Chapter X: Negro in Court Room (2)

_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.