CHAPTER X

NEGRO IN COURT ROOM

The Negro goes into a court room in one or more of six capacities, namely: as spectator, witness, juror, party to a suit, attorney, or judge. It is in each of these capacities that the Negro in the court room is to be considered, but some of them permit of only brief mention. How the Negro actually fares in the court room—whether he gets justice as often as the white person does, whether his testimony has as much weight with the jury and court as that of the white witness, whether the Negro attorney or judge is accorded as much courtesy as the white man in a similar position—would make an interesting and profitable study, but such a study is largely outside the field of this investigation. It should be kept in mind now, as in the previous chapters, that only those distinctions are considered which have come within the pale of the law since 1865, either in the form of statutory enactment or judicial decision. Where mention is made of some of the actual extralegal race distinctions in the court room, it is only for illustration.

AS SPECTATOR

The court room, while the court is in session, is open to all citizens, regardless of race or color. No instance has been found either in the statutes or judicial reports of one’s admission to or exclusion from the court room being dependent upon his race or color. It is to be noticed, however, in Southern court rooms that the spectators are separated by race, Negroes usually occupying seats on one side of the room and white people on the other. This must be entirely a matter of custom, as no case has been found of such separation being required by law or ordinance. While this point has not been deemed important enough for a special investigation, it is presumed that one will find the races separated in the court room in those States or communities where they are separated in other places—as in public conveyances, schools, and churches.

A Negro in the South, as elsewhere, has, legally and actually, as good an opportunity to observe court proceedings as a white person, though custom may require him to sit in a different part of the court room from that occupied by the latter.

AS JUDGE

Little within the scope of this chapter can be said of the Negro as a judge. There are cases still in the North of Negroes sitting on the bench, mostly in lower courts, and there may be instances, here and there, in the South, of Negroes holding judicial offices. Certainly, the Negro elector is eligible, both under Federal and State Constitutions, to hold a judgeship. Whether or not there are Negroes on the bench in a given State is not determined by the legislatures or the courts, but by the appointing power or by the choice of the people at the polls.

AS LAWYER

A Negro is eligible to practice law in every State; that is, nothing to the contrary appears in any of the State or Federal statutes now in force. Negroes may be admitted to the bar everywhere upon proving the same qualifications and passing the same examinations as required of other applicants for license. But this has not always been so. The privilege of practicing law in Iowa,[589] for instance, was, until 1870, restricted to white males. In that year it was extended to women and to members of other races than the white. Only one State appears to have considered it needful to guarantee by statutory enactment the right to practice law to the Negro. An act of the Colorado[590] legislature in 1897 reads: “No persons shall be denied the right to practice as aforesaid on account of race or sex.”

In 1877, a Negro, with a license to practice law in Massachusetts and the Circuit and District courts of the United States in the city of Baltimore, applied for a license to practice in the State courts of Maryland. The laws of Maryland[591] of 1872 limited the privilege of admission to the bar to white male citizens. The Negro brought suit because he was refused admission to the Maryland bar, and the Court of Appeals of Maryland[592] held that the State had a right to limit the privilege of practicing law to white males, holding that such a limitation did not violate the Fourteenth Amendment. The court said, in part: “The privilege of admission to the office of an attorney cannot be said to be a right or immunity belonging to the citizen, but is governed and regulated by the Legislature, which may prescribe the qualifications required and designate the class of persons who may be admitted. The power of regulating the admission of attorneys in the courts of a State is one belonging to the State, and not to the Federal Government. As said by Mr. Justice Bradley in Bradwell’s case:[593] ‘In the nature of things it is not every citizen of every age, sex and condition that is qualified for every calling and position. It is the prerogative of the legislator to prescribe regulations founded on nature, reason and experience, for the due admission of qualified persons to professions and callings demanding special skill and confidence. This fairly belongs to the police power of the State.’” According to the opinion in this case, which has not been overruled so far as has been found, a State legislature may, in the exercise of its police power, limit the privilege of practicing law to white males or to white people, and thus debar the Negro altogether. In the latest collection of Maryland laws, however, that of 1904, no mention is made of race in the prescribed qualifications for admission to the bar, but no express repeal has been found in the annual statutes of the law of 1872 which limited the privilege of practicing law to white males. The presumption is, however, that Maryland, in common with the other States, now admits Negro applicants on the same terms as white.

It is generally known that Negro lawyers in the Southern States are few, and it is considered that the field there for the Negro lawyer is not promising. There were seven hundred and twenty-eight Negro lawyers in the United States in 1900. The following notice in _The Emmanuel Magazine_ of July 3, 1909, a monthly publication by a Negro in Washington, North Carolina, is interesting in this connection: “Mr. E. W. Canady, a respectable colored lawyer of Durham, N. C., not long since received three thousand four hundred dollars for his service at the bar in representing one case. This speaks more for him than anything else possibly could. It shows the public’s confidence in his ability both as a lawyer and a gentleman of integrity. It also shows that, at least in some cases, a Negro can get justice in a Southern court, not only for himself, but for others. The profession of law is the most difficult one a colored man can follow in the South, because he must deal with white judges, white jurors, white lawyers, and, sometimes, white witnesses, and a public sentiment which is created by the whites. If he keep his soul well equipoised and act gently and manfully—not bootlicking, but seeking the peace of the city wherein he dwelleth, as Jeremiah advised the Jews of Babylon to do, he can fare equally as well, if not better, in the South as he can in the North. I was not a little surprised when I asked Mr. Canady how the judges treated him and he said, ‘Oh, they’ll treat you all right, if you act rightly; they are bound to follow the law, you know.’ This should encourage more young men to take up this profession.”

AS WITNESS

When one comes to the Negro as a witness, he finds much legislation and many judicial decisions, but they are confined largely to the first years after Emancipation; that is, to the years during which the rights and privileges of the Negro as a freeman were being defined and fixed. The Negro slave had been either deemed incompetent as a witness, or, if deemed competent, his testimony was admitted only in certain actions.

In 1866, a white man in Kentucky was indicted for entering the house of a Negro and committing larceny. At the time a Negro in that State could not testify against a white man. A Circuit Court[594] of the United States decided that it could take jurisdiction of this case under the Civil Rights Bill of 1866, holding that the Negro, as a citizen, had the right to be a witness in court. This appears to be the only case in which the Federal court has adjudicated upon the right of a Negro to testify.

A law of Alabama[595] of 1865 made Negroes competent to testify only in open court and only in cases, civil or criminal, to which a freedman, free Negro, or mulatto, was a party. This was reënacted in 1867.[596] In 1886, a white man in Mobile was tried for the murder of a Negro. All the witnesses for the prosecution were Negroes, and all for the defendant, white people. The question of the color of witnesses was raised, and the city court of Mobile charged: “... it is immaterial whether the witnesses were white or black, if you believe beyond a reasonable doubt that black witnesses are telling the truth, it is as much your duty to convict on their evidence as though they were white.” There was an exception to this charge, but the Supreme Court of Alabama[597] overruled the exception. The present law of Alabama seems to be that the color of the witness is immaterial in determining his competency.

The Supreme Court of Arkansas,[598] in 1869, held that by the Civil Rights Bill of 1866 the laws prohibiting Negroes from testifying became inoperative. No other case on the point seems to have arisen in the State.

The Constitution[599] of Florida of 1865 permitted Negroes to testify only in proceedings founded upon injury to a Negro or in cases affecting the rights and remedies of Negroes. A statute[600] of the same year, relative to testimony in general, provided that the testimony of Negroes should not be taken by deposition in writing or upon written interrogation, or “otherwise than in such manner as will enable the court or jury to judge the credibility of the witness.”

The Constitution[601] of Georgia of 1865 made it the duty of the general assembly to provide laws prescribing in what cases the testimony of Negroes should be admitted in the courts. This is the only reference to the Negro as a witness found in the Georgia statutes or court reports.

Kentucky,[602] in 1865, provided that Negroes and mulattoes should be competent witnesses in all civil proceedings in which Negroes or mulattoes were the only parties interested in the issue, and in all criminal proceedings in which Negroes or mulattoes were the defendants. In 1867, the Court of Appeals of Kentucky[603] held that the law of Kentucky prohibiting a Negro from testifying against a white person was still in force and was not rendered inoperative by the Civil Rights Bill of 1866.

The Constitution[604] of Maryland of 1867 provided that no person should be incompetent as a witness on account of race or color unless thereafter so declared by an act of the general assembly. The general assembly appears not to have acted.

Mississippi,[605] in 1865, provided that freedmen, free Negroes, and mulattoes, should be competent in all civil cases to which a freedman, free Negro, or mulatto was a party, and in criminal cases in which the crime charged was alleged to have been committed by a white person upon a freedman, free Negro, or mulatto. But in 1867, Negroes were given the right to testify on the same terms as white people.[606] In 1865, South Carolina[607] declared that Negroes might testify in cases to which a person of color was a party. Tennessee,[608] the same year, provided that Negroes and Indians should be competent as witnesses “in as full measure as such persons are by an act of Congress competent witnesses in all the courts of the United States.”

The Constitution[609] of Texas of 1866 contains the following section: “Africans and their descendants shall not be prohibited, on account of their color or race, from testifying orally, as witnesses, in any case, civil or criminal, involving the right of injury to, or crime against, any of them in person or property, under the same rules of evidence that may be applicable to the white race; the credibility of their testimony to be determined by the court or jury hearing the same; and the legislature shall have power to authorize them to testify as witnesses in all other cases, under such regulations that may be prescribed, as to facts hereafter occurring.” In pursuance of this authority, the legislature[610] enacted that persons of color should not testify except where a prosecution was against a person of color or where the alleged offence was against the person or property of a person of color. But in 1868, the Supreme Court[611] of Texas held that the first section of the Civil Rights Bill gave Negroes the right to testify, and in 1871 the legislature[612] said that in the courts of that State there shall be no exclusion of any witness on account of color.

Virginia,[613] in 1866, provided that Negroes and Indians should be competent to testify in cases in which a Negro or Indian was a party. The testimony of Negroes had to be “_ore tenus_, and not by deposition.” The next year, this law was repealed and a statute[614] enacted that colored persons should be competent to testify “as if they were white.”

Thus far the legislation on Negro testimony in the Southern States only has been given. Similar questions have arisen in some of the other States. Thus, by an early statute of California[615] “no Indian, or person having one-half or more Indian blood, or Mongolian, or Chinese,” was permitted to give evidence in favor of or against a white person. The Supreme Court[616] of the State held in 1869 that this statute violated the Civil Rights Bill and was therefore null and void. A minority of the court, however, dissented on the ground that the Civil Rights Bill itself was unconstitutional as interfering with the domestic relations of citizens.

A law of Indiana[617] of 1865 provided that all persons of competent age, without distinction as to color or blood, should be competent as witnesses, but provided that no Negro or mulatto who had come, or who should thereafter come into this State in violation of the thirteenth article of the Constitution of the State (prohibiting the immigration of free Negroes) should, while said article continued in force, be competent as a witness in any case in which a white person was a party in interest. It also provided[618] that where a Negro, Indian, or person excluded on account of mixed blood was a party in the case, his opponent should be excluded. Nevada,[619] the same year, gave Negroes the right to testify, but not in favor of or against a white person, and also provided that the credibility of such Negro, black, or mulatto person should be left entirely with the jury. Washington,[620] in 1866, provided that no one should be incompetent as a witness “by reason of having Negro blood.” But in 1869, the legislature[621] said that Indians or persons having over one-half Indian blood should not be competent to testify in an action or proceeding to which a white person was a party. West Virginia[622] passed a law in 1866 that no person should be incompetent as a witness on account of race or color.

During the first years after Emancipation, the States were very doubtful of the Negro’s fitness as a witness. In saying, as many of them did, that he could be a witness only in cases in which a Negro was a party, they were following the “Black Laws” before the War, to which reference was made in the chapter on “The Black Laws of 1865–68.” That they were doubtful of the testimony of the Negro is shown by the provision of the act that the Negro’s credibility should be the subject of a special charge by the court and that his testimony should be given orally. It has been seen that some of the States soon repealed their laws discriminating against the Negro as a witness, and that others enacted statutes allowing him to testify upon the same terms and conditions as a white person. In some of the States, the records do not show that the right to testify in court has yet been given to the Negro. But it must be taken as settled that, even in those States which are silent on the subject, the Negro does have the same right to testify as the white person. How much weight is actually given to his testimony is a matter not of law, but of fact, to be determined by the trier of fact, or jury, as the case may be. It may be said, in short, that, at present, the right of the Negro to testify in court is precisely co-extensive with the right of the white person.

AS JUROR

Most of the legislation and suits concerning the Negro as a witness came during the years between 1865 and 1870. Since then, the right of the Negro to testify in court has been generally undisputed. With the Negro as a juror, it has been different. There has not been a great deal of legislation about the Negro as a juror, not even during the years 1865–70 which were so prolific of race legislation. But the court reports from 1865 have been abundantly supplied with cases that have to do with the Negro as a juror, not referring so much to his right to serve as to his actual service on the jury. First, reference will be made to the legislation on the topic, then a number of cases will be discussed, most of which have turned upon a few fundamental principles of constitutional law, and, finally, a word will be said of Negro jury service as it actually exists.

The fourth section of the Civil Rights Bill[623] of 1875 reads: “That no citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude, and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid shall, upon conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than five thousand dollars.” As was seen in the previous chapter on the civil rights of Negroes, the first sections of the Civil Rights Bill were declared unconstitutional in 1883. But, as will be seen in the discussion of the cases that have arisen about the Negro as a juror, the section quoted above has stood the test of constitutionality and is still a part of our Federal statute law.

When the States outside the South saw, in 1883, that the Federal Government was impotent to secure civil rights to Negroes, they began to enact Civil Rights Bills of their own, which virtually copied the Federal statutes of 1875. The following States enacted statutes practically the same as the Federal law referring to jury service: Indiana,[624] in 1885; Michigan,[625] in 1885; New York,[626] in 1895; Ohio,[627] in 1884, and Rhode Island,[628] in 1885. The only difference between these State statutes and the Federal statute is in the punishment for keeping a person off the jury because of his race or color. Indiana and Michigan impose a fine of not less than one hundred dollars or imprisonment of not more than thirty days, or both; New York imposes a fine of from one hundred dollars to five hundred dollars or imprisonment from thirty to ninety days, or both; Ohio imposes a fine from fifty dollars to five hundred dollars or imprisonment between thirty and ninety days, or both; Rhode Island imposes a fine not to exceed one hundred dollars. This is practically all of the jury legislation outside the South, which has been found.

In Arkansas,[629] in 1867, a law granting certain rights to Negroes had the following provision: “That nothing herein contained shall be construed to repeal or modify any statute or common law usage of this State respecting ... service on juries.” Though nothing is said of it, one may infer that this meant that Negroes were not to sit on juries. A Louisiana[630] law of 1880 states that, in the selection of jurors, “there shall be no distinction made on account of race, color, or previous condition.” This State at the time was in the hands of the Reconstructionists. Mississippi,[631] in 1867, provided that freedmen should not be competent to serve as petit or grand jurors. A law of Tennessee[632] of 1866, giving Negroes the right to testify, had the provision that it should not be construed to give colored persons the right to sit on juries in that State. The same year, a law[633] repealing certain other acts had the provision that nothing in the act should be construed to admit persons of color to serve on the jury. But in 1868, the Negroes of Tennessee[634] were given full rights in this respect. This appears to be all of the legislation as to Negro jurors in the South between 1865 and the present.

That the statute of 1875 prohibiting the exclusion of persons from jury service on account of race, color, or previous condition of servitude is constitutional, has been decided in a series of cases before the Supreme Court of the United States.[635] The mere fact that no Negroes are on a certain jury does not indicate that the Fourteenth Amendment, under which all these jury cases arise, has been violated; it must be shown that the Negroes were kept off the jury consciously by State officials because of their race, color, or previous condition.[636] The Fourteenth Amendment is violated, however, when the officers of the State keep Negroes off the juries for these causes. The Supreme Court[637] of the United States said in 1899: “Whenever by an action of a State, whether through its legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied to him contrary to the Fourteenth Amendment to the Constitution of the United States.”

A custom seems to have grown up among some lawyers, particularly in the South, to move to quash the indictment whenever a Negro is on trial for a crime and there are no Negroes on the grand jury. With almost absolute uniformity, the State courts have held that there is no ground for quashing the indictment unless it is shown that Negroes were kept off the juries purposely and because of their race or color.[638] The cases show also that, if a Negro is kept off the grand jury because of his race, there is ground for quashing the indictment. Texas has furnished far more of these jury cases than any other Southern State. Wherever the jury commissioners have betrayed in any way the fact that they kept Negroes off the juries because of their race, the indictment has been quashed. A few instances will suffice. In one case the commissioners said that they did not put Negroes on the jury because they considered them unfit; this was held[639] to be in violation of the Fourteenth Amendment. When, again, they said that they kept Negroes off the juries because their presence “would be offensive to the white jurors,” the indictment was quashed.[640] In a county of 11,000 voters in Texas, about 1,000 of them were Negroes, of whom 600 or 700 were competent to be jurors. No Negro had ever been on a jury there. The commissioners admitted that they would not put a Negro on if they knew it. The indictment was quashed.[641] In another case,[642] they said they would not put Negroes on juries because it would create a conflict between the races which would injure the Negroes. This was held a sufficient admission to quash the indictment. In a case arising as late as 1903, the commissioners undertook to satisfy the Fourteenth Amendment by putting on a Negro. They put on a Negro who had either moved out of the county or was dead. This was held to be enough of a race discrimination to quash the indictment.[643]

No matter how large a percentage of the population is colored, if it is not proved that Negroes were kept off the jury because of race or color, there is no ground for objection. Thus, it was found that a Negro had never been known to sit on a grand jury in Bexar County, Texas, where there were 7,000 or 8,000 possible jurors, of whom 600 or 700 were colored. It was not proved, however, that they were kept off on account of race or color, and it was held that there was no ground for quashing an indictment.[644]

The following interesting case arose in Utah in 1900: A white person refused to serve on a jury with a Negro, and wrote a note making a complaint. The Negro was thereupon excluded from the jury. Later, the Negro brought an action against the white man to recover damages to the extent of the jury fees. The court held[645] that, while color was not a test of one’s fitness to be a juror, a written objection to serve on a jury with a Negro is no ground for an action for damages by a colored man.

The latest case of race distinction in juries comes from Oklahoma. There were four Negroes on a jury, and for that reason the judge discharged the jury. He said that the State had separate cars, separate schools, and separate tables for Negroes and whites, and “he would not insult white men by making them serve on a jury with Negroes.” The case is so recent as to be reported, as yet, only in the newspapers.[646]

The constitutional right of the Negro to serve on a jury or to be tried before a jury composed, in whole or in part, of Negroes, is well expressed in a recent Texas case[647] as follows: “It is not a question as to the right of a Negro, or any number of Negroes, to sit on a grand jury, that the Fourteenth Amendment to the Constitution of the United State was intended to provide for; but it was intended, where a Negro was on trial, to prevent discrimination against the Negro race in the formation of the grand jury, which presented the indictment, and only in case Negroes are intentionally excluded from the grand jury is he denied the equal protection of the laws. It was never intended by the Fourteenth Amendment to guaranty a Negro defendant a full Negro grand jury, or to guaranty to him any particular number of grand jurors, but it was intended to prevent intentional exclusion from the grand jury.”

_Actual Jury Service by Negroes in South_

In treating the Negro as a juror, the writer departed from the habit of confining his discussion to the race distinctions manifested in statutes and judicial reports. As he went through the statutes and reports, these questions arose in his mind: Do Negroes actually serve on the juries in those communities where they are numerous? If so, what satisfaction have they given? In order to obtain answers to these questions, he sent out letters to the clerks of court in every county in the Southern States in which Negroes constituted one-half or more of the population in 1900. Over three hundred letters were sent out containing the following inquiry: “I wish to know to what extent Negroes actually serve on juries, how Negro jurors are regarded by the court and the people at large, whether the number of colored jurors has increased or decreased in late years, what has been the experience of your county as to the satisfaction of colored jurors?” Of course, as many replies were not received; but the replies that were received indicate the extent of Negro jury service in the Southern States. These replies will be quoted from freely in each case, the State and the number of Negroes and white people in the particular county will be given, but not the name of the county.

_Alabama._—County No. 1, 10,000 white people, 13,000 Negroes: “Negroes are not allowed to sit upon juries in this county. It sometimes happens that names of Negroes are placed in our jury-box by mistake on the part of the jury commissioners, and are regularly drawn to serve as jurors; this, however, is a very rare occurrence. Once in the past four years, a Negro was drawn as a grand juror (by mistake) who appeared and insisted upon the court’s impaneling him with other jurors, which was done in accordance with law, the court having no legal right to discharge or excuse him. My recollection is he served two days, when he was taken out at night and severely beaten, and was then discharged on his own petition by the court. This will convey to your mind that Negro jurors are not very wholesomely regarded and tolerated in this county. The fact is, Negroes have never been or never will be allowed to sit on juries in this county.”

County No. 2, 5,000 white people, 21,000 Negroes: “I have lived in this county for more than sixty-six years, and we have never had a Negro juror in that time, nor do I ever expect to see one in the jury-box in this county. Our adjoining counties have all had them, a number of years ago.”

County No. 3, 5,000 white people, 27,000 Negroes: “Negroes do not serve on juries in our courts. Such a state of affairs would be considered by the people of this county as farcical. The Lord defend us from having jurors of a race of people who are absolutely without regard for an oath.”

_Arkansas._—County No. 1, 1,800 white people, 12,600 Negroes: “No Negroes serve in this county on regular juries. Sometimes when hard to obtain white jurors, a few Negroes may be taken in cases in J. P. Courts, but not often. Even this habit is smaller than formerly, falling off every year. Colored jurors [are] not looked upon as intelligent, and very few as honest and possessing integrity, and they, as a rule, are also uneducated.”

County No. 2, 14,000 white people, 29,800 Negroes: “No Negroes have served on juries in the court of this county since 1894. Prior to that time it was a common thing for them to be in the majority. I believe the Negroes are fairly well pleased with the verdicts of all white jurors, as the question is nearly always propounded to the juror, when it is a Negro defendant: ‘Would you give the defendant the same consideration as if he was a white man?’”

_Florida._—County No. 1, 17,000 white people, 22,000 Negroes: “It has been many years since a Negro sat upon a jury in this court, and the probability is, it will be many more. Negroes are not regarded as good jurors, and I believe it to be a fact that a Negro would prefer being tried by a white jury than a mixed jury, or a jury composed wholly of Negroes; this applies to both civil and criminal matters.”

County No. 2, 11,000 white people, 12,000 Negroes: “Negroes do not sit on the jury in this county, and have not since the days of ‘Carpet-Bag Rule.’ I do not think a county in this State permits a Negro juryman.”

County No. 3, 6,000 white people, 8,000 Negroes: “Negro jurymen or other officers are a thing of the past in our county and State. The oldest person can hardly recall the time when we had such in our county, with the exception of a very few years just after the war.”

County No. 4, 9,000 white people, 15,000 Negroes: “... in the circuit court of the State it is very seldom that a Negro serves on the jury. Negroes, as a rule, are not good jurors, for the reason that they are usually very ignorant and can be easily influenced by others in the rendering of their verdict. The Negro jurors, so far as the State courts are concerned, are almost eliminated. In the Federal courts of the State, a large number of Negroes serve on the juries....”

County No. 5, 2,300 white people, 2,700 Negroes: “The laws of this State require that the county commissioners select not less than 290 nor more than 310 ‘persons of approved integrity, fair character, sound judgment and intelligence’ to serve as jurors. Therefore, because most of the elder Negroes are illiterate and because most of the younger ones that remain here are of other than fair character, there are but few Negroes, about one per cent., whose names are drawn or selected to go into the jury-box. If one is drawn as juror ... he serves as such juror, and no one has ever objected to one so far as I know of. My experience covers a period of ten years, during which time ... we have had only two Negroes drawn as jurors. No person has ever appealed a case on account of not having a Negro on the jury, nor has there been anything said outside on account of the practical elimination of the Negro from jury duty.”

_Georgia._—County No. 1, 5,000 white people, 24,000 Negroes: “No Negroes serve on our jury. There are no Negro names in the jury-box.”

County No. 2, 5,900 white people, 6,800 Negroes: “No Negroes have ever been placed in the jury-box in this county. They are not regarded as competent or reliable as jurors, hence they have not [been] tried as such in this county.”

County No. 3, 5,000 white people, 12,000 Negroes: “Negroes do not serve as jurors in this county, for several reasons to wit: Incompetency, strong prejudices, superstitiousness, and general unfitness in regard to equity.... It happens frequently they are drawn and serve on juries in what we term here United States courts....”

County No. 4, 1,500 white people, 8,800 Negroes: “Negroes do not serve on the juries in this county.... None of the Negroes in this county have ever been placed in such [jury] boxes.”

County No. 5, 4,000 white people, 9,000 Negroes: “We do not have Negroes as jurors; we tried them and found them incompetent and otherwise disqualified.”

County No. 6, 7,000 white people, 11,000 Negroes: “No Negroes serve on the jury in this county.”

County No. 7, 4,800 white people, 5,000 Negroes: “Not a blooming one [Negro juror], and not likely to be.”

County No. 8, 2,000 white people, 5,800 Negroes: “There are no Negro jurors in this county.”

County No. 9, 6,000 white people, 7,000 Negroes: “I have lived here all my life and do not know that there has been any Negro who has served on the jury in this county. I am quite sure there has been none for the past 20 or 30 years.”

County No. 10, 2,500 white people, 4,000 Negroes: “... There has never been a Negro juror to serve in this county nor any other county surrounding this to my knowledge. We revise our jury-boxes biennially, and never have yet put a Negro’s name on the list of jurors. And I think this is the practice all over the State. I am satisfied if one should be put on any jury that the white men on would flatly refuse to serve at all....”

County No. 11, 5,000 white people, 6,000 Negroes: “... There is no record of Negroes ever serving as jurors in this county.”

_Kentucky._—No replies have come from the seven counties of Kentucky in which Negroes constitute a large percentage of the population. But the following is quoted from a letter from the Assistant Attorney General of the State: “Negro jurors are sometimes selected in various parts of the State, and I presume all over the State. Twenty years ago the custom was more prevalent than at present of putting Negroes on the juries. They were the best class of Negroes, and I am reliably informed that in various parts of the State the Negroes themselves requested to be left off the juries, which may account for the fact that the practice seems to have fallen into disuse.”

_Louisiana._—Parish No. 1, 3,900 white people, 12,700 Negroes: “... we now have no Negroes to serve on the jury here at all. Some years ago we had Negro jurors, but they proved so unsatisfactory that they were gradually dropped out and for several years [we] have had no Negroes at all.”

Parish No. 2, 8,800 white people, 11,300 Negroes: “... Negroes serve as jurors in this parish to a limited extent. The jury commissioners, when they know of an exceptionally good, honest, sober and industrious Negro, have no objections to placing his name in the jury-box. It is true, however, that the number is very limited, owing to the fact that very few Negroes will come to the standard as far as the above qualifications are concerned. Out of the 300 names in the jury-box from which we draw our juries, there are about a dozen Negroes. The Negroes as jurors do not give any trouble; they always follow the suggestions and advice of the white jurors.”

Parish No. 3, 11,000 white people, 17,800 Negroes: “... in this parish Negroes have served on both our grand and petit juries ever since the Civil War. Only the very best of our Negroes are drawn on the jury; they usually constitute about one-half of the panel on the petit jury and on the grand jury they are always represented, but in a much smaller proportion. The number of Negroes with us fit for jury service is not increasing as one would think would be the case considering their advantage for an education. They render very good service, rather prone to convict in serious personal injury cases, inflict capital punishment more readily than white juries and generally want all law enforced, especially against bad men of their own race, as they know this is their best protection.”

Parish No. 4, 2,000 white people, 13,700 Negroes: “... we have had one Negro on the petit jury the last criminal term of court in a murder case of another Negro. He is the only Negro that has sat on the jury for two or three years in our parish. We do not allow any Negroes to sit on the grand jury in our parish. There are three names of Negroes in the jury-box that we draw our general venire from, as well as I remember, possibly one or two more, but not more than that number, as well as I remember. We used to have as many Negroes as white jurors here ten or twelve years ago.”

_Mississippi._—County No. 1, 4,000 white people, 31,000 Negroes: “... Negroes do serve on juries in our circuit courts, also in our magistrate’s court. As to the extent Negro jurors serve Negro jurors are decreasing in late years. It requires certain qualifications to make them competent under the Constitution of the State of Mississippi, to-wit: Every male inhabitant of the State, except idiots, insane persons, and Indians not taxed, who is a citizen of the United States, twenty-one years old and upwards, who resided in the State two years, and one year in the election district, or in the incorporated city or town in which he offers to vote, and who is duly registered, and has never been convicted of bribery, burglary, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement or bigamy, and who has paid, on or before the first day of February of the year in which he shall offer to vote, all taxes which have been legally required of him, and is able to read any section of the Constitution of the State, or is able to understand the same, when read to him, is a qualified voter, and can be a member of either our grand jury or a petit jury if drawn as such. Our Negro jurors are either ministers or school teachers, with some farmers. The majority of them fail to pay their taxes, which disqualifies them from jury service. Negro jurors are not regarded by our courts as good jurymen, but we are compelled to use them when drawn and they are qualified to serve.”

County No. 2, 8,000 white people, 11,700 Negroes: “... Negroes sitting on jury and paying poll-tax is a thing of the past in my county. Only about 25 or 30 [are] registered. Disfranchised on educational qualification.”

County No. 3, 3,000 white people, 23,000 Negroes: “In my judicial district there are five counties, in three of which Negroes serve upon the juries in about the proportion that they are qualified under the law. The qualifications for jurors are very strict in this State and comparatively few Negroes can qualify legally. In limited numbers they make very satisfactory jurors when the rights of their people are involved. As a rule, a Negro does not like to try a white man’s case; they are much more inclined to convict Negroes charged with crime than are the white jurors, and Negro defendants always challenge Negro jurors. In the ‘Black Belt’ of Mississippi, a Negro can always receive a fair trial in the courts, but this is not so certain in the white counties. In the two counties where Negroes do not serve upon the juries, there are practically no Negroes qualified under the law, because none are registered voters.”

County No. 4, 6,000 white people, 18,000 Negroes: “We don’t have any Negro jurors at all in this county. We have very few registered Negroes in the county.”

County No. 5, 7,000 white people, 7,000 Negroes: “... Negroes do sit on juries in this county at times. They have a right to serve as jurors when they have duly registered and paid their tax and some other qualifications.... But the Board of Supervisors draws the names of 200 or more persons on the first Monday of January in each year and puts them in a box, so many for each supervisor’s district. But of late years the supervisors have not put many names of Negroes in the jury-box; therefore, we have not had very [many] Negro jurors. But we have one or two Negro jurors nearly every term of our court [circuit court]....”

County No. 6, 8,000 white people, 28,700 Negroes: “The jury law in this State makes no discrimination on account of race, color, or previous condition of servitude, and no man is excluded from the jury on account of his color.... In some of the counties of the State, the boards of supervisors select some Negroes for jury service, but the great trouble is, there are comparatively few Negroes in any county, and none in some of the counties, who can measure up to the qualifications prescribed by law.... The criminal element in Mississippi is composed largely of the Negro race, and as a matter of fact, the persons of that race charged with crime and the lawyers who defend them, the large majority of whom are of the white race, do not want Negroes on the jury, and Negroes are almost invariably challenged. If Negroes chance to be summoned on a special venire in a capital case with white men, they [the Negroes] disqualify to avoid service, sometimes by claiming that they are not registered voters, but generally by claiming that they are opposed to the death penalty.

“The following incident happened in one of our courts and may help to shed some light on the subject-matter wanted: A Negro was indicted for manslaughter. He was too poor to employ counsel to conduct his case, and it not being a capital case, the court could not appoint counsel for him, and told him so. He said he would do the best he could without a lawyer, and the court told him of his rights under the law, that he could look over the jury, and of his right to challenge four of them if he was dissatisfied with the panel as it stood. There were four Negroes on the jury, and he very promptly advised the court that he was not satisfied; the court told him he had a right to object to four of them, and he very quickly told the court, ‘Ef dat is so, dem niggers can stand aside.’ They were excused by the court, and the sheriff was ordered to complete the panel from the very best citizens to be had, which was done, the jury being, when complete, all white men. The defendant addressed the jury in his own defence and was acquitted.

“In my county ... we have had no Negroes on the jury for the past 15 years or more. We have some 30,000 colored population in this county, ... and we have only about 175 registered in the county. The board of supervisors, as a rule, does not place their names in the box, for the reason that, as above stated, they will not serve if any way out of it can be found.”

County No. 7, 1,000 white people, 4,000 Negroes: “... we have no Negro jurors in this county at all.”

County No. 8, 8,000 white people, 12,000 Negroes: “There are only 400 white qualified electors in this county, only about 30 qualified Negro electors. We never have a term of court without having several Negroes on it, besides we always have Negroes on the trial juries. It is not often that they sit on a case unless a Negro lawyer has one side of it. They do not believe in convicting one of their color. They are objectionable in every sense of the word. They are not regarded by the other members of the jury. Negro jurors are on the increase in recent years....”

County No. 9, 4,000 white people, 12,000 Negroes: “No Negroes have served on jury in this county since Republican party.”

_Missouri._—County No. 1, 24,000 white people, 4,500 Negroes: “... As far as I am informed, and certainly since I have been connected with the court here, no Negroes have served as jurors either in our court or in any justice of the peace court in this county. While probably under our laws Negroes would be legal jurors, the county court of this county will not draw them as jurors, and the Sheriff, when he has to get jurors, will not summon them. And I do not believe our lawyers here would permit a Negro to remain on a jury before which they would have to try a case. Further, I am sure that no white man here would serve on a jury with a Negro, even though his refusal to so serve would subject him to a jail sentence....”

County No. 2, 21,000 white people, 4,000 Negroes: “... we have never known of a Negro juror in ... county.”

County No. 3, 28,000 white people, 4,700 Negroes: “Negroes never have this burden heaped upon them in this State.”

County No. 4, 540,000 white people, 35,500 Negroes: “We do not have many Negro jurors. I have occupied this post but six months, and in that time we have had but two Negroes called for service. Our jury canvass is made biennially. All names placed in the wheel are taken just as drawn from the same on orders from the various divisions of court. A few of the more intelligent Negroes are placed on the jury list. I made inquiry when two Negroes served on a jury last week. The other jurors did not seem to feel any antipathy. Of course, a little surprise was manifested at seeing them in court when their names were called. Neither the attorneys for the plaintiff nor [for] the defence challenged them but accepted them on the jury. My predecessors never placed many of the Negroes’ names in the wheel as I understand from them.” This letter was from the jury commissioner, not the clerk of the court.

_North Carolina._—County No. 1, 6,800 white people, 8,000 Negroes: “... of late years very few Negroes serve on the juries in this county for the reasons that they are an illiterate race and moral character not what it should be. Further, he is easily influenced, deciding with a juror whom he may like instead of weighing the evidence and deciding accordingly. The number of Negro jurors has decreased for the past few years on account of the Negro of to-day [being] morally not as good as the Negro of several years ago.”

County No. 2, 11,000 white people, 19,000 Negroes: “I will say that Negroes do not serve on the jury in this county and have not since we, the white people, got the government in our hands. When the Republican party was in power Negroes were drawn, both regular and talis jurors, and not one out of one hundred was a competent juror, but, strange to say, when a Negro was on trial, he would always prefer the white men to try his case.”

County No. 3, 5,800 white people, 8,300 Negroes: “Negroes occasionally serve on juries in ... county, but not to as great extent as they did before the passage of the Amendment [the suffrage amendment in 1900]. The County Commissioners have been more particular about the names that are left in the box from which jurors are drawn. Only the best, most reliable and most intelligent Negroes are left in the box. Sometimes it happens that a few are called as talismen, but not then until the sheriff has exhausted his best efforts to get white men. Those called are very apt to be good, reliable men, and with a majority of white men in the jury-box are not disposed or able to do wrong. My experience as clerk for 20 years is that they make good jurors, and are apt to be disposed, in criminal actions, to execute the law even against their own race. Judge ... says that white men on the jury are everywhere disposed to lean toward a Negro litigant, especially if the Negro is of the old-class, before-the-war Negro gentleman and the white man is of these later days ‘common trash.’ I am told by the judges that in some counties the sheriffs would not dare to call a Negro as a talisman even, but, as I have said, we have them not very frequently and without complaint. I notice that the opposing lawyers are slow in challenging them when so called....”

County No. 4, 12,600 white people, 13,100 Negroes: “... Negroes do not serve on juries in our County, nor are they allowed to vote or take any part in county or municipal affairs....”

County No. 5, 5,700 white people, 6,700 Negroes: “A colored man has never served on the jury in this county, neither has a colored man ever voted in this county.”

County No. 6, 6,000 white people, 13,000 Negroes: “... We still have some Negro jurors at every term of our courts, but not near so many as in former years. Our County Commissioners ... are very careful in putting the names of only good, respectable Negroes in the jury box. The consequence is we have very few Negroes on our juries, but those we have are well disposed and the most intelligent Negroes of the county, and make very acceptable jurors. I have been struck with the fact that our lawyers in selecting the jury for both criminal and civil cases, seldom ever object to the Negroes who are on the regular panel. If this is always kept up, with only the best and most intelligent Negroes in the county in the jury-box, all will be well and our people will not object. But in former years, when sometimes the majority of the jury would be Negroes, there was great dissatisfaction.”

_Oklahoma._—County No. 1, 15,000 white people, 2,400 Negroes: “Negroes have served on both grand and petit juries nearly every term of court with the exception of the last two terms of the district court. There are some Negro names in the box, but they did not happen to be drawn by the Sheriff or myself. The men who have sat have given satisfaction to the litigants, but have been objectionable to the other jurors. Where it has come to a locked-up jury, and where they have to eat and be closely confined with the white man, I have heard some complaint. The court and officials who are all white Republicans—except the sheriff—treat Negroes with utmost fairness.”

_South Carolina._—County No. 1, 9,000 white people, 19,000 Negroes: “... I have only been in office for [the] last four years, but since I have been in office I have had a good many Negroes on juries. Year before last I had Negroes on juries three consecutive courts, and every year I have several of them. We always put the names of those qualified to act in our jury-box, but it is a bad condition of affairs when you go over the Negroes of the county, and find how few are qualified to act. The Negro jurors have increased in our section.”

County No. 2, 5,000 white people, 17,000 Negroes: “... The number of Negro jurors has decreased in late years. I do not think that a great number of Negro jurors would impress very favorably the court and the people at large.”

County No. 3, 10,000 white people, 19,000 Negroes: “... I do not remember ever to have seen a Negro on the jury in this county. I am told, however, that one served occasionally for only awhile after 1876.”

County No. 4, 18,000 white people, 41,000 Negroes: “In my experience covering ten years or more, I find it difficult to get a large array of competent jurors. We are careful and painstaking in making our lists; therefore, we never allow a Negro to serve for the reason of the general moral unfitness, and general depravity.”

County No. 6, 20,000 white people, 22,000 Negroes: “No Negroes serve on the jury in the county courts in this county.”

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

_Texas._—County No. 1, 6,300 white people, 7,800 Negroes: “... As to Negro jurors ... as a rule, in the County Court about one-tenth are Negroes, and they are rarely ever discriminated against. I do not recall a case where they have been rejected on account of race or color by white men. As a rule, they are not so acceptable to Negro litigants as they are to those of the other races. There are a larger per cent. of Negroes in the district court, and there is rarely any criticism. In fact, no prejudice exists here against them as jurors, largely from the fact that only our best Negro citizens are drawn on the juries.... I think the per cent. of Negro jurors has increased. They are simply accepted or struck off as any other citizen. I believe more are accepted by white than colored litigants. They have served on some of our very important cases....”

County No. 2, 14,000 white people, 9,000 Negroes: “We haven’t had any Negroes on the jury in ... county for several years. They used to have a few on the jury several years ago, so I have been informed, but none in the last few years.”

County No. 3, 21,000 white people, 16,000 Negroes: “We do not use Negro jurors in our State or county courts at all.”

County No. 4, 7,000 white people, 8,000 Negroes: “... It has been the rule of ... county to have Negroes on the grand and petit juries. They have given satisfaction. The colored jurors are represented by about 25 per cent. of the jurors.”

The cases quoted from in the earlier part of this chapter show even better than these letters the attitude of Texas toward Negro jurors.

_Virginia._—County No. 1, 6,700 white people, 8,500 Negroes: “No Negro juror in this court for ten years, and I don’t think that there will ever be....”

County No. 2, 3,900 white people, 5,500 Negroes: “... from reconstruction days up to ten or twelve years ago a few Negroes served on the jury of this county. My impression is ... that they made very little impression in the jury, and they were completely dominated by white men in said bodies, who were, of course, greatly in the majority. At this time no Negro jurors are drawn at all.”

County No. 3, 3,000 white people, 6,000 Negroes: “... there are no Negroes on our jury list. On several occasions when we had to make up a jury we have put a few on. The impression is here that it does not do to mix the races even in the jury-box.”

County No. 4, 17,900 white people, 19,200 Negroes: “Negroes under our Constitution are not debarred from serving as jurors in Virginia, but owing to the nature and disposition of the Negro to follow and not lead, we seldom place them on trial juries. The number of colored jurors has decreased in the last ten years.”

County No. 5, 3,200 white people, 4,900 Negroes: “Negroes have for a number of years been serving on the juries in this county, and, as far as I have been able to learn, have generally given satisfactory service.... There is hardly ever a jury drawn without some Negroes being on it. Of course, the judge selects those Negroes who are best qualified for the service.... Naturally, the number of Negro jurors is not near so large as that of the whites, for the reason ... that all jurors are selected with reference to their qualifications.”

County No. 6, 4,000 white people, 4,800 Negroes: “... we never have any Negroes on juries in my county. Haven’t had any for about fifteen years....”

County No. 7, 10,000 white people, 13,000 Negroes: “... Negroes do not serve on juries in this county, and it has been about twenty years since they did jury service here.”

County No. 8, 2,300 white people, 4,400 Negroes: “Since the adoption of the new Constitution for this State ... Negroes no longer serve as jurors in this county. Prior to that time they appeared regularly in our courts, and made good jurors in the civil as well as criminal business. Of course, in selecting them, only the best of their race were chosen. And I can’t recall an instance, with an experience of sixteen years as clerk of the courts, that any objection was ever raised against them as jurors.”

County No. 9, 5,500 white people, 5,600 Negroes: “We don’t have colored men on jury in this county.”

County No. 10, 9,000 white people, 13,600 Negroes: “Negroes are not allowed to serve on juries in this county.”

County No. 11, 1,100 white people, 3,700 Negroes: “We have not had any Negroes to serve on the jury in this county for twelve or fifteen years, and when they did, they gave very poor satisfaction.”

_Summary_: With such incomplete statistics, conclusions as to the actual service of the Negro as a juror can hardly be more than guesses. Some of the clerks of court say that the number of Negro jurors in their counties is increasing; others, that it is decreasing. Some say that race does not come into the consideration of fitness for jury service; others, that Negroes are not allowed on juries at all. Some say that Negro jurors have given satisfaction; others, that they have been scarcely more than figureheads following the lead of white jurors. Several of the clerks think that Negro litigants are reluctant to have Negro jurors sit on their cases. Some feel that Negro jurors are more prone to convict than white jurors are. It is undoubtedly true that there are not as many Negroes qualified for jury service under the laws of the Southern States as there were twenty-five years ago, say. Usually one must be an elector to be qualified for jury service. The great majority of the Negroes have been unable to satisfy the suffrage tests and have been disfranchised. They are, consequently, not electors and not eligible to serve as jurors. Hence, if the selection of jurors is conducted with absolute impartiality, there will be comparatively few Negroes retained.

SEPARATE COURTS

South Carolina appears to be the only State which has ever provided a separate court for the trial of cases in which Negroes have interests at issue. That was called the District Court, provided for by a statute[648] approved December 19, 1865, which statute was repealed September 21, 1866; so the law was in force less than a year. The seventh section of the act of forty-nine sections is: “The District Court shall have exclusive jurisdiction, subject to appeal, of all civil cases where one or both of the parties are persons of color, and of all criminal cases wherein the accused is a person of color, and also of all cases of misdemeanor affecting the person or property of a person of color, and of all cases of bastardy, and of all cases of vagrancy, not tried before a Magistrate....” The Magistrate was given jurisdiction over small disputes, controversies and complaints that arose in his neighborhood between persons of color, or between persons of color and white persons, and of petty misdemeanors committed by or toward persons of color, between master and servant, between master and apprentice, and between employer and laborer, and civil suits involving not over twenty dollars in which a person of color was a party. An indictment of a white person for the homicide of a person of color had to be tried in the regular superior court; and so had all other indictments in which a white person was accused of a capital felony affecting the person or property of a person of color. In these forty-nine sections the jurisdiction of this special court for persons of color is worked out in detail; but inasmuch as the law was in force less than a year and was one of the ephemeral “Black Laws” already considered, there is no need to go into it further. Suffice it to say that in the South at present, as in other sections, the people of all races and colors have their rights adjudicated by the same court.

DIFFERENT PUNISHMENTS

Alabama, Florida, and Georgia prescribe a heavier punishment for fornication and adultery between white people and Negroes than between members of the same race. On first consideration this appears to be a case of different punishment. As was said by the Supreme Court of Alabama[649]: “The fact that a different punishment is affixed to the offence of adultery when committed between a Negro and a white person, and when committed between two white persons or two Negroes, does not constitute a discrimination against or in favor of either race. The discrimination is not directed against the person of any particular color or race, but against the offence, the nature of which is determined by the opposite colors of the cohabiting parties. The punishment of each offending party, white and black, is precisely the same.” The constitutionality of these statutes as to cohabitation between persons of different races has been upheld by the Supreme Court of the United States.[650]

The following are instances of race distinction in the matter of offences and punishment. South Carolina,[651] in 1865, said that a person of color who committed assault upon a white woman with intent to ravish her, or who had sexual intercourse with a white woman by impersonating her husband, should be guilty of a felony “without benefit of clergy.” Florida[652] made it a capital crime to assault a white female with intent to commit rape or to be accessory thereto. Kentucky[653] provided that all persons, without distinction of color, would be subject to the same pains and penalties for felonies and misdemeanors, adding: “The laws now in force for the punishment of Negroes and mulattoes for rape on white women are hereby continued in force.” This was amended[654] in 1869, but the offence was still against white women. The race distinction in these statutes lies in the fact that heavy punishment was prescribed for an assault upon a white woman, but no such protection was accorded a Negro woman.

South Carolina made it a felony “with benefit of clergy” for a servant to steal a chattel, money, or valuable security to the value of ten dollars belonging to, or in the possession or power of his master or employer. It was an “aggravated misdemeanor” for a servant to steal such property below the value of five dollars. The servant had no right to sell any farm produce without the written evidence from his master or the District Judge or Magistrate that he had a right to do so. But all such race distinctions in the matter of punishment passed away, as did the other “Black Laws,” in 1866.

There are certain statutes as to crimes which, though they do not mention the Negro in so many words, are thought by many to have peculiar application to him. The vagrancy laws of the Southern States, for instance, have been considered as directed primarily against Negroes. Some of the States made it a crime for one to sell cotton in bags between certain hours of the night. This was probably a result of the habit attributed to the Negro of hiding cotton in the jambs of the fences and woods in the daytime to take to the cross-roads store at night. Missouri,[655] in 1903, made chicken-stealing a felony punishable by imprisonment for five years, or a fine of two hundred dollars. The next year, Kentucky[656] passed the following statute: “That if any person shall steal chickens, turkeys, ducks, or other fowls of the value of two dollars, or more, he shall be confined in the penitentiary not less than one nor more than five years.” Whether this is an indirect race distinction or not, the writer will not take it upon himself to decide.

Some of the States have enacted statutes to the effect that the punishment for the members of all races shall be the same for the same offence. Delaware[657] did so in 1867. In Mississippi,[658] in 1865, Negroes were given the right to procure the arrest of a white person; but, if the arrest were false and malicious, the Negro must pay all the costs, be fined not over fifty dollars, and imprisoned not over twenty days. In 1867, however, a statute said that Negroes must have the same punishment as white people. South Carolina,[659] as has been seen, repealed all laws prescribing different punishment for Negroes.

The following interesting bit of news is taken from an Associated Press report of July 21, 1909: “Mobile, Ala.—The commissioners to-day established a curfew law for Negroes. Commencing to-night, all the blacks must be at home or in bed at 10 P.M. Any of them caught wandering at large will be locked up. This action is due to an epidemic of hold-ups perpetrated by Negroes.”

A recent instance of race distinction in the court room seems to come from New York. A Pullman porter, named Griffin, was arrested in Montreal, charged with stealing a pocket-book, but the charge was not substantiated and he was released. He thereupon brought suit against Daniel F. Brady, who caused his arrest, and obtained a verdict for two thousand five hundred dollars in damages. The Supreme Court of New York reduced the damages from two thousand five hundred dollars to three hundred dollars. Upon an appeal by Griffin, the appellate division of the Supreme Court sustained the order reducing the damages. The following is a part of the opinion of Judge Drugo of the Supreme Court[660] whose order was sustained: “You cannot say that he [Griffin] is just the same as a white man, when you come to say how much his name will suffer. He might suffer more. But, after all, what are the probabilities about it? Is it likely that when a colored man is arrested and imprisoned he feels just as much shame as a white man of any circumstance might?

“I think if you were to take the Mayor of the city and arrest him he would feel very much more humiliated than this porter, from the fact that he was the Mayor and not a colored man, for if a colored man he might not feel quite as much humiliation and shame.

“In one sense a colored man is just as good as a white man, for the law says he is, but he has not the same amount of injury under all circumstances that a white man would have. Maybe in a colored community down South, where white men were held in great disfavor, he might be more injured, but after all that is not this sort of a community. In this sort of a community, I dare say the amount of evil that would flow to the colored man would not be as great as it probably would be to a white man.”

NOTES

Footnote 589:

Laws of Ia., 1870, p. 21.

Footnote 590:

Laws of Colo., 1897, p. 115.

Footnote 591:

Laws of Md., 1872, p. 134; 1876, p. 469.

Footnote 592:

_In re_ Taylor, 1877, 48 Md. 28, at p. 33.

Footnote 593:

Bradwell v. State, 1872, 16 Wall. 130 at p. 142.

Footnote 594:

U. S. v. Rhodes, 1866, Fed. Case No. 16,151.

Footnote 595:

Laws of Ala., 1865–66, p. 98.

Footnote 596:

_Ibid._, 1866–67, p. 435.

Footnote 597:

Dolan v. State, 1886, 81 Ala. 11, at p. 17.

Footnote 598:

Kelly v. State, 1869, 25 Ark. 392.

Footnote 599:

Art. XIV, sec. 2.

Footnote 600:

Laws of Fla., 1865, pp. 35–36.

Footnote 601:

Art. II, sec. 5, par. 4.

Footnote 602:

Laws of Ky., 1865–66, pp. 38–39.

Footnote 603:

Bowlin v. Com., 1867, 2 Bush (Ky.) 5.

Footnote 604:

Art. III, sec. 53.

Footnote 605:

Laws of Miss., 1865, p. 83.

Footnote 606:

_Ibid._, 1866–67, pp. 232–33.

Footnote 607:

Laws of S. C., 1865, p. 286.

Footnote 608:

Laws of Tenn., 1865–66, p. 24.

Footnote 609:

Art. VIII, sec. 2.

Footnote 610:

Laws of Texas, 1866, p. 59; see Laws of Texas, 1866, pp. 131–32.

Footnote 611:

_Ex parte_ Warren, 1868, 31 Texas 143.

Footnote 612:

Laws of Texas, 1871, p. 108.

Footnote 613:

Laws of Va., 1865–66, pp. 89–90.

Footnote 614:

_Ibid._, 1866–67, p. 860.

Footnote 615:

Statutes of Calif., 1863, p. 69.

Footnote 616:

People v. Washington, 1869, 36 Calif. 658.

Footnote 617:

Laws of Ind., 1865, p. 162.

Footnote 618:

_Ibid._, 1865, p. 161.

Footnote 619:

Laws of Nev., 1864–65, p. 403.

Footnote 620:

Laws of Wash., 1866, p. 91.

Footnote 621:

_Ibid._, 1869, p. 103.

Footnote 622:

Laws of W. Va., 1866, p. 85.

Footnote 623:

Stat. L., 336, chap. 114, par. 4.

Footnote 624:

Burns’s Annotated Revisal of 1901, II, sec. 3293.

Footnote 625:

Pub. Acts of Mich., 1885, p. 132.

Footnote 626:

Laws of N. Y., 1895, I, p. 974.

Footnote 627:

Laws of O., 1884, pp. 15–16; 1894, pp. 17–18.

Footnote 628:

Acts and Resolves of R. I., 1884–85, p. 171.

Footnote 629:

Laws of Ark., 1866–67, p. 99.

Footnote 630:

Laws of La., 1880, p. 52.

Footnote 631:

Laws of Miss., 1866–67, p. 233.

Footnote 632:

Laws of Tenn., 1865–66, p. 24.

Footnote 633:

_Ibid._, p. 65.

Footnote 634:

_Ibid._, 1867–68, pp. 32–33.

Footnote 635:

Va. v. Rives, 1879, 100 U. S. 313; _Ex parte_ Va., 1879, 100 U. S. 339; Strauder v. W. Va., 100 U. S. 303; Carter v. Texas, 1899, 177 U. S. 443; Rogers v. Ala., 1903, 192 U. S. 226.

Footnote 636:

Neal v. Del., 1880, 103 U. S. 370; Bush v. Com. of Ky., 1882, 107 U. S. 110; _Ex parte_ Murray, 1895, 66 Fed. 297; Smith v. State, 1895, 162 U. S. 592; Binyon v. U. S., 1903, 76 S. W. 265.

Footnote 637:

Carter v. Texas, 1899, 177 U. S. 443, at p. 447.

Footnote 638:

Eastling v. Ark., 1901, 62 S. W. 584; Wilson v. Ga., 1882, 69 Ga. 224; Green v. Ala., 1882, 73 Ala. 26; Ky. v. Jackson, 1880, 78 Ky. 509; Hicks v. Ky., 1881, 3 Ky. Law Rep. 87; Haggard v. Ky., 1881, 79 Ky. 366; Smith v. Ky., 1896, 33 S. W. 825; La. v. Casey, 1892, 44 La. Ann. 969; La. v. Joseph, 1893, 45 La. Ann. 903; La. v. Murray, 1895, 47 La. Ann. 1424; Cooper v. Md., 1885, 64 Md. 40; Mo. v. Brown, 1894, 119 Mo. 527; Bullock v. N. J., 1900, 47 At. Rep. 62; N. C. v. Sloan, 1887, 97 N. C. 499; N. C. v. Peoples, 1902, 131 N. C. 784; N. C. v. Daniels, 1904, 46 S. E. 743; S. C. v. Brownfield, 1901, 60 S. C. 509; Williams v. Texas, 1875, 44 Texas 34; Cavitt v. Texas, 1883, 15 Texas Ct. of Ap. Rep. 190; Carter v. Texas, 1898, 46 S. W. 236; Collins v. Texas, 1900, 60 S. W. 42; Smith v. Texas, 1900, 58 S. W. 97; Parker v. Texas, 1901, 65 S. W. 1066; Hubbard v. Texas, 1902, 67 S. W. 413; Carter v. Texas, 1903, 76 S. W. 437; Fugett v. Texas, 1903, 77 S. W. 461; Martin v. Texas, 1903, 72 S. W. 386.

Footnote 639:

Whitney v. Texas, 1900, 59 S. W. 895.

Footnote 640:

Kipper v. Texas, 1901, 62 S. W. 420.

Footnote 641:

Leach v. Texas, 1901, 62 S. W. 422.

Footnote 642:

Smith v. Texas, 1902, 69 S. W. 151.

Footnote 643:

Smith v. Texas, 1903, 77 S. W. 453.

Footnote 644:

Thompson v. Texas, 1903, 74 S. W. 914.

Footnote 645:

McPherson v. McCarrick, 1900, 61 P. 1004.

Footnote 646:

Raleigh, N. C., _News and Observer_, Feb. 17, 1910.

Footnote 647:

Whitney v. Texas, 1901, 63 S. W. 879.

Footnote 648:

Laws of S. C., 1865, pp. 278–91; 1866, pp. 387–90.

Footnote 649:

Pace and Cox v. State, 1881, 69 Ala. 231.

Footnote 650:

Pace v. Ala., 1882, 106 U. S. 583. See also Ellis v. Ala., 1868, 42 Ala. 525; Lord v. Ala., 1875, 53 Ala. 150.

Footnote 651:

Laws of S. C., 1865, p. 271.

Footnote 652:

Laws of Fla., 1865, p. 24.

Footnote 653:

Laws of Ky., 1865–66, p. 42.

Footnote 654:

_Ibid._, 1869, p. 52.

Footnote 655:

Laws of Mo., 1903, p. 161.

Footnote 656:

Laws of Ky., 1904, p. 83.

Footnote 657:

Laws of Del., 1866–69, p. 161.

Footnote 658:

Laws of Miss., 1866–67, pp. 232–33.

Footnote 659:

Laws of S. C., 1866, p. 405.

Footnote 660:

Boston _Post_, May 22, 1909. The volume of New York reports containing this case is not yet accessible. It is referred to, however, in 117 N. Y. Sup., p. 116.