Fighting Jim Crow in the 19th Century South: The Untold Story

Litigating Across The Color Line by Melissa Milewski
Fair use image

Most historians have considered the period between 1877, the end of Reconstruction, and 1900 to be “The Nadir” or the low point in terms of African American political rights.  Some have even described it as the worst period for blacks since emancipation.  Historian Melissa Milewski does not challenge that assessment.  She does, however, find a surprising number of court cases where blacks won their lawsuits despite white power and the then dominant ideology of white supremacy. This has been an untold story until now as she explains in her new book, Litigating Across the Color Line Civil Cases Between Black and White Southerners from the End of Slavery to Civil Rights.

As a young doctorate student digging through various archives to find a topic for my dissertation, I struck up a conversation with a curator at the Georgia Archives. I explained that I was interested in studying race in the US South but hadn’t found the right angle yet to approach the topic. The curator suggested that I take a look at the state supreme court cases involving African Americans in the archive’s collections, noting that the cases were rarely examined by historians but were a very rich source. I took him up on his suggestion and requested a few file boxes that the curator mentioned included cases involving African American litigants.

I was immediately fascinated by the case files that I found. As the cases had made it to the state’s highest court, the case files were surprisingly well preserved. Often the file for each case was hundreds of pages long and contained detailed records of the testimony in the trial as well as petitions, accounts of proceedings, and appeals. Some cases were still tightly tied in their original faded ribbon, seemingly untouched for over a century.

One of the first cases I encountered involved a man named William Walker, the son of a wealthy white slaveholder and an enslaved mother. When his father died, he emancipated his seven enslaved children and their four mothers and directed that all of his property be used to settle them in the African country of Liberia. The emancipated African Americans, with 17-year-old William Walker in their midst, moved to Liberia in 1859, just two years before the beginning of the US Civil War. Almost two decades later, in 1878, a 38-year-old Walker returned to the United States to initiate a court case against his former master’s relatives, claiming that they had never sent over the vast bulk of the bequest left for settlement in Liberia.

Several aspects of this case shed interesting insights on black litigants’ experiences in the courts in the US South. I was particularly interested in the way in which Walker marshaled white support for his claim, including hiring a white lawyer and seemingly working with his lawyer to gain witnesses who testified on his behalf.  Walker’s own testimony was also fascinating, shedding light on his experiences as a slave, his life in Liberia, and his interactions with whites in the South upon his return. In addition, Walker seemed to be shaping his testimony to strengthen the claims of his case and persuade white southern jurors to decide in his favor. He testified, for instance, that he had no intention of staying in the US South after the trial, thus removing any concerns that white jury members might have about a newly wealthy black man joining their community if they awarded him his claim.

I was surprised as well at Walker’s initial legal success.  A case between a black man from Liberia and wealthy white landowners in Georgia seemed in many ways as if it would be an open-and-shut case for a white or largely all-white jury in post-Reconstruction Georgia. Yet I found that the jury in the county court found that the former slaves were entitled to recover almost $40,000. It was only when the white heirs appealed to the Supreme Court of Georgia in 1880 that the higher court overturned the earlier decision.

After that research trip to the Georgia Archives, I began to wonder if there might be more cases involving black litigants in other states and additional cases at the Georgia Archives.  Certainly, very few other scholars seemed to have discussed such cases, largely assuming that few such suits existed. But my husband, who was in law school at the time, suggested I search the legal database LexisNexis using some keyword searches to see if I could find additional cases in southern courts with black litigants. It took time to figure out the right keywords to search for but soon I had produced lists of thousands of cases in eight southern state courts that mentioned one of my keywords. I realized that my search was only bringing up cases in which the court explicitly labeled the race of litigants in the official court reporter summary or opinion. However, I pressed on and built up a list of well over a thousand cases that seemed to involve black litigants in various southern archives.

I then began traveling to archives in eight states around the South to try to unearth the archival case files of these cases that I had discovered. To my relief, the vast majority of the case files still survived, and—like the cases that I had discovered in the Georgia Archives—the records were often extensive, numbering hundreds of pages. Here I found more fascinating stories. Perhaps my favorite case was that of Mary Ray, a young black woman from North Carolina who brought a civil suit in 1889 against the local county commissioners, the most powerful white men in the county where she lived. Her suit pointed to a deed to her father to claim the land upon which the local courthouse and jail were located. Clearly well aware of just what she was up against, Ray testified that a change of venue was needed as she “cannot obtain justice in this Cause in said county” because of the interested nature of local leaders and judges.  She explained: “That besides being gentlemen of marked personal influence and magnetism in said county, around which many interests are drawn and adhered, they as such Commissioners have under the law the control & supervision of the Jury system as well as all other official matters appertaining to the affairs of the County.” In the end, Ray experienced a number of delays and difficulties in obtaining witnesses to appear, and eventually lost the suit. However, her boldness in taking on these powerful white men in the post-Reconstruction South riveted me.

In a remarkable number of cases, the black litigants did win their suits. I turned to quantitative analysis to determine how many suits black litigants won against white litigants and found that they won 59 percent of the 980 such suits I located across eight state supreme courts. There was the case of Henry Buie who litigated a case against his former master in 1868 North Carolina over a mule that Buie had found during the Civil War. Buie not only won the suit but discarded his former master’s last name in the process of the legal action. Then there was the case in Kentucky in 1910 where a black laundress named Rebecca Sallee fell into a large open hole on the street as she made her way to a church service. Sallee sued the city to recover damages and obtained the value of a year’s worth of wages and her lawyer’s fees from the city. In addition, there was the suit in 1935 of Mary Jackson who refused to give up her 10-acre plot of land in Mississippiwhen a white neighbor sought to lay claim to it, only leaving when an anonymous group of white men came “during the darkest hours of the night” and brutally beat her. Jackson then initiated a civil case against the white neighbor to confirm her claim to the property and the highest court in Mississippi upheld her ownership of the land.

In the end, as I sifted through these suits the central question for me was how black litigants managed to both litigate—and often win—these civil suits at a time in which they faced increasing disfranchisement and segregation and experienced vast inequality in the criminal justice system. From the very beginning, I saw the actions of black litigants in these suits as a key part of the answer to this question. Over time, I became increasingly interested as well in the roles of white southerners in these suits and their attitudes towards these cases. In the end, the answer that I came to about why these cases occurred factored in the actions and perspectives of both black and white southerners.

I argue in my book that these cases took place in large part because of a disjuncture in how many black and white litigants viewed them. Black litigants often saw their participation in these civil cases as having life-altering economic consequences and so usually did all they could to win their suits. This included hiring white lawyers and using their knowledge of the law and of local race relations to shape their testimonies in ways that would be viewed most favorably by judges and juries. In contrast, white judges and jury members typically did not see the civil cases that black litigants were especially successful at litigating as dangerous or as having the power to upset the status quo. To them, some of these cases even seemed to support white supremacy. For instance, in their view, cases over white men’s bequests like the suit of William Walker upheld white men’s property rights. By carefully calibrating their testimony and arguments, black litigants and their white lawyers played an important part in perpetuating this disjuncture.

I contend, too, that the black litigants who held onto hope that the courts might change their lives for the better and the white judges and jury members who saw the courts as upholding the system of white supremacy both had valid points. On the one hand, white southerners were all too accurate in their realization that these civil cases had enormous limitations. To litigate and win these cases black litigants had to operate within a white-dominated legal system, using white lawyers and making arguments that largely white jury members and judges would find acceptable. Yet black southerners also had valid reasons to turn to the courts in civil actions, even after losing the vote and seeing segregation written into law. After 1890, the courts were often more accessible to African Americans than other branches of government. In part this was because whites saw the courts as less threatening than the black vote, and so did much less to try to block black southerners from operating in the courts.

In the end, while these civil suits between black and white southerners have tremendous limitations, they are more radical, and more important, than they might first appear. At a time of tremendous racial terror and segregation, some individual black southerners defended their rights against the actions of white members of their communities. The successful outcomes of many of the cases had immensely important economic effects in the lives of individual African Americans. Just as importantly, after having largely lost their ability to operate within any other government institutions, some black southerners were able to negotiate—and win within—the last remaining southern political institution they had access to. Finally, these cases illuminate a history in which black southerners continuously exercised their rights of citizenship through some of the most difficult years of southern history by pragmatically shaping and shifting their cases as the societal and political landscape changed. They show, then, the ways in which everyday individuals could take on a biased system, and at times win.