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THE VIRGINIA SUPREME COURT, BLACKS, Ai''-JD THE LAW, 1870-1902 Samuel Norman Pincus Charlottesville, Virginia B.A., University of Virginia, 1967 M.A., University of Virginia, 1970 A Dissertation Presented to the Graduate Faculty of the University of Virginia in Candidacy for the Degree of Doctor of Philosophy Corcoran Department of History University of Virginia May, 19 7 8 THE VIRGINIA SUPREME COURT, BLACKS, AND THE LAW, 1870-1902 Samuel Norman Pincus, Ph.D. University of Virginia, 1978 When the native white Virginians reclaimed control of the state in 1870, they faced the demand of the new black citizens for equal treatment under the law. Such treatment ran counter to southern traditions, and there was uncertainty whether white officials would accord blacks true justice. Many scholars have studied blacks and the law during the years after Reconstruction, but their investigations have been limited to such areas of public policy as segregation and voting rights. Yet, the ability of blacks to receive fair treatment in the courts when attempting to collect a just debt, or when standing trial for petit larceny, probably was of greater importance to the majority of the black com­ munity. The treatment by the courts of blacks in the daily pursuit of private justice has remained unexamined. A study of such cases provides a more precise picture of the black legal experinece than does the analysis of isolated civil rights cases. The opinions of the Virginia Supreme Court of Appeals prove an excellent source for such a study. The opinions show that blacks did receive substantial justice before the high court. Blacks appeared as both appellants and appellees in a variety of civil causes. Even when the opposing liti­ gants were of different races, the court approached the cases objectively and often ruled for the black party. The court also approached criminal cases on their merits. Black defen­ dants, including some convicted of violent interracial crimes, earned reversal on the grounds of insufficient evidence and procedural irregularity. Even in criminal prosecutions under the antimiscegenation statutes, which the court strongly en­ dorsed, the judges required the prosecution to meet a strict burden of proof. Beyond reporting the specific result of individual cases, the appellate opinions contain comments by the judges which reveal their attitude toward the rights of black citizens and the law's responsibility to protect those rights. The reports also provide other helpful information. The facts of the cases contain references to such aspects of black life as family relations, business transactions, and relations between the races. Finally the case reports serve as a source of informa­ tion.about the. treatment of blacks in the state's legal system generally. The histories of the cases recapitulated in the reports sug­ gest that the lower courts did not always accord blacks the same level of justice as did the Supreme Court. 11 ACKNOWLEDGEi'vIENTS Many people have contributed aid and comfort toward the completion of this dissertation. Professor David H. Flaherty guided it from conception to completion. I am especially grateful for his personal advice and encouragement, which far exceeded professional duty. Daniel J. Flanigan read and criticized the earlier chapters. Professor Charles W. Mccurdy saw the work through several drafts and helped focus my thoughts on certain points. Professors Paul M. Gaston and G. Edward White were kind enough to read the final draft and provide valuable criticism. Any weaknesses in the work are the result of my failure to heed the suggestions of these men. The Woodrow Wilson National Fellowship Foundation and Russell Sage Foundation provided welcome financial aid. The clerks of sev­ eral state courts, and their deputies, gave of their time and experience in helping to research the nineteenth century records. Mr. Howard Turner, Clerk of the Supreme Court of Appeals, and his staff deserve special thanks for the inconvenience they suffered and assistance they provided. My wife Betty deserves the customary acknowledgement for her services as sometime typist, proofreader, and critic, but I cannot put into words my gratitude for her true contribution. I hope she knows. iii TABLE OF CONTENTS Chapter Page Acknowledgements . .ii . Introduction . .. .. .. .. .. .. .. .. 1 I. The Supreme Court of Appeals, 1870-1902 ... ... 20 I I. Blacks in the Courtroom ...................... 49 I I I. Racial Identity and Citizenship .............. 102 IV. Family Relations . .. .. .. .. .. .. .. 12 0 V. Decedents' Estates . .. .. ... ... .. .. .. .. 158 VI. Commercial Relations . .. .. .. .. .. .. .. 187 VII. Introduction to Criminal Cases and the Crime of Rape . .. .. .. .. .. .. .. .. 229 VIII. The Crime of Murder 270 IX. Miscellaneous Crimes ......................... 312 X. Criminal Procedure ........................... 345 XI. The Official Response to Lynching . .. .. 388 Conclusion . .. .. .. .. .. .. .. .. 447 Table of Cases Cited . .. .. .. 455 Bibliography . .. .. .. .. .. .. .. .. .. 459 1 INTRODUCTION The years following Reconstruction in the South consti­ tuted one of the most significant periods in the history of American law. The capability and the integrity of the legal system faced a severe test. Emancipation and the new consti­ tutional amendments had transformed an entire class, hitherto treated under special rules, into full citizens. Most had little knowledge of the law that was to protect their rights and monitor t.i1eir responsibilities. Adding to the uncertain­ ty of the situation was the attitude of the white officials charged with carrying out the law. Those officials were the products of a society predicated on the alleged inherent in­ feriority of blacks. The law, when it had applied to blacks at all, had legitimated and formalized that inferior position. A new order proclaiming the equal legal status of the black citizen, especially an order imposed by force by outsiders, could hardly change overnight social beliefs held for gener­ ations. What the law said was one thing. What people might do was quite a�other. It was a time of great uncertainty 1n southern race re­ lations. The antebellum slave codes had done more than de­ fine the legal status of slaves and free blacks. They had also provided the framework upon which an entire race-conscious society was built. The new codes declared only that blacks 2 were equal citizens before the law. The experience of Recon­ struction had shown that southern whites were not willing to let the law determine the nature of social relations between the races. With native whites in control of the legal system, doubt existed whether they would let the formal law determine the nature even of legal relations between the races. This contrast between the letter of the law and the ac­ tual treatment of blacks has been the reference point for most recent histories of the black during the postreconstruc­ tion period. Yet, despite this acknowledged importance of the law, historians have viewed the legal history of the per­ iod from a limited perspective. Their failure to probe more deeply into the subject has left a void in our knowledge of the working of the legal system during the period. It also has left untouched information valuable to the study of gen­ eral history as well. The controversy engendered by C. Vann Woodward's path­ breaking work, The Strange Career of Jim Crow,1 exemplifies the lack of interest in detailed legal history. In arguing that the southern attitude toward race relations during the postreconstruction period was not so definite and restrictive as it became in succeeding years, Woodward emphasized the relatively late development of Jim Crow legislation. Ensuing criticism concentrated on the distinction between codified and de facto discrimination. Woodward, his supporters, and 1c. Vann Woodward, The Strange Career of Jim Crow (2d rev. ed.; New York: Oxford University Press, 1966). 3 his critics thus have all touched upon the law only as it concerned segregation and other obvious civil rights ques­ tions--the franchise, public accommodations and transporta­ tion, education, and jury service. This emphasis on major issues of racial policy, although understandable, ignores an important aspect of the legal sys­ tem. The law, at its fundamental level, serves to arbitrate conflicts between private citizens and between citizens and the state. These conflicts are often of more immediate con­ cern to the individual citizen than are momentous issues of public policy. A poor black laborer in 1880 may or may not have cared about the law's attitude toward segregated hotels. He certainly had a greater interest in whether the courts would help him collect a just debt. Black parties to a case involving a contested will were concerned more with the judge's willingness to protect the rights of black heirs than his will­ ingness to protect the rights of black voters. A black man charged with rape took a consummate interest in the intricacies of criminal procedure. It is within such situations that the true strengths and weaknesses of a legal system lie. A study of such cases during the postreconstruction era may afford a more precise picture of the law's treatment of blacks than have previous analyses of isolated civil rights cases. The subject of legal protection, or lack of protection, of the civil rights of black citizens has not lacked atten­ tion. This approach has been characterized by the study of enforcement of the Fourteenth and Fifteenth Amendments, 4 especially at the federal level. It is exemplified by the comprehensive title but restricted approach of Richard Bar­ dolph's The Civil Rights Record: Black Americans and the Law, 1849-1970.� Loren Miller gave extended attention to the Supreme Court's treatment of civil rights in The Petitioners: The Story of the Supreme Court of the United States and the Negro.3 Mary Frances Berry widened the scope of study in Black Resistance/White Law: A History of Constitutional R . A . 4 acism in merica. Other scholars, forsaking the attempt to portray general history by surveying institutional discrimination, have pro­ vided valuable studies by looking at the law's treatment of blacks in more detail.

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