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Litigating Across the Color LineCivil Cases Between Black and White Southerners from the End of Slavery to Civil Rights$

Melissa Milewski

Print publication date: 2018

Print ISBN-13: 9780190249182

Published to Oxford Scholarship Online: November 2017

DOI: 10.1093/oso/9780190249182.001.0001

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The New South and the Law

The New South and the Law

(p.111) 5 The New South and the Law
Litigating Across the Color Line

Melissa Milewski

Oxford University Press

Abstract and Keywords

Chapter 5 shows the shifts that occurred in the types of civil cases African Americans were able to litigate in southern courts at the end of the nineteenth century, as segregation and disfranchisement became increasingly written into law around the South. Even as white southerners dismantled the political system put in place during Reconstruction, they did not change the structure of the legal system. They viewed black southerners’ involvement in the courts as far less dangerous than African Americans entering the polling booth. As African American men lost the power to vote, however, the kinds of civil cases black southerners were able to litigate against whites in southern courts narrowed. Almost three quarters of their appellate civil suits in the first two decades of the twentieth century now involved particularly egregious cases of fraud in property dealings or personal injury claims and highlighted black people in dependent, vulnerable positions.

Keywords:   Jim Crow, segregation, disfranchisement, civil case, fraud, personal injury, court, law, African American, South

In 1897, on a farm near Atlanta, black sharecropper W. H. Weems worked the land of A. W. Barge. The contract that he had signed earlier that year promised the sharecropper half of the crop, with the other half going to the white landowner. After a month of bringing loads of cotton to the cotton gin, Weems repeatedly asked the white landowner to pay him for his portion of the crop. “I said to Mr. Barge my people has to have something to wear, they are naked,” the sharecropper later testified. “I held up my foot showing him the only shoes I had and they were not as good as these (showing his shoes to the jury) and I said these are the only shoes I have got in the world. I said I have gathered the crop as fast as I could gather it and I said I have got to have something to live upon.” Despite these pleas, Barge refused to hand over the payment, telling the sharecropper, “I haven’t got time to settle.” Instead, he said he would pay Weems at the end of the harvesting season.1

Even as race relations in the South worsened at the end of the nineteenth century, W. H. Weems still viewed white lawyers as people he could turn to in a dispute and the civil courts as a legitimate arena in which to gain justice. After talking with Barge, he consulted “some lawyers in town as to whether I could sell one of the bales of cotton.” According to his later testimony, “3 or 4 lawyers” calculated his account with the landowner and then “said you are out of debt and you have a perfect right to sell it.” As a result, Weems recalled, “I goes back home and I gets a man to haul [the cotton] . . . to town and I sold it.” Around the same time, in early December 1897, Weems initiated a civil suit against Barge to force a settlement of their accounts. When the white landowner expressed concern about the legal action, the sharecropper reassured Barge that “if we come to a settlement I can stop that trial right now.”2

Instead, the white man took steps to prevent the case. Apparently believing that he could forestall the black sharecropper’s civil claim by initiating a criminal case for the sale of the cotton, Barge had a warrant sworn out for Weem’s arrest. The warrant claimed that Weems had sold the cotton without permission, appealing to a part of the Georgia penal code that said a sharecropper (p.112) could not “sell or otherwise dispose of any part of the crop grown by him, without the consent of the landlord.” Soon after, the black sharecropper was arrested. Although he lived in Fulton County, he was brought before a judge in nearby Campbell County. Taking advantage of the fact that Weems had no lawyer present, Barge asked the judge to set the bail at $200 and said that “he objected to any person going on the bond who was not worth two thousand dollars over and above the homestead.” In response, Weems begged the judge to set the bond at $50, telling him that he had “ten men” who could go on his bond for such a sum. But although $200 was an unusually high bond for such a case, the judge set the bond at the amount the white landowner had suggested.3

With such a steep bond Weems was unable to leave jail on bail as he waited for his trial. Instead, Weems remained imprisoned from December 7 until the beginning of March. While in jail, he later testified, “I got sick two or three times . . . laying on the iron, I was not use to it.” It got very cold at night, he explained, and “I was surrounded by iron, an iron cage, iron all over us, and we laid on iron.” Finally, he gained his release when the Campbell county sheriff posted his bail. The criminal case was then tried, and a jury found the black sharecropper not guilty.4

Despite this experience with the southern judicial system, Weems had not lost hope in gaining payment for the crops through the civil courts. Upon his release from jail, he hired the local law firm of Hunt & Golightly. On behalf of their black client, the two white attorneys brought a civil suit against Barge in the City Court of Atlanta for “malicious prosecution.” This time, the case would take place in a form chosen by the black sharecropper.5

By the end of the nineteenth century, promoters around the South heralded the rise of a “New South” that looked to the future rather than to the past. Managing editor of The Atlanta Constitution Henry Grady repeatedly informed listeners that this New South was more self-sufficient, more industrialized, and better able to keep up with the North.6 “The South has been rebuilt by Southern brains and energy,” Grady proclaimed in 1889. “The industrial growth of the South in the past ten years has been without precedent or parallel. It has been a great revolution, effected in peace.”7

There was some truth to the words of New South promoters like Grady. In the last two decades of the nineteenth century, new factories, saw mills, and mines sprang up all over the South. As a result, in the 1890s, production of raw materials like cotton, tobacco, and coal soared.8 Between 1880 and 1890 the construction of railroads in the South outpaced the rest of the nation.9 More people throughout the South were leaving farms and plantations to take up jobs within cities.10

(p.113) But the promoters’ rosy accounts left out other inconvenient facts. The South’s latecoming industrial development had put it at the bottom of an economy dominated by Northern and foreign capital and manufacturing. The vast majority of the new industry in the South involved producing raw materials such as iron, coal, and lumber that would be shipped to the North or elsewhere to be finished into completed products and sold. The jobs created in the South from industrialization were often poorly paid and involved manual labor.11 And the rise in railroad transportation resulted in alarming numbers of injuries to passengers and employees and a frustrating dependence on the northern capitalists who largely funded the railroads. Eventually, enthusiastic promotion of railroad construction gave way to a public outcry against railroad companies.12

The South as a whole was also still vastly less urbanized than the North. The 1900 census found that only ten percent of southerners lived in cities of 25,000 or more people. The men and women who did leave farms for the city often did so because of the limitations of southern agriculture.13 Those who remained behind on farms were frequently caught up in a cycle of poor soil, low cotton prices, and high debt. As tenant farmers increasingly planted cotton instead of other crops to try to get themselves out of debt, the condition of their land only worsened and the price of cotton decreased. When traveling through rural Georgia around the turn of the century, black scholar W. E. B. Du Bois encountered a despondent-looking black tenant farmer and inquired, “What rent do you pay here?” “All we make,” the man answered. Du Bois mused, “Why should he strive? Every year finds him deeper in debt.” The position of renters “has sunk to a dead level of practically unrewarded toil.”14

Moreover, even the optimistic promoter Henry Grady saw “the race problem” as a “shadow that rests on the South.”15 The country’s black population had doubled since the beginning of the Civil War, from about 4.5 million people classified as “free colored and slaves” in the 1860 census to almost 9 million people recorded as “negro” in 1900. At the turn of the century, the vast majority of African Americans—about 8 million people—still lived in the South. While white southerners still outnumbered black southerners by about two to one, in certain areas of the South, black people outnumbered whites.16

In some whites’ view, African Americans had too much independence. Although most black southerners endured high rents as tenant farmers, approximately a quarter of black farmers throughout the South owned their own agricultural land by 1900.17 Slightly over half of African Americans over the age of 10 were literate.18 In addition, the new generation of black southerners—many of whom had never lived in slavery—were not as deferential as white people would have liked. White southerners mourn “the slow, steady disappearance of a certain type of Negro,” W. E. B. Du Bois observed, “the faithful, courteous slave of other days, with his incorruptible honesty and dignified humility.”19

(p.114) In the eyes of many white members of the Democratic Party, black southerners also still had far too much political power. Despite sporadic violence and frequent instances of voter fraud in states with especially large black populations, African American men continued to vote throughout much of the South.20 All too often they used this vote to support opposition parties. They sometimes even swayed elections. At the end of the nineteenth century, white and black farmers joined forces against white elite interests in the short-lived Populist Party. Some leaders of the Populist Party, like Thomas Watson of Georgia, openly urged poor whites and blacks to unite in the name of shared economic self-interest. “You are kept apart that you may be separately fleeced of your earnings,” Watson insisted in 1892. “You are made to hate each other because upon that hatred is rested the keystone of the arch of financial despotism which enslaves you both.”21 Poor white and black farmers belonging to the Populist and Republican parties displaced Democratic officeholders in North Carolina in 1894 and 1896. In Alabama, Democrats managed to overcome a coalition of white and black Populists in the 1892 election only through spectacular voter fraud. On the precinct and county level, too, black voters had the potential to shift elections throughout the South.22

Watching these developments, many white southerners feared that as long as black men continued to exercise the right to vote, they could help an opposition party gain power. Committing violence and altering election results to diminish the opposing vote also did not align with the new image of a modern South in white Democrats’ minds. Some worried, too, about the demoralizing effect that throwing elections would have on white southerners themselves. One Mississippi man declared, “The old men of the present generation can’t afford to die and leave the election to their children and grandchildren, with shot guns in their hands, a lie in their mouths and perjury on their lips in order to defeat the negroes.”23

As the nineteenth century came to a close, white southern Democrats took action to permanently strip black men of their voting power. Throughout the South, they stirred up racial antagonism between poor white and black people. One of their tactics was declaring there to be a widespread epidemic of black men raping white women. While there was no evidence of an increase in these incidents, these claims reignited longstanding fears of black male criminality and the danger that black men posed to white women. Black men around the South were lynched for having reportedly raped white women, often based on extraordinarily flimsy evidence.24

At the same time, members of the southern Democratic Party turned to the law to wrest the vote away from black men for good. Some white elites also hoped to disfranchise many of the poorer whites who supported opposition (p.115) parties. Their plan was this: Instead of disfranchising voters at each election through voter fraud and violence, they would prevent the people who would be most likely to vote against them from registering to vote. Southern Democrats faced a dilemma in enacting this more permanent method of disfranchisement. The 15th Amendment to the US Constitution, passed during Reconstruction, prohibited race-based disfranchisement of US citizens. Northern Republicans in Congress could cite this amendment to block any methods that specifically disfranchised African Americans. On the other hand, poor and illiterate white southerners were unlikely to vote for measures that would lead to their own disfranchisement.25

To solve this conundrum, between 1890 and 1910, Democratic leaders in the South systematically targeted black and other non-Democratic voters for disfranchisement, without explicitly mentioning race. Meanwhile, they pointed out that they had left loopholes for whites to continue to vote. Their methods evolved over time as they watched what worked in other states and adapted them to their local political environments. As African Americans and poor white southerners had higher illiteracy rates than white southern Democrats, a favored method was literacy requirements. Calculating that those they hoped to disfranchise were less likely to own property, some states inserted property requirements for voting. And knowing that few black tenant farmers had extra cash laying around near election day, every former Confederate state instituted poll taxes that had to be paid for citizens to vote.26 In 1896, a Mississippi judge forthrightly explained how this worked. The disfranchising convention in his state had acted “within the field of permissible action under the limitations imposed by the federal constitution . . . to obstruct the exercise of the franchise by the negro race.” Because they were “restrained by the federal constitution from discriminating against the negro race, the convention discriminated against its characteristics and the offenses to which its weaker members were prone.”27

As these measures would disfranchise large numbers of poor white voters as well as most black voters, state conventions and legislatures often included “saving” clauses that would allow some poor and illiterate white men to register to vote. Most famous was the “grandfather clause,” which allowed citizens to register to vote if they had been able to vote in 1867, before the Second Military Reconstruction Act enfranchised black southerners, or if they were descended from someone who could vote then, even if they didn’t meet the literacy or property requirements themselves. Other states included “understanding clauses” that permitted men to vote if they were judged to “understand” a clause of the state constitution, or some other element of the political process, to the election official’s satisfaction. These clauses enabled Democratic officials to gain the white support needed to push through more restrictive voting laws. At the same time, “understanding clauses” allowed white officials to refuse to register black men who met (p.116) the other voting requirements on the grounds that they did not understand part of the political process.28

To give these changes the force of law, some states held constitutional conventions to carry out disfranchisement. Other states amended existing constitutions to prevent African American and undesirable white men from registering to vote. Still others passed new laws and taxes to carry out their purposes. As many whites would also be disfranchised, they did all this largely without popular approval.29 The result was a southern turnout rate at elections in the first decade of the twentieth century of around 30 percent. While voting fell among all groups of southern men, members of opposition parties were significantly less likely to vote than members of the Democratic Party. Southern black men, in particular, found it extremely difficult to vote by 1901 and nearly impossible to gain political office. Poorer, more transient, and urban whites also found it difficult to meet the new voting requirements and were sometimes too humiliated to register under the “saving clauses.” The Democratic Party had achieved its long-sought-after goal of effectively destroying its opposition in the South.30

As they disfranchised African Americans, white southerners also passed a wide range of new laws extending and formalizing the racial separation that had been occurring in an uneven manner throughout the South since the war.31 These segregation laws, many whites claimed, brought race relations in line with the new, more modern South. By clearly delineating how people seen as belonging to different races should be separated, white southerners argued that they were managing race relations in ways beneficial for all races and removing confusion from social situations.32 The move toward greater segregation began in earnest in the late 1880s and 1890s as ten southern state governments mandated segregation in railroad cars. Then, the same legislatures implicated in disfranchising black men passed new laws separating more and more of everyday life for black and white southerners. Soon, elevators, ticket lines, streetcars, drinking fountains, public parks, telephone booths, waiting rooms, and even cemeteries that were not already segregated were often divided by race.33

Even as white southerners dismantled the political system built during Reconstruction and legalized widespread segregation, they did not change the structure of the legal system. They viewed black southerners’ involvement in the courts as far less dangerous than African Americans entering the polling booth. If enough people voted a certain way, an election could quickly go against them. But the outcome of court cases was controlled by white judges and jury members, who many felt could make the “right” choices.34 In 1914, Sidney Fant Davis, a white Mississippi lawyer, explained how this worked: “From the letter of our statutes, a stranger might justifiably infer that they applied to all persons within this state, without regard to race, color, or previous condition of servitude, but (p.117) nothing is farther from the truth.” He continued, “The judges, lawyers and jurors all know that some of our laws are to be enforced against everybody, while others are to be enforced against the white people, and others are to be enforced only against the negroes, and they are enforced accordingly.”35

To ensure that the legal system remained in white hands, black men were chosen less often to serve on juries—and in many southern counties not included at all. To confirm this, in 1900 a 16-year-old white Wake Forest University student named Gilbert Thomas Stephenson sent questionnaires to clerks in southern counties in which African Americans “constituted one-half or more of the population.” He asked: “I wish to know to what extent Negroes actually serve on juries, how Negro jurors are regarded by the court and the people at large, whether the number of colored jurors has increased or decreased in late years, [and] what has been the experience of your county as to the satisfaction of colored jurors?” Sixty-five clerks wrote back. Of these, forty-five said that their county did not draw African American men for jury service, unless in error. One Alabama clerk wrote, “Negroes are not allowed to sit upon juries in this county. It sometimes happens that names of Negroes are placed in our jury-box by mistake on the part of the jury commissioners and are . . . drawn to serve as jurors; this, however, is a very rare occurrence.” The clerk then noted, “Once in the past four years, a Negro was drawn as a grand juror (by mistake) who appeared and insisted upon the court’s impaneling him with other jurors, which was done in accordance with law, the court having no legal right to discharge or excuse him. My recollection is he served two days, when he was taken out at night and severely beaten, and was then discharged on his own petition by the court.” Other clerks replied that they had used African American jurors until a few years earlier, when the practice had stopped.36

Twenty clerks reported that their county still allowed some African Americans to serve on juries. Their counties were spread throughout the South: one county in Florida, three parishes in Louisiana, five counties in Mississippi, one county in Missouri, three counties in North Carolina, one county in Oklahoma, two counties in South Carolina, two counties in Texas, and two counties in Virginia. But most of these clerks acknowledged that black men formed a very small part of their overall jury pool. A Louisiana clerk gave a typical response: “Negroes serve as jurors in this parish to a limited extent. The jury commissioners, when they know of an exceptionally good, honest, sober and industrious Negro, have no objections to placing his name in the jury-box. It is true, however, that the number is very limited . . . . Out of the 300 names in the jury-box from which we draw out juries, there are about a dozen Negroes.” The counties and parishes where black jury service continued in 1900 also frequently noted a drop in recent years in the numbers of black men included on lists of potential jurors.37

(p.118) A number of black men and women agreed with white southerners that the justice system—and particularly criminal courts—would usually rule in favor of whites. Articles and editorials in African American newspapers all over the South in the first two decades of the twentieth century noted discrimination in the courts. When the Supreme Court of Kentucky upheld railroad segregation at the turn of the century, the Richmond Planet observed, “The judicial department is tainted from bottom to top with race prejudice.” Similarly, in 1910, The Savannah Tribune opined, “When the issue is as between a Negro and a white man, and the decision must finally rest with a jury made up of white men there is rarely ever any other result save that which favors the white man.” Again, in 1919, the Georgia newspaper declared that trials in Arkansas of African Americans charged with murder “proved to be of the type of those which characterized the semi-civilization of the Middle Ages when the king would say ‘Take the victim out and give him a trial, and then take him over and deliver him to the executioner.’ ”38

Prominent African Americans made similar observations. W. E. B. Du Bois remarked, “It was not then a question of crime, but rather one of color, that settled a man’s conviction on almost any charge. Thus Negroes came to look upon courts as instruments of injustice and oppression, and upon those convicted in them as martyrs and victims.”39 Even savvy black lawyer Wilford Smith, who devoted years of his life to bringing racial justice litigation to the US Supreme Court, commented, “With the population of the South distinctly divided into two classes, not the rich and poor, not the educated and ignorant, not the moral and immoral, but simply whites and blacks, all negroes being generally regarded as inferior and not entitled to the same rights as any white person, it is bound to be a difficult matter to obtain fair and just results, when there is any sort of conflict between the races. The negro realizes this, and knows that he is at an immense disadvantage when he is forced to litigate with a white man in civil matters, and much more so when he is charged with a crime by a white person.”40

Black southerners also expressed their disillusionment with the legal system through music. At the beginning of the twentieth century, African Americans in Auburn, Alabama, put their grievances to song: “If a white man kills a negro, they hardly carry it to court, If a negro kills a white man, they hang him like a goat.” And in the wake of World War I, one Texas blues singer sang, “White folks and nigger in great Co’t house Like Cat down Celler wit’ no-hole mouse.”41

Indeed, in criminal cases, the high conviction rate of black men and women in the South continued. Southern states’ continuing practice of hiring out convict labor only compounded the problem, motivating states to convict black defendants to fill their own coffers.42 Even in criminal appeals to the Alabama and Georgia state supreme courts during the first two decades of the twentieth century, black defendants lost almost two-thirds of the time.43 Social scientists also (p.119) noted the high percentage of people of color in prisons throughout the United States. In 1910, African Americans comprised 11 percent of the US population and 34 percent of the convicts.44

Nonetheless, during the height of Jim Crow, some black southerners held out hope that the courts—particularly federal courts—could be used to preserve their voting rights and halt the spread of segregation. The courts had sometimes played a part in protecting their property and citizenship during Reconstruction and in the two subsequent decades, and black southerners had not forgotten it. Black newspapers reported civil and criminal cases from around the country in which the courts upheld black rights. When a circuit court judge decided that a Kentucky railroad segregation law was unconstitutional in 1894, the Richmond Planet reported: “This is a great victory for the colored people, not only of that state but of the entire country, and it is indeed a source of gratification that one upright judge could be found who would fearlessly deliver an opinion in accordance with the law and the facts.” Similarly, in 1920, the St. Louis Clarion applauded the outcome of a criminal trial over the Elaine riots by declaring: “The judges of Arkansas may not know it, but by their decision they have put heart in the Arkansas Negro, and said to the absent Negro, come on back home, things are going to get better.” Some articles took a nuanced approach, criticizing some court decisions and praising others.45

Civil cases were one vehicle to challenge inequality. A limited number of black litigants continued to bring civil cases challenging unequal treatment to local and state courts. Between 1900 and 1920, appellate courts in the eight states examined heard approximately twenty-three civil cases that directly challenged racial discrimination or pursued racial justice. Often such cases were initiated by individuals and sometimes received financial support from others in the community and African Americans shaken by recent political events. At other times, national organizations such as the Afro-American Council or Niagara Movement were behind such suits. Despite their importance, these cases made up only about 10 percent of the total civil appellate cases litigated between black and white litigants in the eight state supreme courts examined.46

The individual African Americans and organizations bringing civil suits over racial discrimination often seem to have sought to set precedents that would bring more equality for all African Americans. A number of these cases protested the discrepancies in funding for schools for white children and schools for black children in the Jim Crow South. In 1909, for instance, a black father and taxpayer named Robert Goins sued the tax collector and treasurer of Jasper County, Mississippi. In his suit, Goins challenged the constitutionality of a tax that had been assessed on all citizens of the county, but would be used to benefit only the white high school.47 Other civil suits challenged new residential segregation ordinances. In April 1911, the town of Ashland, Virginia, passed an ordinance (p.120) prohibiting white people from moving onto streets where the majority of houses were occupied by African Americans and making it illegal for African Americans to move onto majority-white streets. Several months later, John Coleman purchased a house on Clay Street in Ashland. Although the previous tenant had been a black renter, Clay Street had more white residents than African American ones. Coleman was convicted of violating the ordinance and fined. In response, he sued the city, arguing that the ordinance violated the 14th Amendment.48

When such cases did receive a hearing, the outcomes were decidedly mixed. Between 1900 and 1920, black litigants won 43 percent of their racial justice suits.49 In the South, where the Republican Party was only a shadow of its former self and black men had been almost entirely disfranchised, judges were often uninterested in changing the status quo.50 Because the law was largely unsettled on the matter of equal rights, it was undoubtedly easier for judges to decide against African Americans in these suits than in cases over property or wills. Yet even in the South, when civil suits over unequal treatment were heard in appeals courts, the formal procedure of the courts led some black litigants to win their cases.

Indeed, in Goins’s case over the tax to benefit the white school, the local and higher Mississippi courts both ruled in his favor. The Supreme Court of Mississippi opined: “When the act in question is read in the light of the fourteenth amendment to the Constitution of the United States, its violation of same is too plain for argument.” In contrast, both the Circuit Court and the Supreme Court of Virginia ruled against Coleman in his suit challenging housing segregation. In a decision that bundled his case with a similar suit, Virginia’s highest court praised the town for recognizing “the grave danger liable to ensue . . . from too close association of the races.”51

At times, civil cases over discrimination heard by southern state supreme courts were explicitly designed to receive unfavorable decisions so that they could be appealed to the US Supreme Court. After Alabama instituted disfranchisement through a new constitution in 1901, Jackson Giles, a former slave and a post office employee in his early 40s, was turned away when he sought to register to vote.52 In response, Giles and other disfranchised black men organized the Colored Men’s Suffrage Association of Alabama, with the purpose of raising money to fund litigation challenging disfranchisement. A circular sent out by the Association explained that “the people of Montgomery county,” had organized “for the purpose of raising money to test in the United States district court or supreme court at Washington, D.C., the constitutionality of the Alabama constitution.” They needed to raise “$2,000 with which to commence.”53

Despite his accommodationist rhetoric, Booker T. Washington agreed that the courts were the place to do battle over disfranchisement. Washington secretly arranged and paid for an African American lawyer named Wilford Smith to take (p.121) on Giles’s case. Smith planned a course of litigation in which he would bring several cases in different venues that challenged the disfranchisement of black men in Alabama—three civil cases before state courts, a civil case in district court, and a criminal case in state court. He would craft the cases to lose over federal questions, and then appeal one or more of the cases to the US Supreme Court. In essence, he was throwing as many different kinds of darts as possible and hoping at least one would hit the bull’s-eye of reaching the nation’s highest court. Right on cue, the Supreme Court of Alabama refused his appeals.

In the end, in 1903 and 1904, Smith managed to appeal three of the cases to the US Supreme Court. But in its decisions the Court shrugged off any responsibility for making a decision on disfranchisement, opining in Giles v. Harris that “relief from a great political wrong, if done, as alleged, by the people of a state and the state itself, must be given by them or by the legislative and political department of the government of the United States.” In the end, Smith achieved no victories in any of the civil cases over Giles’s disfranchisement, although the criminal case heard by the US Supreme Court—which sought to tie disfranchisement to jury discrimination—was a limited success.54 Other civil cases challenging discrimination before the US Supreme Court at the turn of the century mostly proved unsuccessful.55

African Americans also challenged the constitutionality of discriminatory laws through criminal cases in state and federal courts. In many cases, they purposely tried to be arrested as they defied segregation in order to litigate cases over racial discrimination. When the Louisiana legislature passed a law in 1890 requiring “equal, but separate” seating for white and black railway passengers, a broad, multinational base of New Orleans men and women supported a Citizens’ Committee in challenging the legislation. They hoped to bring a case to the state supreme court, and, upon losing there, to appeal to the US Supreme Court. Initially, the Citizens’ Committee planned to use the arrest of 21-year-old Daniel F. Desdunes for riding in a white car between New Orleans and Mobile, Alabama, to challenge the law. Soon after, though, the US Supreme Court ruled in Louisville, New Orleans and Texas Railway Company v. Mississippi that a Mississippi segregation law might not apply to interstate transportation. When it became clear that the Desdunes case would no longer be the right avenue to challenge the Louisiana law, the Citizens’ Committee chose a 30-year-old shoemaker named Homer Plessy to initiate a case on an intrastate railway journey. In 1892, Plessy boarded a whites-only train car from New Orleans to Covington, Louisiana. He was arrested, and in the ensuing criminal case, his lawyers claimed that discrimination in railroad travel based on race violated his constitutional rights. As planned, the local Louisiana court and state supreme court ruled against him, declaring that segregation based on race was constitutional.56

(p.122) Plessy then appealed to the US Supreme Court. Upon gaining a hearing in 1896, though, the Supreme Court ruled that state laws requiring racial segregation were constitutional. The Court’s opinion reasoned that “If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.” This was only one in a long line of lower federal court decisions ruling that separate did not necessarily mean unequal. Even though the reasoning in the ruling was not new, this decision set a precedent for segregation to continue.57 Other criminal cases over racial justice that reached the US Supreme Court ended in much the same way.58

Even as they often could not litigate or lost cases that focused on aiding all those classified as African American, black southerners continued to litigate hundreds of appellate civil cases that sought benefits only for the individuals involved. Yet these suits also reflected the increasing loss of rights and racial separation occurring in the South at the turn of the century. As white southerners gained more power, the types of civil cases that posed a possible threat to whites became much less frequent. From Reconstruction to the end of the nineteenth century, civil cases litigated between black and white people in southern state supreme courts had frequently dealt with disagreements over wills, property, transactions, or contracts.59 In these cases, the black litigants had often presented themselves as equal parties to the whites who participated in the suits. As the antebellum ties between white and black people weakened, though, cases in which a white testator had left money to a black person in a will became less common. At the end of the nineteenth century, southern courts were also less likely to hear suits over white and black southerners’ ordinary economic dealings.

W. H. Weems discovered this increased opposition to such suits when he was jailed in 1897 for trying to bring a civil case against a white man over his sharecropping contract. In the ensuing civil trial in the City Court of Atlanta, the white landowner A. W. Barge made no effort to hide his actions from the court. After the sharecropper had threatened to sue him, he testified, he swore out a warrant for the black man’s arrest and requested the criminal court to “have the bond fixed big enough to put him in [jail].”60 The white landowner thus openly acknowledged his use of the criminal courts to thwart Weems’s civil action.

In the end, the jury ruled in the black sharecropper’s favor, awarding him $433.33 in damages. When the white landowner appealed in January 1900, the state supreme court affirmed the city court’s decision for Weems. Writing the opinion for the majority, Georgia Supreme Court Justice P. J. Lumpkin began by declaring, “It would be a mockery of justice to set aside the verdict now under review.” The state justice then noted that “Barge was instrumental in having the bond fixed at the amount mentioned, and, but for his insistence, a smaller bond, and one which Weems would have been able to give, would have been (p.123) exacted. Barge’s conduct plainly indicated his desire to have Weems imprisoned.” Lumpkin agreed, too, with the sharecropper’s claim that “the warrant was sworn out to defeat the civil suit of Weems.” It was the “more plausible” explanation for Barge’s initiating the criminal action, he wrote, “and this, most probably, is the exact truth of the matter.” He concluded: “Barge’s treatment of his humble cropper was oppressive and wrong from the beginning, and the persecution (called prosecution) which he instituted was totally indefensible. If there is anything wrong about the verdict, it is the amount. The jury might well have made it larger.”61 Despite this opinion overwhelmingly in the black litigant’s favor, increased opposition to African Americans’ involvement in civil cases over ordinary economic dealings would largely prevent similar cases from being heard in the coming years. Yet, as Weems’s case makes clear, African Americans continued to maintain a measure of faith that they could still sometimes gain justice through civil courts even during the darkest years of Jim Crow.

The New South and the Law

Fig 5.1 Photograph of North Carolina Supreme Court in their chambers, 1919.

Courtesy of Miscellaneous Subjects Image Collection (P0003), North Carolina Collection Photographic Archives, The Wilson Library, University of North Carolina at Chapel Hill.

During the first two decades of the twentieth century, almost three-fourths of all appellate civil cases that black southerners were able to litigate against whites involved personal injury claims or particularly egregious cases of fraud in property dealings.62 To a limited degree, this reflected larger trends. Personal injury cases increased on the whole nationally during this time, while cases over property decreased. But just as in the decades past, the kinds of cases black litigants were most often able to bring to southern state courts diverged markedly from the range of cases most often litigated by the general population.63

Unlike black litigants’ cases in the previous decades, these suits usually presented African Americans in especially vulnerable, unequal roles. A disproportionate number of the cases involved very young or very old black plaintiffs, and almost half of the suits had black female litigants.64 To meet the legal terms of fraud or personal injury, the plaintiffs in such cases had a strong motivation to emphasize their weakness and inferiority. According to the law, it was difficult to bring a case of fraud if both parties in the transaction stood on an equal footing. Only if one of the parties had significantly less knowledge or mental capacity that impaired him from fully understanding the contract would the courts become involved and rescind the contract.65 Similarly, in personal injury cases, litigants needed to demonstrate that they had suffered injuries that caused them pain and loss of income. Courts also gave plaintiffs seen as less capable more leeway as they judged responsibility for accidents, not expecting them to have exercised the same amount of caution as the “common man.” Cornelius Mitchell’s personal injury suit after a railroad accident, for instance, revolved in part around the fact that he was largely deaf and, according to a witness, couldn’t “hear anybody speak at all, but he can hear a whistle.”66 In these types of cases, African Americans bolstered their legal claims by consciously presenting themselves in unequal positions with individual whites.

(p.124) Black litigants understood all too well that as they lost more and more rights in the South, appealing to white southerners’ ideas about race would aid their cases. Almost all white southerners believed that people of color were inherently unequal. Moreover, at the end of the nineteenth century, as white southerners sought to consolidate their power over black people, a Lost Cause movement romanticizing the antebellum South spread a myth of a past in which childlike black people had loyally served their former masters and their benevolent white owners had in turn taken good care of them. By presenting themselves as unequal and dependent and asking for white aid, black litigants appealed to white judges’ and juries’ idealized memories of the Old South and beliefs of racial superiority. White judges and jury members, in turn, were often happy to spotlight black men and women in such positions.67

Black southerners’ new position as the aggrieved party in most personal injury and fraud cases reinforced this image. During Reconstruction, black and white southerners had both brought cases against one another, a pattern that continued to a lesser extent through the rest of the nineteenth century.68 By 1900, black southerners still brought cases against white people in their state’s highest court, (p.125) but few white southerners bothered to seek legal action in their disagreements with black people. As segregation and disfranchisement became institutionalized and written into law, marginalizing black southerners’ political power, white southerners could usually resolve disagreements across the color line in their own favor outside of court. Black men and women, on the other hand, often could not—leading more than four-fifths of civil suits between white and black southerners from 1900 to 1920 in the eight appellate courts examined to be initiated by black plaintiffs. The types of suits they remained able to litigate also contributed to this shift. In fraud and personal injury cases, the person who had suffered financial or bodily harm generally brought the case. This preponderance of black plaintiffs and white defendants in civil suits only reinforced the image of black people as vulnerable and in need of protection.69

The rising segregation in the South and increasing distance from the war influenced courtroom proceedings as well. A notable shift in people’s familiarity with one another can be seen in the testimony of black and white southerners. Whereas earlier white and black litigants often had long-standing ties, by 1900 litigants mentioned experiences before the war less frequently and were less likely to know one another well.70

White witnesses continued to testify for as well as against black litigants, but their testimony was commonly more impersonal. Some white witnesses in fraud cases testified only about the price of land and had no previous relationship with the black litigants. In one Arkansas fraud case, three white men in the real estate business testified about the value of a lot in Little Rock. They gave varying estimates, ranging from $3,500 to $4,000. Then, during the lawyer’s questioning, the witnesses learned from the questions directed at them that half of the lot in question had been owned by a black woman. One witness, H. L. Remmel, then asked, “How old a woman was the negro woman?” With this new information about the lot’s owner, all three white men immediately downgraded the value of the property. R. C. Butler, for one, responded to a lawyer’s question, “Of course, being owned in that way by negroes, would be a detriment to the property,” with a strong “Yes, sir.”71

Other white witnesses still noted connections with black employees or co-workers, but the increasing separation of races in the South undoubtedly influenced these interactions. Several white co-workers at the local lumber mill testified for the black plaintiff in one 1918 North Carolina fraud case. “I know Jake Sutton; have been knowing him about 5 or 6 years,” one millworker told the court, “I think I know his general character; it is good. I work out at the mill at which he works.” Another white co-worker testified: “I know Jake Sutton . . . . I have never heard aught against him.”72 Even though it went unsaid in their testimony, the labor at southern lumber mills was highly segregated, with whites getting the best jobs and black laborers receiving the worst paid, (p.126) most unskilled jobs. The interactions at work among these white witnesses and the black plaintiff would have taken place in a racially divided, unequal environment.73

Even as the kinds of civil cases that African Americans could litigate in appellate courts changed, the outcomes of these ordinary civil cases remained much the same. Black litigants continued to win before juries as well as judges at the local level during the first two decades of the twentieth century. Of the cases between white and black litigants that later reached the eight state supreme courts, black litigants had won 129 of 220 cases at the county court level (59 percent) between 1900 and 1920. In the local trials of the appellate cases examined during this period, over two-thirds of the decisions favorable to African American litigants had been made by juries and a little over a fourth of such decisions had been made by judges. Although these local trials of appellate cases are not representative of all local cases during this period, they nonetheless show that juries—as well as judges—could decide in favor of black litigants even in the midst of Jim Crow.74 When African Americans succeeded in litigating a civil case against a white person before a southern state’s highest court, they were more likely to win the case than not. The eight state supreme courts examined decided in favor of African Americans in 63 percent of civil suits between white and black southerners from 1900 to 1920.75

As before, the role of white lawyers and white witnesses in these suits helped aid black litigants’ cases, even as they shaped the arguments African Americans could make. The nature of the legal system, too, continued to give preference to cases that followed precedent, no matter the race of the litigants. Yet the vast shifts in the kinds of cases black people could litigate indicates that new factors were at work in these victories. For one, the nature of these cases made them especially unthreatening to white juries and judges. At times, they seemed to explicitly uphold racial inequality. By primarily taking cases in appellate courts that presented black people in unequal situations, whites highlighted their supposed racial superiority (without consideration of the structural factors that had led black men and women to be so vulnerable in the first place). At the same time, as they continued to allow black southerners to make claims in the courts, whites presented the New South as a fair place, where African Americans—even if they did not have access to the ballot box—could gain justice in the courts. Doing so upheld the legitimacy of their own legal system. Perhaps they hoped as well that upholding some African Americans’ property rights would keep black citizens content despite the loss of so many of their other rights.

Yet these decisions in favor of African Americans can also be understood as successful assertions of legal rights, masked to look as unthreatening as possible. Even as black southerners largely failed to use the courts to help themselves as (p.127) a whole, they succeeded at times in using the courts to benefit themselves as individual citizens. They maintained their access to the courts, limited as it was, by purposely presenting their cases in ways that would elicit favorable responses from whites. While failing to create broader change and sometimes even reinforcing ideas of white supremacy, the resulting cases left African Americans with one foot in the courts at a time when they no longer had standing in any other government institutions in the South.


(1.) Barge v. Weems, 109 Ga. 685 (1900).

(2.) Barge v. Weems, 109 Ga. 685 (1900).

(3.) Barge v. Weems, 109 Ga. 685 (1900).

(4.) Barge v. Weems, 109 Ga. 685 (1900).

(5.) The City Court of Atlanta was in Fulton County, Georgia. According to the court records, Barge was a “citizen of Fulton County” – as a result it is probable that the land Weems farmed was also in Fulton County. Barge v. Weems, 109 Ga. 685 (1900).

(6.) Woodward, Origins of the New South, ix; Henry Grady, The New South: Writings and Speeches of Henry Grady (Savannah, GA: Beehive Press, 1971). See also Paul M. Gaston, The New South Creed: A Study in Southern Mythmaking (New York: Knopf, 1970).

(7.) “Articles from the New York Ledger, November–December, 1889,” in Grady, The New South, 120, 123.

(8.) Woodward, Origins of the New South, 126, 132; Ayers, The Promise of the New South, 21–22.

(9.) C. Vann Woodward states that between 1880 and 1890, railroads in the South “increased from 16,605 miles in 1880 to 39,108 in 1890, or 135.5 per cent as compared with the national expansion of 86.5 per cent.” From Eleventh Census, 1890, Transportation by Land, Pt. I, 4, 6, cited in Woodward, Origins of the New South, 120. “By 1890,” Edward Ayers found, “nine of every ten Southerners” now had a railroad running through their county, connecting them with economic centers, consumer goods, and factories. See Ayers, The Promise of the New South, 9–13.

(10.) Ayers, The Promise of the New South, 10, 24, 55–56. C. Vann Woodward, however, states that despite this urbanization, the South’s urbanization still remained far less than that of the North. See Woodward, Origins of the New South, 139.

(11.) Woodward, Origins of the New South, 302–318; Ayers, The Promise of the New South, 22.

(12.) Ayers, The Promise of the New South, 9–10; Woodward, Origins of the New South, 380–381.

(13.) This statistic is for the South Atlantic and South Central divisions of the continental United States according to the 1900 US census. The states included in this statistic are Delaware, Maryland, District of Columbia, Virginia, West Virginia, North Carolina, South Carolina, Georgia, Florida, Kentucky, Tennessee, Alabama, Mississippi, Louisiana, Arkansas, Indian Territory, Oklahoma, and Texas. According to the 1900 US census, 2,488,553 people out of 24,523,527 (p.289) people in these two divisions lived in cities of more than 25,000 people. “Table 37: Population Living in Cities Within Specified Limits of Size and In Country Districts: 1900” in Abstract of the Twelfth Census of the United States 1900 (Washington, DC: US Government Printing Office, 1902), 37. See also Woodward, Origins of the New South, 139; Ayers, The Promise of the New South, 24–25; Philip Alexander Bruce, “Social and Economic Revolution in the Southern States,” Contemporary Review 78 (1900): 67.

(14.) W. E. B. Du Bois, The Souls of Black Folk (1903; reprinted New York: Dover, 1994), 79, 95–96; Woodward, Origins of the New South, 185.

(15.) “Articles from the New York Ledger, November–December, 1889,” in Grady, The New South, 136.

(16.) Joseph C. G. Kennedy, Population of The United States in 1860; Compiled from the Original Returns of the Eighth Census (Washington, DC: US Government Printing Office, 1864), ix–x; “Table 41: Population Classified By Sex and Race: 1900,” in Abstract of the Twelfth Census of the United States 1900 (Washington: US Government Printing Office, 1902), 43. According to the 1900 US census, there were approximately 16,521,970 white people in the Southern Atlantic and Southern Central divisions, and approximately 7,922,969 “negro” people in these two divisions.

(17.) Ayers, The Promise of the New South, 208–210, 513–514. See also Leon F. Litwack, Trouble in Mind: Black Southerners in the Age of Jim Crow, 1st ed. (New York: Knopf, 1998), 120–122.

(18.) “Table 57: Illiterate Population At Least 10 Years of Age Classified By Sex, And By Race and Nativity: 1900,” in Abstract of the Twelfth Census of the United States 1900 (Washington, DC: US Government Printing Office, 1902), 75.

(19.) Du Bois, The Souls of Black Folk, 50. For two other contemporary accounts of this, see A South Carolinian, “South Carolina Morals,” The Atlantic Monthly, April 1877, 470; Ray Stannard Baker, Following the Color Line: An Account of Negro Citizenship in the American Democracy (New York: Doubleday, Page & Company, 1908), 44, http://www.gutenberg.org/files/34847/34847-h/34847-h.htm. See also Ayers, The Promise of the New South, 427; Howard Rabinowitz, Race Relations in the Urban South, 1865–1890 (Urbana: University of Illinois Press, 1980), 333–339.

(20.) Fraud was especially prevalent in states such as Louisiana, South Carolina, and Mississippi, but also occurred in a more uneven manner throughout the US South during this time. See Kousser, The Shaping of Southern Politics, 14, 45–47; J. Morgan Kousser, Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction (Chapel Hill: University of North Carolina Press, 1999), 23–25. Representative George White blamed the desire for white political power for disfranchisement. He said, “There never has been, nor ever will be, any negro domination in [North Carolina], and no one knows it any better than the Democratic party. It is a convenient howl, however, often resorted to in order to consummate a diabolical purpose by scaring the weak and gullible whites into support of measures and men suitable to the demagogue and the ambitious office seeker, whose craving for office overshadows and puts to flight all other considerations, fair or unfair.” See “Representative George White of North Carolina Delivers His Final Speech on the Floor of Congress, 1901,” in Thomas C. Holt and Elsa Barkley Brown, eds., Major Problems in African-American History: Documents and Essays, vol. 2 (Boston: Houghton Mifflin, 2000), 97–98. White’s speech is excerpted from Congressional Record, 56th Cong., 2nd sess., pt. 2, Jan. 29, 1901, 1635–1636, 1638.

(21.) Thomas E. Watson, “The Negro Question in the South,” in Arena, VI (1892), 548. See also Woodward, Origins of the New South, 255–258; C. Vann Woodward, Thomas Watson: Agrarian Rebel (1938; reprinted New York: Oxford University Press, 1987); Perman, Struggle for Mastery, 24–28.

(22.) Samuel L. Webb, “The Populist Revolt in Alabama: Prelude to Disfranchisement,” in Bailey Thompson, ed., A Century of Controversy: Constitutional Reform in Alabama (Tuscaloosa: University of Alabama Press, 2002), 1–14; Ayers, The Promise of the New South, 266–269.

(23.) Ayers, The Promise of the New South, 147, quoting William Charles Sallis, “The Color Line in Mississippi Politics, 1865–1915” (PhD dissertation, University of Kentucky, 1967), 281–282. See also “Richmond Times,” Richmond Planet, Dec. 10, 1898, quoted in Perman, Struggle for Mastery, (p.290) 15; Woodward, Origins of the New South, 326–327; Kousser, The Shaping of Southern Politics, 46–47.

(24.) For more on politicians’ use of rape for political ends at this time, see Jane Dailey, The Age of Jim Crow: A Norton Casebook in History (New York: Norton, 2009), xxii–xxiv; Glenda Gilmore, Gender and Jim Crow: Women and the Politics of White Supremacy in North Carolina, 1896–1920 (Chapel Hill: University of North Carolina Press, 1996), 82–88; Hodes, White Women, Black Men, 176–208. For a statistical analysis of the most common charges against those who were lynched between 1882 and 1930, separated by race and gender, see Amy Kate Bailey and Stewart E. Tolnay, Lynched: The Victims of Southern Mob Violence (Chapel Hill: University of North Carolina Press, 2015), 190–192. Bailey and Tolnay found that the most common reason for rape during this period was charges of violence; the second most common reason was charges of sexual violence. For more on lynching during this period, see also Brundage, Lynching in the New South, 68; Griffin, Women Lynched, 202, no.21; Thirty Years of Lynching in the United States; Wood, Lynching and Spectacle, 5–8; Crystal N. Feimster, Southern Horrors: Women and the Politics of Rape and Lynching (Cambridge, MA: Harvard University Press, 2009); W. E. B. Du Bois, “Rape,” The Crisis: A Record of the Darker Races 18 (May 1919): 12. For lynching statistics by year and state, see “Lynchings: By Year and Race,” University of Missouri Kansas City Law School, http://law2.umkc.edu/faculty/projects/ftrials/shipp/lynchingyear.html and http://law2.umkc.edu/faculty/projects/ftrials/shipp/lynchingsstate.html. Statistics are provided by the Tuskegee Institute Archives.

(25.) In addition, the 14th Amendment to the US Constitution ordered a reduction in a state’s representation in Congress if the right to vote was denied to any male citizens in a state “except for participation in rebellion, or other crime.” U.S. Const. amend. XIV; U.S. Const. amend. XV; Kousser, The Shaping of Southern Politics, 45; Woodward, Origins of the New South, 330–331.

(26.) J. Morgan Kousser found that seven ex–Confederate states put literacy requirements into place (in all but two states, an illiterate person could still qualify to vote, however, if they owned enough property). Kousser, The Shaping of Southern Politics, 67–58. Edward Ayers explains that by 1908, “every state of the former Confederacy had instituted a poll tax.” Ayers, The Promise of the New South, 309. Some states required those registering to also pay the poll taxes that they owed from two or more previous elections to be able to vote. C. Vann Woodward states that the poll tax “was cumulative for the entire period of liability in two states, for three years in one, and two in another.” Woodward, Origins of the New South, 321–331, 334–336 (quote is from p. 336). J. Morgan Kousser examines more disfranchising methods in Kousser, The Shaping of Southern Politics, 47–81.

(27.) Ratliff v. Beale, 74 Miss. 247 (1896).

(28.) Many of the loopholes were temporary and allowed whites not meeting the voting requirements to register only during a finite period of time. Kousser, The Shaping of Southern Politics, 59–60; Woodward, Origins of the New South, 335. For an example of a grandfather clause, see “Constitution of the State of Louisiana, Adopted May 12, 1898,” in Walter L. Fleming, ed., Documentary History of Reconstruction, vol. 2 (Cleveland, OH: Arthur H. Clark Company, 1906), 451–453.

(29.) C. Vann Woodward notes that “all southern states that made new constitutions except Alabama avoided ratification by popular vote.” Woodward, Origins of the New South, 321–323, 341 (quote is from p. 341); Kousser, The Shaping of Southern Politics, 57–58.

(30.) J. Morgan Kousser calculates that “in the early twentieth century, there was a decrease of 47 percent in the average percentage of adult males for the Democrats, but a 62 percent drop in the already lower opposition totals.” Kousser, The Shaping of Southern Politics, 59–62, 224–226 (quote is from p. 224); Blackmon, Slavery By Another Name, 121; Suggs, Whispered Consolations, 252; Ayers, The Promise of the New South, 410. For an in-depth examination of how disfranchisement took place in Alabama, see Harvey H. Jackson III, “White Supremacy Triumphant: Democracy Undone,” in Bailey Thompson, ed., A Century of Controversy: Constitutional Reform in Alabama (Tuscaloosa: University of Alabama Press, 2002), 17–33, and Wayne Flint, “A Tragic Century: The Aftermath of the 1901 Constitution,” in Bailey Thompson, ed., A Century of Controversy: Constitutional Reform in Alabama (Tuscaloosa: University of Alabama Press, 2002), 34–49.

(p.291) (31.) The exact extent of segregation before the end of the nineteenth century and how formalized it was in the law has been debated by many historians, most notably by C. Vann Woodward in The Strange Career of Jim Crow (New York: Oxford University Press, 1955; commemorative edition 2002), 22–109. For an examination of the history and current state of this debate, see J. Morgan Kousser, “Strange Career and the Need for a Second Reconstruction of the History of Race Relations,” in Raymond Arsenault and Orville Vernon Burton, eds., Dixie Redux: Essays in Honor of Sheldon Hackney (Montgomery, AL: NewSouth Books, 2013), 398–416. For a contemporary account of the school and transportation segregation laws put into place before 1890 in the South, see Stephenson, Race Distinctions in American Law, 170–188, 207–221.

(33.) Tennessee led the way in separating railroad passengers in 1881. For more on increasing segregation during this time, see Woodward, Strange Career, 97–109; Ayers, The Promise of the New South, 136–49; Perman, Struggle for Mastery, 245–269; Kelley, Right to Ride; Jerrold M. Packard, American Nightmare: The History of Jim Crow (New York: St. Martin’s, 2002), 88–94; Dailey, The Age of Jim Crow, xiii-xiv. For a contemporary examination of segregation at the beginning of the twentieth century, and the laws governing it, see Stephenson, Race Distinctions in American Law, 170–199, 217–233 (a listing of the years that states passed laws separating passengers on railroads is on p. 216). Stephenson notes that although the laws requiring segregation of streetcars generally came at the beginning of the twentieth century, Georgia passed such a law along with its railroad segregation legislation in 1891 (Stephenson, Race Distinctions in American Law, 227–228).

(34.) For earlier versions of this sentiment, see “Editorial Correspondence,” The Daily Telegraph (Macon, GA), Oct. 25, 1865; “Negro Testimony,” The Louisville Daily Courier, Aug. 27, 1867, 1.

(36.) Stephenson, Race Distinctions in American Law, 253–272 (quote is from pp. 253–254); Kennedy, Race, Crime, and the Law, 172–173. For more on Gilbert Stephenson, see “Gilbert Thomas Stephenson, 1884–1972,” Documenting the American South, http://docsouth.unc.edu/wwi/stephenson/bio.html.

(38.) “A Court’s Decision,” Richmond Planet, Oct. 15, 1898; “The Negro Before the Law,” The Savannah Tribune, Nov. 20, 1920, 4; “Speedy Trials and Justice,” The Savannah Tribune, Nov. 29, 1919, 4. A search for articles with negative opinions about the courts in black newspapers in the South between 1900 and 1920 yields many articles. A few others include “Three Men Killed in Court,” Richmond Planet, Jan. 13, 1900, 8; “Columbia, S.C., Jan. 10,” The National Pilot (Petersburg, VA), Feb. 1, 1900, 4; “Washington News,” The Savannah Tribune, June 4, 1910, 1; “Negroes Barred From School, the Color Line is Drawn By Court in Washington,” The Savannah Tribune, Dec. 31, 1910, 6; “The Negro in Court,” The Savannah Tribune, Dec. 7, 1918, 4; “The Recorder,” The Savannah Tribune, Feb. 1, 1919, 4.

(39.) Du Bois, The Souls of Black Folk, 108. See also W. E. B. Du Bois, “Race Relations in the United States, 1917–1947,” Phylon 9, no. 3 (1948): 237.

(40.) Wilford H. Smith, “The Negro and the Law,” in Booker T. Washington, ed., The Negro Problem: A Series of Articles by Representative American Negroes of To-day (New York: James Pott, 1903), 144.

(41.) White, American Negro Folk-Songs, 382, and Russell Ames, “Protest and Irony in Negro Folksong,” Science and Society 14 (1950): 210, both quoted in Lawrence W. Levine, Black Culture and Black Consciousness: Afro-American Folk Thought From Slavery to Freedom (New York: Oxford University Press, 1977), 251. See also Sarah Haley’s discussion of black women’s use of blues music as “sonic sabotage” to protest their treatment in the criminal justice system. Haley, No Mercy Here, 212–246.

(p.292) (43.) Black litigants won thirty-five of ninety-three appeals (38 percent of appeals) in criminal cases appealed to the Alabama and Georgia State Supreme Courts between 1900 and 1920. See Table B.25 (tables that are prefaced with “B” are given in Appendix B).

(44.) Oshinsky, “Worse Than Slavery,” 60–63, 95. See also the graph showing the increase in the black prison population in four states in the South from 1865 to 1900 in Ayers, Vengeance & Justice, 170.

(45.) “The Kentucky Jim Crow Law,” Richmond Planet, June 9, 1894; “Governor and Judges,” St. Louis Clarion, Dec. 18, 1920, 2. One article that both praised the courts in general and condemned a particular decision was “Savannah Justice,” The Savannah Tribune, Nov. 2, 1918, 4. A search for such articles in black newspapers in the South between 1900 and 1920 yields many articles. A few others include “A New Dawning,” The Savannah Tribune, April 28, 1900, 2; “A Ray of Light in the Blackness of Our Night,” The Savannah Tribune, Feb. 24, 1900, 2; “The Negro’s Right to Sit on Grand Juries Vindicated By the United States Supreme Court,” Rising Son (Kansas City, MO), Feb. 12, 1904; “Law Knows No Color,” The Savannah Tribune, April 9, 1910, 4; “N.A.A.C.P Announces Victory Supreme Court of Arkansas Reverses Decision of Lower Court,” The Savannah Tribune, Dec. 18, 1920, 1.

(46.) The 23 civil cases explicitly over racial justice between black and white litigants in the eight state supreme courts examined between 1900 and 1920 were 10 percent of the total of 220 such civil cases heard by these courts during this time. See Table B.9. For examples of such cases over racial justice, see, for instance, Lowery v. Board of Graded School Trustees, 140 N.C. 33 (1905); McFarland v. Goins, 96 Miss. 67 (1909); Glover v. City of Atlanta, 148 Ga. 285 (1918); Harden v. City of Atlanta, 147 Ga. 248 (1917); Carey v. City of Atlanta, 143 Ga. 192 (1915); Hopkins and Others v. City of Richmond, and Coleman v. Town of Ashland, 117 Va. 692 (1915); Board of Trustees of the Graded Free Colored Common Schools of Mayfield, Ky. v. Board of Trustees of the Graded Free White Common Schools of Mayfield, 181 Ky. 810 (1918); Board of Trustees of the Graded Free Colored Common School of Mayfield, Kentucky v. Board of Trustees of the Graded White Common School of Mayfield, Kentucky, 181 Ky. 303 (1918); Trustees of Graded Free Colored Common Schools of the City of Mayfield, Kentucky v. Trustees of the Graded Free White Common Schools of the City of Mayfield, Kentucky, 180 Ky. 574 (1918); Harris v. City of Louisville. Buchanan v. Warley, 165 Ky. 559 (1915); Thornton v. White, 162 Ky. 796 (1915); Peoples Pleasure Park Co. v. Rohleder, 109 Va. 439 (1909); Peoples Pleasure Park Co. v. Rohleder, 109 Va. 439 (1908); Hooker v. Greenville, 130 N.C. 472 (1902); Hickman College v. Trustees Colored Common School Dist, 111 Ky. 944 (1901); Crosby v. Mayfield, 133 Ky. 215 (1909); Board of Education v. Earlington Graded School, 171 Ky. 125 (1916); Moss v. Mayfield, 186 Ky. 330 (1919); Epps v. Thomas, 131 Ga. 64 (1908); Illinois Central Railroad Company v. Samuel Dunnigan, 95 Miss. 749 (1909). For examples of civil cases over racial justice backed by national organizations, see the 1901 to 1904 litigation in the Louisiana case of Ryanes v. Gleason, backed by the Afro-American Council, and the Virginia civil case brought by Barbara Pope in 1906 challenging her fine in a criminal case over transportation segregation that was backed by the Niagara Movement. See Carle, Defining the Struggle, 126–128, 205–206.

(47.) According to Goins’s appeal, such a tax to pay for a school that “only children of the white race can attend” violated the 14th Amendment of the US Constitution and “[abridged] the privileges … of the negro citizens of Jasper county.” McFarland v. Goins, 96 Miss. 67 (1909). Other racial discrimination cases that were heard before state supreme courts in the eight states examined between 1900 and 1920 that involved education included Lowery v. Board of Graded School Trustees, 140 N.C. 33 (1905); Board of Trustees of the Graded Free Colored Common Schools of Mayfield, Ky. v. Board of Trustees of the Graded Free White Common Schools of Mayfield, 181 Ky. 810 (1918); Board of Trustees of the Graded Free Colored Common School of Mayfield, Kentucky v. Board of Trustees of the Graded White Common School of Mayfield, Kentucky, 181 Ky. 303 (1918); Trustees of Graded Free Colored Common Schools of the City of Mayfield, Kentucky v. Trustees of the Graded Free White Common Schools of the City of Mayfield, Kentucky, 180 Ky. 574 (1918); Hickman College v. Trustees Colored Common School Dist, 111 Ky. 944 (1901); Board of Education v. Earlington Graded School, 171 Ky. 125 (1916).

(48.) John Coleman’s suit also argued that the Ashland Town Council did not have the authority to pass such an ordinance. Hopkins and Others v. City of Richmond, and Coleman v. Town of Ashland, (p.293) 117 Va. 692 (1915). For other racial discrimination cases appealed to southern state appellate courts between 1900 and 1920 involving residential segregation, see Glover v. City of Atlanta, 148 Ga. 285 (1918); Harden v. City of Atlanta, 147 Ga. 248 (1917); Carey v. City of Atlanta, 143 Ga. 192 (1915); Harris v. City of Louisville. Buchanan v. Warley, 165 Ky. 559 (1915); Peoples Pleasure Park Co. v. Rohleder, 109 Va. 439 (1909); Peoples Pleasure Park Co. v. Rohleder, 109 Va. 439 (1908).

(49.) Of the twenty-three racial discrimination cases that occurred between 1900 and 1920 in the eight appellate courts examined, black litigants won ten cases at the appellate level (43 percent) and lost thirteen cases (57 percent) at the appellate level.

(50.) In general, black litigants had much more success challenging segregation in the Midwest, where Republicans still wielded political power and black men continued to exercise their right to vote. J. Morgan Kousser shows that of the 105 cases litigated over racial discrimination in schools between 1834 and 1916, 60 suits took place in the Midwest (IA, IL, IN, KS, MI, OH). During the same period, he found 12 such suits in the South (AR, GA, LA, MS, NC) and 14 such suits in border states (DC, KY, MO, OK, WV). Kousser also found that black litigants were most likely to win such suits in the Midwest: “In Iowa, Illinois, Indiana, Kansas, Michigan, and Ohio, African-Americans won 62 percent of the cases that they brought, while in every other section, they prevailed in at most 50 percent of the cases.” See Kousser, “Why Were There So Many Legal Cases on School Integration in Nineteenth-Century America?,” 13–20.

(51.) According to the Mississippi supreme court’s McFarland v. Goins decision, the town “was acting clearly within its powers, when it undertook to preserve good order within its confines by the passage of this ordinance.” McFarland v. Goins, 96 Miss. 67 (1909). In the Hopkins suit, on the question of the 14th Amendment, the opinion was extraordinarily confusing: “The Constitution forbids the abridging of the privileges of a citizen of the United States, but does not forbid the State from abridging the privileges of its own citizens.” Hopkins and Others v. City of Richmond, and Coleman v. Town of Ashland, 117 Va. 692 (1915).

(52.) Historian R. Volney Riser explains that Giles “had kept his poll taxes current, and did not suffer from any of the character disqualifications prescribed by the 1901 constitution” but as an independent, black Republican, “he was also the type of man they most feared.” For an in-depth discussion of antidisfranchisement litigation and the Giles cases, see R. Volney Riser, Defying Disfranchisement, 150–240 (the quote is from p. 150).

(53.) Riser explains that “no actual copy of the CMSAA’s initial circular survives,” but the text survives in the Montgomery Journal which “intercepted a copy and printed it verbatim, along with Giles’ accompanying cover letter.” Riser, Defying Disfranchisement, 151–152.

(54.) The state supreme court cases included Ex parte Giles, 133 Ala. 211 (1901); Giles v. Teasley et al. Board of Registrars, 136 Ala. 228 (1902); and Giles v. Teasley et al., Board of Registrars, 136 Ala. 164 (1902). The US Supreme Court decisions were Giles v. Harris, 189 U.S. 475 (1903); Rogers v. Alabama, 192 U.S. 226 (1904); and Giles v. Teasley, 193 U.S. 146 (1904). For a further discussion of this litigation and the US Supreme Court opinions, see Riser, Defying Disfranchisement, 150–240. Riser explains that the one disfranchisement case that Smith won at this time, the criminal case Rogers v. Alabama, “brought positive change to the state’s juries.” (Riser, Defying Disfranchisement, 247). Some African Americans heralded Rogers v. Alabama as a success: See, for instance, “The Negro’s Right to Sit on Grand Juries Vindicated By the United States Supreme Court,” Rising Son (Kansas City, MO), Feb. 12, 1904.

(55.) See, for instance, the US Supreme Court cases of Cumming v. Richmond Board of Education, 175 U.S. 528 (1899), and Berea College v. Kentucky, 211 U.S. 45 (1908). In Cumming, several black litigants brought a civil case protesting having to pay taxes to fund a Georgia county’s school system after the county closed their only black public high school but left the county’s white schools intact. The case was appealed from state courts to the nation’s highest court, but ended in a US Supreme Court decision in 1899 that declared that the federal government did not have the authority to interfere in a state’s schools, “except in the case of a clear and unmistakable disregard of rights secured by the supreme law of the land.” According to the US Supreme Court, segregated and unequal education was not such a “disregard for rights.” See Cumming v. Richmond County Board of Education (1899); J. Morgan Kousser, “Cumming v. Richmond County,” in Oxford Companion to the Supreme Court of the United States (p.294) (New York: Oxford University Press, 1992). Berea College v. Kentucky challenged a Kentucky law requiring segregation at all private and public colleges: It resulted in a US Supreme Court decision in 1908 upholding segregation in education. The US Supreme Court decision of Berea College v. Kentucky was an appeal from the Supreme Court of Kentucky criminal case, Berea College v. Commonwealth, 123 Ky. 209 (1906). See also Klarman, From Jim Crow to Civil Rights, 23–28.

(56.) Plessy v. Ferguson, 163 U.S. 537 (1896); Lofgren, The Plessy Case, 28–60; Thomas J. Davis, “Race Identity, and the Law: Plessy v. Ferguson,” in Annette Gordon-Reed, ed., Race on Trial: Law and Justice in American History (Oxford: Oxford University Press, 2002), 61–76; Elliott, Color-Blind Justice; Rebecca J. Scott, “The Atlantic World and the Road to ‘Plessy v. Ferguson,’ The Journal of American History 94, no. 3 (2007): 726–733; Keith Weldon Medley, We as Freemen: Plessy v. Ferguson (Gretna, LA: Pelican, 2003); Williamjames Hull Hoffer, Plessy v. Ferguson: Race and Inequality in Jim Crow America (Lawrence: University Press of Kansas, 2012).

(57.) Plessy v. Ferguson, 163 U.S. 537 (1896); Davis, “Race Identity and the Law,” 72–74; Klarman, From Jim Crow to Civil Rights, 17–23, 48–52; Riegel, “The Persistent Career of Jim Crow,” 17–40; Medley, We as Freemen: Plessy v. Ferguson; Lofgren, The Plessy Case, 148–195.

(58.) See, for instance, Williams v. Mississippi, 170 U.S. 213 (1898), which upheld disfranchisement in Mississippi.

(59.) Out of the 210 total civil cases between white and black litigants from 1865 to 1899, 108 involved former masters and former slaves (51 percent of suits).

(60.) Barge v. Weems, 109 Ga. 685 (1900).

(61.) Barge v. Weems, 109 Ga. 685 (1900).

(62.) Of 220 total cases between black and white litigants in eight southern states between 1900 and 1920, 63 cases involved fraud (29 percent of suits) and 97 involved personal injury (44 percent of suits). Cases involving fraud or personal injury therefore made up 160 of the 220 total cases, or a combined 73 percent of all cases involving black litigants between 1900 and 1920. See Table B.9.

(63.) As US society shifted, shifts would also occur in state supreme courts’ overall caseloads. One study found that during the first half of the twentieth century, state supreme courts would begin to hear more cases not directly dealing with the market, including a greater proportion of suits involving public law, personal injury and criminal cases. The same study found that between 1905 and 1935, 19 percent of a sampling of cases from the sixteen state supreme courts involved debt collection, 16 percent of cases made claims of personal injury, 15 percent of cases took place over property, 12 percent were criminal cases, and 7 percent of cases involved inheritance and estates. These trends took place in appellate courts throughout the nation—in the northern, western, and southern state supreme courts sampled. Kagan, “The Business of State Supreme Courts,” 132–143.

(64.) Out of a total of 160 fraud and personal injury cases between black and white litigants from 1900 to 1920 in the eight state supreme courts examined, 73 cases (46 percent of suits) involved black female litigants.

(65.) John W. Smith, A Treatise on The Law of Frauds and The Statute of Frauds (Indianapolis, IN: Bobbs-Merrill Company, 1907); Henry Campbell Black, A Treatise on the Rescission of Contracts and Cancellation of Written Instruments, vol. 1 (Kansas City, MO: Vernon Law Book Company, 1916); Causten Browne, A Treatise on the Construction of the Statute of Frauds (Boston: Little, Brown, and Company, 1895).

(66.) Mitchell is described in the Supreme Court of North Carolina’s opinion as “a deaf and dumb negro man.” Although the lower court ruled in favor of Mitchell’s personal injury suit, the Supreme Court of North Carolina reversed the lower court’s decision. Mitchell v. Seaboard, 153 N.C. 116 (1910). See also Archibald Robinson Watson, A Treatise on the Law of Damages for Personal Injuries, Embracing a Consideration of the Principles Regulating the Primary Question of Liability, As Well as the Measure and Elements of Recovery After Liability Established (Charlottesville, VA: Michie Company, 1901); John L. Hopkins, The Law of Personal Injuries and Incidentally Damage to Property by Railway-Trains (Atlanta, GA: Foote & Davies Company, 1902); John L. Hopkins, The Law of Personal Injuries and Incidentally Damage to Property by Railway-Trains (Atlanta, GA: Harrison Company, 1912). In addition, see statutes (p.295) on fraud during this time, such as “Statute of Frauds,” in Park’s Annotated Code of The State of Georgia, vol. 2 (Atlanta, GA: Harrison Company, 1918), 1617–1631.

(67.) For an examination of the projection of antebellum ideas about slaves on twentieth-century African Americans, see Micki McElya, Clinging to Mammy: The Faithful Slave in Twentieth-Century America (Cambridge, MA: Harvard University Press, 2007). For an analysis of the Lost Cause as expressed in a cult of memory and reunion with the North, see David Blight, Race and Reunion: The Civil War in American Memory (Cambridge, MA: Belknap Press of Harvard University Press, 2001); W. Fitzhugh Brundage, “White Women and the Politics of Historical Memory in the New South, 1880–1920,” in Jumpin’ Jim Crow, 115–139. For an examination of the impact of memory on Alabama supreme court judges in the Reconstruction and post–Reconstruction periods, see Glory McLaughlin, “A ‘Mixture of Race and Reform’: The Memory of the Civil War in the Alabama Legal Mind,” Alabama Law Review 56 (Fall 2004): 285–309; Royal Dumas, “The Muddled Mettle of Jurisprudence: Race and Procedure in Alabama’s Appellate Courts, 1901–1930,” Alabama Law Review 58 (2006): 417–442. In her examination of black women in the Georgia criminal justice system, Sarah Haley also documents the advocates of black women presenting them as particularly ignorant in clemency petitions, which were then approved by white clemency boards. See Haley, No Mercy Here, 17–21.

(68.) Black litigants served as plaintiffs during Reconstruction (1865–1877) in 69 of 108 civil appellate cases (64 percent of suits). In the post–Reconstruction period (1878–1899), they were plaintiffs in 76 of 104 such cases (73 percent of suits). See Table B.14.

(69.) Between 1900 and 1920, black southerners were plaintiffs in 184 of 220 cases (84 percent of suits). See Table B.14. In civil appellate cases involving fraud and personal injury between 1900 and 1920, the black litigants were the plaintiffs in 143 of 160 cases (89 percent of suits).

(70.) Although 67 percent of suits took place between former slaves and their former masters or their heirs between 1865 and 1877 and 35 percent of suits took place between former slaves and their former masters or their heirs between 1878 and 1899, between 1900 and 1920, only 4 percent of suits took places between parties who had a relationship during slavery. See Table B.11.

(71.) In this suit, a young African American woman had inherited a piece of land in Little Rock. The owners’ agent allegedly misrepresented the value of the land and she sold it for $300, although witnesses testified that the true value was between $900 and $2,500. When she discovered the land’s true value, she filed an action to set the deed aside. Storthz v. Williams, 86 Ark. 460 (1908).

(72.) Sutton v. Dunn, 176 N.C. 202 (1918).

(73.) See Nan Elizabeth Woodruff, American Congo: The African American Freedom Struggle in the Delta (Cambridge, MA: Harvard University Press, 2003), 15–18.

(74.) As this article examines only lower-court cases that were accepted by a higher court on appeal, there is not a representative sample to judge how often black litigants won their cases in lower courts. Of the lower-court cases appealed to the higher court, black litigants won 129 of 220 cases at the lower-court level (59 percent of suits) between 1900 and 1920. In 23 percent of the cases they won at the local level (32 of 138 cases), a judge had made the ruling, and in 65 percent of the cases they won (90 of 138 cases), juries had made the decision. The cases not accounted for here were decided by both judges and juries at the lower-court level or it could not be determined what body made the lower-court judgment. Judges still influenced jury trials in a number of cases, even directing juries to decide for or against a black litigant. See Tables B.17 and B.18.

(75.) Of the 220 suits involving white and black litigants between 1900 and 1920, black litigants won 138 cases (63 percent of suits).