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University of , Reno

“Wringing Their Bread from the Sweat of Other Men’s Faces” The Persistent Use of Forced Labor in the Postbellum South

A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Judicial Studies

by

Reba Ann Page

Dr. James T. Richardson/Dissertation Advisor

May, 2017

Copyright © by Reba Ann Page 2017 All Rights Reserved

THE GRADUATE SCHOOL

We recommend that the dissertation prepared under our supervision by

REBA ANN PAGE

entitled

“Wringing Their Bread from The Sweat of Other Men’s Faces” The Persistent Use of Forced Labor In The Postbellum South

be accepted in partial fulfillment of the requirements for the degree of

DOCTOR OF PHILOSOPHY

James T. Richardson, J.D., Ph.D., Advisor

James Ming Chen, J.D., Committee Member

David Cuillier, Ph.D., Committee Member

Dana Chandler, Ph.D., Committee Member

Greta de Jong, Ph.D., Graduate School Representative

David W. Zeh, Ph. D., Dean, Graduate School

May, 2017

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ABSTRACT

The Mistreatment of Blacks in the 1927 River Flood

Mississippi Levee Been workin’ on de levee, Workin’ like a tuck-tail dog Workin’ on de levee Like a tuck-tail dog. When this flood is over, Gonna sleep like a water-log.

Don’t know why I build this levee And de levee don’t do no good. Don’t know why I build this levee When de levee don’t do no good. I pack a million bags o’ sand But de water still makes a flood.

Levee, levee. How high have you got to be? Levee, levee, How high have you got to be To keep them cold muddy waters From washin’ over me? .1

For many, “involuntary servitude” is intellectually understood as unconstitutional; it is viewed as a vague legal concept that is difficult to define. For its prey, “involuntary servitude” is a harmful and damaging reality in which they are forced to work for another and prevented from leaving. For black refugees of the great 1927 flood in Greenville, Mississippi, it seemed a nightmare return to slave-like conditions that were forbidden by law if not custom after . This dissertation examines the events that took place, and key people who affected them, against the backdrop of three centuries of American law that facilitated or forbade the use of coerced labor, particularly against those of African American descent. Specific legal topics and relevant caselaw assessed include the development of in colonial and post-

1 LANGSTON HUGHES , THE COLLECTED WORKS OF LANGSTON HUGHES . THE POEMS : 1941-1950 39 (University of Press) (2001). The poet was inspired by a 1920 journey from Harlem to Mexico, as his train crossed the Mississippi River en route. ROBERT BURLEIGH , LANGSTON ’S TRAIN RIDE (Orchard Books) (2004). Correspondence between Langston Hughes and Thomas Monroe Campbell found at the Archives Repository, Tuskegee, Alabama (Tuskegee Archives) in the Thomas Monroe Campbell Papers (TMC Papers) shows that Hughes and Campbell were acquainted. ii revolutionary America; coerced labor and emerging civil rights as consequences of the Civil War and Reconstruction; the use of racially-motivated violence to subvert freedmen’s rights; and

President ’s peonage investigation, which led to landmark decisions and new views on enslavement and misused convict labor as surrogates for chattel slavery. The dissertation builds on this historic legal framework to explore the question of whether

Greenville’s black refugees were illegally victimized or simply mistreated within harsh but acceptable social norms.

1. Introduction to the Flood

The devastation wrought by the 1927 Mississippi River flood remains almost beyond imagination. While official tallies are suspect, at least 245 people drowned, and a land mass exceeding 26,000 square miles spread over seven states was inundated by waters up to 80 miles wide;2 a map of the affected area is provided in figure (2). 3 This was a cataclysmic natural event with geopolitical consequences that are little acknowledged, yet are still experienced today.

Repercussions spurred an increasing number of African to move from the South, and undermined the power of the Republican Party. The overwhelming task of meeting the needs of those affected by this overwhelming natural catastrophe helped change official disaster policy from a primary reliance upon charitable organizations, to greater federal funding and support for relief and recovery.

The human toll of the floodwaters was compounded by racialized abuses in segregated refugee camps that were established by the (ARC). Black victims’ pleas for help went unmet until “leaks” to the northern “Negro press” ignited public outcry. When this

2 AMERICAN NATIONAL RED CROSS , THE FINAL REPORT OF THE COLORED ADVISORY COMMISSION : MISSISSIPPI VALLEY FLOOD DISASTER 8 (1927). (CAC Final Report). 3 Map accessed on April 17, 2017 at http://www.archives.gov/global-pages/larger image.html?i=/publications/prologue/2007/spring/images/coast-miss-flood l.jpg&c=/publications/prologue/2007/spring/images/coast-miss-flood.caption.html.

iii scandal threatened to derail U.S. Secretary of Commerce ’s presidential aspirations and diminish desperately needed donations, the ARC convened a “Colored Advisory

Commission” (CAC) comprised of representatives from Tuskegee Institute and other leading

African Americans to investigate the charges. CAC member Thomas Monroe Campbell (1883-

1956) of the Department of Agriculture (USDA), the son of slaves, handled particularly sensitive matters in Mississippi. This included controversial orders issued by local relief committee chairman William Alexander (Will) Percy (1885-1942) of Greenville,

Mississippi, one of the white planter elite, to detain local in a “concentration” camp under armed guard. Similar encampments were formed along the length of the river, with similar maltreatment. The CAC was instrumental in improving conditions, but Hoover later reneged on reforms he offered in exchange for receiving more positive press.

2. The Flood as a Snapshot of Southern Society: Racial Prejudice and Forced Labor

While not isolated instances, the wrongs at Greenville were among the flood’s most politically explosive in a “Jim Crow” South that perpetuated racial subordination. 4 The situation there and at other river towns provides a snapshot of life in the American South of that era, and the effects of longtime discrimination against African Americans. The tragedy of the flood was compounded by the fact that the coercive tactics were common, and unremarkable measures that were (at least to the white population) accepted practice.

In striving to put events in perspective, this dissertation delves into significant judicial decisions on the persistent use of forced labor in the South and the civil rights of enslaved and emancipated African Americans. It begins with involuntary and contractual forms of servitude during the colonial era, and continues through 1927, the year of the Mississippi River flood.

4 C. Vann Woodward explained that “The origin of the term ‘Jim Crow’ is lost to obscurity. A song entitled ‘Jim Crow’ [was] written in 1832 and [] the phrase was used as an adjective for segregation statutes and customs by 1838.” C. VANN WOODWARD , THE STRANGE CAREER OF JIM CROW 7 ( 2 nd rev.) (1966).

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Additionally, the work references contemporaneous ancillary writings to furnish social context.

The examination brings together legal enactments and rulings, the power of the pen, and history.

It draws upon original source documents of the CAC and Campbell’s personal papers. Section 1,

“Setting the Stage,” provides an overview of the 1927 flood, the ARC, and the CAC.

Background information is provided for Campbell and Percy and their families; the flood marked a signal event in their lives, and each went on to larger careers and wider influence.

3. Linking the Flood to the Dissertation

The title of this dissertation is taken from the second inaugural address of President

Abraham Lincoln on 4, 1865. He invoked Biblical imagery in speaking against those who strove to benefit from the labor of a subjugated people. The former were those who, as

Lincoln paraphrased Genesis 3:19, 5 were guilty of “wringing their bread from the sweat of other

men’s faces.” The title is apropos, as it was the “Great Emancipator” 6 who is credited by many as a central political figure in helping African Americans achieve freedom. 7 The road proved

5 The full text of Genesis 3:19 in the King James Version (KJV) of the is as follows: “In the sweat of thy face shalt thou eat bread, till thou return unto the ground; for out of it wast thou taken: for dust thou art, and unto dust shalt thou return.” 6 Lincoln became known as the “Great Emancipator” following his issuance of the Emancipation Proclamation on January 1, 1863, and his continuing fight for abolition. Allen C. Guelzo, Lincoln and the Abolitionists , 24 THE WILSON QUARTERLY 58 (2000). 7 Historian Ira Berlin cautioned that it is important to remember that Lincoln neither acted alone to achieve emancipation nor was he entirely the figure popularly portrayed in fiction and film: “The demise of slavery was not so much a proclamation as a movement; not so much an occasion as a complex history with multiple players and narratives.” Berlin credited free and enslaved blacks who, for over a century, worked to end chattel slavery, and described their persistent efforts in reshaping American society. They resisted enslavement by actively and passively refusing to accept masters’ control, and sought citizenship grounded in equality and liberty. IRA BERLIN , THE LONG EMANCIPATION : THE DEMISE OF SLAVERY IN THE UNITED STATES ( Press) (2015). Berlin observed that, just as blacks knew that freedom could only be achieved by the destruction of slavery, Lincoln and others came to understand that this would “require[] every bit as much brutality as the making of slavery.” Lincoln said in his second inaugural address that “‘justice would not be achieved until … every drop of blood drawn with the lash shall be paid by another drawn with the sword.’” ( Id . at 11). Berlin asserted that, just as ending slavery was an involved and difficult process, so too has been African Americans’ struggle in obtaining equality. American slavery was racialized and grounded in a interest ( id . at 30). This is inconsistent with the promise of the Declaration of Independence that “all men are created equal,” and Biblical assurances of the unity of Creation. While American slavery persisted, the former was hollow hypocrisy and the latter a flouted religious tenet. Berlin discussed the widespread use of violence by and against slaves, and the uneven role of the judiciary in helping them achieve their goals. Id . at 25, 31-32, 41-46, and 106-57.

v enduringly difficult. The continued use of forced labor remained so serious a problem that

Theodore Roosevelt made eradicating peonage 8 an important focus of his presidency. The research question examined herein is this: “Measured against contemporaneous law and precedent, did the constraints imposed upon black victims of the 1927 flood in Greenville,

Mississippi, impinge upon the Constitution’s guarantee of due process and prohibition on involuntary servitude?” Central to investigating this question is an assessment of salient federal laws and judicial decisions that affected the protracted use of forced labor into the 20 th century.

After providing this legal analysis, the dissertation returns to the people and events of Greenville during the flood to evaluate whether black refugees were entrapped in involuntary servitude.

4. The Colonial Era to the Making of the Constitution

The analysis begins with England’s 17 th century settlement in and the effects of the “peculiar institution” 9 upon the framers of the Constitution. As shown in §§ 1-3, the actions taken against freedmen and their descendants had deep , as the use of forced labor fueled by racial prejudice dated to earliest colonial days. The racial and master/servant divide deepened as the nation developed, and resulted in a devil’s bargain for the framers of the Constitution. After politicians and jurists were unable to resolve controversies over the reach and duration of slavery, civil war erupted after the extension of national boundaries became a referendum on the expansion of enslavement and sectional dominance ( see § 3).

8 “Peonage,” also known as “debt enslavement” or “debt slavery,” is a practice in which a laborer is forced to work to pay off a debt and finds his freedom of movement restricted. This is discussed in greater detail in §§ 8.C, 9, and 11-15. See also Aziz Z. Huq, Peonage and Contractual Liberty , 101 COLUMBIA LAW REVIEW 351 (2001). 9 The term “peculiar institution” is used as a euphemism for slavery. While its etymology is indefinite, John Caldwell Calhoun used this expression in his “Speech on the Reception of Abolition Petitions: Revised Report” of February 6, 1837. He referred to slavery as “ of the South.” ESSENTIAL DOCUMENTS OF AMERICAN HISTORY . VOL . I: FROM COLONIAL TIMES TO THE CIVIL WAR 370–71 (B. Blaisdell ed., Dover Pubications) (2016).

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5. The Time of War/Reconstruction & Redemption

Sections 5-11 show that, during the time of the Civil War and in the decade or so thereafter, the country pursued a political agenda marked by emancipation, abolition, civil rights, and universal male . But the center of this progressive effort did not hold and the wounds of war did not cleanly heal. As discussed in §§ 7-10, the nation tired of rebuilding.

Southerners reasserted the denial of civil rights to nonwhites, the use of forced labor was a potent social and economic factor, and the South’s return to antebellum values was reinforced by racially motivated violence. The North may have won the war, but ensuing debates over the

“Reconstruction” then “Redemption” of the South left many matters unsettled. 10 Constitutional amendments and new federal laws resulted in formal abolition, but were unevenly applied.

Ratification of the 13 th , 14 th , and 15 th amendments and passage of protective legislation such as the Civil Rights Acts of 1866 and 1875, the Peonage Act of 1867, and the “”

(“Force Acts”) of 1870 and 1871 did not yield full civil rights for African Americans, never mind social equality.

6. Postbellum Civil Rights Decisions

The courts played an important role in shaping the nation’s postbellum racial identity and labor force. Whites adhering to an outmoded economy relied heavily on as the dominant crop, and looked to recapture the advantages of chattel slavery by exploiting freedmen.

Judicial rulings, especially those dealing with peonage, are used in evaluating whether the treatment of Greenville’s blacks was tantamount to legal violation or the lesser evidence of social dominance. Key decisions demonstrate that blacks, who remained the mainstay of low-paying agricultural work, were kept largely powerless by whites. Among significant civil rights-related

10 See §§ 6-7.

vii cases are those in which African Americans were subjected to extreme physical and legal coercion ( United States v. Cruikshank ,11 Moore v. Dempsey ,12 and Hodges v. United States 13 ); denied equal access to the ballot box ( United States v. Reese 14 ); and accommodations ( Plessy v.

Ferguson 15 ). These show how blacks were kept from equality despite Reconstruction-era and later civil rights laws.

7. The President and the Federal Courts Address Peonage

Flood-related events indicate that racial domination through intimidation and violence remained a serious problem long after Reconstruction-era enactments, and physical control of laborers was still regarded as a property right. Sections 9-15 focus upon the use of forced labor in the postbellum South. This included peonage and misused convict labor, and associated racially-motived violence. These sections discuss seminal legal decisions in these areas and note contemporaneous ancillary writings that place the period in historic context.

The United States Department of Justice’s (USDOJ’s) peonage investigation and prosecutions, as well as relevant opinions of the United States Supreme Court 16 and inferior courts, are of great importance. Among significant decisions relevant to this analysis were the relatively early Peonage Cases 17 of Alabama, Jamison v. Wimbish ,18 and United States v.

Morris, 19 which were decided by Southern jurists who stood against commonly accepted practices. Peonage was common in the Southern pines and its use in the turpentining industry

11 United States v. Cruikshank , 92 U.S. 542 (1876). 12 Moore v. Dempsey , 261 U.S. 86 (1923). 13 Hodges v. United States , 203 U.S. 1 (1906). 14 United States v. Reese , 92 U.S. 214 (1876). 15 Plessy v. Ferguson , 163 U.S. 537 (1896). 16 Unless otherwise noted, references to the “U.S. Supreme Court,” “Supreme Court,” or “Court,” mean the “United States Supreme Court” and not the supreme court of a particular state. 17 Peonage Cases , 123 F. 671 (M.D. Ala. 1903), decided by Judge Thomas Goode Jones. 18 Jamison v. Wimbish , 130 F. 351 (W.D. Ga. 1904), decided by Judge Emory Speer; overturned, Wimbish v. Jamison , 199 U.S. 599 (1905). 19 United States v. Morris , 125 F. 322 (D.C. Ark. 1903).

viii became a volatile political matter. In Clyatt v. United States ,20 the Supreme Court upheld the constitutionality of the Peonage Act of 1867. In W.S. Harlan v. McGourin ,21 the Court upheld the peonage conviction of the prominent executive and nephew of Justice Harlan,

Sr. (Justice Harlan 22 ) for ordering reprehensible acts against lumber camp workers. The rise of peonage intersected with that of “black codes,” which are racially disparate laws (as written or applied) that were adopted after the Civil War. In Bailey v. Alabama ,23 the Court struck down one-sided state laws that presumed “false pretenses” on the part of workers who quit their labor contracts early.

The final section returns to the events of the flood, and concludes with an evaluation using its central research question. It addresses: “Measured against contemporaneous law and precedent, did the constraints imposed upon black victims of the 1927 flood in Greenville,

Mississippi, impinge upon the Constitution’s guarantee of due process and prohibition on involuntary servitude?”

This dissertation incorporates epigraphs to provide interest and context with respect to the matter to be discussed. Some are excerpts from writings or correspondence from principals such as Will Percy, Thomas Monroe Campbell, and others who were associated with the perpetuation of or fight against forced labor. Other documents are also referenced, as its victims’ plight has been related in many ways, including through the law, the press, literature, and music. For example, Bessie Smith’s “Back Water Blues” served as an anthem for the suffering of African

Americans in the 1927 Mississippi River flood:

20 Clyatt v. United States , 195 U.S. 207 (1905). 21 W.S. Harlan v. McGourin , 218 U.S. 442 (1910). 22 References to “Justice Harlan” are to , Sr. (1833-1911), who served on the U.S. Supreme Court from 1877-1911. He is not to be confused with his grandson, Justice John Marshall Harlan II (1899-1971), who served on the U.S. Supreme Court from 1955-1971. 23 Bailey v. Alabama , 219 U.S. 219 (1911).

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Back-Water Blues 24 When it rained five days, and the skies turned dark as night, When it rained five days, and the skies turned dark as night, Then trouble taking place in the lowlands at night.

I woke up this morning, can’t even get out of my door. I woke up this morning, can’t even get out of my door. That’s enough trouble to make a poor girl wonder where she want to go. Then they rowed a little boat about five miles ‘cross the pond. Then they rowed a little boat about five miles ‘cross the pond. I packed all my clothes, throwed ‘em in, and they rowed me along.

When it thunders and lightening, and the wind begins to blow, When it thunders and lightening, and the wind begins to blow, There’s thousands of people ain’t got no place to go. Then I went and stood upon some high old lonesome hill. Then I went and stood upon some high old lonesome hill. Then I looked down on the house where I used to live. Back-water blues done caused me to pack up my things and go, Back-water blues done caused me to pack up my things and go, ‘Cause my house fell down, and I can’t live there no more. Mmmm, I can’t move no more. Mmmm, I can’t move no more. There ain’t no place for a poor old girl to go.

24 See David Evans, Bessie Smith’s “Back-Water Blues”: The Story behind the Song , 26 POPULAR MUSIC 97, 98 (2007). The lyrics were used in that article by permission of the Frank Music Co. The song is historically linked to the great Mississippi River flood of 1927. It was written shortly before the anticipated flood, and was regarded by many as capturing their experience.

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ACKNOWLEDGMENTS

I am indebted to the faculty and staff of the Judicial Studies Program of University of Nevada, Reno and the

National Judicial College. I am grateful for the opportunity to have studied and served with you, and for your

support and inspiration. My committee is due special thanks, particularly the chairman, Dr. James T. Richardson,

who provided great encouragement and patient guidance. I appreciate the assistance of my other committee

members, each of whom brought unique perspective and from whom I have learned much. These are Dr. Greta de

Jong, Professor James M. Chen, Dr. Dana Chandler (who generously opened the Tuskegee Archives to me), and Dr.

David Cuillier as well as Dr. Shawn Marsh, Sherri Barker, and Denise Schaar Buis of the Judicial Studies program.

Many thanks to my family and dear friends who have loved, inspired and sustained me, especially my husband and

son, Behram Peshotan Shroff and Stuart Cyrus Page Shroff, Esq.; my parents, Daniel Everett Page and Eleanora

Marie Moore Page; my brothers and sisters-in-law, John David Page, Esq. (with particular thanks for his kindness)

(Karen), Danny Everett Page, and Tom Willis (Kathy); my grandparents, Forrest Haskell Moore and Anzo

Magdalen Belcher Moore, Leonard Hodges Page and Margaret Louise Simpson Page; aunts and uncles Emma Jean

Moore Almand, John Franklin and Freida Duncan Moore, Dr. George Calvin Moore, and Elma Frances Page

England Chilton; and special cousins David Forrest Almand and Vicki Lizbeth Page. I cannot forget my in-laws,

Peshotan J. Shroff and Soona P. Shroff and extended family Farrokh V. Irani, Esq., Firoza F. Irani, Dr. Freya F.

Irani, Esq., Dr. Homai J. Shroff, and Dr. Rukshana C. Shroff.

A special thank-you goes to the extraordinary family of Thomas Monroe Campbell and Anna Marie Ayers

Campbell. I especially appreciate the encouragement and assistance of their grandson, the Hon. William Ayers

Campbell, Jr., who generously allowed me to explore their remarkable heritage. I thank too my distant but

courageous family, who in their way also helped shape the nation: Elizabeth Key, the “pretended slave”; her

husband William Grinstead, one of the earliest colonial legal advocates; and John Van Zandt, the Underground

Railroad conductor who inspired .

Also, in alphabetical order:

Dr. Warren M. Billings, Dr. Sonya Bryant, Suzanne H. Burns, the Rev. Kathleene Card, Hon. Susan W. Conyers,

Dr. Lois S. Cronholm, Hon. Diana Dickinson, William F. Dolson, Esq., Sheila S. Etchen, Robert D. Faiss, Esq.,

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Karen W. Hunt, Jonathan Jeffrey, Hon. Wesley C. Jockisch, Ann Medaille, Mishelle C. Miller, Esq., Ronald W.

Miller, Esq., Dr. Stuart E. Neff, Patrick Ragains, Jacqueline I. Swigart, Dr. Ronald Reginald Van Stockum, Jr., Esq.,

Mrs. Isabel Vogt, and Esther A. Wilhoyte. Thanks too to the wonderful judges with whom I studied, and for their friendship, inspiration and support.

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Table of Contents List of Tables ...... xv List of Figures, Maps and Photographs ...... xvi 1. Setting the Stage: Select Accounts from the 1927 Mississippi River Flood and the Colored Advisory Commission of the American Red Cross ...... 6 1.A. The Percys of Greenville, Mississippi ...... 14 1.B. Thomas Monroe Campbell of Tuskegee, Alabama ...... 24 1.C. The Influence of the Press ...... 29 2. The Beginnings of Slavery in the American Colonies ...... 32 3. Slavery and the Antebellum United States Constitution ...... 40 3.A. Constitutional Provisions Affecting Slavery ...... 44 3.B. Slavery, and United States Constitutions, and Territorial Expansion ...... 47 3.C. “Trafficking in Other Men’s Souls”: The Monetary Worth of a Chattel Slave ...... 55 4. The Provocation of the : A Trilogy of Decisions Reinforcing Slavery ...... 58 4.A. Jones v. Van Zandt , 46 U.S. 215 (1847)...... 60 4.B. Strader v. Graham , 51 U.S. 82 (1850) ...... 64 4.C. v. Sandford , 60 U.S. 393 (1857) ...... 67 5. A Time of War: Legal and Political Change Amidst Disunion and Conflict ...... 75 5.A. Secession, Civil War, and Emancipation ...... 76 5.B. A Conclusion of War if Not a Time of Peace...... 79 6. The Three Phases of Reconstruction: Presidential, Congressional, and “Redemption” ...... 80 7. Reconstruction-Era Constitutional Amendments: Promises of Emancipation, Due Process, and Suffrage ...... 92 7.A. The Thirteenth Amendment ...... 94 7.B. The Fourteenth Amendment ...... 97 7.C. The Fifteenth Amendment ...... 100 8. Reconstruction-Era Federal Statutes ...... 106 8.A. The Freedmen’s Bureau Act and Its Mission ...... 109 8.B. The Act of 1867...... 116 8.C. The Peonage Act of 1867 ...... 121 9. Black Codes: Forced Labor and Peonage ...... 128 9.A. Statutes Fostering Non-Chattel Forced Labor ...... 133 9.B. Vagrancy Laws ...... 136 9.C. “Enticement” and “False Pretenses” Laws ...... 137 9.D. Laws Allowing Convict Labor as a Form of Peonage: “A Slave of the State” ...... 138

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10. Significant Postbellum Civil Rights Decisions of the United States Supreme Court .... 146 10.A Slaughter-House Cases , 83 U.S. 36 (1873) ...... 150 10.B. United States v. Reese , 92 U.S. 214 (1876) ...... 156 10.C. United States v. Cruikshank , 92 U.S. 542 (1876) ...... 159 10.D. Plessy v. Ferguson , 163 U.S. 537 (1896) ...... 163 10.E. Minority Reaction to The Court’s Majority Decisions: African Americans Struggle with the Judicial Process ...... 167 11. Racialized Violence: The Path to Moore v. Dempsey , 261 U.S. 86 (1923) and the Tragedy of the Elaine Race Riot of 1919 ...... 169 11.A. Violence Erupts: Riots in the Postbellum South ...... 171 11.B. and as Hate Crimes ...... 176 11.C. Violence Against Workers: United States v. Morris , 125 F. 322 (E.D. Ark. 1903) and Hodges v. United States , 203 U.S. 1 (1906) ...... 179 11.D. Moore v. Dempsey and Frank v. Mangum : Due Process Implications of Mob-Dominated Trials...... 183 11.D.1. Frank v. Mangum , 237 U.S. 309 (1915) ...... 184 11.D.2. Moore v. Dempsey , 261 U.S. 86 (1923) ...... 186 11.E. Contemporaneous Press Accounts of the Elaine, Race Riot: Legal Implications of Inciting Violence and Perpetuating Prejudice...... 196 12. Forced Labor and the South’s Postbellum Struggle for Economic Parity ...... 198 13. The Courts Struggle with the Notion of “Forced Labor” ...... 203 14. The Progressive Campaign of President Theodore Roosevelt and the United States Department of Justice in the Fight Against Peonage ...... 205 14.A. The Progressive President and Peonage ...... 209 14.B. The USDOJ’s Investigation and Prosecution of Peonage ...... 213 14.C. Congressional Opposition to USDOJ’s Peonage Investigation ...... 222 15. Significant Decisions on the Persistent Use of Forced Labor in the Postbellum South 225 15.A. Educating the Juror: Peonage Cases of Alabama, 123 F. 671 (M.D. Ala. 1903) ...... 228 15.B. The Insistent Employer: Clyatt v. United States , 197 U.S. 207 (1905) ...... 232 15.C. From “Respectable Colored Man” to Convict and Forced Laborer: Wimbish v. Jamison , 199 U.S. 599 (1905) ...... 238 15.D. Peonage and “Men of Wealth”: W.S. Harlan v. McGourin , 218 U.S. 442 (1910) ...... 243 15.E. Presumed to be Liars: Bailey v. Alabama , 219 U.S. 219 (1910) and “False Pretenses” Statutes ...... 250 15.F. The Vicious Cycle of Convict to and Back Again: United States v. Reynolds , 235 U.S. 133 (1914) ...... 257 15.G. The Powerful and the Peon: The USDOJ’s Investigation into .. 261

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16. Reexamination of the Research Question ...... 269 17. List of Authorities ...... 285 A. Cases ...... 285 B. Laws...... 290 18. Bibliography...... 292

xv

List of Tables

Table 1. Provisions of the Antebellum United States Constitution Concerning Slavery

Table 2. Summary of Major Federal Wartime Legislation and Presidential Action Pertaining to Emancipation

Table 3. Major Events of the Reconstruction Era

xvi

List of Figures, Maps and Photographs

Figure 1. Map of Mississippi River Flood of 1927

Figure 2. Map of , Mississippi, and Arkansas

Figure 3. Raging floodwaters from the Mississippi River flood of 1927

Figure 4. Inundated tracks around Greenville, Mississippi

Figure 5. Greenville, Mississippi during the 1927 flood

Figure 6. Downtown Greenville, Mississippi

Figure 7. Railroad destroyed by the 1927 Mississippi River flood

Figure 8. Floodwaters overtopping the levee and sweeping away vehicles

Figure 9. A break in the barrier that released floodwaters onto the land

Figure 10. The Colored Advisory Commission of the American Red Cross

Figure 11. Black flood victims camped atop the levee during the 1927 Mississippi River flood

Figure 12. Refugees of the 1927 Mississippi River flood with their possessions and livestock

Figure 13. Photographs of Senator LeRoy Percy and son

Figure 14. African American flood refugees encamped in tents atop the sodden levee

Figure 15. Small boats patrolling the flooded streets of Greenville, Mississippi during the 1927 flood

Figure 16. African American flood victims in a refugee camp lined up for rations

Figure 17. Photographs from left to right of Booker T. Washington, Carver, and Thomas Monroe Campbell

Figure 18. African American slaves constructing a railroad

Figure 19. Left: An African American slave scarred by the lash Right: An African American slave confined by an iron collar

Figure 20. Map of the United States, 1821

Figure 21. Map of the United States, 1830

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Figure 22. Map of the United States, September 1850

Figure 23. Map of the United States depicting areas of freedom and slavery in 1854

Figure 24. Map of the United States, 1860

Figure 25. Map of the United States During the Civil War

Figure 26. Map of United States during the Civil War showing Status of Territories and States

Figure 27. 1859 advertisement for the sale of “Long Cotton and Rice Negroes”

Figure 28. “Group of ‘contrabands’ at Foller’s House” Cumberland Landing, Virginia, 1862

Figure 29. Photographs of W.E.B. Du Bois and

Figure 30. Late 19 th century photographs of costumed members of the

Figure 31. Public spectacle of the of a black man

Figure 32. Chain gang, circa 1898

Figure 33. A Southern chain gang, circa 1900-1906

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Figure 1. Map of Mississippi River Flood of 1927 25

25 Mississippi River Flood of 1927 Showing Flooded Areas and Field Operations. Compiled and printed by the U.S. Coast Guard and Geodetic Survey. Accessed on April 18, 2017 at https://earthobservatory.nasa.gov/blogs/elegantfigures/2011/05/20/building-in-a-flood-plain-and-a-map-of-the- flood-of-1927/.

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Figure 2. Map of Louisiana, Mississippi, and Arkansas 26

Maps and Photographs relating to the 1927 Mississippi River Flood

This dissertation includes maps and photographs relate to the 1927 Mississippi River flood, the American South, and relevant political affiliations around the time of the Civil War. The maps provide geographic context for the affected flood area, but it is the photographs that give the real perspective. They show at a glance, more clearly and succinctly than any verbiage, the impact of forced labor upon its victims, and of the uncontrollable waters upon the people and the land of the delta.

26 Map accessed on April 18, 2017 at http://www.davidrumsey.com/luna/servlet/detail/RUMSEY~8~1~2058~120056:County-Map-Of-Louisiana,- Mississippi.

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Figure 3. Raging floodwaters from the Mississippi River flood of 1927

4

Figure 4. Inundated tracks around Greenville, Mississippi

Figure 5. Greenville, Mississippi during the 1927 flood

5

Figure 6. Downtown Greenville, Mississippi

Figure 7. Railroad destroyed by the 1927 Mississippi River flood

6

Figure 8. Floodwaters overtopping the levee and sweeping away vehicles

1. Setting the Stage: Select Accounts from the 1927 Mississippi River Flood and the Colored Advisory Commission of the American Red Cross

The Negro Speaks of Rivers I’ve known rivers: I’ve known rivers ancient as the world and older than the flow of human blood in human veins.

My soul has grown deep like the rivers.

I bathed in the Euphrates when dawns were young. I built my hut near the Congo and it lulled me to sleep. I looked upon the Nile and raised the pyramids above it. I heard the singing of the Mississippi when Abe Lincoln went down to , and I’ve seen its muddy bosom turn all golden in the sunset. I’ve known rivers: Ancient, dusky rivers. My soul has grown deep like the rivers. Langston Hughes 27

27 LANGSTON HUGHES , LET AMERICA BE AMERICA AGAIN AND OTHER POEMS (Vintage Books) (2004). 7

Terrified, ragged, hungry, and exhausted “inmates” were made captive by the authorities on the basis of their ethnicity. They were held under abysmal conditions in “concentration camps” against their will and at times at gunpoint, forced to wear large cloth “tags” by which they could be readily identified, forced to work for white bosses, and given lowest priority for leftover food, clothing and shelter. These are not the European, Jewish victims of the World

War II Holocaust, but United States citizens of African American descent in small towns in

Mississippi and Louisiana. 28 They were detained because of their race, poverty, lack of education, and powerlessness in the face of the 1927 Mississippi River flood that engulfed the delta. Although this disaster has passed almost completely from living memory and is forgotten by most, the flood remains one of the most significant natural disasters America has faced.

Only a river like the “Mighty Mississipp” could produce a flood of the astonishing ferocity and scope of 1927, which changed the American South forever. 29 observed that the Mississippi River “is not a commonplace river, but on the contrary is in all ways remarkable,” 30 with a grandeur almost beyond compare. More than 2,300 miles long, the river flows from Canada to the Gulf of Mexico, and its valley commands over 40% of the continental

United States. 31 The river floods on a similarly magnificent scale, as shown by the “Great

Mississippi Flood of 1927,” which remains the United States’ most destructive flood. Its devastating power began with heavy rains in the summer of 1926 that lasted the better part of a year. 32 Although the severity of human and physical harm later brought about a change in

28 Other states were affected by the flood, but damage there was not as extensive as in Mississippi and Louisiana. See CAC Final Report, supra note 2. 29 PETE DANIEL , DEEP ’N AS IT COME : THE 1927 MISSISSIPPI RIVER FLOOD 4–5 (Oxford University Press) (1977). 30 MARK TWAIN , LIFE ON THE MISSISSIPPI 1 ( 6 th ) (1994). 31 JOHN M. BARRY , RISING TIDE : THE GREAT MISSISSIPPI FLOOD AND HOW IT CHANGED AMERICA 21 (Simon & Schuster) (1997). 32 NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION (NOAA), FLOOD , accessed on April 15, 2017 at https://www.google.com/?gws_rd=ssl#q=noaa.

8 national policy, the federal government did not then significantly fund natural disaster recovery, and much of the relief came through private donations. 33

For decades, the government worked to conquer the Mississippi River, using a series of

earthen embankments forming a levee system, as well as locks, dams, jetties, and diversions

among other approaches. 34 The most significant flooding took place on April 21, 1927, when the

Mound Landing levee broke just above Greenville, Mississippi. Within 10 days, more than 10

feet of water inundated one million acres of the delta.35 The river broke through with a tremendous roar, at a volume reported as “more than double a flooding Niagara Falls.” 36

33 BRUCE ALAN LOHOF , HOOVER AND THE MISSISSIPPI VALLEY FLOOD OF 1927: A CASE STUDY OF THE POLITICAL THOUGHT OF HERBERT HOOVER (PhD diss., Syracuse University, 1968). Accessed on April 15, 2017 at http://search.proquest.com.unr.idm.oclc.org/pqdtglobal/docview/302408826/FE40B51621E8417APQ/1?accountid= 452 . Lohof’s thorough examination of Hoover’s oversight on behalf of the governmental and charitable relief efforts associated with the 1927 Mississippi River flood gave a detailed account of events, principle actors, and Hoover’s contributions. See, e.g. , id ., chapters V The Hoover Machine and VIII Fund Raising, in which Lohof explored the relative relief efforts and funding by the government, the American Red Cross, and emphasis upon private donations to support the cause. This is not to say that the federal and various state governments did not contribute. Lohof acknowledged that precise totals are not known, but provided estimates that the flood-affected states furnished services valued at $10,000,000. Contributions from various federal entities were listed as $365,173, plus another $2,801,125.99 worth of equipment and supplies from U.S. Army stores. The Mississippi River Commission contributed approximately $7,000,000 toward relief and recovery. Significant as these measures were, they were overshadowed by the $17,000,000 in charitable donations received by the ARC. Id . at 169-75. Lohof described the well-organized fundraising efforts by the ARC, public appeals by President Coolidge and Secretary Hoover, and how citizens’ aid of flood victims was treated as a patriotic gesture. Lohof showcased the role of the press, radio, and newsreels to publicize the flood’s devastation and the need for assistance. Hoover’s efforts put him prominently in the spotlight. Lohof said Hoover used his celebrity to shift federal policy to greater responsibility for disaster relief, and to boost his presidential aspirations. Id . For discussions of law and policy pertaining to disaster relief and recovery , see, e.g., DISASTER LAW AND POLICY (James M. Chen et al. ed., Aspen Press 3 rd ) (2015); James M. Chen, Modern Disaster Theory: Evaluating Disaster Law as a Portfolio of Legal Rules , 25 EMORY INTERNATIONAL LAW REVIEW 1121 (2011); and Michele L. Landis, Fate, Responsibility, and “Natural” Disaster Relief , 33 LAW & SOCIETY REVIEW 257 (1999). 34 There was considerable political and scientific infighting over the best way to curb the river’s unbridled tendencies. Over the years, a combination of these approaches was used. Unfortunately, none were sufficient alone or in concert to protect the people and the land against the 1927 flood. See, e.g ., W.M. Black, The Problem of the Mississippi , 224 THE NORTH AMERICAN REVIEW 630 (1927); Martin Reuss, Andrew A. Humphreys and the Development of Hydraulic Engineering: Politics and Technology in the Army Corps of Engineers, 1850-1950 , 26 TECHNOLOGY AND CULTURE 1 (1985); and Mary G. McBride & Ann M. McLaurin, The Origin of the Mississippi River Commission , 36 THE JOURNAL OF THE LOUISIANA HISTORICAL ASSOCIATION 389 (1995). 35 NOAA, supra note 32. 36 BARRY , supra note 31 at 203.

9

Figure 9. A break in the barrier that released floodwaters onto the land

The failures and triumphs during this flood reflected America’s evolving approach to civil rights and disaster relief. This work explores circumstances surrounding the flood and mishandled relief efforts, and examines key legal decisions that shaped and reflected the culture that produced both the oppressors and the oppressed. The events comprised a drama populated with the suffering and disenfranchised, heroes and villains, artists bearing witness, a legendarily uncontrollable river and its land, and highly-charged political intrigue. Notable people and institutions that played important roles include presidential hopeful Herbert Hoover, the “Great

Humanitarian” who successfully led the Commission for Relief in Belgium which fed millions of hungry Belgians and French. At the time of the flood, he had become the U.S.

Secretary of Commerce, and was commissioned by the seemingly disinterested President Calvin

Coolidge to oversee the 1927 flood aid. 37 The American Red Cross was the private charitable organization responsible for furnishing disaster relief to flood victims. The Tuskegee Institute

37 Lohof, supra note 35 and DONALD J. LISIO , HOOVER , BLACKS , AND LILY -WHITES (University of North Carolina Press) (1985).

10 was founded by legendary former slave Booker T. Washington to “lift the man farthest down,” and had become an influential political “machine” in its own right. At the request of the ARC, the Tuskegee Institute (now Tuskegee University) formed the Colored Advisory Commission to investigate allegations of discrimination and abuse.38

Figure 10. The Colored Advisory Commission of the American Red Cross

After introducing key players and institutions taking part in this almost Shakespearean account, this work discusses the legal predicate of slavery, peonage, civil rights, and the judicial

38 The CAC Final Report listed the officers and members of the CAC as follows: Dr. Robert R. Moton, chairman (Principal of Tuskegee Institute); Bishop R.E. Jones, vice chairman (in charge of the Southwestern District of the Methodist Episcopal Church); Albon L. Holsey (Secretary to Dr. Moton and Secretary of the National Negro Business League); Dr. J.S. Clark, treasurer (President of Southern University); Eugene K. Jones (Executive Secretary of the ); Jesse O. Thomas (Field Secretary, the National Urban League); Mrs. (Director of the Atlanta Neighborhood Union); Miss Eva D. Bowles (Executive Secretary, National Y.W.C.A.); Claude A. Barnett (Director, Associated Negro Press); Dr. Roscoe C. Brown (former field worker for the U. S. Public Health Service and Assistant Secretary, National Medical Association); Miss Mary E. Williams (a Public Health Nurse under Tuskegee Chapter (the only Negro Chapter), American Red Cross); Robert R. Taylor (Vice-Principal and Director of Mechanical Industries at Tuskegee Institute); Dr. L. M. McCoy (President of Rust College, Holly Springs, Mississippi); Dr. J. B. Martin (Regional Director of the National Negro Business League); B.M. Roody (Vice President, National Negro Business League); Dr. S. D. Redmond (a large land owner in Mississippi and leader in civic and business affairs of his state); and Thomas Monroe Campbell (Field Representative, U. S. Department of Agriculture). CAC Final Report, supra note 2. In figure 10, Campbell is on the far right of the middle row. The allusion to the “man farthest down” is taken from the title of a book by Booker T. Washington. See BOOKER T. WASHINGTON & ROBERT E. PARK , THE MAN FARTHEST DOWN . A RECORD OF OBSERVATION AND STUDY IN EUROPE (Doubleday, Page & Co.) (1912).

11 treatment, particularly in the South. We are not informed by legal reporters of decisions concerning litigation that arose from the mistreatment of blacks as a consequence of the 1927

Mississippi River flood. The record does not indicate that the USDOJ or other authority prosecuted the abusers. This stands in contrast to the efforts two decades before by President

Theodore Roosevelt to investigate and pursue cases involving peonage and the use of

exploitative convict labor, which primarily affected poor Southern blacks. 39 Nonetheless, the judiciary played a significant if occasionally background role; decades of decisions affecting civil rights strongly affected black and white relationships, particularly in the Jim Crow South.

Although there are exceptions, court rulings and legal doctrines are generally couched in pedantic tones and are not usually compelling reading. Yet it is important to look beyond the language and oftentimes dry delivery to the principle involved. 40

39 President Theodore Roosevelt’s campaign against peonage is discussed in § 14. In practice, peonage and the misuse of convict labor were closely intertwined. This was recognized by U.S. Assistant Attorney General Charles W. Russell: I have no doubt, from my investigations and experiences, that the chief support of peonage is the peculiar system of State laws prevailing in the South, intended evidently to compel service on the part of the workingman. From the usual condition of the great mass of laboring men where these laws are in force to peonage is but a step at most. In fact, it is difficult to draw a distinction between the condition of a man who remains in service against his will, because the State has passed a certain law under which he can be arrested and returned to work, and the condition of a man on a near-by farm who is actually made to stay at work by arrest and actual threats of force under the same law. The actual spoken threat of an individual employer who makes his laborer stay at work against his will by fear of the chain gang and the threat of the State to send him to the chain gang whenever his employer chooses to have him arrested are the same in result and do not seem to me very different in any other way. CHARLES W. RUSSELL , UNITED STATES DEPARTMENT OF JUSTICE , REPORT ON PEONAGE 7–8 (1908). (USDOJ Report of 1908). 40 Judge Higginbotham’s analysis of James Somerset[t], a Negro v. Stewart , 98 ER 499 (1772), pointed out how that slave’s counsel made good use of the conflict of laws doctrine. Somerset was a slave in Virginia to a British officer, who was taken to England and then escaped but was recaptured. Somerset sued for his freedom, because slavery had been abolished there. Somerset’s lawyer reminded the court that its dilemma of whether to allow a slaveowner who brought a slave to English soil to keep him in bondage devolved upon choice of law. Would England choose to adhere to its own precedent and consider James Somerset free? Or, would it accept the dictates of a foreign power (here, its American colonies that were increasingly in rebellion) that compelled the slave’s return to his owner? See A. LEON HIGGINBOTHAM , JR., IN THE MATTER OF COLOR : THE COLONIAL PERIOD 9 (Oxford University Press) (1978). See also §§ 3 and 4 herein.

12

In the spirit of the traditional journalistic rubric, this work looks at the “who, what, when, where, and why” of forced labor in the United States as it evolved from chattel slavery to peonage. It considers the law, significant political figures and events, and relevant contemporaneous press accounts, all of which informed American public opinion. It focuses on these as a culmination of events leading to the mistreatment of workers in the Florida pines as represented by Clyatt and W.S. Harlan , as well as other peonage cases from the early 20 th century. These cases furnish insight into the treatment of forced laborers in the postbellum

South.

The “who” include those involved in specific prosecutions of peonage, principally the defendants, judges and lawyers, and politicians at the top echelons including presidents of the

United States, senators, and congressmen. The “what” is Theodore Roosevelt’s Progressive campaign against peonage, and the important U.S. Supreme Court decisions that ensued. The

“when” begins with the colonial period, and gives special emphasis to the post-Civil War period and early 20 th century when key events transpired. The “where” is the postbellum American

South, with special emphasis on Florida as the deeds in both Clyatt and W.S. Harlan occurred and the cases were initially tried there. The “why” is more complicated; while the debate will continue for years among academics, these peonage cases suggest that post-Emancipation racism and economic pressures contributed significantly to the workers’ victimization.

The 1927 flood swept away the homes and livelihoods of about 330,000 blacks, and dramatically changed the way of life that was founded upon chattel slavery. 41

This was an agricultural region where white owners were dependent upon African American

41 Jason David Rivera & DeMond Shondell Miller, Continually Neglected: Situating Natural Disasters in the African American Experience , 37 J. BLACK STUD . 502, 504-08 (2007).

13 farmhands, sharecroppers and tenant farmers. Their labor was customarily cheap, and obtained through peonage and rough treatment in a manner reminiscent of antebellum slavery. 42

Figure 11. Black flood victims camped atop the levee during the 1927 Mississippi River flood

Blacks’ suffering continued after floodwaters subsided. Hoover did not deliver on promised land reforms, and many joined the Great Migration west and northward, which the planters had sought to avoid at all costs. 43

42 Robyn Spencer, Contested Terrain: The Mississippi Flood of 1927 and the Struggle to Control Black Labor , 79 THE JOURNAL OF NEGRO HISTORY 170 (1994). 43 Lisio, supra note 37 at 224-25.

14

Figure 12. Refugees of the 1927 Mississippi River flood with their possessions and livestock

1.A. The Percys of Greenville, Mississippi

RATIONS IN GREENVILLE Red Cross rations and feed must be unloaded and stored and the Red Cross camp must be kept clean. This requires labor. The negroes to whom almost exclusively the rations are issued must supply this labor or be denied rations. The negroes in town outside of the camp have done nothing toward unloading and transporting the very food they ask for and receive. This is not only unjust and unpatriotic but throws too great a burden on negroes in levee camps. This will not be tolerated. As a remedy the following order has been issued. 1 – No rations will be issued to Greenville negro women and children unless there is [not] a man in the family, which fact must be certified to by a white person. 2 – No negro men in Greenville nor their families will be rationed unless the men join the labor gang or are employed. 3 – Negro men employed at $1.00 a day have the right to rations, if they have families. Those drawing a higher wage are not entitled to be rationed. 4 – All employers of negroes should give their employees a new ticket showing where they are working, marked with the date it is issued, showing the number in their families and whether they are being paid more than $1.00 a day. It would greatly facilitate our check if they furnish a list of their colored employees to E.D. Davis. 5 – All employers who can afford to pay the normal wage should do so and take the burden of feeding their labor off the Red Cross.

15

6 – Greenville negro men not employed on the levee will be given a labor ticket which will be punched each day they labor. 7 – Every three days rations for three days will be issued to negro men whose tickets show they are entitled to rations.

W.A. Percy Relief Chairman Committee May 23, 1927 The Daily Democrat-Times, Greenville, Mississippi, Monday, May 23, 1927 (Emphasis supplied.)

This controversial order, issued by William Alexander Percy, was not the only outrage of the 1927 Mississippi River flood, but it crystallized the starkly severe and disparate treatment meted to African American flood victims. Its harsh terms and celebrity author ignited activists. 44

Will Percy was one of two significant participants in the 1927 flood relief whose efforts left invaluable writings that reveal their motives and actions. Each was born in the South during the aftermath of the Civil War, and in literary tradition could be viewed as protagonists in telling the story. Their lives could not have been more different, as one was the child of African

American plantation slaves and the other was born into wealthy white slave-holding privilege.

CAC member Thomas Monroe Campbell left a record of a life spent in quiet service to others, and Greenville relief committee chair William Alexander Percy wrote of bygone days, duty, and good intentions that led to tragedy.

No telling of the 1927 flood would be complete without exploring the role of

Mississippi’s Percy family. Although this dissertation focuses on the acts and writings of its scion Will Percy, it was the irony of his life that he understood that he was best introduced as the son of LeRoy Percy rather than as a man in his own right. Revealingly, he entitled his

44 The order as transcribed here was found in the Tuskegee Archives. It was enclosed with a letter from “W.A. Percy, Chairman Washington County Chapter, American Red Cross” to “Mrs. John Hope, Member of Hoover Committee [the CAC], Tuskegee, Alabama” and dated June 3, 1927. Will Percy wrote to assure her that the order correctly contained the bracketed and underlined “[not]” (emphasis supplied) but that the Greenville newspaper had misprinted the order without that word. Although the purportedly misprinted version seemed to disqualify women and children without a man in the house from receiving rations, this was not the sole objection to the order, which treated blacks differently from whites. Tuskegee Archives, Papers of 1927 Flood (Tuskegee Papers of 1927 Flood).

16

autobiography as LANTERNS ON THE LEVEE : RECOLLECTIONS OF A PLANTER ’S SON .45 Former

Mississippi Governor and U.S. Senator LeRoy Percy 46 was a lawyer for national corporations such as the Illinois Central Railway Company. He was a governor on the St. Louis Federal

Reserve Board, a member of the U.S. Joint Immigration Commission, and a hunting companion of President Theodore Roosevelt. 47 This powerful and ruthless man was well-acquainted with

the crime of peonage. In 1907, LeRoy Percy’s political maneuvering and presidential

connections allowed him to avoid an indictment on peonage charges for mistreatment of Italian

immigrants at his Sunnyside Plantation. Unsatisfied with this victory, he retaliated by publicly belittling Mary Grace Quackenbos, the “lady lawyer” from who was instrumental in

seeking those charges, and convinced his friends in Congress to end USDOJ’s investigation. 48

Will Percy would have done well to remember this example of his father’s intense need to manipulate people and events to his own purposes. Here, past served as prelude in the controversy that erupted 20 years later with black flood victims. 49

45 Will Percy’s autobiography is WILLIAM ALEXANDER PERCY , LANTERNS ON THE LEVEE . RECOLLECTIONS OF A PLANTER ’S SON (Alfred A. Knopf) (1941). This work has been called “the finest expression extant of experience of life in the paternalistic mode of the southern planter.” William C. Havard, Review: The Intellectual as Southerner or the Southerner as Intellectual? , 34 THE REVIEW 213, 221 (1980). 46 LeRoy Percy is referred to here as Senator Percy to distinguish him from his son. 47 See Biographical Directory of the , entry for LeRoy Percy. Accessed on April 15, 2017 at http://bioguide.congress.gov/scripts/biodisplay.pl?index=p000223. 48 Randolph H. Boehm, Mary Grace Quackenbos and the Federal Campaign against Peonage: The Case of Sunnyside Plantation , 50 THE ARKANSAS HISTORICAL QUARTERLY 40 (1991). 49 David Levering Lewis recognized Greenville, Mississippi, as the “economic and political epicenter of the delta and satrapy of LeRoy and William Alexander Percy.” He described the Percys: “LeRoy and William, leonine father and inadequate son, represented the flower of the Southern plantocracy. LeRoy Percy, former U.S. senator and a Federal Reserve Board governor, sat on the board of the Carnegie Institution, and inspired genuine respect from Secretary of Commerce Herbert Hoover, charged by Coolidge to macromanage the flood crisis. LeRoy Percy sincerely believed in the feudal obligations of his class toward the who worked the incredibly rich black soil of his cotton kingdom. Son William was a tortured spirit whom would woefully outmatch.” DAVID LEVERING LEWIS , W.E.B. DU BOIS , 1919-1963: THE FIGHT FOR EQUALITY AND THE AMERICAN CENTURY 243 (Henry Holt and Co.) (2000).

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LeRoy Percy William Alexander Percy Figure 13. Photographs of Senator LeRoy Percy and son William Alexander Percy

William Alexander Percy was a Southern aristocrat, Harvard law graduate, planter, and celebrated writer. He was a mentor to and influence upon such Southern authors as William

Faulkner and the “Southern Agrarians” who included , , and Alan Tate. Will Percy had served as Hoover’s aide in Belgium during World War I, and was glad to work again with his former boss. Having been appointed by the mayor as head of the local flood relief committee in Greenville, it was Will who issued the controversial orders that resulted in blacks being detained in substandard camps, and forced to work on building levees or for white plantation owners. 50

50 Percy, supra note 45, chapter XX The Flood of 1927. Will Percy also faced allegations, if not official charges, of peonage, to which he responded with sarcasm. After his father’s death in 1929, among the holdings Will inherited was the family’s 20,000 acre Trail Lake plantation. Will described it as “so far from anywhere, so inaccessible to ‘the law’ … that the Negroes ran off one manager after another and terrified the whole countryside. [LeRoy Percy] sent down a young manager … who shot a tenant the day of his arrival [and] [q]uiet ensued….” The family operated the plantation using “profit-sharing [,] the most moral system under which human beings can work together.” Will Percy “continue[d] to be partners with the sons of ex-slaves and to share fifty-fifty with them” as before. He was angered that a 1936 sociological study by the University of North Carolina characterized the Trail Lake operation as peonage. “That very partnership … which had seemed to me so just and practical was being denounced as avaricious and slack – it was Mr. Roosevelt’s ‘infamous system.’ We who had operated our under it since carpetbag days were taunted now with being little better than slave-drivers by the ’ progeny and kin. Obviously we are given to depravity down here…: the South just won’t do…. [I realized that we] suffered from moral astigmatism – for all I know from complete moral blindness: we were infamous and didn’t even suspect it. Well, well, well. That makes a Southerner feel pretty bad, I reckon.” Id . at 277-82.

18

Figure 14. African American flood refugees encamped in tents atop the sodden levee

Father and son loved the Mississippi delta, each in his own way. As aristocrats, they regarded it as their duty to care for and serve as leaders in their hometown of Greenville. As can be seen from what took place during the flood, any benevolence bestowed by the Percys drew from significantly different motives. The Senator viewed black laborers as a commodity to be managed to the benefit of the planters. He had previously blocked incursions by the Ku Klux

Klan (KKK) not from kindness but to remove a threat to the planters’ continued access to the black workforce. 51

Will Percy’s sense of noblesse oblige stemmed from his belief that blacks were unable to care for themselves and that it was the duty of whites, especially those as well-placed as his family, to assume a paternalistic role. 52 He observed: “The American Negro is interested neither in the past nor in the future, this side of heaven. He neither remembers nor plans [whereas the]

51 LeRoy and Will Percy were “prime movers of Mississippi’s anti-Klan movement.” Both adopted the view of the Dunningites ( see § 3) that the originally constituted KKK “‘played so desperate but on the whole so helpful a part in keeping the peace and preventing mob violence.’” However, the Percys had little regard for the reconstituted Klan, particularly its anti-Catholic bias; LeRoy’s wife (Will’s mother) was Catholic. MATTHEW NEWTON , THE KU KLUX KLAN IN MISSISSIPPI : A HISTORY 87, n.54 (McFarland & Co.) (2010). 52 BERTRAM WYATT -BROWN , THE HOUSE OF PERCY : HONOR , MELANCHOLY, AND IMAGINATION IN A SOUTHERN FAMILY 226–46 (Oxford University Press) (1994). See also chapter 12, The Terrors of Klan and Flood .

19 white man does little else.” Will Percy characterized African Americans as shiftless, having

“abandoned farming” to work as servants and manual laborers. Or, they “grace[d] in idleness the poolrooms and gambling-halls of the colored end of town,” and had to be compelled by the white man to work. 53 He was a logical choice to head Greenville’s relief efforts: he was, after all, a

Percy, even if not quite cast from the same mold as his father. Further, Will Percy was uniquely experienced in relief work.54

There were some triumphs in the early days of flooding, as Greenville responded to the disaster. Will Percy wrote of the swiftly rising menace as it overtook the town’s Percy Street

“gliding, like a wavering brown snake.” 55 He found himself charged with the rescuing, housing, clothing, and feeding of “sixty thousand human beings and thirty thousand head of stock.” 56

Will Percy, who disdained lower class whites in addition to African Americans, paid puckish tribute to the bootleggers of the former caste who proved unlikely heroes in rescuing

53 Percy, supra note 45 at 23. 54 WYATT -BROWN , supra note 52 at 226-46. 55 Percy, supra note 45 at 250-51. 56 Percy, supra note 45 at 251.

20 flood victims by using their skiffs.

Figure 15. Small boats patrolling the flooded streets of Greenville, Mississippi during the 1927 flood

They rose to the occasion when Greenville’s most upstanding citizens were unable to do so. 57 Will Percy drew on his World War I experience to organize committees headed by fellow

civic leaders to administer relief.

57 Will Percy wrote vividly of bootleggers, who were among the unexpected heroes of the 1927 flood: …our first job was to get people out of trees and off of roofs, which, in addition to good will and heroism, of which we had plenty, required motor boats, of which we had none. We were desperate, but the Lord overlooking our lack of faith, performed one of His witty whimsical miracles: out of the White River poured a daring fleet of motor boats – the bootleggers! They shot the rapids of the break and scattered into the interior. No one had sent for them, no one was paying them, no one had a good word for them – but they came. Competent, devil-may-care pariahs, they scoured the back areas, the forgotten places, across fences, over railroad embankments, through woods and brush, and never rested until there was no one left clinging to a roof or a raft or the crotch of a tree.

21

As local ARC relief chairman, Will Percy initially planned to evacuate African

Americans, and had obtained agreement to do so from other committee members. Unbeknownst to Will, his father went behind his back. Senator Percy intervened at the behest of his fellow planters, who feared the blacks would not return once given the means to leave the area, especially after losing virtually everything they had to the flood. While relocating would be a boon for the blacks, their departure would decimate the planters’ source of inexpensive labor.

The Senator persuaded the committee heads to join him in betraying Will, and following the plan that most benefitted the planters. Without revealing his role in the plot, father told son that town leaders had changed their minds and insisted that the African Americans remain to carry out the cleanup work. Embarrassed and reluctant, Will Percy sent the away without the black refugees; it would be years before he learned of his father’s perfidy.58

Will Percy seems to have taken his humiliation out on the blacks with his orders for their subsequent harsh treatment. 59 Mississippi in 1927 was a time and place of antebellum perspective; segregated lives had been sanctioned by the U.S. Supreme Court in Plessy v.

Ferguson ,60 and restrictions on blacks’ freedom of movement harkened back to the days of Dred

Scott v. Sandford.61 Despite his lack of regard for African Americans, Senator Percy was regarded as moderate on race. By contrast, it was the credo of his political nemesis James K.

Percy, supra note 45 at 251-52. These poor whites might have been descendants of the “white yeomanry” who were not to be confused with the planter elite. The former were a priority to President ( see § 6). 58 Percy, supra note 45 at 257-58. 59 Their complex father-son relationship is explored in Will Percy’s 1941 autobiography; see Percy, supra note 45; LEWIS BAKER , THE PERCYS OF MISSISSIPPI (Louisiana State University Press) (1983); and Wyatt-Brown, supra note 52. 60 Plessy , 163 U.S. 537. 61 Dred Scott v. Sandford , 60 U.S. 393 (1857).

22

Vardaman 62 that: “If it is necessary every Negro in [Mississippi] will be lynched; it will be done to maintain .” 63

As a result of Senator Percy’s machinations, African Americans were cut off from leaving Greenville. They were confined for months in concentration camps under armed guard where they suffered murder, beatings, rapes, and other abuses. They were allowed to leave only to work on the levees or on a pass signed by their white bosses, who also had to approve their rations. When their requests for help went unmet, word was leaked to the Northern “Negro press.” Journalists told how the blacks’ hardships due to the natural disaster were compounded by harsh labor practices and an inimical, white-controlled Southern society. 64 Press accounts with such titles as Use Troops in Flood Area to Imprison Farm Hands; Herd Refugees Like

Cattle 65 and ‘ Work or Die’ Edict Perils Race: Flood Refugee Shot to Death by Cop 66 resulted in an outrage that threatened to disrupt the presidential aspirations of Herbert Hoover. He had counted on burnishing his reputation as the “Great Humanitarian” to become the most attractive candidate in the upcoming election. The ARC feared a loss of contributions, which were essential as the federal government then regarded disaster victim relief as a primarily private matter. 67 Hoover was called upon to answer to the press, the public, and the National

62 James K. Vardaman, newspaperman and journalist, failed to be elected to a number of political positions although he ultimately prevailed. He finally was elected to serve as Mississippi governor from 1904-1908 and as its U.S. Senator from 1913-1919. See http://bioguide.congress.gov/scripts/biodisplay.pl?index=V000070 . See also Willard B. Gatewood, Jr., A Republican President and Democratic State Politics: Theodore Roosevelt in the Mississippi Primary of 1903 , 14 PRESIDENTIAL STUDIES QUARTERLY 428 (1984). 63 RAY STANNARD BAKER , FOLLOWING THE : AN ACCOUNT OF NEGRO CITIZENSHIP IN THE AMERICAN DEMOCRACY 246 (1908). 64 William Howard, ’s Flood Stories and the Great Mississippi River Flood of 1927: Social and Historical Background , 16 SOUTH . LIT . J. 44, 45 (1984). 65 Use Troops in Flood Area to Imprison Farm Hands , DEFENDER , May 7, 1927. Tuskegee Papers of 1927 Flood. 66 “Work or Die” Edict Perils Race: Flood Refugee Shot to Death by Cop , CHICAGO DEFENDER , July 16, 1927. Tuskegee Papers of 1927 Flood. 67 BARRY , supra note 31 at 267-82.

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Association for the Advancement of Colored People (NAACP).68 He was challenged by U.S.

Senator Arthur Capper of , who became infuriated upon learning that African Americans were being housed in Jim Crow camps, and that many were made to wear tags “bearing the name of the refugee and the owner of the plantation from which he came.” 69 Hoover and the ARC asked Dr. R.R. Moton of Tuskegee Institute to appoint the CAC, which was instrumental in improving conditions for blacks and quelling scandal. 70 As a result of their thorough investigations and field interviews, the commission called for the same basic sanitation, sound nutrition, and adequate living conditions that were afforded to whites. As one angry CAC member wrote to President Coolidge, whites and their property were evacuated while “mules have been taken on board [as] Negroes [were] left in peril.” 71

Figure 16. African American flood victims in a refugee camp lined up for rations

68 LISIO , s upra note 37 at 8-9. 69 LOHOF , supra note 35 at 156, n.41. 70 BARRY , supra note 31 at 322-33. 71 PETE DANIEL , THE SHADOW OF SLAVERY : PEONAGE IN THE SOUTH 153–54 (University of Illinois Press) (1972) referencing a letter from Dr. Sidney Dillon Redmond to President dated April 30, 1927.

24

According to the CAC’s Final Report, an estimated 69% of the 325,146 refugees

(224,351 people) in the relief camps were blacks. After approximately 7,500 African Americans were prevented from leaving Greenville, Will Percy had to decide how to deal with this largely homeless community. Angered and humiliated by the change in plans, he proceeded with a heavy hand and issued several controversial orders.72 Many black refugees had little but the clothes upon their backs, and faced obstacles not imposed on whites in obtaining relief. As shown by Will Percy’s controversial order, African American men were required to go to the local Red Cross headquarters to obtain rations, and to work either as paid laborers or as volunteers. Black flood victims suffered greatly as a consequence of the flood, and many had hoped to leave the area due to the harm suffered by them, and the planters they worked for, during the flood. As one observer was quoted by Robyn Spencer: “Under their breaths they say confidently that they do not want to go back. This labor was kept in ignorance, poorly housed and in virtual peonage, is now out for the first time. It doesn’t want to go back without a struggle.” 73

1.B. Thomas Monroe Campbell of Tuskegee, Alabama

“Almost desperate...” I walked the streets for days seeking work and begging white people for jobs. I would go to the railroad station and meet the trains, hoping to earn something by carrying bags for drummers…. The situation made me almost desperate. Such experiences revealed to me why people without money and work are tempted to commit crime and how they feel justified in taking what does not belong to them…. One morning, while the ground was heavily covered with snow, I wrapped my feet in crocus sacks and with only a stick for a weapon, went to hunt rabbits…. Thomas Monroe Campbell 74

This analysis also focuses on Thomas Monroe Campbell, who played a pivotal role on behalf of Tuskegee in investigating allegations of peonage and brutality toward vulnerable black

72 Barry, supra note 31 at 131-49, chapter 8 The Last Flood . See also CAC Final Report, supra note 2. 73 Spencer, supra note 42 at 171. 74 THOMAS MONROE CAMPBELL , THE MOVABLE SCHOOL GOES TO THE NEGRO FARMER 32–33 (Tuskegee Institute Press) (1936). This quote summarized some of the difficulties encountered as he made his was to Tuskegee, Alabama.

25 flood victims. 75 Unlike the life of privilege enjoyed by LeRoy and Will Percy, the epigraph

above describes Campbell’s journey from rural Georgia to Tuskegee Institute as he sought a new

life.

Campbell’s story is one of struggle and survival. He overcame an impoverished, hungry

and neglected childhood, and had only brief formal schooling because his father kept him in the

landlord’s fields. His 1899 journey from rural Georgia to Tuskegee, Alabama, was undertaken

alone and as a 16-year old runaway. Campbell, who was nearly penniless, walked much of the

way and was ill-clad in bitterest winter. He found it difficult to find lodging and transportation,

as the trip took place just three years after the nation’s highest court sanctioned segregation in

Plessy .76 That decision made his travels even more difficult, as it legitimized the disparate

75 Austin’s thesis serves as an excellent and well-researched biography of Thomas Monroe Campbell. Deborah Waldrep Austin, THOMAS MONROE CAMPBELL AND THE DEVELOPMENT OF NEGRO EXTENSION WORK , 1883-1956 (Master’s thesis, , 1975). Obtained through interlibrary loan. Campbell was hand-picked by his mentor, Booker T. Washington, to be the first cooperative extension agent for the USDA. Campbell declined repeated offers of higher position, and remained devoted to the rural African American farmers whom he served. He and his wife Anna Marie Ayers Campbell, a registered nurse, had six children, whom they raised at Tuskegee. Five of these fought in World War II (one child died while at graduate school at Cornell). Wartime achievements of their children included the service of their son, Colonel William A. Campbell, Sr., as one of the famed and the first black pilot to bomb the enemy, and of their daughter, Captain Abbie Noel Campbell, as one of the first African American women to become an Army officer. Id . 76 As shown by Campbell’s autobiography ( supra note 74), he came from humble beginnings. His journey of about 225 miles from Elbert County, Georgia to Tuskegee, Alabama, was made during an exceptionally told time. He walked, hitched rides, and rode the rails when he could. The deprivations of his childhood were great. His mother and first stepmother died; his father, an itinerant Methodist preacher was frequently absent, and he and his older siblings were “hired out” by his father to work as farmhands and domestics. At a very young age, Campbell was left to care for his baby sister, Pearl. They were left “virtually alone in the home most of the time. I can never forget how frightened we were during those nights and how much we suffered from the consequent neglect. For example, there were many days when no meals were prepared and none to be prepared.” Id . at 4. Once Campbell, who had at most a couple of months of spasmodic schooling, reached Alabama, he held numerous jobs. Among these was being a buggy driver for Booker T. Washington, for whom Campbell had enormous regard: “While I was serving in this capacity, it was my privilege to drive him and many distinguished visitors about the campus. I would hear him discuss with these friends white and colored, some of the big and grave problems confronting Tuskegee and the Negro race. At all times I was impressed with the spirit of unselfishness in the attitude of this great man. I shall ever value my early association, in this humble capacity, with this great man.” Id. at 69-70. Campbell’s reference to the “Movable School” in entitling his book harkens back to his responsibility as a young field agent for taking the “Jesup Wagon,” which began as a mule-driven wagon then progressed to an equipped truck, filled with implements, pamphlets, and items to demonstrate to rural farmers better farming and housekeeping practices. His success helped convince the USDA to continue with the use of “negro field agents” to reach African American farmers, most of whom were impoverished and in need of assistance. Campbell was highly regarded by his clients, the Tuskegee Institute where his work was housed, and the USDA for his accomplishments and aid to the African American agricultural community. See, e.g., E.W. Crosby, The Struggle for Existence : The Institutionalization of the Black

26 treatment that barred him from most public accommodations. Documents found at the Tuskegee

Archives from Campbell’s files, as well as the R.R. Moton papers and those concerning the 1927 flood, provide first-hand insight into his life and the CAC’s work. 77

Thomas Monroe Campbell was a quiet civil rights hero, who worked tirelessly behind the

scenes for justice and racial harmony. Information about Campbell is offered, if you will, in the

nature of a Brandeis brief 78 ; raised in poverty, he struggled to overcome hunger, neglect, and ignorance. Although the narrative pertaining to Campbell, is not, strictly speaking, empirical evidence and is bereft of measurement, statistics, and experimental design, nor was he ever a party to or witness in a trial, 79 his experiences provide a deeply personal insight into the lives of post-Emancipation Southern blacks. This is especially true for those involved in agriculture,

then the economic mainstay of that region. 80 He was the first generation of his family to be born

County Agent System , 60 AGRICULTURAL HISTORY 123 (1986); E.W. Crosby, Limited Success Against Long Odds: The Black County Agent , 57 AGRICULTURAL HISTORY 277 (1983); K.J Ferguson, Caught in “No Man’s Land ”: The Negro Cooperative Demonstration Service and the Ideology of Booker T. Washington, 1900-1918 , 72 AGRICULTURAL HISTORY 33 (1998); L.O. Hines, George W. Carver and the Tuskegee Agricultural Experiment Station , 53 AGRICULTURAL HISTORY 71 (1979); Allen W. Jones, Improving Rural Life for Blacks: The Tuskegee Negro Farmers’ Conference, 1892-1915 , 65 AGRICULTURAL HISTORY 105 (1991); Allen W. Jones, Thomas M. Campbell: Black Agricultural Leader of the , 53 AGRICULTURAL HISTORY 42 (1979); Allen W. Jones, The South’s First Black Farm Agents , 50 AGRICULTURAL HISTORY 636 (1976); Allen W. Jones, The Role of Tuskegee Institute in the Education of Black Farmers , 60 JOURNAL OF NEGRO HISTORY 252 (1975); and Lewis W. Jones, The South ’s Negro Farm Agent , 22 JOURNAL OF NEGRO EDUCATION 38 (1953). See also Plessy , 163 U.S. 537. 77 Tuskegee Archives, Papers of Dr. R.R. Moton (Moton Papers); TMC Papers; and Tuskegee Papers of 1927 Flood. 78 Melvin I. Urofsky, Louis D. Brandeis on Legal Education , 22 THE AMERICAN JOURNAL OF LEGAL HISTORY 189 (1978). As counsel in Muller v. Oregon , 208 U.S. 412 (1908), Brandeis submitted an innovative brief that combined statistics and sociological information to support his legal arguments. Thereafter, such submissions have been known as “Brandeis briefs” in his honor. See https://louisville.edu/law/library/special-collections/the-louis-d.- brandeis-collection/the-brandeis-brief-in-its-entirety , accessed on April 18, 2017. 79 Campbell, supra note 74 at 14: “I often take pride in the fact that I never had to appear in court on trial or as a witness in my life….” 80 Even in 1927, over 60 years after the end of the Civil War, the plantation system remained a potent force in the economy and social system of the Mississippi delta region. As Hoover noted in correspondence with journalists inquiring into the distribution of aid: “We were … confronted with the fact that fully half of the agriculture in the flooded territory is in the form of large plantations, the owners of which normally borrow the money with which to carry on agricultural operations.” He explained: “We felt, and it has subsequently proved the case, that the volume of credit in the flooded territory was much impaired by the flood, and that if we were to prevent abandonment of these large planting operations, we must provide a supplementary avenue of credit.” Hoover said that plantation owners did not want nor was it appropriate to give donations of “nickels and dimes” to “people who, except for difficulties of credit, are entirely able to take care of themselves.” Lohof, supra note 35 at 207-08.

27 free. Campbell’s lifespan was roughly bounded by the U.S. Supreme Court’s decisions in the

Civil Rights Cases of 1883 81 and Brown v. Board of Education 82 in 1954. Like others of his time, he was profoundly affected by the “” injustices officially sanctioned by

Plessy .

This dissertation recounts some of Campbell’s experience as a member of the Colored

Advisory Commission. It explores original personal and institutional original documents pertaining to the flood that were generously shared by the Tuskegee Archives. During its investigation into the treatment of African Americans, the CAC was told how the “Colored refugees” were intimidated, and of situations in which “men carrying their belongings on their shoulders, leading their wives to points of safety, were held up at the point of guns, made to drop their belongings, leave their families and form into squads to work on the protection levee.” The

CAC learned that while passes were required to move about, “there was much discrimination in enforcing this law between white and Colored people. Cases were cited where Colored people, even though they had their passes, were roughly handled and insulted.” 83 As part of the commission’s investigation, Campbell and his colleagues met with the local leadership in

Greenville and elsewhere to learn more.

In addition to his service on the CAC and as a ground-breaking field agent for the USDA,

Campbell published three books, spoke frequently, and wrote a number of articles. He also interviewed former slaves to preserve their personal testimonies. In his 1936 autobiography,

THE MOVABLE SCHOOL GOES TO THE NEGRO FARMER , Campbell wrote of his lifework among poor farmers. Beginning in 1906 with a horse-drawn cart loaded with implements, seeds and soap, he carried out his mission as the USDA’s first black cooperative extension agent. He

81 , 109 U.S. 3 (1883). 82 Brown v. Board of Education , 347 U.S. 483 (1954). 83 Tuskegee Papers of 1927 Flood.

28 initially was sent to African American farmers in remote and desperately poor areas of Alabama; white farmers were separately served by white agents. Eventually, Campbell was promoted to

Field Agent for Alabama, Georgia, Florida, Mississippi, Louisiana, , and Georgia. He taught by example, helping his clients learn improved agricultural practices, and educating them in basic life skills such as personal hygiene and maintaining a sanitary home. Campbell braved racism all along the way, from whites in the communities he served and from within the USDA, which only grudgingly integrated its workforce at the encouragement of Booker T. Washington.

Campbell’s publications, augmented by his personal records, disclose a modest man of significant accomplishment. Among other achievements, he carried on the work of mentors

Booker T. Washington and renowned plant scientist . He also served as a confidential informant to the NAACP and USDOJ, and privately cared for victims of peonage. At Tuskegee, the building which served as the headquarters for “Negro extension work in Alabama” and is now home to the university’s College of Agricultural, Environmental and

Natural Sciences, is named “Campbell Hall” in his honor. 84 In 1930, he received the “Harmon

Award” for his distinguished contributions in the fields of farming and rural life. 85

84 See, e.g ., http://www.tuskegee.edu/Search.aspx?sterm=campbell , accessed on February 12, 2017. 85 See “Distinguished Alumni of Tuskegee University,” entry for Thomas Monroe Campbell, found at http://www.tuskegee.edu/about_us/legacy_of_fame/distinguished_alumni/thomas_monroe_campbell.aspx . Accessed on April 15, 2017.

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Booker T. Washington George Washington Carver Thomas Monroe Campbell

Figure 17. Photographs of Booker T. Washington, George Washington Carver, and Thomas Monroe Campbell

It is noteworthy that the Montgomery Advertiser , a white Alabama newspaper that did not always take a sympathetic view of the mission of Tuskegee or the struggle for black civil rights, published a glowing article upon Campbell’s retirement. Journalist Stuart X. Stephenson said that “light must have been born in his heart.” The writer observed that Campbell’s life was devoted “to improving what was once the ‘terrible’ condition for the Negro on the farm and his frank discussions of dismal situations were not born of discouragement.” Although Campbell retired from the USDA in 1954 after nearly 50 years of service, he remained “resigned to the relentless task of tearing away the mask of misunderstanding and ignorance and bringing out into the light all that is just and right in the world around us.” 86

1.C. The Influence of the Press

Print journalism was in its zenith in the early days of American progressivism. 87 At the beginning of the 20th century, radio was an increasingly important news source. There was no television or internet as yet, so most ordinary citizens learned of the world beyond their households through the written media. Historian Thomas D. Clark commented on the power of journalists of that day to influence social issues as part of their power to inform, inflame, and

86 Stuart X. Stephenson, Veteran Farm Leader Retires ... Then Goes to Work , MONTGOMERY ADVERTISER , June 20, 1954. TMC Papers. 87 MICHAEL NELSON , THE PRESIDENCY AND THE POLITICAL SYSTEM 260–63 (Congressional Quarterly Press) (2013).

30 expose wrongs. He recounted the difficulties of impecunious Southern states struggling to rebuild after the war, including the need to construct roads and railroads to create a modern transportation infrastructure. At the same time, states lacked funding to build and operate penitentiaries. The combined difficulties of unmet needs contributed to the states’ explicit and tacit approval of the use of forced labor, including peonage and convict labor. A number of states resolved their dual dilemmas of an insufficient workforce and the need to defray the costs of incarceration by the expedient of leasing convicts to private contractors, and by sentencing prisoners to construct public works. Despite the economic benefits to states and the private sector, the convict labor system was rife with corruption and abuse. Unscrupulous officials were known to manipulate the size of the prisoner population to meet the demands of local employers, particularly in the mining and steel industries, while fattening the public fisc. While facially beneficial in that states and local governments were spared the need to house and feed prisoners, at the same time, officials were financially rewarded for renting them out to work for private employers. It was a vicious practice, as exploitation of prisoners was their goal, not correction or rehabilitation. Newspapers were credited with exposing convict work camps as “place[s] of horror,” with “filthy living quarters, brutality, murder, and fraud.” 88

As the practice of peonage and exploited convict labor expanded, Americans became increasingly concerned as they learned of its adverse effects through the work of investigative journalists. People were awakened to the dreadful circumstances, such as how “[c]onvicts were moved from place to place on trains and through towns, and countless news stories revealed their

88 Thomas D. Clark, The Country Newspaper: A Factor in Southern Opinion, 14 THE JOURNAL OF SOUTHERN HISTORY 3, 22 (1948). Clark’s article is cited for the proposition that “most papers in the 1880s and 1890s clearly reflected the ‘Negro as beast’ thinking of the time.” Also, “editors revealed a ‘general fear of the Negro,’ whom they often depicted as uncivilized, a ‘wild, ignorant animal … [a] black sensual fiend, whose intense hatred of the white race would cause him to strike with demoniacal fury at an unguarded moment.’” See also Robert J. Norrell, Booker T. Washington: Understanding the Wizard of Tuskegee , 42 THE JOURNAL OF BLACKS IN HIGHER EDUCATION 96, 97 (2003).

31 miserable conditions.” 89 In 1898, the white Eufala, Alabama Times and News published a story that told of cruelties to convicts who were made to work at the Comer 90 and McCurdy mines that

“had few parallels.” The paper’s editor and future Alabama governor William D. Jelks cautioned: “Let free-born Alabamians shudder.” He warned that “people would be shocked to know what cruelty was practiced in the mining camps. When everybody else was drunk or wrapped up in George Washington and the American flag, convicts were being flogged to death on the Fourth of July.” 91

Clark credited newspaper editors for effectuating change, as they “accused the southern states of accepting blood money for their bestial practice of selling human souls to grasping contractors.” 92 State-sanctioned use of convict labor was frequently joined by exploiting indebted workers as cheap labor sources. As can be seen from the Clyatt case, convict laborers and peons represented phases of interrelated, coerced labor, particularly as defendants were made convict laborers as the result of extra-legal measures. For example, during a five-month period in one Florida town, “zealous local officials placed hundreds of men in a condition of peonage” to accommodate employers’ demands for labor. 93 The ill-treatment of peons and convict laborers was a continuation of slavery, just “by another name.” 94

89 Clark, supra note 88. 90 The first name of lauded historian C. Vann Woodward was “Comer.” He was related through his mother to the Alabama family and Governor Comer, who owned the mines. 91 Clark, supra note 88 at n.31 citing the Eufala, Alabama Times and News , July 17, 1898. 92 Clark, supra note 88 at 22. 93 N. Gordon Carper, Slavery Revisited: Peonage in the South , 37 PHYLON 85, n.4 (1976), citing the Jacksonville Florida Times-Union , April 21, 1907. 94 See, e.g ., DOUGLAS A. BLACKMON , : THE RE-ENSLAVEMENT OF BLACK AMERICANS FROM THE CIVIL WAR TO WORLD WAR II (Anchor Press) (2008).

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2. The Beginnings of Slavery in the American Colonies

Virginia Statute of 1705 It shall be lawful for any person or persons whatsoever, to kill and destroy such slaves by such ways and means as he, she, or they shall think fit, without accusation or impeachment of any crime for the same: And if any slave, that hath run away and lain out as aforesaid, shall be apprehended by the sheriff, or any other person, upon the application of the owner of the said slave, it shall and may be lawful for the county court, to order such punishment to the said slave, either by dismembering, or any other way, not touching his life, as they in their discretion shall think fit, for the reclaiming of any such incorrigible slave, and terrifying others from the like practices. 95

The law of the colonial South originated from a complex tapestry formed by threads of the

European nations that expanded into the New World and exploited its potential. England, Spain,

and France were chief among those that first sent its seafarers to far shores. The nations then

sent their citizens to perfect their claims of title and build settlements. Slavery in the American

colonies, which resulted from the massive transatlantic slave trade from Africa to the New

World, differed from forms practiced elsewhere. The Iberian form of bondage, practiced by

Spain and Portugal in their Latin and North American colonies, was no more benign than chattel

ownership but was based upon a contractual relationship between master and peon. Although

not popular in the original 13 American colonies, peonage became important as the United States

expanded its territory into lands formerly under Spanish control ( see § 8.C). 96 Particularly in the eastern portion of the continent that would become part of the United States, slavery was hallmarked by “its racial bedrock and its thoroughly commercial character.” 97 New World

colonies under British rule increasingly relied upon slavery based on chattel ownership of blacks.

95 Higginbotham, supra note 40 at 56, n.100. This statute is found in Hening Statutes, vol. 3, § 37 at 460-61. 96 Distinctions between Iberian and British forms of slavery become more interesting when comparing the peonage system that developed in Mexico with the chattel slavery of the United States. The contractual nature of the former, which was not predicated upon racial animus toward slaves descended from Africans like the latter, became the subject of the 1867 Peonage Act ; see § 8.C. L. Foner and Genovese brought together historians, sociologists, anthropologists, and economists in conducting a comparative analysis of slavery in the western hemisphere. They cautioned the need for care in “distinguish[ing] between societies in which slavery existed as one form of capital- labor relationship alongside other and more widespread forms and societies in which slavery was the prevalent capital-labor relationship and the mainspring for the production of a social surplus.” They make the important point that, in the New World, Europeans “created a system of colonial exploitation on a labor-basis they themselves had long since overturned at home.” SLAVERY IN THE NEW WORLD : A READER IN COMPARATIVE HISTORY ix (L. Foner & E. D. Genovese ed., Prentice-Hall, Inc.) (1969). 97 Philip D. Morgan, Origins of American Slavery , 19 OAH MAG . HIST . 51, 54 (2005).

33

The system was secularly-regulated, and expanded to meet capitalist-market driven labor needs.

It dehumanized its victims, discouraged , and gave masters almost unfettered dominion over their slaves. 98

Figure 18. African American slaves constructing a railroad

In addition to a colonial legal system that fostered chattel slavery, 99 other laws that would later figure significantly in the South’s postbellum use of forced labor was England’s regulation of vagrants and “tramps.” 100 An act of 1572 punished “roges, vagabonds, and sturdie beggars”

98 The origin of slavery in British colonies in the New World has been traced to 16 th century villeinage in England, which was a labor system in which the “unfree” worker was subject to rent and other demands of the landlord. See, e.g , Sidney W. Mintz in L. Foner and Genovese, supra note 96 at 27, 31. See also Mark Bailey, Villeinage in England: A Regional Case Study, c.1250-1349 , 62 THE ECONOMIC HISTORY REVIEW 430 (2009). 99 Chattel slavery is the ownership of another human as a form of personal property. “,” also known as debt enslavement or peonage, is an economic obligation that also binds one person to another but is grounded in contract, a different legal basis. See, e.g., E. Springs Steele, Henry George on Chattel and Wage Slavery: The American Social Philosopher Condemned Both Forms as Immoral, Irrational Denials of Equality , 46 THE AMERICAN JOURNAL OF ECONOMICS AND SOCIOLOGY 369 (1987). See also Ivan C. Rutledge, Regulation of the Movement of Workers: Forced Labor in the United States , 1953 WASHINGTON UNIVERSITY LAW REVIEW 150 (1953). 100 Vagrancy laws have been used to control laborers for centuries. As a former colony, many of the United States’ laws are derived from England. Vagrancy laws are traced to 1274, when financial relief was provided for religious organizations that aided travelers. In 1348, England’s first well-developed vagrancy statute punished those who did not work and those who came to their aid. It became unlawful to give alms to “valiant beggars” and required able- bodied men and women to work upon “pain of imprisonment.” The scope and penalties of England’s vagrancy statutes evolved. As of 1530, these laws were expanded to encompass other conduct, such as the use of “divers and

34 by having them “grievouslie whipped and burnt throughout the gristle of the right eare.” 101 A

“special clause” of the statute provided that any “beggars’ childe” over five years of age could be

compelled into service until age 24 for a male and 18 for a female. 102 The practice of punishing

the unemployed, forcing them to work, and obligating their children as apprentices carried

forward to the American South ( see §§ 8.A and 9). “Vagrancy” has been used not just to define a particular act of idleness, but as a “catchall category for social disorder indexed by, but not limited to, the perceived lower-class idleness….” Vagrancy laws serve “to create and regulate classes of laborers [that] continued into the eighteenth century and beyond.” 103

England also passed to its colonies a heritage of laws that allowed masters to compel

workers’ performance that combined elements of civil and criminal law. After losing a

significant portion of its population and labor force to the Black Death in 1348, England adopted

“statutes of laborers” that significantly increased masters’ control over the person of the worker.

The master, not the servant, was given the right to prosecute violators in the king’s court under a

written or oral labor agreement. Remedies given to the master allowed him to seize runaways

and force them to return to his household. Servants could also be fined for breach of contract. 104

subtle crafty and unlawful games and plays.” Punishments also became incrementally more severe. A 1535 statute called for recidivists to be repeatedly whipped and have their ears cropped. For the first time, the law also allowed violators to be put to death as felons. Branding vagrants with the letter “V” was permitted in 1547. Vagrancy was increasingly criminalized by laws that swept even more misdeeds under that rubric, including punishing “rogues,” whose acts were deemed more serious than mere idleness. As the United States adopted English law, some states tailored these statutes to reinforce particular social control; for example, targeted free blacks. At the heart of punishing vagrancy was that work is compulsory, and the laborer’s freedom to move about is curtailed. William J. Chambliss, A Sociological Analysis of the Law of Vagrancy , 12 SOCIAL PROBLEMS 67 (1964). As will be seen in American peonage cases, these two elements underpin that practice; see §§ 8-15. 101 Vagabond Act, passed by British Parliament in 1572. 102 Bram Stoker, The American “Tramp” Question and the Old English Vagrancy Laws , 190 THE NORTH AMERICAN REVIEW 605, 611 (1909). 103 Sarah Nicolazzo, VAGRANT FIGURES : LAW , LABOR AND REFUSAL IN THE EIGHTEENTH CENTURY ATLANTIC WORLD 17 (PhD diss., University of , 2014), accessed on April 10, 2017 at http://search.proquest.com.unr.idm.oclc.org/pqdtglobal/docview/1553208051/ECAFEFA34767415BPQ/1?accountid =452. 104 Laborers’ ability to migrate was increasingly curtailed, and violators were more harshly punished. These laws became more important after 1348, when England lost about 50% of its population to the Black Death. This decimated the nation’s economy, which was built upon cheap labor. There was also a societal shift, as remaining

35

In the United States, compelling blacks to work and consigning them to an inferior social

status dates to earliest colonial days, to the time a ship carrying the Virginia Colony’s first

Africans reached Jamestown in August, 1619. 105 According to a letter written by John Rolfe, the

“Dutch man of Warr” brought “20 and odd Negroes.” 106 There is no definitive proof that these

first Africans were enslaved. Then, the bondage of black and white indentured servants was

contractual, and their obligation was for a defined period. Until roughly the end of the 17 th century, Virginia planters generally preferred white indentured servants from England over

African slaves, 107 and it is not entirely clear at what point slavery was regularly instituted in the

British colonies. 108 A. Leon Higginbotham, Jr., 109 , Mary Handlin, and Oscar

Handlin agree that Africans and indentured whites of the early colonial era were both generally

under transitory servile obligations. 110 Colonial scholar Warren M. Billings observed:

“Preoccupation with the roots of modern racism obscures attitudes other than prejudice that

allowed Englishmen to find in chattel slavery solutions to their problems with labor and social

control.” He posited that 17 th century blacks, and indentured servants who generally were white,

workers gravitated to towns and away from villages and farms. England sought to shore up its traditional manorial system with further vagrancy statutes that forced laborers to accept low wages and protected landowners’ interests. Elaine Clark, Medieval Labor Law and English Local Courts , 27 THE AMERICAN JOURNAL OF LEGAL HISTORY 330, 334–35, n.4 (1983). By 1351, the law restricted workers’ freedom of movement, and required that they serve the town in summer where they had overwintered. Chambliss, supra note 100. 105 Engel Sluiter, New Light on the “20 and Odd Negroes” Arriving in Virginia, August, 1619 , 54 THE WILLIAM AND MARY QUARTERLY 395 (1997). 106 Recent scholarship showed that these Africans were Angolans who were captured by a Portuguese that was later seized by the British. See L.M. HEYWOOD & J.K. THORNTON , CENTRAL AFRICANS , ATLANTIC CREOLES , AND THE FOUNDATION OF THE AMERICAS , 1585-1660 (Cambridge University Press) (2007). 107 Warren M. Billings, The Law of Servants and Slaves in Seventeenth-Century Virginia , 99 THE VIRGINIA MAGAZINE OF HISTORY AND BIOGRAPHY 45 (1991). 108 Winthrop D. Jordan, Modern Tensions and the Origins of American Slavery, 28 THE JOURNAL OF SOUTHERN HISTORY 18, n.2 (1962) citing JAMES CURTIS BALLAGH , HISTORY AND SLAVERY IN VIRGINIA 28 ( Press) (1902). 109 Judge A. Leon Higginbotham, Jr., the seventh African American to be appointed an Article III judge, served on the Federal District Court for the Eastern District of Pennsylvania and as Chief Judge for the U.S. Court of Appeals for the Third Circuit. He wrote authoritatively on black culture and experience, and is regarded as among such legal luminaries as Justice . The son of a domestic worker and a laborer, Higginbotham “never forgot, and he never failed to remind others, from whence he came.” See, e.g., Richard W. Rose, A Tribute to Judge A. Leon Higginbotham, Jr.: Farewell to a Giant , 4 UNIVERSITY LAW REVIEW 387 (1999). 110 Jordan, supra note 108 at 21.

36 served in a contractually-based system with roots in medieval England.111 Africans were not routinely regarded as slaves until around 1660, when Virginia passed the first statutes bearing on slavery. This legislation heralded the beginning of “black codes” that treated blacks less equitably than whites. 112 Before then, the status of individuals was adjudicated on a case by case basis. 113

Slavery in colonial America was both de facto and de jure, and changed to reflect time and place as well as racial attitudes.114 The debasement of Africans was in place by 1640, when

Virginia taxed the masters of black men and women who worked the soil. 115 This was about the same period that some blacks’ terms of servitude were increased to their lifetimes and their obligation became transferrable to another boss. This was a very short step from acknowledging their master’s chattel ownership.116 Virginia blacks accused of misdeeds were tried in the same manner as whites until 1692, when separate tribunals were established. The procedural rules of these tribunals were different, and the punishments more dire for blacks. The practice of the specialized tribunals disallowing black testimony (whether by an enslaved or free person) against whites, later seen in Reconstruction-era black codes, dates to this system. 117

Higginbotham pointed out that the treatment of slaves as mere property, and less than fully human, endured for centuries. He cited a 1671 declaration of Virginia’s General Assembly

111 Billings, supra note 107 at 45-46. 112 Jordan, supra note 108 at 18–30. 113 Higginbotham, supra note 40 at 21. 114 Carter G. Woodson et al., Communications , 12 THE JOURNAL OF NEGRO HISTORY 330 (1927). 115 The disparate and increasingly degrading treatment of blacks was reflected in Virginia law. By 1640, they were treated differently than whites, even if working in the same capacity. Black men and women who worked the fields were considered titheables (taxable) although white workers were not. Racial distaste is shown in insulting comments in a 1656 tract described black women fieldworkers as “nasty and beastly.” Jordan, supra note108 at 23- 24, 26. 116 Jordan, supra note 108 at 23-26. See also W.T.M. Riches, White Slaves, Black Servants and the Question of Providence: Servitude and Slavery in Colonial Virginia 1609-1705 , 8 IRISH JOURNAL OF AMERICAN STUDIES 1 (1999). 117 Daniel J. Flanigan, Criminal Procedure in Slave Trials in the , 40 THE JOURNAL OF SOUTHERN HISTORY 537, 542–43 (1974).

37

“that sheep, horses, [and] cattle should be delivered in kind to an orphan when he comes of age, to which some have desired that Negroes be added.” A Virginia official of 1831 remarked that

“I have lately purchased four women and ten children in whom I have obtained a great bargain, for I really supposed they were property, as were my brood mares.” 118

As seen by a suit brought in 1655 by “Moletto” 119 Elizabeth Key, the “pretended Slave” who sought freedom, controversy over the rights of blacks and those of mixed race dates to the earliest colonial days. 120 She was born in Virginia about 1630, the illegitimate child of an

unnamed African 121 and her white master Thomas Key, a prominent English planter.122 After

Elizabeth’s paternity was established in a “bastardy” proceeding,123 Key assumed responsibility for his daughter’s upbringing, and had her baptized in the Church of England. Prior to his

118 A. LEON HIGGINBOTHAM , JR., SHADES OF FREEDOM : RACIAL POLITICS AND PRESUMPTIONS OF THE AMERICAN LEGAL PROCESS xxiii (Oxford University Press) (1996); see also n.4 citing HENING and n.5 citing WILLIAM GOODELL , THE AMERICAN SLAVE CODE IN THEORY AND PRACTICE : ITS DISTINCTIVE FEATURES SHOWN BY ITS STATUTES , JUDICIAL DECISIONS , AND ILLUSTRATIVE FACTS (American and Foreign Anti-Slavery Society) (1853). 119 Throughout this dissertation, certain terms are used that were once accepted in common parlance but are now regarded as offensive. With apologies, words such as “colored,” “moletto,” “,” and “octaroon” are cited in historic context and as they are used in writings and official documents; this is not intended as disrespectful. However, I have chosen to use the euphemism “n*****” throughout this work instead of the highly offensive term. 120 WARREN M. BILLINGS , THE OLD DOMINION IN THE SEVENTEENTH CENTURY : A DOCUMENTARY HISTORY OF VIRGINIA , 1606-1689 165–66 (University of North Carolina Press) (1975). Billings cited The Case of Elizabeth Key , 1855/56, Northumberland County Record Books, 1652-1658, fols. 66-67, 85, 1858-1660, fol. 28; Northumberland County Order Book, 1652-1665, fols. 40, 46, 49. 121 Although Thomas Key was brought to court to establish the paternity of his biracial daughter, there is no record that he was punished for miscegenation. According to Mumford, although “ was enforced from the beginning” of colonial Virginia, punishments for miscegenation were not typical until after the case of Hugh Davis . Kevin Mumford, After Hugh: Statutory Race Segregation in Colonial America, 1630-1725 , 43 THE AMERICAN JOURNAL OF LEGAL HISTORY 280 (1999). 122 Warren M. Billings, The Cases of Fernando and Elizabeth Key: A Note on the Status of Blacks in Seventeenth- Century Virginia , 30 THE WILLIAM AND MARY QUARTERLY 467, 468 (1973). According to Billings at n.4, Thomas Key, who died about 1636, “lived at Blunt Point, near modern-day Newport News, VA., and was a burgess for Denbigh in the General Assembly of 1629/30. H.R. McIlwaine, ed., Journals of the House of Burgesses of Virginia , 1619-1668/59 (Richmond, Va., 1915), xi.” The practice of white owners fathering children with their female slaves was well known in the South. First Lady Dolley Madison observed that Southern wives thus “‘became the chief slave in her husband’s .” DONALD LEE GRANT , THE WAY IT WAS IN THE SOUTH : THE BLACK EXPERIENCE IN GEORGIA 41 (Birch Lane Press) (1993). 123 Billings, supra note122. “Bastardy” proceedings were a relic of English law. They were used in the colonies to discourage immorality and ensure that the father and not the state supported the child. See, e.g ., Lindsay Moore, Single Women and Sex in the Early Modern Atlantic World , 5 EARLY MODERN WOMAN 223 (2010).

38 death,124 Key placed Elizabeth under her godfather’s guardianship, 125 with the conditions that he

“use her as well as if shee were his own Child” and grant her independence in nine years, when

she would reach what was then considered marriageable age.126 These promises were not

honored, 127 and she was transferred to Col. Mottrom. About 1650, Mottrom paid the passage of

a young white Englishman, William Grinstead, who worked for him as an indentured servant.128

After completing his service, Grinstead became a Northumberland County, Virginia planter, and he and Elizabeth Key were married. 129 Following Mottrom’s death in 1650, the executors of his estate listed the assets. These included Elizabeth, who was described as a “Negro,”130 which left

her vulnerable to sale or permanent bondage as a chattel slave. With William Grinstead acting as

her attorney, Elizabeth Key sued the overseers of Mottrom’s estate in 1650 to obtain her

freedom. 131 Her suit petitioned for liberation on several bases.132 In a case of first impressions,

William Grinstead posited theories that showed a keen understanding of then-societal norms and

law. He built on the legal foundation of the earlier adjudication that Elizabeth was the Virginia- born daughter of Englishman Thomas Key. Grinstead reasoned from this that, under

Jamestown’s 1606 Charter (the “First Charter of Virginia”), Elizabeth was a free-born English

124 Documents state that Elizabeth Key’s godfather, Col. Higginson, “was bound to carry” her to “England unto the said mr. Kaye,” but that Thomas Key died before the voyage could take place. Northumberland County Record Books, 1652-1658, fols. 66-67, 85, 1658-1660, fol. 28; Northumberland County Order Book, 1652-1665, fols. 40, 46, 49. 125 Billings, supra note 19 states at 468, n.6 that “Higginson was a member of the Council of State. McIlwaine, ed., Journals of the House of Burgesses , 82. Col. Higginson was also Elizabeth’s godfather.” 126 Billings, supra note 122 citing testimony of Anne Clark regarding the agreement between Thomas Key and Col. Humphrey Higginson regarding the treatment of Elizabeth Key. Northumberland County Record Books, 1652- 1658, fols. 66-67, 85, 1658-1660, fol. 28; Northumberland County Order Book, 1652-1665, fols. 40, 46, 49. 127 Billings, supra note 122 at 468. 128 Billings, supra note 122, n.7 citing NELL MARION NUGENT , CAVALIERS AND PIONEERS : ABSTRACTS OF VIRGINIA LAND PATENTS AND GRANTS , 1623-1800 198 (Dietz Publishing Co.) (1934). 129 Id . at p. 469. 130 Order recorded 21 st July 1656, Northumberland County Record Books, 1652-1658, fols. 66-67, 85, 1658-1660, fol. 28; Northumberland County Order Book, 1652-1665, fols. 40, 46, 49. 131 Id . 132 Taunya Lovell Banks, Dangerous Woman: Elizabeth Key’s – Subjecthood and Racialized Identity in Seventeenth Century Colonial Virginia . 41 Akron L.R. 799, 837, n.1 (2008). She stated that: “The extant court documents reporting Elizabeth Key’s case are reprinted in The Old Dominion in the Seventeenth Century: A Documentary History of Virginia, 1606-1690 165-69 (Warren M. Billings ed., 1975).”

39 subject. She was also a knowledgeable, baptized, and practicing Christian who could not be indefinitely enslaved under Christian doctrine. He argued that she was, at most, an indentured servant to her godfather who had served more than the obliged time.133 In July 1656 and after multiple appeals, Elizabeth Key was declared free.134

Prominent white Virginians were upset by her success, and that of a few other slaves who also obtained emancipation.135 Five years later, the Virginia General Assembly began adopting

“” that increasingly subjugated those of African descent.136 In December 1662,

Virginia changed the legal presumption that a child’s status derived from the father, as had been the case for Elizabeth Key. Thereafter, “all children born in this country shall be held or free only according to the condition of the mother.” The law was also changed to discourage racially-mixed relationships: “If any Christian shall commit fornication with a Negro man or woman, he or she so offending shall pay double fines” beyond those imposed for similar acts

133 Banks, supra note 132. 134 Billings, supra note 122 at 469. Despite the harsh treatment imposed by Virginia and other states upon interracial marriages and mixed blood children ( see, e.g ., DANIEL J. SHARFSTEIN , THE INVISIBLE LINE : THREE AMERICAN FAMILIES AND THE SECRET JOURNEY FROM BLACK TO WHITE (P ENGUIN PRESS ) (2011) and Daniel J. Sharfstein, The Secret History of Race in the United States , 112 YALE LAW JOURNAL 1473 (2003)), many Grinstead descendants children were regarded as white. Interestingly, the Public Broadcasting Service included James F. Grinstead, who became the first Republican mayor of Louisville, , in 1907, in a series on interracial families (THE BIRACIAL LINES OF FAMOUS FAMILIES . JAMES FAUNTLEROY GRINSTEAD PBS .ORG ). Accessed on April 21, 2017 at http://www.pbs.org/wgbh/pages/frontline/shows/secret/famous/grinstead.html. Yet, James F. Grinstead was listed as “white” in the 1910 U.S. Census for Jefferson County, Kentucky. 135 Billings , supra note 122. 136 In relevant court documents, Elizabeth Key is referred to variously as a “Molletto” and a “negroe.” See Northumberland County Record Books, n.1. See also Winthrop D. Jordan, American Chiaroscuro: The Status and Definition of Mulattoes in the British Colonies , 19 THE WILLIAM AND MARY QUARTERLY 183 (1962). Jordan stated that the term “ mulatto is not frequently used in the United States” as “Americans generally reserve it for biological contexts, because for social purposes a mulatto is termed a Negro .” Jordon pointed out that as having white blood was regarded as elevating one’s status, the word “mulatto” was adopted as were additional identifiers for the degree of that mixture. Id . Racial delineations became more important as states passed laws penalizing those considered black or of mixed blood. Under the “one drop rule,” persons of even distant African American or Native American ancestry could be considered persons of color and denied equal rights. This view persisted after ratification of the 13 th , 14 th , and 15 th amendments, which supposedly removed many of these racial barriers. William M. Carter, Jr., Class as Caste: The Thirteenth Amendment’s Applicability to Class-Based Subordination , 39 SEATTLE UNIVERSITY LAW REVIEW 813 (2016).

40 with whites. 137 In September 1667, Virginia further modified its laws to establish that the

“conferring of baptism does not alter the condition of the person as to his bondage or freedom.”138 In October 1670, Virginia approved the use of corporal punishment for slaves who

resisted their masters or were obstinate.139 And so through a series of laws that increasingly treated blacks as lesser beings than whites, chattel slavery became enshrined in Virginia, as it did throughout the South. 140

3. Slavery and the Antebellum United States Constitution

A man is not a mere chattel. He bears the impress of his Maker, and is amenable to the laws of God and man; and he is destined to an endless existence. Dred Scott , 60 U.S. at 549 (Justice John McLean, dissenting).

The unequal treatment of African American flood victims during the 1927 Mississippi

River flood can be viewed as part of a continuum in American history during which blacks continually strove for equal rights. After the United States won its freedom from England, the framers of the Constitution struggled to devise a national identity out of geographically, socially, and politically diverse areas. The resulting document combined lofty ideals and hard-fought

137 JANE PURCELL GUILD , BLACK LAWS OF VIRGINIA : A SUMMARY OF THE LEGISLATIVE ACTS OF VIRGINIA CONCERNING NEGROES FROM EARLIEST TIMES TO THE PRESENT (Whittet & Sheperson) (1936). Guild explained at 24 that beginning in 1691, it was illegal to perform a marriage between a white person with any Negro, mulatto, or an Indian, whether either party was bound or free. Wallenstein’s article on the landmark suit of Loving v. Virginia , 388 U.S. 1 (1967), in which the U.S. Supreme Court struck down laws that prohibited interracial marriage, cited this law. In 1691, Virginia Burgesses passed laws “‘for prevention of that abominable mixture and spurious issue.’” These laws did not then forbid mixed marriages per se but penalized the children thereof and banished interracial spouses from the commonwealth. In 1878, Virginia changed its law to outright forbid interracial marriages and sentence violators (even those married out of that state) to two to five years in the penitentiary. The Alabama Supreme Court struck down a similar law in 1872 as a violation of the 14 th amendment, and the that recognized the right to make contracts including one for marriage. However, that court soon overruled its decision. As late as 1966, all of the former Southern states that permitted slaveholding had similar laws banning interracial marriage on their books. These included Alabama, Arkansas, the Carolinas, Delaware, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, Missouri, , , Texas, Virginia, and . Peter Wallenstein, The Right to Marry: Loving v. Virginia , 8 OAH MAGAZINE OF HISTORY 37 (1995). 138 Newbell N. Puckett, The Negro Church in the United States , 4 SOCIAL FORCES 581, 583 (1926). See also Mumford , supra note 121 at 294-97. 139 Act I of October 1669, “An act about the casuall killing of slaves.” Source: Hening, ed., The Statutes at Large, vol. 2, at 270. 140 This point was reiterated by Chief Justice Taney in justifying his decision in Dred Scott . He recited various colonial and early American laws that treated blacks disparately, including the denial of state citizenship and prohibition of intermarriage with whites. Dred Scott , 60 U.S. at 413-18.

41 compromise that deferred difficult decisions over slavery.141 Having untethered the colonies from the motherland, there was great controversy over whether state or federal sovereignty would dominate. This led to increasing disquiet, particularly over slavery, and culminated in violence and finally war.

President Millard Fillmore wrote in 1850 that “God knows that I detest Slavery, but it is an existing evil, for which we are not responsible, and we must endure it, and give it such protection as is guaranteed by the Constitution, till we can get rid of it without destroying the last hope of free government in the world.” 142 This was written when the United States was coming apart over the issue of extending slavery within its bounds. Despite Fillmore’s belief that the

U.S. Constitution must remain supreme, a larger question loomed: just what did the antebellum

Constitution have to say about slavery? Perhaps President Andrew Johnson, not known for intellectual insight or legal depth, best reflected the views of Americans of that time who believed in the Constitution even if they were unsure just what it said. He is quoted as declaring:

“Honest conviction is my courage; the Constitution is my guide,” as well as: “I am sworn to uphold the Constitution as Andy Johnson understands it and interprets it.” 143

In 1843, influential abolitionist decried the framers’ decision to leave slavery an open issue: “The compact which exists between the North and South is a

141 Legal expert James M. Chen observed that the framers of the Constitution understood that the document reflected their understanding that the races were not equal. He commented: “[I]t defies belief that the framers of the Bill of Rights, who undoubtedly knew and intended the original Constitution’s separate and unapologetically unequal treatment of the races[n51], could have intended the concept of due process to embrace a norm of racial nondiscrimination.” James M. Chen, Come Back to the Nickel and Five: Tracing the Warren Court’s Pursuit of Equal Justice Under Law , 59 WASHINGTON AND LEE LAW REVIEW 1203, 1210, n.51 (2002). 142 MILLARD FILLMORE , MILLARD FILLMORE PAPERS 335 (Buffalo Historical Society Publications) (1907). Letter dated October 23, 1850 from Fillmore to . 143 ROBERT A. NOWLAN , THE AMERICAN PRESIDENTS FROM POLK TO HAYES : WHAT THEY DID , WHAT THEY SAID & WHAT WAS SAID ABOUT THEM 435 (McFarland & Co.) (2012).

42 covenant with death and an agreement with hell.” 144 He had a point; while the Constitution did not explicitly permit slavery, it arguably facilitated its existence by “affect[ing] a variety of issues, including representation, taxation, domestic , congressional regulation of commerce, the executive function, and interstate rendition of fugitives.” 145

With a few exceptions, the Constitution resorted to such euphemisms as “a person held to service or labor” rather than “a chattel slave,” although it was understood that these were the same. It incorporated slavery in various ways, including providing specific protection of the imported slave trade from federal regulation for another 20 years. 146 In a sectional compromise that accommodated Southern slaveholders, the Constitution increased their Congressional representation by enumerating “all other persons” (understood to be the enslaved) at a lesser rate than whites, and used this discounted census in assessing certain taxes. 147 By the middle of the

18 th century, slavery was entrenched in the colonies, and targeted almost exclusively those of

African descent. The racial overtones of slavery continued even for those who obtained freedom by operation of law, manumission, 148 running away, or purchase of their freedom. 149 Freedmen

144 Ira V. Brown, An Antislavery Journey: Garrison and Douglass in Pennsylvania, 1847 , 67 PENNSYLVANIA HISTORY : A JOURNAL OF MID -ATLANTIC STUDIES 532, 547 (2000). 145 , The Pennsylvania Delegation and the Peculiar Institution: The Two Faces of the Keystone State , 112 PA. MAG . HIST . BIOGR . 49 (1988). 146 U.S. Const., art. I, § 9, cl. 1. This provision of the Constitution, which was ratified in 1788, prohibited Congress from prohibiting, before 1808, “the “migration or importation of such persons.” As Finkelman explained: “This ‘dirty compromise’ of the [Constitutional] Convention gave the states the commerce clause they wanted and allowed and all other states to import slaves for at least twenty more years.” Paul Finkelman, Suppressing American Slave Traders in the 1790s , 18 OAH MAGAZINE OF HISTORY 51 (2004). Congress passed the which became effective on January 1, 1808, which ended by statute the importation of new slaves. See the Slave Trade Act of 1807, ch. 22, 2 Stat. 426 (1807). 147 U.S. Const., art. I, § 2, cl. 3. This compromise gave Southern states greater power in Congress and resulted in their greater sway over presidential elections thanks to their increased numbers in the electoral college. These states’ larger representation in Congress facilitated their influence in that body, and strengthened their ability to resist abolition for a longer period. Howard A. Ohline, Republicanism and Slavery: Origins of the Three-Fifths Clause in the United States Constitution , 28 THE WILLIAM AND MARY QUARTERLY 563 (1971). In 1779, the Continental Congress lifted the four-year ban on the slave trade that had been adopted as part of its boycott of British trade. Georgia’s 1789 constitution authorized foreign slave trade there, although the practice had been either ended or suspended by every other state. Grant, supra note 122. 148 “Manumission [is] the freeing of a slave from bondage” by the owner. This can be done by a grant of emancipation, contract, testamentary devise, operation of law, or other means. Shawn Cole, Capitalism and

43 were usually readily identifiable by their skin tone, subjected to re-enslavement by the unscrupulous, and treated as legal inferiors by whites. 150 The enslavement of African Americans was an important economic driver, particularly in the South, that compelled workers to labor at the will of their owners, and strengthened a social order that afforded whites a superior status.

Slavery was practiced in many forms, and was as variable in harshness as local custom permitted and the individual owner chose. 151

Figure 19. Left: An African American slave scarred by the lash Right: An African American slave confined by an iron collar

Freedom: and the in Louisiana, 1725-1820 , 65 THE JOURNAL OF ECONOMIC HISTORY 1008 (2005). 149 Some slaves obtained freedom by purchasing themselves, or another slave (usually a family member), from the chattel owner. Ronald Findlay, Slavery, Incentives, and Manumission: A Theoretical Model , 83 JOURNAL OF POLITICAL ECONOMY 923 (1975). 150 , FOREVER FREE : THE STORY OF EMANCIPATION AND RECONSTRUCTION 8 (, Inc.) (2005). 151 Martin Ruef & Ben Fletcher, Legacies of American Slavery: Status Attainment among Southern Blacks after Emancipation , 82 SOCIAL FORCES 445 (2003). Although some slaves told stories of kind masters and benevolent treatment, even those reported whippings. Others recounted terrible acts of violence. In 1837, one told of brutality he had witnessed: “‘I have seen a Christian professor, after the communion, have four slaves tied together and whipped raw, and then washed down with brine.’” Slaves were beaten to death for infringements such as aiding fugitives, traveling without a pass, and passing as white. Grant, supra note 122 at 30-31.

44

3.A. Constitutional Provisions Affecting Slavery

The Constitution omitted clarification of the future of slavery and the legal fate of minorities, whether enslaved or free. The few and veiled references to slavery are susceptible to different meanings. For example, while Article 1, § 9 has been characterized by some as abolishing the slave trade, the clause only placed a moratorium until 1808 on ending that practices but did not mandate that it forever cease. 152 One perspective, attributed to future president and Virginian , was that this provision protected slavery, as Congress was deprived of authority over its regulation, with the sole exception that it could not ban the trade for a stated period.153 Likely, each side believed that within 20 years it would have sufficient political power to ensure that the institution remained under its control.

Widely cited in support of the idea that chattel slaves were regarded as lesser beings than whites, Article 1, § 2, cl. 3 provides a curious calculus for determining the number of

Congressional representatives from each state. This clause enumerates population by counting as “whole” those “free Persons,” which included indentured (almost always white) servants. The clause excludes Indians from the tally, but counts “other Persons,” understood to be slaves, on a

“three-fifths” ratio and thus less than a “whole” person.154 This ratio is also used in assessing certain taxes based upon population (a “capitation” tax). Controversy continues over whether

152 U.S. Const., art. I, § 9. 153 Walter Berns, The Constitution and the Migration of Slaves , 78 YALE LAW JOURNAL 198, n.3 (1968): “That James Madison lent his authoritative voice to this interpretation may account for ’s adoption of the Southern reading of the clause in his influential JOSEPH STORY , COMMENTARIES ON AMERICAN LAW 233 ( & Cambridge) (1847). Chancellor Kent’s Commentaries on American Law had taken the same position. [ , COMMENTARIES ON AMERICAN LAW 196 (Da Capo Press Reprint) (1971).]” 154 U.S. Const., art. I, § 2, cl. 3 provides: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” Although slaves were enumerated for population purposes, they were not allowed to vote in federal elections. At times prior to ratification of the 14 th amendment, certain states permitted free black males to vote in state elections. Without access to the ballot box, African Americans were unable to effectuate the end of slavery by electoral means. See, e.g ., Garrett Epps, The Antebellum Political Background of the Fourteenth Amendment , 67 LAW AND CONTEMPORARY PROBLEMS 175, 206 (2004).

45 these and related clauses demonstrate that the Constitution relegated slaves to the status of property. While the document is not straightforward, it was the creation of elite white men.

They did not include other races or women in the debate or ensure their interests were represented, and history shows that the framers understood this dichotomy.155 All in all, there

are numerous provisions of the antebellum Constitution that concerned slavery. Slavery may not be mentioned by name, but each of these affects its practice, and the relative rights of slave

owners and the enslaved. These are summarized as follows:

Table 1. Provisions of the Antebellum United States Constitution Concerning Slavery 156

Provision Summary Effect on Slavery Art. I, § 2, ¶ 3 Slaves are counted as “3/5 ths ” a person for determining Congressional Significant representation. Gives slaveholding states an advantage in the Electoral College without allowing slaves to vote. Art. I, § 2, ¶ 4 Direct taxes paid by states to the national government on a per capita Significant basis counted slaves at the rate of 3/5 ths a person. Art. I, § 8, ¶ 4 Congress is given regulatory power over naturalization; this has been Indirect; original debates used to exclude nonwhites from citizenship. show pro-slavery influence Art. I, § 8, ¶ 15 Allows Congress to call in “insurrection”; this was used Less direct, but still against slaves & opponents of slavery. supports slavery Art. I, § 8, ¶ 17 Congress being given “exclusive jurisdiction” over the District of Indirect; original debates Columbia allowed slavery to continue there until the Civil War. show pro-slavery influence Art. I, § 9, ¶ 4 Prohibits Congress from prohibiting the “migration or importation” of Significant “such persons” (slaves) before 1808 but allowed duty of $10/person. Art. I, § 9, ¶ 5 Prohibits federal excise tax on exports, thus protecting primarily Less direct, but still agricultural enterprises based on slave labor. supports slavery Art. I, § 10, ¶ 2 Prohibits states from taxing imports without Congressional approval, Less direct, but still thus protecting items produced by slave labor. supports slavery Art. II, § 1, ¶ 2 Electoral college provision gives whites in slaveholding states Less direct, but still influential benefit of counting non-voting slaves at “3/5 ths ” of a person supports slavery Art. III, § 2, Diversity jurisdiction clause allowing “citizens of the United States” Indirect; original debates ¶ 1 to access federal courts; used in Dred Scott to deny slaves the right of show pro-slavery citizenship. influence Art. IV, § 1 “Full faith and credit” clause required free states to recognize laws Indirect; original debates from other jurisdictions that protected slavery. show pro-slavery influence Art. IV, § 2, “Privileges and immunities” clause entitles “citizens of each state to Indirect; original debates

155 See, e.g ., Paul Finkelman, Slavery and the Constitutional Convention: Making a Covenant with Death , in BEYOND CONFEDERATION : ORIGINS OF THE CONSTITUTION AND NATIONAL IDENTITY 62-83 (Richard Beeman et al, ed.) (University of North Carolina Press) (1987) and WILLIAM M. WIECEK , THE SOURCES OF ANTISLAVERY CONSTITUTIONALISM IN AMERICA 1760-1848 1769 ( Press) (1977). 156 Derived in part from information compiled by THE CONSTITUTION AND ITS AMENDMENTS , VOL . 4 at 147 (R. K. Newman ed., Macmillan Reference USA) (1999).

46

¶ 1 all privileges and immunities of Citizens in the several States.” This show pro-slavery was used by slave states to deny rights to slaves and freedmen that influence were granted by other states. Art. IV, § 2, “Fugitive slave” clause prohibited states from freeing fugitive slaves Significant ¶ 3 and required their return “on demand.” Art. IV, § 3, Provides for the admission of “new states,” which would allow more Less direct, but still ¶ 1 slaveholding states. supports slavery U.S. Const., “Territories” clause allowing Congress to regulate territories; used to Indirect; original debates art. I, § 9, ¶ 4 forbid slavery after 1820 until Dred Scott in 1847 held it could only show pro-slavery protect but not ban slavery. influence Art. IV, § 4 “Domestic violence” portion of “guarantee” allows the use of Federal Less direct, but still troops. This force was used against Nat Turner’s 1831 Rebellion and supports slavery ’s 1859 raid. Art. V Sets requirements for calling a Constitutional convention. Also Significant prohibits any amendment prior to 1808 on Art. 1, § 9, cls. 1 & 4 regarding the importation of slaves and capitation tax clauses. Amendment V Requirement of a ¾ majority of states to ratify amendment increased Less direct, but still Southern odds of rebuffing an amendment allowing abolition or supports slavery emancipation.

Abraham Lincoln maintained that the framers used “covert language” 157 in referring to slavery with the purpose “that in our Constitution, which it was hoped and is still hoped will endure forever – when it should be read by intelligent and patriotic men, after the institution of slavery had passed from among us – there should be nothing on the face of the great charter of liberty suggesting that such a thing as negro slavery had ever existed among us. This is part of the evidence that the fathers of the Government expected and intended the institution of slavery to come to an end….” 158 Others believed that the framers deliberately deferred a determination to future politicians without that lofty thought, as a solution remained beyond their grasp.

James Madison, known as the “Father of the Constitution,” 159 said that as “Slaves are considered as property” and not persons, perhaps they should be “comprehended in estimates of taxation” but “excluded from representation which is regulated by a census of persons.” He characterized slaves as of “mixt character of persons and of property,” as they were “compelled

157 See, e.g ., Herman Belz, Abraham Lincoln and American Constitutionalism , 50 THE REVIEW OF POLITICS 169 (1988). 158 Abraham Lincoln, speech of June 26, 1857 in Springfield, Illinois. 159 Harold C. Schultz, James Madison: Father of the Constitution? , 37 THE QUARTERLY JOURNAL OF THE 215 (1980).

47 to labor not for himself, but for a master; in being vendible by one master to another master; and in being subject at all times to be restrained in his liberty … by the capricious will of another, the slave may appear to be degraded from the human rank, and classed with those irrational animals, which fall under the legal denomination of property.” Madison opined: “If the laws were to restore the rights which have been taken away, the negroes could no longer be refused an equal share of representation with the other inhabitants.”160

3.B. Slavery, the State and United States Constitutions, and Territorial Expansion

The word “slavery” did not appear in the U.S. Constitution until it was prohibited by the

13 th amendment in December 1865. Yet slavery was an important consideration for the

Constitutional Convention, and this, along with the primacy of state versus federal sovereignty, were bones of contention long before the Civil War. For example, the Kentucky and Virginia

“Resolutions” allowed states to reject and even nullify federal enactments and policies. 161

Virginian 162 and South Carolinian John Caldwell Calhoun, 163 two of the

160 James Madison, The Federalist Papers No. 54: The Apportionment of Members Among the States , THE FEDERALIST PAPERS (1788) 366-67. Accessed on March 10, 2017 at http://avalon.law.yale.edu/18th_century/fed54.asp. 161 ROBERT V. REMINI , A SHORT HISTORY OF THE UNITED STATES 127-54, 163–94 (HarperCollins) (2008). The Kentucky and Virginia Resolves of 1798 and 1799 were drafted by Thomas Jefferson and James Madison respectively. The concept of states’ ability to nullify federal laws they disagreed with became an important factor in secession, as the Southern states chafed under perceived Congressional overreaching. 162 The White House biography of Thomas Jefferson notes that he was the third president, a Virginian of high social standing, a lawyer, and an extensive landowner. Jefferson served as U.S. Minister to France, Secretary of State under President Washington, and vice president under . Jefferson was also a draftsman of the Declaration of Independence and the U.S. Constitution, instrumental in obtaining the , and governor of Virginia. See https://www.whitehouse.gov/1600/presidents/thomasjefferson , accessed on April 10, 2017. He directed that his headstone was to list him as “Author of the Declaration of American Independence [and] of the Statute of Virginia for religious freedom & Father of the .” See https://www.monticello.org/site/research-and-collections/jeffersons-gravestone , accessed on April 28, 2017. 163 The provides a short biography of Calhoun: In addition to 15 years as a U.S. senator, John C. Calhoun of South Carolina served as president of the Senate (vice president of the U.S.). He was a key figure in the Senate's Golden Era , a period in Senate history marked by heated debates over slavery and territorial expansion. Calhoun was the Senate's most prominent states' rights advocate, and his doctrine of nullification professed that individual states had a right to reject federal policies that they deemed unconstitutional. When a 1957 Senate committee announced that Calhoun had been selected as one of the Senate’s [select] “Famous Five ,” chairman John F.

48 nation’s most prominent 19 th century politicians and white Southern slaveholders of means, differed over the wisdom of expanding slavery. Jefferson, who had a complicated personal history toward slavery, forecast its ultimate but difficult demise as unworkable in other regions:

“But, as it is, we have the wolf by the ear, and we can neither hold him nor safely let him go.

Justice is on one scale, and self-preservation on the other.” 164

Calhoun was among those who rationalized slavery as salubrious to both black and white

Americans. He regarded it as the bedrock of Southern plantation society, which he termed an

“aggregate of communities, not of individuals” where “labor and capital is [sic] equally represented.” As Calhoun responded in 1838 to abolitionists’ criticism: “A mysterious

Providence had brought together two races, from different portions of the globe, and placed them together in nearly equal numbers in the Southern portion of this Union [to secure] the peace and happiness of both.” He said that the South had thoughtfully concluded that slavery was a worthy system for both owner and slave: “This agitation has produced one happy effect at least; it has compelled us [in] the South to look into the nature and character of this great institution, and to correct many false impressions that even we had entertained in relation to it. Many in the South once believed that it was a moral and political evil; that folly and delusion are gone; we see it now in its true light, and regard it as the most safe and stable basis for free institutions in the world.” 165

“States’ rights” has been used as a euphemism for promoting pro-slavery interests, and the phrase gained momentum as the United States added vast new lands to the west. Issues included

Kennedy praised Calhoun for being a “forceful logician of state sovereignty" and a "masterful defender of the rights of a political minority against the dangers of an unchecked majority." Accessed on April 15, 2017 at https://www.senate.gov/artandhistory/history/common/generic/Featured_Bio_Calhoun.htm. 164 W.G. Bean, Anti-Jeffersonianism in the Ante-Bellum South , 12 THE NORTH CAROLINA HISTORICAL REVIEW 103, 123, n.63 (1935): “Notes on Virginia (Richmond, 1853), 175.” Letter of April 22, 1820 to John Holmes. 165 Calhoun’s January 12, 1838 speech told of the importance of domestic slavery . See also Bean, supra note 164 at 104, n.1 citing “Works (New York, 1853), III, 180.”

49 whether the federal government, or the states and territories, had the right to control the expansion of slavery and the sectional balance of power. In 1819, the country was bitterly torn over whether to admit Missouri, formerly part of the vast Louisiana Purchase of 1803. Its admission as a slave-owning state would extend the geographical reach of slavery. Under the controversial 1820 , was admitted as a free state and Missouri as a slave state, thus preserving for a period the Congressional symmetry between slave and free states. The act also prohibited slavery in the majority of lands, obtained through the Louisiana

Purchase, which lay north of the 36° 30’ north latitude (the 36/30 line). 166 This allowed a period of relative peace, at least until the and the Kansas-Nebraska Act of 1854, which repealed the 1820 act. The 1854 act had significant political repercussions, including the rise of the Republican Party, which promoted abolition and advocated the “free labor” position of the North.167

166 REMINI , supra note 61 at 63-94, 127-54. 167 Foner, supra note 150 at 30-31.

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Figure 20. Map of the United States, 1821 http://etc.usf.edu/maps/pages/3300/3302/3302.htm University of South Florida 2009

51

Figure 21. Map of the United States, 1830 https://etc.usf.edu/maps/pages/3300/3303/3303.htm University of South Florida 2009

52

Figure 22. Map of the United States, September 1850 http://etc.usf.edu/maps/pages/2900/2906/2906.htm University of South Florida 2009

53

Figure 23. Map of the United States depicting areas of freedom and slavery in 1854 https://etc.usf.edu/maps/pages/800/808/808.htm University of South Florida 2009

54

Figure 24. Map of the United States, 1860 http://etc.usf.edu/maps/pages/3300/3339/3339.htm University of South Florida 2009

55

Figure 25. Map of the United States During the Civil War http://etc.usf.edu/maps/pages/7700/7726/7726.htm University of South Florida 2009 3.C. “Trafficking in Other Men’s Souls” 168 : The Monetary Worth of a Chattel Slave

Historian James L. Huston posited that “southern secession grew out of the irreconcilability of two regimes of property rights: one in the South that recognized property in humans and one in the North that did not.” As long as the regions functioned at a distance, each developed a distinctive economy with relatively minimal mutual competition. The largely agrarian South prospered in a manner that the more industrial North did not, and vice versa. 169

168 When Samuel Claytor Moore was notified in 1836 to return from Tennessee to his father’s home in Virginia to claim that portion of his estate comprised of slaves, Moore refused. He said: “I have never before trafficked in men’s souls and shall not begin to do so now.” Moore family papers (author’s collection). 169 Robert S. Starobin contended that insufficient attention has been given to industrialization in the South, and the value of the role played by slaves. While most slaves worked in agriculture, a meaningful number were engaged in the industrial sector. He posited that as regional economies developed, slavery and wage labor were not “polar

56

As transportation improved, these regions came increasingly into contact and conflict. Even if the divergent economies could be reconciled, views on chattel slavery could not. 170 Huston furnished statistics to substantiate slaveholding as a major property interest. The value of slaves, who were located almost exclusively in the South, was calculated in 1860 according to “Virginia prices” as “$2,800,000,000.” 171 The 1859 population of the slaveholding states was estimated at

12,240,300, of whom 65.7% were white, 2% were free blacks, and 32.3% were slaves. 172 Lest the importance of humans as property of worth be misunderstood, information from the 1860 federal census “shows that slaveholding comprises far more national wealth than railroads and manufacturing enterprises combined.” 173 Slaves were regarded as a highly “productive” form of investment. For example, their numbers increased by natural means as well as by importation

(even though outlawed by statute beginning in 1808), and their labor generated a large income stream for their owners through farming and plying other trades. 174

opposites,” but “slightly dissimilar means of organizing workers to develop agriculture or industry.” Robert S. Starobin, INDUSTRIAL LABOR IN THE OLD SOUTH , 1790-1861: A STUDY IN POLITICAL ECONOMY i–vi (PhD diss., University of California, Berkeley, 1968). Accessed on April 2, 2017 at http://search.proquest.com.unr.idm.oclc.org/pqdtglobal/docview/302317229/8C513898106451BPQ/8?accountid=45 2. 170 James L. Huston, Property Rights in Slavery and the Coming of the Civil War , 65 THE JOURNAL OF SOUTHERN HISTORY 249 (1999). 171 Huston, supra note 170 at n.14 citing the speech of William L. Yancey in the Louisville, Kentucky Daily Courier , October 24, 1860. 172 Huston , supra note 170 at n.13. 173 Huston , supra note 170 at n.16. 174 Huston , supra note 170 at 255.

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Figure 26. Map of United States during the Civil War showing Status of Territories and States http://www.nationalgeographic.org/photo/union-confederacy/

Neither the North nor the South, much less any of the internally-divided border states, were fully supportive of either slavery or abolition. Even in the states that allowed chattel slavery, only a minority of the population actually owned slaves and then in relatively small numbers.

According to noted historian Kenneth M. Stampp, the South’s four million slaves were unevenly distributed. The highest concentration was found in the cotton-growing plantations of the deep

South, with only a few hundred thousand living in the border states. 175 Slaves were primarily

175 Kentucky, Missouri, Delaware, and Maryland all permitted slaveholding, and each bordered both Union and Confederate states. None of these “border states” seceded from the Union, due in part to Lincoln’s astute understanding that it was critical to the Union cause not to alienate them. It was for this reason that the Emancipation Proclamation did not affect slaves in those four states, even though they remained part of the Union. See William E. Gienapp, Abraham Lincoln and the Border States , 13 JOURNAL OF THE ABRAHAM LINCOLN

58 located in rural areas, and smaller farms usually had fewer than ten slaves to augment the family’s labor force. This pattern raises the question of why those less monetarily-invested

Southerners who owned few or no slaves, and seemed to have little at stake, supported secession and war. Stampp reasoned that these, roughly three-fourths of the Southern population who lacked the means and power of the landed gentry, clung to slavery because it offered “a means of controlling the social and economic competition of Negroes, concrete evidence of membership in a superior caste [and] a chance to rise into the . Whatever the reason, most of the non-slaveholders seemed to feel that their interests required them to defend the peculiar institution” of slavery. 176 As will be seen in the South’s postbellum treatment of African

Americans, especially those in the labor force, the poorer and lower social class of Southerners

whose families owned few, if any, slaves, became a potent political force in resisting equality

under the law. These were the “white yeomanry” whom Andrew Johnson sought to protect

during his period of presidential Reconstruction. 177

4. The Provocation of the Taney Court: A Trilogy of Decisions Reinforcing Slavery

No rights which the white man was bound to respect... In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.... They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. Dred Scott v. Sandford , 60 U.S. at 407.

ASSOCIATION 13 (1992). See also figure (26) herein, “map of the United States during the Civil War showing status of territories and states.” 176 KENNETH M. STAMPP , THE PECULIAR INSTITUTION : SLAVERY IN THE ANTE -BELLUM SOUTH 32–33 (Alfred A. Knopf Vintage Books) (1956). 177 These “yeoman” were apparently the same class of less-wealthy white Southerners who owned few if any slaves. These are considered by Stampp as he examined their fierce defense of “the peculiar institution” from which they obtained little economic benefit. He observed that they valued the less tangible benefit of social and political superiority. As the slaves were of African American descent, this sense of superiority was fraught with racism. Id . at 32-33; see also § 6.

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The very mention of the Dred Scott case evokes an immediate negative reaction. Few may have read the lengthy decision, but many can recite Chief Justice Roger B. Taney’s terrible words that African Americans “had no rights which the white man was bound to respect.” 178 On

March 10, 1857, one newspaper commented on the ruling: “The Court has rushed into politics voluntarily, and without other purpose than to subserve the cause of Slavery. They were not called, in the discharge of their duties, to say a word about the subject…. They consented with unseemly haste to dabble in the dirty waters of political corruption.” 179 Proslavery factions were pleased by the ruling, while abolitionists were outraged if not surprised, following the Court’s prior stance. For example, the 1793 Fugitive Slave Act 180 was upheld in Prigg v.

Pennsylvania .181 This was an 1842 test case in which the U.S. Supreme Court overturned the conviction of Edward Prigg, who failed to obtain a writ required by Pennsylvania law before returning runaway slaves to their Maryland owner. 182 The Court found that the Pennsylvania statute was unconstitutional under the Fugitive Slave Clause, as it impermissibly purported to give the state power over the federal act. 183 Prigg , which was written by the highly regarded

Justice Joseph Story, and the 1857 Dred Scott majority decision by Taney, reinforced the chasm between state and federal factions and led to further friction. In roughly a decade and a half before the Civil War, two other opinions (in addition to Prigg ) discussed herein forecast the

Court’s decision in Dred Scott .

178 Dred Scott , 60 U.S. at 407. 179 Keith L. Whittington, The Road Not Taken: Dred Scott, Judicial Authority, and Political Questions , 63 THE JOURNAL OF POLITICS 365, n.1 (2001). See also “Anonymous,” “The Decision of the Supreme Court ,” , 10 March 1857, at 6. 180 The Fugitive Slave Act of 1793, “An Act respecting fugitives from justice, and persons escaping from the service of their masters,” is found at 1 Stat. 302. 181 Prigg v. Pennsylvania , 41 U.S. 539 (1842). 182 Prigg , 41 U.S. at 556-57. 183 U.S. Const., art. IV, § 2, cl. 4.

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4.A. Jones v. Van Zandt , 46 U.S. 215 (1847)

By 1847, the nation seemed intent upon an inexorable march to a violent resolution over the future of slavery. While this was hotly debated at every level of government, the power of the press and pen to sway public opinion cannot be underestimated. For decades, the abolitionist press actively took to task the evils of slavery, and broadly disseminated its message. These publications stirred passion on both sides, and it was Harriet Beecher Stowe who captured the greatest attention by galvanizing many to act against slavery. The author of the controversial

1852 novel ’S CABIN 184 powerfully affected the nation by exposing slaves’ inhumane treatment. 185 She was the wife of a , minister, and active in the freedom movement. They lived near a favored transit point for slaves fleeing from neighboring, slaveholding Kentucky. Her writings stemmed in part from Jones v. Van Zandt ,186 in which the

Supreme Court dealt severely with runaway slaves and those who helped them to freedom.

Stowe’s book immortalized defendant John Van Zandt as “Honest old John Van Trompe.” 187

While proslavery advocates usually prevailed in court, Stowe’s harsh portrayal of slavery as seen in Van Zandt and similar cases 188 eventually helped emancipationists to achieve a greater victory.

184 HARRIET BEECHER STOWE , UNCLE TOM ’S CABIN , OR , LIFE AMOUNG THE LOWLY (John P. Jewett & Co.) (1852). 185 JOHN E. KLEIBER ET AL ., THE KENTUCKY ENCYCLOPEDIA xxiii (The University Press of Kentucky) (1992). 186 Jones v. Van Zandt , 46 U.S. 215, 230-32 (1847). 187 MARK STUART WEINER , BLACK TRIALS : CITIZENSHIP FROM THE BEGINNINGS OF SLAVERY TO THE END OF CASTE (A.A. Knopf) (2004). See also DORIS KEARNS GOODWIN , TEAM OF RIVALS : THE POLITICAL GENIUS OF ABRAHAM LINCOLN (Simon & Schuster) (2005). In chapter 4, Goodwin told of Chase’s involvement with The Slave Matilda and Van Zandt . See also Henry S. Cohn, Book Review: Mightier Than the Sword: Uncle Tom’s Cabin and the Battle for America by David S. Reynolds, W.W. Norton & Co., New York, NY (2011) , 59–FEB FEDERAL LAWYER 65 (2012). The character of Simon Legree, the barbarous overseer in UNCLE TOM ’S CABIN , is believed to have been modeled after a man from Colfax, Louisiana ( see § 10.C). Thomas Howell, Finding the Line: The Origin of Grant Parish and the Recent Dispute over Its Boundary , 51 THE JOURNAL OF THE LOUISIANA HISTORICAL SOCIETY 219, n.11 (2010). 188 Nobel Prize-winning author captured the true story of slave in her book , which won both the Pulitzer Prize and the American Book award in 1988. TONI MORRISON , BELOVED (Alfred Knopf) (1987). Morrison collaborated with Richard Danielpour as the librettist for the opera Margaret Garner .

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In 1842, Van Zandt, a “conductor” along the , 189 befriended a young family of slaves and four of their friends. After the group crossed the from

Kentucky, they remained overnight at Lane Seminary, a center of the antislavery movement where Stowe’s father and husband were president and professor respectively. Van Zandt, a former slave owner who became an abolitionist after a religious experience, met the fugitives at

Lane and hid them in his wagon. They were intercepted, and all but one were caught and imprisoned on the opposite shore in Boone County, Kentucky, as was Van Zandt. Slave owner

Wharton Jones sued for damages, including the value of the missing slaves, a reward paid to the slavecatchers who returned them, and the $500 fine imposed by the 1793 Fugitive Slave Act upon Van Zandt. Van Zandt was decided in Jones’ favor by the U.S. Supreme Court in March,

1847. The ruling reflected upon the history of the act,190 which facilitated enforcement of the

Constitution’s Fugitive Slave Clause. 191 It condoned rendition of fugitive slaves, and imposed severe penalties upon those who aided them.192

Van Zandt was represented at the trial by Cincinnati lawyer and abolitionist Salmon P.

Chase; at the Supreme Court, Chase was co-counsel to William H. Seward.193 Chase was known

Like Stowe, Morrison was inspired to memorialize fictionalized accounts of slaves’ true and heartbreaking experiences. Similar to Andrew and Letta, the slaves assisted by John Van Zandt ( see Jones v. Van Zandt ), and Reuben and Henry, the escaping slaves in Strader v. Graham , Margaret Garner was a Kentucky slave who used the Ohio River as an escape route. Tragically, Garner killed her infant daughter and attempted to murder her other children rather than have them returned to slavery. See Veronica Hendrick, Codifying Humanity: The Legal Line Between Slave and Servant , 13 TEXAS WESLEYAN LAW REVIEW 685 (2007). 189 The “Underground Railroad” was “an elusive and shadowy system of escape for runaway slaves [that was] shrouded in such secrecy that today many of its methods can be surmised, little documentary evidence of its existence can be found, and our knowledge of this singular institution is derived chiefly from the reminiscences of the men who actually ran it.” Henrietta Buckmaster, The Underground Railroad , 246 THE NORTH AMERICAN REVIEW 142 (1938). It was not a railroad in the traditional sense in that it did not have physical tracks or railroad cars. Rather, it consisted of individuals and organizations that assisted runaway slaves in escaping. At some points, guides called “conductors” led the fugitives to the next stop. Other times, individuals and secular groups, or religious groups advocating abolition such as the Quakers, developed a more systematic approach that helped connect the various legs of the journey. Id. 190 Fugitive Slave Act of 1793, supra note 180. 191 U.S. Const. art. IV, § 2. 192 Id. 193 Goodwin, supra note187 at chapter 4.

62 for his 1837 defense of Matilda Lawrence, a mixed-race woman, in a suit that sought her rendition to Missouri. 194 She had been taken to Ohio by her master (and natural father), but ran away after he refused to emancipate her. Chase argued that the 1793 Fugitive Slave Act was repugnant because Matilda was made free by the Northwest Ordinance of 1787, which prohibited slavery in the territory that became the states of Ohio, , Illinois, Michigan, Minnesota, and Wisconsin. Unfortunately, the trial court rejected Chase’s assertion that enslavement

“vanishes when the master and the slave meet together” in free jurisdictions such as Ohio,

“where positive law interdicts slavery.”195 Still, Chase gained wide regard as the “Attorney

General for the Runaway Slave” for his willingness to undertake difficult cases on behalf of

slaves seeking freedom.196

Chase’s lengthy brief to the U.S. Supreme Court on behalf of Van Zandt was later published 197 as a pamphlet that became popular among abolition advocates.198 In ruling against

Van Zandt, the Court considered the larger issues of whether the federal government had authority to create, regulate, or prohibit slavery. It considered the constitutionality of the 1793

Fugitive Slave Act, and whether the Northwest Ordinance, which prohibited slavery in the

194 Matthew A. Axtell, What Is Still “Radical” in the Antislavery Legal Practice of Salmon P. Chase? , 11 HASTINGS RACE AND POVERTY LAW JOURNAL 269, 286, n.76 (2014). 195 Salmon P. Chase’s brief on behalf of the slave Matilda was published; see Salmon P. Chase, SALMON P. CHASE IN THE CASE OF THE COLORED WOMAN , MATILDA (1837). Accessed on April 15, 2017 at https://archive.org/stream/speechofsalmonpc00chas#page/6/mode/2up. See also Paul Finkelman & Joseph Story, Story Telling on the Supreme Court: Prigg v. Pennsylvania and Justice Joseph Story’s Judicial Nationalism , 1994 THE SUPREME COURT REVIEW 247 (1994). In a case from 1825 dealing with piracy on the high seas that decided by Chief Justice Marshall, in which “Mr. Key” was counsel for the appellants, the Court decided the fate of the Africans intended for the slave trade that were on the seized ship. Marshall observed that the condition of slavery was “a matter of notorious history.” The decision said that slavery existed only where there was an affirmative law to establish it: “The very definition of slavery in the civil law ... shows[] that it was an institution established by positive law, against the law of nature....” The Antelope , 23 U.S. 66, 103 (1825). 196 Axtell, supra note 194 at 271. 197 Van Zandt , 46 U.S. at 223. The Court described Chase’s brief as “upwards of one hundred pages, and that of Mr. Seward forty pages in length.” 198 William M. Wiecek, Slavery and Abolition Before the United States Supreme Court, 1820-1860 , 65 THE JOURNAL OF AMERICAN HISTORY 34, 47–48 (1978). S ee also n.53, referring to “S.P. Chase, Reclamation of Fugitive Slaves from Service. An Argument for the Defendant Submitted to the Supreme Court of the United States … in the Case of Wharton Jones vs. John Van Zandt (Cincinnati, 1847), 85, 77, 84.”

63 territory that in part later became Ohio, empowered that state to deem blacks therein as free. 199

The Court determined that the states, and not the long ago territorial ordinance, controlled whether slavery would be permitted upon their soil. The opinion cited the Constitution’s

Fugitive Slave Clause in Article IV, § 2, which specifically provided for the return of escaped slaves to their owners. 200 It emphasized that Van Zandt violated the Fugitive Slave Act by facilitating the slaves’ further escape, and relied upon Prigg for the proposition that the act “was not repugnant to the constitution.” While hardly a ringing endorsement of the act’s legality, this was sufficient to uphold the conviction of John Van Zandt. 201

The Court was not persuaded by Chase’s arguments that enslavement was a moral outrage, or of the offensiveness of the “supposed inexpediency and invalidity of all laws recognizing slavery or any right of property in man.” The decision reasoned that such assertions involved “a political question, settled by each State for itself, and the federal power over it is limited and regulated by the people of the States in the constitution itself.” The Court reflected upon the Fugitive Slave Clause as one of the Constitution’s “sacred compromises” that was necessary to create the Union. It refused to address the provision further, as “we possess no authority as a judicial body to modify or overrule” that proviso.202 In the end, while the Court showed a measure of sympathy for opponents of slavery, it declined to interfere, based upon the

Constitution and the statute that implemented the reclamation of fugitive slaves. 203

John Van Zandt’s legacy lives on in UNCLE TOM ’S CABIN , even for those who never knew that “John Van Trompe” was not purely fictional. According to Van Zandt’s 1852

199 William M. Wiecek, Somerset: Lord Mansfield and the Legitimacy of Slavery in the Anglo-American World , 42 UNIVERSITY OF CHICAGO LAW REVIEW 86 (1974). See also Wiecek, supra note 198 citing, inter alia , Chase’s argument in Jones v. Van Zandt . 200 Van Zandt , 46 U.S. at 231. 201 Van Zandt , 46 U.S. at 232. 202 Van Zandt , 46 U.S. at 231. 203 Van Zandt , 46 U.S. 215.

64 obituary in : “He sleeps now in the obscure grave of a martyr. The ‘gigantic frame’ of which [Harriet Beecher Stowe] speaks was worn down at last by want of sleep, exposure and anxiety: and his spirits were depressed by the persecutions which were accumulated on him. Several slave-owners who had lost their property by his means sued him in the United States Courts for Damages: and judgment after judgment stripped him of his farm and all his property.” 204

After the defeat in Van Zandt , Chase and Seward went on to greater political reward as governors, U.S. Senators, and more. They were immortalized by historian Doris Kearns

Goodwin as part of Lincoln’s “team of rivals” whom he appointed to his cabinet. 205 It was a fitting cap to Chase’s career that he succeeded Taney as Chief Justice of the U.S. Supreme Court.

Robert J. Kaczorowski 206 and Randy E. Barnett 207 have posited that history might have been different had Chase not later suffered debilitating strokes that eroded his ability to guide the

Court. Perhaps he might have more greatly influenced such decisions as Slaughter-House

Cases ,208 which effectively gutted the privileges and immunities clause of the 14 th amendment.209

One can only wonder how the course of Reconstruction and future race relations might have been altered.

4.B. Strader v. Graham , 51 U.S. 82 (1850)

Four years after upholding the conviction of John Van Zandt under the Fugitive Slave

Act, the Taney Court considered a second case involving escaped slaves, yet with a twist. While

204 Obituary for John Van Zandt , NEW YORK TIMES , Nov. 15, 1852. 205 Goodwin, supra note 187. 206 Robert J. Kaczorowski, The and Fundamental Rights: A Watershed in American Constitutionalism , 51 NORTHERN KENTUCKY LAW REVIEW 151, 191 (1993). 207 Randy E. Barnett, From Antislavery Lawyer to Chief Justice: The Remarkable But Forgotten Career of Salmon P. Chase , 63 CASE WESTERN LAW REVIEW 653, 677–94 (2013). 208 Slaughter-House Cases , 83 U.S. 36 (1873). 209 Barnett, supra note 207.

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Dred Scott dictated the destiny of a slave seeking legal redress, and Van Zandt the fate of one whose life’s mission was to aid runaway slaves, underlying Strader v. Graham 210 do not make clear that the case involved the same noble pursuits. The defendants in Strader were charged under a Kentucky statute that penalized operators of vessels used by escaping slaves.

Henry and Reuben, slaves who were talented musicians, were given written permission by their owner to travel aboard to the free states of Indiana and Ohio to perform. The controversy arose when the slaves boarded the Pike , which traveled upriver from Louisville to

Cincinnati. Although they previously had returned without incident to Kentucky, this time

Henry and Reuben escaped into Ohio and sought permanent refuge in Canada as free men.

Graham sued the steamboat’s owners and captain under Kentucky law for $3,000 in damages for loss of services and the value of the runaway slaves. 211 Graham warned that unless his rights were upheld, slaves would continue to flee and the Ohio River “will be made like the fabled

Styx, the river of death, which, it once crossed, can never be recrossed.” 212

The U.S. Supreme Court rejected the defendants’ argument that the slaves were liberated by their previous travels to Indiana and Ohio, which were undertaken with the owner’s explicit consent.213 The decision traced the history of the Northwest Ordinance as a compact governing the territories that became the antislavery states of Ohio and Indiana, among others. It gave significant weight to the fact that the slaves entered these free states with their owner’s permission and found that their slave status reattached (if, indeed, it was ever actually lost) upon returning to Kentucky. Taney ruled that there was nothing in the Constitution that impinged upon the right of Kentucky or any other state “to determine the status, or domestic and social

210 See also Robert G. Schwemm, Strader v. Graham: Kentucky’s Contribution to National Slavery Litigation and the Dred Scott Decision , 97 KENTUCKY LAW JOURNAL 353 (2009). 211 Strader , 51 U.S. at 83, 92. 212 Strader , 51 U.S. at 91. 213 Strader , 51 U.S. at 83-86, 92-93.

66 condition, of the persons domiciled within its territory.” He denied that the Northwest

Ordinance, including its prohibition upon slavery, was determinative, and held that it was no longer valid.214 Even if it had been “still in force, [it] could have no more operation than the laws of Ohio in the State of Kentucky, and could not influence the decision upon the rights of the master of the slaves in that state, nor give this Court jurisdiction upon the subject.” 215 The U.S.

Supreme Court allowed the decision of the Kentucky court in Strader to stand, and determined that the case did not present a federal question. The chief justice reasoned that as each state was recognized by Congress, it was no longer under federal control. That state’s constitution and statutes applied, and former territorial compacts such as the Northwest Ordinance “ceased to be in force upon the adoption of the Constitution, [and thus] cannot now be the source of jurisdiction of any description of this court.” 216

Despite the Court’s holding in Strader that it lacked jurisdiction because the issue rested solely upon state law, Taney agreed in dicta with the Kentucky court that the slaves were not liberated by their prior presence in free states. In retrospect, Taney’s decision in Strader seems a dress rehearsal for Dred Scott .217 While the latter decision had a disastrous effect on slaves claiming freedom due to time spent in free jurisdictions, Strader levied adverse effects upon common carriers that were not clearly engaged in the emancipation debate. 218

214 Five years before it decided Strader , the U.S. Supreme Court in Permoli held that it did not have jurisdiction over the question of whether an ordinance adopted by New Orleans that restricted the practice of celebrating funerals in Catholic churches was an impermissible impairment of religious liberty. It ruled that the Northwest Ordinance was no longer in force, despite a limited grant by Congress for its temporary use. The opinion by Justice Catron determined that the ordinance was among laws that “had no[] further force, after the adoption of the state constitution, than other acts of Congress” and that previous “laws of Congress were all superseded by the state constitution.” Permoli v. New Orleans , 44 U.S. 589, 610 (1845). 215 Strader , 51 U.S. at 94. 216 Strader , 51 U.S. at 83-86, 94-97. 217 Chief Justice Taney acknowledged Strader in Dred Scott , but distinguished it on a factual basis . See Dred Scott , 60 U.S. at 453. 218 Robert Aitken, Justice Benjamin Curtis and Dred Scott , 30 LITIGATION 51, 53 (2003).

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4.C. Dred Scott v. Sandford , 60 U.S. 393 (1857)

The facts underlying the freedom suit of Dred Scott and his family are somewhat complicated, and indicative of the manner in which slaves had to follow the dictates of their owners and could not choose where to live. Dred Scott was an African American slave who belonged to Dr. John Emerson, a surgeon in the U.S. Army. In 1834, Scott moved with Emerson from Missouri to a military post north of the 36/30 line at Rock Island, Illinois, and then to Fort

Snelling, which was a part of the free federal territory of Wisconsin that became Minnesota in

1858.219 This artificial boundary was established by the Missouri Compromise of 1820 to separate antislavery territory from slave-permitting lands to the south, and thus placed Scott on free land, just as had his living in Illinois. Harriet Robinson 220 married Dred Scott in 1836 at

Fort Snelling. In 1838, Emerson relocated the Scott family to the Jefferson Barracks, another

military base in Missouri. According to the U.S. Supreme Court, after Emerson sold the family

to John F.A. Sanford, also of Missouri, Dred Scott sued for freedom for himself and his family,

and argued they had become free by residing in jurisdictions in which slavery was prohibited. 221

On April 6, 1846, Dred Scott filed suit in Missouri state court against Mrs. Emerson for trespass and false imprisonment. It was Scott’s contention that he and his family had obtained

219 Dred Scott , 60 U.S. at 397-400. 220 Harriet Robinson Scott, whose own petition for freedom was subsumed in that of her husband’s, was an interesting person in her own right. Her story is often overlooked, but is related in a 1997 article. See Lea S. VanderVelde & Sandhya Subramanian, Mrs. Dred Scott , 106 YALE LAW JOURNAL 1033 (1997). 221 Dred Scott , 60 U.S. at 431-32. Although “Sandford” is an incorrect spelling of the surname of defendant “Sanford,” the former is used in the official record although the name is variously spelled in later writings. Aitken, supra note 218 at 54. For purposes of this dissertation, the Court’s spelling is used. According to several historians, John Sanford was the brother of Dr. Emerson’s wife, who after Emerson’s death had married a Dr. Chaffee and moved to without her slave. Sanford assisted his sister in hiring counsel to defend against Scott’s suit. Although he may not have observed all legal requirements, Sanford apparently served as administrator of his sister’s estate in regard to the lawsuit and thus appears as the defendant. While the case was pending before the Missouri Supreme Court, Scott worked for Charles E. LaBeaume, the brother-in-law of Taylor and Henry Blow, whose family had owned Scott in his youth and sold him to Emerson. Taylor Blow purchased Dred Scott from Dr. and Mrs. Chaffee, and then emancipated him. Sadly, Dred Scott succumbed to tuberculosis a little more than a year later. See, e.g ., Walter Ehrlich, Was the Dred Scott Case Valid? , 55 THE JOURNAL OF AMERICAN HISTORY 256 (1968) and J. Milton Turner & Irving Dillard, Dred Scott Eulogized by James Milton Turner: A Historical Observance of the Turner Centenary: 1840-1940 , 26 THE JOURNAL OF NEGRO HISTORY 1 (1941).

68 their freedom because their prior owner, Dr. Emerson, had taken them to live in the free state of

Illinois and then to Wisconsin. After Scott’s suit failed in Missouri state courts, 222 the case was taken to federal district court on the basis of diversity jurisdiction. 223 On appeal to the U.S.

Supreme Court, Dred Scott was represented by noted lawyers Montgomery Blair and George T.

Curtis. The latter was the brother of Justice Benjamin R. Curtis, who dissented from Taney’s majority decision.

The Court treated Dred Scott as if it were a referendum on the expansion of slavery. In

the more than ten years it took for the case to reach there,224 the national political landscape had changed. Controversy over slavery had increased with continued westward expansion, which included extensive lands obtained as a consequence of the United States’ war with Mexico. The

Compromise of 1850 had been adopted to resolve these concerns by admitting California as a free state, passing a more stringent Fugitive Slave Act, and having Texas release its claims to

New Mexico and lands north of the 36/30 line. The Kansas-Nebraska Act of 1854 was passed in part to facilitate transcontinental railroad expansion. It also created the territories of Kansas and

222 Unfortunately, much of the documentation surrounding Scott’s various related suits and appeals at the lower levels has been lost, possibly taken as souvenirs. Historian Walter Ehrlich devoted considerable effort to researching old records, and was able to locate some documents that previously were missing. In his 1974 article, Ehrlich examined the extant paperwork and evidence he had found. It was Ehrlich’s position that Scott, an illiterate slave whose time was obligated to his mistress, was motivated by his desire for his family’s freedom but lacked the resources to pursue legal remedies unassisted. Ehrlich concluded that Dred Scott was aided by the extended Blow/LaBeaume family, who were his owners before the Emersons and later became his employers. Walter Ehrlich, The Origins of the Dred Scott Case , 59 THE JOURNAL OF NEGRO HISTORY 132 (1974). 223 The U.S. Constitution in Article III, § 2, extends the jurisdiction of federal courts to, among other things, controversies “between citizens of different states.” Under the rubric of “diversity jurisdiction,” a citizen of one state is allowed to bring suit in a federal court against the citizen of a different state. This was done to ensure that a state court would not favor its own against an outsider. As William L. Marbury related, an 1885 decision emphasized the importance of this concept, which was provided for by the Constitutional Convention and First Congress. It ensured that justice was “administered in courts independent of all local control or connection with the subject matter of the controversy between the parties in a suit.” William L. Marbury, Why Should We Limit Federal Diversity Jurisdiction? , 46 AMERICAN BAR ASSOCIATION JOURNAL 379 (1960) citing Dodge v. Woolsey , 18 How. 331, 354 (1885). See also Henry J. Friendly, The Historic Basis for Diversity Jurisdiction , 41 HARVARD LAW REVIEW 483 (1928). 224 Ehrlich, supra note 221.

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Nebraska, and allowed their respective voters to determine by election (“”) whether to permit slavery. Tensions between regional factions were raging.225

Chief Justice Taney’s decision in Dred Scott has received considerable and well-deserved criticism. He focused on three primary issues: whether African Americans were United States citizens with rights protected by the Constitution; whether Scott, born a slave, acquired free status by living with his master in free territory; and, whether Congress had authority to ban slavery in the expanded territories. The majority opinion determined that the Court was without jurisdiction because the enslaved Dred Scott was not a U.S. citizen and thus lacked standing to sue in any federal court. Had Taney then stopped, it would have been a harsh enough ruling, but he did not. In a move widely accepted as political, Taney departed from traditional judicial restraint and decided the case on the merits despite his declaration that the Court was without jurisdiction. 226

Justice Taney framed the “very serious” question before the Court: “Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizens.” Among these was the right to sue in federal court, 227 although Taney failed to distinguish between the rights of enslaved persons versus those possessed by free blacks. 228 Contrasting Africans brought involuntarily to America to “the [indigenous] Indian

225 Huston, supra note 170. 226 Dred Scott , 60 U.S. at 450. 227 Dred Scott , 60 U.S. at 403. 228 Taney’s omission of freed blacks from consideration was a considerable oversight. According to the United States Census of 1860, the nation’s population in 1840 included an estimated 386,303 “free colored” persons plus 2,487,455 slaves. Of these, 155,994 blacks and 69,855 mulattoes lived in Northern or free states. That same year, there were 3,697,274 blacks and 518,360 mulattoes in the South. This census also shows a larger number of “free colored” persons (blacks and “mulattoes”) living in slaveholding states (a total of 261,918) than in non-slaveholding states (226,052). The 1860 Census of the United States at ix, 10. Accessed on April 2, 2017 at

70 race,” Taney disregarded the realities of American history by declaring that Native Americans

“were regarded and treated as foreign Governments [whose] freedom has constantly been acknowledged….”229

Taney next determined that African Americans, whether free or enslaved, were “not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges such that instrument provides for and secures to citizens of the United States.” He said that at the time the Constitution was adopted, blacks were “considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, had no rights or privileges but such as those who held the power and the Government might choose to grant them.” 230

The decision went on to distinguish between the citizenship, if any, which might be conferred by a particular state, from that of the United States. While states may grant citizenship

“upon an alien, or any one it thinks proper … yet he would not be a [federal] citizen in the sense in which that word is used in the Constitution of the United States.…” 231 Taney looked to “the state of public opinion in relation to that unfortunate race … at the time of the Declaration of

Independence, and when the Constitution of the United States was framed and adopted.” He wrote that African Americans “had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect;

https://www2.census.gov/prod2/decennial/documents/1860a-02.pdf . The significant population of free blacks in both slaveholding and non-slaveholding states is worthy of further analysis. Berlin asserted that this distribution was an important factor in the ultimate emancipation of the slaves. He further observed that free blacks faced considerable obstacles in society, as they were not treated as social or legal equals in spite of their non-enslaved status. Berlin, supra note 7 at 38-43. 229 Dred Scott , 60 U.S. at 404. 230 Dred Scott , 60 U.S. at 404-05. 231 Dred Scott , 60 U.S. at 405.

71 and that the negro might justly and lawfully be reduced to slavery for his benefit.” 232 Taney said that none of these Africans “had ever migrated to the United States voluntarily; all of them had been brought here as articles of merchandise.”233 He denied that blacks were among those who

“were endowed by their Creator with certain unalienable rights [that included] life, liberty, and the pursuit of happiness,” because the “enslaved African race” was “not intended to be included.” 234 Taney supported this by citing two Constitutional provisions, and said these “point directly and specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as a portion of the people of citizens of the Government then formed.” 235

These were Article I, § 9, cl. 4, which prohibited Congress from regulating the slave trade before

1808, and Article IV, § 2, cl. 3, the Fugitive Slave Clause, which authorized the retrieval of escaped slaves upon the “Claim of the Party to whom such Service or Labor may be due.”

The Dred Scott decision reached questions that were clearly unnecessary to decide a case over which the Court lacked jurisdiction. It held that the Missouri Compromise of 1820 was void, as Congress was without authority to “prohibit[] a citizen from holding and owning property [such as slaves] in the territory of the United States north of the” line ascribed there.

Thus, “neither Dred Scott himself, nor any of his family, were made free by being carried into this territory; even if they had been carried there by the owner, with the intention of becoming a permanent resident.” 236 That compromise was enacted by Congress in an attempt to balance the increasingly conflicting interests of free and slave states by declaring that slavery would not be

232 Dred Scott , 60 U.S. at 407. 233 Dred Scott , 60 U.S. at 411. 234 Dred Scott , 60 U.S. at 407. 235 Dred Scott, id . Taney’s analysis failed to take into consideration that several states had emancipated their slaves by the time of the Dred Scott decision. These included Rhode Island and Connecticut (1784); New York (1799); and New Jersey (1804). Berlin, supra note 7 at 69. Connecticut and Rhode Island exempted persons of color from personal and estate taxes because they were denied the right to vote. See Christopher J. Bryant, Without Representation, No Taxation: Free Blacks, Taxes, and Tax Exempations Between The Revolutionary and Civil Wars , 21 MICHIGAN JOURNAL OF RACE AND LAW 91, 92 (2015). 236 Dred Scott, 60 U.S. at 452.

72 allowed in new states located above the 36/30 line.237 As historian Melvin I. Urofsky noted, by dismissing the efficacy of the compromise and the Northwest Ordinance, Taney ignored the

Court’s precedent under renowned Chief Justice John Marshall in American Insurance Co. v.

Canter ,238 which recognized the power of Congress over lands that were not yet states.

Less attention has been given to the dissents in Dred Scott that were written by Justices

John McLean and Benjamin R. Curtis. While of no immediate legal effect (except to deprive the majority of unanimity), these were arguably the Court’s most important to date and these justices’ objections influenced abolitionists and politicians alike. Urofsky said that these dissenters effectively tore at Taney’s erroneous legal arguments and conclusions. 239 McLean traced the American practice of enslavement to its colonization by England: “Slavery was introduced into the colonies of this country by Great Britain at an early period of their history, and it was protected and cherished, until it became incorporated into the colonial policy.” 240

Among decisions weighed by McLean was England’s 1772 landmark ruling in Somerset v.

Stewart . The “Somerset doctrine,” also known as “once free always free,” arose from Lord

Mansfield’s proclamation that slavery was “so odious, that nothing can be suffered to support it, but positive law.” 241

237 Jack M. Balkin & Sanford Levinson, The Dangerous Thirteenth Amendment , 112 COLUMBIA LAW REVIEW 1459 (2012). 238 American Insurance Co. v. Canter , 26 U.S. 511 (1828). 239 MELVIN I. UROFSKY , DISSENT AND THE SUPREME COURT : ITS ROLE IN THE COURT ’S HISTORY AND THE NATION ’S CONSTITUTIONAL DIALOGUE 69–75 (Pantheon Books) (2015). 240 Dred Scott , 60 U.S. at 535. 241 See Higginbotham, supra note 40 regarding Somerset , 98 ER 499 (1772). This case was important in England and in its former colony. There were many issues presented, from the moral considerations of slavery to the choice of law to be applied. As to the former, Somerset’s counsel reminded the court of the “pernicious” effect of slavery “to the unhappy person who suffers under it; finally so, to the master who triumphs in it, and to the state which allows it.” Higginbotham, supra note 40 at 337-38, n.8 and supra note 195. In his decision in Somerset , Lord Mansfield said that slavery existed only where there was a law that affirmatively supported it: “The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created from memory: it’s so odious, that nothing can be suffered to support it, but positive law .” Somerset , 98 Eng. Rep. at 509.

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Figure 27. 1859 advertisement for the sale of “Long Cotton and Rice Negroes.” http://www.eyewitnesstohistory.com/slaveauction.htm

In a separate dissent, Justice Curtis identified a number of procedural missteps by Taney.

He distinguished between free blacks and slaves, and protested Taney’s assumption that Dred

Scott was foreclosed from national citizenship. Simply because Scott’s “ancestors were sold as slaves, is not equivalent, in point of law, to an averment that he was a slave.”242 Curtis observed that, at the time the Constitution was adopted, slaves otherwise qualified by state law were permitted to vote, and “that the only [Constitutional] power expressly granted to Congress to legislate concerning citizenship, is confined to the removal of the disabilities of foreign birth.” 243

Curtis summarized his analysis regarding whether “free negroes, as citizens of some of the States, might be entitled to the privileges and immunities of citizens in all the States.” He reasoned that “the free native-born citizens of each State are citizens of the United States.”

Curtis said that “free colored persons born within some of the States are citizens of those States

[and] such persons are also citizens of the United States.” He asserted that “every such citizen,

242 Dred Scott , 60 U.S. at 569-70. 243 Dred Scott , 60 U.S. at 578.

74 residing in any State, has the right to sue and is liable to be sued in the Federal courts, as a citizen of that State in which he resides.” Curtis wrote that the majority erred by denying that

Dred Scott could be a citizen and that the Court lacked jurisdiction on the basis that “no facts, except that the plaintiff was of African descent, and his ancestors were sold as slaves….” 244

Curtis’s dissent has been praised as the most sound opinion in the Court’s lengthy ruling in Dred

Scott . Keith E. Whittington criticized Taney’s “path of judicial supremacy” and approved of

“the path carved out toward the end of Curtis’s dissenting opinion in the Dred Scott case.” 245

In the decade following Dred Scott , the nation acted to overcome the decision. The

Republican Party made emancipation part of its platform in the 1860 presidential election.246 In

June 1862, Congress passed “An Act to secure Freedom to all Persons within the Territories of

the United States.” Under that legislation, and in words anticipating the 13 th amendment, from

that date forward, “there shall be neither slavery nor involuntary servitude in any of the

Territories of the United States now existing, or which may at any time hereafter be formed or

acquired by the United States, otherwise than in punishment of crimes whereof the party shall

244 Dred Scott , 60 U.S. at 588. 245 Keith L. Whittington, The Road Not Taken: Dred Scott, Judicial Authority, and Political Questions , 63 THE JOURNAL OF POLITICS 365, 366 (2001). In addition to the disastrous results for African Americans, there is another regrettable coda for the Court to the Dred Sco tt decision. Justice Curtis, whose dissent is applauded while Taney’s majority opinion is found repugnant, was very upset by Taney’s political maneuvering. Tensions were high across the country regarding the question of continued slavery, and president-elect was glad to have the judiciary shoulder the burden of making the decision. According to Urofsky, Taney’s decision covertly adopted the position urged by Buchanan, and obligingly characterized the issue as one to be addressed by the courts as opposed to a being political decision. In his inaugural address, Buchanan said that a “difference of opinion” had arisen over when and whether the territories could decide the issue of slavery for themselves. However, this was “a judicial question, which legitimately belongs to the Supreme Court of the United States, before whom it is now pending, and will … be speedily and finally settled.” Rumor had it that Taney manipulated the timing of the decision and leaked its outcome beforehand to Buchanan. It is now known that the president-elect received confidential correspondence from Justices Catron and Grier, both of whom sided with Taney, which inappropriately provided information about the progress of the case as the decision was being written. Suspicious after learning that Taney supposedly had revised the majority decision to answer the issues raised by the dissents, Justice Curtis asked to see a copy of the revisions but was denied. Curtis was so alienated by the machinations of the Court that he resigned. Urofsky, supra note 239 at 69-75. 246 Gregory Alexander Peck, Abraham Lincoln and the Triumph of an Antislavery Nationalism , 28 JOURNAL OF THE ABRAHAM LINCOLN ASSOCIATION 1 (2007).

75 have been duly convicted.” 247 The Dred Scott decision also prompted passage of the Civil

Rights Acts of 1866 and 1875, and the three Enforcement Acts of 1870 and 1871. It buttressed

the need for the 13 th , 14 th , and 15 th constitutional amendments that abolished slavery and involuntary servitude; granted former slaves citizenship as among “all persons born or naturalized in the United States”; and prohibited disenfranchisement due to “race, color, or previous condition of servitude.” 248

5. A Time of War: Legal and Political Change Amidst Disunion and Conflict

Lincoln’s “House Divided” Speech “A house divided against itself cannot stand .” I believe this government cannot endure, permanently, half slave and half free. I do not expect the Union to be dissolved; I do not expect the house to fall; but I do expect it will cease to be divided. It will become all one thing, or all the other. Either the opponents of slavery will arrest the further spread of it and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction, or its advocates will push it forward till it shall become alike lawful in all the states, old as well as new, North as well as South. Abraham Lincoln 249

Historians and lawyers, like citizens, politicians and statesmen, have lamented that the framers of the Constitution did not resolve the future of American slavery. As evidenced by the sometimes-curious and “covert” language of the Constitution, slavery posed a problem beyond those brilliant minds to solve and subsequent lesser lights had no better luck until the nation fell apart. The framers’ “lingering legacies” with respect to slavery led the nation into a devastating civil war, which brought emancipation if not equality for African Americans. As the federal government increasingly viewed slaves as a valuable military asset to be wrested from the South, it rewarded their service with freedom and protections that led to Reconstruction-era initiatives.

247 “An Act to secure Freedom to all Persons within the Territories of the United States.” June 19, 1862, ch. 111, 12 Stat. 432 (1862). 248 See, e.g ., Eric Foner, The Supreme Court and the History of Reconstruction - And Vice-Versa , 112 COLUMBIA LAW REVIEW 1585 (2012). See also the 13 th , 14 th , and 15 th amendments. 249 Lincoln’s famous “House Divided” speech was delivered on June 16, 1858 at Springfield, Illinois. As was his wont, he drew upon scripture in this address. Biblical references to Jesus’ teachings included Mark 3:25 (“And if a house is divided against itself, that house cannot stand”) and Matthew 12:25 (“….Every kingdom divided against itself is brought to desolation; and every city or house divided itself shall not stand”) (KJV). See Don E. Fehrenbacher, The Origins and Purpose of Lincoln’s “House-Divided” Speech , 46 THE MISSISSIPPI VALLEY HISTORICAL REVIEW 615 (1960).

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This overall work focuses primarily on legal issues relating to the use of forced labor in the postbellum South, and battles that took place in the courts. Yet non-chattel forms of involuntary servitude, particularly as practiced in the United States from 1860 through the events surrounding the 1927 Mississippi River flood, cannot be well understood unless placed into context with the Civil War. The controversy between states loyal to the Union and those that seceded was caused by many factors. Not the least of these was slavery, the important role it played in the American economy, and the social and political subjugation of blacks as an identifiable group. The timeline of the war was marked by famous provocations and major battles that dearly cost both sides the precious resources of life, territory, and tangible riches.

This bloody war that took place primarily in the seceding and border states was accompanied by a different type of conflict on . The separation of powers envisioned in the Constitution was another source of contention, as Congress increasingly vied with two presidents over which branch would set policy and determine how the nation would be reshaped following the war.

5.A. Secession, Civil War, and Emancipation

Tensions intensified during the “Great Winter of Secession” which followed the 1860 election. 250 Congress met in early December 1860, before South Carolina became the first state to secede on December 20, 1860, and Lincoln’s first inauguration on March 4, 1861. Its members tried hard to avert the looming crisis by finding ways to protect the perpetuation of slavery. Congress contemplated a number of unsuccessful measures, from acts that would prohibit either legislation or constitutional amendments that would abolish slavery to those that would curtail presidential powers pertaining to slavery and a state’s right to secede from the

250 HAROLD HOLZER , LINCOLN PRESIDENT -ELECT : ABRAHAM LINCOLN AND THE GREAT SECESSION WINTER , 1860- 1861 (Simon & Schuster) (2008).

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Union. Alabama, Florida, Georgia, Louisiana, Mississippi, and Texas followed South Carolina’s lead in leaving the Union. Arkansas, North Carolina, Tennessee, and Virginia joined these to form the Confederate States of America in February 1861 as a separate, sovereign nation. 251

Before the spring of 1861 ended, Lincoln became president with his powers (it not his country) intact, and Congress finally found the will to act against slavery. While isolated skirmishes had taken place for months, real hostilities began when Confederate forces fired upon Fort Sumter in

Charleston Harbor, South Carolina, on April 12, 1861, after the federal government refused to surrender. Lincoln responded three days later by blockading Southern ports, thereby treating the

Confederates as belligerents.

As public pressure mounted for a coherent policy toward slaves who found their way to

Union-controlled areas,252 Congress and the president acted. The following table summarizes

major wartime legislation and presidential action that contributed to emancipation and the

abolition of slavery.

Table 2. Summary of Major Federal Wartime Legislation and Presidential Action Pertaining to Emancipation

1861 August 6 - Congress passed the first Confiscation Act.253 1862 April 10 - Congress passed a “Joint Resolution on ,” allowing pecuniary aid to states adopting the gradual abolition of slavery. April 16 – The “District of Columbia Compensated Emancipation Act” was passed.254

251 ERIC FONER , : ABRAHAM LINCOLN AND AMERICAN SLAVERY 144–65 (W.W. Norton & Co., Inc.) (2010). Remini, supr a note 161 at 143. While South Carolina was the first to secede, these followed on these dates in 1861: Mississippi (January 9), Florida (January 10), Alabama (January 11), Georgia (January 19), Louisiana (January 26), Texas (February 1), Virginia (April 17); Arkansas (May 6), Tennessee (May 7), and North Carolina, (May 20). The western portion of Virginia broke away, and became the independent and Union-loyal state of West Virginia on June 19, 1863. 252 FONER , supra note 251 at 173. 253 , ch. 60, 12 Stat. 345; , 12 Stat. 589. 254 Lincoln had unsuccessfully proposed a similar bill in 1849 to allow compensated emancipation in the District of Columbia. Lincoln said in his 1858 debates with Stephen A. Douglas that “he ‘would be exceedingly glad to see Congress abolish slavery in the District of Columbia,’ and, in the language of , ‘sweep from our Capital that foul blot upon our nation.’” MICHAEL BURLINGAME , ABRAHAM LINCOLN , A LIFE 2 at 345, n.74 (Johns Hopkins University Press) (2008). See also Foner, supra note 251 at 182. Lincoln was not the first president to seek freedom for the capitol’s slaves. so frequently petitioned for their liberation that the House passed a “gag” rule forbidding such efforts, but he continued to do so in unsuccessful defiance. HAROLD HOLZER & CRAIG L.

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July 17 - Congress passed the second Confiscation Act. July 17 - The “” amended the 1795 act to allow African Americans to serve in the military. July 30 - Lincoln warned the Confederacy that “if the enemy shall sell or enslave anyone because of his color, the offense shall be punished by retaliation upon the enemy’s prisoners in our possession.” 255 September 22 - Lincoln issued the “Preliminary Emancipation Proclamation” warning of emancipation unless rebelling states rejoined the Union and sought a peaceful end to slavery. 1863 January 1 - Lincoln issued the Emancipation Proclamation freeing slaves in the Confederacy and Union-controlled areas but not the four border states.

These statutes and proclamations promised significant change that eventually led to

emancipation and abolition, but only after a protracted war. Lincoln’s bold statement in the

Emancipation Proclamation was of great political moment but limited legal effect. 256 At most, it

offered liberty only to slaves in areas of insurrection, and it was a promise delivered upon only

when they reached Union-controlled territory. It did not affect the slaves of the border states, nor

did it technically abolish the underlying institution of slavery even had it succeeded in setting

free those held in Confederate bondage. Lincoln was a very able lawyer and well aware of the

value of the proclamation’s important symbolism but questionable legal effect. He recognized

SYMONDS , THE NEW YORK TIMES COMPLETE CIVIL WAR 1861-1865 151 (Black Dog & Leventhal Publishers) (2010). 255 Order by the President dated July 30, 1863; see ROY P. BASLER , THE COLLECTED WORKS OF ABRAHAM LINCOLN 6 at 357 (Rutgers University Press) (1953). 256 The Emancipation Proclamation is hailed as one of the United States’ most profound documents. Finkelman analyzed Lincoln’s prose and purpose in issuing the proclamation as and when he did. The president was a skilled lawyer, who knew the constraints on federal authority to abolish slavery without constitutional change and to divest slave owners of their human chattel without compensation. While the proclamation caused high political drama and marked a monumental policy change, it lacked widespread legal effect. The U.S. Supreme Court has never adjudicated the reach or the scope of the Emancipation Proclamation. Its substance was superseded by the 13 th amendment, which was ratified nearly three years later on December 6, 1865. Paul Finkelman, Lincoln, Emancipation, and the Limits of Constitutional Change , 2008 THE SUPREME COURT REVIEW 349 (2008). Although a test of the legal effect of the Emancipation Proclamation did not reach the U.S. Supreme Court, it was challenged in state courts. Randolph N. Campbell discussed several suits brought before Texas courts that examined the proclamation. In Hall v. Keese and Dougherty v. Cartwright (the “Emancipation Proclamation Cases”), 31 Tex. 504 (1868), the state court ruled that the proclamation did not end slavery in Texas but signaled a time of emancipation. A concurring opinion summarized in Texas Reports said that the proclamation did not “manumit the slaves,” which would “require[] the power of the conquering forces.” Liberation, at least in Texas, became effective with the surrender of its forces at the end of the Civil War. Randolph B. Campbell, The End of Slavery in Texas: A Research Note , 88 THE SOUTHWESTERN HISTORICAL QUARTERLY 71, 72–77 (1984). This was proclaimed on June 19, 1865, by Major General Gordon Granger. That date is commemorated in Texas as “,” the anniversary of the emancipation of slaves in Texas. James M. Chen, Mayteenth , 89 MINNESOTA LAW REVIEW 203, 208–10 (2004). Professor Chen’s article highlighted May 17, 1954, the day Brown was issued (and overturned Plessy), as a significant date in American history.

79 that the war had to be won, and that at least one constitutional amendment was necessary to abolish slavery.257 Congress adopted the 13 th amendment on January 31, 1865, and the next day, it was sent to the states for ratification. 258

5.B. A Conclusion of War if Not a Time of Peace

The presidency of Abraham Lincoln was among the most momentous periods in

American history; more happened in that roughly four-year period that changed the nation than since its founding. The Civil War, also referred to as the “war of insurrection” and the “War of

Northern aggression,” depending upon whom you ask and when, remains the bloodiest in

American history. Certainly it was the most harmful war in damaging internecine relationships.

Politics, plus sectional and societal differences, gave impetus to the war. Though clad in black robes rather than military uniforms, the U.S. Supreme Court had issued decisions in cool stentorian terms that spurred these battles. In Prigg , Van Zandt , Strader , and Dred Scott , among others, the justices upheld the Constitution’s Fugitive Slave Clause and its implementing act (see

§ 4). The Court restricted the ability of states to alter the terms of these laws, penalized those who assisted slaves escaping to freedom, and declared to the world that blacks had no rights which the white man was bound to respect. Lincoln, his War Department, and Congress acted to change that. Whether motivated by abolitionist ideology, pragmatism, or the desire to bolster the

Union’s military strength while depleting the South’s, their actions gave African Americans significant legal rights.

Lincoln was sworn in for his first term by U.S. Supreme Court Chief Justice Roger B.

Taney, author of the Dred Scott decision that helped precipitate the war and with whom he was

257 Paul Finkelman, Slavery, the Constitution, and the Origins of the Civil War , 25 OAH MAGAZINE OF HISTORY 14 (2011). 258 See James A. Dueholm, A Bill of Lading Delivers the Goods: The Constitutionality and Effect of the Emancipation Proclamation , 31 JOURNAL OF THE ABRAHAM LINCOLN ASSOCIATION 22, 22–23 (2010).

80 at odds, but his second oath of office was administered on March 4, 1865, by Taney’s successor, abolitionist Salmon P. Chase.259 On April 9, 1865, General Robert E. Lee surrendered on behalf

of the Confederacy at Court House, Virginia, formally ending the Civil War if not

the discord. Days later, on April 15, 1865, Lincoln was assassinated by Southern sympathizer

John Wilkes Booth, and the nation struggled to avoid a descent into further chaos. What came

next was a time of confusion followed by resentment that endures today, and can still be seen in

regional factionalism and disputed civil rights. As discussed in §§ 6-9 and 11, political

wrangling and non-state sponsored racially motivated violence against African Americans

occurred during a period of “Reconstruction” that failed to reconcile the opposing ideologies.

The South may have surrendered and the Confederate States of America dissolved, but it was

immediately clear that an end to war did not necessarily signal the beginning of peace. 260

6. The Three Phases of Reconstruction: Presidential, Congressional, and “Redemption”

From “Of the Black Belt” Sad and bitter tales lie hidden back of those white doors, - tales of poverty, of struggle, of disappointment. A revolution such as that of ’63 is a terrible thing; they that rose rich in the morning often slept in paupers’ beds. Beggars and vulgar speculations rose to rule over them, and their children went astray. W.E.B. Du Bois 261

259 Barnett, supra note 207. 260 Professor Currie provided a well-regarded analysis of the state of the nation following the Civil War. He thoughtfully explored problems with reunification, constitutional amendments, and the efforts of the Reconstruction Congress. See David P. Currie, The Reconstruction Congress , 75 THE UNIVERSITY OF CHICAGO LAW REVIEW 383 (2008). 261 W.E.B. DU BOIS , Of the Black Belt (A.C. McClurg & Co.) (1903). After the Civil War, blacks struggled to define their role in a society that had been dominated by whites for centuries. Two of the most influential figures who emerged were Booker T. Washington (1856-1915) and W.E.B. Du Bois (1868-1963). Each represented a different approach to civil rights. A Southerner, former slave, and head of the Tuskegee Institute, Washington was known for his conciliatory manner. He was the proponent of the 1895 , which called for blacks to accept disenfranchisement and avoid confrontation. In exchange, the federal government and major philanthropic organizations would fund vocational and liberal arts education for African Americans. The slightly younger Du Bois from Massachusetts was a towering intellect, and the first black to receive a PhD from Harvard University. He led a later generation of blacks who increasingly came to reject Washington’s accommodationist policies. Du Bois and his followers advocated more strident measures, including the use of protest and resistance. Their differences in philosophy led to a rupture between the two men and the blocs they represented. See, e.g ., Thomas Aiello, The First Fissure: The Du Bois-Washington Relationship from 1898- 1899 , 51 PHYLON 76 (1960); C. Spencer Poxpey, The Washington-Du Bois Controversy and Its Effect on , 8 HISTORY OF EDUCATION QUARTERLY 126 (1957).

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Long before the end of the Civil War, the tide of secession generated considerable controversy over what would be required to reunite the nation and who would control readmission of states formerly in rebellion. There was no blueprint for recombining a nation that had been forged less than a hundred years before by the sometimes contentious joining of the several colonies. The Southern economy was in ruins, with little hope of replenishment without the aid of outside investment. With the demise of chattel slavery, former slaveowners lost millions (some say billions) of dollars represented by the market value of these so-called “human assets,” and lacked a captive workforce to resume business as before. After the war, in addition to thousands of displaced white families, there were nearly 4,000,000 freedmen in the South who faced an uncertain future.262

With its coffers empty, there was small hope of soon remedying the devastation to its income-producing sources such as railroads, factories, and farms. 263 The political implications

were staggering, and the rebelling states feared the imposition of harsh terms to rejoin the Union.

Reconstruction went through several stages, none of which achieved all that its proponents

aspired to accomplish. Democrats and Republican moderates were confronted by a Radical

262 Huston, supra note 170. 263 The limited ability of the South to rebuild or make much needed improvements to its infrastructure reverberated in social, economic, and political problems over a century later. This was seen in a 1962 case in which the U.S. Supreme Court granted certiorari in a suit that challenged Mississippi’s inequitable distribution to schools of funds generated by the sale of public lands for that purpose. The state legislature did not apply proceeds to particular Mississippi county schools from the sale of such lands. Instead, it used the funds to build and maintain an educational system, the state loaned the money to build railroads that were destroyed in the Civil War. The war left Mississippi with a damaged transportation system, and the legislature’s diversion of these funds intended to support schools adversely affected its educational system. The Court remanded the case to the U.S. Circuit Court of Appeals for the 5 th Circuit for a determination of whether the state was required to distribute the funds in a particular manner. Papasan v. Allain , 478 U.S. 265 (1986). See also Marla Valdez, Constitutionality of Educational Land Grants and Mississippi State Property Interests Under Review in Papasan v. Allain , 28 NATURAL RESOURCES JOURNAL 199 (1988). The use of proceeds from land grant sales for educational purposes was authorized primarily by the Morrill Act of 1862 (7 U.S.C. § 301 et seq .). There was a second Morrill Act of 1890 (26 Stat. 417, 7 U.S.C. §§ 321 et seq .) (the “Agricultural College Act”), which provided funds for black agricultural education. Historian Jeannie Whayne traced the history of these and other federal statutes that affected agricultural education and extension services, particularly in Alabama and notably at Tuskegee. Jeannie M. Whayne, Black Farmers and the Agricultural Cooperative Extension Service: The Alabama Experience, 1945-1965 , 72 AGRICULTURAL HISTORY 523 (1998).

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Republican agenda that neither shared. As Eric Foner observed: “The destruction of the central institution of antebellum Southern life permanently transformed the war’s character, and produced far-reaching conflicts and debates over the role former slaves and their descendants would play in American life and the meaning of the freedom they had acquired.” 264

Plans for presidential reconstruction were cut short by Abraham Lincoln’s untimely death, and Andrew Johnson’s attempts were doomed by his lack of political acumen. After

Johnson’s impeachment for crimes ostensibly unrelated to Reconstruction, but widely viewed as retribution for his softness toward former Confederates, Radical Congressional Republicans took over. While their agenda was partly successful, notably for adoption of the 13 th , 14 th , and 15 th amendments and the civil rights acts, the Radicals’ efforts were unraveled by the growing power of Democrats, Southern conservatives, and the . 265

Historians a century and a half later continue to debate how the nation might have more quickly reunited had Lincoln lived to carry out politically astute policies of reconciliation.

Johnson, a Democrat and Union-leaning Tennessean, was not well-trusted by Republican leaders in Congress.266 His unilateral approach of invoking executive power without first securing

264 See ERIC FONER , RECONSTRUCTION : AMERICA ’S UNFINISHED REVOLUTION 1863-1877 xxvii ( & Row) (1988) and NICHOLAS LEMANN , REDEMPTION : THE LAST BATTLE OF THE CIVIL WAR (Farrar, Straus, and Giroux) (2006). 265 See, e.g ., Ryan A. Swanson, Andrew Johnson and His Governors: An Examination of Failed Reconstruction Leadership , 71 TENNESSEE HISTORICAL MAGAZINE 16 (2012) and Michael Les Benedict, A New Look at the Impeachment of Andrew Johnson , 88 POLITICAL SCIENCE QUARTERLY 349 (1973). 266 Lawrence H. Gipson, The Statesmanship of President Johnson: A Study of the Presidential Reconstruction Policy , 2 THE MISSISSIPPI VALLEY HISTORICAL REVIEW 363 (1915). As pointed out by Du Bois in his seminal work on Reconstruction, Andrew Johnson’s political views after the war were more sympathetic toward supporters of the Confederacy than before. Du Bois noted that “Johnson made two violent speeches against secession in 1860-61, with bitter personalities toward ” and other Confederate leaders. “He called them rebels and traitors … [and] shouted: ‘I would have them arrested, and if convicted, within the meaning and scope of the Constitution, by the Eternal God, I would execute them; Sir, treason must be punished; its enormity and the extent and depth of the offense must be made known!’” Johnson did not envision integrated social or equal legal rights, but thought that African Americans would continue in a subordinate role or colonize elsewhere. Politicians such as Confederate Vice President Alexander Stephens felt that Johnson’s incendiary speeches helped harden positions on both sides. See W.E.B. DU BOIS , BLACK RECONSTRUCTION IN AMERICA , AN ESSAY TOWARD A HISTORY OF THE PAST WHICH BLACK FOLK PLAYED IN THE ATTEMPT TO RECONSTRUCT DEMOCRACY IN AMERICA , 1860-1880 243–44 (Harcourt Brace) (1935) .

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Congressional buy-in did little to mend postwar fissures. Shortly after succeeding Lincoln, he appointed provisional military governors in the formerly rebellious states, and hoped that

Congressional representation would resume once state constitutions and laws were amended to prohibit slavery. Johnson’s leniency in granting pardons to former Confederate officials fostered his goal of the rise of a “white yeomanry”267 at the expense of the slave-owning aristocracy, and invoked a backlash from in Congress. 268

Presidential Reconstruction lasted until March 2, 1867, with passage of the first

Reconstruction act. This signaled the transition to Congressional Reconstruction, which was directed by the radical wing of the Republican Party. Compared to presidential efforts, the South was subjected by Congress to greater oversight and harsher terms in obtaining readmission. This included the approval of federal constitutional amendments and the passage of legislation to abolish slavery and secure civil rights, especially for freedmen. Although there were notable successes in reunifying the nation and Southerners’ acceptance of the new status of freedmen, the South’s overall opposition to the new federal directives was evidenced in many ways. This included resistance to Constitutional amendments abolishing slavery and affording due process to all, and statutes forbidding peonage. 269

Table 3 provides an overview of significant legislation passed by the Reconstruction

Congress. Particular attention is given in §§ 8.B and 8.C to two acts that significantly affected governmental efforts to combat forced labor. The Peonage Act of 1867 was passed to address the contractual form of slavery that was common in lands and territories formerly held by

267 See STAMPP , supra note 176 at 32-33. 268 Marc-Tizoc Gonzalez, Hunger, Poverty, and the Criminalization of Food Sharing in the New , 23 AMERICAN UNIVERSITY JOURNAL OF GENDER , SOCIAL POLICY AND THE LAW 231 (2015). 269 See, e.g ., John Hope Franklin, Mirror for Americans: A Century of Reconstruction History , 85 THE AMERICAN HISTORICAL REVIEW 1 (1980) and JOHN HOPE FRANKLIN , RECONSTRUCTION AFTER THE CIVIL WAR (University of Chicago Press) (1994).

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Mexico and Spain, and to keep it from expanding elsewhere. The Habeas Corpus Act of 1867 has proven to be a powerful tool in securing personal liberty from the threat of wrongful governmental detention. Section 7 deals with the 13 th , 14 th , and 15 th amendments to the

Constitution, which reflected Reconstruction-driven changes to American law and society. The

Freedmen’s Bureau, an executive branch agency authorized by Congress, is discussed in §8.A.

Although it did not achieve all hoped, the bureau had a profound effect on former slaves and their descendants that carried over to the time of the 1927 Mississippi River flood.

Among the significant factors that contributed to the end of Reconstruction was a lack of sustained political will of Americans. While ready to move beyond the war, the nation was unable to continue funding progressive initiatives. By 1867, the United States faced a war- related debt of over a half-billion dollars; interest was mounting, and the treasury was suffering.

The burden of carrying out Reconstruction became unsustainable. The nation’s fragile economy drove decisions by politicians at every level, as well as business owners and employers.

Although some regions were becoming more productive, particularly in agriculture, the country did not enjoy widespread prosperity. The South was left with enormous debt and worthless currency, and the North was in a better but still-worrisome position. The situation for each side was worsened by a grave international depression during the 1860s and 1870s. Not only were other nations sympathetic to a particular side less able to assist with recovery, Americans who had invested abroad were hurt. As the United States could not control the European crisis and its resources were inadequate, the country turned to other means to enable its government to function. With the approval of Congress, the U.S. Treasury Department issued a series of interest-paying notes. It turned to moneyman Jay Cooke to assist in selling its

85 bonds and in finding money to pay mounting . 270 Cooke, a friend of Salmon P. Chase, was appointed a fiscal agent of the Treasury and became the Union’s principal financier. 271

Unfortunately, Cooke, who was also a major player in the nationwide expansion of the railroads, overinvested at a time of declining demand. On September 18, 1873, Jay Cooke & Co. and 19 other banking houses failed. The prices of commodities plummeted, and as late as 1951, this depression remained the longest cyclical market contraction in the United States. Far- ranging consequences of an undercapitalized economy led to a larger monetary crisis that was compounded by extensive government debt. 272 The federal government was unable to continue expansive reconstruction, and political opponents seized upon the chance to bring it to an end. 273

By the presidential election of 1876, the country remained in an economic depression. Many were tired of focusing on the war and its aftermath, and longed for a period of normalcy.

President Grant was not offered a third term after his administration suffered numerous scandals associated with the depression of 1873, and was accused of malfeasance, fraud, and taking kickbacks. 274 Republicans chose Ohio Governor Rutherford B. Hayes as their candidate because he was inoffensive and untainted by notoriety. For much for the same reasons, the Democrats nominated New York Governor Samuel F. Tilden. 275

Harsh electioneering was followed by a historic deadlock between the two tepid candidates. Some historians believe that the election was decided by an “extraordinary electoral

270 O.P. Austin, The Public Debt of the United States, II , 175 THE NORTH AMERICAN REVIEW 701 (1902). 271 A 1902 article by Jay Cooke provided data on the devastating impact of the . He stated that, among other indicators, by 1874, about $30,000,000 worth of fewer loans were made and individual deposits fell nearly $60,000,000 in one year. Jay Cooke, A Decade of American Finance , 175 THE NORTH AMERICAN REVIEW 577, 581 (1902). 272 Rendigs Fels, American Business Cycles, 1865-79 , 41 THE AMERICAN ECONOMIC REVIEW 325 (1951). 273 O.V. Wells, The Depression of 1873-1879 , 19 JOURNAL OF FARM ECONOMICS 621 (1937). 274 The hoped-for calm from the 1868 election of Union war hero Ulysses S. Grant as president proved elusive; while he may not have been personally involved, corruption abounded within his administration. The trenchant wit of Mark Twain has been credited with calling Grant’s time in office the “era of good stealing.” MARK WAHLGREN SUMMERS , THE ERA OF GOOD STEALING (Oxford University Press) (1993). 275 Roger Olmsted, The Cigar-Box Papers: A Local View of the Centennial Electoral Scandals , 55 CALIFORNIA HISTORICAL QUARTERLY 256 (1976).

86 commission” comprised of U.S. Supreme Court justices and members of both houses of

Congress. This group voted 8 to 7 along party lines in favor of Hayes. It is said that when a filibuster was threatened, a politically influential group met privately and supposedly struck a deal. 276 Under what is called the “Compromise of 1877,” Hayes was afforded enough electoral votes to secure (if not win) the election for the Republicans. 277 In exchange, Hayes is alleged to have agreed to the following. He would serve only a single term, appoint least one Southern

Democrat to his cabinet, build the Texas and Pacific Railroad to link the South to the west coast, repair levees along the Mississippi River, and support legislation to restore the South’s economy.

Reconstruction was already winding down with the ending of the Freedmen’s Bureau in 1872 and constrained governmental funding following the Panic of 1873. Hayes agreed that

Reconstruction would be brought to a close and federal troops withdrawn from the South, thereby concluding its military occupation. The inauguration of Rutherford B. Hayes marked the beginning of “Redemption,” 278 in which Reconstruction was ended and the Southern states regained political independence. At the same time, racially-motivated paramilitary organizations such as the KKK were no longer kept in check, and former slaves were largely abandoned by the federal government. 279

276 Allan Peskin, Was There a Compromise of 1877? , 60 THE JOURNAL OF AMERICAN HISTORY 63 (1973). This disputed election predated the 2000 presidential election by over 100 years. The latter resulted in the U.S. Supreme Court’s decision in Bush v. Gore , 531 U.S. 98 (2000), which declared George W. Bush the victor. See, e.g ., Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution , 87 VIRGINIA LAW REVIEW 1045 (2001). 277 Historians disagree over whether there was an explicit compromise. See C. VANN WOODWARD , REUNION AND REACTION : THE COMPROMISE OF 1877 AND THE END OF RECONSTRUCTION (Little, Brown & Co.) (1951). See also Jerome L. Sternstein, The Sickles Memorandum: Another Look at the Hayes-Tilden Election-Night Conspiracy , 32 THE JOURNAL OF SOUTHERN HISTORY 34 (1966) and C. Vann Woodward, Communication: Yes, There Was A Compromise of 1877 , 60 THE JOURNAL OF AMERICAN HISTORY 215 (1973). Woodward’s views are further considered by Michael Les Benedict, in the Crisis of 1876-1877: A Reconsideration of Reunion and Reaction , 46 THE JOURNAL OF SOUTHERN HISTORY 489 (1980). 278 “Redemption” was described by some Southerners as “Home Rule,” as it would provide federal financial assistance, remove vestiges of provisional governments, and restore state autonomy. WOODWARD , supra note 277 at 8. 279 Patrick W. Riddleberger, The Radicals’ Abandonment of the Negro During Reconstruction , 45 THE JOURNAL OF NEGRO HISTORY 88 (1960).

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Jerrell H. Shofner commented on the dire plight of freedmen after federal interest in

Reconstruction ceased. Many were uneducated and unskilled, desperate to support themselves and their families, and had lost many of the modest gains achieved with federal assistance such as the help of the Freedmen’s Bureau. After 1876, African Americans in the South were increasingly subjected to rigid Jim Crow regimes that harmed them socially, economically, and politically. They were left prey to state laws that fostered peonage and the contrived use of at the prisoner’s expense but to the financial benefit of the state and warden. 280

The following table summarizes major events during Reconstruction:

Table 3. Major Events of the Reconstruction Era

1863 January 1 – President Lincoln issued the Emancipation Proclamation. 1864 [The Civil War continued to rage.] 1865 January 31 – The 13th amendment was ratified. March 3 - The Freedmen’s Bureau Act was passed. April 9 – Confederate General Robert E. Lee surrendered at Appomattox Courthouse, Virginia. April 15 – President Lincoln was assassinated; Andrew Johnson became president. May 29 - President Johnson issued an “Amnesty Proclamation” and the “North Carolina Proclamation.” December – The Ku Klux Klan was founded in Pulaski County, Tennessee. 1866 April 9 – The Civil Rights Act of 1866 was passed over a presidential veto. May 1-3 – A major race riot took place in Memphis, Tennessee. July 30 – A major race riot took place in New Orleans, Louisiana. 1867 January 8 – The District of Columbia Suffrage Act was passed. February 5 – The Habeas Corpus Act of 1867 was passed and the Judiciary Act of 1789 was amended. March 2 – The first Reconstruction Act was passed; Radicals in Congress took control over Reconstruction. March 2 – The Peonage Act of 1867 was passed. 1868 February 24 – President Johnson was impeached by Congress but not convicted. March 27 – Congress passed a law depriving federal courts of habeas corpus jurisdiction over appeals under the act of 1867 (the “ McCardle ” exception). July 28 – Secretary of State Seward announced ratification of the 14 th amendment. 1869 February 25 & 26 – The House then the Senate passed the 15 th amendment. 1870 February 3 – The 15 th amendment was ratified. May 30 – President Grant signed into law the . 1871 February 28 - President Grant signed into law the first Enforcement Act of 1871. April 20 - President Grant signed into law the second Enforcement Act of 1871. 1873 April 13 – The “” took place in Grant Parish, Louisiana. September – The “Panic of 1873” caused a national financial crisis and deep depression.

280 Jerrell H. Shofner, Forced Labor in the Florida Forests 1880-1950 , 25 JOURNAL OF FOREST HISTORY 14 (1981).

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1877 The “Compromise of 1877” gave Rutherford B. Hayes the presidency, allegedly in exchange for ending Reconstruction.

Southerners reluctant to lose the benefits of enslaved workers sought to thwart

Reconstruction and regain the economic advantage of low cost labor and cultural satisfaction of white supremacy. By custom and passing questionable laws, they resorted to the use of forced labor in three general forms. These were employment contracts of adhesion, debt enslavement, and the contrived use of convict labor; the first two of these often combined. What these have in common is that the laborers became further entrapped in inequitable employment arrangements.

While there was no longer chattel slavery, these forms of forced labor and physical constraints upon their victims’ freedom of movement harkened back to the pre-emancipation period. This dissertation in § 9 summarizes the black codes adopted by Southern states. These punitive laws were used to ensure African Americans remained relegated to a position subordinate to whites, and continued to be a cheap labor source.281

Figure 28. “Group of ‘contrabands’ at Foller’s House” Cumberland Landing, Virginia, 1862. http://www.loc.gov/pictures/item/cwp2003000055/PP/ .

281 W.E.B. Du Bois, Reconstruction and Its Benefits , 15 THE AMERICAN HISTORICAL REVIEW 781, 784–85 (1910.)

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This complex path to reconstructing the former Confederacy proved difficult, and was met with mixed success. There are widely varying schools of thought about the purposes and achievements of presidential and Congressional Reconstruction. Some saw the period as one “of unrelieved sordidness in political and social life” in which “vindictive Radical Republicans fastened black supremacy upon the defeated South, unleashing an orgy of corruption presided over by unscrupulous carpetbaggers, traitorous , and ignorant freedmen.” 282 This traditionalist view, led by historian William A. Dunning, blamed postbellum discord on Northern radicals who supposedly too harshly penalized a South that had honorably surrendered, and gave too much to freed slaves. 283 “Dunningites” especially took exception to granting freedmen suffrage, as “a black skin means membership in a race of men which has never of itself succeeded in subjecting passion to reason, has never, therefore, created any civilization of any kind.” 284 A similar philosophy was evident in D.W. Griffith’s popular 1915 film Birth of a

Nation . This movie romanticized the antebellum South, extolled the virtues of the KKK, and enjoyed its premier at ’s White House. 285

The portrayal of Reconstruction in popular culture varied over time, and by the one doing the telling. Some Southern authors, such as and Thomas Nelson Page, popularized Confederates as valiant and honorable people who were wrongly left prey to

Northern carpetbaggers, Union-sympathizing scalawags, and their former slaves. Page wrote:

“In 1865, when the Negro was set free, he held without a rival the entire field of industrial labor

282 Eric Foner, Reconstruction Revisited , 10 THE JOHNS HOPKINS UNIVERSITY PRESS 82 (1982). 283 See, e.g , William Dunning, More Light on Andrew Johnson , 11 THE AMERICAN HISTORICAL REVIEW 574 (1906); Laura F. Edwards, Southern History as U.S. History , 75 THE JOURNAL OF SOUTHERN HISTORY 533, 547–49 (2009). 284 Foner, supra note 264 at 609. 285 Id . Benbow debated whether Wilson truly said of the film, as has been claimed, that: “It’s like writing history with lightning. My only regret is that it is all so terribly true.” Benbow agreed that the Virginia-born president viewed “Reconstruction as a disorderly time when white Southerners were deprived of their civil rights.” Mark E. Benbow, Birth of a Quotation: Woodrow Wilson and “Like Writing History with Lightning,” 9 THE JOURNAL OF THE GILDED AGE AND 509, 509, 528 (2010).

90 throughout the South…. Every adult was either a skilled laborer or a trained mechanic. It was the fallacious teaching of equality which deluded him into dropping the substance for the shadow.” 286

As the mid-20 th century approached, more progressive historians came to regard

Reconstruction in a different light. A principal critic of the was W.E.B.

Du Bois. In his extensive book BLACK RECONSTRUCTION IN AMERICA , Du Bois posited that the premise of the Dunning theory was its regard of African Americans as inherently incapable.

Du Bois described “Standard Anti-Negro” historians as those who “believe the Negro to be sub- human and congenitally unfitted for citizenship and the suffrage.” This group “select[s] and use[s] facts and opinions in order to prove that the South was right in Reconstruction, the North vengeful or deceived, and the Negro stupid.” 287

W.E.B. DuBois Frederick Douglass Figure 29. Photographs of W.E.B. Du Bois and Frederick Douglass

286 THOMAS NELSON PAGE , THE NEGRO : THE SOUTHERNER ’S PROBLEM 127 (Charles Scribner’s Sons) (1904). Joel Chandler Harris was probably best known for his Uncle Remus stories. President Theodore Roosevelt was a fan, and, like Booker T. Washington ( see § 14), also invited Harris to the White House for dinner. Clyde H. Dornbusch, Joel Chandler Harris Visits the White House , 46 THE GEORGIA HISTORICAL QUARTERLY 41 (1962). 287 Du Bois, supra note 266.

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Later historians have urged further revisionist perspectives. Some regard Andrew

Johnson as racist and politically inept, and Radical Republicans as idealistic reformers who established public schools for black education, granted universal male suffrage, and utilized

Northern capital to revitalize the devastated Southern economy. 288 Others see Reconstruction as

America’s second and “unfinished revolution,” which can only be truly understood in the context of the Civil War.

An insightful, first-hand account of Reconstruction was published in the nationally- popular McClure’s Magazine .289 Carl Schurz was a German immigrant who served as a Union general, U.S. Senator from Missouri, and in other high posts. 290 He was among those sent by

President Johnson to survey conditions in the South following the war. Schurz wrote of the desperate poverty there, which abruptly lost its enslaved labor force but needed to immediately produce a crop. Southerners “were sure the negro would not work without physical compulsion; they were sure the negro did not, and never would, understand the nature of a contract.” Schurz recounted “a Georgia planter who vociferously insisted that one of his negro laborers who had objected to a whipping had thereby furnished the most conclusive proof of his unfitness for freedom.” He saw that Southerners clung to the notion “that the landowner must also own the black man tilling his land, and that any assertion of freedom or action on the part of that black man was insubordination equivalent to criminal revolt, and any dissent by the black man from the employer’s opinion or taste [was] intolerable insolence.” 291

288 Eric Foner, The Continuing Evolution of Reconstruction History , 4 OAH MAGAZINE OF HISTORY 11 (1989). 289 Carl Schurz, First Days of the Reconstruction , MCCLURE ’S MAGAZINE 1908. 290 Joseph Schafer, Carl Schurz, Immigrant Statesman , 4 WISCONSIN HIST . SOC . 373 (1928). 291 Schurz, supra note 289 at 40.

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7. Reconstruction-Era Constitutional Amendments: Promises of Emancipation, Due Process, and Suffrage

From Will Percy’s LANTERNS ON THE LEVEE [T]he stage which [Grandfather] trod after the war was no ordinary stage, and the play no ordinary play. Those days you had to be a hero or a villain or a weakling – you couldn’t be just middling ordinary. The white people in the whole Delta comprised a mere handful, but there were hordes of Negroes. Poor wretches! For a thousand years and more they had been trained in tribal barbarism, and for a hundred and more in slavery. So equipped, they were presented overnight with freedom and the ballot and told to run the river country. They did…. There were no white officials, not even carpetbaggers. It was one glorious orgy of graft, lawlessness, and terrorism. The desperate whites though negligible in number banded together to overthrow this regime and chose [Grandfather] as their leader. His life work became re-establishment of white supremacy [which] required courage, tact, intelligence, patience; it also required vote-buying, the stuffing of ballot boxes, chicanery [and] intimidation. Heart-breaking business and degrading, but in the end successful. At terrific cost white supremacy was re-established. Some of us still remember what we were told of those times, and what we were told inclines us to guard the ballot as something precious, something to be withheld unless the fitness of the recipient to be patent. We are the ones I suppose who doubt despairingly the fitness of Negroes and (under our breath let be it said) of woman. Will Percy 292

Will Percy expressed the despair of many white Southerners to Reconstruction-era constitutional amendments and laws and their determination to reassert supremacy. The 13 th ,

14 th , and 15 th amendments collectively freed the slaves and abolished involuntary servitude, and

granted freedmen citizenship and associated rights including the right to vote. As discussed below, these postbellum amendments confer among the most significant rights. Over time, these

would be interpreted by the courts to afford freedom to those of all races and genders.

As described in § 3, the U.S. Constitution is a marvel of compromise by various factions

and philosophies. At the time it was written, the framers understood that there were certain

issues that were then too difficult to fully negotiate, including the questionable continuation of

slavery. They were also concerned with making a determination of fundamental liberties;

eventually, these were defined in the first ten amendments, which are referred to collectively as

the Bill of Rights. The framers understood that the Constitution should neither be a static

292 Percy, supra note 45 at 273-74. Will Percy related the response of his paternal grandfather, the first William Alexander Percy (for whom the writer was named), as part of the Southern elite to Reconstruction-era Constitutional amendments and changes in law and society. Influential Confederate Colonel William Alexander Percy, Sr., was known as the “Gray Eagle of the Delta” and was well regarded by fellow planters for his leadership after the war. Lewis A. Lawson, ’s Southern Stoic , 3 THE SOUTHERN LITERARY JOURNAL 5 (1970).

93 document nor one easily changed. To that end, they included Article V, which recognized the power of the people and Congress to act in concert in a deliberately cumbersome process to amend the document that is the foundation of the nation. 293 This article was well-utilized in significantly changing postbellum America.

Ratification of the 13 th , 14 th , and 15 th amendments offered Constitutional guarantees of civil and political rights to African Americans, although these benefits extended beyond that group. Despite this progress, whites of the post-Emancipation era found ways to reassert their stance of black inferiority through custom, racist laws, and corrupt government practices. 294 The new constitutional guarantees were irregularly applied, as the courts struggled to decide cases under these new decrees. Most postbellum Southern blacks lived in an atmosphere of fear, oppression, and disrespect aimed at forcing them to remain in a subservient status not unlike that of the slavery previously endured. Oppressive practices stemmed from a paternalistic attitude by some that continued compulsory labor for blacks was justified by their alleged tendency to malinger. 295 At rates far higher than whites for the same offense, African Americans were convicted for such imprecisely defined behavior as vagrancy and loitering, which were concepts brought from English law ( see § 2). They suffered disparate civil and criminal punishment for often petty crimes that were vaguely described by statute, particularly under the Southern states’ postwar black codes ( see § 9).

Ratification of the Reconstruction-era constitutional amendments signaled that the nation would thereafter view chattel slavery in a new light. Along with involuntary servitude, slavery was forever abolished and former slaves were declared to be citizens as part of “all persons born or naturalized in the United States.” States were forbidden to “abridge the privileges or

293 U.S. Const., art. V. 294 Clark, supra note 88. 295 John Douglass Van Horne, The Southern Attitude toward Slavery , 29 THE SEWANEE REVIEW 322, 328–29 (1921).

94 immunities” of those citizens, and required to afford them “due process” and “equal protection” under the law. Citizens’ rights of suffrage were not to be denied or abridged by federal or state governments “on account of race, color, or previous condition of servitude.” 296 In contravention of the Dred Scott decision, which said that blacks at most could be state, but not federal, citizens,

Congress nationalized citizens’ civil rights. Among other laws, it incorporated protections of these into the several Freedmen’s Bureau Acts, the Civil Rights Acts of 1866 and 1875, and the

13 th , 14th , and 15 th amendments, and relied heavily upon federal courts to enforce these measures.

7.A. The Thirteenth Amendment

The familiar text of the 13 th amendment abolishing slavery was not the first attempt to amend the Constitution under that title; the effort underwent various iterations. In his first inaugural address, Lincoln said that he “had no objection to the measure being made express and irrevocable.” 297 By 1864, when the amendment was first considered by Congress, the political climate had changed radically: the war had proved deadly, costly, and prolonged, and the North was no longer interested in making concessions to the Confederacy. Lincoln demanded that abolition be made part of the 1864 Republican platform, and regarded his reelection as a political mandate for abolishing slavery. He was concerned that Congress would override or nullify the

Emancipation Proclamation, which was grounded in martial law. Lincoln pushed for a constitutional amendment on abolition to provide permanency and national scope. The canny politician offered rewards of patronage, freedom to Democrats’ rebel family members, and even a railroad monopoly in New Jersey in exchange for favorable votes on the proposed

296 U.S. Const., amends. XIII-XV. 297 “First Inaugural Address of Abraham Lincoln,” delivered March 4, 1861. Accessed on April 2, 2017 at http://avalon.law.yale.edu/19th_century/lincoln1.asp.

95 amendment.298 His efforts succeeded; on January 31, 1865, Congress sent the 13 th amendment to the states for ratification. One day later, President Lincoln gave an impromptu speech reported by the New York Tribune , in which he praised the new amendment: “A question might be raised whether the [Emancipation] proclamation was legally valid. It might be added that it only aided those who came into our lines and that it was imperative as to those who did not give themselves up, or that it would have no effect upon the children of slaves born hereafter …. But this amendment is a King’s cure for all the evils.” 299 The 13 th amendment was ratified on December

6, 1865.

The great achievement of the 13 th amendment was to abolish slavery and prohibit involuntary servitude, but it did not secure social equality for all. Unlike the limited legal reach of the Emancipation Proclamation, this amendment forbade slavery throughout the nation and lands under U.S. jurisdiction; this extended beyond areas in rebellion. 300 Importantly, the amendment did not simply pronounce the end of bondage but gave Congress enforcement powers. These were to be carried out “by appropriate legislation” and this was followed by a series of civil rights and other acts intended for that purpose. The 13 th amendment states in § 1:

“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Section 2 provides that “Congress shall have power to enforce this article by appropriate legislation.”

298 Stephen B. Oates, “The Man of Our Redemption”: Abraham Lincoln and the Emancipation of the Slaves , 9 PRESIDENTIAL STUDIES QUARTERLY 15 (1979). 299 Dueholm, supra note 257 at 22, n.1 citing Roy P. Basler et al., eds., The Collected Works of Abraham Lincoln , 8:254 (Rutgers University Press) (1953). 300 As discussed in §§ 15.C and 15.F, the 13 th amendment includes an exception to involuntary servitude by permitting the forced labor of “the duly convicted,” which was regarded by some as a loophole to be exploited.

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Each section of the amendment was cause for alarm for those who objected to the abolishment of slavery. The first section was repugnant for its abrupt ending of the “peculiar institution,” as well as the less clearly-defined condition of “involuntary servitude,” on a nationwide basis. As momentous as this aspect is, it has eclipsed for many the second section, which is arguably of equal gravamen. For the first time, the U.S. Constitution was amended to specifically grant wide enforcement powers to the federal government. This was a significant departure from the previous practice of delegating such measures to the states, and was the first new enumerated Congressional power since 1787. This was a particularly thorny concern to a country still struggling to sort out whether the Confederate states ever possessed power to secede, and the authority of individual states to independently govern. It raised the question of how “federalism” would be defined thereafter. According to constitutional scholar Erwin

Chemerinsky, the U.S. Supreme Court has traditionally used two models in defining the term

“federalism.” Conflicting meanings and mixed interpretations using the same language have led to occasional confusion over whether a particular author is referring to a grant or restriction upon national authority. Chemerinsky defined the first model as an expanded form “that seeks to empower government at all levels to deal with society’s problems.” He regarded the second view of the term as a “means of limiting federal power, especially to protect the authority of state governments.”301

The U.S. Supreme Court has taken varying positions regarding the scope of the 13 th amendment, and the extent to which enforcement powers in § 2 extend to private actions, those by the states, and those undertaken by the federal government. One of the matters left open was the definition of “involuntary servitude,” which was clarified in 1988 by the U.S. Supreme

Court. In United States v. Kozminski , the Court stated that this was the “compulsion of services

301 Erwin Chemerinsky, The Assumptions of Federalism , 58 STANFORD LAW REVIEW 1763 (2006).

97 through the use or threatened use of physical or legal coercion.” 302 Although involuntary servitude was abolished in 1866, the use of forced labor persisted in the postbellum South and beyond. The Civil War may have been over, but the enslavement of human beings, particularly

African Americans, was far from a settled matter as slavery persisted in forms other than chattel possession.

7.B. The Fourteenth Amendment

With emancipation of the slaves and abolition of slavery as a political institution came the immediate questions: what did that freedom mean? How could the freedmen best be protected against adverse state action? Answers came in the 14 th amendment, with its broad grant of citizenship to those born in the United States. It promised due process of law by the states in a parallel to the 5 th amendment, which applied to the federal government. The 14 th amendment provided that “no state” shall “deprive any person of life, liberty, or property, without due process of law.”

While civil rights for African Americans had been debated for over two centuries, key events surrounding adoption on July 9, 1868, of the 14 th amendment took place in a two-year period following the Civil War. When former Confederate states refused to approve the proposed amendment, the Congressional Joint Committee on Reconstruction conditioned restoring their Congressional representation upon ratifying the amendment. This harsh inducement succeeded, and on July 28, 1868, U.S. Secretary of State William H. Seward certified that the 14 th amendment had been ratified by the states and become law. 303 The New

York Times published an official notice and reported on reactions in various states. For example,

302 United States v. Kozminski , 487 U.S. 931, 945 (1988) citing Clyatt , 197 U.S. 207. 303 Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment , 101 YALE LAW JOURNAL 1193 (1992) and John G. Clark, Historians and the Joint Committee on Reconstruction , 23 THE HISTORIAN 348 (1961).

98 in Alabama, “passage of the Amendment was greeted with a national salute, and a fine band of music is serenading the members of the Legislature.” The article noted that predictions that the reconstructed government would be greeted with bloodshed proved untrue, and that Alabamians now “live under a Constitution which secures equal civil and political rights to all citizens….

The Rebels look sullen, but the loyal men breathe freely again – the yoke is lifted off men’s necks, and for the first time in all these weary years we begin to realize that Slavery is dead.” 304

The 14 th amendment’s first section remains one of Americans’ most treasured constitutional provisions. It removed the stigma attached by the Dred Scott ruling, which denied that African Americans, whether enslaved or free, could be federal citizens. By superseding that decision through constitutional fiat, there was no need for the Supreme Court to reverse that opinion. Without racial limitations, this provision declared that “all persons” – anyone born in the United States or naturalized – were United States citizens entitled to equal protection under the law. That meant that, had Dred Scott survived through the latter part of 1868, his suit would have been unnecessary. Slavery would have been abolished under the 13 th amendment, and he would have been afforded the dignity of citizenship and redress through the federal courts under the 14 th amendment. But being recognized as a citizen of the United States did not fully protect freedmen and their descendants if the states, particularly those that formerly sanctioned slaveholding, did not put African Americans on an equal footing with whites. 305 Radical

Republicans worried that states would use their considerable and broadly defined “police power” to treat freedmen inequitably. Left unchecked, states’ authority to enact laws to protect public health, safety, and welfare gave them wide latitude in controlling African Americans. The 14 th

304 Reconstruction: Ratification of the Fourteenth Amendment , NEW YORK TRIBUNE , July 20, 1868, at 1. Accessed on April 12, 2017 at http://chroniclingamerica.loc.gov/lccn/sn83030214/1868-07-20/ed-1/seq-1/. 305 Although the 14 th amendment is gender-neutral on its face, American women were not given the right to vote until the 19 th amendment was ratified on August 18, 1920. U.S. Const. amend. IXX.

99 amendment seemed to impose that limit with its guarantee of due process of law; the Court would later struggle with interpreting the scope of that promise. 306

The second section of the 14 th amendment is valued for its promise of fair and equal treatment, which has been interpreted to include procedural and substantive due process. While both are grounded in the concept of “fundamental fairness,” the former is more administrative in nature, and used to safeguard the manner in which justice is carried out. It focuses on legal rules and how the parties are treated in a proceeding. For example, it is invoked to ensure that a party is being afforded notice of the action, a fair hearing, the opportunity to discover evidence, the chance to testify and confront witnesses, and the right to counsel. The closely-related notion of

“substantive due process” is employed to assure that the law is being correctly and fairly applied.

This concept is used in evaluating decisions on specific legal topics, such as liberty of contract and the right to privacy. 307 It has also been interpreted as protecting economic rights, which were a priority for former slaves seeking to support themselves and their families. This became especially important as many freedmen were induced by necessity to enter into unfavorable labor agreements. David E. Bernstein explained that the concept of “economic due process” was derived from that of “natural rights,” which were viewed as protected by civil law. “Economic liberty included the right to own and alienate property and the right to contract freely and to have the government enforce those contracts (‘freedom of contract’).” As long as Radical

Republicans controlled Congress, economic liberty was part of party ideology as reflected in the civil rights legislation that was adopted. 308

306 See, e.g., Cruikshank , 92 U.S. 542. 307 Congressional Research Service, Library of Congress, THE CONSTITUTION OF THE UNITED STATES OF AMERICA : ANALYSIS AND INTERPRETATION , CENTENNIAL EDITION . SENATE DOCUMENT NO. 112-9 at 1820 (Washington, D.C., 2016). Accessed on April 15, 2017 at https://www.congress.gov/content/conan/pdf/GPO-CONAN-REV-2016.pdf . 308 David E. Bernstein, The Supreme Court and “Civil Rights”: 1886-1908 , 100 YALE LAW JOURNAL 725, 725–26 (1990).

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As written, the 14 th amendment pledged much, but as applied by the courts, it was of variable benefit. One of the important doctrinal shifts seen over the years is the degree to which this amendment was used to actually protect U.S. citizens. As seen in the 1873 Slaughter-House

Cases ,309 the first case in which the Supreme Court first considered its reach, this amendment was narrowly construed as not affecting those rights regarded as within the states’ purview.

7.C. The Fifteenth Amendment

The 15 th amendment, ratified on February 3, 1870, states in § 1: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”310 Section 2 provides: “The

Congress shall have the power to enforce this article by appropriate legislation.” 311 This was the last of the Reconstruction-era Constitutional amendments, and it is instructive to view its adoption in historic context. Until the advent of Congressional Reconstruction, the road to black male suffrage was long and uneven, fraught with brief successes and larger defeats. The time was right: the South was defeated and slavery abolished, and Radical Republicans used their political power to leverage the former Confederate states into approving the amendment in exchange for restored representation. This was also a time when the KKK, one of several violent white supremacist organizations, was at its height of power and posed a very real threat to

African Americans, especially when they tried to vote. 312

309 Slaughter-House Cases , 83 U.S. 36. 310 U.S. Const. amend. XV, § 1. 311 U.S. Const. amend. XV, § 2. 312 Irving H. Bartlett, and the Eloquence of Abuse , 11 AMERICAN QUARTERLY 509 (1959).

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Figure 30. Late 19 th century photographs of costumed members of the Ku Klux Klan

By the middle of the Civil War, Lincoln’s 1863 proclamation at least symbolically emancipated the Confederates’ slaves, and the North anticipated a victory that would free

African Americans nationwide. Yet, the extent of that freedom was hotly contested: Was it enough to eliminate the slaves’ status as chattel? How was society to recognize their new role?

Were blacks to be fully acknowledged as citizens and politically empowered at the ballot box?

The New York Times related a December 1864 speech by noted Massachusetts lawyer and abolitionist Wendell Phillips.313 He referred to Lincoln as “that slave hound from Illinois” and questioned Lincoln’s nascent policies for reconstructing the nation. 314 Phillips observed that the president had not committed to a particular scheme. While advocating an amendment to the federal constitution abolishing slavery, Lincoln “would not interfere with the internal organization of the reclaimed State further than to exclude slavery from it by constitutional law, binding alike on all.” Phillips regarded this as wholly inadequate. He argued strongly that the government was “bound to make negro suffrage an indispensable condition of re-admission –

[Phillips’] special point being that otherwise the negro, can have no effective guaranty of freedom or education, or elevation as a man.” The abolitionist expressed reservations about the

313 Wendell Phillips was one of the most outspoken abolitionists of his day; he left his law practice to become a leading and advocate for civil rights. Bartlett, supra note 312. 314 Monroe Johnson, Taney and Lincoln , 16 AMERICAN BAR ASSOCIATION JOURNAL 499, 500 (1930).

102 efficacy of a constitutional amendment, “because the States would find a way to evade it, and keep the black man, by disqualifications, in a condition which would be hardly better than slavery; though carrying some other name.” Phillips expressed his belief that “No constitutional parchment can protect the negro … he must protect himself with that strongest of all weapons, the ballot.” 315

Advocates of African American suffrage increased their efforts during the Civil War.

One of the most famous of these was Frederick Douglass, 316 who in 1865 delivered his compelling speech “What the Black Man Wants” to the Massachusetts Anti-Slavery Society. He reminded the audience of the wartime sacrifices made by blacks that warranted giving them the vote: “It is said that we are ignorant; I admit it. But if we know enough to be hung, we know enough to vote. If the Negro knows enough to pay taxes to support the government, he knows enough to vote; taxation and representation should go together. If he knows enough to shoulder a musket and fight for the flag, fight for the government, he knows enough to vote. If he knows as much when he is sober as an Irishman knows when drunk, he knows enough to vote, on good

American principles.” 317

Opponents of black suffrage were also active. Citizens of the “states formerly in rebellion” responded angrily to military occupation and proposed Reconstruction measures to grant freedmen equal rights and suffrage. Violence erupted in response to edicts from the national government to implement these policies. The first of two especially bloody race riots

315 Wendell Phillips on Reconstruction , NEW YORK TIMES , Dec. 29, 1864. Accessed on April 13, 2017 at http://search.proquest.com/hnpnewyorktimes/docview/91828891/460EF95C76AC458BPQ/5?accountid=34227. 316 Famed orator, abolitionist, and human rights leader Frederick Douglass was born into slavery in Talbot County, Maryland. While his birthdate has been given variously as 1808 or 1818, he died a free man in Washington, D.C., in 1895. Douglass’ fame was such that he, and not popular figures like Lincoln or , was the most photographed person of the 19 th Century. JOHN STAUFFER , PICTURING FREDERICK DOUGLASS : AN ILLUSTRATED BIOGRAPHY OF THE NINETEENTH CENTURY ’S MOST PHOTOGRAPHED AMERICAN (Liveright Publishing Corp.) (2015). 317 Frederick Douglass, “What the Black Man Wants,” a speech presented to the Massachusetts Anti-Slavery Society in 1865. Cited at RECONSTRUCTION : OPPOSING VIEWPOINTS 148 (B. Stalcup ed., Greenhaven Press) (1995).

103 took place on May 1-3, 1866, in Memphis, Tennessee, between freedmen and white police. The second began on July 30, 1866, in New Orleans, as a volatile Louisiana Constitutional

Convention considered the agenda demanded by the Radical Republican Congress. Southern whites were angered by the wartime defeat and their former slaves’ refusal to resume deferential behavior. 318

By the fall of 1866, the Republicans had a majority in Congress, and took advantage of this strengthened power to push the Radical agenda. Over Johnson’s veto, Congress wrested control over reconstruction by passing the first Reconstruction Act on March 2, 1867. 319 On

January 8, 1867, Congress exercised its power by overriding yet another presidential veto and passed the District of Columbia Suffrage Bill, which allowed black men to vote. Republicans were not entirely altruistic in extending the ballot to the freedman. As would be seen throughout its battle for the 15 th amendment, the party was eager to maintain political dominance and believed that grateful former slaves would help them accomplish that goal. 320

In February 1869, both houses of Congress approved what would become the 15 th amendment. The relatively simple language of the amendment was a compromise, following efforts by Congressman of Ohio, among others, to make it more expansive. There had been considerable debate from Senators and Representatives, who represented their constituencies’ views on wording the amendment. There was disagreement over provisions forbidding state restrictions on the bases of property, , payment of a poll tax, or other qualification. Some wanted to prohibit such terms, whereas others feared that doing so would

318 Armstead L. Robinson, The Politics of Reconstruction , 2 THE WILSON QUARTERLY 106, 117–18 (1978). 319 Reconstruction Act of March 2, 1867, ch. 153, 14 Stat. 428. 320 Thomas R. Johnson, Reconstruction Politics in Washington: “An Experimental Garden for Radical Plants,” 50 RECORDS OF THE COLUMBIA HISTORICAL SOCIETY 180 (1980).

104 award the ballot to unqualified voters. Bingham worried that limiting restrictions against suffrage only to race, color, and former condition of servitude invited states to mischief. 321

Days before the session’s end, the 40 th Congress adopted a version of the 15 th amendment that forbade disenfranchisement based on race, color, and former condition of servitude. The

15 th amendment was ratified on February 3, 1870, by the requisite number of states, despite resistance from Congressional Democrats and the former Confederate and border states. In announcing ratification of the 15 th amendment, President Grant observed that it made “at once four millions of people voters.” He harkened back to the Dred Scott decision which had denied that blacks “were citizens of the United States,” and “had no rights which white men were bound to respect.” Grant encouraged Congress to do all within its “constitutional power to promote and encourage popular education.” He wanted Congress to see to it that the new voters “have the opportunity to acquire the knowledge which will make their share in the Government a blessing and not a danger.” Press across the country proclaimed to the public that the amendment was ratified. Among other announcements, the New York Tribune on April 4, 1870 printed a list of churches with celebratory “Thanksgiving services.” 322

As would be seen in subsequent litigation including Cruikshank 323 and other suits (see

§ 10), the concerns of Congressional Radicals over the minimal protections of the 15 th amendment proved prescient. Southern states proved inventive in avoiding the aims of the amendment in ways that appeared superficially race-neutral but effectively disenfranchised

321 Alfred Avins, The Fifteenth Amendment and Literacy Tests: The Original Intent , 18 STANFORD LAW REVIEW 808, n.7 (1966) citing 40 (3) [Cong.] Globe 722 (1869). 322 JOSEPH HARTZELL CRANE , CHRISTIAN EDUCATORS IN COUNCIL : SIXTY ADDRESSES BY AMERICAN EDUCATORS 45 (Phillips & Hunt) (1883). See also Thanksgiving Services , NEW YORK TRIBUNE , Apr. 4, 1870. Accessed on April 18, 2017 at New-York tribune. (New York [N.Y.]), 04 April 1870. Chronicling America: Historic American Newspapers . Lib. of Congress. < http://chroniclingamerica.loc.gov/lccn/sn83030214/1870-04-04/ed-1/seq-5/ >. 323 Cruikshank , 92 U.S. 542.

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African Americans. This was done by enacting legislation, and implementing procedures for voter registration and the election process, that ensured that their votes would not be counted.

George B. Tindall, an historian of the South, recounted measures that were discussed as part of the convention that drafted South Carolina’s 1895 constitution. Governor Benjamin F.

Perry of that state predicted barriers to black suffrage. In addition to the requirement that the prospective voter previously be established as a state and local resident, other qualifications included ownership of a minimum amount of real property or other particular assets. Other measures included a passing a stringent , ostensibly to ensure that only persons of

“sufficient intelligence” be allowed to cast a vote. One “elaborate plan [] would require presentation of three certificates from three different sources before an individual could register: a certificate from the clerk of court that he had never been convicted of crime, another from the county board of examiners that he could read and write, and a third from the township board that he had never committed adultery or fornication, nor neglected or maltreated his wife or children.” Another scheme required that the voter deposit separate ballots in eight different boxes; any incorrectly submitted votes would not be counted. Successfully doing so was especially problematic for freedmen, as state law had denied them an education,324 some had difficulty in differentiating these receptacles. A popular device in Southern and border states to enable whites who did not meet these criteria was the “,” which enfranchised white males whose grandfather enjoyed the right to vote in 1867 or before, even if that voter could not pass any other test. 325

324 Southern states routinely made it illegal to educate slaves, and used illiteracy as a measure of social control. For example, an 1833 ordinance in Savannah, Georgia authorized 39 lashes for a slave caught teaching another to read or write. Slaves discovered reading or writing had fingers or thumbs cut off. Grant, supra note 122 at 61-64. 325 George B. Tindall, The Question of Race in the South Carolina Constitutional Convention of 1895 , 37 THE JOURNAL OF NEGRO HISTORY 277 (1952).

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With the reluctance of the U.S. Supreme Court to intervene during Reconstruction and in the half century to follow, states found their way to frustrate the 15 th amendment with ease and

undo the promise of African American suffrage. The Court reasoned in a number of cases that

this was legally done because only the states – and not the federal government – had authority to

regulate the voting process. As constitutional scholar Akil Reed Amar has observed, the Court

in that era “all but abandoned the Fifteenth Amendment. In a line of cases that reached its nadir

in Giles v. Harris ,326 the Court presided over a regime of massive, and in many places near-total, black disenfranchisement mocking the People’s promises in Reconstruction.” 327 The Court’s

failure to protect black suffrage opened the door to the states’ successful use of black codes and

continued and violence.

8. Reconstruction-Era Federal Statutes

Can the South Solve the Negro Problem? * * * Some planters held back their former slaves on their plantations by brute force. Armed bands of white men patrolled the county roads to drive back the Negroes wandering about. Dead bodies of murdered negroes were found on and near the highways and by- paths. Gruesome reports came from the hospitals – reports of colored men and women whose ears had been cut off, whose skulls had been broken by blows, whose bodies had been slashed by knives or lacerated by scourges. A number of such cases I had occasion to observe myself. A veritable reign of terror prevailed in many parts of the South. The negro found scant justice in the local courts against the white man. He could look for

326 Schmidt labels Justice Holmes’ majority decision in Giles v. Harris , 189 U.S. 475 (1903) as “extraordinary,” one of the less-evaluative terms used to describe that opinion. The lead plaintiff challenged, on behalf of more than 5,000 similarly situated African Americans, the refusal of Montgomery County, Alabama officials to register black voters. The denial was predicated upon provisions of the Alabama constitution that combined elements of the so- called “grandfather clause,” residency, property, literacy, and other requirements to effectively disenfranchise black voters. Holmes upheld the dismissal of the case by the lower court by reasoning that the Court could not force Alabama officials to register the plaintiffs. Giles’ second attempt before the Court fared no better. In Giles v. Teasley , 193 U.S. 146 (1904), Justice Day’s highly formalistic approach reasoned that there was no redress for an official’s refusal to register a voter under an unconstitutional state law. See Benno C. Schmidt, Jr., Principle and Prejudice: The Supreme Court and Race in . Part 3: Black Disenfranchisement from the KKK to the Grandfather Clause , 82 COLUMBIA LAW REVIEW 835, 849-52 (1982). Biographer Louis R. Harlan disclosed that Booker T. Washington privately financed both Giles suits, and the peonage case of Bailey v. Alabama (see § 15.E regarding the last). Louis R. Harlan, The Secret Life of Booker T. Washington , 37 THE JOURNAL OF SOUTHERN HISTORY 393, 397–99 (1971). 327 Akhil Reed Amar & Catherine A. MacKinnon, The Supreme Court, 1999 Term , 114 HARVARD LAW REVIEW 3 (2000). See also Alexander Tsesis, Introduction: Into the Light of Day: Relevance of the Thirteenth Amendment to Contemporary Law , 112 COLUMBIA LAW REVIEW 1447, n.3 (2012).

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protection only to the military forces of the United States still garrisoning in the “States lately in rebellion” and to the Freedmen’s Bureau. Carl Schurz 328 * * *

After the Civil War, the difficult task of reunification began. As Carl Schurz observed, the needs were many: freedmen, along with other Americans, needed special assistance in education, combatting involuntary servitude, and securing legal redress. The three acts discussed in this section, which deal with the Freedmen’s Bureau, a prohibition on peonage, and increased federal oversight of petitions for habeas corpus, relate to these pressing challenges.

On March 2, 1867, Congress passed “An act to provide for the more efficient government of the Rebel States,” known as the “Reconstruction Act of 1867.” 329 Eventually there would be four passed by Congress, and these would result in more change for the

South. Ten of the eleven former Confederate states were placed under military control, and forced to remake their governments to suit federal dictates. Virginia was in the first military district; North and South Carolina the second; Georgia, Alabama, and Florida the third;

Mississippi and Arkansas the fourth; and Texas and Louisiana were the fifth. Only Tennessee

(the home state of Andrew Johnson), which had ratified the 13 th amendment and met other requirements, was spared this level of federal control. 330

In addition to the 13 th , 14 th , and 15 th amendments to the Constitution, Congress passed a number of laws to protect former slaves and penalize those who deprived them of their hard-won gains. These included the 1866 Civil Rights Act, which was reenacted following ratification of the 14 th amendment in 1868, and the Enforcement Acts. These latter “Force Acts,” which were

328 CARL SCHURZ , SPEECHES , CORRESPONDENCE AND POLITICAL PAPERS OF CARL SCHURZ 6 at 315 (F. Bancrotft ed., G.P. Putnam’s Sons) (1913). 329 Reconstruction Act of March 2, 1867, supra note 319. 330 See also additional acts, including the Reconstruction Act of March 23, 1867, ch. 6, 15 Stat. 2; Reconstruction Act of July 19, 1867, ch. 30, 15 Stat. 14; and Reconstruction Act of March 11, 1868, ch. 25, 15 Stat. 41. See also Paul Finkelman, The Necessity of the Voting Rights Act of 1965 and the Difficulty of Overcoming Almost a Century of Voting Discrimination , 76 LOUISIANA LAW REVIEW 182, n.116 (2015).

108 comprised of three bills passed by Congress in 1870 and 1871, 331 imposed criminal penalties for violating Constitutional guarantees to African-Americans. These included the rights to vote, hold public office, and serve on juries. 332

These Reconstruction-era constitutional guarantees and implementing legislation would be repeatedly tested in the courts, with inconsistent results that left the nation in further turmoil.

Individuals, institutions, and states would challenge the rights and privileges conferred upon former slaves and their descendants, and inveigle ways to subvert federal law. After the war, the nation was left with a large population of newly-minted African American citizens, many of whom lacked basic necessities or means. Having formerly been subject to their owners’ will, they remained vulnerable to subjugation under various guises.

Johnie D. Smith explored the postbellum substitution of the government for the former slavemaster, 333 a situation also studied by noted scholars Malcolm M. Feeley and Edward L.

Rubin. 334 Restored governments of formerly seceded states increasingly relied upon black codes to limit African Americans’ liberties, and ensure that blacks were consigned to a lower place in society. Mississippi enacted a black code on December 2, 1865; over the next few months, other former Confederate states adopted similar laws, with Mississippi and South Carolina having the most stringent. These were passed in part in opposition to Radical Republicans in Congress as they brought to bear federal power to assist former slaves lacking adequate resources to build a

331 Enforcement Act of 1870, ch. 114, 16 Stat. 140; first Enforcement Act of 1871, ch. 21, 17 Stat. 13; and second Enforcement Act of 1871, ch. 31, 17 Stat. 13. 332 Everette Swinney, Enforcing the Fifteenth Amendment, 1870-1877 , 28 THE JOURNAL OF SOUTHERN HISTORY 202 (1962). 333 Johnie D. Smith, AND THE STATE BECAME THEIR MASTER : AN ANALYSIS OF THE SOUTHERN RECONSTRUCTION OF LABOR SYSTEMS AND LAW , 1865-1867 (PhD diss., Wayne State University, 1994). Accessed on April 15, 2017 at http://search.proquest.com.unr.idm.oclc.org/pqdtglobal/docview/304133072/3C53D533628C4870PQ/1?accountid=4 52. 334 MALCOLM M. FEELEY & EDWARD L. RUBIN , JUDICIAL POLICY MAKING AND THE MODERN STATE : HOW THE COURTS REFORMED AMERICA ’S PRISONS (Cambridge University Press) (1998).

109 new life but found these good intentions thwarted in practice. At times, the black codes perverted other laws that were intended to ease the freedmens’ transition to return them to the old ways.

8.A. The Freedmen’s Bureau Act and Its Mission

The first Freedmen’s Bureau Act, passed at the urging of Lincoln on March 3, 1865, 335 grew from the desperate needs of freedmen and their families, many of whom were homeless. Section

2 of the act authorized the Secretary of War to provide necessities “for the immediate and temporary shelter and supply of destitute and suffering refugees and freedmen and their wives and children….” More controversially, § 4 would allow them to rent or purchase abandoned or confiscated lands in the “insurrectionary states.” 336 This extraordinary social welfare statute came about because much of the South was left in ruins. Many of the plantations that were the economic mainstay of the were in tatters, and unable to recover their former glory without the enslaved workforce to pick the lucrative cotton crop. 337 Smaller farms were devastated by the loss of fathers and sons killed or wounded in combat, and the societal infrastructure of banks, schools, roads, and railroads was in collapse. The bureau was an important part of Lincoln’s solution to rehabilitating the former Confederacy and helping it assume a different national role. Under his plan, interim assistance would be given to freedmen and refugees to become more productive. The act was extended and amended several times. 338

335 Freedmen’s Bureau Act of March 3, 1865, ch. 90, 13 Stat. 507. 336 Id ., §§ 2 and 4. 337 The cotton crop was extremely important to the South’s economy and social structure. The cotton gin, patented by in 1793, greatly expanded its lucrative production. This brought significant wealth to Southern planters, Northern investors, and industries while fueling the perpetuation of slavery. William K. Scarborough, The Cotton Gin and Its Bittersweet Harvest , 81 THE JOURNAL OF AMERICAN HISTORY 1238 (1994). There were financial advantages to using slave labor. The average price of a prime, male field hand was about $1,800 in 1860, and it cost only about $30/year for his maintenance or around 1Ȼ/hour. Such slaves typically produced about 500 bales of cotton per season that were sold for about $200. Grant, supra note 122 at 38-39. 338 Paul Finkelman, Protection of Personal Liberty in Republican Legislation of 1862 , 42 THE JOURNAL OF SOUTHERN HISTORY 385 (1976).

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The Freedmen’s Bureau and its powers are of particular importance to the problems that surfaced during the 1927 Mississippi River flood. The agency played an essential role in helping

African Americans go from slavery to emancipation, but, as seen by black flood victims’ lack of wherewithal, much more was needed. Its goals included helping freedmen find work, and obtaining sufficient education and skills to navigate an independent life. 339 Although the bureau was of short duration, its work was praised as efficacious. In 1865 Carl Schurz observed:

… not half of the labor that has been done in the south this year, or will be done there next year, would have been or would have been done but for the exertions of the Freedmen’s Bureau …. No other agency, except one placed there by the national government, could have wielded that moral power whose interposition was so necessary to prevent the southern society from falling at once into the chaos of a general collision between its different elements. 340

The federal government adopted measures intended to aid former slaves in becoming free workers, and to help planters and other employers in obtaining needed labor. Even though conceived as providing economic stability to former slaves, these practices were sometimes put to ill uses. They were twisted to justify regimes of forced labor that at times exceeded the cruelties of slavery through debt enslavement, and reasserted white domination. For example, with the goal of providing economic security, the bureau encouraged freedmen to enter into term labor contracts.341 Yet, as the South fought to regain marketplace competitiveness, unscrupulous

339 The Freedmen’s Bureau was housed in the War Department, and was initially placed under the leadership of General Otis O. Howard. As was common in the military, the bureau operated under a well-defined structure and had regular reporting requirements and inspections. Officers were assigned to oversee various regions and functions. The Coxes have examined the operation of the bureau, including its successes and failures. John Cox & LaWanda Cox, General O.O. Howard and the “Misrepresented Bureau,” 19 THE JOURNAL OF SOUTHERN HISTORY 427 (1953). See also Elizabeth Bethel, The Freedmen’s Bureau in Alabama , 14 THE JOURNAL OF SOUTHERN HISTORY 49 (1948), which provided a helpful view into the operation of the bureau in Alabama, which was similar to its work in other states. 340 Du Bois, supra note 266 at 783, n.5 referencing Schurz, Report to the President, 1865. Senate Ex. Doc ., No. 2, 39 Cong., 1 sess., p. 40. 341 Huq, supra note 8 at 360, n.58. Huq discussed how agents of the Freedman’s Bureau “stressed ‘the solemn obligation of contracts,’ declaring that ‘if [former slaves] can be induced to enter into contracts, they are taught that there are duties as well as privileges of freedom.’” At n.58, Huq cited Eric Foner, Reconstruction Revisited, 10 Rev. Am. Hist. 82, 87 (1982), for the observation that “Extending the rights of contractual freedom to former slaves was

111 employers converted these obligations into debt enslavement, an insidious form of forced labor that ensnared impoverished workers by unconscionable agreements and indebtedness for monies advanced for expenses. 342

Another prime example of a subverted federal initiative was the Freedmen’s Bureau apprenticeship program. This was intended to provide sustenance, work experience, and training for black children and youths. However, Southern states with less admirable aims used these indentures to institute a state-administered juvenile contract labor system that entrapped the young and impoverished into unfavorable employment arrangements. 343 Apprenticeships were not unique to nor did they originate with the Southern states. Prior to the Civil War, they were commonly used throughout the South and in New England, and in proper place taught professions and trades through mentored experience. During Reconstruction, these apprenticeships were used far more to the employers’ advantage and far less to the benefit of the apprentices. 344

W.E.B. Du Bois dramatically told of the plight of destitute slaves searching for freedom.

There was much debate over whether the Freedmen’s Bureau was the right remedy, but it was clear that the needs were urgent, and so the bureau was established to provide immediate aid.

part of the ‘Americaniz[ing] of the blacks.’” Schurz spoke approvingly of the work of the Freedmen’s Bureau and its purpose of helping freedmen and planters transition to making equitable labor contracts “to the benefit of both.” However, its “organization [was] to some extent invaded by mentally and morally unfit persons.” Schurz, supra note 328 at 316. 342 See supra note 8 for definition of “debt enslavement” (peonage) as a form of forced labor and §§ 8.C, 9, and 12- 14 herein. See also Daniel, supra note 71 and Blackmon, supra note 94. 343 Smith, supra note 333 at 169. Smith quoted a broadly-written South Carolina law which exposed black children to being taken from their parents without notice or consent. The children were made to work as directed by the courts, often for lengthy or indefinite periods: “Colored children … who have neither father nor mother living in the District in which they are found, or whose parents are paupers, or unable to afford them maintenance, or whose parents are not teaching them habits of industry and honesty, or are persons of notoriously bad character ... may be bound out as apprentices by the District Judge, or one of the Magistrates.” Smith, citing Laws of South Carolina, 1865, No. 4733, sec. XVI. 344 Mary Farmer-Kaiser, “With a Weight of Circumstances like Millstones about Their Necks”: Freedwomen, Federal Relief, and the Benevolent Guardianship of the Freedmen’s Bureau , 115 THE VIRGINIA MAGAZINE OF HISTORY AND BIOGRAPHY 412 (2007).

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Du Bois told of wartime runaways who had slipped behind the lines during the night to Union- controlled areas. He said that “when the flickering camp fires of the blue hosts shone like vast unsteady stars along the black horizon [there were] old men, and thin, with gray and tufted hair; women with frightened eyes, dragging whimpering, hungry children; men and girls, stalwart and pitiable in their dark distress.” Some remained loyal to their former masters, but others became

“footloose” with disastrous results to the planters. “Those negroes stayed away from the plantations just when their labor was most needed” to produce crops. “Violent efforts were made by white men to drive the straggling negroes back to the plantations by force, and reports of bloody outrages inflicted upon colored people came from all quarters…. [There were] in odious hospitals negroes, women as well as men, whose ears had been cut off, or whose bodies were slashed with knives, or bruised with whips or bludgeons, or punctured with shot-wounds. Dead negroes were found in considerable numbers in the country roads or on the fields, shot to death, or strung on the limbs of trees.” 345 The need for federal control to secure order was documented in Carl Schurz’s postwar survey of the South, in which he saw “plenty of inflammable … spirit

… all over the South.” He said it seemed “as if wholesale massacres were prevented only by the presence of the federal garrisons which were dispersed all over the country.” 346 The Freedmen’s

Bureau was the successor to the ad hoc efforts at these cantonments.

The successes of the bureau reverberated in the 1927 flood, as seen especially by the members of the CAC, many of whom had been trained by teachers or at schools that resulted from that initiative. CAC member Thomas Monroe Campbell continued the lifework of his mentor Booker T. Washington, which traced directly back to the Freedmen’s Bureau’s role in education. The bureau left a legacy of schools and universities dedicated to education for

345 W.E.B. Du Bois, The Freedmen’s Bureau , THE ATLANTIC 1901. Accessed on April 18, 2017 at https://www.theatlantic.com/magazine/archive/2012/02/the-freedmens-bureau/308805/. 346 Schurz, supra note 289 at 41.

113 freedmen, which was later expanded to include other students and facilities. Among these was the Hampton Institute (now ) near , Virginia, which was established in 1868 by Freedmen’s Bureau official General Samuel C. Armstrong with help from the American Missionary Society. 347 Impetus for Hampton grew from initially informal tutoring of runaways and captured slaves at Fort Monroe during the Civil War. In addition to teaching reading, writing, and arithmetic, Hampton offered practical courses to equip blacks to become self-sufficient. By the 1890s, vocational education in trades such as farming, carpentry, harnessmaking, printing, tailoring, clocksmithing, blacksmithing, painting, and wheelwrighting had been added. 348 Booker T. Washington, its most famous graduate, arrived there in 1872. The impoverished young man, born into slavery in Virginia, went on to become the most influential

African American of his time. At Armstrong’s recommendation, Washington was given a post at

Alabama’s Tuskegee Institute, which he molded into a leading historically black educational facility. 349

To illustrate the worth of freedmen’s schools, the 1865 “Report of the Board of

Education for Freedmen, Department of the Gulf” summarized “Difficulties Attending the

Establishment of Country Schools,” which it found “scarcely possible to exaggerate.” The report related that since it was costly to build new facilities, the bureau made use of existing “[c]abins, sheds, [and] unused houses,” which were “roughly repaired.” Instructors were seldom paid

347 Harriet Beecher Stowe, The Education of Freedmen. Part II , 129 THE NORTH AMERICAN REVIEW 81 (1879). 348 See the Hampton University website, accessed on April 15, 2017 at http://www.hamptonu.edu/about/history.cfm . L.P. Jackson provided a history of Hampton Institute. It was founded at Fort Monroe, Virginia, where during the Civil War, when General Benjamin F. Butler had declared that captured slaves or those reaching that enclave would be considered contraband of the . Jackson observed that this spot “was only a few miles from the place where in 1619 slavery had been introduced into this country. It seemed thus that the very site where slavery began was also to be the place in which the beginning was to be made for first the slave’s political emancipation and then his intellectual emancipation.” L.P. Jackson, The Origin of Hampton Institute , 10 THE JOURNAL OF NEGRO HISTORY 131, 133 (1925). 349 See Louis R. Harlan, Booker T. Washington in Bibliographical Perspective, 75 THE AMERICAN HISTORICAL REVIEW 1581 (1970).

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“because the Government is unavoidably in arrears [and a teacher was] subjected to the jeers and hatred of her neighbors.” Teachers’ quarters were “raided occasionally by rebels,” and Provost

Marshals proved unreliable in protecting the instructors. Due to the prevalence of smallpox and the reluctance of students to be vaccinated, the report “respectfully suggested that an order be issued declaring vaccination to be a military necessity [which] would save many lives among these poor people.” 350

The report praised the students, who “c[a]me to school with singular diligence, week after week, bare-footed and bare-limbed, with garments ragged and thin, shivering over their lessons from cold and wet, but still persistent to learn.” It concluded with a favorable commentary on the “Influence of the Schools,” which extended beyond the students: “The children go from the school-room to their homes as Instructors. One of the immediate and visible results, is upon the colored adult and his household, in the increase of family respect, the promotion of cleanliness and thrift, and generally and in equal degree in those good effects that like influences have produced upon the populations of other races.” The report commented upon the “almost immediate and marked influence of these schools [which] is seen upon the white people in the lessening [of] prejudice, in the admission of the African’s ability to learn, and his consequent fitness for places in the world, from which we have hitherto excluded him….” 351

Another responsibility of the Freedmen’s Bureau was fostering justice, albeit for a limited period, by authorizing specialized tribunals to adjudicate civil and criminal matters where traditional courts were failing African Americans. To ensure that freedmen looking to secure redress were not frustrated by the southern courts, military tribunals were established to

350 Report of the Board of Education for Freedmen, Freedmen’s Bureau, dated February 28, 1865. Accessed on April 14, 2017 at https://www.loc.gov/teachers/classroommaterials/presentationsandactivities/presentations/timeline/civilwar/freedme n/gulf.html. 351 Id .

115 adjudicate their legal matters until state judiciaries could fairly handle freedmen’s legal needs.

These special fora were deemed necessary, even though § 3 of the Freedmen’s Bureau Act of

1866 permitted particular crimes to be removed to federal courts, thus giving freedmen access there (at least for a time) when state courts failed them. At times, the bureau also acted in loco parentis in committing minor blacks to labor contracts.352

The successes and failures of the Freedmen’s Bureau are attributable to actions of its federal agents and the many state and local officials who facilitated, ignored, or subverted its mission.

There is considerable historiography on the actions of the bureau in the former “insurrectionary” and border states, and its aid to particular groups. Although bureau proponents advocated a role in helping freedmen and poor whites to purchase lands, 353 the bureau was unable to bring about the redistribution of land that was authorized by its enabling act. This was regarded by freedmen as a major betrayal, as land ownership offered both homes and means of support, and was seen as a form of reparation and simultaneous punishment of the Southern sympathizer from whom the property title was to be taken. 354 Other disappointments in the bureau’s social and political agenda included its failure to secure wider black suffrage, another important component of equal citizenship. The failure of the “Freedmen’s Savings and Trust Company” caused a scandal that impugned the reputations of those associated with the institution, including Frederick Douglass.

Due to poor investments, fraud, mismanagement, and the especially difficult national “Panic of

1873,” the bank failed in 1874. 355

352 See , e.g ., Bethel, supra note 339; Margaret Ross, Retaliation Against Arkansas Newspaper Editors During Reconstruction , 31 THE ARKANSAS HISTORICAL QUARTERLY 150 (1972); Neil W. Macaulay, Jr., South Carolina Reconstruction Historiography , 65 THE SOUTH CAROLINA HISTORICAL MAGAZINE 20 (1964); and Richard Paul Fuke, Planters, Apprenticeship, and Forced Labor: The Black Family under Pressure in Post-Emancipation Maryland , 62 AGRICULTURAL HISTORY 57 (1988). 353 See Warren Hoffnagle, The Southern Homestead Act: Its Origins and Operation , 32 THE HISTORIAN 612 (1970). 354 J. Douglas Allen-Taylor, Reparations , 16 RACE , POVERTY & THE ENVIRONMENT 32 (2009). 355 Rodney D. Coates, Social Action, Radical Dialectics, and Popular Protests: Treatment of African American Leaders and Intellectuals by the Press , 30 JOURNAL OF BLACK STUDIES 85, 90-91 (1999).

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Still, the Freedmen’s Bureau successfully transformed the lives of many; it fed, clothed, and educated thousands, even if thousands more remained in need of care. 356 Although not an

unqualified success, the bureau made considerable headway in assisting African Americans in

the South in moving from enslavement to freedom.

8.B. The Habeas Corpus Act of 1867

The powerful remedy of habeas corpus to release a wrongly detained prisoner is one of

the most potent tools available in American law. “The Framers viewed freedom from unlawful

restraint as a fundamental concept of liberty, and they understood the writ of habeas corpus as a

vital instrument to secure that freedom.” 357 The right to relief from wrongful detention to those in official custody was significantly expanded by the Habeas Corpus Act of 1867. 358

Beforehand, federal courts (with minor exceptions) were limited to granting a writ of habeas

corpus to those in federal custody and prior to their conviction. The act expanded the federal

courts’ reach and remedies available to those allegedly unlawfully imprisoned, and allowed

federal courts to take up matters raised from state courts. According to constitutional expert

356 See, e.g. , Brooks D. Simpson, Land and the Ballot: Securing the Fruits of Emancipation? , 60 PENNSYLVANIA HIST . A J. MID -ATLANTIC STUD . 176 (1993). Although blacks were briefly able to work land near Savannah, Georgia, as a result of General Sherman’s Order No. 15, this ended with President Andrew Johnson’s more liberal (at least to former rebels) version of Reconstruction. Waymon R. Hinson & Edward Robinson, “We Didn’t Get Nothing”: The Plight of Black Farmers , 12 JOURNAL OF AFRICAN AMERICAN STUDIES 283 (2008). 357 In Boumediene v. Bush , 553 U.S. 723, 739 (2008), Justice Kennedy gave a thoughtful historic analysis of habeas corpus in the United States. See also Eric M. Freedman, Habeas Corpus in Three Dimensions II: Habeas Corpus as a Legal Remedy , 8 NORTHEASTERN UNIVERSITY LAW JOURNAL 1 (2016); Eric M. Freedman, Habeas Corpus in Three Dimensions III: Habeas Corpus as an Instrument of Checks and Balances , 8 NORTHEASTERN UNIVERSITY LAW JOURNAL 251 (2016). 358 Habeas Corpus Act of 1867, ch. 28, 14 Stat. 385. Not long after this act was passed, Chief Justice Chase granted the petition of Elizabeth Turner, a minor and former slave. She challenged a Maryland statute that bound her as an apprentice to her former master and allowed her to be transferred at the master’s will. A different law applied to white apprentices, who were required to be taught reading, writing, and arithmetic, and were not subject to transfer. In re Turner , 24 F. 337 (D. Md. 1867). William M. Wiecek, The Great Writ and Reconstruction , 38 THE JOURNAL OF SOUTHERN HISTORY 530, 541 (1970).

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William M. Wiecek, this was the first time that the federal judiciary was given authority commensurate with its broad grant of power in Article 3 of the Constitution.359

Prior to the 1867 act, relief under this writ could only be sought by persons held by the executive branch and could not be used to challenge acts of a court of competent jurisdiction.

The 1867 Habeas Corpus act was passed by the Reconstruction-era Congress, which also devised the 14 th amendment. These two are related, in that § 2 of that amendment empowered the federal government to confront infringement of its guarantee of due process as an attribute of national citizenship. 360 This authority was recognized in the habeas corpus act to allow defendants in state actions to obtain relief in federal courts. As U.S. Senator of Illinois said, these measures were necessary to combat “rogue states refusing to enforce new federal rights systematically.” 361 Several of the relevant decisions affecting civil rights and the fight against re-enslavement through peonage and mob-dominated trials that are examined here in detail involved petitions for habeas corpus; see, e.g., Moore ,362 Frank ,363 W.S. Harlan,364 and Bailey ,365

(see §§ 11.D, 15.D, and 15.E). Reviewing the evolution of habeas corpus in America is helpful to understanding these rulings.

One of the United States’ enduring legacies from English common law is the writ of habeas corpus. Although “the circumstances of [its] origin appear to be lost in the mists of time,” the writ dates to at least the 14 th century and was made statutory by England in 1679.

Heralded as the “great writ of liberty,” the Latin term loosely translates as “you have the body.”

359 Wiecek, supra note 358 at 531-32. 360 Sara Sun Beale & Richard E. Myers III, The Constitution v. The Convention: The Evolution of the Court- Mandated Right to Counsel in the United States and Europe , 27 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW 1, 7–8 (2016). 361 Eve Brensike Primus, A Structural Vision of Habeas Corpus , 98 CALIFORNIA LAW REVIEW 1, 13-14 (2010). 362 Moore , 261 U.S. 86. 363 Frank , 237 U.S. 309. 364 W.S. Harlan , 218 U.S. 442. 365 Bailey , 219 U.S. 219.

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It is a process by which a tribunal may order a custodian acting under color of law to produce the petitioner and justify his or her confinement.366

The U.S. Constitution does not affirmatively provide for the writ; habeas corpus is mentioned only Article I’s “suspension clause,” which pertains to Congress and not the judiciary.

This clause forbids suspending the “Privilege of the Writ of Habeas Corpus ... unless when in

Cases of Rebellion or Invasion the public Safety may require it.” 367 Congress gave federal courts authority to issue the writ to prisoners under federal control in the Judiciary Act of 1789. 368 In

1807, the U.S. Supreme Court held in Ex parte Bollman 369 that federal court jurisdiction could only be enlarged by legislation. It ruled in 1822 in Ex parte Kearney ,370 and in 1833 in Ex parte

Watkins ,371 that the writ of habeas corpus could not be issued post-conviction because federal courts lacked appellate jurisdiction over criminal cases. With few exceptions, the federal writ did not extend to prisoners in state custody. The Force Bill of 1833 372 permitted federal courts power to grant the writ to federal agents detained by a state for acts within their official capacity.

In 1842, Congress expanded habeas corpus to certain aliens held by state governments. 373

Controversy flared in 1861 during the wartime struggle over the balance of state/federal power, when President Lincoln used martial law to suspend the writ as Confederate forces

366 Armistead M. Dobie, Habeas Corpus in the Federal Courts , 13 VIRGINIA LAW REVIEW 433 (1927). 367 U.S. Const., art. 1, § 9, cl. 2. 368 Federal Judiciary Center, History of the Federal Judiciary, Habeas Corpus Jurisdiction in the Federal Courts , accessed on April 2, 2017 at http://www.fjc.gov/history/home.nsf/page/jurisdiction_habeas.html. 369 Ex parte Bollman and Ex parte Swartwout , 8 U.S. 75 (1807). 370 Ex parte Kearney , 20 U.S. 38 (1822). 371 Ex parte Watkins , 28 U.S. 193 (1830). 372 Force Bill of 1833, March 2, 1833, ch. 57, 4 Stat. 632. 373 Habeas Corpus Suspension Act of 1863, ch. 81, 12 Stat. 756, as amended. The 1842 act was passed following the diplomatic crisis occasioned by state seizure of the carrier Caroline . See Wiecek, supra note 358 at 535. See also Anthony G. Amsterdam, Criminal Prosecutions Affecting Federally Guaranteed Civil Rights: Federal Removal and Habeas Corpus Jurisdiction to Abort State Court Trial , 113 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 793, 809 (1965).

119 approached Washington, D.C. Chief Justice Taney rebuked Lincoln in Ex parte Merryman374 by holding that authority to suspend habeas corpus resides solely with the legislative, and not the executive, branch of the federal government.375 Congress later sanctioned Lincoln’s acts in

March 1863 by passing the Habeas Corpus Suspension Act, which also permitted removal of petitions for habeas corpus to federal courts and exposed noncomplying state judges to liability for damages to the aggrieved party. 376

Two dramatic cases arose “in the closing days of the fratricidal War Between the States

[that reflect] the passions stirred by that bloody conflict.” 377 In 1866, the Supreme Court in 378 rebuked the executive branch for overstepping its authority. Along with other prominent Hoosier “Copperheads,” 379 Lambdin P. Milligan was convicted of antiwar acts by a

military tribunal convened in Indiana. The Court granted Milligan’s petition for habeas corpus just before he was to be hanged.380 It noted that he was a civilian, and that Indiana was not a state in insurrection, and its courts were functional. The Court cautioned: “Civil liberty and …

374 Ex parte Merryman , 17 F. 144 (C.C. Md. 1861). Controversy over the suspension of habeas corpus became personal to the chief justice. Among those imprisoned without bail or trial were mayor George W. Brown, and Charles and Frank Key Howard, the son-in-law and grandson of Francis Scott Key, who was Taney’s brother-in-law. Don E. Fehrenbacher, Roger B. Taney and the Sectional Crisis , 43 JOURNAL OF SOUTHERN HISTORY 555, 559–60 (1977). 375 Lincoln convened a special session of Congress on July 4, 1861. He explained the actions he had taken since the fall of Fort Sumter on April 15, 1861, which began the Civil War, and responded to questioning over his unilateral suspension of habeas corpus. Lincoln challenged the flouting of national law by over a third of the rebelling states, and defended his decision to suspend the writ. The president argued that placing the “extreme tenderness of the citizen’s liberty” over the welfare of the entire nation would “relieve[] more of the guilty, than of innocent.” Lincoln asked: “To state the question more directly, are all the laws, but one , to go unexecuted, and the government itself go to pieces, lest that one be violated? Even in such a case, would not the official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it?” Federal Judiciary Center, History of the Federal Judiciary, Ex parte Merryman and Debates on Civil Liberties During the Civil War. Accessed on April 2, 2017 at http://www.fjc.gov/history/home.nsf/page/tu_merryman_doc_5.html. 376 Habeas Corpus Suspension Act, 12 Stat. 755. 377 Harold H. Burton, Two Significant Decisions: Ex parte Milligan and Ex parte McCardle , 41 AMERICAN BAR ASSOCIATION JOURNAL 121 (1955). 378 Ex parte Milligan , 71 U.S. 2 (1866). 379 The term “” was “Once used by Republicans during the Civil War to slander Democrats opposed to Lincoln’s war and emancipation police [but] the term has become synonymous in the vernacular with traitor or coward.” Robert H. Abzug, The Copperheads: Historical Approaches to Civil War Dissent in the Midwest , 66 INDIANA MAGAZINE OF HISTORY 40 (1970). 380 Burton, supra note 377 at 121-24.

120 martial law cannot endure together,” and warned that improperly imposing martial law “destroys every guarantee of the Constitution.” 381

By the following year, Congress had embarked upon Radical Reconstruction. Journalist

William A. McCardle 382 of Vicksburg, Mississippi, was arrested for publishing “incendiary” 383

articles in the Vicksburg Daily Times . He advocated resistance to Mississippi’s provisional

government that was authorized by the Reconstruction acts and commanded by General Edward

O.C. Ord. 384 Ex parte McCardle 385 “was the great test in this country’s history of Congress’s power to curtail the jurisdiction of the Supreme Court. It was also an especially fascinating

case.” The newsman’s editorials so personally offended the general that he had McCardle

381 Ex parte Milligan , 71 U.S. 2. Justices Chase, Wayne, Swayne and Freeman concurred in the result but for a different reason. While they agreed that Congress could appoint military tribunals, it had not done so in Indiana. See Alan Clarke, Habeas Corpus: The Historical Debate , 14 NEW YORK LAW SCHOOL JOURNAL OF HUMAN RIGHTS 375, 403–04 (1998). 382 At the time of his arrest, McCardle was a civilian. He was tried by a military tribunal, as Mississippi was then under military rule. McCardle was charged under one of the first Reconstruction acts. Christopher Harry Meakin, CONGRESSIONAL CONTROL OF FEDERAL COURT JURISDICTION AND THE EFFECT UPON PROTECTION OF CIVIL RIGHTS (PhD diss., Rice University, 1988). Accessed on April 15, 2017 at http://search.proquest.com.unr.idm.oclc.org/pqdtglobal/docview/193762733/EEC5F68D254A4352PQ/1?accountid= 452. According to The Daily Clarion of Jackson, Mississippi of March 12, 1867, “Colonel W.H. McCardle of Vicksburg proposes to write the history of the late war as it affected Mississippi and her people.” Another History , DAILY CLARION , Mar. 12, 1867. Accessed on April 17, 2017 at http://chroniclingamerica.loc.gov/lccn/sn83045232/1867-03-12/ed-1/seq- 2/#date1=1866&index=16&rows=20&words=McCardle&searchType=basic&sequence=0&state=Mississippi&date 2=1868&proxtext=mccardle&y=9&x=10&dateFilterType=yearRange&page=1. 383 North Carolina’s Tarboro Southerner of November 14, 1867 reported that “Colonel W.H. McCardle of the Vicksburg Times had been arrested for the personal denunciation of General Ord.” The Tarboro paper described Ord as “regarded by the Southern people as the best and less tyrannical of all the Military Commanders.” Arrest of An Editor , TARBOBO SOUTHERNER , Nov. 14, 1867. Republic magazine reprinted one of McCardle’s more spirited editorials: “Stay Away from the Polls” [-] “We again urge every decent white man, every honorable gentleman of the Caucasian race, to avoid Gen. Ord’s election as he would avail pestilence and a prison. As this advice does not apply to and is not intended for the white snakes of the Loyal League, we shall expect the last-named vermin out in all their strength.” The following paragraph, “The Immortal Fight” related that, according to New York Times , only eight “cowards, dogs, and scoundrels” had cast their vote in “the heroic city of Vicksburg.” W.H. McCardle, Stay Away from the Polls , REPUBLIC MAGAZINE , Jan. 1876. 384 General Ord had a distinguished Army career. He was appointed to West Point by President , where he roomed with . Ord was especially well-known in California, having been assigned there as an Army officer just prior to the Gold Rush. Ord and Sherman, on behalf of the U.S. Army Corps of Engineers, mapped the Gold and Quicksilver districts of California and the Los Angeles Area. Ord was recognized for outstanding leadership and bravery during the Civil War, and during Reconstruction was put in charge of various military districts. It was in this last role that he and William H. McCardle came into conflict. J. Gregg Layne, Edward Otho Cresap Ord: Solider and Surveyor , 17 QUARTERLY PUBLICATION (H ISTORICAL SOCIETY OF SOUTHERN CALIFORNIA ) 139 (1935). 385 Ex parte McCardle , 74 U.S. 506 (1868).

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“arrested and held for trial by a military tribunal on what amounted to charges of sedition” and libel. McCardle sought habeas corpus in federal court on the grounds that the tribunal violated his 1st amendment right to freedom of the press, “and really challenged the validity of Congress’s whole plan for military rule in the South.” 386

Congress took unusual action after McCardle petitioned the U.S. Supreme Court for a writ of habeas corpus.387 Congress feared that the Court would take the opportunity to broadly strike down various reconstruction statutes as unconstitutional in deciding that case. After oral argument but while McCardle’s case was under advisement, Congress by “act of March, 1868” repealed the Court’s appellate jurisdiction over petitions for habeas corpus that were filed under the act of 1867. 388 Chief Justice Chase wrote for the Court, and dismissed McCardle’s appeal for want of jurisdiction. The Supreme Court declined to “inquire into the motives of the legislature,” and noted that Congress was within its power to make exceptions to the judiciary’s statutorily-granted authority. 389

8.C. The Peonage Act of 1867

As legal expert Benno C. Schmidt pointed out, the Radical Congressional phase of

Reconstruction focused primarily on aiding freedmen through voting rights, education, desegregation, and access to the courts. It was anticipated that African Americans would obtain and exercise civil rights by these avenues.390 The U.S. Supreme Court was more focused on

386 The Precedent - 1868 McCardle Case , NEW YORK TIMES , Aug. 16, 1964. Accessed on April 18, 2017 at http://search.proquest.com/hnpnewyorktimes/docview/115522309/76793182630343CAPQ/1?accountid=34227. 387 This extraordinary Congressional action was met with similarly exceptional response from the U.S. Attorney General. In a first, he refused to defend the act before the U.S. Supreme Court. John E. Beerbower, Ex parte McCardle and the Attorney General’s Duty to Defend Acts of Congress, 47 UNIV . OF SAN FRANCISCO LAW REVIEW 647, 651–653 (2013). 388 The Supreme Court previously had denied a motion to dismiss. Ex parte McCardle , 73 U.S. 318 (1867). 389 Ex parte McCardle , 74 U.S. 506 (1869). 390 Benno C. Schmidt, Jr., Principle and Prejudice: The Supreme Court and Race in the Progressive Era. Part 2: The “Peonage Cases,” 82 COLUMBIA LAW REVIEW 835, n.13 (1982) citing DONALD G. NIEMAN , TO SET THE LAW IN MOTION . THE FREEDMEN ’S BUREAU AND THE LEGAL RIGHTS OF BLACKS , 1865-1868 196 (KTO) (1979).

122 ensuring that the formerly rebelling states accepted federal mandates, but only to the degree that it then viewed the law.

Although ratification of the 13 th amendment in late 1865 by the states brought a seemingly sweeping ban on slavery and involuntary servitude, the United States was quickly confronted by the spreading use of other forms of forced labor. These closely mimicked chattel enslavement, but there were concerns that these might not be adequately addressed by law, even with the ban on involuntary servitude, depending upon how that term was defined. Peonage, or debt enslavement, was a significant issue in the postbellum, for two primary reasons. First, because it resulted from a contractual arrangement between debtor and creditor (or employee and employer), peonage could be argued to be a voluntary arrangement on the part of both parties as an exercise of the right to contract. This assumed that the parties had equal bargaining power and a voluntary relationship. In theory, debt enslavement could exist anywhere in the nation, and arguably offered a substitute for outlawed forms of involuntary servitude.

Second, peonage was a well-developed and legalized system which had been in place for centuries in Mexico as a former Iberian colony. With the 1847 Treaty of Guadalupe Hidalgo, which followed the 1847 war with Mexico, and the 1853 Gadsden Purchase, the United States was brought closer to realizing its “manifest destiny” of continental domination. With these actions, over half a million square miles of land were added to the nation’s footprint, along with about 75,000 Spanish-speaking inhabitants and 150,000 Native Americans. As the treaty also guaranteed the former Mexican citizens their existing civil and property rights, the United States had to consider whether this included their previous right to legally practice peonage. 391 This

391 William S. Kiser, A “Charming Name for a Species of Slavery”: Political Debate on Debt Peonage in the Southwest, -1860s , 45 WESTERN HISTORICAL SOCIETY 169 (2014). See also J. Fred Rippy, The Boundary of

123 brought back into focus the difficult issues that confronted the country as it grew westward: what, if anything, should be done to control the use of forced labor in its various guises?

Before the Civil War, the United States had acquired California and the majority of what would become the states of Arizona, New Mexico, Utah, and Nevada, as well as parts of

Colorado and Wyoming. 392 These lands brought fresh political peril with respect to the use of forced labor, as various forms had legally flourished there. 393 Slavery in Iberian colonies of the

New World tended to be contractual in nature and generally less linked to race, although the end result was much the same for the bound peon. Like the chattel slave, the peon was trapped in a severely one-sided relationship with his creditor in which he lost autonomy over his person and the freedom to work elsewhere. Like manumission for the chattel slave, release from this condition proved more theoretical than achievable as long as the creditor/master desired the peon to continue.394

As the 39 th Congress wrestled with reassembling the postwar nation and ensuring that

African Americans achieved equality under the law, there was a growing awareness that allowing peonage to continue in former Mexican possessions would reintroduce a form of slavery that carried ramifications nearly as alarming as those of chattel slavery. 395 In October

1865, only six months after the end of the Civil War, a representative of the Mexican legation warned U.S. Secretary of State William H. Seward about this pernicious practice. The diplomat

New Mexico and the Gadsden Treaty , 4 THE HISPANIC AMERICAN HISTORICAL REVIEW 715 (1921) and Adam Rothman, Slavery and National Expansion in the United States, 23 ORGANIZATION OF AMERICAN HISTORIANS MAGAZINE OF HISTORY 23 (2009). 392 Justice McLean’s dissent in Dred Scott pointed out that the United States had not been “fastidious” in determining whether a “colored citizen” could be “an agreeable member of society.” Noting that several states had granted citizenship to persons of color and some allowed suffrage, he called this discernment “more a matter of taste than of law.” McLean cited the “late treaty of Mexico [under which] we have made citizens of all grades, combinations, and colors,” as “was done in the admission of Louisiana and Florida.” Dred Scott, 60 U.S. at 533. 393 REMINI , supra note 161 at 131–32. 394 See Mintz, supra note 98. 395 James Gray Pope, Contract, Race, and Freedom of Labor in the Constitutional Law of “Involuntary Servitude,” 119 YALE LAW JOURNAL 1474, 1485–87 (2010).

124 was concerned that peonage would be misunderstood as a less objectionable form of forced labor than the chattel enslavement of blacks. The Mexican legate described peonage as a type of

“slavery so much more odious, because it is not restricted to color or determination of caste.” 396

While Congress actively debated legislation to forbid peonage, the New York Times published a

November 25, 1865, letter from Seward that emphasized the need for such an act. He explained that the “condition of the emancipated freedmen” was a “subject of deep interest.” Seward expressed fear that allowing territorial laws permitting peonage to stand “would invariably operate to reduce into a condition of peon slavery workingmen of the African race … without their intelligent consent.” 397

Peonage, in which a debtor contractually bound himself to his creditor until the debt was fulfilled to the satisfaction of the creditor, was a far from benign practice that merely ensured that a loan was repaid. Debtors were made to work off indefinite obligations under circumstances that were indistinguishable from chattel slavery. The debtor, or peon, lost his freedom to move about, travel, or choose his fate. Without his assent, the debtor could be bound out to another person who purchased the debt, or simply at his creditor’s will. Many peons were subjected to the harshest treatment, and kept in bondage without recourse until their masters agreed the debt and any additional charges for the peon’s “care” were discharged. A state of peonage could be entered into voluntarily or involuntarily; even if the former, it could become the latter if the master or his successor exercised continued control over the peon. 398 As described by U.S. Supreme Court Justice Robert Jackson in a 1944 peonage case: “When the

396 WILLIAM H. SEWARD , MESSAGE OF THE PRESIDENT OF THE UNITED STATES , OF MARCH 20, 1866, RELATING TO THE CONDITION OF AFFAIRS IN MEXICO IN ANSWER TO A RESOLUTION OF THE HOUSE OF DECEMBER 11, 1865 (1866). H. Exec. Doc. No. 73, 39 th Cong. 1 st Sess. 1866, 177. 397 William H. Seward, Letter from William H. Seward dated November 25, 1865 , NEW YORK TIMES , January 3, 1866. Accessed on April 18, 2017 at http://search.proquest.com/hnpnewyorktimes/docview/92283444/26850D3AD4F04CE8PQ/111?accountid=34227. 398 The courts had found a precise definition to be elusive. See, e.g., Clyatt , 197 U.S. at 215-16.

125 master can compel and the laborer cannot escape the obligation to go on, there is no power below to redress and no incentive above to relieve a harsh overlordship or unwholesome conditions of work.” 399

Although there was national awareness that Southern blacks were being coerced into , it was roughly three decades after its passage that the 1867 anti-peonage statute was recognized as offering an effective legal remedy. Even then, the plight of African Americans was largely ignored until reports became public that white European immigrants were also being subjected to peonage. Some workers became peons by entering into one-sided labor contracts that falsely promised good wages and acceptable working conditions. Others were made to serve as convict laborers, particularly in the pine forests of Florida and Georgia that supported the lumber and turpentine industries.

Prior to 1900, the few Americans who were at all familiar with the term “peonage” largely regarded it as a legacy of Mexican and Spanish law that had been formally abolished by

Congress. It was regarded as an historic relic but not an enduring practice; this view changed slowly. Beneficiaries of peonage either hid its existence or minimized its impact by portraying it as satisfying the needs of businesses for workers, and of workers seeking employment.

Gradually, word got out, usually in the form of letters from frantic family members seeking help over the plight of a peon. As journalists learned how these workers were being abused, they alerted readers locally and then on an increasingly national scale to what was taking place in hidden corners and itinerant camps. Citizens informed of overwhelmingly harsh working conditions prompted politicians to act on behalf of the mistreated workers. Prosecutors began to file suit against bosses, labor agents, and executives to hold them accountable.

399 Pollack v. Williams , 322 U.S. 4, 18 (1944).

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While various state courts tried defendants accused of peonage under state statutes, the

results were largely unsuccessful. State laws did not adequately address this contractual form of bondage, 400 and it fell to the federal government to combat peonage as a form of involuntary

servitude. Decades after its enactment, the prosecution of bosses/creditors under the 1867

federal statute was suggested by Florida lawyer Frederick C. Cubberly, who would figure largely

in USDOJ’s anti-peonage effort. Its first use was in the 1899 case of United States v.

Eberhart ,401 which arose in Oglethorpe County, Georgia.402 An African American man, who had been forcibly detained by his employer to work off a debt, was violently beaten and his wife was

sexually assaulted. The federal district court in Georgia cautiously parsed the 1867 Peonage Act

in dismissing indictments against the alleged perpetrators. Rather than focusing on individual

acts, the court narrowly construed the act by strictly defining the historic purpose of the law as

addressing a political “system.” Although Eberhart was the first suit prosecuted under the

Peonage Act of 1867 and was decided in 1899, the opinion and the law remained largely obscure

for several years because the decision was not published until 1904. 403

400 Various state suits dealing with forced labor originated from the use of convict labor. Many also involved a contractual form of peonage that arose from the prisoner’s failure to repay money advanced by the surety, but none were brought under the powerful federal anti-peonage act that was not available as a state remedy. See, e.g ., in alphabetical order: Ex parte Buckalew , 84 Ala. 460, 4 So. 424 (1888); Ex Parte Duckett , 15 SC 210, 1881 WL 5892 (SC) (1881); Durham v. State of Tennessee , 89 Tenn. 723, 18 S.W. 74 (1891); Haralson v. Alabama , 123 Ala. 89, 26 So. 653 (1899); Henry Knox v. The State of Tennessee , 68 Tenn. 202, 1877 WL 4855 (Tenn.) (1877); James M. Matthews, Contractor v. N.S. Walker, Sheriff , 57 Miss. 337, 1879 WL 4068 (Miss.) (1879); Ex parte Pearson , 59 Ala. 654, 1877 WL 1329 (Ala.) (1877); Ex parte Chapman Price , 11 Tex. App. 538, 1882 WL 9179 (Tex. Ct. App.) (1882); and Ex parte White , 81 Ala. 80, 1 So. 700 (1887). Particular cases under the 1867 Peonage Act are discussed infra . 401 United States v. Eberhart , 127 F. 252 (N.D. Ga. 1899). 402 Miller Handley Karnes, LAW , LABOR , AND LAND IN THE POSTBELLUM COTTON SOUTH : THE PEONAGE CASES IN OGLETHORPE COUNTY , GEORGIA , 1865-1940 (PhD diss., University of Illinois-Champaign, 2000). Accessed on April 18, 2017 at http://search.proquest.com.unr.idm.oclc.org/pqdtglobal/docview/304626132/A90E9765CDFE4777PQ/1?accountid= 452 . 403 The Federal Reporter containing that opinion published a “Note” with the Eberhart decision. It showed changing legal perspectives on peonage between the time the decision was written in 1899 and its publication in 1904. It is included here because it furnishes background on cases discussed in this dissertation, such as Judge Thomas Goode Jones’ ruling in Peonage Cases , 123 F. 671 (see § 15.A). The Note reads:

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In deciding Eberhart , the federal district court relied upon the decision of the New Mexico

Supreme Court in Jaremillo v. Romero .404 District Judge William T. Newman reasoned in

Eberhart that the purpose of the 1867 statute was to eliminate peonage as it existed in New

Mexico when it was acquired through the 1848 Treaty of Guadalupe Hidalgo. Mexican peonage had retained the construct of the Spanish law that formerly applied there, and authorized

“servants, menials, or domestics” to be bound to their masters through indebtedness.405 The

Eberhart decision narrowly observed that the particular form of peonage described in the 1867 federal law “was part of the system of the people inhabiting” New Mexico at the time the land changed hands. “The clear purpose of the act was to deal with this system by abolishing it and prohibiting a return to it.” As “[n]o such system as this ever existed in Georgia,” only that

African Americans were formerly held as chattel slaves and not debtors, “[t]here could not be, therefore, in Georgia, any such thing as holding persons under this system of peonage , or returning them to it” (emphasis supplied). The court said that: “However wrongful and illegal some of the acts charged in the indictment may be, they cannot be punished under the statute named.” 406

The [Eberhart ] opinion was filed in 1899, but has not before been published. Since this decision, Judge Jones, of the Northern District of Alabama, has taken what seems to be a different view of the matter, in some respects at least, as shown by his “Response to Questions by Grand Jury.” In re Peonage Cases, 123 Fed. 617. It is understood that Judge Speer, of the Southern District of Georgia, and Judge Swayne, of the Northern District of Florida, have also held differently, but in cases which, so far as known, have not been reported. Circuit Judge Shelby had a peonage case before him on habeas corpus. In re Lewis, 114 Fed. 963. Judge Shelby states, however, in reference to the question involved here, that it “need not now be decided.” Cases on writ of error from the Northern District of Florida are pending in Court of Appeals for the Fifth Circuit, but have not yet been heard. Eberhart , 127 F. at 253. 404 Jaremillo v. Romero, 1 N.M. 190 (1857). 405 Eberhart , 127 F. at 252-53 citing Jaremillo, 1 N.M. at 194. 406 Eberhart , 127 F. 252.

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Although the Eberhart court did not acknowledge this, peonage was an increasingly

dangerous practice being used as a surrogate system for chattel slavery. As U.S. Supreme Court

decisions such as Bailey , Clyatt , and W.S. Harlan , as well as others dealing with debt

enslavement show, peonage was an established practice in the United States, especially the

South, by the early 20 th century. It became a favored approach adopted by unscrupulous

employers to force laborers to perform (see § 15).

9. Reconstruction Era Black Codes: Forced Labor and Peonage

Regarding the “Black Codes” Almost every act, word or gesture of the Negro, not consonant with good taste and good manners as well as good morals, was made a crime or a misdemeanor, for which he could first be fined by the magistrates and then be consigned to a condition of almost slavery for an indefinite time, if he could not pay the bill. W.E.B. Du Bois 407

Perhaps the most significant problem confronting postbellum Southern legislatures was “the control of labor [which] underlies every other question of state interest.” They achieved this indirectly with laws dictating social control by limiting African American property rights, education, and voting, and by other statutes that directly addressed labor. Taken together, these laws formed a web of codes that subordinated blacks to whites. 408 In many instances, states

controlled labor by means of often facially-neutral measures that the courts often left undisturbed

or facilitated. 409 David A. Novak posited that Reconstruction-era legislation that targeted

407 Du Bois, supra note 281 at 784. 408 Foner, supra note 264 at 198. 409 Black codes emulated slave laws in restricting African Americans’ conduct. Christopher Waldrep used court files of Warren County, Mississippi, to demonstrate how these codes operated. The white judiciary thwarted civil rights given to freedmen by Reconstruction-era federal enactments by state and local laws and procedures. As evident from the title of his article, the law was found to be a worthy substitute for the master’s lash. Christopher Waldrep, Substituting Law for the Lash: Emancipation and Legal Formalism in a Mississippi County Court , 82 THE JOURNAL OF AMERICAN HISTORY 1425 (1996). John A. Minnis, a district attorney who helped prosecute the KKK, described the views of many Southern whites toward Reconstruction-era laws “as usurpations, unconstitutional, and void.” Those who enforced these laws were bitterly denounced, and characterized as “enemies of the State.” Lisa Cardyn, Sexualized Racism/Gendered Violence: Outraging the Body Politic in the Reconstruction South , 100 MICHIGAN LAW REVIEW 675, 801, n.503 (2002).

129 freedmen “made it clear that the white South had no intention of dealing with a truly free black labor force.” 410

When Radicals in Congress passed federal statutes and proposed constitutional amendments to give blacks citizenship and civil rights, former Confederate and border states responded with tools ready at hand. They sought refuge in the law to retaliate for having to surrender, and for the humiliations imposed by the Radical agenda. Even though the war was over, violence continued, albeit on personal and state levels instead of a national scale. In addition to physical force, Southern states manipulated federal measures to lock blacks into an inferior status. While there was irony in the states’ use of federal law to achieve their different purposes, these also looked to their own canon for laws already in place. For over two hundred years, they had successfully used “slave codes” at state and local levels to force subjugation, and these laws were repurposed and embellished to become “black codes.” These were applied to freedmen to achieve a similarly repressive effect as chattel slavery, and paved the way to a “Jim Crow” postbellum South. Typical elements of laws placing blacks at a disadvantage to whites were labor constraints, denial of suffrage, and unequal treatment under the legal system. Common vehicles included labor contracts for adults, apprenticeships to similarly bind their minor children, and limitations on the professions African Americans could engage in.

Just as there are differing perspectives as to whether Reconstruction was a measure reasonably necessary to ensure national reunification or punitively motivated to humiliate the

South, there are multiple views on the purpose of black codes. Historian Lowell H. Harrison’s review summarizes the traditionalist and revisionist approaches, and a more middle position

410 DAVID A. NOVAK , THE WHEEL OF SERVITUDE : BLACK FORCED LABOR AFTER SLAVERY (University of Kentucky Press) (1978).

130 taken by Theodore B. Wilson. 411 Harrison described the “traditional” approach, which regarded black codes as “reasonable efforts by the [Andrew] Johnson[-imposed] state governments to define the status of the ” as “misunderstood and willfully misinterpreted by the North

[and] used as an excuse for radical reconstruction.” Later “revisionist” interpretations, such as those urged by Stampp, “condemned the Codes as efforts to keep the Negro as long as possible in the role of a propertyless rural laborer with few political and legal rights.” Harrison considered Wilson’s book on black codes as adopting “a somewhat middle position … with an inclination toward the traditionalist approach.” According to Harrison, Wilson observed that later black codes were less severe and attracted less attention in the North. 412

Wilson said that the “powerful and articulate minority dedicated themselves to preventing early readmission [of the former Confederate states] long before any of the Black Codes were passed or were even under consideration.” 413 Among publications Wilson cited was Harper’s

Weekly , which he regarded as “hostil[e] to the South, its continued leadership by ‘traitors,’ and the dangers to the Union of premature reconstruction.” 414 Wilson quoted an 1866 editorial from that publication, which opined:

The important point to ascertain is whether those whose honest hostility to the Government led them to attempt its overthrow are still inimical to it …. and, if so, whether they should at once be intrusted with an equal share of its administration…. The actions of the [state constitutional] conventions and of the legislatures; the elections of State officers and Representatives and Senators; the black codes; the vagrant laws; the tone of the press and of private conversation; the testimony before the Committee of Congress; the special correspondence in the newspapers; the tales of commercial

411 Lowell H. Harrison, Reviewed Work: The Black Codes of the South by Theodore B. Wilson , 29 THE HISTORIAN 266 (1967). 412 Id . 413 THEODORE B. WILSON , THE BLACK CODES OF THE SOUTH (University of Alabama Press) (1965). 414 Id . at 126.

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and other travelers – all prove that the sentiment of the lately insurgent States is unfriendly to the Government and Union. 415

Wilson alleged that the press strove to influence citizens and politicians in effectuating

Reconstruction. He gave particular attention to articles sympathetic to the North, and those that emphasized a punitive posture toward the former Confederacy. One of the “magazines of great political influence was The Nation ,” which derived its power from its large readership and frequency of publication. This magazine was founded by abolitionist William Lloyd Garrison 416 as a successor to The Liberator . Wilson quoted an “intemperate” 1866 article from The Nation :

“The points we have to consider at the North, in deciding which course we ought to take in fixing the status of the negro at the South, are really reduced to two – the effect upon his condition of leaving him at the mercy of a hostile and semi-barbarous race, and the effect upon the national government of shutting him out from all share in the local government.”417

To be sure, in order to comply with the 13 th amendment, some Southern laws granted former slaves rights that were allowed to some freedmen before the Civil War, including rights to marry and own property. Even then, the exercise of these rights was deliberately limited by being conditioned upon contrivance and circumstance. Other laws were written in facially- neutral terms, but were applied in a discriminatory fashion to achieve prejudicial objectives.

Du Bois observed that black codes were “meant [to achieve] nothing more than nor less than slavery in daily toil.” Even critics of Reconstruction recognized the deliberate inequity of these laws. For example, as a predicate for its black codes, Mississippi couched its first postwar constitution in paternalistic terms toward controlling the freedmen. As the “institution of slavery

415 Id . at 150-51, n.9 citing Harper’s Weekly , “Make Haste Slowly,” March 24, 1866, p. 178. 416 William M. Armstrong, The Freedmen’s Movement and the Founding of the Nation , 53 THE JOURNAL OF AMERICAN HISTORY 708 (1967). 417 Wilson, supra note 413 at 127 and n.20 citing “The Essence of the Reconstruction Question,” The Nation , I, 4 (July 6, 1866).

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[had] been destroyed” there, its legislature would promote the public welfare by “provid[ing] by law for the protection and security of the person and property of the freedmen” to “guard them and the State against any evils that may arise from their sudden emancipation.” 418

There were a variety of state and local statutes that were used to foster peonage and related forms of forced labor. In the South, disproportionately severe punishment was meted out for vaguely defined misconduct to indigent blacks. To be sure, such laws were not only in the

South, although they were more common there and primarily affected blacks. These sometimes affected poor whites in the South and elsewhere, and similar laws were used against Hispanics in the southwest and on the west coast against the Chinese. 419 These statutes included “surety laws” in which tribunals allowed others to “stand surety” and pay fines and costs for defendants who were unable to do so. The sureties did not act from altruism, but to obtain nominally priced and readily controlled labor. The defendant then entered into a contract to work for the surety to pay off his debt. These contracts called for defaulting defendants to work extended periods and pay the surety additional sums. As the indigent defendant was poorly paid by the court- sanctioned surety and hampered in his ability to repay his debt, much less the subsequent penalties, he became bound in a cycle of increasing obligation to the surety.420

418 REPORT OF THE JOINT COMMITTEE ON RECONSTRUCTION 133 (1866). 419 Avi Soifer, Federal Protection, Paternalism, and the Virtually Forgotten Prohibition of Voluntary Peonage , 112 COLUMBIA LAW REVIEW 1607 (2012). 420 Yosal Rogat quoted George McCutcheon McBride’s description of the ensnarement of labor contracts that resulted in peonage following the abolition of chattel slavery: In the United States peonage apparently developed mainly as a result of the abolition of slavery. As a penalty for vagrancy or petty crimes, especially when committed by Negroes, it became customary in many districts to impose a fine and to accept payment of this fine from some employer of labor, who in return secured the services of the culprit until the amount of the fine had been worked out. It was not difficult to bring about the accumulation of other debts by excessive charges for tools, food, lodgings and clothing advanced to the victim. Thus a system of long continued, if not permanent, involuntary servitude developed…. Persons sentenced to such service were frequently kept under armed guards and on some occasions were shot upon attempting to escape. Another source of widespread peonage in the south was the custom of making

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As described below, the more repugnant laws supporting peonage were those that criminalized breaches of labor contracts and failures to repay even modest sums. By contrast, the same acts in jurisdictions that were inimical to peonage did not impose criminal sanctions but treated these as civil infractions amenable to traditional contract remedies that included the seizure of assets and garnishment of wages.

9.A. Statutes Fostering Non-Chattel Forced Labor

Suresh Naidu and Gavin Wright are among those who have examined economic aspects of the postbellum use of forced labor in the South. They elaborated on several meaningful factors that cross economic, social, and legal fields in exploring motivations for perpetuated labor controls. Wright reflected upon observations by Alexis de Tocqueville that contrasted farming in the North and in the South in the 1830s. The Frenchman remarked on the “hum” of men at work in the fields of Ohio with the sleepiness of the Kentucky countryside. He contended that the South had a “radically different culture … in which work was degraded and idleness glorified.” Tocqueville made an important point: antebellum Southern plantations could rely upon slaves as a static labor source, but emancipation deprived planters of a guaranteed supply.421

Agriculture was seasonal work, which left workers idle after the completion of a crop cycle needing to find employment elsewhere. Freed from chattel bondage, they became mobile, and sought better terms elsewhere on a successive basis. It was regarded as more a matter of

yearly contracts with Negro farm laborers or tenants. Advances were usually made to them so that they could be held for the contracted period and coerced into renewal…. In addition statutes provided that to draw advances on “false pretenses” was a criminal offense…. Yosal Rogat, Mr. Justice Holmes: A Dissenting Opinion [continued] , 15 STANFORD LAW REVIEW 254, 269-70 (1963). At n.274, Rogat cited McBride’s “ Peonage , in 12 ENCYCLOPEDIA OF THE SOCIAL SCIENCES , 69, 71 (1934).” 421 Gavin Wright, American Agriculture and the Labor Market: What Happened to Proletarianization? , 62 AGRICULTURAL HISTORY 182 (1988).

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“chagrin than surprise” if a planter lost his entire labor force overnight. Other employers were eager to hire away the workers, which resulted in a highly competitive agricultural labor market.

As one planter admonished, having to outbid one another put planters at “the ‘mercy and power of their agricultural servants.’” was regarded as a useful form of labor control in that it tied the worker to the land from at least the time of preparation and sowing until his own crop was reaped.422

After the Civil War, numerous states passed legislation to remedy the labor shortage by favoring the employer and discouraging transitory work. Florida was among those states, primarily in the South, that adopted harsh laws intended to force workers to complete their labor contracts. They also penalized debtors who had obtained anything of value but failed to satisfy their creditors. State and local courts in Florida and states with similar laws, such as Alabama and Georgia, compelled laborers who broke term contracts to resume work. Judges and magistrates also permitted prospective creditors and employers to step in as sureties, thus entrapping debtors as described above. The effects of these state laws went far beyond the

422 Suresh Naidu, Recruitment Restrictions and Labor Markets: Evidence from the Postbellum U.S. South , 28 JOURNAL OF LABOR ECONOMICS 413 (2010). Langston Hughes reflected on the problems with sharecropping: Share-Croppers Just a herd of Negroes Driven to the field, Plowing, planting, hoeing, To make the cotton field.

When the cotton’s picked And the work is done Boss man takes the money And we get none,

Leaves us hungry, ragged As we were before. Year by year goes by And we are nothing more

Than a herd of Negroes Driven to the field – Plowing life away To make the cotton field. Langston Hughes, supra note 1 at 52.

135 customary legal remedy of monetary damages by imposing misdemeanor and criminal sanctions as well as “specific performance” as a punishment that allows physical control over the debtor.423

As an example, the 1891 Florida legislature passed “An Act in Relation to Obtaining

Money or any other Personal Property under False Promises, or for Violation of Contracts, and

Providing Penalties therefore.” Codified at chapter 4032, the law at § 1 provided:

That from and after the passage of this act, any person in the State of Florida, who by false promises and with the intent to injure or defraud, obtains from another, any money or personal property, or any person who has entered into a written contract, with, at the time, the intent to defraud, to do or perform any act or service, and in consideration thereof, obtains from the hirer, money or other personal property, and who abandons the service of said hirer without just cause, without first re-paying such money or paying for such personal property, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be punished by a fine not less than five nor more than five hundred dollars, or by imprisonment in the county jail not less than thirty days, nor more than one year, or both fine and imprisonment. 424

Although this type of law was overturned by the U.S. Supreme Court in Bailey ,425 Southern legislatures continued to adopt this type of statute. 426

423 “Specific performance” means that a promisor is made to abide by that promise. This is particularly problematic for an employment agreement. Compelling a worker to perform for the previously agreed-upon period and not allowing him to quit has been found tantamount to involuntary servitude. The payment of monetary damages is generally considered an appropriate remedy for breach of contract or employment agreements. Anthony T. Kronman, Specific Performance , 45 UNIVERSITY OF CHICAGO LAW REVIEW 351 (1978). 424 Acts and Resolutions Adopted by the Legislature of Florida, Regular Session, 1891. 425 Bailey, 219 U.S. 219. The U.S. Supreme Court dismissed as premature a prior request for habeas corpus in Bailey v. Alabama , 211 U.S. 452 (1908). 426 Historian Louis R. Harlan was the grandson of Justice John Marshall Harlan. See, e.g., Louis R. Harlan, “Harlan Family in America,” transcript of a speech by Dr. Harlan celebrating the 310 th anniversary of the Harlan family in America; accessed on April 10, 2017 at http://www.harlanfamily.org/book.htm . Dr. Harlan, who wrote extensively about Booker T. Washington, is recognized as his authoritative biographer. Dr. Harlan compiled the Tuskegean’s correspondence, which contains letters relating to William S. Harlan. LOUIS R. HARLAN , THE BOOKER T. WASHINGTON PAPERS (University of Illinois Press) (1981). See also Louis R. Harlan, NAACP: A History of the National Association for the Advancement of Colored People, Volume I, 1909-1920 by Charles Flint Kellogg , 73 THE AMERICAN HISTORICAL REVIEW 615 (1967).

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9.B. Vagrancy Laws

The practice of labeling workers as “vagabonds” and “vagrants” in order to coerce their labor was well-entrenched in English law, and found its way into British colonies in the New

World. Ultimately, this became a foundation for slave codes and black codes that were unfavorably applied to African Americans and their descendants. By 1533, roughly 75 years before the founding of Jamestown, an English statute allowed “vagabonds” to be impressed into a type of slavery that authorized violent punishment up to death for a second act of disobedience 427 was carried into the New World ( see § 2).

The United States adapted this concept, and found it useful in obtaining workers that were unwilling and poorly compensated (if paid). An example of an early 20 th century law of this type is found in § 3570 of the Compiled Laws of Florida, 1914. This part of the law included vagrancy among other ambiguously-defined “crimes” for which African Americans were more commonly arrested than whites and coerced to work for others. Reminiscent of 16 th century England, “vagrants” were defined by Florida as follows:

Rogues and vagabonds, idle or dissolute persons who go about begging, common gamblers, persons who use juggling, or unlawful games or plays, common pipers and fiddlers, common drunkards, common night walkers, thieves, pilferers, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons who neglect their calling or employment, or are without reasonably continuous employment or regular income and who have not sufficient property to sustain them, and misspend what they earn without providing for themselves or the support of their families, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, idle and disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses or tippling shops, persons able to work but habitually living upon the earnings of their wives or minor children, and all able bodied male persons over the age of eighteen years who are

427 Mintz, supra note 98 at 31.

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without means of support and remain in idleness, shall be deemed vagrants, and upon conviction shall be subject to the penalty provided in section 3571. 428

Florida was one of the states targeted by the USDOJ’s early 20 th century investigation into peonage. The department’s October 10, 1907, report on peonage cited a similar Florida law from

1905. 429

Mississippi adopted a similar vagrancy law that broadly defined the crime to include runaways, lewd conduct, idleness, and being disorderly. Blacks and whites who consorted or had sexual relations with one another were also considered vagrants. Although whites convicted of vagrancy could avoid paying a fine by swearing a pauper’s oath, blacks could be auctioned to prospective employers and made to work off their fines.430

9.C. “Enticement” and “False Pretenses” Laws

The complex panoply of postbellum Southern laws regulating labor shows the importance of securing and retaining workers at low wages. Some were aimed primarily at recruiters and others who attempted to “entice” workers to accept employment elsewhere, and against workers who breached labor contracts as guilty of “false pretenses.” As to the former,

“enticement laws” at state and local levels were aimed at mostly out of area recruiters who attempted to woo laborers away with promises of improved working conditions and more pay.

Ten Southern states adopted such laws, with only Virginia failing to make “enticing” a laborer a criminal offense. 431

428 Compiled Laws of Florida 1914 §§ 3570, 3571. 429 UNITED STATES DEPARTMENT OF JUSTICE , UNITED STATES DEPARTMENT OF JUSTICE PEONAGE FILES (USDOJ Peonage Files), appx. 2 at 30-31 (USDOJ Report of 1907). 430 NOVAK , supra note 410 at 1. 431 William Cohen, Negro Involuntary Servitude in the South, 1865-1940, 42 THE JOURNAL OF SOUTHERN HISTORY 31 (1976).

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It was illegal in some states for successor employers to hire a breaching laborer, or to harbor, feed, or detain a contract-breaker. 432 Many of these laws persisted until the time of

World War II. 433 Workers who breached labor contracts were severely punished. A number of

states, including Alabama, passed laws making the breach prima facie proof that the worker had

entered into the contract under “false pretenses,” and intended to defraud the employer from the

outset. This type of law was considered in 1914 by the U.S. Supreme Court in Bailey v.

Alabama434 (see § 15.E).435 The Court, which relied in part upon its decision in Clyatt (see

§ 15.B), held that such statutes violated the 13 th amendment of the Constitution and the 1867

Peonage Act.436

9.D. Laws Allowing Convict Labor as a Form of Peonage: “A Slave of the State”

Tuskegee Institute, Alabama March 3, 1942 Mr. George C. Schuyler 320 Manhattan Avenue C O N F I D E N T I A L New York, New York

My dear Schuyler: Here is some “Big Game” for you. I guess you know that the general practice of white land lords down here is to go into the county courts that meet in the spring of the year and “bail out” all available Negroes “convicted” of petty crimes, pay their fines, and have them placed into their custody and work them as long as they choose. I know of a case where a Negro man was convicted and fined about $35 for handling unlicensed liquor. A white farmer paid the fine and worked the Negro over a

432 In Tarpley v. State , 79 Ala. 271 (1885), the Alabama Supreme Court held against William Tarpley, who had hired Dan Ellington away from a labor contract with W.R. Ivey. The court reasoned that the law did not punish either contracting party for failing to fully perform. Rather, “enticement” was “an actionable tort for any one [who] knowingly interrupt[ed] the contractual relations” between a master and his servant during the period of obligation. The Supreme Court of South Carolina upheld an action for damages under that state’s enticement law in Duckett v. Pool , 33 S.C. 238, 11 S.E. 689 (1890) despite the fact that the employee had only a verbal contract with his employer. In Griffin v. State , 160 Ark. 166, 254 S.W. 468 (1923), the Arkansas Supreme Court upheld the conviction of P.B. Griffin for enticing “one Hutson,” a sharecropper, to work for the Delta & Pine Land Plantation Company. The court determined that the employer’s acceptance of payment by Griffin on Hutson’s past-due account did not constitute consent to Griffin’s unlawful interference. 433 Cohen, supra note 431 at 35-36. See also Nathan B. Oman, Why There is No Duty to Pay Damages: Powers, Duties, and Private Law , 39 FLORIDA STATE UNIVERSITY LAW REVIEW 137 (2011) and DAVID E. BERNSTEIN , ONLY ONE PLACE OF REDRESS : AFRICAN AMERICANS , LABOR REGULATIONS AND THE COURTS FROM RECONSTRUCTION TO THE NEW DEAL (Duke University Press) (2001). 434 Bailey , 219 U.S. 219. 435 Pete Daniel, and Down to Peonage: The Alonzo Bailey Case , 57 THE JOURNAL OF AMERICAN HISTORY 654 (1970). 436 Bailey , 219 U.S. at 240-41.

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year without any additional pay before he was released. Of course all southern white state and county officials know about this damnable traffic in Negroe farm labor. With Negroes it is the rule. White parolees are the exception and it was this exception that brought out a protest on the part of the daily press. * * * I hope you will in your own way, without quoting this memorandum, train your guns on this No. 1 enemy... Yours very truly, T.M. Campbell 437

Peonage was not the only form of forced labor used to entrap workers into involuntary servitude, and states soon recognized the profitability of requiring convicts to work for outside employers or serve as de facto government employees. While the 13 th amendment of 1865

forbade “involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted,” co-opted state and local legal systems colluded with employers to ensure a

steady supply of prisoners to augment the workforce.

The “duly convicted” became a valuable source of revenue when they were leased out to other employers. This scheme also saved jurisdictions money when convicts were used to construct public works.438 The USDOJ Report on Peonage dated October 10, 1907, says that

various states had adopted “pretended ‘criminal’ statute[s]” that impose jail sentences for ill-

defined conduct such as vagrancy. This resulted in “a large supply of convict laborers obtained by a liberal use” of such laws. The report queried whether the use of these and other

questionable state statutes to obtain workers complied with the 13 th amendment’s exception of those duly convicted of crimes from the abolishment of involuntary servitude. “If a State can

437 As this confidential letter from Thomas Monroe Campbell to George C. Schuyler of the NAACP shows, Campbell alerted Schuyler to the exploitative use of convict labor by complicit local officials who accommodated the needs of local employers. TMC Papers. 438 Michael David Tegeder, PRISONERS OF THE PINES : DEBT PEONAGE IN THE SOUTHERN TURPENTINE INDUSTRY , 1900-1913 (PhD diss., University of Florida, 1996). Accessed on April 12, 2017 at http://search.proquest.com.unr.idm.oclc.org/pqdtglobal/docview/304310842/55D8E2A38F9B4BDAPQ/1?accountid =452 . Tegeder aptly entitled a section of his dissertation “Criminal Surety and the Courtroom as a Marketplace for Labor.” He stated: “The resiliency and duration of debt peonage in the southern naval stores industry can be attributed, in part, to a penal system that allowed local authorities to place poverty-stricken workers into private turpentine camps.” See also Cohen, supra note 431.

140 make a crime within the meaning of this amendment whatever it chooses to call a crime, it can nullify the amendment and establish all the involuntary servitude it may see fit.” 439

As part of substituting government control over blacks to approximate the legal and social control formerly exercised by the white slave master, prisons offered unique and even profitable opportunities to the government. Feeley and Rubin elaborated on the advantages this afforded, especially to states undergoing reconstruction, by this adaptation of the old plantation system. Prior to the Civil War, prisoners were mostly white although some were freedmen.

Slavemasters substituted for the official legal system, as they disciplined and punished plantation slaves, and functioned as a law unto themselves. After the war, impoverished state governments refined the concept of convict leasing to obtain multiple goals: a for-profit penal system emerged in which penitentiaries replaced slaves with convicts who were leased out for private and public purposes. Not only did this scheme furnish a governmental institution to control blacks, it paid for itself and sometimes more. The disproportionate incarceration of blacks prevented freedmen from assuming more ambitious roles in society. It provided a steady stream of forced labor that could be augmented at will by complicit judicial officers, and monetarily benefitted the fiscally- challenged states. 440 Feeley and Rubin cited an 1871 Virginia decision that showed how convicting blacks was regarded as a surrogate system for slavery that was allowable under the

13 th amendment’s exception to those duly convicted of crimes, and a virtuous exercise of state power:

A convicted felon whom the law in its humanity punishes by confinement in a penitentiary instead of with death, is subject while undergoing that punishment, to all the laws which the Legislature in its wisdom may enact for the government of that institution and the control of its inmates. For the time being,

439 USDOJ Report of 1907, supra note 429, appx. 2 at 30-31. 440 Feeley & Rubin, supra note 334 at 51-55, 150-58.

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during his term of service in the penitentiary, he is in a state of penal servitude to the State. 441

This practice distorted the 13 th amendment’s exception to the prohibition of involuntary servitude. There tended to be two types of convict leasing, each abusive and unfairly implemented. The first arose from systems in which prisoners from state penitentiaries who had been duly convicted for non-debt related crimes were made to work for corporations and planters. For example, the state of Alabama placed heavy reliance on this system as it successfully operated mines and steel mills. This supported the essential repairs to and extensions of its railroads by taking advantage of the state’s rich mineral resources and cheap labor force. 442 This can be distinguished from a more localized use of leased prisoners from county and municipal jails. These were usually poor black men who had been imprisoned for debt-related crimes, whether real or fictitious, on the basis of flimsy laws and proceedings that failed to afford the accused due process of law. Both non-debt and debt-related systems were characterized by violence and brutality. In addition, employers using convict laborers, who were leased at below-market rates, were given a competitive advantage over those who did not. Judge

Emory Speer explained that the latter, operated “under the control of the law,” whereas the former acted “under the will of a taskmaster, merciless, perhaps as the Egyptian who drove the energies of the ancient people of God.” He questioned why those who “piously respect[ed] the law and the rights of their fellow man” should be placed at a disadvantage to a “huge sawmill … or an unscrupulous planter, with a stockade full of unpaid hands [who could] underbid his prices.” 443

441 Feeley & Rubin, supra note 334 at 152 citing Ruffin v. Commonwealth , 62 Va. 720, 790 (1871). 442 RISA L. GOLUBOFF , THE LOST PROMISE OF CIVIL RIGHTS (Harvard University Press) (2007). 443 Daniel, supra note 71 at 24-25. See also United States v. McClellan , 127 F. 971, 978 (1904).

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The collusion of courts and employers to meet labor demands was recorded in the 1904 memoir of an unnamed African American from Elbert County, Georgia. Unlike his mother (his father was unknown), he was freeborn but became ensnared in a cycle of peonage that was tantamount to slavery. He told of entering into a 10-year labor contract with the “Senator,” who built on his plantation a “low shanty” with what appeared to be horse stalls. Soon, similar structures would be called “stockades,” which were filled with enchained prisoners leased from the state. These were “cesspools of nastiness” that were “but little more than cow lots.”

Contract laborers wanting to quit the Senator’s employ were punished by brutality similar to the prisoners. Workers learned that in signing the Senator’s labor contract, they had “sold

[themselves] into slavery.”

The peon’s narrative told of the interaction between local courts and “peon farms” similar to the Senator’s operation to provide laborers as wanted:

One of the usual ways to secure laborers for a large peonage camp is for the proprietor to send out an agent to the little courts in the towns and villages, and where a man charged with some petty offense has no friends or money the agent will urge him to plead guilty, with the understanding that the agent will pay his fine, and in that way save him from the disgrace of being sent to jail or the chain-gang! For this high favor the man must sign beforehand a paper signifying his willingness to go to the farm and work out the amount of the fine imposed. When he reaches the farm he has to be fed and clothed, to be sure, and these things are charged up to his account. By the time he has worked out his first debt another is hanging over his head, and so on and so on, by a sort of endless chain, for an indefinite period, as in every case the indebtedness is arbitrarily arranged by the employer. In many cases it is very evident that the court officials are in collusion with the proprietors or agents, and that they divide the “graft” among themselves…. He has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being the slave of the State. In many cases it is very evident that the court officials are in collusion with the proprietors or agents, and that they divide the “graft” among themselves. As an example of this dickering among

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the whites, every year many convicts were brought to the Senator's camp from a certain county in South Georgia, ’way down in the turpentine district. The majority of these men were charged with adultery, which is an offense against the laws of the great and sovereign State of Georgia!

The peon related that hired “lewd women” were used by “sheriffs, constables and other officers” to “assist[] very materially in furnishing laborers for the prison pens of Georgia…. I am glad that the Federal authorities are taking a hand in breaking up this great and terrible iniquity. It is, I know, widespread throughout Georgia and many other Southern States.” The peon specifically mentioned Judge Speer, whose decision “fired into the gang last November at Savannah, I notice that arrests have been made of seven men in three different sections of the State--all charged with holding men in peonage. Somewhere, somehow, a beginning of the end should be made.” 444

These forms of convict leasing were justified by a distorted reading of the U.S.

Constitution. While the 13 th amendment forbade “involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted,” corrupt state and local legal systems invoked this exception in justifying their contrivance with employers to ensure a steady supply of prisoners. As one newspaper reported, in Alabama (along with other Southern states), “negroes were taken up in numbers for such offences as ‘swearing before females,’ shooting across a public road, carrying razors, stealing a ride on the train, letting a master’s mule bite some other man’s corn, and the like.” 445

These offenses were reminiscent of an 1865 Florida law which was part of that state’s black code. Like similar laws throughout the South, these statutes were aimed principally at

444 Anonymous, The New Slavery in the South - An Autobiography. A Georgia Negro Peon, DOCUMENTING THE AMERICAN SOUTH , February 25, 1904, at 404. Accessed on April 12, 2017 at http://docsouth.unc.edu/fpn/negpeon/negpeon.html The case the anonymous Georgia peon referred to was Jamison v. Wimbish ; see § 15.C. Thomas Monroe Campbell was also born in Elbert County, Georgia; see supra note 83. 445 The Nation , May 10, 1906, The Stamping Out of Peonage . Reprinted in The Nation , Volume 82, p. 379.

144 controlling former slaves. 446 This Florida law provided that any person unable to pay a fine was

to be hired out “at public outcry to any person who will take him or her for the shortest time and pay the fine, forfeiture and penalty imposed, and cost of prosecution.” In addition to

traditionally-understood offenses such as arson, assault, battery, and theft, lesser-defined

transgressions for which such punishment was meted out included “all offenses against Religion,

Chastity, Morality and Decency.” 447

Many jurisdictions had arrangements with employers that took advantage of newly- minted convicts who were unable to pay fines or make bond to sweep them up as part of an orchestrated criminal surety scheme. The prisoners then were often let to the highest bidder, and became peons when they were made to work under successive contracts to pay off indebtedness to their sureties.448 Assistant U.S. Attorney General Charles W. Russell 449 recognized the interrelated nature of peonage and convict leasing when prisoners were not given their freedom after serving their terms: “[A]fter the law has finished him he is held in involuntary servitude by the man who has leased him…. The State gets no pay for the months he is thus detained, and the lessee gets his labor without having to pay anything.” 450

446 Carper, supra note 95 at 85. 447 Acts and Resolutions , 1865, c. 1465, pp. 20-22. 448 Carper, supra note 446 at 85-86. 449 Russell (1856-1927) was of singular importance in the USDOJ campaign against peonage. Born in Virginia, he was an author of USDOJ’s reports to Congress on peonage. Russell was married in turn to two sisters of heralded Confederate Ranger John S. Mosby. Russell was already a seasoned lawyer when he became an assistant U.S. attorney general in 1905, and was appointed to investigate peonage complaints against immigrants. It was Russell who accepted Quackenbos as an assistant. Daniel, supra note 71 at 83-84. 450 Carper, supra note 446 at 86, n.7 citing USDOJ Report on Peonage at 17. See also N. Gordon Carper, THE CONVICT -LEASE SYSTEM IN FLORIDA , 1866-1923 304-29 (PhD diss., Florida State University, 1964). Accessed on April 21, 2017 at http://search.proquest.com.unr.idm.oclc.org/pqdtglobal/docview/302274963/96DC1400DB964E30PQ/2?accountid= 452. According to Carper, Pete Daniel’s book The Shadow of Slavery: Peonage in the South, 1901-1969 “dismisses the relationship between peonage and convict-leasing,” although Carper contended there was a connection. Carper, id . Carper is correct that Daniel made this distinction, but the analysis appears to be more a function of timing for the assessment. Daniel said that the line dividing “the [sharecropper] from the peon was a thin but crucial one,” in that the latter’s condition was dependent upon debt (Daniel, supra note 71 at 24). Daniel’s analysis that a cropper becomes a peon when the planter refused to allow him to leave, or had him convicted for attempting to do so,

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Douglas Blackmon’s Pulitzer Prize-winning book SLAVERY BY ANOTHER NAME : THE RE-

ENSLAVEMENT OF BLACK AMERICANS FROM THE CIVIL WAR TO WORLD WAR II 451 provided a thorough and frightening look into the use of convict labor by the state of Alabama, which profited greatly from the practice. The name of John W. Pace is mentioned frequently in the book (along with his frequent business partner James Fletcher Turner) as among the cruelest and most exploitative employers of convict laborers. Pace was among those scrutinized by a 1903

Alabama grand jury as it considered an indictment for peonage; see § 15.A discussing jury instructions regarding that offense in Peonage Cases of Alabama. 452 Prior to the investigation that led to the indictments of Pace and others, the Alabama Supreme Court in 1888 had rejected a challenge to the convict-leasing scheme. State law permitted the use of convict laborers to work for the state, as well as to be profitably (at least for the state treasury and sometimes state officials personally) hired out to work other enterprises.

In Ex parte Buckalew , the Alabama state court denied an application for habeas corpus filed by L.L. Buckalew, who had been convicted in July 1887 of assault and battery and sentenced to hard labor. In accordance with an agreement with the county’s commissioners, Buckalew was hired out to R.J. Trammell. Buckalew escaped in August 1887, was captured and rearrested in

March 1888, and turned over to John W. Pace, who was one of the largest acquirers of convict labor in Coosa and Tallapoosa Counties. According to the county’s contracts, prisoners convicted of misdemeanors not involving moral turpitude were not to be worked or confined in the same room with convicted felons although this was said to take place.

focused on the component which required that a debtor’s freedom of movement be restricted as well as his legal status. 451 BLACKMON , supra note 94. 452 John W. Pace and James Fletcher Turner were among the defendants in the Peonage Cases of Alabama; see, e.g., Judge Jones’ Jury Instructions, Peonage Cases , 123 F. 671 ( see § 15.A.).

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Buckalew sued to be discharged on the basis that the period he was to work as a contract laborer under Trammel had expired during the time he was an escapee. The state court rejected

Buckalew’s petition, and held that in the absence of evidence to the contrary, the contracts between the county and the contractor were presumed to meet the statutory requirements of separating convicts according to the type of crime committed. The prisoner was required to work the full nine-month sentence, regardless of when it began. The court remarked in its analysis: “When one is sentenced to the punishment of death, and it is not executed on the day fixed by the sentence, the judgment continues in force, and the court may fix another day.” As

Buckalew’s assignments as a convict laborer were legal and the contract between his employer and the county permitted working prisoners at hard labor, he had no right to take the matter into his own hands by escaping. The prisoner was then compelled to work for the entire sentence.453

10. Significant Postbellum Civil Rights Decisions of the United States Supreme Court

From Lincoln’s “Fiery Trial” Speech Fellow-citizens, we cannot escape history. We of this Congress and this administration, will be remembered in spite of ourselves. No personal significance, or insignificance, can spare one or another of us. The fiery trial through which we pass, will light us down, in honor or dishonor, to the latest generation. We say we are for the Union. The world will not forget that we say this. We know how to save the Union. The world knows we do know how to save it. We -- even we here -- hold the power, and bear the responsibility. In giving freedom to the slave, we assure freedom to the free -- honorable alike in what we give, and what we preserve. We shall nobly save, or meanly lose, the last best hope of earth. Other means may succeed; this could not fail. The way is plain, peaceful, generous, just -- a way which, if followed, the world will forever applaud, and God must forever bless. Abraham Lincoln 454

This quote, in which Lincoln famously described the “fiery trial” faced by the nation, was delivered during the Civil War. The president cautioned the country of the challenges it faced then, but his words proved prescient regarding the postwar difficulties that would be encountered. The judiciary struggled to ascertain the meaning of the profound statutory and

453 Ex parte Buckalew , 84 Ala. 460, 4 So. 424 (1888). 454 Abraham Lincoln delivered his “Fiery Trial” speech as part of his Annual Message to Congress, Washington, D.C., on December 1, 1862. Accessed on April 15, 2017 at http://www.abrahamlincolnonline.org/lincoln/speeches/congress.htm.

147 constitutional revisions made during Reconstruction, and found itself in a “fiery trial” of its own as it interpreted and applied the new legal construct.

Select decisions of the U.S. Supreme Court affecting those held in peonage are presented here, and others are discussed in greater depth in additional sections. These cases were chosen for their significance to emerging law, particularly during the immediate Reconstruction era.

These laws included the 13 th , 14 th , and 15 th amendments, and federal legislation aimed at freedmen such as the Civil Rights Acts of 1866 and 1875, the Force Acts of 1870 and 1871, and the 1867 Peonage Act. These cases track the progression of the judiciary’s response to postwar events and these laws. While the Radically-controlled Congress sought to protect former slaves, the nation’s highest court tempered that goal with decisions that generally upheld states’ rights and limited federal intrusion in those areas.

The Supreme Court’s decisions on Reconstruction-era constitutional amendments and laws remain among the most important in the Court’s history. These were rendered during a tumultuous time, when the struggle over national polity waged after the South’s surrender.

These enactments might have declared the abolition of slavery and bestowed civil rights on former slaves, but the manner and extent to which these supposed guarantees would be applied was far from settled. Nor was the relative balance of national and state power clearly established. As can be seen by their repeated and often creative efforts, particularly by the former Confederate and slaveholding border states to avert federal government mandates, the postbellum period was far from peaceful and its political divisions remained severe. The rights previously denied to slaves, and often to prewar free blacks, were still contested; confrontations over rights that would give African Americans political power were at times bloody and intense.

For example, the Supreme Court’s decision in Cruikshank arose from the horrible carnage that

148 took place as blacks fought to have their votes counted in a Louisiana election for governor.

Numerous other cases involving racially-motivated violence followed in other Southern communities, as whites sought to keep blacks from exercising the rights conferred by the federal government. While Cruikshank involved the results of a disputed election, the Supreme Court was careful to find that it did not concern voting rights. Whether that might or might not be true, other cases involved suffrage of African American males, since no woman of any race was then allowed to vote in a national election. 455 Other decisions looked at ways in which blacks were denied effective access to the judicial process, such as occurred in Dred Scott . Among more subtle efforts than outright rejecting African Americans the right to be legally vindicated was denying them the ability to give competent testimony against whites ( Blyew v. United States 456 ) and the opportunity to be tried before an impartial jury of their peers (Strauder v. West

Virginia 457 ). The list of challenges to federal laws promising minority rights is long, particularly where the Supreme Court refused to champion civil rights and looked for technicalities to sidestep these issues.458 Southern states showed great inventiveness in denying blacks the right to vote for reasons ostensibly unrelated to race. Among these were facially-neutral literacy clauses that required a prospective voter to read, write, or explain parts of the state or federal constitution, and the payment of poll taxes.459

It soon became clear that the meaning and reach of each of the post-Civil War constitutional amendments and protective laws would be repeatedly tested, and that the Supreme

455 See, e.g., Minor v. Happerstett , 88 U.S. 162 (1875), which interpreted the 14 th amendment’s privileges and immunities clause to acknowledge that although women were citizens, they were not given the right to vote. Suffrage extended only to male citizens. 456 Blyew v. United States , 80 U.S. 581 (1871). 457 Strauder v. West Virginia , 100 U.S. 303 (1880). 458 For example, the Court in Blyew resorted to Wheat v. Ortega , 24 U.S. 467 (1826), an obscure 50-year old decision dealing with its jurisdiction over foreign diplomats. The Court referred to the crimes in Blyew as of “peculiar atrocity.” Blyew , 80 U.S. at 584. 459 See, e.g , Reese , 92 U.S. 214, discussed in § 10.B.

149

Court would often accommodate a society that had yet to fully accept African Americans as equal citizens. In the latter part of the 19 th century, the Court and Congress frequently acceded to social customs of the “Jim Crow” era. Much has been written about the courts of that time and their handling of civil rights cases.

William M. Wiecek’s extensive analysis argued persuasively that in the majority of earlier cases, “the Court fabricated a structure of law that gutted the substance of the Civil War amendments, while preserving their façade as far as the freed people were concerned.” The

Court thereby supported the “‘Jim Crow’ republic’” of the latter part of the 19 th century. Wiecek contended that the decisions “displayed four characteristics fatal to the equal protection of the laws for black Americans.” These are that the Court “conceded only a formal, minimalist recognition of constitutional text guaranteeing the rights of black Americans, particularly of the

[14 th and 15 th ] Amendments, leaving the door wide open for subterfuge and subversion”;

“grudgingly gave only a narrow, literalistic reading to statutes enacted to protect blacks’ rights”;

“invented the state action doctrine”; and “gave a differential, results-oriented application to the same constitutional standard, such as the commerce clause, inerrantly to achieve a result destructive of blacks’ rights.” 460

Legal scholar Michael Les Benedict cautioned modern readers that decisions of the U.S.

Supreme Court under Chief Justices Chase and Waite must be understood as a product of the generation that fought in the Civil War, and witnessed first-hand the devastation wrought on the country as a whole. Benedict emphasized that, prior to the war, federalism was understood as a restrictive concept in which sovereign states retained all powers that were not specifically granted to the national government. He regarded many of the Court’s Reconstruction-era

460 William M. Wiecek, Synoptic of United States Supreme Court Decisions Affecting the Rights of African- Americans, 1875-1940 , 4 BARRY LAW REVIEW 21 (2003).

150 decisions that limited African Americans’ struggle for civil rights as motivated less by racism than by continuing a constitutional construct that preserved state control. As Benedict explained:

“The essential difference between modern constitutional nationalism and that prevalent at the time of the Civil War was the latter’s acceptance of the notion that there was a reserved area of

State jurisdiction beyond the competence of national authority.” 461 This sometimes necessitated remarkable judicial contortions.462

10.A Slaughter-House Cases , 83 U.S. 36 (1873)

To set the stage for this Reconstruction-era landmark case, remember that postwar political chaos festered in the South. Louisiana was a hotbed of controversy; by 1868, white supremacists suffered a humiliating defeat when black and Radical Republican legislators pushed through a new state constitution that gave freedmen rights and representation in government that were previously withheld. The whites’ “campaign of terror” there was similar to violence waged elsewhere in the South, as the formerly rebellious states struggled under reconstruction and the broadened political role of blacks. 463 On March 8, 1869, Louisiana was torn by controversy over the legitimacy of a state government that now included former slaves and was resisted by whites pushing to restore antebellum order. During this period, the state legislature passed a law to regulate meat processing that ignited resentment among New Orleans butchers.

461 Michael Les Benedict, Preserving Federalism: Reconstruction and the , 1978 THE SUPREME COURT REVIEW 39, 41 (1978). 462 Benedict, supra note 461 at 59, 62, 66-74. 463 Attacks on blacks in the South were both fatal and nonfatal. For example, there were over 200 murders of African Americans in Arkansas during 1868. Georgia had a lower death toll but extremely high incidents of beatings were reported. The greatest violence was in Louisiana, where statistics showed a marked decline in voting afterward. For example, in St. Landry Parish, Republican nominees in the state constitutional convention received 2,200 votes in April 1868 but in the November election that year not a single vote was cast for the GOP. Although New Orleans had 21,000 registered Republicans, that party received only 276 votes that November. Donna A. Barnes & Catherine Connolly, Repression, the Judicial System, and Political Opportunities for Civil Rights Advocacy During Reconstruction , 40 THE SOCIOLOGICAL QUARTERLY 327, 331 (1999).

151

The meat workers’ challenge resulted in an 1873 U.S. Supreme Court decision which scholars and historians view as a derailment of constitutional promises of equal protection. The

Court considered the 14 th amendment for the first time in Slaughter-House Cases , which consolidated several butchers’ suits. Although this amendment was adopted to protect the rights of former slaves, it does not mention race nor is it limited to protection of particular civil rights.

Slaughter-House Cases presented rather unlikely facts upon which to make national judicial policy. New Orleans butchers were angered by the new law that limited the location for butchering livestock, which was ostensibly adopted to protect the health and welfare of the townspeople. Before that enactment, cows, pigs, and sheep were routinely herded through the streets and killed in butcher shops within the city.

The Butchers’ Benevolent Association sued, and alleged that the statute created a corporate monopoly that wrongly constrained the butchers of New Orleans in the right to exercise their trade and deprived them of their livelihood. 464 The butchers also argued that because the law limited their freedom of employment, it “creat[ed] an involuntary servitude forbidden” by the 13 th amendment; “abridg[ed] the privileges and immunities of citizens of the

United States”; “denie[d] plaintiffs the equal protection of the laws”; and “deprive[d] them of their property without due process of law.” 465

The butchers were represented by former U.S. Supreme Court Justice John A. Campbell, who had resigned that office to become Jefferson Davis’s assistant Secretary of War. Campbell made creative arguments on behalf of his clients; although all were white, he argued that the

464 In the same period, the U.S. Supreme Court also heard the case of feminist Myra Bradwell, who sued under that amendment for Illinois’ failure to admit her to the bar. Like the butchers of New Orleans, she complained of being wrongly prevented from practicing her profession. Justice Bradley, writing for the Court, found that Bradwell was not denied the protections of the 14 th amendment and had no right to be a lawyer. He reasoned: “The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of life.” Bradwell v. Illinois , 83 U.S. 130 (1873). 465 Slaughter-House Cases , 83 U.S. at 66.

152 state law was an invalid exercise of power under the 13 th and 14 th amendments, which were more commonly used in support of racial equality and to benefit former slaves. Charles Lane pointed out the irony of Campbell’s innovative use of Reconstruction-era amendments, which did not envision this type of application. Campbell’s personal prejudices influenced his objections to the

Louisiana meatpacking law, which he found further objectionable because it was the product of a biracial state legislature. In making the 13 th amendment argument, he reached back to old

English doctrine regarding the right to exercise particular trades to support the notion that the law regulating abattoirs resulted in involuntary servitude. 466 Campbell also reasoned that because the New Orleans butchers were unable to ply their trade without legal restrictions, they were wrongly deprived of liberty and property in violation of the 14 th amendment, and that their

“privileges and immunities” were abridged. 467 He colorfully castigated carpetbaggers as the

“foulest off-spring of the war.” Campbell decried black suffrage, and alleged that “whatever ambition, avarice, usurpation, servility, licentiousness, or pusillanimity needs a shelter will find it under its protection.” He argued that, as a result, “a large portion of the dominant [white] population had been disenfranchised.” 468 The deeper legal import of Campbell’s arguments went far beyond whether the challenged Louisiana law properly protected public health and welfare.

He carefully calculated a litigation strategy to influence the Court’s first ruling on the 14 th amendment. As a former justice, he understood that the case had a potentially wide-ranging effect, depending on the approach adopted by the Court. 469

466 CHARLES LANE , THE DAY FREEDOM DIED : THE COLFAX MASSACRE , THE SUPREME COURT , AND THE BETRAYAL OF RECONSTRUCTION 118–19 (Henry Holt and Co.) (2008). 467 BIOGRAPHICAL ENCYCLOPEDIA OF THE SUPREME COURT : THE LIVES AND LEGAL PHILOSOPHIES OF THE JUSTICES 42 (M. I. Urofsky ed., CQ Press) (2006). 468 Lane, supra note 466 at 119, citing Campbell’s brief and argument before the U.S. Supreme Court. 469 Lane, supra note 466 at 118-19.

153

In a 5-4 decision, the U.S Supreme Court affirmed the supreme court of Louisiana and rejected the butchers’ arguments. Arguably, while the Butchers’ Benevolent Association lost the case, Campbell and his fellow-thinkers were the greater victors in the U.S. Supreme Court’s minimalist application of the 13 th and 14 th amendments. The majority opinion, written by Justice

Samuel Freeman Miller, denied that the Louisiana law contravened federal constitutional protections. Miller’s decision made several salient points. Importantly, it found that the 13 th amendment did not apply to the facts at hand. The “obvious purpose” of that amendment “was to forbid all shades and conditions of African slavery” and ensure that the system was not re- instituted. Provisions requiring a centralized abattoir, which New Orleans’ butchers could access for a fee, did not impose slavery or involuntary servitude upon them. 470 The decision held that the protections of the 13 th and 14 th amendments did not extend to the white plaintiffs’ quest for relief from the state legislation.

The Court’s Slaughter-House Cases opinion also carefully distinguished between state and federal citizenship, and the rights and privileges separately conferred by each. This analysis harkened back to the controversial Dred Scott decision, which held that African Americans were not citizens of the United States and could not avail themselves of federal protections; the 14 th amendment was passed to overcome this ruling. The Court recognized that this amendment, which conferred national citizenship on all persons born in or naturalized by the United States, guaranteed rights conferred by the federal Constitution. However, the decision held that the 14 th amendment was not intended to protect citizens against the legislative power of the states.471

While it may have been Miller’s intent to foster an appropriate federal/state balance in the face of

Reconstruction-era legal and political controversy, he arguably went too far in trying to define

470 Slaughter-House Cases , 83 U.S. at 70. 471 Slaughter-House Cases , 83 U.S. at 72-75.

154 the rights of federal citizenship. 472 He fixed upon “those rights which depended on the Federal government for their existence or protection,” and questioned whether the 14 th amendment was

“intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States.” Miller disagreed that this was the case, looked at the rights conferred on the federal government at the time the states ratified the Constitution in 1789, and denied that the Bill of Rights applied to the states. 473 He distinguished national citizenship from that of a state, and held that the 14 th amendment placed only federal citizens under its protection. 474 As the rights asserted by the butchers as lost to state regulation were “not privileges and immunities of citizens of the United States within the meaning of the clause of the

[14 th ] amendment under consideration,” these were deemed beyond the reach of the Court. This decision had far-reaching consequences beyond the regulation of butchering in New Orleans. It meant that parties aggrieved by state action were for many years denied federal relief, and would have to resort to state legislatures and courts for a remedy. 475

Justice Miller noted that the Southern states were adopting black codes to thwart the liberties given by federal law. His decision accurately described the fate of many African

Americans under , which exposed them to the cruel practices of debt bondage and misused convict labor, and unfair prosecution under deliberately vague laws. Miller said that

Southern legislatures had adopted “laws which imposed upon the colored race onerous disabilities and burdens, and curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value, while they had lost the protection which they had received from their former owners from motives both of interest and humanity.”

472 See, e.g ., Michael A. Ross, Justice Miller’s Reconstruction: The Slaughter-House Cases, Health Codes, and Civil Rights in New Orleans, 1861-1873 , 64 THE JOURNAL OF SOUTHERN HISTORY 649 (1998). 473 Slaughter-House Cases , 83 U.S. at 77-78. 474 Slaughter-House Cases , 83 U.S. at 74. 475 Slaughter-House Cases , 83 U.S. at 80.

155

Examples of their maltreatment were that African Americans “were in some States forbidden to appear in the towns in any other character than menial servants. They were required to reside on and cultivate the soil without the right to purchase or own it. They were excluded from many occupations of gain, and were not permitted to give testimony in the courts in any case where a white man was a party. It was said that their lives were at the mercy of bad men, either because the laws for their protection were insufficient or were not enforced.”476

Justice Stephen J. Field’s dissent in Slaughter-House Cases espoused a broader view of the 14 th amendment. He criticized the majority, and contended that its limitation on the applicability of the amendment rendered it as “a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.” 477 Field observed that the term “involuntary servitude” had not “been the subject of any judicial or legislative exposition” outside the Civil Rights Act of 1866. He deemed it “clear that [it] include[d] something more than slavery in the strict sense of the term” and encompassed

“serfage, vassalage, villenage, peonage, and all other forms of compulsory service for the mere benefit or pleasure of others.” 478 Justice Joseph P. Bradley wrote in a separate dissent that “the right of any citizen to follow whatever lawful employment he chooses to adopt (submitting himself to all lawful regulations) is one of his most valuable rights, and one which the legislature of a State cannot invade, whether restrained by its own constitution or not.” 479

The 1873 decision in Slaughter-House Cases showed how quickly the Supreme Court minimized the freedoms granted African Americans by the Reconstruction-era amendments to

476 Slaughter-House Cases , 83 U.S. at 70. 477 Slaughter-House Cases , 83 U.S. at 96. 478 Slaughter-House Cases , 83 U.S. at 91. 479 Slaughter-House Cases , 83 U.S. at 113-14.

156 the Constitution. 480 While the facts of the decision ostensibly concerned rights of butchers, it launched a time in which blacks repeatedly sought relief from the judiciary but were denied redress. This was an “era termed by the Negroes [as] ‘Knocking at Closed Courtroom

Doors.’” 481

10.B. United States v. Reese , 92 U.S. 214 (1876)

United States v. Reese 482 was a Kentucky voting rights case in which two election inspectors in this former slaveholding border state refused to receive or count the vote of

William Garner, a United States citizen of African descent, for his failure to pay a poll tax. The

Enforcement Act of 1870 imposed penalties for violations of the 15 th amendment for frustrating

African Americans’ right to suffrage. It allowed otherwise eligible voters to rely upon affidavits

to substantiate that they were wrongly impeded from voting. The U.S. Supreme Court in Reese

considered only one of the many ways in which black voters were disenfranchised under pretext.

The decision showed that just as there are many steps in having a ballot counted, such as voter

480 Debate over the federal government’s power to impose its will on the states began as the framers considered the new constitution. Eventually, the U.S. Supreme Court changed that course. Professor James M. Chen has described the Court’s decision in Slaughter-House Cases as a missed opportunity to use the privileges and immunities clause of the 14 th amendment to incorporate the Bill of Rights against actions by the states. That decision hampered the Court’s ability to review the actions of the states and its citizens against one another. This began to change as the Court embarked upon the selective incorporation of provisions of the federal constitution with its decision in Gitlow v. New York , 268 U.S. 652 (1925). Chen noted that the judiciary was considerably preoccupied over the next few decades as it applied the 14 th amendment’s due process clause on a case by case basis. See, e.g., Palko v. Connecticut , 67 U.S. 1672 (1947) ( overruled by Malloy v. Hogan , 378 U.S. 1 (1964)) and Adamson v. California , 332 U.S. 46 (1947). Private communication. See also Chen, supra note 141. William N. Eskridge, Jr., contended that many of the significant changes in constitutional law, including the 20 th century development of the doctrine of incorporation, resulted from “identity based social movements” that involved issues of race, gender, and sexual orientation. Among the major cases falling under this rubric was Brown , which overruled Plessy . See William N. Eskridge, Jr., Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century , 100 MICHIGAN LAW REVIEW 2062 (2002). 481 Robert Pace Alexander, The Upgrading of the Negro’s Status by Supreme Court Decisions , 30 THE JOURNAL OF NEGRO HISTORY 117, 122 (1945). 482 Reese , 92 U.S. 214.

157 qualification and registration, 483 physical access to the polls,484 and having votes applied once made, many inventive ways were found to keep freedmen from exercising the franchise.

The underlying facts in Reese are best related in Justice Ward Hunt’s dissent, which is regarded by many as his most significant contribution while on the Court. 485 William Garner had attempted to pay the required poll tax, but was refused by James F. Robinson, the tax collector for Lexington, Kentucky, on account of Garner’s race and color. Hunt told how Garner proceeded as contemplated by the Force Act of 1870 by preparing an affidavit setting forth the facts with specificity, and appearing to vote in a January 30, 1873, election. Hiram Reese and

Matthew Foushee, election inspectors, refused to accept the affidavit or count Garner’s vote.

Reese and Foushee were indicted for obstructing Garner’s right to vote; after the lower court dismissed the indictments, the matter went to the U.S. Supreme Court. The federal government argued that these Kentucky officials violated §§ 3 and 4 of the 1870 Force Act, which penalized those who denied qualified voters the right to do so. Oral argument in Reese was moved up on the Supreme Court’s calendar at the request of George H. Williams, Grant’s

U.S. Attorney General from 1872-1875. Williams was worried that there would be further turmoil in Louisiana if Cruikshank was heard first and before federal troops were in place to maintain order. Reese was deemed less likely to incite violence than Cruikshank , which was also

483 Many states enacted facially-neutral statutes that operated to deny blacks the vote, such as “grandfather” laws that permitted illiterates to vote if their grandfathers held that right . Although the U.S. Supreme Court struck down this type of law in Guinn v. United States , 238 U.S. 347 (1915), Oklahoma and other states quickly looked for other ways to disenfranchise blacks. 484 See, e.g., Cruikshank , 92 U.S. 542 (discussed in § 10.C.) 485 Reese , 92 U.S. at 277-79. Note that Justice Hunt, sitting in circuit, presided at the trial of Susan B. Anthony, who attempted to vote in New York during the elections of November 1872; see United States v. Anthony , 24 F. 829 (1873). A second dissent in Reese was filed by Justice Nathan Clifford, which perhaps signaled the Court’s later decision in Williams v. Mississippi , 170 U.S. 213 (1898). The latter decision upheld as nondiscriminatory state constitutional provisions that allowed the use of grandfather clauses, literacy tests, and payment of poll taxes as voter qualifications. Clifford agreed that the indictments in Reese were a bad thing, but observed that Garner paid the poll tax after the January 15, 1873, deadline set by city charter. The fact that Clifford did not object to the imposition of a poll tax suggests that this tactic might not then have been viewed as unconstitutional. Reese , 92 U.S. at 222-39.

158 brought under the 1870 Force Act, although the latter suit also came under § 6 of the act, which was directed at the KKK and similar paramilitary organizations.486

The majority decision in Reese , which held certain provisions of the 1870 Force Act were unconstitutional, was written by Chief Justice Morrison R. Waite. The opinion in Reese followed the Court’s general reluctance to allow federal law to dictate to the states, and its tendency to narrowly construe the constitutional protections of Reconstruction-era amendments.

The chief justice defined the “principal question” as “whether the act under which the indictment is found can be made effective for the punishment of inspectors of elections who refuse to receive and count the votes of citizens of the United States, having all the qualifications of voters, because of their race, color, or previous condition of servitude.” 487 Waite minutely parsed the Force Act in rendering his decision. He determined that § 1 of the 1870 act “simply declares” the right of those “otherwise qualified by law” to vote, “without distinction of race, color or previous servitude” but did not “provid[e] a punishment for its violation.” Although § 2 authorized punishment, Waite said that provision “does not apply to or include the inspectors of an election, whose only duty it is to receive and count the votes of citizens, designated by law as voters, who have already become qualified to vote at the election.” This limited application of this clause to qualified voters, and not to officials who refused to accept authorized votes.

Section 3 was found inapplicable to the “aforesaid” offense, as was § 4, which punished only

486 President Grant and U.S. Attorney General Williams were so worried about the continuing debate over the legitimacy of Republican ’s election as Louisiana governor that the president sent General Phillip Sheridan, who had overseen Reconstruction in Louisiana, to investigate. Sheridan’s urgent cable to Grant of January 4, 1876, said that “the terrorism now existing in Louisiana, Mississippi and Arkansas” could be eliminated if “Congress would pass a bill declaring [the perpetrators to be] banditti” so they could be tried before a military commission. There was widespread public outcry to this. Senator Carl Schurz called the proposal “so appalling that every American citizen who loves liberty stands aghast.” See Lane, supra note 466 at 226-27. 487 Reese , 92 U.S. at 216.

159 those who used “force, bribery, threats, intimidation, or other unlawful means … to hinder, delay, or prevent, or obstruct” a lawful voter; both sections were found unconstitutional. 488

The Court concluded that the Reese defendants were not properly indicted under the penal provisions of the Enforcement Act for denying Garner the vote. It held that Congress had erroneously attempted to penalize “wrongful acts without as well as within the constitutional jurisdiction,” as it criminalized the denial of voting rights for more than racially-motivated reasons. Implicit in the ruling was that the Court would not usurp the role of Congress as an agent of political change. Reese further stated that the 15 th amendment “does not confer the right of suffrage upon anyone.” Rather, it only “prevents the States and the United States from giving preference … to one citizen of the United States over another on account of race, color, or previous condition of servitude.” The Court determined that the Force Act was overbroad, and struck its criminal sanctions for denying the vote to blacks.489

10.C. United States v. Cruikshank , 92 U.S. 542 (1876)

As seen in Reese , suffrage was a particularly contentious issue. Louisiana’s hotly contested statewide election of 1872 showed a deep racial and political divide, and how African

Americans “bore the incubus” of partisan strife. 490 Several authors and historians have studied the dangerous confrontation over that election, which was but one instance of repeated violence associated with the attempted exercise of postbellum political power. 491 The events underlying

488 Reese , 92 U.S. at 217-18. 489 Reese , 92 U.S. at 215-22. 490 Schmidt, supra note 326 at 884. As Schmidt described, Democrats continued to resist Kellogg as governor, and formed an armed “.” This group “fought several pitched battles in the streets of New Orleans against Republican-controlled police and militia….” The White League functioned as an unofficial “shadow government” of the Kellogg administration. Ricky Sherrod, Beyond Coushatta: The 1874 Exodus Out of Red River Parish , 52 LOUISIANA HISTORY : THE JOURNAL OF THE LOUISIANA HISTORICAL ASSOCIATION 440, 443–44 (2011). 491 LeeAnna Keith, Charles Lane, and Nicholas Lemann are among those who have written informative and well- researched books about the Colfax massacre. Their efforts discussing the events underlying Cruikshank place the history and impact of the tragedy in perspective. See Lane, supra note 466; LEE ANNA KEITH , THE COLFAX

160 the U.S. Supreme Court’s decision Cruikshank arose from a post-election conflict that erupted on

Easter Sunday, April 13, 1873. It took place in the tiny and remote town of Colfax, Louisiana, in

Grant Parish.

The Colfax massacre was not the first such event in the troubled state of Louisiana.

Nearly seven years before, 34 blacks and 4 whites had died and 184 people were injured in New

Orleans on July 30, 1866. City policemen there, many of whom were former Confederates who favored the Democratic party, attacked a group of black Republicans and white former Union soldiers. In September 1868, nearly 200 freedmen were killed in St. Landry Parish when white supremacists terrorized local blacks. When African Americans organized a posse to capture the killer of an elderly man, word spread of a “Negro revolt.” Whites responded in strength, and 168 blacks were killed in October in Bossier Parish near Shreveport during a “n***** 492 hunt” complete with bloodhounds. A Congressional investigation reported that Louisiana suffered

1,081 politically-related murders of primarily black victims. Another 135 people were shot and wounded and 507 were “outraged” by terroristic acts including whipping, clubbing, and intimidation. 493

This was the situation when battle broke out in Colfax over Louisiana’s 1872 state election, despite a federal court’s ruling in favor of seating the Republican candidates. Recently enfranchised freedmen, resolved that this slate would take office, clashed with whites even more determined to retain supremacy by installing their Democratic candidates. Both sides drew on their recent military experience from the Civil War, and knowledge of armed and hand-to-hand combat. An informal militia of whites whose weapons included small cannon attempted to take

MASSACRE : THE UNTOLD STORY OF , WHITE TERROR , AND THE DEATH OF RECONSTRUCTION (Oxford University Press) (2008); and LEMANN , supra note 264. 492 As stated previously, I have chosen to use the euphemism “n*****” throughout this work instead of the offensive term. Supra note 119. 493 LANE , supra note 466 at 18-19.

161 over the Grant Parish courthouse in Colfax on behalf of their nominees; blacks had less firepower. The killing spree began when African Americans barricaded inside the courthouse were attacked by a force of about 250 whites, many of whom had joined white supremacist organizations such as the KKK and the Knights of the White Camelia. 494 The carnage in Colfax was terrible, as whites slaughtered their captives; scores were injured, and over 100 blacks and three whites were killed. 495 The New York Times said: “It now appears that not a single colored man was killed until all of them had surrendered to the whites who were fighting with them, when over 100 of the unfortunate negroes were brutally shot down in cold blood. It is understood that another lot of negroes was burned to death in the Court-house when it was set on fire.” The article continued that, according to witnesses, the acts at the courthouse were

“positively appalling in their atrocity, and would appear to be more like the work of fiends than that of civilized men in a Christian country.” 496

Of the 97 white men charged in the Colfax massacre under the Enforcement Act of

1870,497 which targeted bands like the KKK that used paramilitary tactics, only three 498 were convicted for conspiracy, and none of murder. 499 The defendants moved for “arrest of judgment, arguing that the act is unconstitutional and that the indictment did not properly charge any crime

494 Dauphine traced the role of the Knights of the White Camelia in disrupting the Louisiana elections of 1868 and impinging upon the black vote. He described how this organization and others such as the KKK evolved from relatively localized groups that informally intimidated freedmen to more structured associations that threatened a broader area and population. James G. Dauphine, The Knights of the White Camelia and the Election of 1868: Louisiana’s White Terrorists; A Benighting Legacy , 30 LOUISIANA HISTORY : THE JOURNAL OF THE LOUISIANA HISTORICAL ASSOCIATION 173 (1989). 495 Barnes & Connolley, supra note 463 at 332. 496 LAWRENCE GOLDSTONE , INHERENTLY UNEQUAL : THE BETRAYAL OF EQUAL RIGHTS BY THE SUPREME COURT , 1865-1902 88–89, n.2 (Walker Publishing Co., Inc.) (2011). See also an article in the New York Times , April 18, 1873, cited at that note. That article was captioned “GRANT PARISH: The Massacre a Most Terrible One – Escape of the Whites – Difficulty in Sending Off Troops.” Accessed on April 14, 2017 at http://search.proquest.com/hnpnewyorktimes/docview/93355347/8328023B0E944E1CPQ/1?accountid=34227. 497 16 Stat. 140, § 6. The act is known variously at the Enforcement Act of 1870, the Force Act of 1870, and the KKK Act. 498 Keith, supra note 491 at 136. 499 United States v. Cruikshank , 25 F. 707, 708 (C.C. D. La. 1874).

162 under it.” 500 U.S. Supreme Court Justice Bradley presided over the matter while sitting in

circuit.501

The Louisiana press reported the trials along racial lines, with white journalists touting

Bradley’s ruling. According to Louisiana’s Alexandria Caucasian of July 4, 1874: “The prisoners … were surrounded by their many friends and the entire community, and were treated

as the heroes they are, for patiently suffering so much for the sake of us all. We all felt and

openly proclaimed: during their long imprisonment, and during the course of their two trials, that

their case was our cause, and when they came to us free and unfettered, we all felt that their

release was our release from a thralldom worse than death.” The paper lauded Justice Bradley’s

ruling, and proclaimed: “All hail to the judge who had manliness and honor enough to give a

righteous and legal decision in the face of party demands and in the teeth of party persecution.” 502

500 Cruikshank , 25 F. at 708. 501 The federal court system is established by Article III of the U.S. Constitution. This section provides for judicial power to be “vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Beginning with the Judiciary Act of 1789 (ch. 20, 1 Stat. 73), U.S. Supreme Court justices are also assigned to handle cases in lower federal courts at the trial or initial appellate level. While this practice has been periodically discontinued, the justices from time to time adjudicate cases (“sitting in circuit”) on the lower court to which they are assigned. See supra note 358 regarding Justice Taney, and William Joseph Cibes, Jr., EXTRA -JUDICIAL ACTIVITIES OF JUSTICES OF THE UNITED STATES SUPREME COURT , 1790-1960 (PhD diss., Princeton University, 1975). Accessed on April 17, 2017 at http://search.proquest.com.unr.idm.oclc.org/pqdtglobal/docview/302762886/D79820B2F4134D82PQ/1?accountid= 452. Justice Bradley, a former corporate lawyer and Grant appointee, became an important player in the 1876 Electoral Commission that resulted in the selection of Rutherford P. Hayes as president. Bradley did not support Reconstruction, and agreed with Hayes’ bargain with Southern Democrats to remove federal troops from the South in exchange for their political support. Bradley’s civil rights legacy is mixed; for example, he dissented in Blyew but wrote the circuit court’s decision in Cruikshank that was followed by the U.S. Supreme Court. He dissented in Slaughter-House Cases , and believed that the butchers were denied the right to ply their trade. See, e.g ., JEFFREY ROSEN , THE SUPREME COURT : THE PERSONALITIES AND RIVALRIES THAT DEFINED AMERICA 94–95 (Henry Holt and Co.) (2007) and HIGGINBOTHAM , JR., supra note 40 at 88-89. 502 INDEX TO REPORTS OF COMMITTEES OF THE HOUSE OF REPRESENTATIVES FOR THE SECOND SESSION OF THE FORTY -THIRD CONGRESS 772 (Government Printing Office) (1875).

163

10.D. Plessy v. Ferguson , 163 U.S. 537 (1896)

The 1896 ruling in Plessy v. Ferguson evidenced the Supreme Court’s struggle to come to grips with post-Civil War constitutional amendments and the difficulties of balancing emerging political and jurisprudential philosophies. This was an especially difficult time for the nation as it faced unprecedented change with increasing minority civil rights. From the time of the nation’s founding, there were tensions over the role of the appointed federal judicial branch vis a vis the elected legislative and executive branches, as the latter two are generally regarded as more representative of the popular will. Questions included: What power should the judiciary, which lacked enforcement powers, exert over legislatively enacted statutes and executive actions? What level of trust should be placed in government initiatives, versus those of individuals, private institutions and corporations, to meet the needs of the people? Should judges decide cases in a syllogistic fashion, with a near-mechanical application of the law to the facts, or should their reasoning reflect their own knowledge and/or societal concerns?

Justice Holmes famously said: “The life of the law has not been logic: it has been experience…. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.” 503 Although the first Chief Justice John Marshall in 1803 adroitly established the federal judiciary as the arbiter of whether laws, regulations, and government actions were

Constitutional in Marbury v. Madison ,504 challenges to the authority of federal courts continued.

This was seen repeatedly as citizens and the government at every level labored to properly

503 OLIVER WENDELL HOLMES JR., THE COMMON LAW 1 (Little, Brown & Co.) (1881). 504 Marbury v. Madison , 5 U.S. 137 (1803). This landmark decision established the judicial review pursuant to Article III of the U.S. Constitution. It highlighted the federal constitutional separation of powers among the legislative, executive, and judicial branches. Assessing the authority of each to act within its proper scope is a continuing matter. See, e.g ., William W. van Alstyne & John Marshall, A Critical Guide to Marbury v. Madison , 1 DUKE LAW JOURNAL 1 (1969).

164 understand the scope and effect of the 14 th amendment, and as federal courts were called upon to interpret this and other Reconstruction era enactments.505

The United States’ struggle with the status and rights of its non-white and mixed-race people has been difficult since its colonization, but (in some ways) became increasingly so after the

Civil War. The descendants of early African Americans and other persons of color were vulnerable to jurisprudential vicissitudes, and the Jim Crow practices adopted after more formal black codes were officially outlawed by amendments to the federal constitution. 506 Even those persons of mixed race whose complexions were sufficiently fair to pass for white were susceptible to discriminatory treatment. Among these was , a light-skinned man who was one-eighth black (an “octoroon”). He agreed to challenge racially-disparate regulations on behalf of the local “Comite des Citoyens” (Citizens’ Committee) to test the legality of an

1890 state law that required “equal, but separate, accommodations for white and colored” passengers on railway trains in Louisiana. 507 The calculated presence of Plessy in the “whites only” car of a New Orleans trolley triggered his expulsion from that conveyance. 508 This ultimately led to litigation that culminated in the U.S. Supreme Court’s decision in Plessy , which bestowed in lofty terms the nation’s highest judicial approval to the inferior treatment of Jim

505 See, e.g ., JEFFREY ROSEN , THE “M OST DEMOCRATIC BRANCH ”: HOW THE COURTS SERVE AMERICA (Oxford University Press, Inc.) (2006); Will Maslow & Joseph B. Robison, Civil Rights Legislation and the Fight for Equality, 1862-1952 , 20 THE UNIVERSITY OF CHICAGO LAW REVIEW 363 (1953); Alan J. Tomkins & Kevin Oursland, Social and Social Scientific Perspectives in Judicial Interpretations of the Constitution: A Historical View and an Overview , 15 LAW AND HUMAN BEHAVIOR 101 (1991); and Howard Gillman, Preferred Freedoms: The Progressive Expansion of State Power and the Rise of Modern Civil Liberties Jurisprudence , 47 POLITICAL RESEARCH QUARTERLY 623 (1994) . For an interesting analysis of the role of the courts and Connecticut jurist and American Bar Association co-founder Simeon E. Baldwin, see Charles C. Goetsch, The Future of Legal Formalism, 24 THE AMERICAN JOURNAL OF LEGAL HISTORY 221 (1980) . 506 Michael J. Klarman, The Plessy Era , 1998 THE SUPREME COURT REVIEW 304 (1998). 507 See Ex parte Plessy , 11 So. 948 (La. 1892). 508 Homer Plessy, like and the NAACP action in the Birmingham bus boycott over half a century later, acted on behalf of others similarly situated. See Mark Brenman, Transportation Inequality in the United States: A Historical Overview , 34 HUMAN RIGHTS 7 (2007).

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Crow norms under the guise that non-whites would be afforded “separate but equal” facilities, treatment, and opportunities. 509

The decision in Plessy not only denied blacks access to the same facilities as whites, but added insult by faulting the former for questioning the adverse effects of segregation: “We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with the badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” 510 It was not until 1954 that the U.S. Supreme Court in Brown overruled Plessy , and declared that “the doctrine of ‘separate but equal’ has no place.” 511

Although it was not the first time he disagreed with his colleagues, Justice Harlan’s dissent in

Plessy is his most remembered. 512 Harlan alone would have upheld the , which forbade discrimination in facilities including inns, theaters, and transportation, and allowed victims to bring suit against private individuals for damages. The justice expressed strong disagreement with the majority’s decision, which upheld the constitutionality of

Louisiana’s law to require “separate but equal” railcars:

The destinies of the two races in this country are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens. That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana. 513

509 Klarman, supra note 506. 510 Plessy , 163 U.S. at 544. 511 Brown , 347 U.S. at 494-95. 512 Harlan’s lengthy dissent in Civil Rights Cases , 109 U.S. at 26, considered another suit that dealt with discrimination in public accommodations including transportation. 513 Plessy , 163 U.S. at 560.

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Justice Harlan rejected the “guise” of the state’s argument that the railway ban treated whites and blacks equally, as “Everyone knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railway cars occupied by blacks, as it excludes colored people from coaches occupied by or assigned to white persons.” 514 He

speculated that, if racially segregated railcars did not violate the 14 th amendment, then why could the state not also require segregated use of public streets, or seating in courtrooms, legislative halls, and public assemblages convened for the political questions of the day? 515

Harlan famously concluded that, while he did not personally doubt the dominance, prestige, and achievement of the white race would continue for all time if it remained true to its

great heritage and held fast to the principles of constitutional liberty, he did not regard whites as

legally superior to blacks: “But in view of the Constitution, in the eye of the law, there is in this

country no superior, dominant ruling class of citizens. There is no caste here. Our Constitution

is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights,

all citizens are equal before the law.”516

514 Plessy , 163 U.S. at 557. 515 Plessy , 163 U.S. at 558. 516 Plessy , 163 U.S. at 559. Justice Harlan is praised as one of the great justices of the Court. He was the sole dissenter in Plessy , and in numerous other decisions advocated civil rights. As Goodwin Liu discussed, in addition to Plessy , these include Civil Rights Cases , 109 U.S. at 26, in which he was also the sole dissenter and would have upheld federal legislation banning discrimination in public accommodations, and his dissent in Berea College v. Kentucky , 211 U.S. 45, 58 (1908), would have found a state law unconstitutional that forbade integrated higher education. Harlan dissented in Lochner v. New York , 198 U.S. 45, 65 (1905), and would have given deference to state regulation of workers’ health and safety. In Hurtado v. California , 110 U.S. 516, 538 (1884), Harlan would have applied the 14 th amendment and the Bill of Rights to the states. However, Harlan’s legacy on race and civil rights is not altogether admirable. Goodwin Liu, The First Justice Harlan , 96 CALIFORNIA LAW REVIEW 1383, 1384–88 (2008). For example, Harlan’s dissent in Plessy expressed prejudice against the Chinese. He acknowledged that “involuntary servitude” included both “Mexican peonage” and the “Chinese trade.” Although Harlan called for “universal civil freedom” and proclaimed that “our Constitution is color-blind,” he spoke harshly in the same breath of the Chinese: “There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race.” Harlan observed that the railcar ordinance challenged by Homer Plessy would allow “a Chinaman [to] ride in the same passenger coach with white[s]….” At the same time, that law would criminalize the presence of blacks in a white railcar even though many of them risked their lives to preserve the Union. Plessy , 163 U.S. at 561. This decision was written in 1896, in the middle of a period when

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Like his father, Kentuckian John Marshall Harlan had become a lawyer and held various political offices. He disagreed with that state’s proposed secession, and was a Union Army officer during the Civil War. Harlan opposed the Emancipation Proclamation, and argued that

Lincoln had “perverted the character of the war.” Although he disagreed with the 13 th and 14 th amendments as diluting the rights of whites, the justice came to believe that the only way to achieve peace was to accept these laws and the rights of newly enfranchised blacks. 517 In her memoirs, Mrs. Malvina S. Harlan related that as the justice struggled to write his dissent in

Plessy , she brought out an inkstand that had belonged to the late Chief Justice Taney, the author of the Dred Scott decision. She said the evocative “memory of the historic part that Taney’s inkstand had played” had “act[ed] like magic in clarifying” Harlan’s thoughts. His dissent then flowed in “protect[ing] the recently emancipated slaves in the enjoyment of equal ‘civil rights.’” 518

10.E. Minority Reaction to The Court’s Majority Decisions: African Americans Struggle with the Judicial Process

As can be seen by their uneven successes in court, African Americans encountered difficulties dealing with the South’s legal system on every level. They were more harshly and disproportionately punished, subjected to vaguely-worded laws, denied access to effective legal counsel, not kept safe in police custody, denied the right to serve on juries,519 and treated disparately (even criminally) by judicial officers with questionable authority. Lynchings were

Chinese laborers were excluded from the United States. See Kitty Calavita, The Paradoxes of Race, Class, Identity, and “Passing”: Enforcing the Chinese Exclusion Acts, 1882-1910 , 25 LAW & SOCIAL INQUIRY 1 (2000). See also a more sympathetic view of Harlan as both a progressive and a man of his time in James W. Gordon, Was the First Justice Harlan Anti-Chinese? , 36 WESTERN NEW ENGLAND LAW REVIEW 287 (2014). 517 Liu , supra note 516. 518 Malvina Shanklin Harlan, Some Memories of a Long Life, 1854-1911 , 26 THE JOURNAL OF SUPREME COURT HISTORY , preface (2001). 519 The U.S. Supreme Court’s decisions in Giles v. Harris , 189 U.S. 475 and Giles v. Teasley , 193 U.S. 146 addressing black disenfranchisement, along with Bailey , 219 U.S. 219 (1919), which dealt with peonage, were among landmark cases before the Court that were anonymously funded by Booker T. Washington. See, e.g., Harlan, supra note 326 at 393–416.

168 meant to intimidate African Americans and unlawfully used in lieu of court-administered consequences. Whites dissatisfied with sentences handed down by courts to black defendants, or unwilling to wait on the legal system to dispense justice, sometimes took matters into their own hands.

Figure 31. Public spectacle of the lynching of a black man

Paul E. Baker observed in a 1934 article that blacks denied justice by state courts sought removal to federal courts for assistance. He contended that “Effective civil action is a powerful deterrent to mob violence,” and suggested the following remedies:

The administration of justice to the Negro has been the focal point of considerable violence and bloodshed in this country, and two reforms are needed before the Negro can hope for more justice at the hands of local juries and judges: first, the power to authorize change of venue must be taken from local judges so that the trials of accused Negroes can be removed from centers of inflamed prejudice; and, second, the right of Negroes to serve as jurors and

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to sit as judges must be established in practice so that Negro defendants may be tried and judged by their own peers. 520

11. Racialized Violence: The Path to Moore v. Dempsey , 261 U.S. 86 (1923) and the Tragedy of the Elaine Race Riot of 1919

Excerpted from Dry September A rutted lane turned at right angles. Dust hung above it too, and above all the land. The dark bulk of the ice plant, where the Negro Mayes was night watchman, rose against the sky. “Better stop here, hadn’t we”" the soldier said. McLendon did not reply. He hurled the car up and slammed to a stop, the headlights glaring on the blank wall. [Over the protests of the town barber, the brutish McLendon led the party to lynch Mayes for the alleged rape of a white woman.] Below them cast the wan hemorrhage of the moon increased. It heaved above the ridge, silvering the air, the dust, so that they seemed to breathe, live, in a bowl of molten lead. There was no sound of nightbird nor insect, no sound save their breathing and a faint ticking of contracting metal about the cars…. But they didn't move until vague noises began to grow out of the darkness ahead; then they got out and waited tensely in the breathless dark….They ran in a stumbling clump, as though they were fleeing something. “Kill him, kill the son….” 521

The 1923 U.S. Supreme Court’s ruling in Moore v. Dempsey 522 has been heralded as “the progenitor of modern American criminal procedure.” 523 The case arose from a horrible clash between African American farmers who sought strength in numbers by unionizing to protest mistreatment by white landowners.524

The days-long confrontation happened at the end of the “” of 1919 525 near

Elaine, Arkansas, and left the region engulfed in turmoil and bitterness. Even in that year, the

520 Paul E. Baker, Negro-White Adjustment in America , 3 THE JOURNAL OF NEGRO EDUCATION 194, 198 (1934). 521 This passage excerpts famed Southern author and Mississippian William Faulkner’s short story “Dry September.” This emotionally-fraught story is set several decades after the Civil War. Faulkner told how violent former Confederate soldier McLendon led the lynching of African American Willie Mayes to avenge the alleged rape of a white woman, which was used a quintessential justification for white on black crime. WILLIAM FAULKNER , COLLECTED WORKS OF WILLIAM FAULKNER 183 (Random House, Inc.) (1950). See also Edmond L. Volpe, “Dry September”: Metaphor for Despair , 16 COLLEGE LITERATURE 60 (1989). 522 Moore , 261 U.S. 86. 523 Michael J. Klarman, Scottsboro , 93 MARQUETTE LAW REVIEW 379 (2009). 524 Tolnay and Beck recounted a number of social factors that motivated blacks to leave the South. There was a “bleak economic picture” following the Civil War that was exacerbated by natural devastation, especially of the cotton crop, by pests such as the . In addition to the use of racially motivated violence against blacks, African Americans faced “widespread ‘Jim Crow’ measures, political disenfranchisement [and] poor educational systems” that simulated chattel slavery. The “labor vacuum above the Mason-Dixon line was filled by an economically depressed and socially oppressed southern black population.” Stewart E. Tolnay & E.M. Beck, Black Flight: Lethal Violence and the Great Migration, 1900-1930 , 14 SOCIAL SCIENCE HISTORY 347 (1990). 525 The summer of 1919 was a time of social and political upheaval that followed World War I and Russia’s Bolshevik Revolution. Riots broke out across the United States, which many people attributed to racial tensions exacerbated by the Communist Party. See, e.g , Mark Ellis, J. Edgar Hoover and the “Red Summer” of 1919 , 28 JOURNAL OF AMERICAN STUDIES 39 (1994).

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New South continued to falter in fully breaking from dependence on the chattel slavery that had supported its now-suffering agrarian economy. 526 Common problems included the use of debt enslavement to restrain black laborers, brutality as social control, and depriving minorities of their civil rights.

Moore was not, of course, the first suit dealing with racialized violence, and it came about after repeated abuses had been sanctioned by society and tolerated by the law 527 ; see, e.g .,

§ 10.C discussing the Colfax massacre underlying Cruikshank . Lynchings and

“whitecapping” 528 were among favored forms of terrorizing blacks who pursued the same

American dream as Abraham Lincoln, “the right to rise” 529 to achieve a better life. Numerous acts of violence and intimidation were inflicted on Southern blacks in the period following emancipation, and continued at the time of the 1919 Elaine riot 530 ; the courts could not

necessarily be counted on to bring about order.

526 There have been several periods of significant migration of African Americans from the South. Some were associated with emancipation and the desire to go north seeking greater social acceptance than could be found in a Jim Crow society. Others were motivated by declining labor opportunities due to poor regional and local economies. The threat of harm and violence, especially lynchings, prompted others to leave their communities. The “Great Migration” of Southern blacks experienced a surge during and after World War I, and continued through World War II. While many formerly were sharecroppers, others were more educated and skilled workers from urbanized areas. Stewart E. Tolnay, The Great Migration and Changes in the Northern Black Family, 1940 to 1990 , 75 SOCIAL FORCES 1213, 1214-16 (1997). It was not until the 1930s that the invention of the mechanized cotton picker would eliminate the need for as many workers. That device had a profound effect upon labor in the vast cotton fields, and contributed to the increased migration of African Americans out of the South. See NICHOLAS LEMANN, THE PROMISED LAND : THE GREAT BLACK MIGRATION AND HOW IT CHANGED AMERICA 1 (Alfred A. Knopf) (1991). 527 See § 10.C discussing Cruikshank , 92 U.S. 542 and violence associated with a Reconstruction-era election in Colfax, Louisiana. 528 “Whitecapping” is a term used to describe acts of violence intended to intimidate and harm, and was generally directed against black farmers and workers. It is derived from the white caps worn by such groups as the Ku Klux Klan. See, e.g ., William F. Holmes, Whitecapping: Agrarian Violence in Mississippi, 1902-1906 , 35 J. SOUTH . HIST . 165 (1969) and Woodward, supra note 4 at 87. See also figure (30) herein. In addition to “whitecapper,” another term used in the vernacular for those who use violence and intimidation against African Americans was “bald knobber.” William F. Holmes, The Ku Klux Klan in Illinois, 1867-1875 , 78 ILLINOIS HISTORICAL JOURNAL 17, 44 (1985). 529 GABOR S. BORITT , LINCOLN AND THE ECONOMICS OF THE AMERICAN DREAM (Memphis State University Press) (1994). This phrase is also used by Stampp in his seminal 1956 work; see supra note 176 at 32-33. 530 See, e.g ., Clark, supra note 88.

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For example, in 1899 in Newnan, Georgia, less than 100 miles from Macon, a black man

named Sam Hose was tortured and killed by a mob. He had been arrested for murdering his

employer (which he may have done), and raping and assaulting the employer’s wife and injuring

their infant child (which he almost surely had not). Before Hose could be taken to trial, he was

seized at gunpoint by an angry throng of 2,000 whites. He was flayed and his flesh sold as

souvenirs; then, he was tied to a tree, doused with kerosene, and set afire as the crowd watched

him die. 531 This was not an isolated incident, as Southern blacks were susceptible to “deplorable and degrading punishment” 532 imposed under legally questionable circumstances.

The link between peonage and terroristic acts is seen in the facts underlying Moore , as well as Morris 533 and Hodges .534 Masters and creditors, as well as unskilled white workers unwilling

to accept lower wages who felt displaced by black laborers, used violence to control African

American laborers.

11.A. Violence Erupts: Riots in the Postbellum South

There was at least one murder in Greenville, Mississippi, during the 1927 flood, when a

young white policeman shot a black man in the refugee camp; there was also the reported killing

of another on his front porch for refusing to join the camp or work. Other brutality used to keep

531 The horrifying practice of making souvenirs of body parts of lynching victims gained popularity in the late 19 th and early 20 th centuries. For example, items sold included the burnt flesh of Richard Coleman of Maysville, Kentucky. He was killed in front of “thousands of men and hundreds of women and children,” the last of whom “carried grass and kindling wood and kept the fire burning during all the afternoon.” The toes of George Ward, who was burned before over 4,000 spectators in Terre Haute, Indiana, were also peddled. Harvey Young, The Black Body as Souvenir in American Lynching , 57 THEATRE JOURNAL 639 (2005). Young cited an article from the Springfield Republican of Massachusetts, which told how Sam Hose’s liver was auctioned after he was tortured: “Before the torch was applied to the pyre, the negro was deprived of his ears, fingers and genital parts of his body. He pleaded pitifully for his life while the mutilation was going on, but stood the ordeal of fire with surprising fortitude. Before the body was cool, it was cut to pieces, the bones were crushed into small bits, and even the tree upon which the wretch met his fate was torn up and disposed of as ‘souvenirs.’ The negro’s heart was cut into several pieces, as was also his liver. Those unable to obtain ghastly relics direct paid their more fortunate possessors extravagant sums for them. Small pieces of bones went for 25 cents, and a bit of liver crisply cooked sold for 10 cents.” Young, id . at 639 and n.1. 532 See, e.g ., Jamison v. Wimbish , 130 F. 351, overturned, Wimbish v. Jamison , 199 U.S. 599. 533 Morris , 125 F. 322. 534 Hodges , 203 U.S. 1; see § 11.C.

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African Americans in line included threats, beatings, and sexual assaults. This was a continuation of the use of force to control or terrorize minorities by paramilitary organizations, less formal associations, and individuals. Such things were well known in the Mississippi Valley long before the 1927 flood. 535

The former Confederate states eventually met the conditions for regaining Congressional representation, but this did not mean that their leaders or citizens necessarily gave more than lip service to the mandatory concessions. Many were unreconciled to abolition and did not view

African Americans as their equals. They succeeded in intimidating blacks and those whites sympathetic to them, and courts were often unable or unwilling to combat their tactics.536

William A. Sinclair wrote from the perspective of a former slave about the demoralized and angry South, and how blacks were castigated for its humiliating defeat. He felt that the forcibly-reorganized state governments “did not have the effect of softening the animosities or allaying the bitter resentment and hostility of the white people [but] greatly aggravated them.”

Sinclair said: “The South had now suffered two defeats, and in each the negro was an important factor. In the war, the negro as a soldier was potent. In reconstruction, the negro was indispensable.” He maintained: “In suffering and blood, the white people of the South have exacted a staggering price from the colored people for their loyalty and service to the nation.

And the end is not yet.” The freedman warned of danger from paramilitary organizations

535 There were a number of white, paramilitary organizations that emerged or took on added importance following the Civil War. These included the KKK, the Order of the White Camelia, Knights of the Golden Circle, and others. See Dauphine, supra note 494. A useful history is found in ALLEN W. TRELEASE , WHITE TERROR : THE KU KLUX KLAN CONSPIRACY AND SOUTHERN RECONSTRUCTION (Harper & Row) (1971). See also PETE DANIEL , STANDING AT THE CROSSROADS : SOUTHERN LIFE SINCE 1900 (1986); Foner, supra note 264 at 435-36; and Carole T. Emberton,THE POLITICS OF PROTECTION : VIOLENCE AND THE POLITICAL CULTURE OF RECONSTRUCTION 120-84 (PhD diss., Northwestern University, 2006). Accessed on April 15, 2017 at http://search.proquest.com.unr.idm.oclc.org/pqdtglobal/docview/305294084/CCF2AFDF641A4139PQ/1?accountid =452. 536 There were repeated failures of Reconstruction-era courts in Southern states to effectively tame white supremacists. See, e.g ., § 11.

173 established by former members of the Confederate army, which “was practically reorganized into a secret, oath-bound society – the Ku Klux Klan – covering all the Southern states.” These lawless marauders “made onslaughts on the governments established, and war on their supporters. They killed and murdered, by day and by night, loyalists, pacified Southerners, and negroes without discrimination and without mercy.” 537

The KKK was founded in 1866 in Pulaski, County, Tennessee, by former Confederate

General in response to Reconstruction. Members wore dramatic costumes and used anonymous threats and violence to combat Reconstruction, especially the participation of African Americans in government and social affairs.538 Sinclair related remarks by Reverdy Johnson, a former U.S. Attorney General and U.S. Senator from Maryland. He was a highly respected lawyer, and had been counsel for the slave owner in Dred Scott . In 1871,

Johnson represented KKK members in a South Carolina murder and intimidation trial, but in an extraordinary closing cast his clients to the mercy of the court: “I have listened with unmixed horror to some of the testimony which has been brought before you. The outrages proved are shocking to humanity; they admit of neither excuse nor justification; they violate every obligation which law and nature impose upon man; they show that the parties engaged were brutes, insensible to the obligations of humanity and religion.” 539

537 WILLIAM A. SINCLAIR , THE AFTERMATH OF SLAVERY : A STUDY OF THE CONDITION AND ENVIRONMENT OF THE AMERICAN NEGRO 93–94 (Small, Maynard & Co.) (1905). According to The Advance of June 22, 1905, which praised the author and his book, Sinclair “is a colored man, born in slavery in Georgetown, S.C.” who served for 16 years as the “financial secretary of Howard University. He is a preacher, writer and lecturer of high rank.” 538 Thomas B. Alexander, Kukluxism In Tennessee, 1865-1869 , 8 TENNESSEE HISTORICAL QUARTERLY 195 (1949). “Terrorizing politics” were used to advance white supremacy in Southern society. “Many whites perceived themselves as having been suddenly wrenched from their rightful supremacy and cruelly subjugated to an innately inferior people.” Cardyn , supra note 409 at 690-91. The KKK went through several iterations. After its formation in 1868, it went through a resurgence (the “second” Klan) from 1915-1929 then began a new period in 1954. Michael Lewis & Jacqueline Serbu, Kommemmorating the Ku Klux Klan , 40 THE SOCIOLOGICAL QUARTERLY 139, 141 (1999). 539 SINCLAIR , supra note 537 at 95. Reverdy Johnson’s statement is taken from United States v. Mitchell , 26 Fed. 1283, 1285 (D. S.C. 1871). He defended Robert Hayes Mitchell, who was one of approximately 40-60 KKK members who were indicted for the murder, whipping, and intimidation of black voters in York County, South

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Using force against freedmen was not confined to acts by private (and usually secretive) organizations. Within a three-month period in the summer of 1866, two of the South’s most important cities, Memphis, Tennessee, and New Orleans, Louisiana, suffered severe rioting that was racially motivated; see § 10.C. The conflict in Memphis on May 1-3, 1866,540 was so serious that a special Congressional delegation was in the city by May 22 to investigate. 541 The report of the “Select Committee in the Memphis Riots” 542 said that the “outbreak of the disturbance resulting from collision between some policemen and discharged colored soldiers was seized upon as a pretext for an organized and bloody massacre of the colored people of

Memphis, regardless of age, sex, or condition, inspired by the teachings of the press, and led on by sworn officers of the law composing the city government, and others.” The armed confrontation was bitterly fought by both sides, but the committee singled out the acts of terror against black residents as the worst. “The whole evidence discloses the killing of men, women, and children – the innocent, unarmed, and defenceless pleading for their lives and crying for mercy; the wounding, beating, and maltreating of a still greater number; burning, pillaging, and robbing; the consuming of dead bodies in the flames, the burning of dwellings, the attempts to burn up whole families in their houses, and the brutal and revolting ravishings of defenceless and terror-stricken women.” 543

Carolina. Mitchell was accused of murdering “one James Williams, a colored Republican.” Mitchell was convicted on one count, sentenced to 18 months’ imprisonment, and fined $100. 540 Altina L. Waller, Community, Class and Race in the Memphis Riot of 1866 , 81 JOURNAL OF SOCIAL HISTORY 233 (1984). 541 Bobby L. Lovett, Memphis Riots: White Reaction to Blacks in Memphis, May 1865-July 1866 , 38 TENNESSEE HISTORICAL MAGAZINE 9 (1866). 542 THE REPORTS OF THE COMMITTEES OF THE HOUSE OF REPRESENTATIVES MADE FIRST SESSION THIRTY -NINTH CONGRESS , 1865-1866, VOLUME III, REPORT NO. 101 (1865) (Committee Report) . An interesting article by economic historians uses this report in analyzing situations such as the Memphis riot in which police, judges, and other officials failed to properly carry out their duties due to contrary personal beliefs. Art Carden & Christopher J. Coyne, The Political Ecomony of the Reconstruction Era’s Race Riots , 157 PUBLIC CHOICE 57 (2013). 543 Committee Report, supra note 542 at 5.

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The Congressional committee condemned those Memphis police who joined the white civilian posse. They were described as mostly Irishmen ill-disposed toward freedmen and appeared to act under color of authority. 544 The police “drove the colored men out of their shanties [and] if they started to run would shoot them down indiscriminately…. No language of denunciation is too severe to characterize the conduct of a high officer of the law in thus lending himself to become a leader of a bloodthirsty mob in the work of the massacre, incendiarism, and robbery.” 545

The white mob thronged the Memphis Post , “a loyal paper [that] defends the government, and is edited and published exclusively by men who have served in the Union army and risked their lives in defence of the government.” The report also cited the failure of the courts, in that

“it was impossible for a colored man in Memphis to get justice against a white man.” 546

The Congressional report faulted those “disloyal” to the Union who remained faithful to the sentiments that led to secession. It recounted the “dreadful massacre at Fort Pillow,” which is located about 40 miles north of Memphis. In 1864, nearly 200 primarily black Union troops there attempted to surrender to forces commanded by Nathan Bedford Forrest but were brutally murdered.547

In July 1866, two months after the strife in Memphis, a second major riot took place downriver in New Orleans, while the most severe disturbance took place in April 1873 in Colfax,

Louisiana; these are discussed in § 10.D in conjunction with Cruikshank . These racially- motivated battles were harbingers of the Elaine race riot of 1919, which is analyzed in § 11.D.

544 Id. at 8. 545 Id. at 12. 546 Id . at 22. 547 Id . at 34.

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11.B. Lynchings and Whitecapping as Hate Crimes

Among the most abhorrent acts of violence is lynching, which has been called the

“archetypal ‘hate’ crime.” 548 A “lynching era” took place between 1880 and 1930, as

Reconstruction ended and the of 1873 began. The deaths of at least 2,462

African American men, women, and children are attributed to lynching during those decades, primarily at the hands of white mobs or small groups. 549 Interestingly, statistical analyses show that the incidence of lynching in these states tended to decline as cotton prices dropped.

Although many of the lynchings purportedly were in retribution for rapes and molestations of white females by black males, this served as pretext for racial violence. Modern scholars point to a complex set of motivations, and the understanding that lynching and other acts of violence resulted from the fears of white Southerners that emancipated blacks threatened the continuance of white dominance.550 Their apprehension was shown in an Alabama newspaper account from

October 1901, which cited 16 reasons to ratify a revised state constitution. Reason #11 was to

ensure that blacks would be denied the right to vote, and #15 unequivocally proclaimed: “The

white man will rule for all times in Alabama.” 551

548 This work generally uses the definition articulated by Michael J. Pfeifer, The Origins of Postbellum Lynching: Collective Violence in Reconstruction Louisiana , 50 LOUISIANA HISTORY : THE JOURNAL OF THE LOUISIANA HISTORICAL ASSOCIATION 189 (2009). Pfeifer “define[s] lynching as experts on Southern mob violence did at Tuskegee, Alabama in 1940: ‘there must be legal evidence that a person has been killed, and that he met his death illegally at the hands of a group acting under the pretext of service to justice, race or tradition.’” However, that work acknowledged that acts of fewer than three persons could also qualify as lynching. Id ., n.1. 549 Lu-In Wang, The Complexitites of “Hate,” 60 OHIO STATE LAW JOURNAL 799, 833–34 (1999). 550 Id . at 836-43. Thomas Monroe Campbell was also a confidential informant for the Southern Commission on the Study of Lynching (SCSL), and assisted sociologists Arthur F. Raper and Walter S. Chivers in their investigations. This organization was founded by a group of prominent white Southerners in response to a surge in lynchings “to study and expose [its] underlying socioeconomic causes … in an effort to stop the racial violence.” Tuskegee President R.R. Moton was a member of the SCSL. Chivers wrote to Campbell to thank him for the “valuable documents” he had provided about the lynching of four African Americans on July 4, 1930 at Emelle, Alabama. TMC Papers. See ORGANIZING BLACK AMERICA : AN ENCYCLOPEDIA OF AFRICAN AMERICAN ASSOCIATIONS 546 (N. Mjagkij ed., Garland) (2000) for information on the Emelle incident. Raper wrote about the lynchings, and analyzed the “Characteristics of the Mob Mind.” He described lynchers as accepting negative stereotypes of African Americans. The lynchers presumed both the victim’s guilt, and their own right to serve as surrogate judge, jury, and executioner. ARTHUR F. RAPER , THE TRAGEDY OF LYNCHING 8–10 (University of North Carolina Press) (1933). 551 Clark, supra note 88, n.48 citing the “Demopolis (Ala.) Marengo Democrat , October 18, 1901.”

177

Tuskegee University and the NAACP tracked the number and locations of lynchings, and studied the surrounding circumstances. The NAACP observed that, for 1889-1918, 2,868 of the

3,224 lynching victims (89%) were black. It counted 214 lynchings in Arkansas between 1889 and 1918, and Tuskegee related 284 in that state between 1883 and 1959. Arkansas ranked sixth in the nation for reported instances of similar violence when lynching was at its zenith. This dubious honor ranks below Mississippi (578), Georgia (530), Texas (493), Louisiana (391), and

Alabama (347).552 Although lynchings eventually declined, there were other periods of extreme violence, notably in Arkansas in 1919, a state which the black press dubbed “The American

Congo.” 553

Sensationalist newspapers exacerbated tensions by swelling public opinion against blacks at the time of the Elaine race riot. 554 Yet, as posited by Dr. Thomas D. Clark, the rural Southern press was also influential in reducing the incidence of lynchings. Editorial policies tended to go in one of two directions; some papers decried the practice, “condemn[ing] lynching as a barbaric miscarriage of justice.” Others were less censorious, “pretend[ing] it to be certain punishment for capital crimes so long as courts and lawyers permitted delay, flimsy jailhouses invited jail breaks, and conscienceless governors granted pardons as freely as they did invitations to receptions.” While country editors cannot claim sole credit for the decline in lynchings, “their attitude[s were] extremely important in conditioning a frontier southern mind to allow the law to take its course.” 555

Beginning in the 1890s, groups of whitecappers, also known as “nightriders” and “bald knobbers,” targeted cotton farmers in Arkansas, Mississippi, Tennessee, and Missouri. They

552 Todd E. Lewis, Mob Justice in the “American Congo”: "Judge Lynch" in Arkansas during the Decade after World War I , 52 THE ARKANSAS HISTORICAL QUARTERLY 156 (1993). 553 Id . at 156-61. 554 O.A. Rogers Jr., The Elaine Race Riots of 1919 , 19 THE ARKANSAS HISTORICAL QUARTERLY 142 (1960). 555 Clark, supra note 88 at n.42.

178 shared the goals of racist organizations that had gained a strong foothold in the rural South.

They functioned not unlike the more formally structured KKK, which also sought to terrorize and rout non-whites, Jews, and non-protestants. They were particularly active against black farmers and the white merchants and landlords who conducted business with them.556

Whitecappers took an “oath” that they would “assist in every way directed by the organization to compel negroes to vacate any and all property owned by merchants, and to assist to put out of the way any and all obnoxious negroes within the jurisdiction of this club….” Whitecappers faced death for violating the oath, and agreed that as jury members they would never vote to convict a fellow club member.557

In 1902, the Arkansas Farmers Union was formed to manipulate the cotton market. Some of that state’s poorer and landless white farmers reacted with outrage, and banded together as masked and armed nightriders to frighten and harm. The frequency and severity of their attacks increased with time, including physical assaults. Warehouses, barns, fields, and livestock were burned, and buyers were coerced into paying higher prices for cotton and other commodities.

African Americans, who were paid lower wages than their white counterparts, were targeted in an effort to make them leave the area so their jobs would go to whites.558

The intimidation movement was also quite active in Mississippi in 1902, when Amite,

Franklin, and Lincoln Counties faced severe labor shortages. 559 When victims failed to heed warnings posted by night-riding bands, the whitecappers’ campaign escalated from a display of

556 Miss. Code Ann. § 97-3-87 (1972). THREATS AND INTIMIDATION ; WHITECAPPING . “Any person or persons who shall, by placards, or other writing, or verbally, attempt by threats, direct or implied, of injury to the person or property of another, to intimidate such other person into an abandonment or change of home or employment, shall, upon conviction, be fined not exceeding five hundred dollars, or imprisoned in the county jail not exceeding six months, or in the penitentiary not exceeding five years, as the court, in its discretion may determine.” Sources: Codes, 1906, Sec. 1398; Hemingway’s 1917, Sec. 1141; 1930, Sec. 1173; 1942, Sec. 2416. 557 Holmes, supra note 528 at 168. 558 THE ENCYCLOPEDIA OF ARKANSAS HISTORY & CULTURE , “Night Riders.” Accessed on March 10, 2017 at http://www.encyclopedia ofarkansas.net/encyclopedia/entry-detail.as. 559 Holmes, supra note 528 at 167-68.

179 menace to arson, shooting into homes, and beatings. Alarmed whites approached Mississippi

Governor Andrew H. Longino for assistance, and went to Judge Henry Niles in the hope that the federal government would intervene.560 Although there was some relief, brutalities continued for decades. Lawlessness grew as embittered Southerners, Northern liberals, and the national government increasingly lost interest in enforcing civil rights for African Americans.561

The problems in these Mississippi counties were not isolated; whitecappers and other raiders were seldom apprehended or prosecuted, and the state became known as a haven for white supremacists who used barbarous means. 562 This was seen during the 1903 gubernatorial campaign of James K. Vardaman, who encouraged white paramilitary groups. An ardent racist,

Vardaman declared in an April 1907 speech in Poplarville, Mississippi: “If it is necessary every

Negro in the state will be lynched; it will be done to maintain white supremacy.” 563

11.C. Violence Against Workers: United States v. Morris , 125 F. 322 (E.D. Ark. 1903) and Hodges v. United States , 203 U.S. 1 (1906)

No sooner were Reconstruction-era federal amendments and statutes adopted than both the reach of these, and the willingness of the federal government to enforce them, were challenged. To what degree did these protect citizens (particularly African Americans) against adverse action and by whom? What circumstances constituted “involuntary servitude”? What were “badges and incidents” of slavery?

The U.S. Supreme Court approached these questions conservatively. In Cruikshank 564

(see § 10.C), it narrowly construed the 14 th amendment to only prohibit abridgement of rights by

560 Holmes, supra note 528 at 169-70. 561 Holmes, supra note 528 at 165. 562 Holmes, supra note 528 at 170-85. 563 Baker, supra note 63 at 246. 564 Cruikshank , 92 U.S. 542.

180 the states. The Court in Civil Rights Cases 565 declared that the Civil Rights Act of 1875 was unconstitutional, and limited the scope of the 13 th amendment to “merely” abolishing slavery and conservatively viewed acts of involuntary servitude. It observed that “there must be some stage in the progress of [a former slave’s] elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the law.” Further, “Mere discriminations on account of race or color were not regarded as badges of slavery.” 566

Two Arkansas cases expanded President Roosevelt’s campaign against peonage to include whitecapping as a labor-related civil rights violation. These were Morris ,567 which arose in Cross County, and United States v. Maples ,568 from adjoining Poinsett County. U.S. Attorney

William G. Whipple requested the investigation, and warned USDOJ that an “inferior class of white men” who regarded “themselves unable to compete with colored tenants [had] combined to drive them out of the country.” 569

In Morris ,570 11 white men accused of intimidating a group of sharecroppers were tried in

Helena, Arkansas, 16 years before the trials there that led to Moore . The Morris defendants were charged under the Civil Rights Act of 1866 (as amended by the Force Act of 1870) with conspiracy “to injure, oppress, and intimidate certain citizens of the United States, of African descent” due to “their being negroes.” 571 Judge Jacob Trieber 572 overruled the defendants’

565 Civil Rights Cases , 109 U.S. 3. 566 Civil Rights Cases , 109 U.S. at 25. 567 Morris , 125 F. 322. 568 United States v. Maples , overruled sub nom. United States v. Hodges , 230 U.S. 1 (1906). 569 Pamela S. Karlan, Contracting the Thirteenth Amendment: Hodges v. United States , 85 BOSTON UNIVERSITY LAW REVIEW 783, 785 (2005). 570 Morris , 125 F. 322. 571 Morris , 125 F. 322. 572 German-born Jacob Trieber was the first Jew to be appointed to a Federal District Court. Jeffrey B. Morris, The American Jewish Judge: An Appraisal on the Occasion of the Bicentenntial , 39 JEWISH SOCIAL STUDIES 195, 204 (1976).

181 demurrer, which challenged the constitutionality of the acts. 573 He found authority for the controverted statutes in the 13 th amendment, and declared: “The emancipation which it wrought was an act of great national grace.”574 Trieber decried legislation by the former slave states that

“was enacted in relation to the negroes which practically established a system of peonage but little removed from that of slavery.”575

The judge said that it was indisputable that “the rights to lease lands and to accept employment as a laborer for hire are fundamental rights, inherent in every free citizen.” The ruling found that their actions “to prevent negro citizens from exercising these rights because they are negroes is a conspiracy to deprive them of a privilege secured to them by the

Constitution and laws of the United States.” 576

Fifteen white men were charged in Maples 577 following a confrontation at a sawmill in

White Hall, Jefferson County, Arkansas, in which they coerced African Americans to break their labor contracts. The black workers were menaced by “said defendants being then and there armed with deadly weapons, threatened and intimidating the said workmen there employed, with the purpose of compelling them, by violence and threats and otherwise, to remove from said place of business [and] to stop said work.” The prosecution asserted that the workmen were unlawfully made to “abandon such place and cease the free enjoyment of all advantages under said contracts” because “they were colored men and citizens of African descent.” 578

Whipple was unable to obtain a conviction in Morris after USDOJ refused to provide funds to induce one of the defendants to turn state’s witness. Lacking key testimony, he was

573 Oman, supra note 433 at 149. 574 Morris , 125 F. at 328. 575 Morris , 125 F. at 326-27. 576 Morris , 125 F. at 330-31. 577 Hodges , 203 U.S. 1. 578 Hodges, 203 U.S. at 3-4.

182 unable to persuade the jury that the right men were prosecuted for the crimes. Whipple had greater success in Maples , and those defendants’ appeal to the U.S. Supreme Court 579 was captioned as Hodges v. United States .580

Justice Brewer wrote for the majority in Hodges , which found that the federal civil rights statutes were unconstitutional. The Court overturned the whitecappers’ convictions using jurisprudence consistent with Cruikshank and other decisions that narrowly construed the

Reconstruction-era federal amendments and statutes. The opinion carefully refrained from seeming to expand federal power over state and individual actions, and denied that the 13 th amendment afforded African Americans a remedy against whitecappers. The Court stated that although this amendment “operates only to protect the African race,” the record did not reflect that the victims “had ever been themselves slaves, or were the descendants of slaves.” Brewer wrote that the 13 th amendment “is the denunciation of a condition, and not a declaration in favor of a particular people.” The decision denied that federal intervention was available to redress

“every badge of slavery.” It held that the amended constitution stopped short of authorizing the federal government to fully safeguard African Americans. Rather, Congress had determined that their interests were best served by “taking their chances with other citizens in the states where they should make their homes.” 581

Justice Harlan strongly dissented in Hodges . He emphasized that the 13 th amendment, which “destroyed slavery and all its incidents and badges, and established freedom,” conferred upon all persons within the jurisdiction of the United States the right “to enjoy all the privileges

579 Karlan, supra note 569 at 789-90. 580 Hodges , 203 U.S. at 18. 581 Hodges , 203 U.S. at 19-20.

183 that inhere in freedom.” 582 Harlan asserted that the civil rights laws struck down in that decision by the Court were, in fact, reasonable exercises of Congressional power. 583

In 1968, the U.S. Supreme Court overturned Hodges in Jones v. Mayer,584 a case that dealt with discriminatory housing practices. In overruling Hodges , the Court said: “The conclusion of the majority in Hodges rested upon a concept of congressional power under the

Thirteenth Amendment [that is] irreconcilable with the position taken by every member of this

Court in the Civil Rights Cases and incompatible with the history and purpose of the Amendment itself. Insofar as Hodges is inconsistent with our holding today, it is hereby overruled.” The latter-day decision made special note of Morris . It remarked that, to date, that was “[t]he only

[decision in which a] federal court (other than the Court of Appeals in [ Jones ]) that has ever squarely confronted” the question of “whether purely private discrimination, unaided by any action on the part of government, would violate [42 U.S.C. § 1982 585 ] if its effect were to deny a citizen the right to rent or buy property solely because of his race or color.”586

11.D. Moore v. Dempsey and Frank v. Mangum : Due Process Implications of Mob-Dominated Trials

Moore v. Dempsey 587 and Frank v. Mangum 588 were decided by the U.S. Supreme Court within an eight-year period. Both dealt with post-conviction petitions for a writ of habeas corpus. These important decisions involved questions of whether those defendants were afforded due process in state trials, and implications of mob-dominated proceedings. The Court

582 Hodges , 203 U.S. at 27. 583 Hodges , 203 U.S. at 38. 584 Jones v. Mayer , 392 U.S. 409, n.78 (1968). 585 The Civil Rights Act of 1866, first passed as “Act of April 9, 1866, ch. 31, § 1, 14 Stat. 27 (1866)” is currently found at 42 U.S.C. § 1982 (1976). See Geri J. Yonover, Dead-End Street: Discrimination, the Thirteenth Amendment, and Section 1982 , 58 CHICAGO -KENT LAW REVIEW 873 (1982). 586 Jones, 392 U.S. 409. 587 Moore , 261 U.S. 86. 588 Frank v. Mangum , 237 U.S. 309 (1915).

184 came to different outcomes in these cases, despite the similarity of issues and agreement that there was mob domination in the trials underlying each. The Court’s respective reasoning in

Frank and Moore reflected changing judicial perspectives. Although Frank did not involve peonage of persons of African American descent, it captured the Court’s contemporaneous views on the relationship of federal and state proceedings, which differed by the time Moore was heard.

Frank may best be remembered for Justice Holmes’ well-known warning about the shortcomings of “justice” handed down by a “mob intent on death.” , a Jew from New York, was also regarded with suspicion as an outsider to traditional Southern society. 589 Moore is treated here in considerably more detail than Frank , as the former is highly relevant to the treatment of blacks in the Mississippi delta and the 1927 flood, whereas the latter decision reflected the

Court’s dissimilar handling of some related issues.

11.D.1. Frank v. Mangum , 237 U.S. 309 (1915)

Like its later ruling in Moore , the U.S. Supreme Court’s decision Frank v. Mangum examined the effect of a mob-dominated trial spurred on by speculative journalism but the results were wholly different. Factory superintendent Leo Frank, who had recently moved to Atlanta, was convicted of murdering 13-year old worker Mary Phagan. His trial was the most sensational

589 The dissertation of historian Stephen A. Brown focused on the cultural conflict between Frank and early 20 th century Georgia. He posited two reasons for Frank’s lynching by a mob that called itself the “Knights of Mary Phagan.” The first is the belief of mob members that, as a Jew from New York, “it was likely that [Frank] was a sexual predator who craved trysts with gentile girls.” They thought that the defendant had “invisible ties to monied interests that manipulated individuals and interests like judges, juries, newspapers and the governor who eventually commuted [Frank’s] sentence.” Second, Frank’s middle-class core values of personal and professional ambition “meshed poorly with those of the dominant culture of the South – a culture predicated on honor.” Brown suggested that Frank was lynched in retaliation for impugning that honor. Stephen A. Brown, WHEN MIDDLE -CLASS AMBITION MET SOUTHERN HONOR : A CULTURAL HISTORY OF THE LEO FRANK CASE vii. (PhD diss., University of Illinois-Chicago, 1999). Accessed on April 15, 2017 at https://www.leofrank.info/enright/stephen-brown-when- middle-class-ambition-met-southern-honor-a-cultural-history-of-the-leo-frank-case-august-1999.pdf .

185 in Georgia history, and as one journalist reported “it ‘fanned into a new flame for the moment the old animosities of the North and South of 50 years ago.’” 590

Denied redress by state courts, Leo Frank petitioned the U.S. Supreme Court for a writ of habeas corpus. He argued that the mob-dominated trial, which was accompanied by inflammatory and prejudicial press, violated his 14th amendment guarantee of due process.

Frank claimed that the threats of harm he received were so severe that these kept him from the courtroom. He alleged that this denied him “a fair and impartial trial, because of the alleged disorder in and about the court room, including manifestations of public sentiment hostile to the defendant sufficient to influence the jury.” 591

The Court rejected Frank’s petition. It agreed “that if a trial is in fact dominated by a mob, so that the jury is intimidated and the trial judge yields, and so that there is an actual interference with the course of justice, there is, in that court, a departure from due process of law in the proper sense of that term.” However, as it was then the policy of the U.S Supreme Court to narrowly review state court decisions and rely upon those judiciaries to assure procedural due process, it deferred to the ruling of the Georgia Supreme Court, which declined to find error at trial. Justice Pitney stated that “if the state, supplying no corrective process, carries into execution a judgment of death or imprisonment based upon a verdict thus produced by such mob domination, [then] the state deprives the accused or his life or liberty without due process of law.”592

Justice Holmes’ dissent noted that Leo Frank’s trial took place “in a court packed with spectators and surrounded by a crowd outside, all strongly hostile to the petitioner.” Holmes wrote: “Whatever disagreement there may be as to the scope of the phrase ‘due process of law,’

590 James N. Tidwell, Leo Frank and Mary Phagan , 14 WESTERN FOLKLORE 213 (1955). 591 Frank , 237 U.S. at 311-12. 592 Frank, 237 U.S. at 335.

186 there can be no doubt that it embraces the fundamental conception of a fair trial, with opportunity to be heard. Mob law does not become due process of law by securing the assent of a terrorized jury. We are not speaking of mere disorder, or mere irregularities in procedure, but of a case where the processes of justice are actually subverted.” 593 As the justice famously said in his dissent, it is the Court’s “duty … to declare lynch law as little valid when practised by a regularly drawn jury as when administered by one elected by a mob intent on death.” 594

11.D.2. Moore v. Dempsey , 261 U.S. 86 (1923)

The Elaine riot (also referred to as the “”) underlying Moore v. Dempsey began on September 30, 1919. The truth of the events is lost to time, and the record is influenced by the perspective of the informant. African American farmers said that they had met to consider action against abusive landowners, but whites claimed it was to foment insurrection.

What is known is that the spark that set off the riot was an altercation in which one white man was killed and another was wounded. Days of savagery ensued, followed by infamous trials of black defendants 595 ; no whites were charged. 596

From a jurisprudential standpoint, Moore signaled a doctrinal shift, as federal courts began to no longer routinely defer to state courts in questions of 14 th amendment due process.

The ruling was significant as an early example of the Court’s response to “egregious incidents of

593 Frank, 237 U.S. at 347. 594 Frank, 237 U.S. at 355. Justice Holmes received a letter of appreciation from Leo Frank, who wrote: “I feel that you, as Judge, do not look for thanks. Yet, I cannot but feel profoundly gratified, that … you, and Justice Hughes diagnosed the situation with rare insight and sagacity.” Eric M. Freedman, Milestones in Habeas Corpus: Part II: Leo Frank Lives: Untangling the Historical Roots of Meaningful Habeas Corpus Review of State Convictions , 51 ALABAMA LAW REVIEW 1467, 1495–96, n.120 (2000) citing a “Letter from Leo M. Frank to Oliver Wendell Holmes (July 10, 1915),” Oliver Wendell Holmes, Jr., Papers. 595 Jeannie M. Whayne, Low Villains and Wickedness in High Places: Race and Class in the Elaine Riots , 58 THE ARKANSAS HISTORICAL QUARTERLY 285 (1999). 596 The Encyclopedia of Arkansas History & Culture, “Elaine Massacre,” accessed on April 15, 2017 at http://www.encyclopediaofarkansas.net/encyclopedia/entry-detail.aspx?entryID=1102.

187 racial animus and mistreatment in the criminal justice system.” 597 Reminiscent of Frank (in which it reached an opposite result), the Court called Moore a “mob-dominated” trial and faulted journalists for inflaming public opinion and worsening the situation.

11.D.2.a. The Elaine Race Riot of 1919

About 100 miles upstream from Greenville, Mississippi, lies tiny Elaine, Arkansas. It is in Phillips County, which is separated on the east from the state of Mississippi by the Mississippi

River, and is typical of the area affected by the 1927 flood. It is part of the fertile delta region known as the “Black Belt,” named for the dark soils and high concentration of African

Americans, most of whom were tenant farmers and sharecroppers on large plantations. 598 Elaine is about four miles from the Phillips County seat of Helena, where Morris was tried. 599

While reports vary considerably, one of the more credible accounts of the Elaine riot was compiled by O.A. Rogers, Jr., 600 who relied heavily upon press accounts of that time.601 He explained that it was common in Phillips County, as elsewhere in the region, for landowners to handle crop sales privately, fail to provide accurate accounts, and delay payment to tenants and

597 Brooks Holland, Race and Ambivalent Criminal Procedure Remedies , 347 GONZAGA LAW REVIEW 341, n.8 (2011). 598 As observed by Helena prosecutor John E. Miller, who handled some of the Elaine riot trials, Phillips County, Arkansas “came as near a feudal state as ever existed.” Whayne, supra note 595 at 305. 599 The area was known for racial violence, and African Americans in Phillips County were vulnerable to whites who insisted on their being submissive. One of those targeted was Silas Hoskins, the uncle of famed black author Richard Wright, who briefly lived in Elaine. Hoskins was the owner of a popular tavern that served black sawmill workers, and a man not known to be apologetic about his success. In the winter of 1916, Hoskins was murdered by white businessmen for refusing to sell his tavern to them. No one was ever charged with the crime, although some believe that the local sheriff was implicated. Unable to retaliate and living in fear, the Hoskins/Wright family fled Elaine. Kieran Taylor, “We Have Just Begun”: Black Organizing and White Response in the , 1919 , 53 THE ARKANSAS HISTORICAL QUARTERLY 264, 267-69 (1999). See also RICHARD WRIGHT , BLACK BOY : A RECORD OF CHILDHOOD AND YOUTH (HarperCollinsPublishers 15th) (2005) and MICHAEL FABRE , THE UNFINISHED QUEST OF RICHARD WRIGHT (University of Illinois Press) (1993). 600 Rogers, supra n.554. 601 In addition to Rogers, various writers have examined the some of the more sensational press reports that generated additional strife during the riot and subsequent legal proceedings. See Terry Ann Knopf, Race, Riots, and Reporting , 4 JOURNAL OF BLACK STUDIES 303 (1974).

188 sharecroppers.602 Agricultural workers unable to obtain credit from conventional sources borrowed heavily from planters and became further ensnared in debt.603

After the demise of chattel slavery, landowners increasingly sought laborers to work the land. “Sharecroppers” raised the crops in exchange for a share of the proceeds of the harvest, and “tenant farmers” leased the land to raise crops of their own. Either way, the benefits inured first to the landowner:

Farming on halves, you give the boss man half of the crop to start with. You work it, then you take the other half. Whatever you owe him, you pay it out of your half. Not his half. His half is give to him. Automatically. Your half, whatever you owe him. If you owe him sixty dollars, you pay him the sixty dollars out of your half. And a lots of times that half, you didn't get your half when you come to that. Cause they didn’t give it to you. I don’t know how that worked. They would say you got so and so. They could add anything they want. And so that's the way it was. No, they wasn't always honest. They wasn't no way in the world for them to be honest. People finally realized. Somebody got smart. It wasn't right to start with. They figured you owed him half of it. You want to know the truth about it, at the end of the year, the Boss man gave you what he wanted you to have. The big man bought this land. They give nine dollars an acre to fourteen.

602 Rogers, supra note 554 at n.9 citing the Arkansas Gazette , October 12, 1919, p. 1; “The Real Causes of Two Race Riots,” Crisis , December 1919 at 56-57, clippings contained in the papers of Charles Hillman Brough, governor of Arkansas from 1917-1921, “Scrapbook on Elaine Race Riots,” Arkansas History Commission, Little Rock (hereafter, Brough Scrapbook). 603 Southern black farmers were particularly susceptible to debt enslavement. There is an apt quote from CHARLES H. OTKEN , THE ILLS OF THE SOUTH OR RELATED CAUSES HOSTILE TO THE GENERAL PROSPERITY OF THE SOUTHERN PEOPLE 10 (G.P. Putnam’s Sons) (1894) cited by Roger L. Ransom & Richard Sutch, Debt Peonage in the Cotton South After the Civil War , 32 THE JOURNAL OF ECONOMIC HISTORY 641 (1972): “This condition of affairs in the South introduced a vast credit system whose tremendous evils and exorbitant exactions have brought poverty and to thousands of families. As a policy, it is vindictive in its subtle sophistry; as system, it has crushed out all independence and reduced its victims to a coarse species of servile slavery….” Beginning in 1916, Phillips County’s struggling black farmers were given some assistance by the USDA, when the agency sent H.C. Ray as the first black demonstration agent in that area. Thomas Monroe Campbell was the first such agent for USDA, and was appointed in 1906 to serve in rural Alabama. This was part of the nascent cooperative extension service, a program initiated by USDA and Tuskegee Institute to further Booker T. Washington’s philosophy of self-help. Farmers were educated in improved agricultural practices, and given practical advice for running their farms and homes successfully. See “Distinguished Alumni of Tuskegee University,” entry for Thomas Monroe Campbell, accessed on April 12, 2017 at http://www.tuskegee.edu/about_us/legacy_of_fame/distinguished_alumni/thomas_monroe_campbell.aspx. See also Gary Zellar, H.C. Ray and Racial Politics in the African American Extension Service Program in Arkansas, 1915-1929 , 72 AGRICULTURAL HISTORY 429 (1998).

189

That's all they give. And they bought it. And then the slaves. I've always been a slave myself. I call myself one of them. Everybody was slaves that worked in the damn fields. Willie Cochral 604

On September 30, 1919, a group of African American farmers gathered at the Hoop Spur church along with some white organizers to discuss unionizing and possibly filing suit against local landowners. The meeting was broken up around midnight up by a confrontation with three men who arrived by car; one white was killed and another wounded. It is debated who fired the first shot. 605 By morning, rumors spread among both races that indiscriminate killings were planned in retaliation, and the rioting began.606 Violence spiraled after blacks resisted a white posse from Helena that indiscriminately searched their homes and made widespread arrests.607

White reinforcements “with blood in their eye[s]” came from nearby states 608 to repulse the “black insurrectionists.” 609 The civilians were augmented by 583 federal soldiers sent at the request of Governor Brough. The heavily armed “Phillips County Expeditionary Forces” were

“anxious to get into the battle with the blacks.” 610 Scores of African Americans were rounded up, placed in stockades, and fiercely interrogated.611

Reminiscent of Percy’s 1927 order in Greenville, the commandant in Elaine ordered that

“all negroes in the vicinity must have passes, signed by army officers, before they would be allowed to appear upon the streets or work in the fields. Pass[es] were issued only when the

604 This is a description of sharecropping from Willie Cochral, whose father was able to buy 100 acres and an old house in Sunflower County, Mississippi after working there for 33 years. This narrative is excerpted from the 1997 Festival of American Folklife Program Book. Accessed on April 14, 2017 at https://www.folklife.si.edu/resources/Festival1997/cane.htm . 605 Rogers, supra note 554 at n.34. 606 Rogers, supra note 554 at n 35. 607 Rogers, supra note 554 at n.35 citing Monroe Work, ed., The Negro Year Book , 1921-1922 (Tuskegee, 1922). 608 Whayne, supra note 595 at 292. 609 Rogers, supra note 554 at 148, n.38 citing Arkansas Gazette , October 5, 1919 at 1 and n. 5 citing Walter White, Massacring Whites in Arkansas , NATION , CIX 715-16 (December 13, 1919). 610 Rogers, supra note 554 at 148, n.39 citing Arkansas Gazette , October 2, 1919, p. 1. See also Ralph H. Desmaris, Military Intelligence Reports on Arkansas Riots: 1919-1920 , 33 THE ARKANSAS HISTORICAL QUARTERLY 175 (1974). 611 Rogers, supra note 554 at n.42 citing “The Real Causes of Two Race Riots,” Crisis , IXX (December 1919), at page 56. Located in Brough Scrapbook.

190 negroes’ employer would vouch for them.” 612 The rampage continued; within five days, five

whites were killed along with 200-250 (if not far more) African Americans. 613

More than 100 blacks were jailed, and within a month 65 were indicted by a Phillips

County grand jury. Their trial, which was mobbed by whites clamoring for hangings, took less

than an hour and the jury deliberated between two and seven minutes before reaching the

verdict.614 Eleven African Americans were convicted of first degree murder 615 and sentenced to death.616 Another 54 were sentenced from to one to 21 years for their part in the riot.617 Brough named local white leaders to a secret “Committee of Seven” to investigate the “insurgency.” 618

Committee members urged the governor not to interfere with prompt executions.619 It was later

shown that the convictions were obtained through mob coercion, and rested on evidence of

highly dubious value.

Grif Stockley 620 cited Gerard Lambert, among others, to show that undue force was used in securing “confessions.” Lambert, who owned one of the largest plantations in Phillips

612 Arkansas Gazette , October 6, 1919, Agitators Blamed , NAACP MSS. ARTICLES FROM THE NAACP ARCHIVES , accessed on April 15, 2017 at http://robertwhitaker.org/robertwhitaker.org/Laps Documents_files/Waskow File.PDF. The requirement for employers to approve passes “assumes extraordinary significance when it is known that the relations of employer and farm-hand, of landlord and tenant were at the root of the Phillips County ‘massacre.’ For it meant that the employers, or landlords, parties to the trouble, were given what under the circumstances was the enormous power of sanctioning or declining to sanction the free movement of their employees or tenants.” HERBERT JACOB SELIGMANN , THE NEGRO FACES AMERICA 229 (Press of Clarence S. Nathan 2 nd ) (1924). 613 Colin Starger, Fifty Years Before Brady , 37 THE CHAMPION 34, 35 (2013). 614 A twelfth man, who fled but was soon apprehended, was also tried in November 1919 and sentenced to die. See Rogers, supra note 554 at 150, n.54 citing Arkansas Gazette , November 18, 1919 at 1. 615 Rogers supra note 554 at 150, n.50 citing Hicks v. State , 143 Ark. 158 (1920). 616 Rogers, supra note 554 at 150, n.51 citing New York World , November 16, 1919, quoted in Congressional Records , 66 th Cong., 1 st Sess., 58 (November 19, 1919), 8818-8820. See also IDA B. WELLS -BARNETT , THE ARKANSAS RACE RIOT 192 (Beacon Press) (1995). 617 Rogers, supra note 554 at 150, n.53 citing Ware v. State , 146 Ark. 321 (1920). 618 Rogers, supra note 554 at 148, n.43 citing Arkansas Gazette , October 4, 1919 at 3. 619 Moore , 261 U.S. at 91. 620 GRIF STOCKLEY , BLOOD IN THEIR EYES : THE ELAINE RACE MASSACRES OF 1919 ( Press) (2001). Among sources relied upon by Stockley to substantiate his position was journalist Walter White, who later investigated abuses in the 1927 flood. A fair-skinned black who could pass for white and later headed the NAACP, White traveled to Elaine in 1919 as a field investigator for the young organization and succeeded in interviewing Governor Brough. White, who was warned by Scipio Africanus Jones not to talk with local blacks for fear that

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County, told how the troopers, enraged over the deaths of two of their men that day, tied an

African American man to a column of the plantation’s company store. After the man refused to talk, a soldier doused him with a can of kerosene then threw a lighted match. The victim went up in flames; he attempted to run away after his bonds were melted by the fire but was gunned down. 621 The federal troops used other forms of torture in interrogating African American captives. These techniques included forcing formaldehyde up their noses, causing them to strangle; inflicting electric shocks; and whippings. One victim, Walter Ward, told how these techniques were used to make him testify:

[T]hey stripped me and whipped me with a rubber strap that had lead or copper placed on it that cut me. Every lick he would hit me would cut the blood out. I do not know how many licks I was hit, but I do know that they nearly killed me. I was also put in an electric chair, stripped naked and the current turned on to shock and frighten me. So the third time they took me out I agreed to testify to anything they wanted me to say. 622 11.D.2.b. The Ruling of the United States Supreme Court and the Aftermath

Despite public pressure, the courts stayed the executions of the Elaine prisoners to permit review by the Arkansas Supreme Court and the federal courts. After the Arkansas courts upheld

White would get them into trouble, narrowly avoided violence by not admitting to a group of whites on a train looking to seize him that he was the very NAACP investigator they were after. Stockley cited a letter dated January 31, 1920, in which White wrote: “A large number of colored people who were killed were put to death by troops who used machine guns to mow down colored people. Citizens’ posses, however, murdered a great many more.” See Grif Stockley & Jeannie M. Whayne, Federal Troops and the Elaine Massacre: A Colloquoy, 61 THE ARKANSAS HISTORICAL QUARTERLY 272 (2002). In 1919, Walter White also published articles about the Elaine riot in the NAACP’s magazine Crisis that decried the murders of black sharecroppers for seeking to organize peacefully against exploitative farm owners; see, e.g ., M.M. FRANCIS , CIVIL RIGHTS AND THE MAKING OF THE MODERN AMERICAN STATE 143 (Cambridge University Press) (2014). 621 Stockley and Whayne, supra note 621 at 276-77. 622 See M. Langley Biegert, Legacy of Resistance: Uncovering the History of Collective Action by Black Agricultural Workers in Central East Arkansas from the 1860s to the 1930s , 32 JOURNAL OF SOCIAL HISTORY 73, 87 (1998). Biegert cited the affidavits of Walter Ward, George Green, John Jefferson, T.K. Jones, and H.F. Smiddy from the record in Moore .

192 the murder convictions of black defendants in the Elaine massacre 623 and the federal court

declined to intervene,624 the U.S. Supreme Court took up their plight in Moore .625

The 1923 decision granting habeas corpus was written by Justice Oliver Wendell

Holmes, Jr. 626 The Court found that the criminal defendants were denied constitutionally- guaranteed due process in state trials that were tainted by mob violence. Holmes also faulted the lower federal court’s failure to provide a meaningful review of the proceedings. At the U.S.

Supreme Court, the petitioners were represented by prominent attorneys Moorfield Storey and

Scipio Africanus Jones, who were hired on their behalf by the NAACP.627

623 In considering an application for habeas corpus from several Elaine defendants, the Arkansas court related the circumstances of their trial. In addition to assertions that their court-appointed counsel were inadequate, the petition described “that ‘at the time of the returning of said indictment and trial said excitement and bitterness of feeling among the whites of said county against the negroes, especially against the defendants, was unabated and still at the height of intensity.’” When the defendants “were confined awaiting trial, a mob composed of several hundred armed white men surrounded the jail and courthouse [and the furor was] such that it was impossible [for the defendants] to obtain an impartial jury.” State v. Martineau , 149 Ark. 237, 242 (1921). 624 Moore is complicated by the fact that the defendants’ appeals were bifurcated. The Ware defendants were released after the Arkansas Supreme Court overturned their initial verdict but the state did not timely retry them on remand. The convictions of the Moore defendants were overturned by the U.S. Supreme Court, but they were again convicted upon remand and their sentences were later commuted. See, e.g ., Banks v. State, 143 Ark. 154 (1920); Giles v. State , 143 Ark. 154 (1920); Wordlow v. State, 143 Ark. 154 (1920); Ware v. Stat e, 146 Ark. 321 (1920); Hicks v. State , 143 Ark. 158 (1920); Moore v. State (unpublished; on appeal, became Moore v. Dempsey , 261 U.S. 86 (1923)) ; Martineau , 149 Ark. 237; and Ware v . State, 159 Ark. 540 (1923). See also records of the United States District Court, Eastern District of Arkansas, in Moore v. Dempsey , Case No. 6246 (1921) and Hicks v. Dempsey , Case No. 6247 (1921), which declined to review the state’s actions. 625 Moore, 261 U.S. 86. 626 J. Holmes was joined by Chief Justice William Howard Taft and Justices McKenna, Van Devanter, Brandeis, and Butler, whereas Justices James C. McReynolds and George Sutherland dissented. Moore , 261 U.S. at 86. 627 See Kenneth Mack, Rethinking Civil Rights Lawyering and Politics in the Era Before “Brown,” 115 YALE LAW JOURNAL 256, 264 (2005). Mack contended that although the NAACP, especially in its early efforts, treated “civil rights lawyers outside the national office as ‘cooperating attorneys,’ implementing strategies that had their origins in the NAACP’s desegregation litigation,” these external counsel were of larger importance. They “were heirs to a tradition of professional identity and civil rights strategy that began long before the founding of the NAACP.” See also Genna Rae McNeil, Before Brown: Reflections on Historical Context and Vision , 52 AMERICAN UNIVERSITY LAW REVIEW 1431 (2003). Moorfield Storey and Scipio Africanus Jones were well regarded attorneys who undertook important civil rights cases. Storey was a Boston Brahmin and graduate of . In addition to a distinguished legal career, he served as secretary to U.S. Senator , leader of the Radical Republican Congress, and was later head of the NAACP and the American Bar Association. WILLIAM B. HIXSON JR., MOORFIELD STOREY AND THE ABOLITIONIST TRADITION (Oxford University Press) (1972). Jones, who was born into slavery, was recognized as one of the most important black lawyers in Arkansas and a “leader of his race.” Tom Dillard, Scipio A. Jones , 31 THE ARKANSAS HISTORICAL QUARTERLY 201, 202 (1972). The decision to include Jones as counsel along with Storey, who was white, was important to the defense team in Moore and to future efforts of the NAACP to defend blacks and champion civil rights causes. Prior to that case, the NAACP generally preferred to use white attorneys to gain greater acceptability in pursuing legal remedies, but Jones’ ability in

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In this landmark decision, the Court in Moore for the first time granted the writ to defendants convicted in state court in a mob-dominated trial, and considered whether the lower federal court had effectively reviewed their petition.628 Holmes clarified that in considering the request, the Court did not address “the petitioners’ innocence or guilt but solely [focused on] the question [of] whether their constitutional rights have been preserved.”629 The opinion suggested that the Arkansas trial judge was complicit in the failure to dispense justice. Holmes noted that the blacks’ defense counsel had been “arrested and confined during the month on a charge of murder and on October 31 [1919] was indicted for barratry.” 630 The lawyer was “told that he would be discharged but that he must leave secretly … to avoid being mobbed.” 631

Holmes recounted that “newspapers daily published inflammatory articles,” and that a member of the governor’s Committee of Seven publicly attributed the riot to the farmers’ union, which allegedly “band[ed] negroes together for the killing of white people.’” Soon after the defendants’ arrest, “a mob marched to the jail for the purpose of lynching them but was prevented by the presence of United States troops.” Committee members and other local officials solemnly assured the angry white crowd that “if the mob would refrain … they would

representing the Elaine defendants helped convince the NAACP of the efficacy of employing black lawyers. See, e.g. , RICHARD C. CORTNER , A MOB INTENT ON DEATH : THE NAACP AND THE ARKANSAS RIOT CASES (Wesleyan University Press) (1988) and Judith Kilpatrick, Race Expectations: Arkansas African-American Attorneys (1865- 1950) , 9 AMERICAN UNIVERSITY JOURNAL OF GENDER , SOCIAL POLICY AND THE LAW 63 (2001). 628 Benno C. Schmidt, Jr., A Postscript for Charles Black: The Supreme Court and Race in the Progressive Era , 95 YALE LAW JOURNAL 1681 (1986). Schmidt discussed the decision in Jones v. Jones , 234 U.S. 615 (1914), which dealt with the contested disposition of 87 acres owned by John Jones, a black freedman who died intestate. The Court said that the “Tennessee Supreme Court’s construction [of state law] was but an application of the common law principle that certain categories of persons, such as aliens and bastards, were excluded from general laws of descent because they lacked, in the vivid common law metaphor, ‘inheritable blood.’” Id . at 1685. 629 Moore, 261 U.S. at 87-88. Even now, when courts evaluate a request for habeas corpus, they do not make a “subjective determination of guilt or innocence.” Rather, “federal habeas courts act in their historic capacity to assure that the habeas petitioner is not being held in violation of his or her federal constitutional rights.” Herrera v. Collins , 506 U.S. 390, 402 (1993). 630 “Barratry” is the prohibition on a “stranger from ... inciting litigation.” Michael Abramowizc, On the Alienability of Legal Claims , 114 YALE LAW JOURNAL 697, n.3 (2005). 631 Moore , 261 U.S. at 88.

194 execute those found guilty in the form of law.” 632 The petitioners produced affidavits from two of the “white men and the colored witnesses on whose testimony” the convictions were obtained.

They averred that “the Committee made good their promise [to the mob] by calling colored witnesses and having them whipped and tortured until they would say what was wanted, among them being the two [witnesses] relied upon to prove the petitioners’ guilt.” 633

The Court reflected on the haste of the trial court’s proceedings. A county grand jury was convened on October 27, 1919. It consisted of only white men, including a member of the

Committee of Seven, “and, it is alleged, with many of a posse organized to fight the blacks, upon it.” Two days later, the grand jury returned the indictments. Trial began on November 3, 1919, before an all-white jury, as “blacks [were] systematically excluded from both grand and petit juries.” 634 Verdicts were returned with breathtaking speed, as the “trial lasted about three- quarters of an hour and in less than five minutes the jury brought in a verdict of guilty of murder in the first degree.”

Affidavits filed at the U.S. Supreme Court stated that “there was never a chance for the petitioners to be acquitted [as] no juryman could have voted for an acquittal and continued to live

[in] Phillips County and if any prisoner by any chance had been acquitted by a jury he could not have escaped the mob.” The “averments as to the prejudice by which the trial was environed” were corroborated by appeals to the governor. Five members of the Committee of Seven asked

Brough “not to interfere with the execution of the petitioners,” and asserted that “‘all our citizens

632 Moore , 261 U.S. at 88-89. 633 Grif Stockley identified the affiants as T.K. Jones and H.F. Smiddy, both white members of the Phillips County posse, who stated that they tortured black prisoners in the county jail and told of others who had committed similar acts. Grif Stockley, Elaine Massacre aka Elaine Race Riot of 1919 aka Elaine Race Massacre , ENCYCLOPEDIA OF ARKANSAS HISTORY & CULTURE (2016). Accessed on April 12, 2017 at http://www.encyclopediaofarkansas.net/encyclopedia/entry-detail.aspx?entryID=1102 634 Moore , 261 U.S. at 89-90. Southern states systematically excluded African Americans from jury service. In 1880, the U.S. Supreme Court held that this denied equal protections guaranteed to black defendants by the 14 th amendment in Strauder , 100 U.S. 303.

195 are of the opinion that the law should take its course.’” The governor was reminded by “white citizens and officials of Phillips County” that another trial of six black defendants was upcoming, and that “in all probability those negroes would be lynched.” 635

Justice McReynolds’s dissent in Moore commented upon the Court’s 1915 decision in

Frank , which also involved allegations of a verdict brought about by the pressures of mob

violence and intimidation but with a different result. McReynolds stated that the trial in Moore

“was unusually short but there is nothing in the record to indicate that it was illegally

hastened.” 636 The dissent said: “The fact that petitioners are poor and ignorant and black

naturally arouses sympathy; but that does not release us from enforcing principles which are

essential to the orderly operation of our federal system.” 637

After the U.S. Supreme Court granted habeas corpus in Moore , the matter was remanded

to the state for further determination. As a result, the validity of the underlying convictions

635 Moore , 261 U.S. at 89-90. 636 Moore , 261 U.S. at 97. 637 Moore , 261 U.S. at 101. McReynolds’ comment that the fact that the Moore petitioners were “poor and ignorant and black [and that this] naturally arouses sympathy” reflected a frequent pattern of judicial rulings of that era. See, e.g ., Gabriel J. Chin, Race and the Disappointing Right to Counsel , 122 YALE LAW JOURNAL 2236, n.10 (2013). Chin argued that efforts by the U.S. Supreme Court to end Jim Crow discrimination against blacks were too often couched in terms of protecting ignorant and incompetent African Americans instead of “using the language of rights and justice.” At n.10, he cited a number of important decisions rendered by the Court that portrayed blacks in a poor light and in need of protection: Reece v. Georgia , 350 U.S. 85, 89 (1955) (describing the defendant as a “semi-literate negro of low mentality”); Ward v. Texas , 316 U.S. 547, 555 (1942) (recounting the interrogation of an “ignorant negro”); Chambers v. Florida , 309 U.S. 227, 238 (1940) (describing the interrogation of “ignorant young colored tenant farmers”); Brown v. Mississippi , 297 U.S. 278, 281 (1936) (describing involuntary confessions to “[t]he crime with which these defendants, all ignorant negroes,” were charged (quoting Brown v. State , 161 So. 465, 470 (Miss. 1935) (Griffith, J., dissenting)); see also McIntire v. Pryor , 173 U.S. 38, 53 (1899) (finding no laches in part because “the plaintiff is an ignorant colored woman”). But cf., Moore v. Dempsey , 261 U.S. 86, 102 (1923) (McReynolds, J., dissenting) (“The fact that the petitioners are poor and ignorant and black naturally arouses sympathy; but that does not release us from enforcing principles which are essential to the orderly operation of our federal system.”). While these cases often granted relief, the racist paternalism was part of a system of racial oppression that often simultaneously praised itself for evenhandedness while segregating society by law. See, e.g., Henry v. State , 119 P. 278, 279 (Okla. Crim. App. 1911) (“[A]lthough it is true that appellant is only a poor, ignorant negro, and is dependent upon the charity of his attorneys for his defense, yet he is entitled to and will receive at the hands of this court the same considerations as though he were the wealthiest and most influential man in the state.”); c.f. Anthony v. Alfieri, Gideon in White/Gideon in Black, Race and Identity in Lawyering, 114 Yale L.J. 1459, 1468 (2005) (explaining “the meaning of ‘Negro color’ in legal contexts”).

196 became widely questioned. Six of the capital defendants were released without retrial on June

25, 1923. 638 On January 14, 1925, Thomas Chipman McRae, Brough’s successor and the last

Confederate veteran to serve as governor of Arkansas, 639 indefinitely furloughed the remaining six Elaine defendants.640

Noted southern historian Pete Daniel has observed that although the genesis of the Elaine massacre was the peonage of black agricultural workers, the ultimate focus of the criminal cases formed a remedy for injustices inflicted by the mob-dominated trials. Assertions of peonage that had occasioned the riots were neither investigated nor rectified. Daniel wrote that, in light of continuing grievances, this area of Arkansas later “proved fertile soil for the Southern Tenant

Farmers’ Union efforts in the 1930s.” 641

11.E. Contemporaneous Press Accounts of the Elaine, Arkansas Race Riot: Legal Implications of Inciting Violence and Perpetuating Prejudice

The hostility and adverse publicity surrounding the trials associated with the Elaine massacre were so great that the U.S. Supreme Court was persuaded to grant habeas corpus to the

12 black men convicted of murder.642 Like the Court’s decision in Frank , Moore shows the tension between the 14 th amendment guarantee of due process to the accused, and rights of the press protected by the 1st amendment’s freedom of speech.643

638 Rogers, supra note 554 citing J.S. Waterman & E.E. Overton, The Aftermath of Moore v. Dempsey , 18 ST. LOUIS LAW REVIEW 117 (1933); Wells-Barnett, supra note 616 at 3. Referenced material found in Brough Scrapbook. 639 Derek Allan Clements, THOMAS CHIPMAN MCRAE (1851-1929) ENCYCLOPEDIA OF ARKANSAS HISTORY & CULTURE . Accessed on April 12, 2017 at http://www.encyclopediaofarkansas.net/encyclopedia/entry-detail.aspx?search=1&entryID=114. 640 Rogers , supra note 554. 641 Daniel, supra note 71 at n.27. 642 Moore , 261 U.S. 86. 643 MICHAEL J. KLARMAN , FROM JIM CROW TO CIVIL RIGHTS n.44 (Oxford University Press) (2004). 643 Moore , 261 U.S. 86. 643 Note, Mob Domination of a Trial as a Violation of the Fourteenth Amendment , 37 HARVARD LAW REVIEW 247 (1923).

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There was a significant issue as to whether journalists accurately reported what transpired in Elaine; bias was not uncommon on each side of the racial divide. 644 What is clear is that the press profoundly affected white vigilantism and black aggression and/or resistance. The Court in

Moore 645 commented that during the trial, the “newspapers daily published inflammatory articles.” 646 The white press reported that African Americans were inflamed by union propaganda, and purportedly met at the Hoop Spur church to plan an “armed insurrection.” 647

The whites outside the church were deputies in pursuit of a “negro bootlegger,” and had stopped to repair a tire puncture when they were attacked. 648 By the afternoon of October 1, 1919, the

“situation was reported to be critical” as white families fled to nearby Helena, and Elaine at one point was “reported to be almost completely surrounded by blacks heavily armed.” Journalists reported that “nearly 100 negroes had been captured, together with a white man, who was alleged to have questionable propaganda literature in his possession.” 649

The Arkansas Gazette printed that over 500 federal troops, sent to Elaine at the request of

Governor Brough, succeeded in the “[r]ounding up of negroes.” The Committee of Seven, formed “to consider rumors of an impending uprising,” worked with “military authorities” to investigate the “Disorders” and took “testimony from negroes as well as white persons.” 650 By

October 4, 1919, “285 negro protestors [were] being held in the Phillips County jail, and the number … increased hourly by additional blacks brought in by patrols. Not all of the negroes

644 Whayne, supra note 595 at 287. 645 Moore , 261 U.S. at 88. 646 Whether a defendant can receive a fair trial in light of highly prejudicial pretrial publicity remains a contemporary problem. The U.S. Supreme Court’s decision in Skilling v. United States , 561 U.S. 358 (2010) held, among other things, that the degree of adverse publicity surrounding the Enron debacle did not deprive company officer Jeffrey Skilling of a fair hearing in Houston, Texas, the site of Enron’s corporate headquarters. See, e.g ., Jordan Gross, If Skilling Can’t Get a Change of Venue, Who Can? Salvaging Common Law Implied Bias Principles from the Wreckage of the Constitutional Pretrial Publicity Standard , 85 TEMPLE LAW REVIEW 575 (2013). 647 Whitaker, supra note 612, Nashville Banner , October 4, 1919, Arkansas Race Riot , NAACP MSS. 648 Whitaker, supra note 612, Arkansas Gazette , October 1, 1919, Alleged Plot Discovered , NAACP MSS. 649 Whitaker, supra note 612, Arkansas Gazette , October 1, 1919, Elaine Riots , NAACP MSS. 650 Whitaker, supra note 612, Arkansas Gazette , October 1, 1919, Negroes Planned Uprising , NAACP MSS.

198 were arrested as rioters, [as] some [are] being held as witnesses or for investigation.” 651 On

October 6, 1919, the Arkansas Gazette reported that Phillips County investigators obtained

“confessions” of black prisoners which “definitely revealed” that “a wholesale massacre was intended” along with “a general slaughter of white people in the locality” if “certain demands were not met.”652

The New York Times speculated that “Bloodshed on a scale amounting to local insurrection” would “at least be threatened … where large white and black populations face each other unless some program of conciliation is adopted to forestall influences that are now working to drive a wedge of bitterness and hatred between the two races.”653

12. Forced Labor and the South’s Postbellum Struggle for Economic Parity

“Forced human toil…” The Bolton convict farm formerly included the neighboring plantation. Here it was that convicts were lodged in the great log prison still standing. A dismal place it still remains, with rows of ugly huts filled with surly ignorant tenants. “What rent do you pay here” I inquired. “I don’t know, - what is it, Sam?” “All we make,” answered Sam. It is a depressing place, - bare, unshaded, with no charm of past association, only a memory of forced human toil, - now, then, and before the war. W.E.B. Du Bois 654

As evidenced by legal proceedings and the press of the day, the ills of bondage were perpetuated by peonage and convict leasing. The repressive treatment of African Americans and

European immigrants showed whites’ determination to maintain the antebellum social order.

Despite the constitutional abolition of slavery and promise of civil rights, the South did not readily accept these changes. As Clyatt , W.S. Harlan , and other U.S. Supreme Court decisions demonstrate, the worst aspects of masters’ reliance on chattel slavery were translated into some employers’ egregious treatment of indebted laborers.

651 Whitaker, supra note 612, New York Times , October 4, 1919. Elaine Riots , NAACP MSS. 652 Whitaker, supra note 612, Arkansas Gazette , October 4, 1919, Phillips County Blacks Planned Uprising Today , NAACP MSS. 653 Whitaker, supra note 612, New York Times , October 6, 1919. For Action on Race Riot Peril , NAACP MSS. 654 Du Bois, supra note 261, from “Song of Solomon.”

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Following the Civil War, the South sought to establish a sustainable economy as it struggled to adapt to a lost way of life that relied heavily on slave labor. Employers no longer had the system of chattel labor that had been available from the time the first African slaves arrived in Virginia in 1619, and they scrambled to find someone to do their (literally) dirty work for the least compensation. According to Eric Foner: “From this tiny seed [grew] the poisoned fruit of plantation slavery.” This profoundly affected the development of the United States.

While it made a mockery of the lofty ideals of “liberty and equality,” enslaved labor was “an indispensable part [of the nation’s] rapid growth.” This was seen especially in the country’s westward expansion and in the mechanized production of cotton that sparked a revolution in that industry. The question of continued slavery split governments, communities, churches, and families, and brought regional politics into opposition. Finally, it was slavery that “shattered the bonds of the Union.” 655

Slavery and peonage had much in common, in that subjects were under the physical control of the master, and freedom was obtained only by securing his consent.656 In certain ways, peonage afforded employers greater flexibility over laborers at a smaller cost than chattel slavery. There was no obligation to care for peons, who were of value only as long as they carried out frequently backbreaking work. According to the files compiled as part of the

USDOJ’s peonage investigation, Captain A.D. Hill of Miami, Florida observed that the use of indebtedness to entrap poorly paid workers was regarded as “the only way to whip the Yankees.”

The ploy was seen as “better than chattel slavery, as we have no part of the rearing of laborers from infancy to manhood, and again, we have no old age [obligation] after [their] usefulness is

655 ERIC FONER , A SHORT HISTORY OF RECONSTRUCTION 1 (Harper & Row) (1988). 656 Daniel, supra note 71 at 21.

200 gone.” 657 Southern author , a strong critic of racial repression, 658 compared the system of leasing convict labor to slavery in an 1883 address to the National Prison

Association: “Before the war, we owned the negroes. If a man had a good negro, he could afford to keep him …. But these convicts, we don’t own ’em. One dies, get another.” 659

The courts’ rulings on peonage and unjustly-imposed convict labor were rife with legal disparities, and popular will was lacking to remedy the harm to the victims. In a country that prides itself on lofty principles of freedom, the United States has had a “yin and yang” approach to achieving that goal, at least for certain groups. Historically, American politics wavered periodically from a conservative view that favors minimal government involvement in citizens’ lives, to a progressive approach that invokes the power of the government to bring about the greater good. Philosopher and essayist contrasted conservatism and

“Innovation,” the latter better known as “progressivism” in the later 19 th century: “The two parties which divide the state, the party of Conservatism and that of Innovation, are very old, and have disputed the possession of the world ever since it was made …. Now one, now the other gets the day, and still the fight renews itself as if for the first time, under new names and hot personalities.” Journalist and acerbic social commentator H.L. Menken observed that Americans had tired “after twenty years, of a steady diet of white protestations and black acts; they are weary of hearing highfalutin and meaningless words; they sicken of an idealism that is oblique, confusing, dishonest, and ferocious.”

657 Tegeder, supra note 438 at 12-13, n.14, citing “Captain A.D. Hill to Attorney General, May 15, 1921, casefile 50-0 (section 2), Peonage Files, reel 9.” 658 Paul Haspel, George Washington Cable and “Bonaventure”: A New Orleans Author’s Literary Sojourn into Acadiana, 35 THE SOUTHERN LITERARY JOURNAL 108 (2002). 659 MATTHEW J. MANCINI , ONE DIES , GET ANOTHER . CONVICT LEASING IN THE AMERICAN SOUTH , 1866-1928 n.3 (University of South Carolina Press) (1996) citing Hastings H. Hart, Prison Conditions in the South , in PROCEEDINGS OF THE NATIONAL PRISON ASSOCIATION (1919).

201

This was seen in the struggle over slavery, which colonial powers permitted where it proved to be an economic advantage but protested where it was unprofitable. Competing philosophies over how the defeated South and emancipated slaves should be treated were evident in the disparate presidential and Congressional phases of Reconstruction, and the compromise

“Redemption” of 1877. In addition to the law, politics, and racial attitudes, the economy was also a strong driver in shaping national events. 660

The Confederacy was bankrupted by the war, its assets were seized by the federal government, and many of its formerly prosperous citizens were left without means. The South’s demoralizing loss in the Civil War was accompanied by the near-collapse of its economy. Its currency was worthless, many agricultural areas and formerly prosperous businesses no longer or marginally functioned, and fresh investment capital was limited. As the South rebuilt, a ready and affordable labor force was essential to its success. Agriculture was formerly the economic mainstay of the South, and other sectors were slow to strongly emerge.661 Farming was typified by smallholdings that supported little more than the families who owned and worked these, and by richer plantations that grew cotton, rice and other profitable crops. 662 Many planter elites who supported the rebellion faced financial ruin after the war, African Americans migrated west and northward in search of new lives and work, and Southern agriculture changed forever. Still, significant effort was made to recapture the promise of the land and return to former ways.663

660 MICHAEL S. GREEN & SCOTT L. STABLER , IDEAS AND MOVEMENTS THAT SHAPED AMERICA : FROM THE BILL OF RIGHTS TO OCCUPY WALL STREET (ABC) (2015). The quote from Emerson is taken from A Lecture Delivered at the Masonic Temple, Boston, December 8, 1841 , RALPH WALDO EMERSON , EMERSON ’S COMPLETE WORKS : NATURE , ADDRESSES AND LECTURES 280–81 (J. E. Cabot ed., Houghton, Mifflin) (1883). The Menken quote is from MALCOLM MOOS , H.L. MENKEN ON POLITICS : A CARNIVAL OF BUNCOMBE 33 (Vintage Books) (2006). 661 By persisting with slavery, the South did not benefit “from the three great shaping forces of the nineteenth century: urbanization, industrialization, and emigration.” It relied upon coerced laborers, who lacked personal and financial incentives to better their efforts, instead of adopting improved mechanized farming practices. The failure to modernize caused the South to remain a “backwater” even a century later. GRANT , supra note 122 at 29–30. 662 These are the “white yeomanry” championed by Andrew Johnson; see § 6. 663 Cohen, supra note 431.

202

Securing sufficient workers was complicated by racist beliefs regarding the abilities of

African Americans, and the persistent disdain of many whites toward freedmen led to an increased interest in the importation of European workers.664 The latter did not historically regard the South as an attractive destination, and their numbers had declined since 1865. By

1910, there were fewer than a half million foreign-born persons residing in the eleven former

Confederate states and Kentucky, whereas they represented nearly 20% of the population elsewhere. 665

The hoped-for postwar industrialization of the South was slow to materialize, although there was some success in mining, railroads, turpentining, and lumber production even if not to the extent desired. These sectors attracted Northern investors to the area’s natural resources and cheap labor. It is noteworthy that each of these enterprises became the subject of a peonage investigation, and that the overall Southern economy remained closely tied to agriculture.

The desirability of using immigrant labor became a function of its cost effectiveness.666

Bringing in Europeans to replace African American workers had the added allure to some whites of not adding to the black population. While many were taken advantage of, Europeans did not face quite the same racialized violence.

Supposedly “scientific” justifications for discrimination against blacks and favoritism toward the new immigrants were espoused by influential local citizens such as planter, politician, lawyer, and white supremacist Alfred H. Stone of Greenville, Mississippi. He owned Stoneleith

Plantation, and was a contemporary of fellow Mississippian LeRoy Percy, who faced his own

664 Robert L. Brandfon, The End of Immigration to the Cotton Fields , 50 THE MISSISSIPPI VALLEY HISTORICAL REVIEW 591, n.4 (1964). 665 Rowland Berthoff, Southern Attitudes Toward Immigration, 1865-1914 , 17 THE JOURNAL OF SOUTHERN HISTORY 328, 342 (1951). 666 Brandfon, supra note 664 at 592-94.

203 peonage scandal 667 (see § 15.G). According to Stone, “the Negro’s innate laziness, inefficiency,

and lack of thrift had squandered the advantages offered to him.” This supposedly resulted in

indebted blacks “shiftlessly drifting from one plantation to another or to new adventures in one

of the Delta towns.” Despite this criticism, black laborers were needed until an alternative could be found. The Mississippi legislature, like other southern assemblies, passed laws to prevent

workers from anticipatorily breaching contracts and discourage labor agents from enticing them

away. 668 See also § 9.C.

The experiment in various Southern states, between roughly 1890 and 1920, of importing

European immigrants proved of limited success for a number of reasons. The failed effort in

Louisiana was attributed to that “state’s rigid rural economy, natural impediments, and uncongenial social and political conditions.” 669 In Mississippi, the employment of Europeans

was hampered by USDOJ investigations into allegations that these workers were being forced

into peonage. 670

13. The Courts Struggle with the Notion of “Forced Labor”

Justice That Justice is a blind goddess Is a thing to which we poor are wise; Her bandage hides two festering sores That once, perhaps, were eyes. Langston Hughes 671

667 Id . 668 Id . 669 Charles Shanabruch, The Louisiana Immigration Movement, 1891-1907: An Analysis of Efforts, Attitudes, and Opportunities , 18 LOUISIANA HISTORY : THE JOURNAL OF THE LOUISIANA HISTORICAL ASSOCIATION 203 (1977). 670 Although beyond the scope of this dissertation, the USDOJ investigation of peonage at Sunnyside Plantation, which was owned by Senator LeRoy Percy and his business partners, spurred political wrath that contributed to President Roosevelt’s declining interest in pursuing peonage. See, e.g ., Boehm, supra note 48. 671 Pete Daniel quoted this poetry by Langston Hughes in discussing peonage, and questioned whether it might have been written about the workers in the Florida pines that were victimized by such men as Samuel M. Clyatt. Daniel, supra note 71 at 18 citing “ New Masses 7 (Aug. 1931), 15.” Hughes was a contributor to that American, Marxist- leaning magazine, along with other prominent writers of the day who were concerned with racial and social justice. See Carolyn Fowler, The Shared Vision of Langston Hughes and Jacques Roumain , 15 BLACK FORUM 84 (1981).

204

William M. Wiecek argued persuasively that many of the Court’s early decisions undermined Reconstruction-era laws. “[T]he Court fabricated a structure of law that gutted the substance of the Civil War Amendments, while preserving their façade as far as the freedpeople were concerned,” thereby supporting the “‘Jim Crow’ republic’” of the last quarter of the 19 th century. This “created [] a nation dedicated to apartheid.” 672

The analysis of James Gray Pope is instructive regarding the genesis of the U.S. Supreme

Court’s stance on assertions of involuntary servitude. He wrote that the “Supreme Court has yet to adopt a standard for assessing labor rights claims.” 673 Observing that the majority opinion in

Bailey traced the history of prohibitions on involuntary servitude back to the 1787 Northwest

Ordinance, Pope contrasted two competing points of view implicit in peonage decisions. The

“two great freedoms” are “freedom of contract” and, as labeled by the Supreme Court, “freedom of labor.”674 Delving into history, he pointed out that the governor of Illinois, which was part of the Northwest Territory, did not interpret the ordinance to forbid “ (meaning bound service for a period of years enforceable by specific performance).” This was because

“even a long-term indenture entered into ‘voluntarily and ‘without fraud or collusion’” was regarded as valid under the ordinance. Indiana, also formerly part of the Northwest Territory, took the opposite position. In considering The Case of Mary Clark, a Woman of Color , the

Indiana Supreme Court in 1821 examined whether the labor contract that had been entered into voluntarily should be enforced by specific performance. That court concluded: “Because such a contract ‘must be personally performed under the eye of the master,’ such enforcement ‘would produce a state of servitude as degrading and demoralizing in its consequences, as a state of absolute slavery; and if enforced under a government like ours, which acknowledges a personal

672 Wiecek, supra note 460 at 21-22. 673 Pope, supra note 395. 674 Id . at 1482 citing Bailey , 219 U.S. at 245.

205 equality, it would be productive of a state of feeling more discordant and irritating than slavery itself.” 675

Although the U.S. Supreme Court for a while leaned toward the “Illinois view that servitude entered into voluntarily could not be ‘involuntary servitude,’” 676 it adopted the Indiana

rule in Clyatt v. United States ..677 Despite this change of direction, the Court did not articulate its

reasons for doing so until its 1911 decision in a “false pretenses” case involving peonage. In

Bailey ,678 the Court traced the history and purposes of the Northwest Ordinance of 1787, the 13 th

amendment, and the 1867 Peonage Act. Justice Holmes’ dissent in Bailey cited the so-called

“Illinois rule,” which imposed “criminal punishment for breaching a ‘perfectly fair and proper

contract’ [that] could not constitute peonage or involuntary servitude.” 679

14. The Progressive Campaign of President Theodore Roosevelt and the United States Department of Justice in the Fight Against Peonage

They are in rags… Dr. R.R. Moton, May 4, 1929 Tuskegee Institute, Alabama Dear Sir: We are holding, as witnesses in an alleged peonage case, a negro man and his wife and their four small children, and a negro woman and her two small children. We will release them on the 9 th instant, and they will be practically penniless, except for the

675 Pope, supra note 395 at 1484 citing The Case of Mary Clark, a Woman of Color , 1 Blackf. 122, 124-26 (Ind. 1821). 676 Pope, supra note 395, at 1487 citing Robertson v. Baldwin , 165 U.S. 275 (1897). 677 Clyatt , 197 U.S. at 215. 678 Bailey , 219 U.S. 219. 679 Pope, supra note 395 at 1489 citing Bailey , 219 U.S. at 247 (Holmes, J., dissenting). A later case on peonage, United States v. Shackney , 333 F.2d 475 (2 nd Cir. 1964), recognized the struggles of various jurisdictions and courts in evaluating whether peonage had taken place. It is particularly difficult where the parties’ relationship may have originally been consensual. Shackney harkened back to the Northwest Ordinance of 1787, which at § 6 forbade both “slavery and involuntary servitude.” Although this was among provisions that found their way into the constitutions of various states formed from the Northwest Territory, their respective courts applied the laws differently. “The Illinois Supreme Court held a statute allowing the owner of a slave to bring him into Illinois and bind him to agree to work for a term of years, for breach of which he would be returned to slavery outside the Northwest Territory, to be inconsistent with the Ordinance.” However, it also held “that an indenture entered into legally without fraud or collusion could be valid in Illinois by virtue of the adoption of a constitutional provision and its acceptance by the [U.S. Congress] upon the admission of the state into the union. Phoebe v. Jay , 1 Ill. (Breese) 268 (1828).” The Shackney Court then noted that Indiana had reached a different result and “issued habeas corpus to liberate a house maid, ruling that even an indenture voluntarily entered would not justify enforcement of involuntary servitude thereunder. Matter of Clark , 1 Blackf. 122 (1821).” Shackney , 333 F.2d at 484.

206

small amount of money which the Government can pay them as witnesses. They are in rags. I am writing to suggest that you obtain employment for the three adults, if possible, in Macon County. They are experienced farm hands and are capable of good work. They will be badly in need of some assistance to enable them to get properly adjusted somewhere. Of course this is written you in confidence and we do not want any publicity given to this matter. Please let me know promptly if you can do anything for them Yours truly, (Signed) J. Osmond Middleton, Assistant United States Attorney 680

Life in America underwent seismic shifts between the Civil War and the economic depression signaled by the stock market crash on the “Black Thursday” of 1929. 681

Progressivism appealed to those Americans whose parents and grandparents had suffered the

depredations of the Civil War, and who believed it was both possible and imperative to rebuild a

cohesive and prosperous nation. They hoped to change the United States for the better, and

regarded governmental involvement as essential to reforming society. 682

The progressive cause was personified by Theodore Roosevelt, who was among its most vocal advocates. 683 His father was the scion of a wealthy New York Dutch family, and his

mother was of the politically-powerful Southern planter class. Roosevelt was astute in using

these diverse loyalties to political advantage. His energy, enthusiasm, and determination to bring

together government, philanthropy, and everyday citizens to combat society’s ills seemed

680 This letter was found in the Moton Papers of the Tuskegee Archives. Further internal correspondence indicates that Thomas Monroe Campbell played a role in assisting these victims. 681 Legal and political changes following the Civil War resulted in significant challenges to the traditional social and economic dominance of white males following Reconstruction. See, e.g ., Richard Hogan, Class, Race and Gender Inequality , 8 MARXISM : RACE , GENDER & CLASS 61 (2001). 682 DAVID TRAXEL , CRUSADER NATION : THE UNITED STATES IN PEACE AND THE GREAT WAR , 1898-1920 12 (Alfred A. Knopf) (2006). 683 Theodore Roosevelt had an exceptional grasp of using the media to his advantage. Doris Kearns Goodwin said that the “essence of Roosevelt’s leadership… lay in his enterprising use of the ‘bully pulpit,’ a phrase he himself coined to describe the national platform presidency provides to shape public sentiment and mobilize action.” He “understood from the outset that this task hinged upon the need to develop powerfully reciprocal relationships with members of the national press ....” Roosevelt was the first to designate a special room in the White House for the press. It was said that Roosevelt “‘made the White House hum with activity, and in the process gave the correspondents who covered him the best ongoing story in generations.’” His more introverted and cautious successor William Howard Taft favored formal press conferences, and met on an appointment-only basis with individual journalists. DORIS KEARNS GOODWIN , THE BULLY PULPIT : THEODORE ROOSEVELT , WILLIAM HOWARD TAFT , AND THE GOLDEN AGE OF JOURNALISM 574–75 (Simon & Schuster) (2013).

207 boundless, at least as long as a cause held his interest. President observed that Roosevelt “wanted to put an end to all the evil in the world between sunrise and sunset.”

But, despite Roosevelt’s liberal rhetoric, he was a relatively moderate progressive who was known to retreat from more radical agendas when challenged. The U.S. Supreme Court of his day favored a laissez-faire approach toward business, and the comparatively conservative

Congress strongly supported a corporate structure that enriched owners at the expense of workers. Followers of “” espoused “natural law,” and resisted legislation aimed at regulating corporate expansion and protecting workers’ rights. 684

Among those workers whose rights were of concern were the victims of peonage, particularly those who suffered at the hands of the Southern bosses who clung to the unenlightened vestiges of slavery. Roosevelt demonstrated courage – even temerity - in the face of Southern political opposition to any kind of equality for minority and alien laborers.

Just a month after McKinley’s assassination and at the outset of his presidency, Roosevelt issued an important invitation that was to win him more revilement than approbation. By asking former slave Booker T. Washington to dine with the first family at the White House, Roosevelt hosted the first black guest on such an occasion. While other African Americans had attended meetings at the mansion, none had been included in this type of intimate event. News of the dinner spread fast, and both men were strongly criticized; to many, the gathering suggested a social equality widely deemed unthinkable in that day. 685 The popular press reacted unfavorably.

The Tampa, Florida, Morning Tribune of October 20, 1901, reported: “Washington is, no doubt, a very respectable negro, the leader of his race, a man whose influence among his people is far

[sic] their betterment and unlifting [sic]. But even an educated negro has his place, and it is not

684 Traxel, supra note 682 at 1-18. 685 Robert J. Norrell, When Teddy Roosevelt Invited Booker T. Washington to Dine at the White House , 63 THE JOURNAL OF BLACKS IN HIGHER EDUCATION 70 (2009).

208 at the dining-table of the chief magistrate of the republic.” 686 An editor for the Memphis

Scimitar commented that the “most damnable outrage which has ever been perpetrated by any citizen of the United States was committed yesterday by the President, when he invited a n***** to dine with him at the White House.” The newsman observed that Roosevelt “has not inflamed the anger of the Southern people; he has excited their disgust.” 687

Southern politicians were no kinder; their racist comments, which called for violence and retribution against blacks in general, displayed sentiments all too popular at the time. U.S.

Senator of South Carolina said: “Now that President Roosevelt has eaten with that n***** Booker T. Washington, we shall have to kill a thousand n*****s to get them back to their places.” 688

Mississippi politician James K. Vardaman impugned President Roosevelt as “a little mean, coon flavored miscegenist.” 689 Vardaman’s stance as a virulent white supremacist was well known, including his support of lynching. A March 21, 1965, article in the Memphis,

Tennessee Commercial Appeal reprinted Vardaman’s comments on the Mississippi Constitution of 1890. That document was worded to ensure the disenfranchisement of blacks and deprive them of political power: “There is no use to lie or equivocate about the matter…. Mississippi’s constitutional convention of 1890 was held for no other purpose than to eliminate the n***** from politics. Not the ‘ignorant and vicious,’ as some apologists would have you believe, but the n*****…. Let the world know it just as it is…. In Mississippi we have in our constitution

686 John K. Severn & William Warren Rogers, Theodore Roosevelt Entertains Booker T. Washington: Florida’s Reaction to the White House Dinner , 54 THE FLORIDA HISTORICAL QUARTERLY 306, 309 (1976). 687 Norrell, supra note 685 at 101. 688 Blackmon, supra note 94 at 166. 689 Blackmon, supra note 94 at 167.

209 legislated against the peculiarities of the Negro…. When that device fails, we will resort to something else.” 690

Still, the Roosevelt/Washington dinner controversy served the useful purpose of raising discourse on race relations to a new level.691 The evening seemed to signal evolving

relationships among Roosevelt, his successor Taft, and Booker T. Washington, in which they

explored issues of the day and exchanged advice. A few years later, Taft and Washington

consulted privately regarding the politically sensitive peonage case of W. S. Harlan.692

14.A. The Progressive President and Peonage

Federal investigations into peonage and associated racialized violence were underway by

1903, and became increasingly well-known during the time the Alabama Peonage Cases were being heard by federal district court Judge Thomas Goode Jones.693 He corresponded quietly with Booker T. Washington about the abuses discovered in Shelby and Coosa Counties, and raised the issue to U.S. Attorney General Philander C. Knox. Knox, who was familiar with the use of whitecapping to terrorize primarily African American workers from the Hodge s case,

690 William B. Street, The Man Who Invented the Redneck , COMMERCIAL APPEAL , March 21, 1965. Accessed on April 12, 2017 at http://www.hhtc.org/vw/b9/redneck-txt.html. 691 See, e.g ., Norrell, supra note 685 and DEBORAH DAVIS , GUEST OF HONOR : BOOKER T. WASHINGTON , THEODORE ROOSEVELT , AND THE WHITE HOUSE DINNER THAT SHOCKED A NATION (Atria Books) (2012). 692 Harlan, supra note 426, vol. 11 at 533-34 of Washington’s collected correspondence contains a draft letter dated January 6, 1911 from Washington intended for Taft. This was written one day after the U.S. Supreme Court ruled in favor of Alonzo Bailey in the case sponsored by Washington. The Tuskegean wrote Taft regarding the fate of W.S. Harlan, although it is unclear whether the letter was sent. Washington did not “attempt[] to comment upon [Harlan’s] guilt or innocence,” but praised Harlan: “there are few men anywhere in the South who have stood higher than Mr. Harlan or have done more for the development of the South than is true of Mr. Harlan. Sixty-five per cent of the people employed at his mill plant are colored, and without exception they tell me that he has treated them with the greatest degree of kindness.” 693 Jones, a former Confederate war hero and two-time governor of Alabama, owed much to Booker T. Washington’s endorsement to President Roosevelt for his appointment to the federal bench. Judge Jones emerged as a champion of abolishing peonage, although though his record in deciding peonage-related cases was arguably uneven. BRENT J. AUCOIN , THOMAS GOODE JONES , RACE , POLITICS & JUSTICE IN THE NEW SOUTH (University of Alabama Press) (2010).

210 embarked upon an investigation into allegedly criminal labor practices in Arkansas and other parts of the South. 694

By the middle of 1906, there had been several well-publicized trials dealing with peonage in the Florida pines, and journalists were educating the public about the practice. In March 1905, the U.S. Supreme Court had upheld the 1867 Peonage Act in Clyatt , but remanded the matter for a trial on the merits. That proceeding never took place, as the victims needed to testify had disappeared. While federal courts were becoming knowledgeable about peonage abuses, the

White House had relatively little involvement. That changed in October, 1906, when wealthy, winter-time Florida resident Emma Stirling visited President Roosevelt and made him aware of

“the existence of virtual slavery in Southern Florida.” 695 According to The Pensacola Journal of

October 24, 1906, Stirling “aroused interest by her statements that [was taking place] in that state in turpentine and phosphate camps” and she asked that USDOJ investigate the matter. It was “said that in making revelations she was running considerable risk, as, according to her story, murder and arson are lightly held in the part of Florida from which she comes.” 696

Roosevelt was influenced by editorials in the New York Evening Post by Oswald

Garrison Villard, the grandson of abolitionist William Lloyd Garrison, which condemned peonage and its kinship to chattel slavery. Like-minded journalists proved instrumental in urging a federal solution to the so-called “negro problem” of redefining African Americans’ place in

694 Daniel, supra note 71 at 44-46. 695 Jerrell H. Shofner, Mary Grace Quackenbos, a Visitor Florida Did Not Want , 58 FLA . HIST . Q. 273, 277-78 (1980). 696 The South Florida Peonage Case , PENSACOLA JOURNAL , Oct. 24, 1906, at 4. Accessed on April 12, 2017 at http://chroniclingamerica.loc.gov/lccn/sn87062268/1906-10-24/ed-1/seq- 4/#date1=1905&index=0&rows=20&words=Stirling+Stirlings&searchType=basic&sequence=0&state=Florida&dat e2=1906&proxtext=stirling&y=8&x=5&dateFilterType=yearRange&page=1.

211 society. Their writings about the brutal treatment of workers, including the horrific stories from the Florida pines, helped convince Roosevelt to support the campaign against peonage. 697

The actions of Presidents Roosevelt and Taft shifted the nation’s attention to the matter of coerced servitude, and the federal courts began asserting increased control over constitutional and statutory violations. USDOJ in 1905 managed just a partial victory before the U.S. Supreme

Court in prosecuting Georgia businessman Samuel M. Clyatt 698 for the mistreatment of poor blacks in the turpentining (“naval stores”) industry. 699 Six years later, on January 6, 1911, Taft surprised many by refusing to commute the sentence of wealthy lumber executive W.S. Harlan, nephew of the sitting Justice Harlan. W.S. Harlan had been convicted of peonage for authorizing the violent and slave-like treatment of indigent European immigrant laborers, also in Florida’s turpentine-rich pines. 700 Clyatt and Harlan were hard-fought battles from legal and political perspectives. While chattel slavery was a familiar construct, “peonage” was not a word in common parlance nor was it widely understood, but these cases began to change that.

Despite the 1867 federal statute, peonage remained ill-defined in American thought, and it was not until the Court decided Clyatt in 1905 that an accepted legal definition was articulated.

That decision described peonage “as a status or condition of compulsory service, based upon the

697 Daniel, supra note 71 at 44. 698 Clyatt , 197 U.S. 207. 699 “Turpentining” describes tapping into pines to collect the sap, which is then distilled into various primarily industrial commodities. The practice dated to colonial days, when most of its products were used in shipbuilding and maintenance. The importance of the industry, and the degree to which it was relentlessly pursued, can be seen by the vast deforestation of areas worked, especially in the coastal American South. Between the end of the Civil War and the arrival of the 20 th century, many areas formerly rich in forests were stripped by turpentining, and became barren and desolate. Maxwell Taylor Courson, The Cup and Gutter Experiments of Charles Holmes Herty , 64 THE GEORGIA HISTORICAL QUARTERLY 459 (1980). As Tegeder described turpentining, it was an exceedingly harsh and backbreaking process that kept its laborers in a “brutally coercive and exploitative” condition. Tegeder, supra note 437 at 9-10. 700 After denying the defendant’s first request on January 6, 1911, President Taft on June 21, 1911, agreed to commute W.S. Harlan’s sentence only after he had served six months in prison and paid a fine of $5,000; see W.S. Harlan v. United States , 184 F. 702 (5 th Cir. 1909). W.S. Harlan’s conviction had been upheld by the U.S. Supreme Court in W.S. Harlan , 218 U.S. 442.

212 indebtedness of the peon to the master.” 701 In short, peonage resulted from debt and compulsion: the peon was indebted, and his creditor, usually also the employer, exercised physical control over him. This is generally distinguishable from the earlier American use of indentured servitude, which was for a fixed period, as peonage became of an uncertain duration as the indebtedness continually increased by compounded interest at usurious rates. While events underlying the convictions of Samuel M. Clyatt and W.S. Harlan took place in Florida, peonage was used elsewhere in the South as an economic recovery approach that exploited a cheap and politically powerless workforce.702

The Boston Evening Transcript observed on October 16, 1906, that although it was “not yet known whether Theodore Roosevelt will run for a third term,” the Progressive President was

“running many things.” It expressed concern over “Peonage Cases in Florida” and assertions raised by Stirling. The paper reported that she told the president that workers “are carted into the

State like mules, and kept at hard labor against their will for months, under penalty of the lash and like inhuman punishments, if they resist or seek to escape.” The article said the “larger number of the men held in peonage are white laboring men from the North” who were “induced to go into the lumber camps, turpentine camps and the like by promises of high wages … by companies in which Northern men are interested.” Terrible conditions reigned in these camps; once there, the workers “find conditions far from what they have been represented, and utterly intolerable, they are guarded from escape. It is charged they are herded into barracks like animals, fed poor food in scant supply, and are locked up in cells at night.” The newspaper opined that if those representations “are correct, conditions exist in southern Florida that parallel some of the worst practices of the days of slavery before the Civil War. White and black slaves

701 Clyatt, 197 U.S. at 215. 702 Daniel, supra note 71 .

213 as well are held as nothing more than chattels, and barbarism, atrocity and cruelty are rampant.”

The terrible use of “convict labor [for such purposes is] authorized by the State of Florida,” and

“the convicts are treated like cattle by the men who purchase their labor for a term of months.” 703

The newspaper pointed out the difficulties faced by the federal government in a largely unrepentant South, in which “slavery and peonage practices” persisted. “Shortly after the Civil

War, about the time when the KKK was rampant, a strong disposition was manifested in many parts of the South to return the Negroes to slavery. It was quietly done in many cases.

Abhorrent conditions came to light as the result of this tendency to return to slavery practices.”

The article said that a “stringent [federal] law against peonage was enacted.” The Evening

Transcript noted that President Roosevelt had responded to earlier requests to combat peonage in the South, “notably [in] Alabama, Georgia and South Carolina.” The paper observed that the

Florida allegations, if true, would be “the worst on record” in a state where sheriffs and “various county and State officials are said to wink at the revolting practices.” The paper reported that there was a labor shortage in the poverty-stricken South, which exacerbated employers’ resort to peonage practices. Without mentioning W.S. Harlan by name, the article warned that “a thorough investigation will reach to men interested in Southern development [] who are well up in the financial world, many of them capitalists living in the North.” 704

14.B. The USDOJ’s Investigation and Prosecution of Peonage

It was a remarkable confluence of events that led to USDOJ’s investigation into, and prosecution of, peonage. This came about as the result of unchecked and abominable labor conditions, primarily in the South, that were exposed by a courageous Florida lawyer and the

703 The Boston Evening Transcript of October 16, 1906. Accessed on April 12, 2017 at https://news.google.com/newspapers?nid=sArNgO4T4MoC&dat=19061016&printsec=frontpage&hl=en. 704 Id .

214 wealthy Northern socialite who had the ear of President Roosevelt. It is unlikely that either the investigation or the prosecution would have taken place or had any measure of success had it not been for the willingness of so-called muckraking journalists to expose abuses, or the courage of judges willing to invoke the 1867 federal law that had lain untested. 705

It was not until the Supreme Court’s 1906 ruling in Clyatt that the 1867 Peonage Act came to be more broadly recognized as an effective weapon against debt enslavement. In reality, peonage had flourished in the United States for decades after the federal statute was passed, and the practice was abetted by state and local laws and corrupt legal systems. It was not uncommon in the South, although it was not confined to that region. The informal use of peonage afforded the former Confederate states with an avenue of economic recovery that capitalized on a poorly- paid labor force whose members lacked sufficient political power to escape their plight. As indicated by legal documents, contemporaneous press accounts, and secondary sources, the treatment of peons in the turpentine camps that led to the arrest of Samuel M. Clyatt came as a shock to the American public and governmental officials. These writings provide insight into late 19 th and early 20 th century policy, public opinion, and the influence of the trade upon attempts to end industrial slavery. Like USDOJ’s official effort, investigative journalists of this muckraking era were crucial in exposing the continued use of forced workers and convict labor, and in inspiring reform. Their writings “accused the southern states of accepting blood money for their bestial practice of selling human souls to grasping contractors.” 706

As the events surrounding Clyatt took place over a hundred years ago, it is not possible to conduct a survey or use a focus group to measure the impact of that decision and the public’s increased awareness of the pernicious practice of peonage. Samuel M. Clyatt was let go on the

705 See, e.g ., Schmidt, supra note 326. 706 Clark , supra note 88 at 6.

215 legal technicality of an allegedly defective pleading, in that the complaint against him did not assert all that was required by the statute under which he was charged. Because his release raised the question of whether the courts would treat similar acts seriously, the subsequent conviction of the wealthy and powerful W.S. Harlan came as a surprise. This was particularly the case where his paternal uncle was a sitting justice on the Court. The successful prosecution for continued peonage in the turpentining industry indicates that press accounts of the Clyatt case, and about W.S. Harlan’s alleged misdeeds, helped rally and inform Americans against the cruelly exploitative scheme. Newspapers of the day relayed detailed accounts of these suits, and captured local sentiments toward the helpless victims. These journalists played an important role in reducing peonage and the misuse of convict labor.

The press found that the public was very interested in peonage, particularly in Florida.

This was due in no small part to the fact that the accounts often read like thrilling fiction. The true tale of the Progressive president’s crusade against peonage is populated by villains who savagely abused peons in the Florida turpentining camps, charismatic presidents with colorful personalities, Southern aristocrats who vigorously resisted threats to their fiefdoms, and feisty lawyers who were ahead of their time. The press was captivated by these colorful personalities, and had a field day featuring them in an already sensational drama. Sometimes the same individuals were cast as good Samaritans, and other times as officious intermeddlers having anti-

Southern sentiments.

There were several USDOJ officials of special note. The most highly placed was U.S.

Attorney General Charles Joseph Bonaparte, the grandson of the French Emperor Napoleon I’s brother Jerome and Baltimore, Maryland, socialite Elizabeth Patterson. A graduate of Harvard

Law School, Bonaparte served as Roosevelt’s Attorney General from December 17, 1906, to

216

March 5, 1909. His tenure was an especially important time in the fight against peonage in the

South. 707 While there are many descriptions of Bonaparte, one of the more lively was published posthumously in the Washington Star on August 18, 1935.708 It credited Bonaparte, nicknamed the “Imperial Peacock,” 709 with founding the Federal Bureau of Investigation. The article quoted the most famous epithet leveled against Bonaparte by U.S. Congressman Frank Clark of Polk

County, Florida. Clark led the political opposition to USDOJ’s efforts against peonage, and belittled Bonaparte as the “transplanted bud of alleged French nobility.” 710

One of the earliest federal investigators into peonage was Frederick C. Cubberly, a native of Missouri who moved to Florida in 1895. A respected lawyer, Cubberly held a number of public offices, including an appointment in 1898 as U.S. Commissioner for the Northern District of Florida. Among later posts, he was U.S. Attorney for the Northern District of Florida from

1908-1916, and again from 1923 until his death in 1932. 711 Pete Daniel told the dramatic story of Cubberly’s 1901 visit to a Florida turpentine farm. 712 That first-hand witnessing of abuses to workers held there, followed by his alerting USDOJ of the ongoing practice, led to the investigation that resulted in Clyatt .713 This decision remains one of the Court’s most important

707 Eric F. Goldman, Charles J. Bonaparte, Patrician Reformer, His Earlier Career , in JOHNS HOPKINS UNIVERSITY STUDIES IN HISTORICAL AND POLITICAL SCIENCE 150 (Johns Hopkins University) (1943). Information in this volume explained that Goldman’s dissertation was published therein rather than by customary means, as his doctoral candidacy was interrupted by a call to service during World War II. 708 Don Bloch, Bonaparte Founded G-Men: Attorney General Under Theodore Roosevelt, Napolean’s Grandnephew First Organized the Force of Special Agents of the Department of Justice , WASHINGTON STAR , August 18, 1935. Accessed on April 12, 2017 at https://web.archive.org/web/20100411043042/http://www.fbi.gov/libref/historic/history/historic_doc/docstar.htm. 709 This sobriquet was not intended to be flattering. It supposedly was conferred upon Bonaparte by Severn Teackle Wallis, a prominent Maryland attorney, but has also been attributed to Baltimore Mayor James Hodges. FRANK RICHARDSON KENT , THE STORY OF MARYLAND POLITICS 33–34 (Thomas and Evans Printing Co.) (1911). 710 Bloch, supra note 708. 711 A Guide to the Frederick C. Cubberly Papers , University of Florida Smathers Libraries (2008). Accessed on April 15, 2017 at http://www.library.ufl.edu/spec/pkyonge/cubberly.htm. 712 Daniel, supra note 71. 713 Clyatt , 197 U.S. 207.

217 peonage decisions. Cubberly’s courage in seeking redress for peonage victims helped inspire

President Roosevelt’s quest to rout its use.

According to Daniel’s account, on the morning of February 6, 1901, Cubberly was visiting a nearby turpentine farmer’s property when he heard screams from the black family inhabiting a shanty there and shouted profanity from an armed white man. Cubberly had been told that rough handling of forced laborers was a common practice in Florida’s turpentine industry, but he was nonetheless shocked to witness the degree of its violence. After learning more of peonage abuses and becoming aware of the untested federal peonage statute, Cubberly corresponded with John Eagan, the local U.S. Attorney. Cubberly told of the workers’ terrible suffering at the hands of turpentine bosses, and of the laborers’ inability to obtain redress from corrupt state and local legal and law enforcement systems. 714 Cubberly also wrote to Assistant

U.S. Attorney General Russell, who also dealt with peonage cases in Alabama, regarding the fate of George Huggins, a white man who went to work for J.O. Elvington’s naval stores operation in

Levy County, Florida. Elvington had advanced Huggins money for transportation to the camp from South Carolina, to pay off another debt, and to purchase provisions and supplies. Huggins left Elvington’s camp to work for another turpentiner, as he and his family were “‘compelled [by

Elvington] to live in [an unhealthful] structure formerly occupied by horses and mules.’”

Elvington tracked Huggins down, “arrested” him without a warrant or legal authority, and forced the laborer to the camp return or be killed. Huggins was made to walk the 16-mile return to

Elvington’s camp at gunpoint.715

Cubberly found what would become an ideal test case for the peonage laws while waiting in the depot to catch a train in Gainesville, Florida. He observed three armed men, whom he

714 Daniel, supra note 71 at 3-4. 715 Daniel, supra note 71 n.3 citing correspondence from “Fred Cubberly to Charles W. Russell, Dec. 18, 2906, Box 083, Classified Subject Files of the Department of Justice, National Archives, Washington, D.C., Record Group 60.”

218 later learned from James R. Deen, another naval stores operator, were “‘man hunters’” from

Georgia. And so began the USDOJ’s test case against peonage, and what led to the U.S.

Supreme Court’s decision in Clyatt ; see § 15.B.

Attorney W.O. Butler of Shipley, Florida also contacted John Eagan with facts similar to those related by Cubberly. On June 29, 1901, Butler wrote “in the interest of many poor unfortunate negros … that are being held by these turpentine men in abject bondage. It is impossible for them, the negroes, to get justice in the Justice of the Peace Courts, for the turpentine men have all the J.P.’s in their power, and as a result many negroes are being held by these turpentine men in a worse state than when they were slaves.” Butler told how the laborers became ensnared in debt, “for the first thing one of these turpentine men do when they hire a negroe is to make him an advance in money or goods, mostly always in goods. The negroe never gets out of debt I care not what may be his earnings, and he is held at the muzzle of a gun and worked on extremely short rations.” Butler recounted the story of one worker who left a turpentine camp, only to be captured and “beaten most terribly.” 716

As journalists spread stories of brutality, readers across the nation were interested in more stories of Southern savagery toward debt peons, and the federal government intervened. 717

Bonaparte, Russell, Cubberly, and others were not the only USDOJ officials joining the fight against peonage. Progressive feminist Mary Grace Quackenbos was a graduate of New

York Law School and was admitted to the bar in 1904. She actively campaigned for equal rights for women, and was a strong advocate for workers’ rights. A former criminal investigator for the

New York Police Department, she used a modest personal inheritance to found “The People’s

716 Daniel, supra note 71 at 5-6. 717 Daniel, supra note 71 at n.26.

219

Law Firm” and championed the rights of the poor and disenfranchised. 718 Quackenbos was an

important figure in assisting European immigrants newly-arrived in New York who were tricked

into peonage by Southern employers and their recruiters. On July 24, 1906, she forwarded some

of the immigrants’ complaints to the U.S. Attorney General, and urged that some of the Florida

trials be adjourned to allow their testimony. Unsatisfied with the response, she contacted

President Roosevelt directly, and by October 1906, she was assigned to the peonage

investigation in Florida.719 The colorful Quackenbos garnered attention from the press; the New

York Tribune 720 and the Ocala Evening Star 721 reported on November 12, 1907, of her new role

with USDOJ.

Quackenbos was the first woman to be appointed a Special Assistant U.S. Attorney, and began investigating peonage allegations involving recent immigrants and African Americans.

Labor agents targeted these vulnerable groups to meet labor shortages in the South in agriculture,

mining, and public works. Their victims were locked into conditions tantamount to . 722

Her failure to conform to ideals of the day regarding feminine comportment afforded the press

and her opponents ample opportunity for commentary. Although Assistant U.S. Attorney

718 Nicole Pierski, Role of Women in NYCLA’s Early Years , 3 NEW YORK COUNTY LAWYER 11 (2007). 719 Daniel, supra note 71 at 9. Ms. Quackenbos was helped by the Jewish Aid Society and a $300 grant from S.S. McClure, the publisher of McClure’s Magazine . Using her maiden name of Winterton, she posed as a reporter and traveled throughout Florida to investigate. Robert B. Outland, III, ANOTHER NEW SOUTH : PATTERNS OF CONTINUITY IN THE SOUTHERN NAVAL STORES INDUSTRY (PhD diss., Louisiana State University, 1999). Accessed on April 12, 2017 at http://search.proquest.com.unr.idm.oclc.org/pqdtglobal/docview/304522379/5D939DD378284281PQ/1?accountid= 452. 720 Woman Assistant for Bonaparte: Mrs. Quackenbos Appointed to Investigate Peonage Cases , NEW YORK TRIBUNE , Nov. 12, 1907. Accessed on April 12, 2017 at http://chroniclingamerica.loc.gov/lccn/sn83030214/1907- 11-12/ed-1/seq- 1/#date1=1789&index=0&rows=20&words=ASSISTANT+BONAPARTE+WOMAN&searchType=basic&sequenc e=0&state=&date2=1924&proxtext=%22woman+assistant+for+bonaparte%22&y=10&x=10&dateFilterType=year Range&page=1. 721 Mrs. Quackenbos Promotion: Has Been Made Special Assistant to the Attorney General , OCALA EVENING STAR , NOVEMBER 12, 1907. Accessed on April 12, 2017 at http://chroniclingamerica.loc.gov/lccn/sn84027621/1907-11- 12/ed-1/seq- 8/#date1=1789&index=0&rows=20&words=PROMOTION+QUACKENBOS&searchType=basic&sequence=0&st ate=&date2=1924&proxtext=%22quackenbos+promotion%22&y=0&x=0&dateFilterType=yearRange&page=1. 722 Pierski, supra note 718.

220

General Russell praised Quackenbos in the USDOJ Report on Peonage of 1907 as uniquely well- qualified, she proved a controversial and useful distraction to her critics. 723 The notion that

Southern peonage would be investigated by a Yankee woman, much less one who was a divorced Jewish lawyer, furnished fodder to journalists and defenders of the naval stores industry who sensationalized USDOJ’s efforts.

Journalist Zach MeGhee featured the “Woman Lawyer” in the Newberry, South Carolina

Herald and News of November 5, 1907. He wrote of Quackenbos’ investigation into peonage at

Sunnyside Plantation, and the efforts of its Greenville, Mississippi, owners 724 to have her expelled. Supposedly, a “thousand” Italians were enticed to accept jobs there in exchange for land and citizenship, but were instead held captive under difficult circumstances. They were indebted to their employers “for their passage money from Italy,” and were “compelled to work under such conditions that they could not earn enough for the support of their families.” Unable

“to defray the debt[,] they had to work on and on with no hope of ever paying out” and those attempting to escape were “promptly arrested and taken back to the plantation.” MeGhee wrote that “[f]ollowing the prosecutions of those in Florida last winter who held white men in bondage,” Quackenbos was part of the “preparations [] being made to prosecute certain ones in

Mississippi and other southern states who have been holding in peonage either white laborers or black ones.” The journalist concluded: “What [her] report says will be interesting, and most likely it will be strongly combatted, as any investigator of such things sent down from the north is likely to be, for most natural and proper reasons.” 725

723 USDOJ Report of 1907, supra note 439, appx. 1 at 20-21. 724 Boehm, supra note 48. 725 Zach Meghee, Peonage Cases: Department of Justice is Now at Work on Them - Woman Lawyer Interested , THE HERALD AND NEWS , Nov. 5, 1907. Accessed on April 12, 2017 at http://chroniclingamerica.loc.gov/lccn/sn86063758/1907-11-05/ed-1/seq- 6/#date1=1789&index=0&rows=20&words=MeGhee+Zach&searchType=basic&sequence=0&state=&date2=1924 &proxtext=%22zach+meghee%22&y=6&x=12&dateFilterType=yearRange&page=1.

221

As Quackenbos’ peonage investigations extended beyond Florida into other areas of the

South, it increased information available to USDOJ as well as to her circle of angry critics.

Among the latter was LeRoy Percy, an owner of Sunnyside Plantation and subject of peonage assertions, who narrowly avoided indictment by appealing to his friend Theodore Roosevelt. 726

The wealthy and powerful Senator Percy was especially incensed by Quackenbos after his vaunted charm failed to win her over. To him, she was an irritating interloper who lacked impartiality toward business.727

As the USDOJ investigations continued, and Samuel M. Clyatt and W.S. Harlan resisted their respective charges of peonage, Senator Percy used his considerable contacts to exact revenge. He focused upon Quackenbos, who was already an object of scorn from his political allies and many journalists.728 The Ocala Evening Star of November 18, 1907, wrote that

Quackenbos was “recalled” after “charges” were brought against “the Department of Justice

Busybody.” Quackenbos was accused of “incompetency” by Senator Percy, whose business partner Orlando B. Crittenden was being held “under bond on a charge of keeping an alien subject to servitude.” 729 The same article was printed in Florida’s Live Oak Daily Democrat on

November 18, 1907, which also spoke unflatteringly of Quackenbos, as the article trumpeted that this “Female Peonage Spy Must Report to Washington to be Investigated.” 730 In November,

726 J. WILLIAM HARRIS , DEEP SOUTHS : DELTA , PIEDMONT , AND SEA ISLAND SOCIETY IN THE AGE OF SEGREGATION 135 (The Johns Hopkins University Press) (2001). 727 Bertram Wyatt-Brown, LeRoy Percy and Sunnyside: Planter Mentality and Italian Peonage in the Mississippi Delta , 50 THE ARKANSAS HISTORICAL QUARTERLY 60, 70 (1991). 728 Boehm, supra note 46 at 43. 729 Mrs. Quackenbos Recalled: Charges Have Been Brought Against the Department of Justice Busybody , THE OCALA EVENING STAR , Nov. 18, 1907. Accessed on April 12, 2017 at http://chroniclingamerica.loc.gov/lccn/sn84027621/1907-11-18/ed-1/seq- 1/#date1=1789&index=0&rows=20&words=Busybody+Department+Justice&searchType=basic&sequence=0&stat e=&date2=1924&proxtext=%22department+of+justice+busybody%22&y=14&x=11&dateFilterType=yearRange& page=1. 730 Quackenbos Called Down. Female Spy Must Report to Washington to be Investigated . LIVE OAK DAILY DEMOCRAT , (Live Oak, Fla.), 18 Nov. 1907. Accessed on April 12, 2017 at Chronicling America: Historic

222

1909, South Carolina’s Bamberg Herald singled out that Quackenbos was a woman in describing her appointment to USDOJ. In an article captioned Petticoat Lawyer Employed By Uncle Sam to

Conduct Prosecution in a Peonage Case , it noted that she “was the first of her sex to be selected for such a position.” 731

14.C. Congressional Opposition to USDOJ’s Peonage Investigation

The USDOJ zealously challenged peonage in the South, and took on the wealthy and important men who controlled the implicated businesses. This left the department vulnerable to vicious attack from members of Congress. Powerful Southern politicians sympathetic to the naval stores industry spoke vehemently against the investigation and challenged the government officials involved on personal and professional levels. Among the most influential critics was

Senator Percy, who took free advantage of being the powerful friend of presidents even as he was also part-owner of a plantation where peonage supposedly was common. 732 Other very vocal opponents included U.S. Senator Augustus Octavius Bacon 733 and Congressman William

G. Brantley, both of Georgia; they had served as Samuel M. Clyatt’s defense counsel against federal peonage charges. 734

American Newspapers . Lib. of Congress. < http://chroniclingamerica.loc.gov/lccn/sn95026788/1907-11-18/ed-1/seq- 1/ . 731 Petticoat Lawyer Employed by Uncle Sam to Conduct Prosecution In a Peonage Case , THE BAMBERG HERALD , Nov. 8, 1907. Accessed on April 12, 2017 at http://chroniclingamerica.loc.gov/lccn/sn86063790/1906-11-08/ed- 1/seq6/#date1=1789&index=0&rows=20&words=LAWYER+PETTICOAT&searchType=basic&sequence=0&state =&date2=1924&proxtext=%22petticoat+lawyer%22&y=8&x=10&dateFilterType=yearRange&page=1 732 Daniel, supra note 71 at 103. 733 In 1904, Senator Bacon sat on the Congressional committee for the impeachment and trial of Judge Charles S. Swayne, who had tried both Clyatt and W.S. Harlan. See, e.g., the Wilmington, North Carolina Semi-Weekly Messenger : TAKES ORDER . SENATE INFORMED OF THE IMPEACHMENT OF SWAYNE . TRIAL DELAYED . The semi- weekly messenger. (Wilmington, N.C.), 16 Dec. 1904. Chronicling America: Historic American Newspapers . Lib. of Congress. Accessed on April 13, 2017 at < http://chroniclingamerica.loc.gov/lccn/sn91068367/1904-12-16/ed- 1/seq-1/ > 734 Daniel, supra note 71 at 12-13.

223

Congressman Clark insisted that the U.S. Attorney General furnish him with all of the reports prepared by Quackenbos and Russell and an accounting of their expenses. 735 Clark

“made a bitter attack on the newspaper accounts of peonage in his state,” which he called

“wholly unfair and unjust.” He especially criticized W.R. Hearst and his Cosmopolitan magazine, 736 which published an article on peonage by Richard Barry that cast Florida in an ill light. Clark said that “to deal with a ‘muckraker’ is always unpleasant.” He asserted that it was

“[dis]agreeable to engage in disputation with that product of our present-day civilization known as ‘yellow journalism,’ which for a few pennies and an opportunity to keep in the lime light does not hesitate to caluminate an entire community.” Clark criticized the USDOJ report and the U.S.

Attorney General. Clark mentioned “a few remarks that I shall make upon the subject of

‘Peonage in Florida,’” an article that was printed in “Cosmopolitan magazine for March, 1907, and partly copied in the New York Evening Journal of February 25, 1907.” These were “written by one Richard Barry,” whom Clark was “constrained to say that [Barry] has either been easily duped by some designing person or else he is a right considerable liar himself.”

The Congressman denied that Florida statutes permitted such actions on the part of a creditor, and accused the journalist of making “a deliberate and unqualified falsehood.” Clark quoted Florida newspapers that disagreed with Barry, including the Live Oak Democrat of

February 28, 1907, which labeled Barry “a sneaking, two-faced liar.” Clark cited the St.

Augustine Evening Record of February 28, 1907, which called into question the validity of the testimony of the Italian workers in the peonage case. The witnesses “gave their testimony through an interpreter, being unable to make themselves intelligible in English.” The newspaper

735 U.S. Congress, House, Congressional Record, 60 th Cong., 1 st sess., March 4, 1908, at 4660-61. 736 PRICE OF PEONAGE . ATTORNEY GENERAL BONAPARTE COULDN ’T TELL CONGRESSMAN CLARK HOW MUCH THE GOVERNMENT IS PAYING SPECIAL AGENTS . THE OCALA EVENING STAR (Ocala, Fla.), 5 March 1907. Chronicling America: Historic American Newspapers . Lib. of Congress. Accessed on April 13, 2017 at .

224 asked: “What conception did these [men] have of the meaning of their actions or the effects on others of the testimony they gave?” Clark quoted from an editorial published on February 25,

1907, in the Live Oak Democrat , which faulted the victims of peonage:

The vagabond negroes, and degraded whites in this State who obtain money and goods and grub under false pretenses and then ‘jump’ their contracts and laugh in the faces of the ‘suckers’ who trusted them feel that in Barry they have a friend indeed, and in the Cosmopolitan a noble advocate to tell the world of their cruel wrongs and manufacture the public sentiment to justify and protect them in keeping up their rascally practices. The new view of the peonage laws is a direct encouragement to a large class of human vermin with no more moral sense than professional pickpockets, and they make no concealment of their insolent exultation over this unexpected and powerful ally to shield them while they prey upon honest men and avoid all penalty for their knaveries. 737

Clark defended the “vindicated” target of another USDOJ investigation, F.J. O’Hara.

The latter was twice acquitted in federal court of peonage, and lost time and money in addition to

“suffering the humiliation of criminal prosecutions.” 738 Clark specifically criticized Russell and

Quackenbos. He said of the former: “It is a dirty bird that befouls its own nest.” Clark characterized the latter as a “female lawyer” from the “slums of the east side of New York.” He also accused Quackenbos of being “the controlling force in the prosecutions [who got] around the question of former jeopardy upon her theory that our people are a barbarous tribe to whom the ordinary principles of law do not apply.” Clark charged Richard Barry with falsely blaming

Henry Flagler, president of the East Coast Railway Company that was then connecting the

737 U.S. Congress , supra note 735. 738 Pete Daniel discussed the USDOJ’s attempted prosecution of F.J. O’Hara, who was the superintendent of a sawmill in Buffalo Bluff and a naval stores operation in Maytown, both in Florida. According to affidavits obtained by USDOJ, O’Hara brutally exploited his workers. In addition to other violence and beatings, O’Hara engaged in especially vicious acts of anti-Semitism. One immigrant said that O’Hara even charged workers for a cup of water, and docked them an hour’s pay to drink it. On December 10, 1906, O’Hara and his overseers were tried in Jacksonville, Florida on charges of peonage and conspiracy to commit peonage. On Christmas Eve, after a 14-day trial and a 17-minunte deliberation, O’Hara was acquitted by the jury. On January 2, 1907, Russell prosecuted O’Hara a second time for peonage. After a 22-day trial with more than 50 witnesses, the jury took only 12 minutes to again acquit O’Hara. Daniel, supra note 71 at 84-85.

225 railroad to Key West, as “largely responsible for slavery conditions in Florida.” The

Congressman praised Flagler for bringing jobs and prosperity into Florida. 739

Following complaints about USDOJ by Clark, Bacon, Brantley, and others, additional members of Congress and the public became concerned, and the Congressional Immigration

Committee launched a separate peonage investigation. The USDOJ was not pleased, but continued cautiously with its work. In the end, Congress did not shut down the USDOJ effort, but the backlash seemed to dampen the enthusiasm of President Roosevelt for pursuing peonage. 740 Pete Daniel cited the U.S. Attorney General’s Annual Report for 1911 which observed that, despite a decade of peonage prosecutions, “in some of the Southern States this practice appears to be still quite extensively carried on.” 741

15. Significant Decisions on the Persistent Use of Forced Labor in the Postbellum South

“The never-ceasing clanking of the manacle...” They wake, toil, rest, eat, and sleep, to the never-ceasing clanking of the manacles and chains of this involuntary slavery. Jamison v. Wimbish 742

After Theodore Roosevelt boldly ordered USDOJ to investigate peonage, the next step was to secure indictments and convictions: this was where responsibility fell upon the courts.

The effort met with mixed success, and was opposed by business interests and those who did not disagree with the continued forced labor of African Americans and European immigrants.

Federal courts heard a number of significant cases relating to various forms of peonage that ranged from the beast-like treatment of laborers by turpentiners to the leasing of questionably

739 Congressional Record, 60 th Cong., 1 st sess., March 4, 1908, supra note 735 at 4663. 740 Daniel, supra note 71 at 108-09. 741 Congressional Record, 60 th Cong., 1 st sess., March 4, 1908, supra note 735 at 109, n.75, citing an August 24, 1911, letter from Alexander Akerman to the U.S. Attorney General in the Annual Report of the Attorney General for 1911. 742 Jamison , 130 F. at 355; written by Judge Emory Speer.

226 convicted men. As the following decisions show, the federal peonage statute was used to halt the unfair practices.

In the face of political and corporate resistance to ending the profitable (at least to the master/creditor) practice of peonage, Roosevelt needed popular support for his campaign, particularly from elected officials, jurors, and voters. This is where journalists came in, and if ever any president knew how to work the press, it was Theodore Roosevelt. Areas of the South where the investigations were taking place were well aware of the effort, but national publications made it a topic of broad public interest. The northern press, particularly black newspapers and commentaries, published stories of the appallingly widespread use of torture, starvation, servitude, and intimidation. One of the confidential informants for USDOJ and the press was Booker T. Washington, who quietly aided investigators. The stories were as dramatic as they were tragic, of men forced to work under egregious labor contracts, and were so mistreated that their lives became living, and sometimes dying, hells.

Official court records are not the sole historic resource useful in exploring the facts and significance of the peonage cases, as the press is an invaluable source of contemporaneous information. Unlike judges, journalists are unconstrained by the legal rules of evidence and civil procedure that are intended to sift out hearsay and improper testimony; the press is freer in pitching a story to its targeted audience. Press accounts from over a century ago can be difficult to locate, as many are neither extant nor readily accessible. Fortunately, some articles remain, and select clippings were of sufficient interest to the department’s investigators and prosecutors that these were preserved as part of the permanent record of the USDOJ’s Peonage Files. 743

The following article did not arise from any of the cases analyzed in this dissertation, but is of special interest as it recounted the type of treatment many peons received at the hands of

743 USDOJ PEONAGE FILES . Accessed on April 17, 2017 at https://innopac.library.unr.edu/record=b2717913~S1 .

227 their captors. The New York Times of March 11, 1904, described how a black Mississippi farmhand was saved from peonage by federal authorities:

NEGRO SAVED FROM PEONAGE MISSISSIPPI PLANTERS THREATEN TO KILL HIM AND INFORMERS Jackson, Miss., March 10. – Deputy United States Marshals to-day rescued James Griffin, a negro farmhand, at the point of their revolvers, from a state of peonage in Kemball County and removed him to Jackson. The Federal authorities had been informed that prosperous farmers in that section were holding negroes against their will and compelling them to remain on the cotton plantations, working like slaves. Griffin owed a planter $10, which he was unable to pay, and for security the planter held him. When the Marshals arrived Griffin broke from his captors and landed in the arms of his rescuers. Excited planters crowded around the deputies, declaring they intended to take the negro, but they withdrew when the officers pulled their pistols. Threats have been made, it is said, to kill not only the negro, but also the United States Marshals and the men who informed them of Griffin’s plight. Reputable white citizens of Kemper County brought the case to the attention of the Marshal, asserting that the negro on one occasion had been stripped and whipped for fleeing from those who held him. So severe was the beating that his clothes stuck for several days to the gashes made by the lash. On his second escape, it is alleged, he was “recaptured, pistols were drawn on him, a rope was placed around his neck and fastened to the pommel of the saddle of one of his captors, and he was dragged and driven back.[”] It is learned that some of the people suspected of having reported the case are terrorized and are hunting insurance agents for their property against incendiarism. 744

The sufferings of the Mississippi farmhand were not unique, and were repeated in numerous forced labor cases in the South.

744 Negro Saved from Peonage. Mississippi Planters Threaten to Kill Him and Informers . NEW YORK TIMES , March 11, 1904. Accessed on April 13, 2017 at http://search.proquest.com/hnpnewyorktimes/docview/96487598/5FD24D7A3AE34144PQ/3?accountid=34227.

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15.A. Educating the Juror: Peonage Cases of Alabama, 123 F. 671 (M.D. Ala. 1903)

In 1903, Judge Thomas Goode Jones issued jury instructions that proved invaluable in the fight against peonage, and were used to educate other courts and the public 745 (see § 14.A). The judge was responding to questions posed by the grand jury about the constitutionality and reach of the 1867 federal peonage statute. Jones provided a clear explanation of the requirements of the law, and advised how it should be applied to evaluate the actions of the defendants. 746

The Alabama peonage cases had captured national interest, and the press kept the public informed. On June 16, 1903, the New York Times told its readers of Jones’ instructions and answers to jurors’ questions. The judge assured the grand jury that “these cases were by no means general, but confined to two or three counties, and directed indictments in all cases where the law had been violated.” He explained that Alabama law left indigents vulnerable to becoming forced laborers if they were unable to pay court assessments, particularly when punishment was deceptively administered.747 As the Washington Times reported, “the Alabama statute, known as the Seymour contract law” allowed those charged “to confess misdemeanors” and required “persons so convicted to work out their fines.” The newspaper said that Jones had called “the statute [] a violation of the Federal Constitution in that it was a civil contract, and no one could be imprisoned by a debt or forced to work out their fines.” 748

Judge Jones explained that the Peonage Act of 1867 prohibited a practice brought from

Mexico and Spain. He contrasted chattel slavery from peonage, as the latter was predicated on a contractual master-servant relationship based on indebtedness. Among important differences

745 See Morris , 125 F. 322. 746 Peonage Cases , 123 F. 671. 747 Peonage Cases , 123 F. at 681-83. 748 Peonage in Alabama to be Suppressed. Department of Justice Takes Energetic Action . THE WASHINGTON TIMES , June 18, 1903. Accessed on April 13, 2017 at The Washington times. (Washington [D.C.]), 18 June 1903. Chronicling America: Historic American Newspapers . Lib. of Congress. .

229 were that whites could be enslaved as peons, a peon’s status did not descend to his children, and a peon was a freeman with political and civil rights. A critical similarity to chattel slavery was that the master had the right of physical control of the peon; he could force the peon to perform the work, or transfer his obligation to another.749

Judge Jones emphasized the “right, privilege, or immunity of a citizen of the United

States to be free from slavery or involuntary servitude of any kind, except upon due conviction of crime” as guaranteed by the 13 th amendment. He rejected the argument that peonage was punishable only where it existed under an organized “system,” and noted that Congress “clearly distinguishes between the ‘system’ and the ‘condition.’ The real vice of the ‘system’ was the

‘condition’ it brought about. The evil was the same, whether brought about by law or by lawlessness.” Jones also confirmed that states and territories could not nullify acts of

Congress. 750

The judge concluded that the state statute forcing farm workers and tenants into peonage or service as contract laborers violated the 13 th amendment and the federal anti-peonage statute. 751 The jury was reminded that the constitution of Alabama also forbade imprisonment for debt, and that indebtedness could not be treated either directly or indirectly as a crime. “The only constitutional method of enforcing a contract for personal service is to get judgment and execution, and have compensation for the broken contract by seizure and sale of the defendant’s property.” 752 Judge Jones criticized the state statute that imposed criminal penalties on farm workers and tenant farmers for quitting work early, leaving the premises, or going to work elsewhere before his term expired or the owner wanted them to leave, as “the laborer or renter in

749 Peonage Cases, 123 F. at 673-74. 750 Peonage Cases, 123 F. at 675-77. 751 Peonage Cases, 123 F. at 689-92. 752 Peonage Cases, 123 F. at 685.

230 such a condition is a serf in all but name.” 753 He told the jurors that Alabama counties could not adopt laws permitting peonage, as constitutional guarantees “must be the same in every locality, on every class, and on every foot of soil in Alabama.” 754

After the Alabama grand jury returned indictments in the matters before Jones, key defendants were convicted in their ensuing trials or made plea deals. Some, after serving part of their sentences, sought a commuted sentence or pardon. In private correspondence, Judge Jones asked Booker T. Washington to lend his support to their release. Jones said that the “object of all good men now is to lessen the friction between the races & to put the blacks especially on as high a plane as possible.” Jones said that supporting the request would “confound those filled with low hates” and “lead to better things.” 755

The Chicago Tribune of July 15, 1903, reported on one of the infamous peonage trials overseen by Judge Jones of Alabama. It told of the deadlock in the case of James Fletcher

Turner, and warned: “No matter how strong the evidence may be or how atrocious the cruelties he may have committed he will escape punishment.” This was because at least one man on the jury either “approve[d] of the system of quasi-slavery which has sprung up in Alabama” or was unwilling “to send a white man to the penitentiary for maltreating a black man,” particularly on the testimony of a black witness. 756

An exceptional discourse on the Alabama Peonage Cases is found in Douglas A.

Blackmon’s SLAVERY BY ANOTHER NAME .757 Blackmon discussed the complicity of state and local officials in fostering peonage, and Progressive-era federal efforts to combat the practice.

753 Peonage Cases, 123 F. at 687. 754 Peonage Cases, 123 F. at 688. 755 Harlan, supra note 426, vol. X at 268-69. 756 Peonage in Alabama . THE CHICAGO TRIBUNE , July 15, 1903. Accessed on April 13, 2017 at http://archives.chicagotribune.com/1903/07/15/page/6/article/peonage-in-alabama . See also § 10 regarding Blyew . 757 Blackmon, supra note 94. See also Daniel, supra n.71 at 43-64; Aucoin, supra note 693 at 126-78.

231

Blackmon described USDOJ’s 1903 investigation and subsequent “trial of accused slave traders,” and showed how “Reformers were dealing with a ‘constitutional limbo in which slavery as a legal concept was prohibited by the Constitution, but no statute made an act of enslavement explicitly illegal.’” 758

Blackmon effectively used press from that day to set the stage for the political and public realities of the early 20 th century. Many white Alabamians were displeased by the indictments and federal interference with local work practices, especially where race was involved. On June

13, 1903, the Montgomery Advertiser challenged the seriousness with which Judge Jones approached these cases. It took exception to outsiders, especially from the federal government, inserting themselves in what were regarded as private affairs and a matter of state control: “A sentiment that is now practically unanimous throughout the Southern States … is that we, the white men of the South, propose to settle racial questions in our own way and in our own time.

And we will do it in the way best for both races.” The Advertiser editorialized:

Several millions of ex-slaves, suddenly exalted to citizenship, was the heritage we received from the Federal government. As if the mere fact of their presence in changed conditions was not serious enough, they were endowed with all the political rights that any citizen of the Union possessed, and for which they were neither prepared nor fitted. And then, to add to the bitterness of our degradation, and the hopelessness of the problem, our country was overrun with adventurers of the North, some of them good and well-meaning men, but others as unprincipled scoundrels as ever scuttled a ship or robbed a safe. It was these and their kind who made the conditions of the Southern people unbearable and revolt inevitable.

Forgiveness is a Christian virtue and forgetfulness is often a relief, but some of us will never forget the damnable and brutal excesses that were committed all over the South by negroes and their white allies, many of whom were federal officials, against whose acts our people were practically powerless. And one of the worst features

758 Blackmon, supra note 94 at 214-15 citing the Montgomery Advertiser , June 13, 1903 at 4.

232

of this saturnalia was that the ballot in the hands of ex-slaves was in almost every instance, both from their own ignorance and at the instigation of their carpet-bag allies, used to despoil, degrade and humiliate the real citizens of the almost helpless South. 759

These cases show that Southern racial attitudes were slow to change, and resistance to federal requirements continued. Nonetheless, courageous Alabamians such as Judge Jones made a difference.

15.B. The Insistent Employer: Clyatt v. United States , 197 U.S. 207 (1905)

Laboring in Southern turpentine camps was “dirty, physically exhausting, and often dangerous work” done in remote and mosquito-ridden areas. Few willingly tapped the trees, with its paltry pay and barbaric conditions. Most laborers were leased convicts, or poor African

Americans and recent European immigrants without better options. They suffered beatings, whippings, and worse as bosses used violence to keep workers in line and demanded they maintain an unsustainable pace. 760 The case against Samuel M. Clyatt shows the lengths employers took to retrieve indebted workers who jumped their contracts.

Florida bosses controlled employees by invoking an 1891 state statute that provided for the imprisonment of laborers who quit their job early or while owing money to the employer.

This was commonplace in the South, and profitable for both the lumbering operations and local jurisdictions. Due process was ignored by complicit officials as they increased the number of convictions to meet employers’ demands, and forced ill-paid laborers to complete their contracts or serve their sentences. Once impressed, it was virtually impossible for a worker to repay a debt that increased daily with interest as long as the employer/creditor wanted him to stay.761

759 Blackmon, supra note 94 at 214-15, n.60 quoting the Montgomery Advertiser , June 13, 1903, at p. 4. 760 Shofner, supra note 280 at 17. 761 Shofner, supra note 280 at 14-15.

233

Clyatt, a wealthy naval stores operator from Tifton, Georgia, traveled to Levy County,

Florida, accompanied by armed “manhunters” 762 to conduct a predawn raid. They were seen by chance while en route by Cubberly, who reported them to federal officials ( see § 14.B). Clyatt’s purpose was to forcibly retrieve five African Americans who had broken labor contracts with

Clyatt’s firm in Georgia to work for turpentiner J.R. Deen in Florida. Clyatt brought with him

Georgia warrants for the workers’ arrest on charges of gambling. 763 This was a common ploy of employers, who routinely used flimsy warrants to compel workers’ return under threat of being sentenced to hard labor. 764 Levy County Sheriff H.S. Sutton, whose deputy served the Georgia warrants, testified at Clyatt’s peonage trial that he knew of Clyatt’s intentions, and admitted to having previously served similar warrants without question. 765

Clyatt told Deen that the men owed him money, and that he was returning them to

Georgia as an example to others lest they also be tempted to leave. 766 Clyatt refused Deen’s offer to pay the debts of two of the men. He coerced one of Deen’s employees to put Clyatt’s former workers Mose Ridley and Will Gordon in leg chains, then help Clyatt and his hostages catch a train back to Georgia. There were no court proceedings in Florida; the Georgia warrant had been obtained to leverage Clyatt’s control over the men, who feared on a chain

762 USDOJ Peonage Files, supra note 743. 763 Given Four Years. S.M. Clyatt, of Tifton, Ga., Sentenced by Judge Swayne. Was Convicted of Peonage. Will Appeal to the Supreme Court of the United States . WEEKLY TALLAHASSEEAN , March 28, 1902. Accessed on April 13, 2017 at The Weekly Tallahasseean. (Tallahassee, Fla.), 28 March 1902. Chronicling America: Historic American Newspapers . Lib. of Congress. < http://chroniclingamerica.loc.gov/lccn/sn95047416/1902-03-28/ed-1/seq- 1/ >. The article related that Clyatt said that he had no intention of violating Florida, Georgia, or United States law, and had consulted with the local sheriff in the matter. Judge Swayne replied that he “could not see why Mr. Clyatt and his men, not being officers of the law, should come into Florida in the night time, armed with guns and revolvers, and forcibly carry off citizens of this State, without due process of law.” Id . The courts variously described the Georgia warrants as for gambling and larceny. 764 Tegeder, supra note 438 at 90. 765 Tegeder, supra note 438 at 90, n.42 citing testimony of H.S. Sutton from Clyatt , 197 U.S. 207. 766 Tegeder, supra note 438 at 90.

234 gang more than their former boss. Although the workers supposedly returned to Clyatt’s camp in

Tifton, they were not heard from again. 767

Cubberly’s disclosures to USDOJ resulted in a U.S. Secret Service investigation and the arrest of the Levy County deputy who helped seize Ridley and Gordon. Samuel M. Clyatt was returned under subpoena to Florida, where he was arrested for peonage. The case generated great interest in the South, and considerable support for Clyatt from representatives of the naval stores industry. Over $90,000 was raised by them for his defense, with the Georgia-Florida

Sawmill Association raising $5,000 in a single night. The local press stirred the public against the prosecution by inaccurately reporting that Clyatt’s trial was unfair, and that most of the jurors were black. 768

Clyatt was convicted of peonage on March 24, 1902, by a federal jury of the Northern

District of Florida, with Judge Charles Swayne presiding. Clyatt’s appeal to the U.S. Court of

Appeals for the 5 th Circuit resulted in deadlock. The U.S. Supreme Court granted Clyatt’s petition for certiorari , which challenged the merits of the case and asserted that the federal peonage law was unconstitutional. Clyatt was represented before the Court by his fellow

Georgians, U.S. Senator Bacon and Congressman Brantley 769 (see § 14.C).

In a March 13, 1905, decision written by Justice Brewer, the Court began by examining the constitutionality and scope of the 1867 Peonage Act. The opinion defined peonage for the first time, and stated the elements of proof necessary to establish the crime. Citing Jaremillo ,770 the Court said that peonage “may be defined as a status or condition of compulsory service,

767 Tegeder, supra note 438 at 9. 768 Outland , supra note 719 at 519. 769 Bacon’s will bequeathed money for the establishment of a “whites-only” municipal park in Macon, Georgia. In Evans v. Newton , 382 U.S. 296 (1966), the U.S. Supreme Court ruled that this segregationist requirement violated the 14 th amendment because the park was a publicly-owned entity, and ordered that it be integrated. 770 Jaremillo, 1 N.M. at 194.

235 based upon the indebtedness of the peon to the master. The basal fact is indebtedness.”771

Brewer distinguished peonage from ordinary indebtedness, as the debtor in the latter instance

“can elect at any time to break it, and no law or force compels performance or a continuance of services.” Conversely, a peon could not freely leave, as the master could require that he remain and perform the service contracted for as repayment.772 The Court also held that the 14 th amendment prohibited state laws that allowed peonage.

Over a hundred years later, Clyatt remains an important decision upholding the 1867 act and ensuring federal protection for peons. 773 Despite this major legal triumph for USDOJ, Clyatt personally prevailed as the case was remanded for retrial due to alleged evidentiary errors. The

Court carefully noted that Clyatt was convicted for “returning certain specified persons to a state of peonage.” 774 It recounted trial testimony which “discloses that the defendant, with another party, went to Florida, and caused the arrest of Gordon and Ridley on warrants issued by a magistrate for larceny; there can be little doubt that these criminal proceedings were only an excuse for securing the custody of Gordon and Ridley, and taking them back to Georgia to work out a debt.” Despite the Court’s acknowledgment that there was “abundant testimony from which the jury” could make a finding of their return to that status, there was “not a scintilla of testimony to show that Gordon and Ridley were ever theretofore [held] in a condition of peonage.” Because the record failed to establish that the men were “returned” by Clyatt to a pre- existing, prohibited state of peonage, the Court reversed the judgment in part and ordered a new trial on that issue.

771 Clyatt , 197 U.S. at 215. 772 Clyatt, 197 U.S. at 215-16. 773 Clyatt, 197 U.S. at 216-19. 774 Clyatt, 197 U.S. at 208.

236

Justice Harlan’s dissent in Clyatt agreed that the 1867 Peonage Act was constitutional, but took exception to retrying the defendant. Harlan said: “The accused made no objection to the submission of the case to the jury, and it is going very far to hold in a case like this, disclosing barbarities of the worst kind against these negroes, that the trial court erred in sending the case to the jury.” 775

The Clyatt decision engendered considerable interest on the part of politicians, the public, and the press, and brought heightened focus to the terrible ways that peonage was carried out.

Going beyond the writing of the Court, other sources indicate that the prosecution of Clyatt was fraught with drama, deceit, idealism, and intrigue. Numerous scholars have written on peonage in the pines, including the Clyatt case. 776 They scoured original source material, and related previously unpublished information from the investigations and prosecutions. Their writings yielded more detail than the Court’s decision revealed, and told how USDOJ became interested in peonage after alarming conditions in the naval stores industry were disclosed to the U.S.

Attorney General. 777

Additional information on peonage, particularly in Florida, came about through

Cubberly’s cooperation with the press. He anonymously published a story for the New York

Independent , which was known as a “muckraking journal” for its pursuit of social causes. 778 The article said that turpentiners justified peonage as an “economic necessity,” and worked in concert with local law enforcement and justices of the peace to enforce unfair labor contracts. It maintained that Clyatt and subsequent USDOJ investigations showed how the “machinery of the

775 Clyatt , 197 U.S. at 223. 776 See, e.g ., Daniel, supra note 71; Carper, supra note 95; Tegeder, supra note 438; and Shofner, supra note 280. Daniel quoted the editors of the Independent , who explained: “The writer of the following article is a resident of the South, thoroughly familiar with what is known as peonage, and to some extent personally interested in the peonage prosecutions. For reasons in no way discreditable to himself, he prefers that his name shall not be published.” 777 Carper, supra note 95 at 87. 778 See, e.g ., Carper, supra note 95 at 88, n.17 citing “Fred Cubberly, ‘Peonage in the South,’” Independent , LV (July 9, 1903), 1616-1618.

237 law was used corruptly for the purpose of enslaving freemen….” 779 The Independent also published the distressing story of a black peon, who at age ten was hired out to a camp captain:

In many cases it is very evident that the court officials are in collusion with the proprietors or agents, and that they divide the ‘graft’ among themselves. As an example of this dickering among the whites, every year convicts were brought into the Senator’s camp from a certain county … way down in the turpentine district. The majority of these men were charged with adultery …. Upon inquiry I learned that down in that country a number of negro lewd women were employed by certain white men to entice negro men into their houses; and then, on certain nights, at a given signal, when all was in readiness, raids would be made by the officers upon these houses, and the men would be arrested and charged with living in adultery. Nine out of ten of these men … would find their way ultimately to some convict camp…. The low-down women were never punished in any way. 780

The article helped put Roosevelt’s campaign against peonage into perspective as fighting an evil that is intolerable in a civilized society.

779 Carper, supra note 95, n.19. 780 Carper, supra note 95 at 88-89 and n.20, citing “The New Slavery in the South,” Independent (February 18, 1904), 413.” See also § 9.D herein regarding the contrived use of adultery convictions to entrap workers in convict leasing.

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15.C. From “Respectable Colored Man” to Convict and Forced Laborer: Wimbish v. Jamison , 199 U.S. 599 (1905)

Excerpted from “Of the Black Belt” How strange that Georgia, the world-heralded refuge of poor debtors, should bind her own to sloth and misfortune as ruthlessly as ever England did! The poor land groans with birth-pains…. W.E.B. Du Bois 781

Figure 32. Chain gang, circa 1898. https://www.loc.gov/item/92522563/ .

A Georgia case highlighted how dire consequences were summarily imposed on African

Americans for only petty offenses. 782 Henry Jamison of Macon, Georgia, was “a respectable colored man” who worked “for years for many of the reputable people” of the town. He was arrested one March night for disorderly conduct, and “carried immediately to the city prison and placed in a cell.” The next morning, Jamison appeared before a police magistrate, supposedly confessed, and was immediately convicted. Unable to pay the $25 fine imposed, he was sentenced to seven months at hard labor. “At noon the same day, he was sent to the chain gang, was at once clothed in the stripes of a convict, heavy iron manacles connected by a chain were

781 Du Bois, supra note 261 at 245. 782 Wimbish v. Jamison , 199 U.S. 599.

239 riveted on each leg, and he was immediately put to work on the public road with other convicts

… at manual labor as severe, perhaps, as any of which the human frame is capable.” The manacles could be removed only by “use of the cold chisel.” Jamison became part of a convict workforce annually leased by the city of Macon to surrounding Bibb County for $8,000. 783

Jamison directly petitioned the federal district court for habeas corpus, and Judge Emory

Speer 784 granted the writ. Speer 785 found that the “trial, sentence, and commitment were illegal

and void,” and that Jamison was deprived of “liberty and subjected to infamous punishment

without due process of law.” “Infamous punishment” includes being confined to hard labor,

783 Jamison v. Wimbish , 130 F. 351. 784 Before taking the bench, Emory Speer had been an Independent Congressman and held other posts. When he was appointed U.S. Attorney for the Northern District of Georgia, Speer began a highly publicized and successful campaign against whites who had disenfranchised black voters in recent elections, and vigorously prosecuted whitecappers. The victim in one of the latter trials testified that her attackers said such things as “We are going to whip every d---d Speer negro they [sic] is” and “You see what your d----d Speer has done for you.” See BRENT J. AUCOIN , “A RIFT IN THE CLOUDS ”: SOUTHERN FEDERAL JUDGES AND AFRICAN AMERICAN CIVIL RIGHTS , 1890-1910 40–42 (PhD diss., University of Arkansas) (2007). Accessed on April 13, 2017 at http://search.proquest.com.unr.idm.oclc.org/docview/304513359/3E9CBBA25B324305PQ/2?accountid=452. Speer’s overbearing nature and controversial political leanings invoked the ire of many lawyers, businessmen, and farmers following his unpopular decisions having economic consequences. These included government contract fraud, railroad and naval stores antitrust cases, maltreatment of federal prisoners by local jailers, and the forced peonage of county prisoners by cotton farmers. Efforts to remove him by impeachment failed. See also Marshall Burke Dukes, The Investigation of the Behavior of Judge Emory Speer – Lack of Judicial Temperament Does Not an Impeachment Make , 1 and 2 JOURNAL OF SOUTHERN LEGAL HISTORY 1 (1998). 785 Judge Speer and Henry Jamison were acquainted prior to the latter’s arrest for the alleged drunken and disorderly conduct that led to his arrest and being sentenced to a chain gang. According to the compiled record of his appeal at the U.S. Supreme Court, Jamison was charged with the additional offence of “disorderly conduct in the barracks” after being jailed. He was accused of having “cursed the officers and police officers of the city of Macon using the most profane language, that he called [them] ‘God damn son-of-a-bitches’ for no other reason than because they declined at 12 o’clock on Saturday night to ring up the Honorable Emory Speer and deliver a message to him from a drunken, obscene and profane negro.” See files of the Supreme Court of the United States, October Term, 1904. No. 501. E.A. Wimbish, Superintendent of the County Chain Gang, Appellant v. Henry Jamison , at 9. Speer rebuffed efforts by Macon City Attorney Minter Wimberley, who represented Wimbish, to suggest that Speer was biased in favor of Jamison. According to the transcript of the March 23, 1904, habeas corpus proceeding at Savannah, Speer stated: “[I]t has been stated by the counsel for this city once or twice that the petitioner worked for Judge Speer. If there are any relations between the petitioner and myself which would make me regard myself as disqualified in this case I would not proceed. He does come in once a week or once in two weeks and rub up the furniture in my home, and sweep the carpets, but I do not think that constitutes any legal disqualification for me to act as judge and pass on his legal rights, if he has any here. I want to make that matter clear that I do not conceive there is any disqualification in my presiding. Under the common law the relation of master and servant was pretty close, the master had the right to defend the servant, perhaps there is a judge who was master could not sit on the case of his servant, but the old relation of master and servant is of course abolished in this case, and besides Jamison is not my servant. While I am sorry for him, I can try his case I think with absolute impartiality.” Id . at 33-34.

240 incarcerated in a penitentiary, imprisoned for more than a year, and being sentenced to death. 786

Speer said that Southern blacks were susceptible to “deplorable and degrading punishment” imposed under legally questionable circumstances. 787 The judge recounted the fate of a typical prisoner, which he characterized as “involuntary slavery.” E.A. Wimbish, superintendent of the

Bibb County chain gang, testified about the cruel treatment of such prisoners:

The irons on each leg are connected by chains. The coarse strips, thick with the dust and grime of long, torrid days of a semitropical summer, or incrusted with the icy mud of winter, are their sleeping cloths when they throw themselves on their pallets or straw in the common stockades at night. They wake, toil, rest, eat, and sleep, to the never-ceasing clanking of the manacles and chains of this involuntary slavery. Their progress to and from their work is public, and from dawn to dark, with brief intermission, they toil on the public roads and before the public eye. About them, as they sleep, journey, and labor, watch the convict guards, armed with rifle and shotgun. This is to at once make escape impossible, and to make sure the swift thudding of the picks and the rapid flight of the shovels shall never cease. If the guards would hesitate to promptly kill one sentenced for petty violations of city law should he attempt to escape, the evidence does not disclose the fact. 788 And the fact more baleful and ignominious than all – with each gang stands the whipping boss, with the badge of his authority. This the evidence discloses to be a heavy leathern strap, about 2½ or 3 feet long, with solid hand grasp, and with broad, heavy, and flexible lash. 789

The judge framed the issue before the court as whether the police magistrate could,

“under the American Constitution, without jury trial and due process of law, sentence [Jamison]

786 “[W]hether or not a crime is infamous must depend upon the fact whether, by the statute defining it, an infamous punishment can be awarded.” Jamison v. Wimbish , 130 F. at 354 citing Ex parte Wilson , 114 U.S. 417, 477 (1885). In one commentary on Jamison v. Wimbish , the author observed that “‘Due process of law’ is a phrase hard to define, but this case seems a good precedent for a sound principle, that in convictions involving infamous punishments, ‘due process of law’ requires a fair right of appeal – that ‘one man shall not adjudge infamy.’” Comment, The Georgia Chain-Gang for Petty Offenses , 14 YALE LAW JOURNAL 45, 47 (1904). The definition of “infamous punishment” is taken from Branzburg v. Hayes , 408 U.S. 665, n.24 (1972). 787 Jamison v. Wimbish , 130 F. at 352. 788 Jamison v. Wimbish , 130 F. at 354, n.2: “To show the fierce vigilance of the guard, on the day this case was argued a number of felons from the State Penitentiary, who by state law are brigaded with those convicted by the recorder for minor municipal offenses, attempted to escape from the chain gang described. Three were shot down, all desperately wounded. One will probably die, and, if he lives, will be a paralytic for life, as it is stated that the buckshot penetrated the vertebrae.” 789 Jamison v. Wimbish , 130 F. at 355.

241 to such punishment.” Speer considered, among other cases, Yick Wo v. Hopkins , which held that disparate application of laws violated the 14 th amendment. 790 The court also cited Callan v.

Wilson ,791 in which Justice Harlan said: “The jurisdiction of the police court, as defined by

existing statute, does not extend to the trial of infamous crimes, or offenses punishable by

imprisonment in the penitentiary.” 792

Speer rejected the argument that Jamison should have first exhausted his remedies in state court. The ruling said that the police court was “without jurisdiction, its order void, and its sentence to infamous punishment so severe that, if the petitioner can survive, it will probably exhaust the last resource of nature.” Speer indicated that habeas corpus was recognized as so great a remedy “that the Constitution itself provides that ‘the privilege of the writ… shall not be suspended, unless which in case of rebellion or invasion the public safety may require it.’”793

The decision cited Ex parte Siebold 794 for the proposition that habeas corpus should be granted

“to a prisoner under conviction and sentence of another court [for] the want of jurisdiction in

such court over the person or the cause, or some other matter rendering its proceedings void.”

790 Jamison v. Wimbish , 130 F. at 362 citing Yick Wo v. Hopkins , 118 U.S. 356 (1886). Yick Wo is an important decision in that it was the first time the U.S. Supreme Court ruled that the discriminatory application of legislation that is racially-neutral on its face violates the 14 th amendment. In that application for a writ of habeas corpus, the plaintiffs argued that the city of San Francisco inequitably applied a local ordinance regulating the operation of laundries. Although the law purported to be based upon public safety and the need to regulate fire hazards, plaintiffs argued that it had been applied to allow operation of 80 laundries by United States citizens, but disallowed laundries operated by Chinese subjects. In finding for the plaintiffs, the Court invoked the 14 th amendment, which it declared “is not confined to the protection of citizens” because the questions presented “are to be treated as involving the rights of every citizen of the United States equally with those of the strangers and aliens who now invoke the jurisdiction of the court” (118 U.S. at 369). It agreed that the law did not single out laundries operated by Chinese subjects, but stated: “Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discrimination between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitutions” (citations omitted). Yick Wo , 118 U.S. at 373-74. 791 In Callan v. Wilson , 127 U.S. 540 (1904), Justice Harlan wrote for the Court. He examined the reach of lower level tribunals and the punishments they were authorized to impose. After evaluating the U.S. Constitution, the opinion said that ‘the jurisdiction of the police court, as defined by existing statutes, does not extend to the trial of infamous crimes or offenses punishable by imprisonment in the penitentiary.” Id. at 556. 792 Jamison v. Wimbish , 130 F. at 359-60 citing Callan v. Wilson , 127 U.S. 540 (1904). 793 Jamison v. Wimbish , 130 F. at 360. 794 Ex parte Siebold , 100 U.S. at 371, 375 (1879).

242

Speer held that “an unconstitutional law is void, and is no law; a conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal case of imprisonment.” 795

The judge warned that whites had been similarly punished, and told of a mere boy who was convicted of “loitering in a depot.” 796 Speer cited the testimony of a former road commissioner, who spoke about the operations of a chain gang. The witness asserted that “while such a sentence would forever ruin a white man previously respectable, it had no such effect on a respectable negro. Such considerations do not appeal to a court charged with the equal enforcement of the law” nor do these meet with the “approbation of the reflecting people of the

South.”797 Judge Speer cautioned: “Though the color-line expert may so paint it, this is no color-line case. It is a negro to-day. It may be a white man – aye, a white child or a white woman – to-morrow. In this court the law is equal for all.” 798

The U.S. Supreme Court lacked Judge Speer’s concern for Henry Jamison’s plight. In summarily denying habeas corpus, it reversed the district court on the basis that Jamison failed to exhaust his remedies within Georgia’s state court system. 799 Journalists around the country applauded the high court’s decision. One of these, South Carolina’s Bamberg Herald of October

19, 1905, warned that: “Had Judge Speer been upheld, a federal district judge would have been given the power to release every person confined at hard labor” and punishment by hard labor would be disallowed as “infamous.” 800

795 Jamison v. Wimbish , 130 F. at 361 citing Ex parte Siebold , 100 U.S. at 376. 796 Jamison , 130 F. at 365. 797 Jamison , 130 F. at 363. 798 Jamison , 130 F. at 363-64. 799 Wimbish , 199 U.S. 599. 800 Speer Overruled By Decision of High Court in Noted Chain-Gang Case. No Point Is Sustained. Had Court Sustained Jurist Every Chain Gang Prisoner in State of Georgia Could Have Secured Liberty . THE BAMBERG HERALD . Accessed on April 13, 2017 at The Bamberg herald. (Bamberg, S.C.), 19 Oct. 1905. Chronicling America: Historic American Newspapers . Lib. of Congress. .

243

Figure 33. A Southern chain gang, circa 1900-1906. http://www.loc.gov/pictures/resource/det.4a10700/ 15.D. Peonage and “Men of Wealth”: W.S. Harlan v. McGourin , 218 U.S. 442 (1910)

The story behind the U.S. Supreme Court’s decision in W.S. Harlan v. McGourin 801 shows that the Percys of Greenville, Mississippi were not the only well-known family to contend with accusations of having committed peonage (see § 15.G). However, the Harlans were less successful in securing presidential intervention, at least until a repeated request was made and consequences were suffered. Justice John Marshall Harlan, Sr., famously stood against racial

801 W.S. Harlan , 218 U.S. 442.

244 disparity in Plessy ,802 and he spoke strongly against the “barbarities of the worst kind” that were

inflicted upon the victims of peonage in Clyatt .803 One can only imagine the justice’s reaction

when the Court denied habeas corpus to his nephew, W.S. Harlan. 804 The wealthy lumberman’s conviction for brutal exploitation of immigrant peons was allowed to stand, and President Taft rejected his first bid for clemency on January 6, 1910. Justice Harlan died on October 14, 1911, while on the Court, not quite four months after Taft relented on a second petition and pardoned the justice’s nephew. 805

Florida newspapers shocked readers with the arrest of important lumberman W.S. Harlan and other employees of the Jackson Lumber Company of Lockhart, Alabama. It related the manner in which company officials had mistreated recent European immigrants who had been recruited to work in the company’s turpentine operations. On July 24, 1906, The Pensacola

Journal broke the story of alleged peonage by W.S. Harlan and his associates. The caption proclaimed Inhumanity and Cruelty in Alabama Lumber Camp , and Serious Charges Made

Against Jackson Lumber Co. of Lockhart for treating its employees Worse than Dogs . The paper told readers that immigrant employees were Secured Under False Pretenses Half Fed, Beaten

802 Plessy , 163 U.S. 537. 803 Clyatt , 197 U.S. 207. See also Linda Przybyszewski, Mrs. John Marshall Harlan’s Memories: Hierarchies of Gender and Race in the Household and the Polity , 18 LAW AND SOCIAL INQUIRY 453 (1993). Mrs. Harlan’s memoirs of life with her husband show the complexities of the Kentuckian’s views toward race, which tended toward paternalism and matured into an increased advocacy for civil rights. The Harlans were a slave-owning family. Reportedly, Robert Harlan, a fair-skinned and blue-eyed slave belonging to Harlan’s father, was the justice’s half-brother. James W. Gordon, Did the First Justice Harlan Have a Black Brother? , 15 WESTERN NEW ENGLAND LAW REVIEW 159 (1993). See also supra note 516 for a discussion of Justice Harlan’s uneven handling of racial issues. 804 The Court’s decisions regarding W.S. Harlan do not reflect whether Justice Harlan participated in or recused himself, nor did he publish his personal views. 805 A literature search did not yield information about Justice Harlan and his handling of W.S. Harlan’s legal matters. For example, Przybyszewski, a biographer of Justice Harlan, does not discuss his reaction to his nephew’s legal woes. See Linda Przybyszewski, THE REPUBLIC ACCORDING TO JOHN MARSHALL HARLAN : RACE , REPUBLICANISM , AND CITIZENSHIP (PhD diss., Stanford University, 1989). Accessed on April 24, 2017 at http://search.proquest.com.unr.idm.oclc.org/pqdtglobal/docview/303794327/2BB98711E0A14A38PQ/1?accountid= 452. See also Goodwin, supra note 683 at 145-46. Goodwin discusses Taft’s admiration for Justice Harlan, and the friendship that grew between the two men.

245 and Held in Camp Against Their Will – Case Now in Hands of Federal Authorities . The journalist wrote of “Harrowing tales of inhumanity and cruelty to ignorant foreigners [who] were brought to the city Sunday night, when there arrived here five Germans from Lockhart, Ala.

[The laborers] said they had escaped from the camps there and came to Pensacola to lay their complaint before the German vice-counsel in the hope of remedying the condition of themselves and nearly a hundred others, who were not fortunate enough to get away.” The workers were said to have been lured by the lumber company “through misrepresentation, bringing them south some four months ago from New York, and at first placing them at work upon the railroad tracks. Afterwards they were transferred to the woods. They allege that they did not receive either the wages or treatment they were promised, nor was the food sufficient and wholesome.”

Their mistreatment continued, and “[t]he most serious charge made by the men is that the ignorant foreigners were not allowed to leave the camps – are detained against their will and frequently caught when making an attempt to run away, are placed across a log and beaten by some of the foremen. Dogs are kept to trail down any man who attempts to leave and all of the bosses go armed, and it is said, do not hesitate to shoot when angered.” German officials asked the U.S. government to intervene, which led to that investigation being focused primarily on

European immigrants although African Americans were among laborers held in the lumbering and turpentining camps.

The article related tales of cruelty from Henry Rodenbeck, a worker who had escaped from the camp. He said the immigrants there were treated as slaves, and “worked under men who were little less than desperadoes and who were always armed. I saw two of the poor fellows in different occasions, held over a log by two of the bosses while a third beat him unmercifully with a harness tuck. And I was told by those there before me that one of the men had been

246 stripped of all his clothing and beaten with a heavy riveted strap.” Rodenbeck said: “Gun play was a regular thing and I believe the only way the bosses kept the men at all was by bluffing them. While I was there one of the men who had complained a good deal about the grub and one of the bosses had a row and the boss knocked the man down, and then, after firing a shot over his head with a revolver, made him get down on his knees and apologize before the whole crowd.”

Rodenbeck said: “One of the bosses caught a negro on a train stealing a ride out of camp and at the point of a revolver forced him to get off the car and then started with him for the black-smith shop, where he was going to strip him and give him a taste of the harness tuck. The negro broke and ran, and although several shots were fired at him, managed to get away.” 806

W.S. Harlan made thorough use of judicial proceedings and the presidential pardon process, repeatedly appealing to the courts and the chief executive but to little avail until he had suffered imprisonment. A November 6, 1909, ruling in which the Florida federal district court had released W.S. Harlan and his co-defendants on bail pending appeal to the Supreme Court tells of W. S. Harlan’s conviction there. The decision related that he, “ C.C. Hilton, and S.E.

Huggins, were tried and convicted at the November sitting, 1906, of the Circuit Court at

Pensacola, Florida, under an indictment which charged them with combining and conspiring within the Northern district of Florida, to hold, arrest, and return one Rudolf Lanninger to a condition of peonage.” Unlike his co-defendants, W.S. Harlan was convicted at the trial level of conspiracy to commit, but not an overt act of, peonage. He “was sentenced to imprisonment at hard labor for 18 months in the federal penitentiary, at Atlanta, Ga.” and fined $5,000.

806 Inhumanity and Cruelty in Alabama Lumber Camp. Serious Charges Made Against Jackson Lumber Co., at Lockhart. Worse Than Dogs: It Is Alleged Ignorant Employees Are Treated. Men Secured Under False Pretenses Half-Fed, Beaten and Held in Camp Against Their Will - Case Now in Hands of Federal Authorities. THE PENSACOLA JOURNAL , July 24, 1906. Accessed on April 14, 2017 at The Pensacola journal. (Pensacola, Fla.), 24 July 1906. Chronicling America: Historic American Newspapers . Lib. of Congress. .

247

The ruling of U.S. District Judge Thomas Goode Jones 807 in Ex parte Harlan , one of the several cases related to W.S. Harlan, is noteworthy for several reasons. It represented another step in the defendant’s legal journey, as well as the evolution of Judge Jones’ judicial perspective on forced labor. Here, Judge Jones denied a petition for habeas corpus filed by W.S. Harlan and his co-defendants that was based on allegations of substantive and procedural error. They had been convicted of dreadful acts against Lanninger and others, yet in notable irony, alleged that the trial court erred by imposing a sentence of hard labor at the U.S. penitentiary at Atlanta that was in excess of statutory penalties. Although Judge Jones agreed with this assessment, he rejected it as a basis for overturning the conviction. 808

W.S. Harlan continued to press for relief from both the judicial and executive branches.

After the U.S. Court of Appeals for the 5 th Circuit refused to overturn the lower court’s conviction of W.S. Harlan for alleged technical irregularities permitted by Judge Swayne, the defendant petitioned the U.S. Supreme Court. 809 On February 23, 1909, 810 the 5 th Circuit published President Taft’s remarkable memorandum denying W.S. Harlan’s first application for pardon. Taft stated: “Mr. Harlan is a man of great enterprise and of good business reputation, and has invoked and secured the sympathy and assistance of all who favor the industrial development of the country in the neighborhood of his activities in the South, as well as of many prominent citizens of , where he was born and lived for a large part of his life. They have intervened with much earnestness in his behalf. All this has led me to examine the case with

807 Jones also presided over Peonage Cases of Alabama, 123 F. 671; see §15.A. 808 Ex parte Harlan , 180 F. 119 (N.D. Fla. 1909). 809 Ex parte Harlan , 180 F. 119. 810 W.S. Harlan twice appealed to the Supreme Court and twice petitioned the president for commutation of his sentence. Taft denied the first request following W.S. Harlan’s November, 1906 trial. This was before the Supreme Court on May 3, 1909, denied W.S. Harlan’s first petition for certiorari, his November, 1909 petition for bail, and his second appeal to the Supreme Court. See W.S. Harlan v. McGourin , 218 U.S. 442; Harlan v. United States , 214 U.S. 519 (1909); W.S. Harlan v. United States , 184 F. 702; and Ex parte Harlan , 180 F. 119.

248 great care.” The president went on to say that W.S. Harlan, the general superintendent of the

Lockhart Company (along with foremen Robert Gallagher and employee S.E. Huggins), had been convicted on one of the two charges of conspiracy for which he had been indicted. The men were accused of peonage in the case of foreign contract laborers in the company’s lumber camps. 811 Taft recounted that W.S. Harlan’s office was at the mill in Lockhart, Alabama, and that “it is very clear that Mr. Harlan arranged for bringing” the foreign laborers recruited from overseas or New York to the Florida camp. Taft said that W.S. Harlan was “actively interested in arranging for their work,” and had “instigated four or five illegal and unfounded criminal prosecutions in a justice court against employees, in order to compel them to return to the company’s employ and resume work under a contract.” W.S. Harlan even wrote “a letter to a newspaper, in which he denied charges of cruelty and mistreatment [] by his subordinates, but in which he in effect admitted that men had attempted to escape from his employ, and that, where they were under contract, they were constrained to remain.” Although W.S. Harlan may not have personally carried out the abuse, Taft was “convinced beyond reasonable doubt that the pursuit, capture, return to service, and forcible retention of [a worker] was only one [of several] acts which were in pursuance of a well-understood and approved plan, authorized by Mr. Harlan, to secure and retain needed labor….” He observed: “The government of the United States has been at great pains and cost to suppress peonage,” and asserted that: “Fines are not effective

811 The men were accused of peonage in the case of foreign contract laborers, who had attempted to or escaped from the camps where they were regularly and brutally treated like cattle. Harsh treatment included beatings and shootings, and being made to work from dawn to dark under horribly unsanitary conditions. See Aaron Kyle Reynolds. A LONG QUAVERING CHANT : PEONAGE LABOR CAMPS IN THE RURAL -INDUSTRIAL SOUTH 1905-1965. (PhD diss., University of Texas, 2013). Accessed on April 14, 2017 at https://repositories.lib.utexas.edu/bitstream/handle/2152/41771/REYNOLDS-DISSERTATION- 2013.pdf?sequence=1.

249 against men of wealth. Imprisonment is necessary... [Otherwise] it would give real ground for the contention so often heard that it is only the poor criminals who are really punished.” 812

Despite intercession from influential people on the prisoner’s behalf,813 Taft’s refusal to grant leniency to W.S. Harlan was well received in the popular press. Under the banner

Imprisonment is Necessary , the News-Herald of Highland County, Ohio said: “President Taft is to be commended for his refusal to grant a commutation of the sentence of W.S. Harlan, manager of a great lumber and turpentine company, doing business in Florida, who was convicted of violating the peonage statute of Florida.” 814 The Grand Fork, North Dakota, Evening Times wrote: “Those who exult in exploiting their pet theory that the man who steals a loaf of bread must languish behind the bars, while the rich malefactor goes scot-free, will find small satisfaction in learning that President Taft has refused to pardon W.S. Harlan, a wealthy man convicted in Florida of peonage.” The paper castigated Harlan for “resort[ing] to practices of terrorism and physical punishment, coupled with a debt system, that reduced the unfortunate foreign laborers in his turpentine and logging camps to a condition of virtual slavery.” 815

W. S. Harlan fared no better in his second petition to the U.S. Supreme Court. On

November 28, 1910, the Court affirmed the 5 th Circuit’s refusal to grant habeas corpus to him,

Hilton, and Huggins. 816 After he failed in a second appeal to the Supreme Court, W.S. Harlan

812 W.S. Harlan , 184 F.2d 720. 813 According to the Washington Times (Washington, D.C.) of June 10, 1911, U.S. Senators Kenyon of Iowa and Bacon of Georgia petitioned Taft to pardon W.S. Harlan, whose fortune allegedly was “lost.” Two Senators Ask Taft to Remit Fine of Lumber Baron. Bacon and Kenyon Plead for Man Convicted of Peonage , WASHINGTON TIMES , June 10, 1911. Accessed on April 18, 2017 at The Washington times. (Washington [D.C.]), 10 June 1911. Chronicling America: Historic American Newspapers . Lib. of Congress. . 814 Imprisonment is Necessary , THE NEWS -HERALD , January 12, 1911. Accessed on April 18, 2017 at The News- Herald. (Hillsboro, Highland Co., Ohio), 12 January 1911. Chronicling America: Historic American Newspapers . Lib. of Congress. < http://chroniclingamerica.loc.gov/lccn/sn85038161/1911-01-12/ed-1/seq-4/ >. 815 World News Condensed , ST. LUCIE COUNTY TRIBUNE , January 20, 1911. Accessed on April 14, 2017 at The St. Lucie County tribune. (Fort Pierce, St. Lucie County, Fla.), 20 Jan. 1911. Chronicling America: Historic American Newspapers . Lib. of Congress. < http://chroniclingamerica.loc.gov/lcc n/sn89058426/1911-01-20/ed-1/seq-10/ >. 816 W.S. Harlan , 218 U.S. 442.

250 once more sought a presidential commutation or pardon. Florida state senator W.W. Flournoy, who had served as counsel to W.S. Harlan during his peonage trial, mounted a vigorous political fight on behalf of his client. Flournoy combined a sense of outrage over the conviction with a vindictive assault on Judge Swayne, who had presided over that trial. The Ocala Evening Star 817 reported that the senator’s speech before the Florida legislature “was probably the most sensational and outspoken assault upon the bench of the federal court ever heard in a Southern legislature.” 818 As reported by The Lumber Trade Journal , President Taft finally relented. He

“ordered the immediate release of W.S. Harlan” after the prisoner had served six months of his term, as Taft required for “men of wealth,” and paid his $5,000 fine. 819 So ended the formal punishment of W.S. Harlan, while Taft effectively sent the message that wealth and family connection would not excuse violent crimes against powerless victims.

15.E. Peons Presumed to be Liars: Bailey v. Alabama , 219 U.S. 219 (1910) and “False Pretenses” Statutes

The case of Bailey v. Alabama 820 catapulted poor, black farmworker Alonzo Bailey from obscurity into the national spotlight. This case was deemed well-suited by reformers to raise to the U.S. Supreme Court the issue of peonage and the use of “false pretenses” statutes. Foes of the practice believed that Bailey’s plight would inform and concern the public regarding the fate of unsophisticated, low-level workers who became captive under labor contracts that Alabama law allowed to become a nearly-permanent snare and basis for imprisonment. Crucial to the

817 Flournoy Was Fierce. In His Denunciation of Judge Swayne, Senate Passed Resolution Asking Taft to Pardon Harlan. THE OCALA EVENING STAR , April 28, 1911. Accessed on April 14, 2017 at The Ocala evening star. (Ocala, Fla.), 28 April 1911. Chronicling America: Historic American Newspapers . Lib. of Congress. . 818 Id . Judge Charles Swayne of the United States Court, Northern District of Florida, was impeached by the United States House of Representatives. He was acquitted by the United States Senate on February 27, 1905. E. Hilton Jackson, The Swayne Impeachment Proceedings , 10 THE VIRGINIA LAW REGISTER 1071 (1905). 819 Harlan Is Pardoned. President Taft Issues Orders for Release of Lumberman Convicted of Peonage , THE LUMBER TRADE JOURNAL 43 (1911) dated July 1, 1911. Anonymous, Harlan Is Pardoned. President Taft Issues Orders for Release of Lumberman Convicted of Peonage , 60 LUMBER TRADE JOURNAL 43 (1911). 820 Bailey , 219 U.S. 219.

251 state statutory scheme, echoed elsewhere in the South, 821 was the presumption that workers entered into these agreements having “false pretenses” to defraud the employer.822 Bailey’s suit is all the more remarkable beyond its eventual success in the Court’s striking such laws. The suit was carefully and anonymously selected and financed as a test case by Booker T. Washington, with input from Judge Thomas Goode Jones and former U.S. Attorney General Charles J.

Bonaparte. 823

The facts underlying are as follows. On December 26, 1907, Alonzo Bailey entered into a contract to become a farmhand for the Riverside Company of Montgomery,

Alabama. He was to work from December 30, 1907, until December 30, 1908, be paid $12 per month, and was advanced $15 by Riverside in consideration for the contract. Bailey worked into the first week of February 1908, but then broke the contract without completing his term or returning the $15 advance. 824 His employer sued to force specific performance by Bailey, and to have the worker penalized under a state law that transformed the breach of a labor contract into a crime punishable by fine and/or a sentence of hard labor.

Bailey was arrested and convicted under § 4730 of the Code of Alabama of 1896, which made it a crime for employees to fail to fulfill their contracts without returning the property or repaying the money advanced. This law had been twice changed by Alabama legislators, who sought in each iteration to make it easier for employers to compel laborers with the threat of

821 Daniel, supra note 71 at 67. 822 In addition to an Alabama law punishing “any person who, with intent to injure or defraud his employer, entered into a written contract for service, and thereby obtained from his employer money or other personal property, and with like intent and without just cause, and without refunding the money or paying for the property, refused to perform the service, should be punished as if he had stolen it,” an evidentiary rule “enforced by the courts of Alabama which must be regarded as having the same effect as if read into the statute itself, that the accused, for the purpose of rebutting the statutory presumption, shall not be allowed to testify ‘as to his uncommunicated motives, purpose, or intention.’” See Bailey , 219 U.S. at 227-28 citing Bailey v. State , 161 Ala. 77, 78, 49 So. 886 (1909). 823 Harlan, supra note 326 at 402-03. See also Schmidt, supra note 390 at 677-78. 824 Bailey , 219 U.S. at 227.

252 criminal penalty. The Alabama Supreme Court had considered this statute in Ex parte Riley ,825 which held that the law did not make a mere breach of contract a crime. Rather, the “Criminal feature of the transaction is wanting unless the accused entered into the contract with intent to injure or defraud his employer, and unless his refusal to perform was with like intent and without just cause.” 826

The Alabama legislature added criminal penalties to the law in 1903 that presumed a defaulting worker acted with ill motive or “false pretenses” at the outset: “The essential ingredient of the offense was the intent of the accused to injure or defraud. To justify conviction, it was necessary that this intent should be established by competent evidence, aided only by such inferences as might logically be derived from the facts proved, and should not be the subject of mere surmise or arbitrary assumption.” The law was amended to add a provision “to make the refusal or failure to perform the service, or to refund the money, or pay for the property, without just cause, prima facie evidence of the intent to injure or defraud.” A further amendment in 1907 expanded this law to provide that one found guilty of violating the statute “must on conviction be punished by a fine in double the damage suffered by the injured party, but not more than $300, one half of said fine to go to the county and one half to the party injured.” Further, even without conviction, “the refusal or failure of any person, who enters into such contract, to perform such act or service, or to cultivate such land, or refund such money, or pay for such property, without just cause, shall be prima facie evidence of the intent to injure his employer or landlord or defraud him.” 827

In addition to substantive law that criminalized breach of employment contracts after receiving money or property, workers like Alonzo Bailey faced virtually insurmountable

825 Ex parte Riley , 94 Ala. 82, 10 So. 528 (1892). 826 Bailey , 219 U.S. at 232-33. 827 Bailey , 219 U.S. at 227-28.

253 evidentiary odds. The law added the prima facie legal presumption that they intended at contract formation to defraud their employers, and did not allow the accused to rebut that presumption.

Further, the evidentiary rule “which must be regarded as having the same effect as if read into the statute itself, that the accused, for the purpose of rebutting the statutory presumption, shall not be allowed to testify ‘as to his uncommunicated motives, purpose, or intention.’” 828

Initially detained by the authorities for breach of his contract with Riverside, Bailey first sought a writ of habeas corpus from the Montgomery, Alabama city court. He argued that the state statute under which he was convicted was unconstitutional under the 13 th and 14 th amendments of the U.S. Constitution. After losing there and at the Alabama Supreme Court,

Bailey petitioned the U. S. Supreme Court for a writ of habeas corpus. He argued that the state statute’s presumption that one who breaches an employment contract did so with the intention to defraud or injure is “artificial, and not drawn from the facts of life.” When coupled with the local evidentiary rule limiting the defendant’s ability to rebut the charges, “the party cannot testify to his actual intent, it is said practically to make a crime out of a mere departure from service….”829

In its review of Alonzo Bailey’s first petition, the U.S. Supreme Court, in an opinion written by Justice Holmes, affirmed the Alabama Supreme Court’s denial of habeas corpus. He found that Bailey’s request was an attempt by the defendant to take a “short cut” because Bailey had not yet been tried on the merits of violating the Alabama contractual labor statute. The decision noted that Bailey was being held on “a charge of having obtained money under a written contract with intent to defraud,” and “[t]here is no doubt that such conduct may be made a crime.” The Court said further that, when the matter did go to trial, the prosecution may “not

828 Bailey , 219 U.S. at 228 citing Bailey v. State , 161 Ala. at 78, 49 So. 886. 829 Bailey , 211 U.S. at 453-54.

254 rely upon the statutory presumption, but will exhibit satisfactory proof of a fraudulent scheme, so that the validity of the addition to the statute will not come into question at all.” Nonetheless, the

Court stated that it appeared that Bailey was being “held for trial on the statutory evidence, and with no other proof of fraudulent intent.” 830

Three years after the U.S. Supreme Court rejected his first petition for habeas corpus,

Bailey tried again. By then, he had been tried and convicted in Alabama state court for defrauding his employer. The only testimony presented at trial came from Riverside’s manager, who was the sole witness (other than the defendant) to the signing of the labor contract. He told of Bailey’s receipt of a $15 advance, the laborer’s failure to perform beyond early February

1908, his departure “without just cause,” and Bailey’s remaining indebtedness for the advance he received. The manager responded to a question from Bailey’s attorney, over the state’s objection, that Bailey was a “Negro.” 831 The jury fixed the damages sustained by the Riverside

Corporation at $15, and in accordance with state statute doubled the amount of indebtedness by assessing a fine of $30. Unable to pay, Bailey was sentenced to hard labor for 20 days in lieu of the fine and another 116 days “on account of said costs.” 832

This time, the U.S. Supreme Court paid full attention to Alonzo Bailey in his second petition to that body for habeas corpus. It struck down the Alabama statute under which he had been convicted that criminally punished contract fraud and breach. Justice Charles Evans

Hughes wrote the majority opinion, while Justice Holmes dissented. 833 Hughes attempted to distance Bailey from the specter of race and chattel slavery: “We at once dismiss from consideration the fact that the plaintiff in error is a black man,” and said that the statute at issue

830 Bailey , 211 U.S. at 454. 831 Bailey , 219 U.S. at 230. 832 Bailey , 219 U.S. at 231. 833 Bailey , 219 U.S. 219.

255

“on its face, makes no racial discrimination, and the record fails to show its existence in fact.”

The justice contended that the Court’s consideration of this case was not a continuation of the

North/South conflict, as: “No question of sectional character is presented, and we may view the legislation in the same manner as if it had been enacted in New York or Idaho. Opportunities for coercion and oppression, in varying circumstances, exist in all parts of the Union….” 834 After analyzing the Alabama law, the decision observed that “the [defendant’s] refusal or failure to perform the service, without just cause, constitutes the breach of the contact,” which is actionable but is not a crime. 835

Justice Hughes took exception to Alabama’s evidentiary provisions that precluded defendants from rebutting the prima facie assumption that they entered into labor contracts with intent to defraud or deceive if they later breached. He rejected the state’s argument that the jury instructions did not “make it the duty” of the jury to convict, but only “authorize[d] the jury to convict.” Hughes reasoned that there was no need to create such a statutory presumption, 836 and that where, as here, there was no other evidence to support a defendant’s guilt, it was inappropriate to do so. He went on to consider the implications of the 13 th amendment, which forbade slavery and involuntary servitude, as well as the 1867 federal peonage statute. Hughes traced the history of the amendment, which “was not new” but “reproduced the historic words of the ordinance of 1787 for the government of the Northwest Territory…. While the immediate concern was with African slavery, the Amendment was not limited to that. It was a charter of universal civil freedom for all persons, of whatever race, color, or estate, under the flag.” 837

834 Bailey , 219 U.S. at 231. 835 Bailey , 219 U.S. at 234. 836 Bailey , 219 U.S. at 235. 837 Bailey , 219 U.S. at 240-41.

256

Hughes reiterated that “involuntary servitude” carried a “larger meaning than slavery.”

The “plain intention” of the amendment and relevant laws “was to abolish slavery of whatever name and form and all its badges and incidents; to render impossible any state of bondage; to make labor free, by prohibitions that control by which the personal service of one man is disposed of or coerced for another’s benefit, which is the essence of involuntary servitude.” 838

After reviewing prior decisions relating to peonage, 839 Hughes concluded: “The state may impose involuntary servitude as a punishment for a crime, but it may not compel one man to labor for another in payment of a debt, by punishing him as a criminal if he does not perform the services or pay the debt.” The decision held: “What the state may not do directly it may not do indirectly. If it cannot punish the servant as a criminal for the mere failure or refusal to serve without paying his debt, it is not permitted to accomplish the same result by creating a statutory presumption which, upon proof of no other fact, exposes him to conviction and punishment.”

The Court reversed Bailey’s conviction, and remanded the case for further proceedings. 840

Justice Holmes began his dissent by addressing the majority’s denial that the case had racial overtones, and cited Hughes’ assertion that “the fact that in Alabama it mainly concerns the blacks does not matter.” Holmes observed that the state statute was worded “in general terms, and applies to a departure at any time without excuse or repayment, but that does no harm except on a tacit assumption that this law is now administered [in Alabama] as it would be in

New York, and that juries will act with prejudice against the laboring man.” 841 He defined

“Peonage [as] a service to a private master at which a man is kept by bodily compulsion against his will,” and rejected the notion that the Alabama law created a condition tantamount to

838 Bailey , 219 U.S. at 240-41. 839 Bailey , 219 U.S. at 241-45. 840 Bailey , 219 U.S. at 244-45. 841 Bailey , 219 U.S. at 248.

257 peonage. The dissent found no difficulty in allowing “the state [to] throw its will on the side of performance” of a contract that was not illegal. Holmes said that Alabama fell short of creating a

“Conclusive presumption” and only dealt with “ prima facie evidence” which the jury could find insufficient to establish guilt. 842 He summed his dissent:

…I think that obtaining money by fraud may be a crime as well as murder or theft; that a false representation, expressed or implied, at the time of making a contract of labor, that one intends to perform it, and thereby obtaining an advance, may be declared a case of fraudulently obtaining money as well as any other; that, if made a crime, it may be punished like any other crime; and that an unjustified departures from the promised service without repayment may be declared a sufficient case to go to the jury for their judgment - all without in any way infringing the Thirteenth Amendment or the statutes of the United States. 843

15.F. The Vicious Cycle of Convict to Peon and Back Again: United States v. Reynolds , 235 U.S. 133 (1914) 844

Several Southern states, including Alabama, profited from the compulsory work of an indigent prisoner to the benefit of public coffers and occasionally government officials. In addition to leasing convicts as laborers, a private surety scheme evolved. Where an accused could not pay costs or fines, an individual or firm was allowed to pay the debt by standing as surety. As explained in §§ 9 and 9.D, the surety was allowed to obtain a judgment to punish the breach by compelling specific performance; this was found in United States v. Reynolds to violate the 13 th amendment’s prohibition on involuntary servitude. As Professor Schmidt explained, Reynolds was chosen as a test case for criminal surety arrangements. Not only were the failures to pay a debt or the breach of a labor contract made criminal matters, the failure to

842 Bailey , 219 U.S. at 246. 843 Bailey , 219 U.S. at 249-50. Rogat analyzed Holmes’ dissents, including the one in Bailey . Rogat posited that Holmes had a “peculiar fatalism about the futility of any attempt to disturb locally dominant social forces; his Darwinist disbelief in the possibility of reforming society by the application of intelligence.” Rogat, supra note 420 at 255. 844 This decision overturned both United States v. Reynolds , 213 F. 352 (S.D. Ala. 1914) and United States v. Broughton , 213 F. 345 (S.D. Ala. 1914).

258 repay the surety exposed the prisoner to yet another court action and an increased sentence on a chain gang at hard labor. Indigents so convicted were faced with the difficult choices of working for an extremely protected period for the surety or enduring debilitating work on a chain gang. 845

Ed Rivers became entrapped when he was charged with petit larceny; as permitted by

Alabama law, he “confessed judgment.” The facts are a bit convoluted, as they tended to become where an unpaid indebtedness to a surety resulted in follow-on obligations until the creditor was fully satisfied. He was but one of several laborers who found himself in breach of contract and unable to pay the court or reimburse the surety. When Rivers was unable to pay the initial $15 fine and $43.75 in costs after his trial, he entered into an agreement with J.A.

Reynolds, who stood surety for him. Although this obliged Rivers to work for Reynolds as a farmhand for nine months and 24 days, he quit within a month. 846 Rivers’ problems were compounded when he was rearrested and sentenced by the court in accordance with Alabama law to an additional fine and hard labor. Rivers was unable to pay the second fine of 1¢ imposed for violating his contract with Reynolds plus another $87.05 in costs. Rather than being sent to work on a chain gang, Rivers then agreed to work for surety G.W. Broughton for 14 months and

17 days. Rivers’ obligations to the several sureties meant that he had to work approximately seven times the period of his original sentence. 847

Reynolds and Broughton were indicted for holding Rivers in peonage in violation of the

1867 federal act, and the case found its way to the U.S. Supreme Court.848 Their counsel cited

Alabama precedent, which had held that “the hirer [i.e., the surety] becomes the transferee of right of the state to compel the payment of the fine and costs, and by this exaction of involuntary

845 Huq, supra note 8 and Cohen, supra note 431. See also Schmidt, supra note 390, for his thorough discourse on the harms faced by convict laborers and the Reynolds , Clyatt , and Bailey decisions. 846 Reynolds , 235 U.S. at 130-40. 847 Reynolds , 235 U.S. at 147. 848 Reynolds , 235 U.S. at 139.

259 servitude the convict has only changed masters, and that under the Alabama Constitution the law is constitutional, and that the convict is not being imprisoned for indebtedness.” Schmidt related that this case was chosen as a test case for criminal surety arrangements, which placed an indigent debtor in the untenable position of having to choose between becoming a member of a chain gang and obligating himself to work for the surety for an unreasonable period. 849

Justice William R. Day, writing for the Court in Reynolds , said: “There can be no doubt that the state has the authority to impose involuntary servitude as a punishment for crime,” a

“fact recognized by the 13 th Amendment, and such punishment expressly excepted from its term.” 850 Still, the Court rejected the notion that Alabama law properly allowed the surety to compel a debtor to work in return for an unpaid debt, particularly where that obligation was made compound for failure to pay, or face rearrest and being sentenced to hard labor. “The surety and convict have made a new contract for service, in regard to the terms of which the state has not been consulted.” 851 The decision stated that “In our opinion, this system is in violation of rights intended to be secured by the 13 th Amendment” and in violation of federal anti-peonage statutes. 852 This Alabama law wrongly kept the prisoner “chained to an everturning wheel of servitude.” 853 The decision said that the surety contract was “made between the parties concerned” and that it was inappropriate to allow this agreement to fix “the punishment for the commission of an offense.”854 This meant that the Alabama courts were precluded from allowing an arrangement where the prisoner could only avoid the threat of a chain gang by allowing a surety to repeatedly punish the debtor with an extended period of service.

849 Reynolds , 235 U.S. at 148; see also Schmidt, supra note 390 at 692-98. 850 Reynolds , 235 U.S. at 149. 851 Reynolds , 235 U.S. at 149-50. 852 Reynolds , 235 U.S. at 150. 853 Reynolds , 235 U.S. at 146-47. 854 Reynolds , 235 U.S. at 149.

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The Court looked to Clyatt ,855 which defined peonage as “a ‘condition of compulsory service, based upon the indebtedness of the peon to the master. The basal fact is indebtedness….’” 856 The Court distinguished between peonage and the “voluntary performance of labor or rendering of services in payment of a debt. In the latter case, the debtor, though contracting to pay his indebtedness by labor or service, and subject like any other contractor to an action for damages for breach of that, can elect at any time to break it, and no law or force compels performance of a continuance of that service.”857 Justice Day’s opinion determined that the state system which bound debtors such as Rivers to further service to his sureties as an alternative to hard labor met the definition of peonage, and found that the Alabama law was unconstitutional. The ruling cited Bailey for the proposition that: “Compulsion of such service by the constant fear of imprisonment under the criminal laws renders the work compulsory, as much so as authority to arrest and hold his person would be if the law authorized that to be done.”858

Justice Holmes wrote in a short concurring opinion that nothing in the 13 th amendment or federal canon “prevents a state from making a breach of contract, as well as a reasonable contract for labor as for other matters, a crime and punishing it as such. But impulsive people with little intelligence or foresight may be expected to lay hold of anything that affords a relief from present pain, even though it will cause greater trouble by and by.” Holmes said that as

“successive contracts, each for a longer term than the last, are the inevitable, and must be taken to have been the contemplated, outcome of the Alabama laws,” the state “statutes in question

855 Clyatt , 197 U.S. at 207. 856 Reynolds , 235 U.S. at 143-44. 857 Reynolds , 235 U.S. at 144. 858 Reynolds , 235 U.S. at 146 citing Bailey , 219 U.S. at 244 and Ex parte Hollman , 60 S.E. 24 (S.C. 1907).

261 disclosed the attempt to maintain service [ i.e ., peonage] that the [federal] Revised Statutes forbid.”859

Although Reynolds supported workers by striking down laws that mandated specific performance and laws that facilitated extended peonage obligations to sureties, questions remained regarding the extent to which labor contracts were being used to reintroduce chattel slavery. The specter of race loomed in Bailey 860 and Reynolds ,861 which arose “in the context of a racist and oppressive criminal justice system. 862 Benno C. Schmidt, Jr. and Aziz Z. Huq wrote persuasively on the role of race in these decisions, and explored freedom of contract as a legal concept. Schmidt queried whether the majority decisions in these cases is “explicable except as reflecting the very concern the Court disavowed, a concern for the situation of blacks in the

South’s agricultural economy and [a] lily-white system of law enforcement.” 863 Huq said these opinions should not be seen as “anomalies in the era of judicial hostility to racial claims.”

Instead, these and other peonage cases “provided a way for the Court to cement the cohesion and integrity of laissez-faire jurisprudence at minimum cost to white supremacy.”864

15.G. The Powerful and the Peon: The USDOJ’s Investigation into Sunnyside Plantation

As mentioned earlier, Southern aristocrat LeRoy Percy had many credits to his name. In addition to being a successful lawyer and achieving high political office, he had extensive land holdings throughout the Mississippi River delta. Senator Percy also owned a plantation where peonage was alleged.

859 Reynolds , 235 U.S. at 150. 860 Bailey , 219 U.S. 219. 861 Reynolds , 235 U.S. 133. 862 Huq, supra note 8. 863 Schmidt, supra note 390 at 646. 864 Huq, supra note 8 at 386-87.

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LeRoy Percy emerged as a significant figure in USDOJ’s investigation into peonage in the South some 20 years before the flood time controversy at Greenville, Mississippi. He was fully aware of what comprised the practice and the laws that prohibited it. The senator’s role in the story functions as a cautionary tale to those with similar business arrangements in one of his holdings, and to those with the temerity to challenge his practices. Because this particular investigation focused on European immigrants, it did not revisit racialized chattel slavery.

However, it did involve alleged violations of the 1867 federal peonage act and immigration laws, as well as state statutes that criminalized breaches of labor contracts ( see, e.g ., § 15.E).

The O.B. Crittenden Company was a cotton factorage firm in LeRoy Percy’s hometown.

Percy owned this firm along with Orlando B. Crittenden, a wealthy local planter, and Morris

Rosenstock, a prominent merchant in Greenville. The company invested in large plantations, and had acquired nearby Sunnyside Plantation, a 16,000-acre parcel across the Mississippi River from Greenville. Chicago industrialist and philanthropist Arthur Corbin had started Sunnyside as an agricultural experiment in 1895, and brought in Italian laborers. It was not a success; plunging cotton prices during the 1890s made the project unprofitable, and a yellow fever epidemic afflicted many workers. In 1898, after Corbin’s death, the partners of the O.B.

Crittenden Co. attempted to succeed where Corbin had not. The colorful Senator Percy publicized a favorable view of the Sunnyside effort, and encouraged others to follow that lead.

By 1907, about 158 Italian families, who were regarded by the owners as superior to African

Americans, had settled at Sunnyside. 865 Despite contentions by his defenders that the plantation was a “so-called utopian experiment,” 866 Percy’s motivation was clear. He was far less interested in a social experiment to resettle Italian immigrants than he was in profit. As Senator

865 Wyatt-Brown, supra note 52 at 61-63. 866 Daniel, supra note 71.

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Percy told USDOJ investigator Mary Grace Quackenbos: “We are not operating the property as an eleemosynary institution.” 867

Although the administration of President Theodore Roosevelt was looking onto peonage in the South, primarily in the turpentine, lumber, and mining sectors, the investigation of the

Sunnyside Plantation came about from a June 4, 1907, letter from Italian Ambassador Edmondo

Mayor des Planches. After touring Sunnyside in 1905, des Planches alerted U.S. Secretary of

State Elihu Root of “numberless complaints” about the abusive treatment of Italian immigrant workers there. Quackenbos was brought in to probe the charges, as she had elsewhere ( See §

14). To LeRoy Percy, she wrongly focused her “womanly sympathies” upon the “unfortunate or sick laborer” instead of understanding prudent business measures. 868

The allegations made by des Planches against Senator Percy and his business partners included intimidating and defrauding the immigrants. 869 The O.B. Crittenden Co. had brought in

95 Italian families in 1905 and 1906, which was about 60% of the plantation’s population. The company was suspected of violating the federal Alien Contract Labor Law of 1885. This statute provided in relevant part:

It shall be unlawful for any person, company, partnership, or corporation, in any manner whatsoever, to prepay the transportation, or in any way assist or encourage the importation or migration of any alien or aliens, any foreigner or foreigners, into the United States, its Territories, or the District of Columbia, under contract or agreement, parol or special, express or implied, made previous to the importation or migration of such alien or aliens, foreigner or foreigners, to perform or service of any kind in the United States, its Territories, or the District of Columbia. 870

867 Wyatt-Brown, supra note 52 at 75. 868 Wyatt-Brown, supra note 52 at 70. 869 Wyatt-Brown, supra note 52 at 63. 870 Alien Contract Labor Law of 1885, Sess. II Chap. 164; 23 Stat. 332.

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Sunnyside Plantation recruited the Italians through labor agents in New York and New

Orleans, and by inducing families at Sunnyside to encourage friends and relatives back home to join them. Those willing to come to Mississippi were given tickets for the journey. The immigrants were tutored to answer questions posed by federal officials in such a way as to ensure their admission to the United States without disclosing the company’s scheme to circumvent the law by advancing the workers money to make the trip. 871

Once at Sunnyside, the immigrants found conditions far less salubrious than portrayed.

Working the cotton fields was backbreaking labor that was made worse by the delta’s wet subtropical climate and disease-carrying mosquitoes. The O.B. Crittenden Co. charged the workers’ meager pay for every imaginable expense and demanded a premium price compounded by high interest. Not only did the immigrants have to reimburse the company for the cost of transportation and any money advanced by the company or labor agents, the workers had to absorb the unexpectedly high cost of living at Sunnyside. They were assessed rent for crowded and rudimentary housing, and for medical care from the company’s doctor. The plantation ran a commissary from which the workers could buy supplies, food, clothing, and other necessities at inflated prices, as they lacked ready access to other merchants. Because the immigrants were without sufficient money, the commissary advanced them credit for their purchases at the flat rate of 10%, which meant an annual rate of up to 28% that greatly increased their indebtedness.

On top of this, wages were less than promised by the labor agents. Although workers were allowed to raise and sell some cotton for themselves, they had to pay for associated expenses such as equipment and seed. The company took what was essentially a brokering fee of up to

40% for their crop, which was considerably more than the 25% customarily charged by outside cotton factors. The opportunity to better themselves was hampered by poor crop yields

871 Boehm, supra note 48 at 43.

265 following heavy rainfall in 1906. 872 The immigrants did not find the near-paradise described at recruitment, and personal advancement was prevented by the company’s exploitative business practices.

After her appointment in the summer of 1907, Quackenbos unsuccessfully sought to investigate conditions at Sunnyside on an undercover basis similar to the approach she used in the Florida turpentine camps. This was unsuccessful. To monitor visitors and prevent the laborers from leaving, the company tightly controlled access to and egress from Sunnyside. The

Italian-speaking detective assisting her was arrested for trespass at the plantation. The detective tried to conceal his true purpose for being at Sunnyside, but was convicted by a local justice of the peace. He was sentenced to three months on the chain gang because he could not pay the

$100 fine, and was freed only after Quackenbos wired money to pay the detective’s costs.873

No doubt believing that he could effectively manage the USDOJ inquiry, LeRoy Percy, a man of considerable charisma, initially gave Quackenbos a tour of Sunnyside. He introduced her to other planters, and several people in the local community including his wife. Although

Quackenbos at first complimented Senator Percy as a “man of common sense,” as contrasted to his business partner, the “bullying Mr. Crittenden,” she soon discovered that both men strongly opposed the investigation. 874 When Quackenbos continued a dogged pursuit of the immigrants’ complaints, Senator Percy sought to discredit both her and the inquiry. He enlisted the help of

Confederate veteran and kinsman John S. McNeily, editor of the Vicksburg, Mississippi Herald to publish adverse articles about her and the USDOJ investigation. Senator Percy used the media to oppose her “interference” with white and black laborers, and attributed Quackenbos’ criticism of Sunnyside Plantation to Percy’s protective attitude toward his workers. The senator said that

872 Boehm, supra note 48 at 41-45. 873 Boehm, supra note 48 at 46-47. 874 Wyatt-Brown, supra note 52 at 76.

266 the investigator resented being treated as a trespasser, “and this is the foundation of the peonage case. I had to choose between offending the lady or having the labor on the property completely demoralized and chose the former alternative.”875

Quackenbos and the USDOJ investigators persevered, despite difficulties presented by the company’s owners and plantation managers. She appealed to Arkansas Acting Governor

Xenophon O. Pindall, who provided her with a letter of introduction to the O.B. Crittenden Co. and asked that she be admitted to the plantation. Quackenbos told U.S. Attorney General

Bonaparte that she was advised by Governor Pindall that, although peonage was widespread in the delta, “‘politics are such that no District Attorney will care to antagonize the powerful interests of the state for the sake of these poor Italians.’” 876 Her stay in a hotel in Greenville required a two-hour journey to Sunnyside, where she was escorted by Senator Percy or

Crittenden. During the course of her five-day visit, she interviewed almost half of the Italian families, who stood by their complaints. Quackenbos examined the plantation commissary’s books and found evidence that the company had violated the federal Alien Contract Labor Law, in addition to state usury laws. 877 The USDOJ investigators concluded that the O.B. Crittenden

Co. provided the laborers with substandard and unsanitary living conditions, charged usurious rates and inflated prices for goods and services, and subjected workers to abusive and intimidating working conditions. 878

The O.B. Crittenden Co. reacted strongly to Quackenbos’ findings and actions. Among other things, it allegedly purloined notes from her hotel room that disclosed the location of some

875 Wyatt-Brown, supra note 52 at 70. 876 Boehm, supra note 8 at n.14 citing a letter from “Mary Grace Quackenbos to the [U.S.] attorney general, July 20, 1907, United States Department of Justice Records, Record Group 60, 74682, enclosures, National Archives, Washington, D.C.” 877 Boehm, supra note 48 at 47-48. 878 Boehm, supra note 48 at 47-48, 50-51.

267 immigrants who were seeking to escape from Sunnyside to work in the mines near Birmingham,

Alabama. The company had the local sheriff forcibly take the men from the train. The laborers were charged with violating a Mississippi criminal law that forbade an indebted worker from leaving his employer before repaying his debt. This was not the first time escaping immigrants had been compelled to return to Sunnyside.879

Senator Percy responded forcefully upon learning that Quackenbos’ concerns went beyond the Italians’ well-being, and that she was pursuing criminal violations of federal peonage and immigration statutes. Again using his press connections in Vicksburg and Greenville, he warned that the U.S. Attorney General was attempting to “break up” immigration to the delta.

The senator accused Quackenbos of being a “Socialist agitator” who “took advantage of [the

Italian immigrants’] ignorance and suspicious natures to excite discontent and hostility toward their employers.” 880 He was unrepentant regarding the treatment of immigrants at Sunnyside

Plantation. Although Senator Percy conceded that there could be a basis for some of the complaints, he defended the interest rates charged by the commissary and prices for goods and services. The senator said that the immigrants had no money or credit, and that the plantation was engaging in business practices not unlike others used around the delta. 881

In October 1907, using information gained from disillusioned workers, Quackenbos sought to have Orlando B. Crittenden, one of Percy’s business partners, indicted for peonage.

The senator then elevated his campaign against the USDOJ investigation, and Quackenbos personally, to the White House. He called upon his extensive political connections and friendship with President Roosevelt, whom he had taken on a 1902 bear hunt in the delta, to air

879 Boehm, supra note 48 at 51-52. 880 Boehm, supra note 48 at 53 citing the Vicksburg Herald of September 8, 1907 and the Greenville Times of September 29, 1907. 881 Wyatt-Brown, supra note 52 at 67-68.

268 his grievances. 882 Senator Percy assured Roosevelt that he did not intend to interfere with the pending indictment against Crittenden, as the Mississippi judicial system would address that matter. The senator told the president of his concern that the USDOJ investigation would halt immigration into the delta, thereby significantly damaging commerce in the region and exacerbating the labor shortage. Knowing that Roosevelt had shrewdly campaigned for president by reminding Southerners that his mother was raised on a Georgia plantation, the senator accused the Northern-born Quackenbos of failing to understand either the South or agriculture. He asserted that “‘there was not a condition, a custom, a form of contract, or a crop raised on a plantation about which [Quackenbos] had the slightest information.’” 883

Quackenbos’ protestations that immigrants to the South could best be protected by federal action, and that the accuracy of her report was underscored by plentiful evidence, were to no avail. 884 By November 1907, Senator Percy succeeded in having her removed from the case.

President Roosevelt confided to a friend that “infamous outrages” that would not have been tolerated in “Oyster Bay or Cambridge” occurred regularly in the South, but that the people of that region were possessed of different “habits of life [and] sentiments.” 885 Senator Percy, acting as his partner’s lawyer, also ensured that Crittenden was not indicted by the local grand jury.

Despite credible evidence of peonage and immigration violations, it was generally understood locally that an indictment would not avail because Crittenden would never be convicted. 886

Still, Quackenbos’ efforts likely had some salutary effect. Although other factors were at play, Senator Percy sold his interest in Sunnyside in 1913. The plantation no longer attracted

882 Wyatt-Brown, supra note 52 at 78. 883 Boehm, supra note 48 at 55-56. 884 Boehm, supra note 48 at 56-57. 885 Wyatt-Brown, supra note 52 at 76-78. 886 Wyatt-Brown, supra note 52 at 78. It is also worth noting that Senator Percy obtained an appointment to the U.S. Immigration Commission in 1910; see supra notes 47 and 49 for information on his career.

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Italian immigrants; although the now-struggling operation continued for a while under the sharecropping system, it eventually failed. 887

16. Reexamination of the Research Question

At the outset, this dissertation proposed to examine whether black refugees of the 1927

Mississippi River flood in Greenville, Mississippi were held in involuntary servitude. An overview of flood events was given, followed by an extensive analysis of law and custom in the

United States toward the use of coercion and racially motivated violence to control black labor.

This work returns at this point to the plight of flood victims to tell more of their story, and uses that information to assess the research question of whether they were held in violation of law, or made to work for others based on nonactionable custom.

This dissertation has repeatedly invoked the words of President Lincoln, who is the president most associated with freeing the slaves. He was a powerful speaker, who compellingly conveyed the abuses of forced labor. In his second inaugural address of March 4, 1865, made not long before his assassination, Lincoln decried those who would “wring their bread from the sweat of another man’s brow.” While he spoke of chattel slavery, there are other forms of involuntary servitude. This dissertation set the stage by telling of the mistreatment of African

American victims during the historic 1927 Mississippi River flood, and gave as an example the order by Will Percy that black victims would not be allowed to leave. Instead, they were confined to “concentration camps” where they suffered substandard living conditions, were abused, and were made to work for white bosses for minimal or no pay. The introduction to this dissertation also told of Thomas Monroe Campbell of Tuskegee, who was an important member

887 Wyatt-Brown, supra note 52 at 81-84.

270 of the Colored Advisory Commission of the American Red Cross, and whose quiet diplomacy in telling of the terrible treatment of black refugees facilitated reform.

The research question posed in this dissertation is: “Measured against contemporaneous law and precedent, did the constraints imposed upon black victims of the 1927 flood in

Greenville, Mississippi, impinge upon the Constitution’s guarantee of due process and prohibition on involuntary servitude?” The majority of this work analyzes critical laws and court rulings to provide a benchmark for making that evaluation. The stage was set in §§ 1 and 2 for the legal and cultural development of racialized slavery in America, and the evolution of the use of forced labor. Of particular relevance are the peonage investigations and cases discussed in

§§ 12-15; the use of racially motivated violence considered in § 11; and relevant constitutional provisions, statutes and judicial precedent affecting forced labor examined in §§ 3-10. Using this information to evaluate the impact of Will Percy’s order and the overall manner in which

Greenville blacks were treated, I conclude that African Americans were held in forced labor and treated disparately. When viewed by contemporary standards, the abuses in Greenville, and throughout the extensive area affected by the flood, appear to be clear violations of constitutional prohibitions on involuntary servitude and the 1867 Peonage Act, and resulted in the forced labor of blacks that deprived them of due process of law.

This retrospective shows that the South clung to antebellum norms as it resisted

Reconstruction and the starkly changed world it faced after the Civil War. No longer could the region as freely flout dictates of the federal government as it once did. However, it could, and did, skirt national policy in its treatment of African Americans. As seen repeatedly, Southerners substituted peonage, or “debt enslavement,” for chattel slavery. The hallmarks of peonage are that the peon is obligated to work for the master; is denied freedom of movement without the

271 permission of the master; and is indebted to the master, who dispenses (at additional price) or withholds necessities at will. By 1927, although six decades after the end of the Civil War, the exploitation of African Americans still flourished. This was done through legal measures, as evidenced by laws, judicial decisions, extra-legal acts, and the Jim Crow customs that relegated freedmen and their descendants to a subordinate social stratum.

This dissertation relies upon many published sources, including laws and judicial rulings, official government and institutional reports, the press, historians, and authoritative treatises.

Original writings from the files of Thomas Monroe Campbell, Dr. R.R. Moton, and compilations of materials related to the 1927 flood were obtained from the Tuskegee Archives, which houses invaluable background material that was generously shared. These documents depict the imposition of forced labor: the disparate treatment of blacks during the 1927 Mississippi River flood shows that their “separate” treatment was far from “equal,” as sanctioned by the Plessy doctrine, which was then in force. African American flood victims were subjected to racially- linked violence under color of authority, as was seen in Moore . They were kept in a state of involuntary servitude in violation of the 13 th amendment and as described in such U.S. Supreme

Court rulings as W.S. Harlan , Clyatt , and Bailey .

The Story of the Flood: The Press and Records of the Colored Advisory Commission

As background information, one of the most informative ways to learn about the 1927

Mississippi River flood has been to trace the events as they unfolded and were reported by the press. The New York Times alerted readers to the deadly turn taken by the floods. On April 24,

1927, articles told of the dramatically and dangerously rising waters; the efforts of the military, as Navy planes worked to save the stranded residents and the Army to reinforce the levees; and

272 the heroics of operators of small craft 888 who rescued many. But the public was informed that

Greenville’s African Americans chose not to leave the area, and not that Will Percy turned away, without their knowledge or permission, the steamers that would have rescued them from both the flood and their difficult ties to their employers:

HOMELESS NOW 100,000 ALL KINDS OF CRAFT SAVE PEOPLE CLINGING TO ROOFS AND TREES . GREENVILLE IN DIRE PLIGHT TWENTY -TWO THOUSAND INHABITANTS AND REFUGEES BEING REMOVED FROM THE CITY. DANGER PASSING IN NORTH BUT ARMIES OF MEN WORK ON THE LOWER MISSISSIPPI VALLEY LEVEES TO MEET COMING CRISIS MEMPHIS , Tenn., April 23. - The great inland valley of the Mississippi was being deluged tonight by an ever-widening flood of the “Father of Rivers” itself and its tributaries that has made more than 100,000 persons homeless and has taken a death toll estimated by some at 150 or more. While large numbers of refugees were being brought to places of safety countless others were still in danger. Small motor boats scurried over the water with their occupants doing their best to save men, women and children from precarious places of refuge. Some of these were clinging to tree tops. Others were lodged on the roofs of their homes, with the waters slowly threatening to envelop them or sweep the shaky houses away. Hundreds of others clustered on levees or elevated ground awaited anxiously the help they knew was coming, yet feared would not arrive in time. . . . Greenville, Miss., flooded under two to ten feet of water, was being evacuated of refugees as fast as Government and private steamers could put into the town and take away the thousands marooned there. NEGROES REFUSE TO QUIT CITY . Offers to take away thousands of negroes there were declined. They preferred to remain on the “big levee,” where their handful of belongings, hastily snatched when the rushing torrent crept upon them, could be watched. It was expected that all of the 6,000 remaining refugees in Greenville would be removed to Highland Plantation, three miles below Greenville, which has so far escaped the flood. Nine

888 These are the “devil–may-care pariahs” referred to by Will Percy; supra note 45 at 251-52.

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thousand head of cattle grazing on the levee will also be moved.... 889

On April 23, 1927, the Greenville Daily Democrat-Times told of “Suffering and Loss of

Life Result of Stops Landing Break” just above the town. The article warned residents that they were “in for a long siege.” The newspaper advised that it was printed on a hand press with type that had to be set by hand, and that it was unclear whether circumstances would permit continued publication. 890 Conditions continued to deteriorate, and the New York Times of April 26, 1927, told the public that the “Flood [is] Spreading; 200,000 Destitute.” Approximately 7,000,000 square acres were by then underwater, and it was estimated that 50% of the normal cotton crop would be lost. The article identified the “vast majority [of the refugees as] tenant farmers.” 891

The press maintained that despite the fact that “probably three-fourths of them are negroes, the best type of the old-time Southern ‘darky’” written about by such Southern authors as Joel

Chandler Harris and Thomas Nelson Page, no racial distinctions were being made in distributing the relief that was being provided by the federal and Mississippi state governments and private charities.892 The number of destitute persons had grown to 250,000 by May 5, 1927, as the flooding increased and boats were being used in the rescue effort to help stranded flood

889 Homeless Now 100,000 All Kinds of Craft Save People Clinging to Roofs and Trees. Greenville in Dire Plight. Twenty-two Thousand Inhabitants and Refugees Being Removed from the City. Danger Passing in North But Armies of Men Work on the Lower Mississippi Valley Levees to Meet Coming Crisis . NEW YORK TIMES , APRIL 23, 1927. Accessed on April 14, 2017 at search.proquest.com/hnpnewyorktimes/docview/104212286/667FCF6427C442F5PQ/4?accountid=34227. 890 Suffering and Loss of Life Result of Stops Landing Break , GREENVILLE DAILY DEMOCRAT -TIMES , April 23, 1927. Tuskegee Papers of 1927 Flood. 891 Flood Hits More Towns; 200,000 Are Now Destitute; $1,234,000 Given for Relief. Flood Crest Past Memphis. Mighty Torrent Roars on With 30,000,000 Acres in Its Path. Arkansas City Submerged. Dozens of Little Towns in Arkansas and Mississippi Are Menaced. New Orleans Is Prepared. Hoover Praises Red Cross Work of Organization – Relief Situation Now Well in Hand . NEW YORK TIMES , April 26, 1927. Accessed on April 14, 2017 at http://search.proquest.com/hnpnewyorktimes/docview/104170952/EE1E16F1B56D48C8PQ/13?accountid=34227. 892 At the time of the flood, the newspaper was not yet under the stewardship of Hodding Carter, Sr., the Pulitzer prizewinning journalist who became its editor and publisher. See, e.g ., Hodding Carter, Sr., Where Main Street Meets the River , 1 CHALLENGE 59 (1953); and Thomas D. Clark, Clark on Civil Rights in Mississippi , 103 THE REGISTER OF THE KENTUCKY HISTORICAL SOCIETY 251 (2005).

274 victims.893 The following day, the American Red Cross reported that 323,837 refugees were receiving aid and that the national fund had grown to $7,443,267. 894

Several newspaper articles evidenced the increasing racial tensions and recorded the adverse actions that eventually led to the appointment of the CAC. As discussed in § 1.A, one of the more inflammatory articles was published on May 7, 1927, by , which was part of the “Northern Negro press.” It told that troops were being used to guard the blacks’ refugee camps and to prevent them from deserting the plantations. The newspaper wrote of the terrible situation confronting African American flood victims. This account gave a contemporaneous view of events, particularly at Vicksburg, Mississippi, even before Will

Percy’s infamous order exacerbated the situation in Greenville:

USE TROOPS IN FLOOD AREA TO IMPRISON FARM HANDS REFUGEES HERDED LIKE CATTLE TO STOP ESCAPE FROM PEONAGE PLANTATION OWNERS IN FEAR OF RAIDS BY LABOR AGENTS The ugly specter of Race hate has reared its head above the angry waters in the flood area… Men, women, and children of our group, who were conscripted, forced to leave their homes to top levees and prevent, if possible, a flood in their respective cities, are now refugees in “Jim Crow” relief camps. This vast army of destitute persons, nearly one hundred thousand, the majority of them farmers and laborers from 74 villages and towns of seven flood-torn states of the South, are experiencing worse treatment than our forefathers did before the signing of the emancipation proclamation …. [Vicksburg, Mississippi] with a total population of some eighteen thousand persons, has 13,027 flood refugees to shelter, clothes, and feed. Half of this number are members of our

893 New Floods Sweep Army of Homeless to About 250,000 , NEW YORK TIMES , May 5, 1927. Accessed on April 14, 2017 at http://search.proquest.com/hnpnewyorktimes/docview/104179118/114BD5C3BCB54C83PQ/12?accountid=34227. 894 Rescue Work is Speeded as Flood Engulfs New Area; Nation’s Fund Now $7,443,267: More Towns Submerged. Red Cross Reports That 323,837 Refugees Are Receiving Aid. Peril Grows in Louisiana. Thousands Toil to Reinforce Red River Levees as the Flood Crest Rolls Near. Families Huddle on Rafts. Many Refuse to Leave Improvised Floating Refuges in the the Vicinity of Their Farms, NEW YORK TIMES , May 6, 1927. Accessed on April 14, 2017 at search.proquest.com/hnpnewyorktimes/docview/103911014/7D99F9BB1AC747CDPQ/1?accountid=34227.

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Race, who have been placed in separate relief camps and are being guarded daily by national guardsmen who fear they will be kidnapped…. This action was taken, it is said, following numerous requests from southern planters to Gov. Murphree… that members of our Race be guarded against a possible influx of labor agents who would seize this opportunity to take the refugees to the North and give them work. At present, the victims of the flood are given very little food and are barred from all visitors…. Tags bearing the name of the refugee and the owner of the plantation from which he came are being placed on the men and women of our group. This is being done in order that the plantation owners can drive these workers back to the farms and charge these rations to them. 895

On May 14, 1927, the Greenville newspaper published the controversial “Labor Notice” ordered by “W.A. Percy, Chairman of Relief.” It required, in pertinent part: “All negroes in

Greenville outside of the levee camp who are able to work should work. If work is offered them and they refuse to work they should be arrested as vagrants. Names and addresses of those refusing to work should be telephoned to police headquarters. I suggest one dollar a day as a fair wage at this time.” 896 While the disparate treatment of black flood victims at Greenville was the fault of Will Percy and other town leaders, especially his father, those actions were consonant with prevailing Jim Crow custom if not the law. The confinement and unfair treatment of

African Americans took place up and down the flooded river, and was nothing new in the delta. 897

Files on the 1927 Mississippi River flood from the Tuskegee Archives provided invaluable contemporaneous documentation regarding the treatment of African American refugees and the CAC’s investigation. 898 Among information found at Tuskegee is a May 27,

895 CHICAGO DEFENDER , supra note 65. Tuskegee Papers of 1927 Flood. 896 Labor Notice, GREENVILLE DAILY DEMOCRAT -TIMES , May 14, 1927. Tuskegee Papers of 1927 Flood. See also supra note 44 regarding Will Percy’s assertion that the newspaper incorrectly publicized his order the first time it was printed. 897 See, e.g ., § 10.C regarding Cruikshank and § 11 regarding racialized violence and the historic backdrop of Moore . 898 See, e.g ., Tuskegee Papers of 1927 Flood. See also Barry, supra note 31.

276

1927, press release from the NAACP that was entitled “Reports Negroes Held in Peonage in

Mississippi Flood Area: Tenants’ Escape from Refuge[e] Camps Barred by Solider.” This item is revealing both for its disclosure of maltreatment of black flood victims, as well as the careful references exculpating the American Red Cross from the proscriptions on the refugees’ ability to leave the camps. It reads:

Negroes held in peonage in the Mississippi flood area, and prevented from leaving concentration camps without the consent of their landlords, also attempts to charge Negro tenants with the flood relief administered to them are reported by Walter White, Assistant Secretary of the [NAACP], who has returned from a tour including Memphis, Jackson, Vicksburg, New Orleans, and other points in the flood area. Mr. White reports instances of Negroes escaping refugee camps and preferring to go without food, shelter and clothing, rather than be returned to the plantations from which the flood had driven them. Mr. White released the following statement today at the offices of the National Association for the Advancement of Colored People: “in response to complaints of peonage in the Mississippi flood area, I went to that territory and in my tour visited Memphis, Vicksburg, Jackson, New Orleans, and other places in the flooded region. At Memphis, I talked with Dr. William B. Redden, Chief Medical Officer for the Red Cross in the Flood Area. Dr. Redden authorized me to quote him as follows: The Red Cross emphatically disapproves of any attempts to use this disaster by landlords further to enslave Negro tenant farmers and share croppers. Aid is given directly to the individual sufferer. It would be an interesting problem to see that attempts by landlords and others to charge relief against tenants are checked when such relief is given to refugees after they have returned to their homes. “In many refugee camps, however, Negroes are released only to ‘their’ landlords and are sent back to the plantation from which they came….” 899

This article specifically referred to “peonage,” and described how African American flood refugees were sequestered in “concentration camps” and not permitted to leave without the permission of their white landlords and bosses.

899 Tuskegee Papers of 1927 Flood.

277

Walter White, who is mentioned in the press release, was an important figure in African

American civil rights, particularly during the struggles from the 1920s to the 1950s. He was the son of slaves, whose fair skin allowed him to pass as white; White used this to great advantage to gain access while investigating allegations of wrongs including lynching and mob riots. He served as executive secretary of the NAACP from 1931 to 1955, was instrumental in challenging

Jim Crow laws, and is credited with helping convince Harry Truman to establish the President’s

Commission on Civil Rights. 900 White also reported on the Elaine massacre 901 (see § 11).

Walter White wrote several influential pieces on the 1927 flood. He was unable to reach

Greenville, but visited a number of refugee camps along the river. White said that he was well- treated by General Curtis Green of the Mississippi National Guard, who gave him the use of a car and driver to make inspections. White wrote of Green’s description of the manner in which

African Americans in the camps were put to work:

According to General Green, as the lands dry a plantation owner or his authorized manager or agent comes to the refugee camps after presenting proper identification, “picks out his n*****s” …. General Green also told me how labor agents are kept from the camps “no man being allowed to talk to any other but his own n*****s.…” … A number of Negroes vehemently and passionately said to me that they would rather be drowned in the flood than be forced to go back to the plantations from which they had come.” 902

Thomas Monroe Campbell was given the delicate task of coordinating the commission’s investigation at Greenville. Among recommendations in the June 10, 1927, preliminary report for the CAC was that evacuees should be given “helpful direction” upon returning to their homes to establish “safe and self-sustaining conditions.” The CAC suggested the “[i]nclusion of [a]

900 KENNETH R. JANKEN , WHITE : THE BIOGRAPHY OF WALTER WHITE , MR. NAACP (The New Press) (2003). 901 See, e.g ., Walter White, supra note 609. 902 Janken, supra note 900 at 82-83, n.68. This information is also contained in the Tuskegee Papers of 1927 Flood in a press release dated “June 1927.”

278 race representative in the proposed County Health Units” of “[a]t least one full-time colored nurse with public health nursing experience.” It urged that medical and dental services be provided “where feasible and practical.” 903

According to a June 13, 1927, “Memorandum for the Commission,” it was recommended that the CAC prepare two reports. The “one to Secretary Hoover [] would cover frankly, courageously, and somewhat in detailed fashion the facts … and our recommendations concerning emergencies … and a procedure that would [a]ffect permanently the life of the Negro people in the flood stricken area.” The language of report intended for public release would be more circumspect.

The memorandum went on to starkly describe the lives of African Americans in the flooded delta, who suffered maltreatment even before the flood:

[W]e found a class of people who were lacking in schools with no resisting power for a disaster because of the unhealthy conditions under which they lived and little reserve power to deal with emergencies because they were practically helpless without initiative and will little self-control and self-reliance. They did not even select their crops that they were to plant. The matter of harvesting crops and marketing crops, they had no share absolutely depending upon the planter who thought for them and directed them, and as we might expect under such conditions they were exploited. They lived not only in a state of fear but a state of abject poverty although they work from year to year.

The memorandum concluded:

We were face to face all the time not only with emergencies but one of the greatest labor questions of America, which found itself in the relation between the planter and these tenant farmers. These people must work. Frankly, they ought to be encouraged to work. They are rural people, but we very much hope indeed we are strongly convinced that something ought to be done to permanently relieve the hopeless condition under which these people have lived for all these years. They ought not to be permitted to go back into this hopeless situation that faces them in

903 Preliminary report of the CAC. Tuskegee Papers of 1927 Flood.

279

the future, if there is rehabilitation. Rehabilitation should mean a regeneration of conditions under which they live and bring to these people a sense of responsibility or directing their group, a sense of freedom and hope. This can be done through the American Red Cross. We do not suggest, but the American people and the South owe it to this faithful, hard-working group of Negroes to give them for their own contentment and fairness a better home-life to the end that they may be healthier and happier, and economically more independent. 904

The material from the Tuskegee Archives’ collection about the 1927 flood contains other documentation of the terrible conditions faced by black flood victims. A “Dispatch from

Cleveland Mississippi,” published in the Vicksburg Evening Post of May 5, 1927, discussed a meeting to assess the situation. Among problems was the brutal treatment of the refugees by camp guards:

At a number of camps I was told of Negroes eluding guards and escaping, preferring to forego food, shelter, clothing and medical attention rather than go back to the plantations from which the flood waters had driven them. At some of the camps negroes were being taken out by industrial firms, being checked out of the camps and checked in again when their labors were finished. Most of these men had no objection to working, even though not paid, but they objected to the beating, cursing and kicking they had to endure. There are also numerous instances of brutality in the treatment of Negroes forced to work on the levees under the guns of soldiers and even white civilians. In many places, notably Greenville and Stop’s Landing, Negroes were thus conscripted… and they were kept at work even when it was plain the levee would break…. 905

The Tuskegee Archives files contain a copy of a draft typewritten report of CAC’s

“Inspection of Negro and Refugee Camps at Lafayette, Crowley and Opelousas,” Louisiana. The commission found the camps at Lafayette and Crowley to have generally good conditions, but the one in Opelousas, which had about 1,800 refugees, was in a serious state. Members took a

904 Dispatch from Cleveland Mississippi , VICKSBURG EVENING POST of May 5, 1927. Tuskegee Papers of 1927 Flood. 905 Id .

280 tour with the major in command, who had just taken charge and planned to make improvements.

The CAC observed that there was poor housing, with “No electric lights in the tents and [the water was] almost knee deep in some places. There were no cots” and there was an overall lack of sanitation. “There was an insufficient amount of food for the refugees and a lack of utensils with which to serve it nor were there pla[t]es or cups [and] there were few knives, forks or spoons and the refugees were forced to eat with their hands.” The clothing situation was described as “wretched.” 906

Blacks in Opelousas feared their white guards, which made the refugee camp seem more like a prison. The commission raised concern about the “presence in the camp of some 30 young white National guardsmen, each one carrying on his side a pistol.” It said:

The refugees reported to us that these young white men were rough with them and an outsider going into the camp could not help but note the contrast in the attitude of the colored people where there were practically no guardsmen and where the pistols were not so much in evidence. The camp at Opelousas impressed one more as being a prison camp than a refugee camp which probably accounts for the fact that so many of them want to leave. We also found that the plantation owners have free access to the camps, and unlike the situation in the other two camps visited, there is no effort on the part of the camp officials to discourage the plantation owners from taking their hands back to the plantation. With them it is a question of crops rather than the health of the colored people and of the communities to which they are to return.

The CAC recommended that “the colored refugees at Opelousas be transferred to the camps at

Lafayette and Crowley.”907

Members of the commission faced danger as they investigated flood conditions. The

Tuskegee Archives contains a hand-annotated draft of a second round of visits made in

906 Draft report on “Inspection of Negro and Refugee Camps at Lafayette, Crowley and Opelousas,” Louisiana. Tuskegee Papers of 1927 Flood. 907 Id .

281

November and December 1927 by CAC members to determine whether conditions had improved. One of the worst camps was at Sicily Island, Louisiana, where there was still considerable inundation. Just below St. Joseph, Louisiana, persistent floodwaters combined with the Black River to spread in a lake “540 square miles …. Ranging from three to fifteen foot deep.” 908

The reader should remember that the Plessy case also arose from a railcar journey, and its holding remained in force in the 1927 delta. The CAC’s draft report told of a harrowing train ride as the investigators went from camp to camp that evidenced continuing racial tensions in the overcrowded railcar:

Our train [two words penciled out, handwritten ‘was’] six hours going eleven miles. Crawling through the water at a snail’s pace, with frequent stops, the water up to the lower steps of the car, the train in utter darkness the lights having failed. The Jim Crow bench half occupied by whites, and the remainder packed with Negroes back sitting three in a nest, aisles filled with men standing as the noise of the boiling water over the track terrifying one woman until she screamed and put down the window to shut out the sound. With the people refusing to sing because what seemed to be a sullen resentment at their treatment, it was an experience which will long cling to me. [Handwritten: Ninety nine] percent of the passengers were refugees returning from the camp at Sicily Island. They were not only paying their own transportation, but the baggage car was filled with their [effects]. 909

There was clear evidence of disparate treatment, especially in the Sicily Island refugee camp. African Americans were not provided the same relief as whites; blacks were given poorer quality food and clothing, and there was an overall lack of sanitation in their refugee camps. In addition, black men were required to work although whites were not:

[Blacks said they were not furnished cots] and while they saw the whites with them, they dared not ask for them. In this camp all of the Negro men had been detailed to some sort of work. None of

908 Id . 909 Id .

282

the white men however had been worked at all. There was a sufficient quantity of plain food, but discrimination had been practiced however in the distribution when it related to quality. The Negroes got white salt meat while the white got smoked bacon and ham. No tables for eating were provided. At all but near most of the tents we visited was a small stove on which each family prepared its own food. Two car loads of clothing had been sent by the Red-Cross. Distribution was delayed according to the refugees for two days. The goods, most of which was described as never having had the price tags taken off, [two words struck through, handwritten: were] laid out in a large store room in the town. The white women were secretly permitted to go in [handwritten: at] night and pick over the choicest articles, taking most of them. The balance they let the colored [handwritten: people] select the next day. 910

A telling feature of chattel slavery is the owner’s control over the person of the slave.

Interviews with African American refugees from the 1927 flood show the perception, if not perhaps the reality, of their belief that their bosses continued that dominion:

In conclusion I will give one more authorized quotation from Dr. Redden, showing the conditions prevalent in the delta. “Some of the Negroes did not even know that their own bodies belonged to them. When we sought to vaccinate them they said that it could be done only after their plantation bosses gave their permission. When some of these plantation owners objected we had to tell them ‘Either you will permit vaccination or we will stop relief.”911

The Tuskegee Archives also contains draft information generated by members of the

CAC. One undated document, which in context suggests it may have been prepared by

Campbell, tells that the blacks were not regularly paid, and had wanted to save their belongings but were not allowed to do so. Notes from an interview in Vicksburg tell how they were made to work on the levee to the last, dangerous minute before it broke:

Talking with one rather level-handed farmer, he said, “We ain’t got no complaint to make about our treatment here, only, they are making all the men unload boats at the river and work on the levees and ain’t told anything about paying us. Course we’re

910 Id . 911 Vicksburg Evening Post , supra note 904.

283

getting a place to eat and sleep, but it looks like we ought to get some pay for our work.” He said “We’d a been much better off if the white people had let us pack and bring out more of our stuff. They made us work on the levees down in the delta, up to the last minute, tellin’ us that the levee wasn’t goin’ to break and then when it did break, we didn’t have time to do nothin’ but move our families. That’s the biggest complaint we got.”

The notes reported adequate showers and food at Vicksburg, that people were being vaccinated, and that there was “an isolation camp for social diseases. 912

Conclusion

Historic documentation, secondary information, and an analysis of legal precedent support the conclusion that African American victims of the 1927 Mississippi River flood were illegally forced to labor for white bosses under threat of harm, and were treated far worse than white refugees. Will Percy and Thomas Monroe Campbell were important, if not fully recognized, figures in the flood and American society; each was a gentleman who acted within his cultural norms and typified men of their day and race. Will Percy was best known as a writer, and a model prototype of the Southern plantation elite, who was comfortable with the exercise of noblesse oblige . Thomas Monroe Campbell was the son of slaves, protégé of Booker

T. Washington and George Washington Carver, and spent his life working to improve the lot of others through education and example. The effects of the flood continued far beyond the

Mississippi River valley. The pace of delta blacks’ migration elsewhere increased following the abuses they suffered during the flood. This helped change the national political landscape, as the

Republican Party afterward had fewer black voters, because they felt that the party did not

912 Notes from an interview conducted by a member of the CAC. Tuskegee Papers of 1927 Flood.

284 address their needs.913 Each in his own way, Will Percy and Thomas Monroe Campbell left enduring legacies that helped change hearts and minds toward black and white relationships.

Rising High Water Blues 914 Backwater rising, Southern peoples can't make no time I said, backwater rising, Southern peoples can't make no time And I can't get no hearing from that Memphis girl of mine.

Water in Arkansas, people screaming in Tennessee Oh, people screaming in Tennessee If I don't leave Memphis, backwater spill all over poor me.

People, since its raining, it has been for nights and days People, since its raining, has been for nights and days Thousands people stands on the hill, looking down w[h]ere they used to stay.

Children stand there screaming: mama, we ain't got no home Oh, mama we ain't got no home Papa says to the children, "Backwater left us all alone."

Backwater rising, come in my windows and door The backwater rising, come in my windows and door I leave with a prayer in my heart, backwater won't rise no more.

913 Lisio and Lohof portray Hoover as an intelligent and capable man who was strongly influenced by the compassionate principles of his Quaker faith and personal belief in volunteerism. They argue that Hoover was more representative of an unconscious racism common to his time than a true “lily-white” as his actions were interpreted. Lisio, supra note 37 and Lohof, supra note 35. African Americans had begun their retreat from the Republican Party before the 1927 flood, but their distrust of Hoover accelerated that defection and thereby affected national politics. See, e.g , Charles H. Martin, Negro Leaders and the Republican Party , 32 PHYLON 85 (1960); Simon Topping, “Turning Their Pictures of Abraham Lincoln to the Wall”: The Republican Party and Black America in the Election of 1936 , 8 IRISH JOURNAL OF AMERICAN STUDIES 35 (1999). 914 “Blind” Lemon Jefferson, “Rising High Water Blues,” lyrics from recording of May 1927, Chicago, Illinois.

285

17. List of Authorities A. Cases

Adamson v. California , 332 U.S. 46 (1947).

The Antelope , 23 U.S. 66 (1825).

American Insurance Co. v. Canter , 26 U.S. 511 (1828).

Bailey v. Alabama , 219 U.S. 219 (1911).

Bailey v. Alabama , 211 U.S. 452 (1908).

Bailey v. State , 161 Ala. 77, 49 So. 886 (1909).

Banks v. State, 143 Ark. 154 (1920).

Berea College v. Kentucky , 211 U.S. 45 (1908).

Blyew v. United States , 80 U.S. 581 (1871).

Ex parte Bollman and Ex parte Swartwout , 8 U.S. 75 (1807).

Boumediene v. Bush , 553 U.S. 723 (2008).

Bradwell v. Illinois , 83 U.S. 130 (1873).

Branzburg v. Hayes , 408 U.S. 665 (1972).

Brown v. Board of Education , 347 U.S. 483 (1954).

Brown v. Mississippi , 297 U.S. 278 (1936).

Brown v. State , 161 So. 465 (Miss. 1935).

Ex parte Buckalew , 84 Ala. 460, 4 So. 424 (1888).

Bush v. Gore , 531 U.S. 98 (2000).

Callan v. Wilson , 127 U.S. 540 (1904).

Chambers v. Florida , 309 U.S. 227 (1940).

Civil Rights Cases , 109 U.S. 3 (1883).

The Case of Mary Clark, a Woman of Color , 1 Blackf. 122 (Ind. 1821).

286

Clyatt v. United States , 195 U.S. 207 (1905).

Dodge v. Woolsey , 18 How. 331 (1885).

Ex Parte Duckett , 15 SC 210, 1881 WL 5892 (SC) (1881).

Duckett v. Pool , 33 S.C. 238, 11 S.E. 689 (1890).

Durham v. State of Tennessee , 89 Tenn. 723, 18 S.W. 74 (1891).

Evans v. Newton , 382 U.S. 296 (1966).

Frank v. Mangum , 237 U.S. 309 (1915).

Giles v. State , 143 Ark. 154 (1920),

Giles v. Harris , 189 U.S. 475 (1903).

Giles v. Teasley , 193 U.S. 146 (1904).

Gitlow v. New York , 268 U.S. 652 (1925).

Griffin v. State , 160 Ark. 166, 254 S.W. 468 (1923).

Guinn v. United States , 238 U.S. 347 (1915).

W.S. Harlan v. McGourin , 218 U.S. 442 (1910).

Harlan v. United States , 214 U.S. 519 (1909).

W.S. Harlan v. United States , 184 F. 702 (5 th Cir. 1909).

Ex parte Harlan , 180 F. 119 (N.D. Fla. 1909).

Hall v. Keese and Dougherty v. Cartwright , 31 Tex. 504 (1868).

Haralson v. Alabama , 123 Ala. 89, 26 So. 653 (1899).

Henry v. State , 119 P. 278 (Okla. Crim. App. 1911)

Herrera v. Collins , 506 U.S. 390 (1993).

Hicks v. Dempsey , Case No. 6247 (1921),

Hicks v. State , 143 Ark. 158 (E.D. Ark. 1920).

287

Hodges v. United States , 203 U.S. 1 (1906).

Ex parte Hollman , 60 S.E. 24 (S.C. 1907).

Hurtado v. California , 110 U.S. 516 (1884).

Jamison v. Wimbish , 130 F. 351 (W.D. Ga. 1904).

Jaremillo v. Romero, 1 N.M. 190 (1857).

Jones v. Jones , 234 U.S. 615 (1914).

Jones v. Mayer , 392 U.S. 409 (1968).

Jones v. Van Zandt , 46 U.S. 215 (1847).

Ex parte Kearney , 20 U.S. 38 (1822).

The Case of Elizabeth Key , 1855/56, Northumberland County Record Books, 1652-1658, fols. 66-67, 85, 1858-1660, fol. 28; Northumberland County Order Book, 1652-1665, fols. 40, 46, 49.

Henry Knox v. The State of Tennessee , 68 Tenn. 202, 1877 WL 4855 (Tenn.) (1877).

Lochner v. New York , 198 U.S. 45 (1905).

Loving v. Virginia , 388 U.S. 1 (1967).

Marbury v. Madison , 5 U.S. 137 (1803).

Malloy v. Hogan , 378 U.S. 1 (1964).

James M. Matthews, Contractor v. N.S. Walker, Sheriff , 57 Miss. 337, 1879 WL 4068 (Miss.) (1879).

Ex parte McCardle , 74 U.S. 506 (1868).

Ex parte McCardle , 73 U.S. 318 (1867).

McIntire v. Pryor , 173 U.S.38 (1899).

Ex parte Milligan , 71 U.S. 2 (1866).

Minor v. Happerstett , 88 U.S. 162 (1875).

Moore v. Dempsey , 261 U.S. 86 (1923).

288

Moore v. Dempsey , Case No. 6246 (E.D. Ark. 1921).

Palko v. Connecticut , 67 U.S. 1672 (1947).

Papasan v. Allain , 478 U.S. 265 (1986).

Ex parte Pearson , 59 Ala. 654, 1877 WL 1329 (Ala.) (1877).

Peonage Cases , 123 F. 671 (M.D. Ala. 1903).

Permoli v. New Orleans , 44 U.S. 589 (1845).

Phoebe v. Jay , 1 Ill. (Breese) 268 (1828).

Plessy v. Ferguson , 163 U.S. 537 (1896).

Pollack v. Williams , 322 U.S. 4 (1944).

Ex parte Chapman Price , 11 Tex. App. 538, 1882 WL 9179 (Tex. Ct. App.) (1882).

Prigg v. Pennsylvania , 41 U.S. 539 (1842).

Reece v. Georgia , 350 U.S. 85 (1955).

Ex parte Riley , 94 Ala. 82, 10 So. 528 (1892).

Robertson v. Baldwin , 165 U.S. 275 (1897).

Ruffin v. Commonwealth , 62 Va. 720 (1871).

Dred Scott v. Sandford , 60 U.S. 393 (1857).

Ex parte Siebold , 100 U.S. 371 (1879).

Skilling v. United States , 561 U.S. 358 (2010).

Slaughter-House Cases , 83 U.S. 36 (1873).

James Somerset[t], a Negro v. Stewart , 98 ER 499 (1772).

State of Arkansas v. Martineau , 149 Ark. 237 (1921).

Strauder v. West Virginia , 100 U.S. 303 (1880).

Tarpley v. State , 79 Ala. 271 (1885).

289

In re Turner , 24 F. 337 (D. Md. 1867).

United States v. Anthony , 24 F. 829 (1873).

United States v. Cruikshank , 92 U.S. 542 (1876).

United States v. Cruikshank , 25 F. 707 (C.C. D. La. 1874).

United States v. Eberhart , 127 F. 252 (N.D. Ga. 1899).

United States v. Kozminski , 487 U.S. 931 (1988).

United States v. Mitchell , 26 Fed. 1283 (D. S.C. 1871).

United States v. Morris , 125 F. 322 (D.C. Ark. 1903).

United States v. Reese , 92 U.S. 214 (1876).

United States v. Shackney , 333 F.2d 475 (2 nd Cir. 1964).

Ward v. Texas , 316 U.S. 547 (1942).

Ware v . State, 159 Ark. 540 (1923).

Ware v. State , 146 Ark. 321 (1920).

Ex parte Watkins , 28 U.S. 193 (1830).

Wheat v. Ortega , 24 U.S. 467 (1826).

Ex parte White , 81 Ala. 80, 1 So. 700 (1887).

Ex parte Wilson , 114 U.S. 417 (1885).

Williams v. Mississippi , 170 U.S. 213 (1898)

Wimbish v. Jamison , 199 U.S. 599 (1905).

Wordlow v. State, 143 Ark. 154 (1920).

Yick Wo v. Hopkins , 118 U.S. 356 (1886)

290

B. Laws

United States Constitution

Articles I through V

Amendments 1-10, 13-15, 19

Laws of the United States

Alien Contract Labor Law of 1885, Sess. II Chap. 164; 23 Stat. 332.

Confiscation Act of 1861, ch. 60, 12 Stat. 345.

Confiscation Act of 1862, 12 Stat. 589.

Enforcement Act of 1870, ch. 11, 16 Stat. 140.

Enforcement Act of 1871, ch. 94, 16 Stat. 443.

Enforcement Act of 1871, ch. 21, 17 Stat. 13.

Force Bill of 1833, March 2, 1833, ch. 57, 4 Stat. 632.

Freedmen’s Bureau Act of March 3, 1865, ch. 90, 13 Stat. 507.

Fugitive Slave At of 1793, 1 Stat. 302.

Habeas Corpus Suspension Act of 1863, ch. 81, 12 Stat. 755.

Habeas Corpus Act of 1867, ch. 28, 14 Stat. 385.

Judiciary Act of 1789 (ch. 20, 1 Stat. 73).

Morrill Act of 1862 (7 U.S.C. § 301 et seq .).

Morrill Act of 1890 (26 Stat. 417, 7 U.S.C. § 321 et seq .).

Peonage Act of 1867, ch. 187, 14 Stat. 546

Reconstruction Act of March 2, 1867, ch. 153, 14 Stat. 428.

Reconstruction Act of March 23, 1867, ch. 6, 15 Stat. 2.

291

Reconstruction Act of July 19, 1867, ch. 30, 15 Stat. 14.

Reconstruction Act of March 11, 1868, ch. 25, 15 Stat. 41.

Slave Trade Act of 1807, ch. 22, 2 Stat. 426 (1807).

State and Colonial American Laws

Alabama

§ 4730 of the Code of Alabama of 1896

Florida

Compiled Laws of Florida 1914 §§ 3570, 3571.

Acts and Resolutions Adopted by the Legislature of Florida, Regular Session, 1891.

Acts and Resolutions, 1865, c. 1465, pp. 20-22.

Mississippi

Miss. Code Ann. § 97-3-87 (1972). THREATS AND INTIMIDATION ; WHITECAPPING . Sources: Codes, 1906, Sec. 1398; Hemingway’s 1917, Sec. 1141; 1930, Sec. 1173; 1942, Sec. 2416.

South Carolina

Laws of South Carolina, 1865, No. 4733, sec. XVI.

Virginia

Virginia Statute of 1705, Hening Statutes, vol. 3, § 37 at 460-61.

Virginia Statute of 1669; Act I of October 1669, “An act about the casuall killing of slaves.” Source: Hening, ed., The Statutes at Large, vol. 2, at 270.

Laws of England

Vagabond Act, passed by British Parliament in 1572.

292

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Books

BRENT J. AUCOIN , THOMAS GOODE JONES , RACE , POLITICS & JUSTICE IN THE NEW SOUTH (University of Alabama Press) (2010).

LEWIS BAKER , THE PERCYS OF MISSISSIPPI (Louisiana State University Press) (1983).

RAY STANNARD BAKER , FOLLOWING THE COLOR LINE : AN ACCOUNT OF NEGRO CITIZENSHIP IN THE AMERICAN DEMOCRACY (Doubleday, Page & Co.) (1908).

JAMES CURTIS BALLAGH , HISTORY AND SLAVERY IN VIRGINIA (Johns Hopkins University Press) (1902).

JOHN M. BARRY , RISING TIDE : THE GREAT MISSISSIPPI FLOOD AND HOW IT CHANGED AMERICA (Simon & Schuster) (1997).

ROY P. BASLER , THE COLLECTED WORKS OF ABRAHAM LINCOLN (Rutgers University Press) (1953).

IRA BERLIN , THE LONG EMANCIPATION : THE DEMISE OF SLAVERY IN THE UNITED STATES (Harvard University Press) (2015).

DAVID E. BERNSTEIN , ONLY ONE PLACE OF REDRESS : AFRICAN AMERICANS , LABOR REGULATIONS AND THE COURTS FROM RECONSTRUCTION TO THE NEW DEAL (Duke University Press) (2001).

WARREN M. BILLINGS , THE OLD DOMINION IN THE SEVENTEENTH CENTURY : A DOCUMENTARY HISTORY OF VIRGINIA , 1606-1689 (The University of North Carolina Press for the Institute of Early American History and Culture) (1975).

DOUGLAS A. BLACKMON , SLAVERY BY ANOTHER NAME : THE RE-ENSLAVEMENT OF BLACK AMERICANS FROM THE CIVIL WAR TO WORLD WAR II (Anchor Press) (2008).

B. Blaisdell, ed., ESSENTIAL DOCUMENTS OF AMERICAN HISTORY . VOL . I: FROM COLONIAL TIMES TO THE CIVIL WAR (Dover Pubications) (2016).

GABOR S. BORITT , LINCOLN AND THE ECONOMICS OF THE AMERICAN DREAM (Memphis State University Press) (1994).

ROBERT BURLEIGH , LANGSTON ’S TRAIN RIDE (Orchard Books) (2004).

MICHAEL BURLINGAME , ABRAHAM LINCOLN , A LIFE (Johns Hopkins University Press) (2008).

293

THOMAS MONROE CAMPBELL , THE MOVABLE SCHOOL GOES TO THE NEGRO FARMER (Tuskegee Institute Press) (1936).

Janes M. Chen et al., ed., DISASTER LAW AND POLICY (Aspen Press 3rd) (2015).

RICHARD C. CORTNER , A MOB INTENT ON DEATH : THE NAACP AND THE ARKANSAS RIOT CASES (Wesleyan University Press) (1988).

JOSEPH HARTZELL CRANE , CHRISTIAN EDUCATORS IN COUNCIL : SIXTY ADDRESSES BY AMERICAN EDUCATORS (Phillips & Hunt) (1883).

PETE DANIEL , STANDING AT THE CROSSROADS : SOUTHERN LIFE SINCE 1900 (1986).

PETE DANIEL , DEEP ’N AS IT COME : THE 1927 MISSISSIPPI RIVER FLOOD (Oxford University Press) (1977).

PETE DANIEL , THE SHADOW OF SLAVERY : PEONAGE IN THE SOUTH (University of Illinois Press) (1972).

DEBORAH DAVIS , GUEST OF HONOR : BOOKER T. WASHINGTON , THEODORE ROOSEVELT , AND THE WHITE HOUSE DINNER THAT SHOCKED A NATION (Atria Books) (2012).

W.E.B. DU BOIS , BLACK RECONSTRUCTION IN AMERICA , AN ESSAY TOWARD A HISTORY OF THE PAST WHICH BLACK FOLK PLAYED IN THE ATTEMPT TO RECONSTRUCT DEMOCRACY IN AMERICA , 1860-1880 (Harcourt Brace) (1935).

W.E.B. DU BOIS , THE SOULS OF BLACK FOLK (A.C. McClurg & Co.) (1903).

RALPH WALDO EMERSON , EMERSON ’S COMPLETE WORKS : NATURE , ADDRESSES AND LECTURES (J. E. Cabot ed., Houghton, Mifflin) (1883).

MICHAEL FABRE , THE UNFINISHED QUEST OF RICHARD WRIGHT (University of Illinois Press) (1993).

WILLIAM FAULKNER , COLLECTED WORKS OF WILLIAM FAULKNER (Random House, Inc.) (1950).

MALCOLM M. FEELEY & EDWARD L. RUBIN , JUDICIAL POLICY MAKING AND THE MODERN STATE : HOW THE COURTS REFORMED AMERICA ’S PRISONS (Cambridge University Press) (1998).

MILLARD FILLMORE , MILLARD FILLMORE PAPERS (Buffalo Historical Society Publications) (1907).

PAUL FINKELMAN , Slavery and the Constitutional Convention: Making a Covenant with Death , in BEYOND CONFEDERATION : ORIGINS OF THE CONSTITUTION AND NATIONAL IDENTITY (Richard Beeman et al. ed., University of North Carolina Press) (1987).

294

ERIC FONER , THE FIERY TRIAL : ABRAHAM LINCOLN AND AMERICAN SLAVERY (W.W. Norton & Co., Inc.) (2010).

ERIC FONER , FOREVER FREE : THE STORY OF EMANCIPATION AND RECONSTRUCTION (Random House, Inc.) (2005).

ERIC FONER , RECONSTRUCTION : AMERICA ’S UNFINISHED REVOLUTION 1863-1877 (Harper & Row) (1988).

ERIC FONER , A SHORT HISTORY OF RECONSTRUCTION (Harper & Row) (1988).

Laura Foner & E.D. Genovese, ed., SLAVERY IN THE NEW WORLD : A READER IN COMPARATIVE HISTORY (Prentice-Hall, Inc.) (1969).

M.M. FRANCIS , CIVIL RIGHTS AND THE MAKING OF THE MODERN AMERICAN STATE (Cambridge University Press) (2014).

JOHN HOPE FRANKLIN , RECONSTRUCTION AFTER THE CI VIL WAR (University of Chicago Press) (1994).

Eric F. Goldman, Charles J. Bonaparte, Patrician Reformer, His Earlier Career , in JOHNS HOPKINS UNIVERSITY STUDIES IN HISTORICAL AND POLITICAL SCIENCE (Johns Hopkins University (1943).

LAWRENCE GOLDSTONE , INHERENTLY UNEQUAL : THE BETRAYAL OF EQUAL RIGHTS BY THE SUPREME COURT , 1865-1902 (Walker Publishing Co., Inc.) (2011).

RISA L. GOLUBOFF , THE LOST PROMISE OF CIVIL RIGHTS (Harvard University Press) (2007).

WILLIAM GOODELL , THE AMERICAN SLAVE CODE IN THEORY AND PRACTICE : ITS DISTINCTIVE FEATURES SHOWN BY ITS STATUTES , JUDICIAL DECISIONS , AND ILLUSTRATIVE FACTS (American and Foreign Anti-Slavery Society) (1853).

DORIS KEARNS GOODWIN , THE BULLY PULPIT : THEODORE ROOSEVELT , WILLIAM HOWARD TAFT , AND THE GOLDEN AGE OF JOURNALISM (Simon & Schuster) (2013).

DORIS KEARNS GOODWIN , TEAM OF RIVALS : THE POLITICAL GENIUS OF ABRAHAM LINCOLN (Simon & Schuster) (2005).

DONALD LEE GRANT , THE WAY IT WAS IN THE SOUTH : THE BLACK EXPERIENCE IN GEORGIA (Birch Lane Press) (1993).

MICHAEL S. GREEN & SCOTT L. STABLER , IDEAS AND MOVEMENTS THAT SHAPED AMERICA : FROM THE BILL OF RIGHTS TO OCCUPY WALL STREET (ABC-CLIO) (2015).

295

JANE PURCELL GUILD , BLACK LAWS OF VIRGINIA : A SUMMARY OF THE LEGISLATIVE ACTS OF VIRGINIA CONCERNING NEGROES FROM EARLIEST TIMES TO THE PRESENT (Whittet & Sheperson) (1936).

LOUIS R. HARLAN , THE BOOKER T. WASHINGTON PAPERS (University of Illinois Press) (1981).

J. WILLIAM HARRIS , DEEP SOUTHS : DELTA , PIEDMONT , AND SEA ISLAND SOCIETY IN THE AGE OF SEGREGATION (The Johns Hopkins University Press) (2001).

L.M. HEYWOOD & J.K. THORNTON , CENTRAL AFRICANS , ATLANTIC CREOLES , AND THE FOUNDATION OF THE AMERICAS , 1585-1660 (Cambridge University Press) (2007).

A. LEON HIGGINBOTHAM , JR., IN THE MATTER OF COLOR : THE COLONIAL PERIOD (Oxford University Press) (1978).

A. LEON HIGGINBOTHAM , JR., SHADES OF FREEDOM : RACIAL POLITICS AND PRESUMPTIONS OF THE AMERICAN LEGAL PROCESS (Oxford University Press) (1996).

WILLIAM B. HIXSON JR., MOORFIELD STORY AND THE ABOLITIONIST TRADITION (Oxford University Press) (1972).

OLIVER WENDELL HOLMES JR., THE COMMON LAW (Little, Brown & Co.) (1881).

HAROLD HOLZER & CRAIG L. SYMONDS , THE NEW YORK TIMES COMPLETE CIVIL WAR 1861- 1865 (Black Dog & Leventhal Publishers, Inc.) (2010).

HAROLD HOLZER , LINCOLN PRESIDENT -ELECT : ABRAHAM LINCOLN AND THE GREAT SECESSION WINTER , 1860-1861 (Simon & Schuster) (2008).

LANGSTON HUGHES , LET AMERICA BE AMERICA AGAIN AND OTHER POEMS (Vintage Books) (2004).

LANGSTON HUGHES , THE COLLECTED WORKS OF LANGSTON HUGHES . THE POEMS : 1941-1950 (University of Missouri Press) (2001).

KENNETH R. JANKEN , WHITE : THE BIOGRAPHY OF WALTER WHITE , MR. NAACP (The New Press) (2003).

LEE ANNA KEITH , THE COLFAX MASSACRE : THE UNTOLD STORY OF BLACK POWER , WHITE TERROR , AND THE DEATH OF RECONSTRUCTION (Oxford University Press) (2008).

FRANK RICHARDSON KENT , THE STORY OF MARYLAND POLITICS (Thomas and Evans Printing Co.) (1911).

JAMES KENT , COMMENTARIES ON AMERICAN LAW (Da Capo Press Reprint) (1971).

296

MICHAEL J. KLARMAN , FROM JIM CROW TO CIVIL RIGHTS (Oxford University Press) (2004).

CHARLES LANE , THE DAY FREEDOM DIED : THE COLFAX MASSACRE , THE SUPREME COURT , AND THE BETRAYAL OF RECONSTRUCTION (Henry Holt and Co.) (2008).

NICHOLAS LEMANN , REDEMPTION : THE LAST BATTLE OF THE CIVIL WAR (Farrar, Straus, and Giroux) (2006).

NICHOLAS LEMANN , THE PROMISED LAND : THE GREAT BLACK MIGRATION AND HOW IT CHANGED AMERICA (Alfred A. Knopf) (1991).

DAVID LEVERING LEWIS , W.E.B. DU BOIS , 1919-1963: THE FIGHT FOR EQUALITY AND THE AMERICAN CENTURY (Henry Holt and Co.) (2000).

DONALD J. LISIO , HOOVER , BLACKS , AND LILY -WHITES (University of North Carolina Press) (1985).

MATTHEW J. MANCINI , ONE DIES , GET ANOTHER . CONVICT LEASING IN THE AMERICAN SOUTH , 1866-1928 (University of South Carolina Press) (1996).

MALCOLM MOOS , H.L. MENKEN ON POLITICS : A CARNIVAL OF BUNCOMBE (Vintage Books) (2006).

MICHAEL NELSON , THE PRESIDENCY AND THE POLITICAL SYSTEM (Congressional Quarterly Press) (2013).

MATTHEW NEWTON , THE KU KLUX KLAN IN MISSISSIPPI : A HISTORY (McFarland & Co.) (2010).

R.K. Newman, ed., THE YALE BIOGRAPHICAL DICTIONARY OF AMERICAN LAW ( Press) (2009).

R.K. Newman, ed., THE CONSTITUTION AND ITS AMENDMENTS , VOL . 4 (Macmillan Reference USA) (1999).

DONALD G. NIEMAN , TO SET THE LAW IN MOTION . THE FREEDMEN ’S BUREAU AND THE LEGAL RIGHTS OF BLACKS , 1865-1868 (KTO) (1979).

DAVID A. NOVAK , THE WHEEL OF SERVITUDE : BLACK FORCED LABOR AFTER SLAVERY (University of Kentucky Press) (1978).

ROBERT A. NOWLAN , THE AMERICAN PRESIDENTS FROM POLK TO HAYES : WHAT THEY DID , WHAT THEY SAID & WHAT WAS SAID ABOUT THEM (McFarland & Co.) (2012).

NELL MARION NUGENT , CAVALIERS AND PIONEERS : ABSTRACTS OF VIRGINIA LAND PATENTS AND GRANTS , 1623-1800 (Dietz Publishing Co.) (1934).

297

CHARLES H. OTKEN , THE ILLS OF THE SOUTH OR RELATED CAUSES HOSTILE TO THE GENERAL PROSPERITY OF THE SOUTHERN PEOPLE (G.P. Putnam’s Sons) (1894).

THOMAS NELSON PAGE , THE NEGRO : THE SOUTHERNER ’S PROBLEM (Charles Scribner’s Sons) (1904).

WILLIAM ALEXANDER PERCY , LANTERNS ON THE LEVEE : RECOLLECTIONS OF A PLANTER ’S SON (Alfred A. Knopf) (1941).

ARTHUR F. RAPER , THE TRAGEDY OF LYNCHING (University of North Carolina Press) (1933).

ROBERT V. REMINI , A SHORT HISTORY OF THE UNITED STATES (HarperCollins) (2008).

JEFFREY ROSEN , THE SUPREME COURT : THE PERSONALITIES AND RIVALRIES THAT DEFINED AMERICA (Henry Holt and Co.) (2007).

JEFFREY ROSEN , THE “M OST DEMOCRATIC BRANCH ”: HOW THE COURTS SERVE AMERICA (Oxford University Press, Inc.) (2006).

CARL SCHURZ , SPEECHES , CORRESPONDENCE AND POLITICAL PAPERS OF CARL SCHURZ (F. Bancrotft ed., G.P. Putnam’s Sons) (1913).

HERBERT JACOB SELIGMANN , THE NEGRO FACES AMERICA (Press of Clarence S. Nathan 2nd) (1924).

DANIEL J. SHARFSTEIN , THE INVISIBLE LINE : THREE AMERICAN FAMILIES AND THE SECRET JOURNEY FROM BLACK TO WHITE (P ENGUIN PRESS ) (2011).

WILLIAM A. SINCLAIR , THE AFTERMATH OF SLAVERY : A STUDY OF THE CONDITION AND ENVIRONMENT OF THE AMERICAN NEGRO (Small, Maynard & Co.) (1905).

B. Stalcup, ed., RECONSTRUCTION : OPPOSING VIEWPOINTS (Greenhaven Press) (1995).

KENNETH M. STAMPP , THE PECULIAR INSTITUTION : SLAVERY IN THE ANTE -BELLUM SOUTH (Alfred A. Knopf Vintage Books) (1956).

JOHN STAUFFER , PICTURING FREDERICK DOUGLASS : AN ILLUSTRATED BIOGRAPHY OF THE NINETEENTH CENTURY ’S MOST PHOTOGRAPHED AMERICAN (Liveright Publishing Corp.) (2015).

GRIF STOCKLEY , BLOOD IN THEIR EYES : THE ELAINE RACE MASSACRES OF 1919 (University of Arkansas Press) (2001).

JOSEPH STORY , COMMENTARIES ON AMERICAN LAW (Boston & Cambridge) (1847).

HARRIET BEECHER STOWE , UNCLE TOM ’S CABIN , OR , LIFE AMOUNG THE LOWLY (John P. Jewett & Co.) (1852).

298

MARK WAHLGREN SUMMERS , THE ERA OF GOOD STEALING (Oxford University Press) (1993).

DAVID TRAXEL , CRUSADER NATION : THE UNITED STATES IN PEACE AND THE GREAT WAR , 1898- 1920 (Alfred A. Knopf) (2006).

ALLEN W. TRELEASE , WHITE TERROR : THE KU KLUX KLAN CONSPIRACY AND SOUTHERN RECONSTRUCTION (Harper & Row) (1971).

MARK TWAIN , LIFE ON THE MISSISSIPPI (Modern Library 6th) (1994).

MELVIN I. UROFSKY , DISSENT AND THE SUPREME COURT : ITS ROLE IN THE COURT ’S HISTORY AND THE NATION ’S CONSTITUTIONAL DIALOGUE (Pantheon Books) (2015).

MELVIN I. UROFSKY , LOUIS D. BRANDEIS : A LIFE (Pantheon Books) (2009).

BOOKER T. WASHINGTON & ROBERT E. PARK , THE MAN FARTHEST DOWN . A RECORD OF OBSERVATION AND STUDY IN EUROPE (Doubleday, Page & Co.) (1912).

MARK STUART WEINER , BLACK TRIALS : CITIZENSHIP FROM THE BEGINNINGS OF SLAVERY TO THE END OF CASTE (A.A. Knopf) (2004).

IDA B. WELLS -BARNETT , THE ARKANSAS RACE RIOT (Beacon Press) (1995).

WILLIAM M. WIECEK , THE HISTORY OF THE SUPREME COURT OF THE UNITED STATES (Cambridge University Press) (2006).

WILLIAM M. WIECEK , THE SOURCES OF ANTISLAVERY CONSTITUTIONALISM IN AMERICA 1760- 1848 (Cornell University Press) (1977).

THEODORE B. WILSON , THE BLACK CODES OF THE SOUTH (University of Alabama Press) (1965).

C. VANN WOODWARD , THE STRANGE CAREER OF JIM CROW (Oxford University Press 2nd rev.) (1966).

C. VANN WOODWARD , ORIGINS OF THE NEW SOUTH , 1877-1913 (Louisiana State University Press) (1951).

C. VANN WOODWARD , REUNION AND REACTION : THE COMPROMISE OF 1877 AND THE END OF RECONSTRUCTION (Little, Brown & Co.) (1951).

Monroe Work, ed., THE NEGRO YEAR BOOK , 1921-1922 (Tuskegee Institute) (1922).

RICHARD WRIGHT , BLACK BOY : A RECORD OF CHILDHOOD AND YOUTH (HarperCollinsPublishers 15th) (2005).

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BERTRAM WYATT -BROWN , THE HOUSE OF PERCY : HONOR , MELANCHOLY , AND IMAGINATION IN A SOUTHERN FAMILY (Oxford University Press) (1994).

Dissertations and Theses

BRENT J. AUCOIN , “A RIFT IN THE CLOUDS ”: SOUTHERN FEDERAL JUDGES AND AFRICAN AMERICAN CIVIL RIGHTS , 1890-1910 (PhD diss., University of Arkansas) (2007). Accessed on April 13, 2017 at http://search.proquest.com.unr.idm.oclc.org/docview/304513359/3E9CBBA25B324305PQ/2?ac countid=452.

Deborah Waldrep Austin, THOMAS MONROE CAMPBELL AND THE DEVELOPMENT OF NEGRO EXTENSION WORK , 1883-1956 (Master’s thesis, Auburn University, 1975). Obtained through interlibrary loan.

Stephen A. Brown, WHEN MIDDLE -CLASS AMBITION MET SOUTHERN HONOR : A CULTURAL HISTORY OF THE LEO FRANK CASE (PhD diss., University of Illinois-Chicago, 1999). Accessed on April 15, 2017 at https://www.leofrank.info/enright/stephen-brown-when-middle-class- ambition-met-southern-honor-a-cultural-history-of-the-leo-frank-case-august-1999.pdf .

N. Gordon Carper, THE CONVICT -LEASE SYSTEM IN FLORIDA , 1866-1923 (PhD diss., Florida State University, 1964). Accessed on April 21, 2017 at http://search.proquest.com.unr.idm.oclc.org/pqdtglobal/docview/302274963/96DC1400DB964E 30PQ/2?accountid=452 .

William Joseph Cibes, Jr., EXTRA -JUDICIAL ACTIVITIES OF JUSTICES OF THE UNITED STATES SUPREME COURT , 1790-1960 (PhD diss., Princeton University, 1975). Accessed on April 17, 2017 at http://search.proquest.com.unr.idm.oclc.org/pqdtglobal/docview/302762886/D79820B2F4134D8 2PQ/1?accountid=452.

Carole T. Emberton,THE POLITICS OF PROTECTION : VIOLENCE AND THE POLITICAL CULTURE OF RECONSTRUCTION (PhD diss., Northwestern University, 2006). Accessed on April 15, 2017 at http://search.proquest.com.unr.idm.oclc.org/pqdtglobal/docview/305294084/CCF2AFDF641A41 39PQ/1?accountid=452.

Miller Handley Karnes, LAW , LABOR , AND LAND IN THE POSTBELLUM COTTON SOUTH : THE PEONAGE CASES IN OGLETHORPE COUNTY , GEORGIA , 1865-1940 (PhD diss., University of Illinois-Champaign, 2000). Accessed on April 18, 2017 at http://search.proquest.com.unr.idm.oclc.org/pqdtglobal/docview/304626132/A90E9765CDFE47 77PQ/1?accountid=452 .

BRUCE ALAN LOHOF , HOOVER AND THE MISSISSIPPI VALLEY FLOOD OF 1927: A CASE STUDY OF THE POLITICAL THOUGHT OF HERBERT HOOVER (PhD diss., Syracuse University, 1968). Accessed on April 15, 2017 at

300 http://search.proquest.com.unr.idm.oclc.org/pqdtglobal/docview/302408826/FE40B51621E8417 APQ/1?accountid=452 .

Christopher Harry Meakin, CONGRESSIONAL CONTROL OF FEDERAL COURT JURISDICTION AND THE EFFECT UPON PROTECTION OF CIVIL RIGHTS (PhD diss., Rice University, 1988). Accessed on April 15, 2017 at http://search.proquest.com.unr.idm.oclc.org/pqdtglobal/docview/193762733/EEC5F68D254A43 52PQ/1?accountid=452.

Sarah Nicolazzo, VAGRANT FIGURES : LAW , LABOR AND REFUSAL IN THE EIGHTEENTH CENTURY ATLANTIC WORLD (PhD diss., University of Pennsylvania, 2014). Accessed on April 10, 2017 at http://search.proquest.com.unr.idm.oclc.org/pqdtglobal/docview/1553208051/ECAFEFA347674 15BPQ/1?accountid=452.

Robert B. Outland, III, ANOTHER NEW SOUTH : PATTERNS OF CONTINUITY IN THE SOUTHERN NAVAL STORES INDUSTRY (PhD diss., Louisiana State University, 1999). Accessed on April 12, 2017 at http://search.proquest.com.unr.idm.oclc.org/pqdtglobal/docview/304522379/5D939DD37828428 1PQ/1?accountid=452.

Linda Przybyszewski, THE REPUBLIC ACCORDING TO JOHN MARSHALL HARLAN : RACE , REPUBLICANISM , AND CITIZENSHIP (PhD diss., Stanford University, 1989). Accessed on April 24, 2017 at http://search.proquest.com.unr.idm.oclc.org/pqdtglobal/docview/303794327/2BB98711E0A14A 38PQ/1?accountid=452 .

Aaron Kyle Reynolds, A LONG QUAVERING CHANT : PEONAGE LABOR CAMPS IN THE RURAL - INDUSTRIAL SOUTH 1905-1965 (PhD diss., University of Texas, 2013). Accessed on April 14, 2017 at https://repositories.lib.utexas.edu/bitstream/handle/2152/41771/REYNOLDS- DISSERTATION-2013.pdf?sequence=1.

Johnie D. Smith, AND THE STATE BECAME THEIR MASTER : AN ANALYSIS OF THE SOUTHERN RECONSTRUCTION OF LABOR SYSTEMS AND LAW , 1865-1867 (PhD diss., Wayne State University, 1994). Accessed on April 15, 2017 at http://search.proquest.com.unr.idm.oclc.org/pqdtglobal/docview/304133072/3C53D533628C487 0PQ/1?accountid=452.

Robert S. Starobin, INDUSTRIAL LABOR IN THE OLD SOUTH , 1790-1861: A STUDY IN POLITICAL ECONOMY (PhD diss., University of California, Berkeley, 1968). Accessed on April 2, 2017 at http://search.proquest.com.unr.idm.oclc.org/pqdtglobal/docview/302317229/8C513898106451B PQ/8?accountid=452.

Michael David Tegeder, PRISONERS OF THE PINES : DEBT PEONAGE IN THE SOUTHERN TURPENTINE INDUSTRY , 1900-1913 (PhD diss., University of Florida, 1996). Accessed on April 12, 2017 at

301 http://search.proquest.com.unr.idm.oclc.org/docview/304310842/3489A60D2AE14C22PQ/1?acc ountid=452 .

Encyclopedias

“Elaine Massacre,” THE ENCYCLOPEDIA OF ARKANSAS HISTORY & CULTURE , “Elaine Massacre,” accessed on April 15, 2017 at http://www.encyclopediaofarkansas.net/encyclopedia/entry- detail.aspx?entryID=1102.

Derek Allan Clements, Thomas Chipman McRae (1851-1929), ENCYCLOPEDIA OF ARKANSAS HISTORY & CULTURE . February 5, 2016. Accessed on April 12, 2017 at http://www.encyclopediaofarkansas.net/encyclopedia/entry-detail.aspx?search=1&entryID=114.

“Night Riders,” THE ENCYCLOPEDIA OF ARKANSAS HISTORY & CULTURE , “Night Riders.” Accessed at http://www.encyclopedia ofarkansas.net/encyclopedia/entry-detail.as.

JOHN E. KLEIBER ET AL ., THE KENTUCKY ENCYCLOPEDIA (The University Press of Kentucky) (1992).

ORGANIZING BLACK AMERICA : AN ENCYCLOPEDIA OF AFRICAN AMERICAN ASSOCIATIONS (N. Mjagkij ed., Garland) (2000).

Grif Stockley, Elaine Massacre aka Elaine Race Riot of 1919 aka Elaine Race Massacre , ENCYCLOPEDIA OF ARKANSAS HISTORY & CULTURE (2016). Accessed on April 12, 2017. http://www.encyclopediaofarkansas.net/encyclopedia/entry-detail.aspx?entryID=1102

Melvin I. Urofsky, ed., BIOGRAPHICAL ENCYCLOPEDIA OF THE SUPREME COURT : THE LIVES AND LEGAL PHILOSOPHIES OF THE JUSTICES (CQ Press) (2006).

Journals

Michael Abramowizc, On the Alienability of Legal Claims , 114 THE YALE LAW JOURNAL 697 (2005).

Robert H. Abzug, The Copperheads: Historical Approaches to Civil War Dissent in the Midwest , 66 INDIANA MAGAZINE OF HISTORY 40 (1970).

Thomas Aiello, The First Fissure: The Du Bois-Washington Relationship from 1898-1899 , 51 PHYLON 76 (1960).

Robert Aitken, Justice Benjamin Curtis and Dred Scott , 30 LITIGATION 51 (2003).

Robert Pace Alexander, The Upgrading of the Negro’s Status by Supreme Court Decisions , 30 THE JOURNAL OF NEGRO HISTORY 117 (1945).

302

Thomas B. Alexander, Kukluxism In Tennessee, 1865-1869 , 8 TENNESSEE HISTORICAL QUARTERLY 195 (1949).

J. Douglas Allen-Taylor, Reparations , 16 RACE , POVERTY & THE ENVIRONMENT 32 (2009).

Akhil Reed Amar & Catherine A. MacKinnon, The Supreme Court, 1999 Term , 114 HARVARD LAW REVIEW 23 (2000).

Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment , 101 YALE LAW JOURNAL 1193 (1992).

Anthony G. Amsterdam, Criminal Prosecutions Affecting Federally Guaranteed Civil Rights: Federal Removal and Habeas Corpus Jurisdiction to Abort State Court Trial , 113 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 793 (1965).

Anonymous, The New Slavery in the South - An Autobiography. A Georgia Negro Peon , DOCUMENTING THE AMERICAN SOUTH , Feb. 25, 1904, at 404. Accessed on April 12, 2017 at http://docsouth.unc.edu/fpn/negpeon/negpeon.html.

William M. Armstrong, The Freedmen’s Movement and the Founding of the Nation , 53 THE JOURNAL OF AMERICAN HISTORY 708 (1967).

O.P. Austin, The Public Debt of the United States, II , 175 THE NORTH AMERICAN REVIEW 701 (1902).

Alfred Avins, The Fifteenth Amendment and Literacy Tests: The Original Intent , 18 STANFORD LAW REVIEW 808 (1966).

Matthew A. Axtell, What Is Still “Radical” in the Antislavery Legal Practice of Salmon P. Chase? , 11 HASTINGS RACE AND POVERTY LAW JOURNAL 269 (2014).

Mark Bailey, Villeinage in England: A Regional Case Study, c.1250-1349 , 62 THE ECONOMIC HISTORY REVIEW 430 (2009). . Paul E. Baker, Negro-White Adjustment in America , 3 THE JOURNAL OF NEGRO EDUCATION 194 (1934).

Jack M. Balkin & Sanford Levinson, The Dangerous Thirteenth Amendment , 112 COLUMBIA LAW REVIEW 1459 (2012).

Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution , 87 VIRGINIA LAW REVIEW 1045 (2001).

Taunya Lowell Banks, Dangerous Woman: Elizabeth Key’s Freedom Suit - Ravialized Identity of Seventeenth Century Colonial Virginia , 41 AKRON LAW REVIEW 799 (2008).

303

Donna A. Barnes & Catherine Connolly, Repression, the Judicial System, and Political Opportunities for Civil Rights Advocacy during Reconstruction , 40 THE SOCIOLOGICAL QUARTERLY 327 (1999).

Randy E. Barnett, From Antislavery Lawyer to Chief Justice: The Remarkable But Forgotten Career of Salmon P. Chase , 63 CASE WESTERN LAW REVIEW 653 (2013).

Irving H. Bartlett, Wendell Phillips and the Eloquence of Abuse , 11 AMERICAN QUARTERLY 509 (1959).

Sara Sun Beale & Richard E. Myers III, The Constitution v. The Convention: The Evolution of the Court-Mandated Right to Counsel in the United States and Europe , 27 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW 1 (2016).

W.G. Bean, Anti-Jeffersonianism in the Ante-Bellum South , 12 THE NORTH CAROLINA HISTORICAL REVIEW 103 (1935).

John E. Beerbower, Ex parte McCardle and the Attorney General’s Duty to Defend Acts of Congress , 47 UNIV . OF SAN FRANCISCO LAW REVIEW 647 (2013).

Herman Belz, Abraham Lincoln and American Constitutionalism , 50 THE REVIEW OF POLITICS 169 (1988).

Mark E. Benbow, Birth of a Quotation: Woodrow Wilson and “Like Writing History with Lightning,” 9 THE JOURNAL OF THE GILDED AGE AND PROGRESSIVE ERA 509 (2010).

Michael Les Benedict, Southern Democrats in the Crisis of 1876-1877: A Reconsideration of Reunion and Reaction , 46 THE JOURNAL OF SOUTHERN HISTORY 489 (1980).

Michael Les Benedict, Preserving Federalism: Reconstruction and the Waite Court , 1978 THE SUPREME COURT REVIEW 39 (1978).

Michael Les Benedict, A New Look at the Impeachment of Andrew Johnson , 88 POLITICAL SCIENCE QUARTERLY 349 (1973).

Walter Berns, The Constitution and the Migration of Slaves , 78 THE YALE LAW JOURNAL 198 (1968).

David E. Bernstein, The Supreme Court and “Civil Rights”: 1886-1908 , 100 YALE LAW JOURNAL 725 (1990).

Rowland Berthoff, Southern Attitudes Toward Immigration, 1865-1914 , 17 THE JOURNAL OF SOUTHERN HISTORY 328 (1951).

Elizabeth Bethel, The Freedmen’s Bureau in Alabama , 14 THE JOURNAL OF SOUTHERN HISTORY 49 (1948).

304

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Lea S. VanderVelde & Sandhya Subramanian, Mrs. Dred Scott , 106 THE YALE LAW JOURNAL 1033 (1997).

Edmond L. Volpe, “Dry September”: Metaphor for Despair , 16 COLLEGE LITERATURE 60 (1989).

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Harvey Young, The Black Body as Souvenir in American Lynching , 57 THEATRE JOURNAL 639 (2005).

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Newspaper and Magazine Articles

Robert Whitaker, ARTICLES FROM THE NAACP ARCHIVES (undated MSS). Accessed April 12, 2017 at http://robertwhitaker.org/robertwhitaker.org/Laps Documents_files/Waskow File.PDF.

William B. Street, The Man Who Invented the Redneck , COMMERCIAL APPEAL , Mar. 21, 1965, Accessed April 12, 2017 at http://www.hhtc.org/vw/b9/redneck-txt.html.

The Precedent - 1868 McCardle Case , NEW YORK TIMES , Aug. 16, 1964. Accessed on April 18, 2017 at http://search.proquest.com/hnpnewyorktimes/docview/115522309/76793182630343CAPQ/1?acc ountid=34227.

Stuart X. Stephenson, Veteran Farm Leader Retires ... Then Goes to Work , MONTGOMERY ADVERTISER , Jun. 20, 1954.

Don Bloch, Bonaparte Founded G-Men: Attorney General Under Theodore Roosevelt, Napolean’s Grandnephew First Organized the Force of Special Agents of the Department of Justice , WASHINGTON STAR , August 18, 1935. Accessed on April 12, 2017 at

320 https://web.archive.org/web/20100411043042/http://www.fbi.gov/libref/historic/history/historic_ doc/docstar.htm .

“Work or Die” Edict Perils Race: Flood Refugee Shot to Death by Cop , CHICAGO DEFENDER, Jul. 16, 1927.

Labor Notice, GREENVILLE DAILY DEMOCRAT -TIMES , May 14, 1927.

Use Troops in Flood Area to Imprison Farm Hands , CHICAGO DEFENDER , May 7, 1927.

Rescue Work is Speeded as Flood Engulfs New Area; Nation’s Fund Now $7,443,267: More Towns Submerged. Red Cross Reports That 323,837 Refugees Are Receiving Aid. Peril Grows in Louisiana. Thousands Toil to Reinforce Red River Levees as the Flood Crest Rolls Near. Families Huddle on Rafts. Many Refuse to Leave Improvised Floating Refuges in the the Vicinity of Their Farms, NEW YORK TIMES , May 6, 1927. Accessed on April 14, 2017 at search.proquest.com/hnpnewyorktimes/docview/103911014/7D99F9BB1AC747CDPQ/1?accou ntid=34227.

New Floods Sweep Army of Homeless to About 250,000 , NEW YORK TIMES , May 5, 1927. Accessed on April 14, 2017 at http://search.proquest.com/hnpnewyorktimes/docview/104179118/114BD5C3BCB54C83PQ/12? accountid=34227 Dispatch from Cleveland Mississippi , VICKSBURG EVENING POST of May 5, 1927.

Flood Hits More Towns; 200,000 Are Now Destitute; $1,234,000 Given for Relief. Flood Crest Past Memphis. Mighty Torrent Roars on With 30,000,000 Acres in Its Path. Arkansas City Submerged. Dozens of Little Towns in Arkansas and Mississippi Are Menaced. New Orleans Is Prepared. Hoover Praises Red Cross Work of Organization – Relief Situation Now Well in Hand . NEW YORK TIMES , April 26, 1927. Accessed on April 14, 2017 at http://search.proquest.com/hnpnewyorktimes/docview/104170952/EE1E16F1B56D48C8PQ/13? accountid=34227.

Homeless Now 100,000 All Kinds of Craft Save People Clinging to Roofs and Trees. Greenville in Dire Plight. Twenty-two Thousand Inhabitants and Refugees Being Removed from the City. Danger Passing in North But Armies of Men Work on the Lower Mississippi Valley Levees to Meet Coming Crisis . NEW YORK TIMES , APRIL 23, 1927. Accessed on April 14, 2017 at search.proquest.com/hnpnewyorktimes/docview/104212286/667FCF6427C442F5PQ/4?accounti d=34227.

Suffering and Loss of Life Result of Stops Landing Break , GREENVILLE DAILY DEMOCRAT - TIMES, April 23, 1927.

Walter White, Massacring Whites in Arkansas , NATION , CIX (December 13, 1919).

The Real Causes of Two Race Riots , CRISIS , IXX 56 (December 1919).

321

Arkansas Gazette , October 6, 1919, Agitators Blamed , NAACP MSS.

Harlan Is Pardoned. President Taft Issues Orders for Release of Lumberman Convicted of Peonage , THE LUMBER TRADE JOURNAL 43 (1911) dated July 1, 1911. Anonymous, Harlan Is Pardoned. President Taft Issues Orders for Release of Lumberman Convicted of Peonage , 60 LUMBER TRADE JOURNAL 43 (1911).

Two Senators Ask Taft to Remit Fine of Lumber Baron. Bacon and Kenyon Plead for Man Convicted of Peonage , WASHINGTON TIMES , June 10, 1911. Accessed on April 18, 2017 at The Washington times. (Washington [D.C.]), 10 June 1911. Chronicling America: Historic American Newspapers . Lib. of Congress. < http://chroniclingamerica.loc.gov/lccn/sn84026749/1911-06- 10/ed-1/seq-12/ >.

Flournoy Was Fierce. In his Denunciation of Judge Swayne, Senate Passed Resolution Asking Taft to Pardon Harlan. THE OCALA EVENING STAR , April 28, 1911. Accessed on April 14, 2017 at The Ocala evening star. (Ocala, Fla.), 28 April 1911. Chronicling America: Historic American Newspapers . Lib. of Congress. < http://chroniclingamerica.loc.gov/lccn/sn84027621/1911-04- 28/ed-1/seq-1/ >.

World News Condensed , ST. LUCIE COUNTY TRIBUNE , January 20, 1911. Accessed on April 14, 2017 at The St. Lucie County tribune. (Fort Pierce, St. Lucie County, Fla.), 20 Jan. 1911. Chronicling America: Historic American Newspapers . Lib. of Congress. .

Imprisonment is Necessary , THE NEWS -HERALD , January 12, 1911. Accessed on April 14, 2017 at The News-Herald. (Hillsboro, Highland Co., Ohio), 12 Jan. 1911. Chronicling America: Historic American Newspapers . Lib. of Congress. .

Carl Schurz, First Days of the Reconstruction , MCCLURE ’S MAGAZINE 1908. Accessed on April 24, 12017 at http://www.unz.org/Pub/McClures-1908may-00039 .

Quackenbos Called Down. Female Spy Must Report to Washington to be Investigated . LIVE OAK DAILY DEMOCRAT . (Live Oak, Fla.), 18 Nov. 1907. Chronicling America: Historic American Newspapers . Lib. of Congress.

Mrs. Quackenbos Promotion: Has Been Made Special Assistant to the Attorney General , OCALA EVENING STAR , NOVEMBER 12, 1907. Accessed on April 12, 2017 at http://chroniclingamerica.loc.gov/lccn/sn84027621/1907-11-12/ed-1/seq 8/#date1=1789&index=0&rows=20&words=PROMOTION+QUACKENBOS&searchType=bas ic&sequence=0&state=&date2=1924&proxtext=%22quackenbos+promotion%22&y=0&x=0&d ateFilterType=yearRange&page=1.

Woman Assistant for Bonaparte: Mrs. Quackenbos Appointed to Investigate Peonage Cases , NEW YORK TRIBUNE , Nov. 12, 1907. Accessed on April 12, 2017 at

322 http://chroniclingamerica.loc.gov/lccn/sn83030214/1907-11-12/ed- 1/seq1/#date1=1789&index=0&rows=20&words=ASSISTANT+BONAPARTE+WOMAN&sea rchType=basic&sequence=0&state=&date2=1924&proxtext=%22woman+assistant+for+bonapa rte%22&y=10&x=10&dateFilterType=yearRange&page=1.

Woman Assistant for Bonaparte: Mrs. Quackenbos Appointed to Investigate Peonage Cases , NEW YORK TRIBUNE , Nov. 12, 1907. Accessed on April 12, 2017 at http://chroniclingamerica.loc.gov/lccn/sn83030214/1907-11-12/ed- 1/seq1/#date1=1789&index=0&rows=20&words=ASSISTANT+BONAPARTE+WOMAN&sea rchType=basic&sequence=0&state=&date2=1924&proxtext=%22woman+assistant+for+bonapa rte%22&y=10&x=10&dateFilterType=yearRange&page=1.

Petticoat Lawyer Employed by Uncle Sam to Conduct Prosecution In a Peonage Case , THE BAMBERG HERALD , Nov. 8, 1907. Accessed on April 12, 2017 at http://chroniclingamerica.loc.gov/lccn/sn86063790/1906-11-08/ed- 1/seq6/#date1=1789&index=0&rows=20&words=LAWYER+PETTICOAT&searchType=basic &sequence=0&state=&date2=1924&proxtext=%22petticoat+lawyer%22&y=8&x=10&dateFilte rType=yearRange&page=1

Zach Meghee, Peonage Cases: Department of Justice is Now at Work on Them - Woman Lawyer Interested , THE HERALD AND NEWS , Nov. 5, 1907. Accessed on April 12, 2017 at http://chroniclingamerica.loc.gov/lccn/sn86063758/1907-11-05/ed-1/seq- 6/#date1=1789&index=0&rows=20&words=MeGhee+Zach&searchType=basic&sequence=0&s tate=&date2=1924&proxtext=%22zach+meghee%22&y=6&x=12&dateFilterType=yearRange& page=1.

PRICE OF PEONAGE . ATTORNEY GENERAL BONAPARTE COULDN ’T TELL CONGRESSMAN CLARK HOW MUCH THE GOVERNMENT IS PAYING SPECIAL AGENTS . The Ocala evening star. (Ocala, Fla.), 05 March 1907. Chronicling America: Historic American Newspapers . Lib. of Congress. Accessed on April 13, 2017 at < http://chroniclingamerica.loc.gov/lccn/sn84027621/1907-03- 05/ed-1/seq-4/ >.

The South Florida Peonage Case , PENSACOLA JOURNAL , Oct. 24, 1906, at 4. Accessed on April 12, 2017 at http://chroniclingamerica.loc.gov/lccn/sn87062268/1906-10-24/ed-1/seq- 4/#date1=1905&index=0&rows=20&words=Stirling+Stirlings&searchType=basic&sequence=0 &state=Florida&date2=1906&proxtext=stirling&y=8&x=5&dateFilterType=yearRange&page=1

The Boston Evening Transcript of October 16, 1906. Accessed on April 12, 2017 at https://news.google.com/newspapers?nid=sArNgO4T4MoC&dat=19061016&printsec=frontpage &hl=en.

Inhumanity and Cruelty in Alabama Lumber Camp. Serious Charges Made Against Jackson Lumber Co., at Lockhart. Worse Than Dogs. It Is Alleged Ignorant Employees Are Treated. Men Secured Under False Pretenses aAlf-Fed, Beaten and Held in Camp Against THeir Will - Case Now in Hands of Federal Authorities. THE PENSACOLA JOURNAL , July 24, 1906. Accessed on April 13, 2017 at the Pensacola journal. (Pensacola, Fla.), 24 July 1906.

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The Nation , May 10, 1906, The Stamping Out of Peonage . Reprinted in The Nation , Volume 82, p. 379.

Speer Overruled By Decision of High Court in Noted Chain-Gang Case. No Point Is Sustained. Had Court Sustained Jurist Every Chain Gang Prisoner in State of Georgia Could Have Secured Liberty . THE BAMBERG HERALD . Accessed on April 13, 2017 at The Bamberg herald. (Bamberg, S.C.), 19 Oct. 1905. Chronicling America: Historic American Newspapers . Lib. of Congress. < http://chroniclingamerica.loc.gov/lccn/sn86063790/1905-10-19/ed-1/seq-3/ >.

On the Book Table, THE ADVANCE , Jun. 22, 1905, https://books.google.com/books?id=kWhMAAAAYAAJ&pg=PA768&lpg=PA768&dq=%22Th e+Advance%22+and+%22june+22,+1905%22+and+sinclair&source=bl&ots=lTUdsRlHJv&sig =g2PSPlyx4bIDiem15wwJEerZ8Cc&hl=en&sa=X&ved=0ahUKEwi5s- fEg5vTAhUaS2MKHfFMCGEQ6AEIGjAA#v=onepage&q=%22Th. Accessed on April 10, 2017.

TAKES ORDER . SENATE INFORMED OF THE IMPEACHMENT OF SWAYNE . TRIAL DELAYED . The semi-weekly messenger. volume (Wilmington, N.C.), 16 Dec. 1904. Chronicling America: Historic American Newspapers . Lib. of Congress. Accessed on April 13, 2017 at .

Peonage in Alabama . THE CHICAGO TRIBUNE , July 15, 1903. Accessed on April 13, 2017 at http://archives.chicagotribune.com/1903/07/15/page/6/article/peonage-in-alabama.

Peonage in Alabama to be Suppressed. Department of Justice Takes Energetic Action . THE WASHINGTON TIMES , June 18, 1903. Accessed on April 13, 2017 at The Washington times. (Washington [D.C.]), 18 June 1903. Chronicling America: Historic American Newspapers . Lib. of Congress. < http://chroniclingamerica.loc.gov/lccn/sn84026749/1903-06-18/ed-1/seq-6/ >.

Negro Saved from Peonage. Mississippi Planters Threaten to Kill Him and Informers . NEW YORK TIMES , March 11, 1904. Accessed on April 13, 2017 at http://search.proquest.com/hnpnewyorktimes/docview/96487598/5FD24D7A3AE34144PQ/3?ac countid=34227.

Given Four Years. S.M. Clyatt, of Tifton, Ga., Sentenced by Judge Swayne. Was Convicted of Peonage. Will Appeal to the Supreme Court of the United States . WEEKLY TALLAHASSEEAN , March 28, 1902. Accessed on April 13, 2017 at The Weekly Tallahasseean. (Tallahassee, Fla.), 28 March 1902. Chronicling America: Historic American Newspapers . Lib. of Congress. .

W.E.B. Du Bois, The Freedmen’s Bureau , THE ATLANTIC 1901. Accessed on April 15, 2017 at https://www.theatlantic.com/magazine/archive/2012/02/the-freedmens-bureau/308805/.

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W.H. McCardle, Stay Away from the Polls , REPUBLIC MAGAZINE , Jan. 1876.

GRANT PARISH: The Massacre a Most Terrible One – Escape of the Whites – Difficulty in Sending Off Troops. New York Times, April 18, 1873. Accessed on April 14, 2017 at http://search.proquest.com/hnpnewyorktimes/docview/93355347/8328023B0E944E1CPQ/1?acc ountid=34227.

Thanksgiving Services , NEW YORK TRIBUNE , Apr. 4, 1870. Accessed on April 18, 2017 at New- York tribune. (New York [N.Y.]), 04 April 1870. Chronicling America: Historic American Newspapers . Lib. of Congress. < http://chroniclingamerica.loc.gov/lccn/sn83030214/1870-04- 04/ed-1/seq-5/ >.

Reconstruction: Ratification of the Fourteenth Amendment , NEW YORK TRIBUNE , July 20, 1868, at 1. Accessed on April 12, 2017 at http://chroniclingamerica.loc.gov/lccn/sn83030214/1868-07- 20/ed-1/seq-1/.

.Arrest of An Editor , TARBOBO SOUTHERNER , Nov. 14, 1867. Accessed at http://chroniclingamerica.loc.gov/lccn/sn84026522/1867-11-14/ed-1/seq- 2/#date1=1867&index=10&rows=20&words=McCardle&searchType=basic&sequence=0&state =North+Carolina&date2=1868&proxtext=mccardle&y=0&x=0&dateFilterType=yearRange&pa ge=1

Another History , DAILY CLARION , Mar. 12, 1867. Accessed on April 17, 2017 at http://chroniclingamerica.loc.gov/lccn/sn83045232/1867-03-12/ed-1/seq- 2/#date1=1866&index=16&rows=20&words=McCardle&searchType=basic&sequence=0&state =Mississippi&date2=1868&proxtext=mccardle&y=9&x=10&dateFilterType=yearRange&page= 1.

William H. Seward, Letter from William H. Seward dated November 25, 1865 , NEW YORK TIMES , Jan. 3, 1866. Accessed on April 18, 2017 at http://search.proquest.com/hnpnewyorktimes/docview/92283444/26850D3AD4F04CE8PQ/111? accountid=34227.

Wendell Phillips on Reconstruction , NEW YORK TIMES , Dec. 29, 1864. Accessed on April 13, 2017 at http://search.proquest.com/hnpnewyorktimes/docview/91828891/460EF95C76AC458BPQ/5?acc ountid=34227.