Negro, Indian, or person

excluded on account of mixed blood was a party in the case, his opponent

should be excluded. Nevada,[619] the same year, gave Negroes the right

to testify, but not in favor of or against a white person, and also

provided that the credibility of such Negro, black, or mulatto person

should be left entirely with the jury. Washington,[620] in 1866,

provided that no one should be incompetent as a witness “by reason of

having Negro blood.” But in 1869, the legislature[621] said that Indians

or persons having over one-half Indian blood should not be competent to

testify in an action or proceeding to which a white person was a party.

West Virginia[622] passed a law in 1866 that no person should be

incompetent as a witness on account of race or color.

During the first years after Emancipation, the States were very doubtful

of the Negro’s fitness as a witness. In saying, as many of them did,

that he could be a witness only in cases in which a Negro was a party,

they were following the “Black Laws” before the War, to which reference

was made in the chapter on “The Black Laws of 1865–68.” That they were

doubtful of the testimony of the Negro is shown by the provision of the

act that the Negro’s credibility should be the subject of a special

charge by the court and that his testimony should be given orally. It

has been seen that some of the States soon repealed their laws

discriminating against the Negro as a witness, and that others enacted

statutes allowing him to testify upon the same terms and conditions as a

white person. In some of the States, the records do not show that the

right to testify in court has yet been given to the Negro. But it must

be taken as settled that, even in those States which are silent on the

subject, the Negro does have the same right to testify as the white

person. How much weight is actually given to his testimony is a matter

not of law, but of fact, to be determined by the trier of fact, or jury,

as the case may be. It may be said, in short, that, at present, the

right of the Negro to testify in court is precisely co-extensive with

the right of the white person.

AS JUROR

Most of the legislation and suits concerning the Negro as a witness came

during the years between 1865 and 1870. Since then, the right of the

Negro to testify in court has been generally undisputed. With the Negro

as a juror, it has been different. There has not been a great deal of

legislation about the Negro as a juror, not even during the years

1865–70 which were so prolific of race legislation. But the court

reports from 1865 have been abundantly supplied with cases that have to

do with the Negro as a juror, not referring so much to his right to

serve as to his actual service on the jury. First, reference will be

made to the legislation on the topic, then a number of cases will be

discussed, most of which have turned upon a few fundamental principles

of constitutional law, and, finally, a word will be said of Negro jury

service as it actually exists.

The fourth section of the Civil Rights Bill[623] of 1875 reads: “That no

citizen possessing all other qualifications which are or may be

prescribed by law shall be disqualified for service as grand or petit

juror in any court of the United States, or of any State, on account of

race, color, or previous condition of servitude, and any officer or

other person charged with any duty in the selection or summoning of

jurors who shall exclude or fail to summon any citizen for the cause

aforesaid shall, upon conviction thereof, be deemed guilty of a

misdemeanor, and be fined not more than five thousand dollars.” As was

seen in the previous chapter on the civil rights of Negroes, the first

sections of the Civil Rights Bill were declared unconstitutional in

1883. But, as will be seen in the discussion of the cases that have

arisen about the Negro as a juror, the section quoted above has stood

the test of constitutionality and is still a part of our Federal statute

law.

When the States outside the South saw, in 1883, that the Federal

Government was impotent to secure civil rights to Negroes, they began to

enact Civil Rights Bills of their own, which virtually copied the

Federal statutes of 1875. The following States enacted statutes

practically the same as the Federal law referring to jury service:

Indiana,[624] in 1885; Michigan,[625] in 1885; New York,[626] in 1895;

Ohio,[627] in 1884, and Rhode Island,[628] in 1885. The only difference

between these State statutes and the Federal statute is in the

punishment for keeping a person off the jury because of his race or

color. Indiana and Michigan impose a fine of not less than one hundred

dollars or imprisonment of not more than thirty days, or both; New York

imposes a fine of from one hundred dollars to five hundred dollars or

imprisonment from thirty to ninety days, or both; Ohio imposes a fine

from fifty dollars to five hundred dollars or imprisonment between

thirty and ninety days, or both; Rhode Island imposes a fine not to

exceed one hundred dollars. This is practically all of the jury

legislation outside the South, which has been found.

In Arkansas,[629] in 1867, a law granting certain rights to Negroes had

the following provision: “That nothing herein contained shall be

construed to repeal or modify any statute or common law usage of this

State respecting ... service on juries.” Though nothing is said of it,

one may infer that this meant that Negroes were not to sit on juries. A

Louisiana[630] law of 1880 states that, in the selection of jurors,

“there shall be no distinction made on account of race, color, or

previous condition.” This State at the time was in the hands of the

Reconstructionists. Mississippi,[631] in 1867, provided that freedmen

should not be competent to serve as petit or grand jurors. A law of

Tennessee[632] of 1866, giving Negroes the right to testify, had the

provision that it should not be construed to give colored persons the

right to sit on juries in that State. The same year, a law[633]

repealing certain other acts had the provision that nothing in the act

should be construed to admit persons of color to serve on the jury. But

in 1868, the Negroes of Tennessee[634] were given full rights in this

respect. This appears to be all of the legislation as to Negro jurors in

the South between 1865 and the present.

That the statute of 1875 prohibiting the exclusion of persons from jury

service on account of race, color, or previous condition of servitude is

constitutional, has been decided in a series of cases before the Supreme

Court of the United States.[635] The mere fact that no Negroes are on a

certain jury does not indicate that the Fourteenth Amendment, under

which all these jury cases arise, has been violated; it must be shown

that the Negroes were kept off the jury consciously by State officials

because of their race, color, or previous condition.[636] The Fourteenth

Amendment is violated, however, when the officers of the State keep

Negroes off the juries for these causes. The Supreme Court[637] of the

United States said in 1899: “Whenever by an action of a State, whether

through its legislature, through its courts, or through its executive or

administrative officers, all persons of the African race are excluded,

solely because of their race or color, from serving as grand jurors in

the criminal prosecution of a person of the African race, the equal

protection of the laws is denied to him contrary to the Fourteenth

Amendment to the Constitution of the United States.”

A custom seems to have grown up among some lawyers, particularly in the

South, to move to quash the indictment whenever a Negro is on trial for

a crime and there are no Negroes on the grand jury. With almost absolute

uniformity, the State courts have held that there is no ground for

quashing the indictment unless it is shown that Negroes were kept off

the juries purposely and because of their race or color.[638] The cases

show also that, if a Negro is kept off the grand jury because of his

race, there is ground for quashing the indictment. Texas has furnished

far more of these jury cases than any other Southern State. Wherever the

jury commissioners have betrayed in any way the fact that they kept

Negroes off the juries because of their race, the indictment has been

quashed. A few instances will suffice. In one case the commissioners

said that they did not put Negroes on the jury because they considered

them unfit; this was held[639] to be in violation of the Fourteenth

Amendment. When, again, they said that they kept Negroes off the juries

because their presence “would be offensive to the white jurors,” the

indictment was quashed.[640] In a county of 11,000 voters in Texas,

about 1,000 of them were Negroes, of whom 600 or 700 were competent to

be jurors. No Negro had ever been on a jury there. The commissioners

admitted that they would not put a Negro on if they knew it. The

indictment was quashed.[641] In another case,[642] they said they would

not put Negroes on juries because it would create a conflict between the

races which would injure the Negroes. This was held a sufficient

admission to quash the indictment. In a case arising as late as 1903,

the commissioners undertook to satisfy the Fourteenth Amendment by

putting on a Negro. They put on a Negro who had either moved out of the

county or was dead. This was held to be enough of a race discrimination

to quash the indictment.[643]

No matter how large a percentage of the population is colored, if it is

not proved that Negroes were kept off the jury because of race or color,

there is no ground for objection. Thus, it was found that a Negro had

never been known to sit on a grand jury in Bexar County, Texas, where

there were 7,000 or 8,000 possible jurors, of whom 600 or 700 were

colored. It was not proved, however, that they were kept off on account

of race or color, and it was held that there was no ground for quashing

an indictment.[644]

The following interesting case arose in Utah in 1900: A white person

refused to serve on a jury with a Negro, and wrote a note making a

complaint. The Negro was thereupon excluded from the jury. Later, the

Negro brought an action against the white man to recover damages to the

extent of the jury fees. The court held[645] that, while color was not a

test of one’s fitness to be a juror, a written objection to serve on a

jury with a Negro is no ground for an action for damages by a colored

man.

The latest case of race distinction in juries comes from Oklahoma. There

were four Negroes on a jury, and for that reason the judge discharged

the jury. He said that the State had separate cars, separate schools,

and separate tables for Negroes and whites, and “he would not insult

white men by making them serve on a jury with Negroes.” The case is so

recent as to be reported, as yet, only in the newspapers.[646]

The constitutional right of the Negro to serve on a jury or to be tried

before a jury composed, in whole or in part, of Negroes, is well

expressed in a recent Texas case[647] as follows: “It is not a question

as to the right of a Negro, or any number of Negroes, to sit on a grand

jury, that the Fourteenth Amendment to the Constitution of the United

State was intended to provide for; but it was intended, where a Negro

was on trial, to prevent discrimination against the Negro race in the

formation of the grand jury, which presented the indictment, and only in

case Negroes are intentionally excluded from the grand jury is he denied

the equal protection of the laws. It was never intended by the

Fourteenth Amendment to guaranty a Negro defendant a full Negro grand

jury, or to guaranty to him any particular number of grand jurors, but

it was intended to prevent intentional exclusion from the grand jury.”

_Actual Jury Service by Negroes in South_

In treating the Negro as a juror, the writer departed from the habit of

confining his discussion to the race distinctions manifested in statutes

and judicial reports. As he went through the statutes and reports, these

questions arose in his mind: Do Negroes actually serve on the juries in

those communities where they are numerous? If so, what satisfaction have

they given? In order to obtain answers to these questions, he sent out

letters to the clerks of court in every county in the Southern States in

which Negroes constituted one-half or more of the population in 1900.

Over three hundred letters were sent out containing the following

inquiry: “I wish to know to what extent Negroes actually serve on

juries, how Negro jurors are regarded by the court and the people at

large, whether the number of colored jurors has increased or decreased

in late years, what has been the experience of your county as to the

satisfaction of colored jurors?” Of course, as many replies were not

received; but the replies that were received indicate the extent of

Negro jury service in the Southern States. These replies will be quoted

from freely in each case, the State and the number of Negroes and white

people in the particular county will be given, but not the name of the

county.

_Alabama._—County No. 1, 10,000 white people, 13,000 Negroes: “Negroes

are not allowed to sit upon juries in this county. It sometimes happens

that names of Negroes are placed in our jury-box by mistake on the part

of the jury commissioners, and are regularly drawn to serve as jurors;

this, however, is a very rare occurrence. Once in the past four years, a

Negro was drawn as a grand juror (by mistake) who appeared and insisted

upon the court’s impaneling him with other jurors, which was done in

accordance with law, the court having no legal right to discharge or

excuse him. My recollection is he served two days, when he was taken out

at night and severely beaten, and was then discharged on his own

petition by the court. This will convey to your mind that Negro jurors

are not very wholesomely regarded and tolerated in this county. The fact

is, Negroes have never been or never will be allowed to sit on juries in

this county.”

County No. 2, 5,000 white people, 21,000 Negroes: “I have lived in this

county for more than sixty-six years, and we have never had a Negro

juror in that time, nor do I ever expect to see one in the jury-box in

this county. Our adjoining counties have all had them, a number of years

ago.”

County No. 3, 5,000 white people, 27,000 Negroes: “Negroes do not serve

on juries in our courts. Such a state of affairs would be considered by

the people of this county as farcical. The Lord defend us from having

jurors of a race of people who are absolutely without regard for an

oath.”

_Arkansas._—County No. 1, 1,800 white people, 12,600 Negroes: “No

Negroes serve in this county on regular juries. Sometimes when hard to

obtain white jurors, a few Negroes may be taken in cases in J. P.

Courts, but not often. Even this habit is smaller than formerly, falling

off every year. Colored jurors [are] not looked upon as intelligent, and

very few as honest and possessing integrity, and they, as a rule, are

also uneducated.”

County No. 2, 14,000 white people, 29,800 Negroes: “No Negroes have

served on juries in the court of this county since 1894. Prior to that

time it was a common thing for them to be in the majority. I believe the

Negroes are fairly well pleased with the verdicts of all white jurors,

as the question is nearly always propounded to the juror, when it is a

Negro defendant: ‘Would you give the defendant the same consideration as

if he was a white man?’”

_Florida._—County No. 1, 17,000 white people, 22,000 Negroes: “It has

been many years since a Negro sat upon a jury in this court, and the

probability is, it will be many more. Negroes are not regarded as good

jurors, and I believe it to be a fact that a Negro would prefer being

tried by a white jury than a mixed jury, or a jury composed wholly of

Negroes; this applies to both civil and criminal matters.”

County No. 2, 11,000 white people, 12,000 Negroes: “Negroes do not sit

on the jury in this county, and have not since the days of ‘Carpet-Bag

Rule.’ I do not think a county in this State permits a Negro juryman.”

County No. 3, 6,000 white people, 8,000 Negroes: “Negro jurymen or other

officers are a thing of the past in our county and State. The oldest

person can hardly recall the time when we had such in our county, with

the exception of a very few years just after the war.”

County No. 4, 9,000 white people, 15,000 Negroes: “... in the circuit

court of the State it is very seldom that a Negro serves on the jury.

Negroes, as a rule, are not good jurors, for the reason that they are

usually very ignorant and can be easily influenced by others in the

rendering of their verdict. The Negro jurors, so far as the State courts

are concerned, are almost eliminated. In the Federal courts of the

State, a large number of Negroes serve on the juries....”

County No. 5, 2,300 white people, 2,700 Negroes: “The laws of this State

require that the county commissioners select not less than 290 nor more

than 310 ‘persons of approved integrity, fair character, sound judgment

and intelligence’ to serve as jurors. Therefore, because most of the

elder Negroes are illiterate and because most of the younger ones that

remain here are of other than fair character, there are but few Negroes,

about one per cent., whose names are drawn or selected to go into the

jury-box. If one is drawn as juror ... he serves as such juror, and no

one has ever objected to one so far as I know of. My experience covers a

period of ten years, during which time ... we have had only two Negroes

drawn as jurors. No person has ever appealed a case on account of not

having a Negro on the jury, nor has there been anything said outside on

account of the practical elimination of the Negro from jury duty.”

_Georgia._—County No. 1, 5,000 white people, 24,000 Negroes: “No Negroes

serve on our jury. There are no Negro names in the jury-box.”

County No. 2, 5,900 white people, 6,800 Negroes: “No Negroes have ever

been placed in the jury-box in this county. They are not regarded as

competent or reliable as jurors, hence they have not [been] tried as

such in this county.”

County No. 3, 5,000 white people, 12,000 Negroes: “Negroes do not serve

as jurors in this county, for several reasons to wit: Incompetency,

strong prejudices, superstitiousness, and general unfitness in regard to

equity.... It happens frequently they are drawn and serve on juries in

what we term here United States courts....”

County No. 4, 1,500 white people, 8,800 Negroes: “Negroes do not serve

on the juries in this county.... None of the Negroes in this county have

ever been placed in such [jury] boxes.”

County No. 5, 4,000 white people, 9,000 Negroes: “We do not have Negroes

as jurors; we tried them and found them incompetent and otherwise

disqualified.”

County No. 6, 7,000 white people, 11,000 Negroes: “No Negroes serve on

the jury in this county.”

County No. 7, 4,800 white people, 5,000 Negroes: “Not a blooming one

[Negro juror], and not likely to be.”

County No. 8, 2,000 white people, 5,800 Negroes: “There are no Negro

jurors in this county.”

County No. 9, 6,000 white people, 7,000 Negroes: “I have lived here all

my life and do not know that there has been any Negro who has served on

the jury in this county. I am quite sure there has been none for the

past 20 or 30 years.”

County No. 10, 2,500 white people, 4,000 Negroes: “... There has never

been a Negro juror to serve in this county nor any other county

surrounding this to my knowledge. We revise our jury-boxes biennially,

and never have yet put a Negro’s name on the list of jurors. And I think

this is the practice all over the State. I am satisfied if one should be

put on any jury that the white men on would flatly refuse to serve at

all....”

County No. 11, 5,000 white people, 6,000 Negroes: “... There is no

record of Negroes ever serving as jurors in this county.”

_Kentucky._—No replies have come from the seven counties of Kentucky in

which Negroes constitute a large percentage of the population. But the

following is quoted from a letter from the Assistant Attorney General of

the State: “Negro jurors are sometimes selected in various parts of the

State, and I presume all over the State. Twenty years ago the custom was

more prevalent than at present of putting Negroes on the juries. They

were the best class of Negroes, and I am reliably informed that in

various parts of the State the Negroes themselves requested to be left

off the juries, which may account for the fact that the practice seems

to have fallen into disuse.”

_Louisiana._—Parish No. 1, 3,900 white people, 12,700 Negroes: “... we

now have no Negroes to serve on the jury here at all. Some years ago we

had Negro jurors, but they proved so unsatisfactory that they were

gradually dropped out and for several years [we] have had no Negroes at

all.”

Parish No. 2, 8,800 white people, 11,300 Negroes: “... Negroes serve as

jurors in this parish to a limited extent. The jury commissioners, when

they know of an exceptionally good, honest, sober and industrious Negro,

have no objections to placing his name in the jury-box. It is true,

however, that the number is very limited, owing to the fact that very

few Negroes will come to the standard as far as the above qualifications

are concerned. Out of the 300 names in the jury-box from which we draw

our juries, there are about a dozen Negroes. The Negroes as jurors do

not give any trouble; they always follow the suggestions and advice of

the white jurors.”

Parish No. 3, 11,000 white people, 17,800 Negroes: “... in this parish

Negroes have served on both our grand and petit juries ever since the

Civil War. Only the very best of our Negroes are drawn on the jury; they

usually constitute about one-half of the panel on the petit jury and on

the grand jury they are always represented, but in a much smaller

proportion. The number of Negroes with us fit for jury service is not

increasing as one would think would be the case considering their

advantage for an education. They render very good service, rather prone

to convict in serious personal injury cases, inflict capital punishment

more readily than white juries and generally want all law enforced,

especially against bad men of their own race, as they know this is their

best protection.”

Parish No. 4, 2,000 white people, 13,700 Negroes: “... we have had one

Negro on the petit jury the last criminal term of court in a murder case

of another Negro. He is the only Negro that has sat on the jury for two

or three years in our parish. We do not allow any Negroes to sit on the

grand jury in our parish. There are three names of Negroes in the

jury-box that we draw our general venire from, as well as I remember,

possibly one or two more, but not more than that number, as well as I

remember. We used to have as many Negroes as white jurors here ten or

twelve years ago.”

_Mississippi._—County No. 1, 4,000 white people, 31,000 Negroes: “...

Negroes do serve on juries in our circuit courts, also in our

magistrate’s court. As to the extent Negro jurors serve Negro jurors are

decreasing in late years. It requires certain qualifications to make

them competent under the Constitution of the State of Mississippi,

to-wit: Every male inhabitant of the State, except idiots, insane

persons, and Indians not taxed, who is a citizen of the United States,

twenty-one years old and upwards, who resided in the State two years,

and one year in the election district, or in the incorporated city or

town in which he offers to vote, and who is duly registered, and has

never been convicted of bribery, burglary, theft, arson, obtaining money

or goods under false pretenses, perjury, forgery, embezzlement or

bigamy, and who has paid, on or before the first day of February of the

year in which he shall offer to vote, all taxes which have been legally

required of him, and is able to read any section of the Constitution of

the State, or is able to understand the same, when read to him, is a

qualified voter, and can be a member of either our grand jury or a petit

jury if drawn as such. Our Negro jurors are either ministers or school

teachers, with some farmers. The majority of them fail to pay their

taxes, which disqualifies them from jury service. Negro jurors are not

regarded by our courts as good jurymen, but we are compelled to use them

when drawn and they are qualified to serve.”

County No. 2, 8,000 white people, 11,700 Negroes: “... Negroes sitting

on jury and paying poll-tax is a thing of the past in my county. Only

about 25 or 30 [are] registered. Disfranchised on educational

qualification.”

County No. 3, 3,000 white people, 23,000 Negroes: “In my judicial

district there are five counties, in three of which Negroes serve upon

the juries in about the proportion that they are qualified under the

law. The qualifications for jurors are very strict in this State and

comparatively few Negroes can qualify legally. In limited numbers they

make very satisfactory jurors when the rights of their people are

involved. As a rule, a Negro does not like to try a white man’s case;

they are much more inclined to convict Negroes charged with crime than

are the white jurors, and Negro defendants always challenge Negro

jurors. In the ‘Black Belt’ of Mississippi, a Negro can always receive a

fair trial in the courts, but this is not so certain in the white

counties. In the two counties where Negroes do not serve upon the

juries, there are practically no Negroes qualified under the law,

because none are registered voters.”

County No. 4, 6,000 white people, 18,000 Negroes: “We don’t have any

Negro jurors at all in this county. We have very few registered Negroes

in the county.”

County No. 5, 7,000 white people, 7,000 Negroes: “... Negroes do sit on

juries in this county at times. They have a right to serve as jurors

when they have duly registered and paid their tax and some other

qualifications.... But the Board of Supervisors draws the names of 200

or more persons on the first Monday of January in each year and puts

them in a box, so many for each supervisor’s district. But of late years

the supervisors have not put many names of Negroes in the jury-box;

therefore, we have not had very [many] Negro jurors. But we have one or

two Negro jurors nearly every term of our court [circuit court]....”

County No. 6, 8,000 white people, 28,700 Negroes: “The jury law in this

State makes no discrimination on account of race, color, or previous

condition of servitude, and no man is excluded from the jury on account

of his color.... In some of the counties of the State, the boards of

supervisors select some Negroes for jury service, but the great trouble

is, there are comparatively few Negroes in any county, and none in some

of the counties, who can measure up to the qualifications prescribed by

law.... The criminal element in Mississippi is composed largely of the

Negro race, and as a matter of fact, the persons of that race charged

with crime and the lawyers who defend them, the large majority of whom

are of the white race, do not want Negroes on the jury, and Negroes are

almost invariably challenged. If Negroes chance to be summoned on a

special venire in a capital case with white men, they [the Negroes]

disqualify to avoid service, sometimes by claiming that they are not

registered voters, but generally by claiming that they are opposed to

the death penalty.

“The following incident happened in one of our courts and may help to

shed some light on the subject-matter wanted: A Negro was indicted for

manslaughter. He was too poor to employ counsel to conduct his case, and

it not being a capital case, the court could not appoint counsel for

him, and told him so. He said he would do the best he could without a

lawyer, and the court told him of his rights under the law, that he

could look over the jury, and of his right to challenge four of them if

he was dissatisfied with the panel as it stood. There were four Negroes

on the jury, and he very promptly advised the court that he was not

satisfied; the court told him he had a right to object to four of them,

and he very quickly told the court, ‘Ef dat is so, dem niggers can stand

aside.’ They were excused by the court, and the sheriff was ordered to

complete the panel from the very best citizens to be had, which was

done, the jury being, when complete, all white men. The defendant

addressed the jury in his own defence and was acquitted.

“In my county ... we have had no Negroes on the jury for the past 15

years or more. We have some 30,000 colored population in this

county, ... and we have only about 175 registered in the county. The

board of supervisors, as a rule, does not place their names in the box,

for the reason that, as above stated, they will not serve if any way out

of it can be found.”

County No. 7, 1,000 white people, 4,000 Negroes: “... we have no Negro

jurors in this county at all.”

County No. 8, 8,000 white people, 12,000 Negroes: “There are only 400

white qualified electors in this county, only about 30 qualified Negro

electors. We never have a term of court without having several Negroes

on it, besides we always have Negroes on the trial juries. It is not

often that they sit on a case unless a Negro lawyer has one side of it.

They do not believe in convicting one of their color. They are

objectionable in every sense of the word. They are not regarded by the

other members of the jury. Negro jurors are on the increase in recent

years....”

County No. 9, 4,000 white people, 12,000 Negroes: “No Negroes have

served on jury in this county since Republican party.”

_Missouri._—County No. 1, 24,000 white people, 4,500 Negroes: “... As

far as I am informed, and certainly since I have been connected with the

court here, no Negroes have served as jurors either in our court or in

any justice of the peace court in this county. While probably under our

laws Negroes would be legal jurors, the county court of this county will

not draw them as jurors, and the Sheriff, when he has to get jurors,

will not summon them. And I do not believe our lawyers here would permit

a Negro to remain on a jury before which they would have to try a case.

Further, I am sure that no white man here would serve on a jury with a

Negro, even though his refusal to so serve would subject him to a jail

sentence....”

County No. 2, 21,000 white people, 4,000 Negroes: “... we have never

known of a Negro juror in ... county.”

County No. 3, 28,000 white people, 4,700 Negroes: “Negroes never have

this burden heaped upon them in this State.”

County No. 4, 540,000 white people, 35,500 Negroes: “We do not have many

Negro jurors. I have occupied this post but six months, and in that time

we have had but two Negroes called for service. Our jury canvass is made

biennially. All names placed in the wheel are taken just as drawn from

the same on orders from the various divisions of court. A few of the

more intelligent Negroes are placed on the jury list. I made inquiry

when two Negroes served on a jury last week. The other jurors did not

seem to feel any antipathy. Of course, a little surprise was manifested

at seeing them in court when their names were called. Neither the

attorneys for the plaintiff nor [for] the defence challenged them but

accepted them on the jury. My predecessors never placed many of the

Negroes’ names in the wheel as I understand from them.” This letter was

from the jury commissioner, not the clerk of the court.

_North Carolina._—County No. 1, 6,800 white people, 8,000 Negroes: “...

of late years very few Negroes serve on the juries in this county for

the reasons that they are an illiterate race and moral character not

what it should be. Further, he is easily influenced, deciding with a

juror whom he may like instead of weighing the evidence and deciding

accordingly. The number of Negro jurors has decreased for the past few

years on account of the Negro of to-day [being] morally not as good as

the Negro of several years ago.”

County No. 2, 11,000 white people, 19,000 Negroes: “I will say that

Negroes do not serve on the jury in this county and have not since we,

the white people, got the government in our hands. When the Republican

party was in power Negroes were drawn, both regular and talis jurors,

and not one out of one hundred was a competent juror, but, strange to

say, when a Negro was on trial, he would always prefer the white men to

try his case.”

County No. 3, 5,800 white people, 8,300 Negroes: “Negroes occasionally

serve on juries in ... county, but not to as great extent as they did

before the passage of the Amendment [the suffrage amendment in 1900].

The County Commissioners have been more particular about the names that

are left in the box from which jurors are drawn. Only the best, most

reliable and most intelligent Negroes are left in the box. Sometimes it

happens that a few are called as talismen, but not then until the

sheriff has exhausted his best efforts to get white men. Those called

are very apt to be good, reliable men, and with a majority of white men

in the jury-box are not disposed or able to do wrong. My experience as

clerk for 20 years is that they make good jurors, and are apt to be

disposed, in criminal actions, to execute the law even against their own

race. Judge ... says that white men on the jury are everywhere disposed

to lean toward a Negro litigant, especially if the Negro is of the

old-class, before-the-war Negro gentleman and the white man is of these

later days ‘common trash.’ I am told by the judges that in some counties

the sheriffs would not dare to call a Negro as a talisman even, but, as

I have said, we have them not very frequently and without complaint. I

notice that the opposing lawyers are slow in challenging them when so

called....”

County No. 4, 12,600 white people, 13,100 Negroes: “... Negroes do not

serve on juries in our County, nor are they allowed to vote or take any

part in county or municipal affairs....”

County No. 5, 5,700 white people, 6,700 Negroes: “A colored man has

never served on the jury in this county, neither has a colored man ever

voted in this county.”

County No. 6, 6,000 white people, 13,000 Negroes: “... We still have

some Negro jurors at every term of our courts, but not near so many as

in former years. Our County Commissioners ... are very careful in

putting the names of only good, respectable Negroes in the jury box. The

consequence is we have very few Negroes on our juries, but those we have

are well disposed and the most intelligent Negroes of the county, and

make very acceptable jurors. I have been struck with the fact that our

lawyers in selecting the jury for both criminal and civil cases, seldom

ever object to the Negroes who are on the regular panel. If this is

always kept up, with only the best and most intelligent Negroes in the

county in the jury-box, all will be well and our people will not object.

But in former years, when sometimes the majority of the jury would be

Negroes, there was great dissatisfaction.”

_Oklahoma._—County No. 1, 15,000 white people, 2,400 Negroes: “Negroes

have served on both grand and petit juries nearly every term of court

with the exception of the last two terms of the district court. There

are some Negro names in the box, but they did not happen to be drawn by

the Sheriff or myself. The men who have sat have given satisfaction to

the litigants, but have been objectionable to the other jurors. Where it

has come to a locked-up jury, and where they have to eat and be closely

confined with the white man, I have heard some complaint. The court and

officials who are all white Republicans—except the sheriff—treat Negroes

with utmost fairness.”

_South Carolina._—County No. 1, 9,000 white people, 19,000 Negroes: “...

I have only been in office for [the] last four years, but since I have

been in office I have had a good many Negroes on juries. Year before

last I had Negroes on juries three consecutive courts, and every year I

have several of them. We always put the names of those qualified to act

in our jury-box, but it is a bad condition of affairs when you go over

the Negroes of the county, and find how few are qualified to act. The

Negro jurors have increased in our section.”

County No. 2, 5,000 white people, 17,000 Negroes: “... The number of

Negro jurors has decreased in late years. I do not think that a great

number of Negro jurors would impress very favorably the court and the

people at large.”

County No. 3, 10,000 white people, 19,000 Negroes: “... I do not

remember ever to have seen a Negro on the jury in this county. I am

told, however, that one served occasionally for only awhile after 1876.”

County No. 4, 18,000 white people, 41,000 Negroes: “In my experience

covering ten years or more, I find it difficult to get a large array of

competent jurors. We are careful and painstaking in making our lists;

therefore, we never allow a Negro to serve for the reason of the general

moral unfitness, and general depravity.”

County No. 6, 20,000 white people, 22,000 Negroes: “No Negroes serve on

the jury in the county courts in this county.”

_Tennessee._—No information about Negro jury service in Tennessee has

been obtainable.

_Texas._—County No. 1, 6,300 white people, 7,800 Negroes: “... As to

Negro jurors ... as a rule, in the County Court about one-tenth are

Negroes, and they are rarely ever discriminated against. I do not recall

a case where they have been rejected on account of race or color by

white men. As a rule, they are not so acceptable to Negro litigants as

they are to those of the other races. There are a larger per cent. of

Negroes in the district court, and there is rarely any criticism. In

fact, no prejudice exists here against them as jurors, largely from the

fact that only our best Negro citizens are drawn on the juries.... I

think the per cent. of Negro jurors has increased. They are simply

accepted or struck off as any other citizen. I believe more are accepted

by white than colored litigants. They have served on some of our very

important cases....”

County No. 2, 14,000 white people, 9,000 Negroes: “We haven’t had any

Negroes on the jury in ... county for several years. They used to have a

few on the jury several years ago, so I have been informed, but none in

the last few years.”

County No. 3, 21,000 white people, 16,000 Negroes: “We do not use Negro

jurors in our State or county courts at all.”

County No. 4, 7,000 white people, 8,000 Negroes: “... It has been the

rule of ... county to have Negroes on the grand and petit juries. They

have given satisfaction. The colored jurors are represented by about 25

per cent. of the jurors.”

The cases quoted from in the earlier part of this chapter show even

better than these letters the attitude of Texas toward Negro jurors.

_Virginia._—County No. 1, 6,700 white people, 8,500 Negroes: “No Negro

juror in this court for ten years, and I don’t think that there will

ever be....”

County No. 2, 3,900 white people, 5,500 Negroes: “... from

reconstruction days up to ten or twelve years ago a few Negroes served

on the jury of this county. My impression is ... that they made very

little impression in the jury, and they were completely dominated by

white men in said bodies, who were, of course, greatly in the majority.

At this time no Negro jurors are drawn at all.”

County No. 3, 3,000 white people, 6,000 Negroes: “... there are no

Negroes on our jury list. On several occasions when we had to make up a

jury we have put a few on. The impression is here that it does not do to

mix the races even in the jury-box.”

County No. 4, 17,900 white people, 19,200 Negroes: “Negroes under our

Constitution are not debarred from serving as jurors in Virginia, but

owing to the nature and disposition of the Negro to follow and not lead,

we seldom place them on trial juries. The number of colored jurors has

decreased in the last ten years.”

County No. 5, 3,200 white people, 4,900 Negroes: “Negroes have for a

number of years been serving on the juries in this county, and, as far

as I have been able to learn, have generally given satisfactory

service.... There is hardly ever a jury drawn without some Negroes being

on it. Of course, the judge selects those Negroes who are best qualified

for the service.... Naturally, the number of Negro jurors is not near so

large as that of the whites, for the reason ... that all jurors are

selected with reference to their qualifications.”

County No. 6, 4,000 white people, 4,800 Negroes: “... we never have any

Negroes on juries in my county. Haven’t had any for about fifteen

years....”

County No. 7, 10,000 white people, 13,000 Negroes: “... Negroes do not

serve on juries in this county, and it has been about twenty years since

they did jury service here.”

County No. 8, 2,300 white people, 4,400 Negroes: “Since the adoption of

the new Constitution for this State ... Negroes no longer serve as

jurors in this county. Prior to that time they appeared regularly in our

courts, and made good jurors in the civil as well as criminal business.

Of course, in selecting them, only the best of their race were chosen.

And I can’t recall an instance, with an experience of sixteen years as

clerk of the courts, that any objection was ever raised against them as

jurors.”

County No. 9, 5,500 white people, 5,600 Negroes: “We don’t have colored

men on jury in this county.”

County No. 10, 9,000 white people, 13,600 Negroes: “Negroes are not

allowed to serve on juries in this county.”

County No. 11, 1,100 white people, 3,700 Negroes: “We have not had any

Negroes to serve on the jury in this county for twelve or fifteen years,

and when they did, they gave very poor satisfaction.”

_Summary_: With such incomplete statistics, conclusions as to the actual

service of the Negro as a juror can hardly be more than guesses. Some of

the clerks of court say that the number of Negro jurors in their

counties is increasing; others, that it is decreasing. Some say that

race does not come into the consideration of fitness for jury service;

others, that Negroes are not allowed on juries at all. Some say that

Negro jurors have given satisfaction; others, that they have been

scarcely more than figureheads following the lead of white jurors.

Several of the clerks think that Negro litigants are reluctant to have

Negro jurors sit on their cases. Some feel that Negro jurors are more

prone to convict than white jurors are. It is undoubtedly true that

there are not as many Negroes qualified for jury service under the laws

of the Southern States as there were twenty-five years ago, say. Usually

one must be an elector to be qualified for jury service. The great

majority of the Negroes have been unable to satisfy the suffrage tests

and have been disfranchised. They are, consequently, not electors and

not eligible to serve as jurors. Hence, if the selection of jurors is

conducted with absolute impartiality, there will be comparatively few

Negroes retained.

SEPARATE COURTS

South Carolina appears to be the only State which has ever provided a

separate court for the trial of cases in which Negroes have interests at

issue. That was called the District Court, provided for by a

statute[648] approved December 19, 1865, which statute was repealed

September 21, 1866; so the law was in force less than a year. The

seventh section of the act of forty-nine sections is: “The District

Court shall have exclusive jurisdiction, subject to appeal, of all civil

cases where one or both of the parties are persons of color, and of all

criminal cases wherein the accused is a person of color, and also of all

cases of misdemeanor affecting the person or property of a person of

color, and of all cases of bastardy, and of all cases of vagrancy, not

tried before a Magistrate....” The Magistrate was given jurisdiction

over small disputes, controversies and complaints that arose in his

neighborhood between persons of color, or between persons of color and

white persons, and of petty misdemeanors committed by or toward persons

of color, between master and servant, between master and apprentice, and

between employer and laborer, and civil suits involving not over twenty

dollars in which a person of color was a party. An indictment of a white

person for the homicide of a person of color had to be tried in the

regular superior court; and so had all other indictments in which a

white person was accused of a capital felony affecting the person or

property of a person of color. In these forty-nine sections the

jurisdiction of this special court for persons of color is worked out in

detail; but inasmuch as the law was in force less than a year and was

one of the ephemeral “Black Laws” already considered, there is no need

to go into it further. Suffice it to say that in the South at present,

as in other sections, the people of all races and colors have their

rights adjudicated by the same court.

DIFFERENT PUNISHMENTS

Alabama, Florida, and Georgia prescribe a heavier punishment for

fornication and adultery between white people and Negroes than between

members of the same race. On first consideration this appears to be a

case of different punishment. As was said by the Supreme Court of

Alabama[649]: “The fact that a different punishment is affixed to the

offence of adultery when committed between a Negro and a white person,

and when committed between two white persons or two Negroes, does not

constitute a discrimination against or in favor of either race. The

discrimination is not directed against the person of any particular

color or race, but against the offence, the nature of which is

determined by the opposite colors of the cohabiting parties. The

punishment of each offending party, white and black, is precisely the

same.” The constitutionality of these statutes as to cohabitation

between persons of different races has been upheld by the Supreme Court

of the United States.[650]

The following are instances of race distinction in the matter of

offences and punishment. South Carolina,[651] in 1865, said that a

person of color who committed assault upon a white woman with intent to

ravish her, or who had sexual intercourse with a white woman by

impersonating her husband, should be guilty of a felony “without benefit

of clergy.” Florida[652] made it a capital crime to assault a white

female with intent to commit rape or to be accessory thereto.

Kentucky[653] provided that all persons, without distinction of color,

would be subject to the same pains and penalties for felonies and

misdemeanors, adding: “The laws now in force for the punishment of

Negroes and mulattoes for rape on white women are hereby continued in

force.” This was amended[654] in 1869, but the offence was still against

white women. The race distinction in these statutes lies in the fact

that heavy punishment was prescribed for an assault upon a white woman,

but no such protection was accorded a Negro woman.

South Carolina made it a felony “with benefit of clergy” for a servant

to steal a chattel, money, or valuable security to the value of ten

dollars belonging to, or in the possession or power of his master or

employer. It was an “aggravated misdemeanor” for a servant to steal such

property below the value of five dollars. The servant had no right to

sell any farm produce without the written evidence from his master or

the District Judge or Magistrate that he had a right to do so. But all

such race distinctions in the matter of punishment passed away, as did

the other “Black Laws,” in 1866.

There are certain statutes as to crimes which, though they do not

mention the Negro in so many words, are thought by many to have peculiar

application to him. The vagrancy laws of the Southern States, for

instance, have been considered as directed primarily against Negroes.

Some of the States made it a crime for one to sell cotton in bags

between certain hours of the night. This was probably a result of the

habit attributed to the Negro of hiding cotton in the jambs of the

fences and woods in the daytime to take to the cross-roads store at

night. Missouri,[655] in 1903, made chicken-stealing a felony punishable

by imprisonment for five years, or a fine of two hundred dollars. The

next year, Kentucky[656] passed the following statute: “That if any

person shall steal chickens, turkeys, ducks, or other fowls of the value

of two dollars, or more, he shall be confined in the penitentiary not

less than one nor more than five years.” Whether this is an indirect

race distinction or not, the writer will not take it upon himself to

decide.

Some of the States have enacted statutes to the effect that the

punishment for the members of all races shall be the same for the same

offence. Delaware[657] did so in 1867. In Mississippi,[658] in 1865,

Negroes were given the right to procure the arrest of a white person;

but, if the arrest were false and malicious, the Negro must pay all the

costs, be fined not over fifty dollars, and imprisoned not over twenty

days. In 1867, however, a statute said that Negroes must have the same

punishment as white people. South Carolina,[659] as has been seen,

repealed all laws prescribing different punishment for Negroes.

The following interesting bit of news is taken from an Associated Press

report of July 21, 1909: “Mobile, Ala.—The commissioners to-day

established a curfew law for Negroes. Commencing to-night, all the

blacks must be at home or in bed at 10 P.M. Any of them caught wandering

at large will be locked up. This action is due to an epidemic of

hold-ups perpetrated by Negroes.”

A recent instance of race distinction in the court room seems to come

from New York. A Pullman porter, named Griffin, was arrested in

Montreal, charged with stealing a pocket-book, but the charge was not

substantiated and he was released. He thereupon brought suit against

Daniel F. Brady, who caused his arrest, and obtained a verdict for two

thousand five hundred dollars in damages. The Supreme Court of New York

reduced the damages from two thousand five hundred dollars to three

hundred dollars. Upon an appeal by Griffin, the appellate division of

the Supreme Court sustained the order reducing the damages. The

following is a part of the opinion of Judge Drugo of the Supreme

Court[660] whose order was sustained: “You cannot say that he [Griffin]

is just the same as a white man, when you come to say how much his name

will suffer. He might suffer more. But, after all, what are the

probabilities about it? Is it likely that when a colored man is arrested

and imprisoned he feels just as much shame as a white man of any

circumstance might?

“I think if you were to take the Mayor of the city and arrest him he

would feel very much more humiliated than this porter, from the fact

that he was the Mayor and not a colored man, for if a colored man he

might not feel quite as much humiliation and shame.

“In one sense a colored man is just as good as a white man, for the law

says he is, but he has not the same amount of injury under all

circumstances that a white man would have. Maybe in a colored community

down South, where white men were held in great disfavor, he might be

more injured, but after all that is not this sort of a community. In

this sort of a community, I dare say the amount of evil that would flow

to the colored man would not be as great as it probably would be to a

white man.”

NOTES

Footnote 589:

Laws of Ia., 1870, p. 21.

Footnote 590:

Laws of Colo., 1897, p. 115.

Footnote 591:

Laws of Md., 1872, p. 134; 1876, p. 469.

Footnote 592:

_In re_ Taylor, 1877, 48 Md. 28, at p. 33.

Footnote 593:

Bradwell v. State, 1872, 16 Wall. 130 at p. 142.

Footnote 594:

U. S. v. Rhodes, 1866, Fed. Case No. 16,151.

Footnote 595:

Laws of Ala., 1865–66, p. 98.

Footnote 596:

_Ibid._, 1866–67, p. 435.

Footnote 597:

Dolan v. State, 1886, 81 Ala. 11, at p. 17.

Footnote 598:

Kelly v. State, 1869, 25 Ark. 392.

Footnote 599:

Art. XIV, sec. 2.

Footnote 600:

Laws of Fla., 1865, pp. 35–36.

Footnote 601:

Art. II, sec. 5, par. 4.

Footnote 602:

Laws of Ky., 1865–66, pp. 38–39.

Footnote 603:

Bowlin v. Com., 1867, 2 Bush (Ky.) 5.

Footnote 604:

Art. III, sec. 53.

Footnote 605:

Laws of Miss., 1865, p. 83.

Footnote 606:

_Ibid._, 1866–67, pp. 232–33.

Footnote 607:

Laws of S. C., 1865, p. 286.

Footnote 608:

Laws of Tenn., 1865–66, p. 24.

Footnote 609:

Art. VIII, sec. 2.

Footnote 610:

Laws of Texas, 1866, p. 59; see Laws of Texas, 1866, pp. 131–32.

Footnote 611:

_Ex parte_ Warren, 1868, 31 Texas 143.

Footnote 612:

Laws of Texas, 1871, p. 108.

Footnote 613:

Laws of Va., 1865–66, pp. 89–90.

Footnote 614:

_Ibid._, 1866–67, p. 860.

Footnote 615:

Statutes of Calif., 1863, p. 69.

Footnote 616:

People v. Washington, 1869, 36 Calif. 658.

Footnote 617:

Laws of Ind., 1865, p. 162.

Footnote 618:

_Ibid._, 1865, p. 161.

Footnote 619:

Laws of Nev., 1864–65, p. 403.

Footnote 620:

Laws of Wash., 1866, p. 91.

Footnote 621:

_Ibid._, 1869, p. 103.

Footnote 622:

Laws of W. Va., 1866, p. 85.

Footnote 623:

Stat. L., 336, chap. 114, par. 4.

Footnote 624:

Burns’s Annotated Revisal of 1901, II, sec. 3293.

Footnote 625:

Pub. Acts of Mich., 1885, p. 132.

Footnote 626:

Laws of N. Y., 1895, I, p. 974.

Footnote 627:

Laws of O., 1884, pp. 15–16; 1894, pp. 17–18.

Footnote 628:

Acts and Resolves of R. I., 1884–85, p. 171.

Footnote 629:

Laws of Ark., 1866–67, p. 99.

Footnote 630:

Laws of La., 1880, p. 52.

Footnote 631:

Laws of Miss., 1866–67, p. 233.

Footnote 632:

Laws of Tenn., 1865–66, p. 24.

Footnote 633:

_Ibid._, p. 65.

Footnote 634:

_Ibid._, 1867–68, pp. 32–33.

Footnote 635:

Va. v. Rives, 1879, 100 U. S. 313; _Ex parte_ Va., 1879, 100 U. S.

339; Strauder v. W. Va., 100 U. S. 303; Carter v. Texas, 1899, 177 U.

S. 443; Rogers v. Ala., 1903, 192 U. S. 226.

Footnote 636:

Neal v. Del., 1880, 103 U. S. 370; Bush v. Com. of Ky., 1882, 107 U.

S. 110; _Ex parte_ Murray, 1895, 66 Fed. 297; Smith v. State, 1895,

162 U. S. 592; Binyon v. U. S., 1903, 76 S. W. 265.

Footnote 637:

Carter v. Texas, 1899, 177 U. S. 443, at p. 447.

Footnote 638:

Eastling v. Ark., 1901, 62 S. W. 584; Wilson v. Ga., 1882, 69 Ga. 224;

Green v. Ala., 1882, 73 Ala. 26; Ky. v. Jackson, 1880, 78 Ky. 509;

Hicks v. Ky., 1881, 3 Ky. Law Rep. 87; Haggard v. Ky., 1881, 79 Ky.

366; Smith v. Ky., 1896, 33 S. W. 825; La. v. Casey, 1892, 44 La. Ann.

969; La. v. Joseph, 1893, 45 La. Ann. 903; La. v. Murray, 1895, 47 La.

Ann. 1424; Cooper v. Md., 1885, 64 Md. 40; Mo. v. Brown, 1894, 119 Mo.

527; Bullock v. N. J., 1900, 47 At. Rep. 62; N. C. v. Sloan, 1887, 97

N. C. 499; N. C. v. Peoples, 1902, 131 N. C. 784; N. C. v. Daniels,

1904, 46 S. E. 743; S. C. v. Brownfield, 1901, 60 S. C. 509; Williams

v. Texas, 1875, 44 Texas 34; Cavitt v. Texas, 1883, 15 Texas Ct. of

Ap. Rep. 190; Carter v. Texas, 1898, 46 S. W. 236; Collins v. Texas,

1900, 60 S. W. 42; Smith v. Texas, 1900, 58 S. W. 97; Parker v. Texas,

1901, 65 S. W. 1066; Hubbard v. Texas, 1902, 67 S. W. 413; Carter v.

Texas, 1903, 76 S. W. 437; Fugett v. Texas, 1903, 77 S. W. 461; Martin

v. Texas, 1903, 72 S. W. 386.

Footnote 639:

Whitney v. Texas, 1900, 59 S. W. 895.

Footnote 640:

Kipper v. Texas, 1901, 62 S. W. 420.

Footnote 641:

Leach v. Texas, 1901, 62 S. W. 422.

Footnote 642:

Smith v. Texas, 1902, 69 S. W. 151.

Footnote 643:

Smith v. Texas, 1903, 77 S. W. 453.

Footnote 644:

Thompson v. Texas, 1903, 74 S. W. 914.

Footnote 645:

McPherson v. McCarrick, 1900, 61 P. 1004.

Footnote 646:

Raleigh, N. C., _News and Observer_, Feb. 17, 1910.

Footnote 647:

Whitney v. Texas, 1901, 63 S. W. 879.

Footnote 648:

Laws of S. C., 1865, pp. 278–91; 1866, pp. 387–90.

Footnote 649:

Pace and Cox v. State, 1881, 69 Ala. 231.

Footnote 650:

Pace v. Ala., 1882, 106 U. S. 583. See also Ellis v. Ala., 1868, 42

Ala. 525; Lord v. Ala., 1875, 53 Ala. 150.

Footnote 651:

Laws of S. C., 1865, p. 271.

Footnote 652:

Laws of Fla., 1865, p. 24.

Footnote 653:

Laws of Ky., 1865–66, p. 42.

Footnote 654:

_Ibid._, 1869, p. 52.

Footnote 655:

Laws of Mo., 1903, p. 161.

Footnote 656:

Laws of Ky., 1904, p. 83.

Footnote 657:

Laws of Del., 1866–69, p. 161.

Footnote 658:

Laws of Miss., 1866–67, pp. 232–33.

Footnote 659:

Laws of S. C., 1866, p. 405.

Footnote 660:

Boston _Post_, May 22, 1909. The volume of New York reports containing

this case is not yet accessible. It is referred to, however, in 117 N.

Y. Sup., p. 116.

Race Distinctions in American Law · 第 10 / 13 章