Who killed justice?
An analysis of the discourse on crime and race in the period from
slavery to Redemption (1850-1900) in the Southern United States
Student: Lucy Hoogland
Student number: 3666727
Course: Research Seminar IIIA: Criminal Minds
Professor: Prof. Willemijn Ruberg
Deadline: 18 Januari 2013
Number of pages: 37
Number of words: 12.131
1
Contents:
Introduction
blz.3
Developments in the position of African-Americans in (criminal) law
blz. 8

Legal standing of black Southerners before the civil war
blz. 8

New laws during (radical) Reconstruction
blz. 13

Redemption
blz. 19
Developments in the application of racial law in courts
blz. 22

State of Mississippi vs Celia (1855)
blz. 22

Strauder vs West Virgina (1880)
blz. 25

Plessy vs Ferguson (1896)
blz. 28
Conclusion
blz.31
Bibliography
blz.34
2
Introduction
‘A free negro of the American race, whose ancestors were brought to this country and sold as
slaves, is not a ‘citizen’ within the meaning of the Constitution of the United States’.1
This was the conclusion of the nine judges of the United States Supreme Court in the famous
Dred Scott case of 1857, in which a slave was denied the right to sue for his freedom. Based
on the assumption that the writers of the Constitution had not meant persons of AfricanAmerican descent when talking about equality, they decided that no black person, free or
slave, should have the same political and public rights as white Americans.2 Shortly after this
decision, of course, slavery itself was abolished. A period of Reconstruction followed, in
which important changes were made in the position of African Americans in society, but in
which it also became clear that the situation of African-Americans in the South wouldn’t
easily be changed.3 This paper analyses the discourse on race and crime in the second half of
the nineteenth century and examines how discourse was connected to developments in the
Southern United States in this period. When I use the word discourse in this context, I mean ‘a
set of ideas creating knowledge that seems the truth’4, in other words: a powerful way of
thinking and talking about a subject which is adopted by a large part of society at a certain
time. In this paper I will focus mainly on legal discourse in the United States, since my aim is
to examine the discourse on race and crime, but I will also deal with scientific, literary and
political discourse.
The central question that I hope to answer in this paper is: In what ways did the
discourse on crime and race evolve in the period from slavery to Redemption (1850-1900) in
the Southern United States? My hypothesis is that the discourse on race and crime didn’t
significantly change in the second half of the nineteenth century in the Southern United
States, that this is illustrative for the evolvement of the general discourse on race, and that the
perseverance of the discourse on race that existed during slavery explains the failure of the
emancipation of African-Americans in the South. What makes this topic so interesting to me
is the way in which white Americans justified the discrimination of African-Americans for
themselves. If we can find out what sort of discourse lay behind this discrimination and how
American Memory, ‘The Dred Scott Decision: opinion of Chief Justice Taney (1857),’ Slaves and the Courts
1740-1860, http://memory.loc.gov/cgi-bin/query/r?ammem/llst:@field(DOCID+@lit(llst022div3))
2
M.B. Norton e.a., A People and a Nation: a history of the United States (Wadsworth 2008), 378-379
3
Norton, A People and a Nation, 430-436
4
Ian Parker, ‘Discourse: definitions and contradictions’, Philosophical Psychology, 3:2/3 (1990)
1
3
the abolishment of slavery and the Reconstruction policies affected this discourse, then we
might be able to develop a better understanding of ideas on race that exist in America today.
In other words: research on how a big change such as the abolishment of slavery affects
discourse in society, and how this affects our legal system, can help in the emancipation
process of African-Americans in the United States.
The method that I will use is a discourse analysis, as advocated by Michael Foucault.5
Foucault developed a new way of studying history, in which he especially focused on power,
the way in which power influences discourse and the power that discourse exerts on society.
Perhaps the best way to phrase these ideas are his own words; ‘In thinking of the mechanisms
of power, I am thinking... of its capillary form of existence, the point where power reaches
into the very grain of individuals, touches their bodies and inserts itself into their actions and
attitudes, their discourses, learning processes and everyday lives.’6 For instance, in one of his
essays on the history of crime, ‘About the concept of the ‘dangerous individual’ in 19th
century legal psychiatry’,7 he investigates the way in which the evolution of the judicial
system created a powerful discourse on ‘normal’ or ‘sane’ and ‘abnormal’ or ‘insane’
criminals. My intention for this paper will be to use a ‘Foucauldian lens’ while looking at the
accounts of crime and race in the Southern United States in the second half of the nineteenth
century. I will examine the way in which the position of African-Americans in society was
reflected through and influenced the discourse on crime and race and the way in which
(criminal) behavior of black southerners was categorized as ‘normal’ or ‘abnormal’ in legal,
political, scientific and literary texts.
Discourse analysis has most frequently been used by scholars to discover discourses on
crime, mental illnesses, gender and race.8 In the past twenty years, there have also been
significant efforts to combine two or more of these topics in a discourse analysis.9 These
An analysis of ‘sets of ideas creating knowledge that seems to be the truth’ on a certain topic, advocated by the
post-structuralist philosopher and historian Michael Foucault in the late 19th century, see: Parker, ‘Discourse:
definitions and contradictions’, 2-3
6
Rudy Koshar, ‘Foucault and social history: Comments on ‘combined underdevelopment’’, American Historical
Review (1993), 356
7
Michel Foucault, ‘About the concept of the “dangerous individual” in 19th-century legal
psychiatry’, International Journal of Law and Psychiatry 1:1 (1978) 1-18
8
See Willem de Blécourt, ‘The making of the female witch. Reflections on witchcraft and gender in
the early modern period’, Gender & History 12:2 (2000) 287-309, Michel Foucault, ‘About the concept of the
“dangerous individual” in 19th-century legal psychiatry’, International Journal of Law and Psychiatry 1:1
(1978) 1-18 and Elizabeth Kolsky, ‘”The Body Evidencing the Crime’: Rape on Trial in Colonial India, 18601947’. Gender and History 22:1 (2010) 109-130
9
See Biko Agozino, Black women and the criminal justice system: towards a decolonization of victimisation
(Aldershot 1997)
5
4
analyses often focus on the contemporary discourse on race and crime,10 since unfortunately
there is still a big problem of racial discrimination in the judicial system in the United States.
However, as I already mentioned in the previous section, this makes investigating the
historical roots of thinking about race and crime only more important. While much has been
written on the relationship between African-Americans and the judicial system in the United
States, 11 and a few attempts were also made at a discourse analysis of a specific period or a
specific phenomenon within this topic,12 I hope to combine these two approaches by giving a
general analysis of the legal position of African-Americans throughout the second half of the
nineteenth century in the Southern United States as well as a more specific analysis of three
court cases that concerned the relationship between race and crime in the second half of the
nineteenth century.
Due to a time and a word limit, certain delineations had to be made. First of all, I will
focus mainly on the discourse that existed on race and crime, since crime is an emotionally
charged subject in which I hope to find the clearest examples and clues about the general
discourse on race. Secondly, race in this matter concerns both the African-American, colored
or ‘black’ race, since this was the biggest group that was discriminated against and therefore
the easiest to analyze, and the Anglo-Saxon or ‘white’ race, since the discourse on race in
America can be seen as a ‘two side coin’, in which ideas about the ‘badness’ or ‘evilness’ of
one race were entangled with the ‘goodness’ or ‘purity’ of the other race. Thus, ideas on
‘white’ can’t be disconnected from ideas on ‘black’ in American society. I hold the view that
race doesn’t exist of physical appearance in itself, but more of the way in which society
interprets certain physical characteristics. Thus, the definition of race is socially constructed,
and has continuously changed during the last five hundred years.13
The time frame of this research covers an important period in which the transformation
from slavery to freedom took place. This was also a period in which the legal department
10
See Stuart Hall, Policing the crime: mugging, the state, and law and order (Basingstoke 1987), Michael T.
Light and Casey T. Harris, ‘Race, space and violence: exploring spatial dependence in structural covariates of
white and black violent crime in US counties’, Journal of Quantative Criminology 28:4 (2012) and Schaefer,
Brian P. and Peter B. Kraska, ‘Felon disenfranchisement: the judiciary’s role in renegotiating racial divisions,
Race and Justice 2:304 (2012)
See Richard Kluger,, Simple justice: the history of Brown vs. Board of Education and Black America’s
struggle for equality (New York 1977), and C. Vann Woodward, The strange career of Jim Crow (New York
1966)
12
See James Campbell, A murderer of 'a somewhat dark complexion'?: criminal justice and constructions of race
in Antebellum Virginia, American 19th century history 5:3 (2004) and Andrea Stone, ‘Interracial sexual abuse
and legal subjectivity in Antebellum law and literature’, American Literature (2009)
13
Chris Smaje, Natural Hierarchies: the Historcial Sociology of Race and Caste (Malden, 2000) 5
11
5
began to play a big role in (the emancipation of) African-Americans, and thus it is an
excellent period to conduct to research on race and crime discourse. Earlier on I referred to
the period I am studying as the ‘Reconstruction period’, because the Reconstruction in the
Southern United States after the Civil War was, in my opinion, a dominant event that shaped
the second half of the nineteenth century in the American South. However, it must not be
forgotten that the Reconstruction officially only lasted from 1865 to 1877,14 and that some
historians argue that it lasted even shorter in some of the Southern States.15
The focus will be on the Southern United States, since this was the area in which
slavery had the most profound impact and in which on the one hand, the existing discourse
was the most persistent but where, on the other hand, the impact of the emancipation policies
that were implemented by the American Congress after 1865 was also the biggest. However,
since the political tensions between the North and the South and the discourse on race in the
North had a big influence on the discourse on race in the South, I will sometimes briefly
describe developments in the North as well. When speaking of the American South, the
Southern United States or just the South, I am referring to a certain cultural area which
consists of the South-Central and South-Eastern states of America,16 and which includes all of
the former Confederate States as well as all of the former slave states (Florida, Maryland,
North Carolina, South Carolina, Virginia, West Virginia, Delaware, Alabama, Kentucky,
Mississippi, Tennessee, Arkansas, Louisiana, Oklahoma and Texas).17
My sources will be a combination of secondary literature and primary sources. The
secondary literature will function mostly as a framework, both for historical events and facts
and for arguments of other historians researching this period. I will also use the secondary
literature to refer to other authors who have conducted a discourse analysis in or around this
period. The primary sources that I use consists of opinions of influential white (southern)
elites (such as writers, scientists and politicians) on race and crime, but also of testimonies
and other opinions of both parties as expressed in court cases and of newspaper articles on
race and crime in the second half of the nineteenth century. Furthermore, I will use the
information derived from these sources to examine three case studies of court cases that are
illustrative for the relationship between race and crime in the second half of the nineteenth
14
15
Norton e.a., A People and A Nation, 426-427
R.J Robert, ‘James L. Kemper and the Virginia redeemers face the race question: a reconsideration’, Journal
of Southern History 38:3 (1972)
16
17
Norton, A People and a Nation, 247
United States Census Bureau, ‘Population distribution and change: 2000 to 2010’,
http://www.census.gov/prod/cen2010/briefs/c2010br-01.pdf
6
century. I have selected my cases both on the amount of information that was available and
their relevance for the subject of this paper.
This paper will be divided into two parts. The first part will be examining how the
position of African-Americans in (criminal) law evolved. I will conduct research on how laws
on race and crime came into being, what ideas or discourse we can discover beneath them,
what these laws revealed about the position of African-Americans in the judicial system and
how the law influenced the categorization of African-Americans into ‘normal’ and ‘abnormal’
categories. Researching these aspects of the relationship between race, crime and the law can
provide us with important insights into the discourse that existed on race and crime, since the
decisions that had to be made about the position of black southerners in (criminal) law had to
be more or less accepted by the public and used by judges in court. To analyze the
developments in the legal position of African-Americans, this part will be divided into three
chronological periods, one dating from 1850 to the beginning of the civil war in 1861, one
dating from the end of the civil war in 1865 to the end of the Reconstruction in 1877 and one
covering the period thereafter.
In the second part we will focus on the decisions that were made by judges in court, and
the way in which they interpreted the laws that were made. In this way we will also move a
bit closer to the public discourse, since judges had to interact with civilian spectators in court
cases as well as with the public jury. In this section, instead of analyzing general
developments in the second half of the nineteenth century, we will be examining and
comparing three case studies. These will all concern the relationship between crime, race and
the law, but the amount of information that is available on these court cases differs and they
do not fall exactly within the three chronological periods of the first chapter. For instance, the
first court case (Celia vs State of Mississippi) deals with the conviction of a slave for
slaughtering her master by a State in 1855, while the second case study (Stauder vs West
Virginia) takes place almost thirty years later and concerns a black southerner who sues a
State for convicting him of murder under discriminatory circumstances. The last case also
concerns a black southerner suing for his conviction of a crime, but this time the reason of
complaint is the discriminatory nature of the crime itself and the subject that is sued is not a
state but a judge. Thus, although these cases differ considerably in circumstances, I think they
are in a way all representative for the period in which they took place and certain
developments within that period. Hence, they can give us important insights in general
attitudes to the relationship between race, crime and the law.
7
Chapter I: Developments in the position of African-Americans
in (criminal) law, 1850-1900
Legal standing of black southerners before the Civil War
Before we start analyzing the laws on race and crime in this period, it might be appropriate to
give some historical context. It has often been argued that the Northern and the Southern parts
of the United States had distinctive cultures in the nineteenth century, which fostered different
interests and misunderstandings between the two territories and thus eventually contributed to
the onset of the Civil War.18 While some historians warn us for the danger of viewing
Southern history solely trough the lens of slavery and race relations, 19 others claim that
slavery influenced every aspect of life in the Southern United States20 and therefore see it as
the most important cause of conflict between the North and the South of America.21 I shall not
claim that ‘without slavery, there would have been no war’, 22 but I do agree to the point that
slavery and race relations had an enormous impact on the events in the second half of the
nineteenth century in the Southern United States.
While the Southern and the Northern parts of the United States had both stressed their
states’ rights to prevent further expansions of federal authority before the 1840’s,23 in the
1830’s and 1840’s more and more Southerners united in the Democratic party, which
advocated a limited government as well as agricultural expansion.24 This development was
largely due to the huge growth of cotton exports from Southern slave plantations. In the first
half of the 19th century, Southern cotton dominated the market in Europe, making slaves the
most valuable financial property in all of the United States.25 Northerners, on the other hand,
came to believe in the beneficially of free labor, which would stimulate laborers to work hard
to ensure themselves of success in a competitive market place.26 After the 1840’s many
Southerners increasingly came to view the Northern tendency to interfere with slavery in the
new territories and in the South (through Congress) as a violation of their states’ rights.
18
Norton e.a., A People and A Nation, 384
C. Vann Woodward, The strange career of Jim Crow (New York 1966)
20
Norton e.a., A People and A Nation, 250-251
21
Ibidem, 384
22
Ibidem, 384
23
Ibidem, 247
24
Ibidem, 328
25
Ibidem, 264
26
Ibidem, 301
19
8
During the 1850’s, tensions grew as Northerners increasingly feared a ‘Slave Power
conspiracy’, which planned to expand slavery further and further thereby threatening the
Northern free labor ideology, 27 while Southerners responded to this by aggressively
defending the institution of slavery and invoking the doctrine of ‘state sovereignty’ on the
issue of slavery.28 This doctrine implied that the territory of the United States belonged to the
states, that the government should not interfere with the spread of slavery and that
slaveholders had a constitutional right to take slaves, as their legal property, anywhere in the
territories of the United States.29 Thus, obviously slavery was a contested and hotly debated
issue in the United States in the period before the Civil War, deeply embedded both in the
economic and political system of the (southern) United States. Nevertheless, although it was
the dominant mode of interracial contact, it was not the only way in which race relations were
formed.
To adequately study the laws on race and crime before and during the civil war, I make
a distinction between three different ways in which race and crime were connected at the
time. First of all, there were the crimes that slaves could commit. The position of the slaves
was ambiguous in law, since they were ‘more than property and less than equal person’.30
They weren’t allowed to be a party to a lawsuit, could not swear an oath in court or testify
against a white person. 31 Thomas Cobb, author of An Inquiry into the law on negro slavery in
the United States (1858) wrote on this subject: ‘That this universal exclusion of a negro from
testifying may, in many supposable cases, operate harshly and to the defeat of justice,
especially in reference to the cruel treatment of slaves, is an undeniable fact; and yet it is
equally true, that the indiscriminate admission and giving credit to negro testimony would not
only, in many cases, defeat justice, but would be productive of innumerable evils in the
relation of master and slave’, since ‘That the negro, as a general rule, is mendacious, is a fact
too well established to require the production of proof, either from history, travels, or
craniology’.32 This powerful, to use one of Foucault’s favorite words, label of ‘mendacious
27
Norton, A People and a Nation, 366
Ibidem, 368
29
Ibidem
30
Andrea Stone, ‘Interracial sexual abuse and legal subjectivity in Antebellum law and literature’, American
Literature (2009), 66
31
Kluger, Simple Justice, 27
28
32
Thomas Cobb- An Inquiry into the Law of Negro Slavery (1858) 232-233
http://ia600301.us.archive.org/19/items/inquiryintolawof01cobbiala/inquiryintolawof01cobbiala.pdf
9
negro’ could thus easily be used by southern slaveholders to deny slaves the right to tell their
own story in court.
The offenses that slaves could commit were written into law in the form of the Slave
Codes, which were different for each state, and any violation was sanctioned by public
punishments.33 These public punishments were essentially divided into two categories: death
or whipping (sometimes accompanied by branding on the cheek), and thus all offenses
committed by slaves also had to be divided into two categories. In this way, crimes that
weren’t a capital offense for whites, such as rape, were indeed punished with capital
punishment if committed by African-Americans.34 In reaction to the claim that the broader
range of capital offenses for blacks was not fair, Cobb claims that; ‘Practically the punishment
is never inflicted undeservedly. The slave's situation is such that the temptation to commit the
higher offences is very slight, and only the most vicious are ever guilty of them.35 If we take
Thomas Cobb, a proslavery legal theorist from Georgia36, to be representative for Southern
opinion, we can find a few clues about discourse on crime and race in his words. First of all, it
seems that capital offenses were rare during slavery. However, according to Cobb this was not
because slaves weren’t able to commit them, but because their situation was such that their
weren’t ‘tempted’ to commit them, implying that the institution of slavery inhibited the
‘normal’ tedencies of slaves to commit evil deeds. Thus, although most slaves were vicious in
Cobb’s opinion, the restrictions of slavery made sure that only the ‘most vicious’ of them
would commit a capital offense. Hence, mendacious and vicious slaves were placed in the
category of ‘normal’, while ‘murderous’ or ‘evil’ slaves leaned more towards the category of
‘abnormal’.
Then, there were also the free blacks, the African-Americans that had been released by
their owners, had fled or had bought their freedom. Although this paper focuses on the South
of the United States, it may be argued that a certain precedent pertaining to race and law in
this aspect was shaped in the North, where the percentage of free African-Americans was
much bigger before the Civil War. Here, blacks were completely excluded from the legal
system, and prohibited to function as judges, jurors or even witnesses.37 But what discourse
lay behind the exclusion of free blacks in the Northern states from the legal system and thus
determined their relation to criminal punishment? In the words of Abraham Lincoln, the
33
Ian Haney Lopez, Race, law and society (Berkely 2007), 252
Cobb, An Inquiry into the law of negro slavery, 266-268
35
Ibidem, 267
36
Stone, ‘Interracial sexual abuse and legal subjectivity, 66
37
Woodward, The strange career of Jim Crow, 20
34
10
Republican president, we may find some clues. According to Lincoln in a speech in 1858;
‘…..there is a physical difference between the black and white races, which I believe will ever
forbid the two races living together on terms of social and political equality. And inasmuch as
they cannot so live, while they do remain together there must be the position of superior and
inferior, and I as much as any other man are in favor of having the superior position assigned
to the white race.’38 A source that expresses a view on the more specific relationship between
race and crime in this period is the research report of Hermann Burmeister, a biologists
studying ‘the negro race’ in Brazil. He claimed that negroes are ‘naturally submissive’, but
also contended that the negro race is inclined to violence and cruelty, resentful, easily enraged
(mainly because of jealousy) but also cowardice.39 Thus, both the report of Burmeister and the
book of Cobb suggests that the ‘criminal negro’ was seen as ‘normal’ in the period before the
abolition of slavery, although slavery could inhibit these ‘natural tendencies’.
Concerning the position of free African-Americans in the South, James Campbell
provides us with important insights in his study of a court case in antebellum Richmond,
Virginia.40 He claims that during the 1840’s and 1850’s, as slavery and the slave system lost
ground among southern whites due to increasing urbanization caused by economic expansion,
slaveholders became more prone to enforce a rigid racial divide through the law.41 This
became explicit in the amendment of the laws for free blacks accused of crimes, which were
from the 1830’s on to be trialed as slaves. In 1858 an act was even enforced that punished
black convicts by sentencing them to absolute slavery instead of ‘normal’ imprisonment,
which again suggests the existence of the southern view that slavery served to restrict the
‘normal’ criminal tendencies of African-Americans. In Campbell’s view, these laws were also
meant to enforce white unity in the light of waning support for slaveholders and slavery.42
The categories of ‘black’ and ‘white’ were, in theory, clearly defined by a Virginian law that
declared all persons with one-quarter or less ‘black blood’ in their veins to be white and all
other persons to be legally of the black race. In practice, however, enforcing this law caused
significant problems, since the existence of a large group of people of mixed race that could
38
39
Woodward, The strange career of Jim Crow, 21
Ibidem, 17
40
James Campbell, A murderer of 'a somewhat dark complexion'?: criminal justice and constructions of race in
Antebellum Virginia, American 19th century history 5:3 (2004)
41
42
Campbell, ‘A murderer of a somewhat dark complexion’, 32-33
Ibidem, 33
11
not easily be categorized by their physical appearance.43 What is significant about the case
study of Campbell is that it highlights the way in which discourses on race and crime and the
criminalization of the ‘negro race’ could be used to strengthen the power of (parts of) the
white population in Virginia at a time of increasing tensions between different parts of the
population. This indicates that white planters used racial laws not only to exert control over
the free black population, but also over parts of the white Southern population.
The third way in which race and crime were connected in this period was in the laws
concerning the relations between white and black persons (especially slaves), or the
criminalization of these relationships. Some acts were especially considered serious offenses
because they involved members of both races. In 1855, the Kansas legislature passed a bill
that sentenced black or mulatto men to castration for either rape, attempted rape or kidnapping
of a white woman.44 Furthermore, the strengthening of the Fugitive Slave Law as a part of a
political compromise between the Southern and the Northern states in 1850 made it a felony
for white Americans to harbor fugitives. Whites could even be summoned to hunt fugitives,
and were fined if they didn’t answer to these orders. 45
What can be tentatively concluded from the contemporary writings that we
investigated in this section about the discourse on race and crime before the abolition of
slavery, is that African-Americans were viewed as inherently criminal, although they could be
restricted by the ‘beneficial influence’ of slavery. Other historians have also pointed at the
existence of such general ideas about race in the Southern United States, emphasizing the
paternalistic element of these discourses.46 47 The historical facts clearly show that slavery
was deeply embedded in political and economic tensions between the North and the South,
thus illustrating the importance of discourse on race in the debate over slavery. In other
words, the ‘paternalistic discourse’ was a convenient proslavery argument for white
planters,48 who were dependent on profits from the slave-fueled cotton trade and who
increasingly had to defend slavery not only against blacks, foreigners and Northerners, but
also against the new white urbanized class. Furthermore, for a discourse on race to be
credible, strict racial categorizing through the law became increasingly important, as the study
of Campbell showed.
Campbell, ‘A murderer of a somewhat dark complexion’, 34
Lopez, Race, law and society, 270
45
Norton, A People and a Nation, 370
46
Chris Quispel, Hardnekkig wantrouwen, 29
47
Norton, A People and a Nation, 264
48
In Chris Smaje, Natural Hierarchies: the Historcial Sociology of Race and Caste (Malden, 2000) the
argument of Barbara Field is explained that race is not an ‘idea’ but more of an ‘ideology’, which serves rational
or practical reasons at a certain time, see Smaje, Natural Hierarchies, 137-138
43
44
12
New laws on race and crime during (radical) Reconstruction
Although historically, the war was a big moment for Afro-American emancipation, the
transformation from slavery to fled or freed slave didn’t go as smoothly as is sometimes
displayed and for some slaves, it was only at the very end of the war that they were
(officially) freed. Starting in 1861, southern slaves were seized as ‘contraband’ (war
property), but this was mainly a strategy to punish the southern slaveholders. Even the
Emancipation Proclamation of 1863 was only applicable to slaves in the Confederate slave
states that were not under Union control. It has been put forward by historians that Lincoln
was afraid of giving the emancipation of the slaves too much emphasis, which would alienate
the Unionist slave states and destroy Lincoln’s hope of persuading the Confederate States to
stop fighting and join the Union again.49 This illustrates that the emancipation of the slaves
was from the beginning influenced and determined by political considerations and by the
amount of power that Lincoln could exert over the Southern States without weakening his
own position.
Besides, when we consider Lincoln’s motives for freeing the slaves and his plans for
the emancipated slaves, it should be mentioned that at least until well into 1864 what Lincoln
intended to do with the slaves after they were freed was not to give them an equal place in
American society, but to colonize them in Central America or the Caribbean.50 This is less
surprising when considering his quote about the equality of the two races in the previous
section. However, it is interesting to wonder what the influence of these ideas would have
been on his policies towards emancipation, had he been able to complete his presidency.
Nevertheless, the Emancipation Proclamation did provide the opportunity for former slaves to
join the Union army and in 1864 the first constitutional proposal for total emancipation was
on the table, being ratified by 1865.
During this period there were two sorts of laws on which we can focus. First, there were
the laws that were adopted by the Republicans in Congress after the war and that forced
Southerners to allow African-American inhabitants of the Southern States their legal and
political rights. These laws became known as the Radical Reconstruction and provided all
inhabitants of the United States with American citizenship as well as passive and active
voting rights, placed all former Confederate States under military supervision and required
these states to adopt all laws concerning equal treatment of the races before admission to the
49
50
Norton e.a., A People and A Nation, 405
Ibidem, 408
13
Union.51 In 1865 the Thirteenth Amendment to the Constitution of the United States was
passed, which abolished involuntary servitude everywhere in the United States, and gave
Congress the power to enforce this by ‘appropriate legislation’.52 One year later, the
Fourteenth Amendment, which gave citizenship to ‘all persons born or naturalized in the
United States’, prohibited the obstruction of citizens’ ‘privileges and immunities’ as well as
the seizing of a person’s life, liberty or property ‘without due process of law’ and demanded
‘equal protection before the laws’, was ratified.53 In theory, this would have ended the direct
connection between race and crime as it was before the war, and even made the endorsement
of this connection a crime in itself. However, when we look at these laws more closely, we
can find that there was a provision in the Thirteenth Amendment that excluded convicts from
the ban on slavery.54 Thus, by accusing African-Americans of crime and convicting them for
that crime, white southerners were able to deprive them of their newly acquired rights55 and
criminalization of blacks could again be used as an excuse for imprisonment, suggesting the
persistence of the discourse that justified slavery.
Furthermore, the ratification of these laws was widely contested and had caused
considerable discussion on the highest level of political policymaking, between the new
president Andrew Johnson, who was inaugurated after Lincoln had been killed by the
fanatical secessionist John Wilkes Booth, and Congress. Initially, the president and Congress
seemed to advocate the same policy towards the former Confederate states, but in 1866 a new
Congress was elected in which the radical Republicans, who demanded elaborate
Reconstruction in the South including civil and political rights for African-Americans, were
dominant. At the same time Johnson began to advocate a swift and mild reconstruction policy
in the South. Johnson had first argued for a hard Reconstruction policy against the wealthy
southern planters, but had never really hid his views on race. According to him blacks had
less ‘capacity for government than any other race of people. No independent government has
ever been successful in their hands;…wherever they have been left to their own devices they
have shown a constant tendency to fall into barbarism.’56 Following was a series of conflicts
between the Republicans in Congress and president Johnson, resulting in an impeachment
procedure in 1868 which the president barely survived. Later that year, the Republican
51
Quispel, Hardnekkig wantrouwen, 16-17
Norton, A people and a nation, 430
53
Ibidem, 438
54
BlackPast.org: remembered and reclaimed, ‘Reconstruction Amendments’,
http://www.blackpast.org/?q=primary/reconstruction-amendments
55
Lopez, Race, law and society, 253
56
Norton, A People and a Nation, 436
52
14
Ulysses S. Grant was chosen as the new president. Although he did support the Congressional
Reconstruction plans, he did not prove to be an enthusiastic advocate.57
Nevertheless, as a consequence of the Reconstruction policies African-Americans
began to play a part in public life and politics, serving as juries, judges and members of
Congress. Sixteen African-Americans served in Congress and eighteen served in a high state
office. The total number of blacks that occupied a political office during the official
Reconstruction was somewhere around four hundred.58 The new leading positions in which
these African-Americans found themselves, didn’t stimulate them to revenge the hardships
they had faced during slavery. Instead, they tried to reach the white southern population by
referring to fairness and equality.59 Thus, instead of adhering to the stereotypes of the
‘revengeful negro’ as we saw developing during slavery, African-Americans chose to reach
white southerners through another white discourse; that of equality and fairness. This implies
that although they rejected the powerful discourse of the ‘criminal negro’, black southerners
were very aware of dominant white southern opinion and those who occupied high offices
took this into account in their actions. Illustrative of this argumentation is that the issue of
economic or social equality, which was rejected almost unanimously among whites, was often
not pressed.60 Thus, officially, the legal position of African-Americans changed. However,
this doesn’t mean that they could operate free from the white southern discourse on race that
influenced the making of the law.
The second type of laws were ratified by Southern States during Reconstruction.
Almost immediately after the Civil War southern legislatures adopted the black codes, which
were meant to ensure whites of a superior position in their contact with African-Americans,
especially in the area of jobs.61 In the Mississippi law code of 1866 we find some interesting
statutes concerning colored southerners. First of all, concerning the role of colored
southerners as witnesses, the Mississippi law states that; ‘....In addition to cases in which
freedmen, free negroes, and mulattoes are now by law competent witnesses, freedmen, free
negroes, or mulattoes shall be competent in civil cases, when a party or parties to the suit,
either plaintiff or plaintiffs, defendant or defendants, and a white person or white persons, is
or are the opposing party or parties, plaintiff or plaintiffs, defendant or defendants. They shall
also be competent witnesses in all criminal prosecutions where the crime charged is alleged to
57
Norton, A People and a Nation, 436-443
Ibidem, 446
59
Ibidem, 444-445
60
Ibidem, 445
61
Quispel, Hardnekkig wantrouwen, 16
58
15
have been committed by a white person upon or against the person or property of a freedman,
free negro, or mulatto: Provided, that in all cases said witnesses shall be examined in open
court, on the stand; except, however, they may be examined before the grand jury, and shall in
all cases be subject to the rules and tests of the common law as to competency and
credibility....62 The same reservations about the credibility of testimonies from colored
citizens that we saw in the writings of Thomas Cobb seem to be apparent here. However,
instead of declaring all colored persons to be ‘mendacious’, now they could be tested for their
‘credibility’ and ‘competence’, and I think Foucault would agree with me that this gave white
southerners the fairly large power to determine who was ‘capable’ or ‘credible’.
The black codes were laws that did enforce the relationship between race and crime,
directly or indirectly. For instance, during the 1860’s and 1870’s, petty crimes were made
serious offenses in order to convict blacks and deprive them of their rights, as was provided
for in the Thirteenth Amendment. In the Mississippi black codes, it was documented that if
any colored person would not pay their taxes according to the law; ‘….it shall be prima
facie evidence of vagrancy, and it shall be the duty of the sheriff to arrest such freedman, free
negro, or mulatto or such person refusing or neglecting to pay such tax, and proceed at once to
hire for the shortest time such delinquent tax-payer to any one who will pay the said tax, with
accruing costs, giving preference to the employer, if there be one....’63 In 1875 a law was
passed in Georgia that made hog stealing a serious crime.64 The provincial legislatures in the
South also adopted black codes that separated black and white citizens in public facilities. In
Mississippi, black citizens were by these codes forbidden to travel in first-class passenger
cars. In Florida, whites were forbidden to use cars set apart for negroes.65 Thus, in these laws
we find not only attempts to deprive colored southerners of their recently acquired rights to
freedom, but also attempts to criminalize the relationships between black and white
Americans.
A quote from a newspaper in Georgia in 1866 might give a some clues on the ideas that
fuelled the making of the black codes. According to this newspaper ‘most of the white
citizens believe that the institution of slavery was right, and….they will believe that the
condition, which comes nearest to slavery, that can now be established will be the best.’66 To
explain the legal position of African-Americans in the South during Reconstruction, we
BlackPast.org: Remembered and reclaimed, ‘(1866) Mississippi Black Codes’,
http://www.blackpast.org/?q=primary/1866-mississippi-black-codes
63
BlackPast.org, ‘Mississippi Black Codes’, http://www.blackpast.org/?q=primary/1866-mississippi-black-codes
64
Norton, A People and a Nation, 254
65
Woodward, The strange career of Jim Crow, 23
66
Norton, A People and a Nation, 443
62
16
should look at both political, economic and emotional factors. The Civil War was over, but it
had left a giant heritage of devastation and loss for southern whites. Not only did they lose
their homes and families due to the destruction of the Southern countryside, as a result of the
Emancipation Proclamation they had also lost their livelihoods and their ideal of a just world
with clear relationships between a (black) slave and a (white) master. The same federal
government which authorities they had protested by evoking the doctrine of their rights as
states, now occupied their land and controlled their legislatures to impose a set of radical new
laws, which, supposedly, gave African-Americans new power over their former masters. 67
Furthermore, the large numbers of freedmen that wondered around the countryside stimulated
the fear of black revolt and revenge in the minds of the white southerners.68
In theory at least, the position of African-Americans had changed during the
Reconstruction, since they now could make a claim for their civil and political rights. As the
radical state legislatures were installed in 1868, demands were made by black citizens that
their civil rights in public transport and other accommodations would be guaranteed, which
did result in the passage of some anti-discriminatory statutes.69 Thus, African-Americans had
somewhat more power to influence the making of the law, but the laws that the radical
Republicans in Congress had designed were also born out of political considerations, since
they realized that they needed black political support for their campaign.70 This does testify to
the newly acquired power of African-Americans in influencing legislation, but not to a
changing of discourse on race in Congress. So when during a contested election in 1876, the
Republicans became more and more aware that their party shared capitalistic goals with the
Democrats,71 economic considerations were deemed more important and the Reconstruction
governments and policies in the South collapsed. What is also important to mention here is
that the government increasingly turned their attention to the westward expansion of the
United States, thus leaving the emancipation of one racial group in the South behind to exert
dominion over another racial group, the native Indians, in the West.72
There are many clues in the words of policymakers such as president Johnson, in the
new black codes, and even in the conquering of native Indian lands, that the discourses on the
superiority of one race versus the inferiority of the other race hadn’t significantly changed.
Thus what we see in this period is both the persistence of the paternalistic discourse of slavery
67
Norton, A People and a Nation, 443-446
Woodward, The strange career of Jim Crow, 23
69
Ibidem, 27
70
Ibidem, 28
71
Woodward, Origins of the New South, 28
72
Norton, A People and a Nation, 481
68
17
(in the words of president Johnson as well as in the provision that exempted the prohibition of
slavery for black convicts), as well as some laws that seemed to stimulate the separation of the
races. This might very well have been reactions to the fear of revenge or revolts from the
‘negro race’, which already existent during slavery as illustrated by the high penalties for both
revolts by slaves and crimes that were committed by an African-American against a white
person.73 This fear reached a boiling point in the late 1860’s, when recently emancipated
slaves wandered the country side, now unrestricted by the inhibitions of slavery.74 However,
the political will of white southerners to protest against the Radical Republicans in Congress
and the federal government in general, which had not only helped to destruct their families,
homes and livelihoods, but now also imposed laws on them that lifted their former slaves to
new political positions, must also not be underestimated.
Andrea Stone, ‘Interracial sexual abuse and legal subjectivity in Antebellum law and literature’, American
Literature (2009) 72
74
Woodward, The strange career of Jim Crow, 23
73
18
Redemption
The ‘Redeemers’ (those that seeked to undo the Reconstruction efforts and to ‘restore the Old
South’) were mainly middle class or business men, not planters. 75 However, the new and the
old leaders of the South often collaborated and formed coalitions that rested on their capitalist
ideals and goals. Thus, it can be argued that ‘Redemption’ was not the restoration of the old
ways in the South, but can more accurately be portrayed as the new southern way to adapt to
the processes which had taken over North-America in the 19th century. Besides, since Radical
Reconstruction efforts only lasted for a short period of time, some authors claim that the
impact of the Reconstruction on the South was less profound than that of Redemption.76 This
doesn’t mean that the Southerners didn’t make use of the ‘traumas’ of Reconstruction to
advance the politics of Redemption in the South. It seemed like the only way to really unite
white southerners was through advocating white supremacist views.77
Nevertheless, some historians have advocated the view that in this period there was still
considerable room for African-Americans to make use of their newly acquired civil and
political rights.78 According to them, relationships between white and black Americans
weren’t completely final and the African-Americans who were on the bottom of society still
cherished the same hopes as impoverished whites in the South, the hope that one day their life
would be a better life.79 Besides, at this time a large number of African-Americans used their
voting power to exercise influence over the making of the laws.80 However, just as during
Reconstruction, they had to reckon with white discourse on race, and there weren’t a lot of
white southerners or even northerners that advocated other terms of equality, such as social or
economic emancipation.81 Some parts of the southern elite did advocate that AfricanAmericans would use their voting rights, but this was mainly to manipulate them to support
the old planters class against the Independent parties of the ‘hillbillies’ that had sprung up
after Reconstruction and had increasingly caused fraction under the white southern
population.82 An example of this can be found in the words of Democratic party leader Wade
Hampton, who claimed that; ‘The best friends of the colored men are the old slaveholders,
75
,Norton, A people and a nation, 40
Woodward, Origins of the new South, 20-22
77
Ibidem, 51
78
Quispel, Hardnekkig wantrouwen, 19
79
Ibidem, 20-21
80
Woodward, The strange career of Jim Crow, 33
81
Quispel, Hardnekkig wantrouwen, 19-20
82
Woodward, Origins of the New South, 75-78
76
19
they will defend your right to vote because it gives to the South infinitely more power than we
ever had before.’83
After 1890, both economic and political developments made life harder for AfricanAmericans in the South. Economically, the sharecropping or crop lien system combined with
the declining cotton prizes made southern farmers, both black and white, more and more
‘enslaved to debt’.84 Politically, the populists of the new People’s Party gave southern blacks
a new vote in the political future of America, which was threatening to white southerners.
Thus a solution was sought in the exclusion of African-Americans from their voting rights in
many ways, to most of which the government turned a blind eye. In the 1890’s other attempts
were also made at discrimination, in the form of Jim Crow-laws, laws that legalized
separation between black and white southerners.85 By this time, social-Darwinist ideas of
degeneration of races and survival of the fittest, already had a firm hold on the American
South. The emancipation of the negro was believed to have enormous consequences for the
race in general and for their danger to white southern (wo)men. White women had always
been the subject of ideas about honor, purity and virginity in the South, and together with the
new scientific ‘discoveries’ in Europe that emphasized the danger of racial mixing of whites
with inferior races, deep fears of black (male) sexuality were aroused in the minds of white
southerners. 86 Due to new industrialization and urbanization, the African-Americans in the
South were no longer within reach of the influence of white southerners, and the migration of
blacks spurred a big fear in the minds of whites.87
All these developments influenced the discourse on race and crime in the American
South. In an address to the Social Science Association, the American statistician Walter F
Willcox claimed that: ‘In our own State of New York the negroes, in proportion to their
numbers, contributed over five times as many as the whites to the prison population. These
facts furnish some statistical basis and warrant for the popular opinion, never seriously
contested, that under present conditions in this country a member of the African race, other
things equal, is much more likely to fall into crime than a member of the white race.’88
Although Willcox sees the increase in criminality mostly as a result of failures in upbringing
83
Charleston News and Courier, September 20 (Auburn, 1927), 101-102. In: Woodward, Origins of the New
South, 79
84
Quispel, Hardnekkig wantrouwen, 22
85
Ibidem, 22-27
86
Ibidem, 28-34
87
Ibidem, 29
88
Walter F. Willcox, ‘Negro criminality: an address delivered before the American Social Science Association at
Saratoga’ (September 6, 1899) From Slavery to Freedom: the American Pamphlet Collection, 1824-1920, 5-6
20
instead of biological characteristics of the ‘negro race’89, and even quotes the famous black
scholar W.E.B. duBois to show his concern for the problem of negro criminality90, some of
his words do resemble accounts of race during slavery. For instance, his claims that: ‘one of
the virtues of civilization imperfectly developed in the negro is veracity, and accounts coming
from them must be tested carefully before acceptance’,91 is comparable to the accounts of
Thomas Cobb on the mendaciousness of the negro that we discussed in the first section of this
chapter. Furthermore, his comparison of black motivations for crime as ‘revenge’ (see also
Hermann Burmeisters words on motivations for negro crime as expressed in the first section
of this chapter) and his classification of certain actions of white southerners as ‘retaliation’,92
clearly suggests the different standards used for classifying actions of white Americans and
actions of black Americans as ‘crime’. Finally, Willcox’s suggestion that this increase in
criminality is a result of the worsening of race relations due to emancipation and
reconstruction policies,93 reveals the same paternalistic view towards black southerners that
was apparent in race discourses during slavery.
Thus, the influence of Redemption wasn’t the revision of discourse on race and crime.
Rather, it was a period in which some developments and tendencies that had already been
visible during Reconstruction were further strengthened. Although African-Americans could
still vote during periods of Redemption, they could not ignore the politics of white
supremacism and were sometimes even forced or manipulated to be part of them. Ideas that
were comparable to the paternalistic discourse of slavery, or echo’s of this discourse,
continued to be expressed well into the 1890’s. The political, economic and scientific
developments of the 1890’s also brought new ideas to the fore, and the combination of old
tendencies and new scientific stimulations of fears of interracial mixing and black sexuality
resulted in an increased focus on racial separation and the criminalization of interracial
contact. The thoughts behind this are exemplified in the words of a woman from Georgia,
who states that; ‘Since our old friend, the negro, who was as a slave trustworthy and gentle,
seems to have retrograded through freedom into a dangerous beast, it is surely necessary that
he be removed from among us.’94
Willcox, ‘Negro criminality’, 24
Willcox, ‘Negro Criminality’, 7
91
Ibidem, 23
92
Ibidem, 18-22
93
Ibidem, 23-24
94
Joel Williamson, The crucible of race; black-white relations in the South since emancipation (Chapel Hill
1977) 111. In: Quispel, Hardnekkig wantrouwen, 30
89
90
21
Chapter II: developments in application of racial law in the courts,
1850-1900
In the previous chapter we saw the ways in which black southerners as well as interracial
relationships in the South were criminalized in legal, political, scientific and public discourse
during the second half of the nineteenth century. We also analyzed the historical context of
the discourse on race and crime and (possible) motivations that were hidden behind the words
of white Southerners. Although the legal position of African-Americans in the South did
improve somewhat over time, their influence on white southern crime and race discourse was
still minimal. In this chapter I will also try to show the ways in which African-Americans
reacted to the stigma’s that were enforced upon them, by investigating how this legal position
was dealt with in practice. This I will do by providing a short analysis of three court cases in
chronological order. I will focus on how black southerners were portrayed in court rooms by
white southerners (with an emphasis on ‘normal’ and ‘abnormal’ categories of behavior), the
reaction of African-Americans to this in court and the way in which racial discourse affected
the verdict of the jury.
State of Missouri vs Celia (1855)
In 1855 in the State of Missouri, a slave named Celia was convicted to death by hanging for
the manslaughter of her master, Robert Newton. For years Celia had allegedly been raped and
assaulted by Newton, resulting in three pregnancies. She had been in a relationship with
another slave, George, who told her that he would stop seeing her if she continued to have
sexual intercourse with her master. Thus, Celia had tried to persuade Newton to leave her
alone, but to no advent. One night when he came by her cabin, she struck him with a stick and
burned his body to dispose of the evidence.95 Celia’s case has already been conducted to
thorough research by Andrea Stone in a study on the legal subjectivity of enslaved women
when dealing with sexual abuse by masters.96 She distinguishes certain elements of historical
context and certain discourses that influenced Celia’s trail and verdict, as well as her image in
contemporary newspapers. First of all, she argues that since slaves and their bodies were seen
95
Kathryn.Cullen-DuPont, "State of Missouri v. Celia, a Slave: 1855." Great American Trials.
2002. Encyclopedia.com. 30 Dec. 2012
96
Andrea Stone, ‘Interracial sexual abuse and legal subjectivity in Antebellum law and literature’, American
Literature (2009)
22
as property of their master, the rape of a slave by their master was not subject to legal
punishment.97 A raped slave was ‘neither a person under criminal law nor property protected
by civil law.’98 However, Celia’s defense lawyers employed a strategy of pleading ‘not guilty’
on the basis of a 1845 statute in Missouri law that held that “Every person who shall take any
woman, unlawfully, against her will, with intent to compel her by force, menace or duress . . .
to defile [her] upon conviction thereof shall be punished by imprisonment.”. Although the
judge eventually did convict Celia because he didn’t believe the notion of ‘any woman’
should be including black enslaved women, the strategy of the defense lawyers does indicate
that they believed it did, and even that they believed there was a chance of persuading the
judge to adopt this view as well.99
Furthermore, Stone suggests that the trial of Celia and other slaves who assaulted or
murdered their master in reaction to continuous sexual abuse, turned normal notions of justice
and morality around. Since enslaved women could never legally be viewed as victims of rape,
the only way they were able to have a role in the judicial system was by being charged as a
criminal. However, when in this criminal process the suggestion that the female slave was a
victim of rape was put forward, not only did she employ a double role as a criminal, she also
made her master subject to moral and legal condemnation. Thus she enforced upon him the
role of perpetrator.100 By turning around the judicial system in this way, female slaves
challenged the ideological foundations of slavery, the idea that slavery was beneficial for
African-Americans.101 At the same time Stone believes that the case of Celia strengthened the
stereotype of black criminality, which was already stimulated by an increasing fear of slave
revolts and insurrections in the 1850’s.102
To investigate this, we shall look at the portrayal of Celia in court room. There was an
obvious distinction to the way in which Celia was portrayed by her lawyers and by the public
prosecutor and newspaper journalists. As I mentioned before, Celia’s lawyers emphasized the
victimhood of the slave, resorting to what Stone calls ‘sentimentalism’.103 In this way, the
tendency of Celia to defend herself against the continuous sexual abuse of her master is
‘normal’ behavior. The public prosecutor and diverse newspapers reporting on the case,
however, devoted themselves to a different strategy: that of portraying Celia as an evil or
Stone, ‘Interracial sexual abuse and legal subjectivity’, 67
Ibidem, 68
99
Ibidem, 70
100
Ibidem, 71
101
Ibidem, 73
102
Ibidem, 72
103
Ibidem, 77
97
98
23
monstrous woman, or what Stone also calls the tradition of ‘Gothicism’. 104 Thus, we can see
that both sides tried to control the decision of the judge and exert their power through
categorizing the actions of Celia, one side emphasizing the ‘normality’ of Celia and the
similarity of white and black notions of crime, self-defense and responsibility, the other side
emphasizing the ‘otherness’ of Celia and thus her ‘abnormality’ according to white standards.
From the verdict we can quite safely conclude which view was dominant at the time.
Concerning the agency of Celia we must, first of all, acknowledge that the act of killing
her master, whether completely intentional or more accidental, is a powerful statement in
itself. Although it may not have been her intention, Celia did influence notions of black and
white criminality and discourse on race and crime in this way, as discussed above. She was
not allowed to testify in court, being a slave, and thus her story had come to us only through
the statements of two white men who were assigned to interview her and through a short
confessionary statement.105 However, it is interesting that in this confession, Celia does not
address her motives and the image that radiates through the text seems much more alike the
prosecutor’s portrayal of Celia as an evil, murderous woman, than the defense’s sentimental
notions of self-defense.106 Thus, Celia seems to have used the power that was given to her in
being able to express this statement as a way of protesting the white defense’s portrayal of her
not only as a victim, but also as a victim that is more or less equal to white victims of rape.
Then, finally, it seems clear that the discourse of the ‘abnormal’ slave who killed her master
and the impossibility of comparing the rape of white women to the rape of enslaved black
women exerted the most power and control over the judge, since the suggestion that Celia had
been subject to rape wasn’t even addressed in the final verdict.
The case of Celia illustrates that slaves did have an influence on race and crime
discourse through their actions and confessions, but that this influence was often to their
disadvantage, since their actions were often manipulated to fit into white notions of black
criminality and the paternalistic discourse of slavery. Although Celia’s lawyers tried to
include her into notions of white womanhood and sexuality, implying that they had some
hope this strategy would work, the attitude of Celia in her confession suggests that she rather
gave in to the dominant white southern discourse.
Stone, ‘Interracial sexual abuse and legal subjectivity’, 78
Kathryn.Cullen-DuPont, "State of Missouri v. Celia, a Slave: 1855." Great American Trials.
2002. Encyclopedia.com. 30 Dec. 2012
106
Stone, ‘Interracial sexual abuse and legal subjectivity’, 83
104
105
24
Strauder vs. West Virginia (1880)
In 1872, the colored Taylor Strauder was trialed for the murder of Anna Strauder by the
circuit court of Ohio County in West Virginia. The case was first, upon request of Mr.
Strauder, postponed until 1873, when he filed a motion to be trialed by the country court of
Ohio on the grounds provided by the new legislature of 1873. This motion was denied, and
upon this Mr. Strauder filed a bill of exceptions to the opinion of the court. However, on the
8th of May 1873 a jury of twelve men found Mr. Strauder guilty of first-degree murder and
demanded that he be hanged for this. After this, and before the final judgment, Taylor
Strauder filed two more motions, one for a new trial, and one that the judgment be arrested.
Both of these notions were also denied, and the judge endorsed the final verdict of the jury.107
Then, Mr. Strauder appealed to the Supreme Court of West Virginia, which affirmed the
decision of the circuit court.
In 1879, Taylor Strauder sued the state of West Virginia in the Supreme Court of the
United States, for not having addressed his notion that: ‘by virtue of the laws of the State of
West Virginia, no colored man was eligible to be a member of the grand jury or to serve on a
petit jury in the State’108, and that his verdict was influenced by his all-white jury. The
Supreme Court of the United States decided upon this that the stature of West Virginia that
held that: ‘All white male persons who are twenty-one year of age and who are citizens of this
State shall be liable to serve as jurors, except as herein provided’109, was indeed
discriminatory. Thus, it was against the fourteenth amendment of the United States
constitution, which ‘although prohibitory in term, confers by necessary implication a positive
immunity, or right, most valuable to persons of the colored race -- the right to exemption from
unfriendly legislation against them distinctively as colored -- exemption from discriminations,
imposed by public authority, which imply legal inferiority in civil society, lessen the security
of their rights, and are steps towards reducing them to the condition of a subject race.’110 It
was argued by the Judges of the Supreme Court, that the West Virginia law denied black
citizens equal protections of the laws, since they didn’t have the opportunity to be judged by
107
Taylor Strauder Case- Reports of Cases argued and determined in the Supreme Court of Appeals of West
Virginia. Vol. VIII, from July 17th, 1874, to January 1st, 1876. Reprint 1910. Also known as West Virginia
Reports http://www.wvculture.org/history/africanamericans/strauder02.html
108
Strauder v. West Virginia. Supreme Court Cases: Re-establishing Order (1864-1930), 1999, Academic Search
Database
109
Strauder v. West Virginia, Academic Search Database
110
Ibidem
25
their peers, and by ‘persons of the same legal status’.111 The judges decided that the ruling of
the circuit court in 1874 had been erroneous and therefore, the case was remitted.
There are a few aspects of this case that are particularly relevant for my research and
that I would therefore like to highlight. First of all, compared to the case of Celia, Taylor
Strauder could exert a lot more power and control over his court case. However, at first this
power to testify, to protest to his treatment by the jury and even to protest a Virginia statute
was useless, since he was sentenced to death by a circuit court in Ohio and later by the
Supreme Court of Virginia. It was only when he took his claim to a national level that it was
heard, thus illustrating the importance of the political climate in which a claim for equal rights
was made by a black citizen. Furthermore, although judge Strong of the United States
Supreme Court did declare the Virginia statute to be discriminating in nature, it also held that
a state may make discriminations on the basis of other qualifications, such as age, gender and
level of educations. Since the recently freed black southerners often didn’t have access to the
same education as white men, this didn’t make it hard for racist southerners to discriminate
blacks on other grounds, as was often done with voter registration.112
Looking at some of the statements of the jury also underlines the ambiguity of the
concept of equality of colored and white men. For example, although judge Strong states that
blacks and whites should have equal protection from the law, he also maintains that blacks
deserve the right to be judged by persons that are equal and of the same legal status, thus
indicating that in his opinion black and white citizens couldn’t be viewed as truly equal or of
the same legal status. Furthermore, in his argument about the reasons for the ratification of
the fourteenth and fifteenth amendment, these is also the echo of the paternalistic sentiments
of slavery. For instance: ‘This is one of a series of constitutional provisions having a common
purpose -- namely, securing to a race recently emancipated, a race that, through many
generations, had been held in slavery, all the civil rights that the superior race (added
emphasis) enjoy.’113 ‘The colored race, as a race, was abject and ignorant, and in that
condition was unfitted to command the respect of those who had superior intelligence. Their
training had left them mere children, and, as such, they needed the protection which a wise
government extend to those who are unable to protect themselves.’114
The importance of this court case is that it shows that, thirty years after the conviction
of Celia for murder and after the official ending of Reconstruction policies, Strauder was able
111
Strauder v. West Virginia, Academic Search Database
Quispel, Hardnekkig Wantrouwen, 27
113
Strauder v. West Virginia, Academic Search Database
114
Ibidem
112
26
to defeat his conviction by challenging a State law. This illustrates that the Fourteenth and
Fifteenth Amendments still had sufficient political power as to inhibit the implementation of
discriminatory politics. Besides, nothing in the decisions of the judges in both of these cases
suggests that the filing of complaints and motions and the procedure of suing the State of
West Virgina, was anything ‘abnormal’. However, the complaint of Taylor Strauder to the
Statute of Virginia as phrased by a judge that:
‘by virtue of the laws of the State of West Virginia, no colored man was eligible to be a
member of the grand jury or to serve on a petit jury in the State; that white men are so
eligible, and that, by reason of his being a colored man and having been a slave, he had reason
to believe, and did believe, he could not have the full and equal benefit of all laws and
proceedings in the State of West Virginia for the security of his person as is enjoyed by white
citizens, and that he had less chance of enforcing in the courts of the State his rights on the
prosecution, as a citizen of the United States, and that the probabilities of a denial of them to
him as such citizen on every trial which might take place on the indictment in the courts of the
State were much more enhanced than if he was a white man.’115
suggests that Strauder was very aware of the existence of certain discourses among the white
population which would influence his chance of being convicted for murder. Furthermore, the
prohibition of discrimination on racial grounds didn’t necessarily mean that white and black
citizens were considered equal in the court room. Both the earlier conviction of Strauder
despite his continuous motions and bills, and the words of the Supreme Court judges testify to
the fact that it was up to white citizens if African-Americans would enjoy certain rights. Some
(Southerners) therefore saw it as their duty to withhold them their rights, while others insisted
that the ‘inferior race’ should be protected by the white man, for they were ‘ignorant’ and not
able to protect themselves. Therefore, the paternalistic discourse of slavery still influenced the
verdicts in criminal cases at this time, although in this case (mainly due to political factors) in
a positive way.
115
Strauder v. West Virginia, Academic Search Database
27
Plessy vs Ferguson (1896)
In 1892, Homer Plessy, an American citizen of mixed race (one eight African and seven
eights Caucasian), broke the 1890 Louisiana Separate Car Act that assigned separate railroad
cars to the white and the black race. After buying a ticket aboard of the East Louisiana
Railway and occupying a seat in a car reserved for whites, he was arrested by the conductor.
However, the event occurred after Plessy had declared himself to be ‘colored’, since this
wasn’t apparent from his physical appearance. That Homer Plessy’s appearance resembled
that of a white American was one of the reasons why he was chosen for this test case from the
New Orleans Creole community to challenge the constitutionality of the Louisiana law.116
After the act had taken place, Plessy was brought to the county jail and trialed in the District
Court of Orleans, which overruled Plessy’s statement that the Louisiana State Act was
unconstitutional and he could thus not be charged for his violation of the law. Thereupon,
Plessy issued a writ of error from this court and his case was brought before the Supreme
Court of Louisiana, which also upheld the constitutionality of the Louisiana law. Finally, in
1896 the case was brought before the Supreme Court of the United States.117
Justice Harlan Brown delivered the majority opinion of the United States Supreme
Court in 1896. He claimed that the Louisiana State Act was not violating the Thirteenth
Amendment to the Constitution of the United States, since this amendment was primarily
meant to abolish slavery and involuntary servitude and thus did not apply to an ‘ordinary civil
injury’.118 As concerns the Fourteenth Amendment, Justice Brown argued that, although the
amendment was meant to ensure the equal protection of the laws for the recently emancipated
African-Americans, it could not have meant to completely eradicate distinctions between the
two races based on colour, or to enforce social equality of the two races. Evoking the example
of the long tradition of segregated schools, the judge claimed that separate facilities don’t
necessarily mean that the two races aren’t equal, as long as the laws don’t confine the political
rights of black citizens. The right of the conductor to determine the race of a passenger and
assign him to a certain car accordingly, however, is seen to be problematic by the judges, and
therefore there should be a provision for compensation if the wrong race is accidentally
assigned to a certain car. Furthermore, the claim of the defence counsel that this sort of
Mark Golub, ‘Plessy as passing: judicial responses to ambiguously raced bodies in Plessy vs Ferguson’, Law
& Society Review 39 (2005) 563-564
117
Plessy vs Ferguson, ‘Error to the Supreme Court of Louisiana’, Cornell University Law School: Legal
Information Institute
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0163_0537_ZS.html
118
Plessy vs Ferguson, ‘Error to the Supreme Court of Louisiana’, Brown, J.: Opinion of the Court
116
28
legislation eventually could be used to separate citizens according to other characteristics such
a hair colour, of could eventually be used to hold one half of the street for one race and the
other half for the other, is dismissed by the argument that only laws that are meant to promote
the ‘public good’, and not for the oppression or annoyance of a certain class, are deemed
constitutional. The laws of Louisiana fall within this limits and if they are seen by the colored
citizens as marking them with a stamp of inferiority, Brown argues, it is only because they
choose to construct the matter that way. Social equality of the two races can, according to
Justice Brown, not be enforced by legislation, but should be ‘the result of natural affinities, a
mutual appreciation of each other’s merits, or voluntary consent of individuals.’ Therefore,
the judgment of the lower courts was affirmed and Homer Plessy had to pay a fine for
violating the Separate Car Act.119
Mark Golub analysed the case of Plessy in the light of the judiciary’s role in the
construction of racial categories.120 According the him, the ‘passing’ of Plessy (and other
citizens of mixed race origin) as one of the white race, constitutes within the racial legal
discourse both a challenge to the physical distinctions on which racial segregation (and racial
discourse in general) was build and a violation of white supremacist norms of sexual
behaviour.121 He argues that legal discourse is of the utmost importance for the determining of
racial categories and that the instability of these arbitrary separations in practise both signify
and threaten the power of the judiciary to establish racial categories.122 Foucault would
probably highlight the amount of power and control that the judiciary thus inflicts upon itself
by taking on the problem of making racial distinctions. Power in the sense of determining
who falls within which racial group (and thus, who has the privileges and who has not), and
control in the sense of control over the sexual behaviour and mixing of the races.
If we examine the position of Homer Plessy and the power he has in this court case and
the legal discourses that are apparent in it, we must first of all acknowledge that his subjection
to this court was voluntary (his case being a test case) and that thus his power begins in letting
himself be trialed in the first place. Furthermore, Plessy’s claim that he was deprived of his
reputation of being white (since his physical appearance was that of a white person) by the
conductor and that he was thus deprived of a ‘property’, a way of thinking which is approved
by Justice Brown, 123 suggests an adherence to white legal discourse of race as property. This
Plessy vs Ferguson, ‘Error to the Supreme Court of Louisiana’, Brown, J.: Opinion of the Court
Mark Golub, Plessy as passing’, 563
121
Ibidem, 565
122
Ibidem, 567
123
Mark Golub, Plessy as passing’, 571
119
120
29
both signifies the power of the legal discourses of white Americans to construct a frame in
which black Americans also had to make their specific claims, but, on the other hand also
suggests the subtle power that African-Americans had to challenge certain aspects of the
racial discourse of white Americans through the employment of legal discourse of white
Americans. Thus African-Americans could use the tools that the white legal discourse
provided them with to challenge white Americans in their own domain. There is also an
interesting parallel with black slaves being ‘property’ of their master (and thus the viewing of
a whole race as ‘property’ of another race) and the claim of Homer Plessy that his apparent
whiteness was ‘property’. Plessy’s use of the legal discourse is most often treated with a
condescending and demeaning tone by Brown, as in the argument of Plessy that the Separate
Car Act violated his rights under the Thirteenth amendment is treated. According to Brown,
that the Separate Car Act doesn’t violate this amendment is ‘too clear for argument’.124
In this case thus, we see the portrayal of African-Americans as substantially different
from white Americans, although it does not become apparent in which these differences lie
exactly. The reaction of Plessy to this seems to be an attempt to use the white legal discourse
to change the racial categorization in his favour. It is hard to distillate any information on the
enforcement of criminalization norms and categories of ‘normal’ and ‘abnormal’ behaviour
on African-American citizens from this case. Instead we see an emphasis on the racial
categorization of individuals, the power that this gives to the court and how this is challenged
by Homer Plessy. Comparing this case to Celia’s it comes to the attention that, where Celia
protested to the application of white legal discourses to her case in her confessions, Plessy, as
Strauder also did, employed these discourses for the advancement of his cause. Why this
strategy worked in Taylor Strauder’s case but not in the case of Homer Plessy can be
explained by circumstances, a change which I have already described in the first chapter of
this paper, as well as differences in the cases. The case of Strauder concerned the violation of
political rights, which were protected by the Fourteenth amendment, while Plessy vs Ferguson
was about the social discrimination of African-Americans, which was not really seen as
discrimination by most Southerners, but more of a legislation of ‘racial instincts’.125
124
125
Plessy vs Ferguson, ‘Error to the Supreme Court of Louisiana’, Brown, J.: Opinion of the Court
Ibidem
30
Conclusion
In this paper, I have tried to provide the reader with insights and ideas about the discourse on
race and crime in the southern United States and the way in which this discourse evolved in
the second half of the nineteenth century. Although many writers already made a contribution
to (parts of) this topic, I have tried to make my own unique contribution by ‘filtering’ the
accounts of racial relations and racial discourses and the developments of these in the second
half of the nineteenth century through a Foucauldian ‘lens’. Furthermore, I have linked these
with certain historical developments to provide an overall historical framework in which
racial relations in this period should be understood. Lastly, I added to this approach an
examination and comparison of three court cases in this period. I will now conclude this paper
with a short summary of the insights that I have developed over the course of writing this
paper.
During the existence of slavery in the South, a paternalistic view existed that saw
whites as the only people able to inhibit the inherent criminal tendencies of the negro race.126
This discourse provided a justification for slavery127 and thus gave the slaveholders in the
South the power to exploit the black population for increasing profits in an expanding
economic system.128 The powerful discourse of the criminal tendencies of the negro was also
used in the political battle between the North and the South of the United States in the
increasing tensions during the 1850’s and even in the debates between the urban population of
the South and the rural slaveholding class.129 African-Americans were at this point rendered
almost completely powerless, not being able to challenge the laws on race and crime in the
political sphere and not being able to testify, let alone sue, in court.130 The only way in which
they could influence discourse, as we saw in the case of Celia, was to be charged with a crime
themselves, a crime that seemed to contradict the assumptions on which the paternalistic
discourse on slavery rested.131 Besides, as we also saw in the case of Celia, through their
confessions slaves could, to some extent, express their opinion and either participate and use
white discourses or reject them, as Celia did. However, the narrative of the crimes of slaves
126
Chris Quispel, Hardnekkig wantrouwen, 29
In Chris Smaje, Natural Hierarchies: the Historcial Sociology of Race and Caste (Malden, 2000) the
argument of Barbara Field is explained that race is not an ‘idea’ but more of an ‘ideology’, which serves rational
or practical reasons at a certain time, see Smaje, Natural Hierarchies, 137-138
128
Norton, A People and a Nation, 264
129
Campbell, ‘A murderer of a somewhat dark complexion’, 32-33
130
Kluger, Simple Justice, 27
131
Stone, ‘Interracial sexual abuse and legal subjectivity’, 67-73
127
31
were often manipulated to fit into the existing discourse on crime and race, and actions of
slaves rarely had any effects on the final verdict.
After the Civil War, the paternalistic relations of slavery were legally prohibited, and
the power of African-Americans to influence laws on race and crime did increase, since they
could now vote and be elected in Congress. However, it seems that as Southerners lost control
over the individual actions of the negro, the dominant way of dealing with race relations in the
South became, apart from some attempts to legally enforce paternalistic relations immediately
after the Civil War, more and more the securing of a superior position for Southern whites
through the criminalization of race relations, as was expressed in the Black Codes.132 The
political tensions between Northerners and Southerners remained a big motivating factor for
the employment of certain discourses, and the Northern spur to create equality among the two
races can also be seen as a way of securing badly needed political support from AfricanAmericans.133 This is also illustrated by the fall of Reconstruction policies in 1877, when
Republicans and Democrats entered in a new and promising cooperation. On an emotional
level, the fear of black revenge and revolts, already developed during slavery,134 was a big
motivating factor for protesting against emancipation laws. In this period the laws on race and
crime reveal both a tendency to deal with this fear by strengthening the old paternalistic
discourses of slavery, and a new emphasis on the criminalization of race relations, which was
stimulated by the increasing fear of (male) black sexuality aroused by new scientific
developments in Europe.
However, it seems that between the official end of the Reconstruction policies and the
1890’s, there was still considerable room for African-Americans to exercise some extent of
political power.135 This is also illustrated by the case of Taylor Strauder, who successfully
challenged a law that excluded black Virginians from jury service. However, in the 1890’s,
the rise of the Populist party and the black southern support for this party, as well as the
worsening economic situation for southern farmers,136 stimulated the tightening of racial
boundaries in a process that had already been underway for some time. The promising words
of the Radical Republicans might have eluded the fact that they tried to impose laws which
contrasted with every aspect of southern life on a part of the country that had just lost
everything due to the civil war and emancipation of the slaves. In this light it is not surprising
132
Woodward, The strange career of Jim Crow, 23
Ibidem, 28
134
Andrea Stone, ‘Interracial sexual abuse and legal subjectivity in Antebellum law and literature’, American
Literature (2009) 72
135
Quispel, Hardnekkig wantrouwen, 19
136
Quispel, Hardnekkig wantrouwen, 22-27
133
32
that southerners tried to hold on to their racial discourses from slavery as long as possible,
while also developing new and discriminating means to cope with the new situation. I am not
saying that the goals of the Republicans weren’t admirable and that it wouldn’t have been a
great improvement for African-Americans had the Reconstruction efforts lasted. But instead
the Republicans provided them with a short-lived hope of improvement and left them with the
mess of disappointment for nearly another century. In my opinion, this story illustrates the
importance of discourse and the way in which it influences our behaviour. The first step in
emancipation is the acknowledgement of discourses that work against this process. If these
are not addressed, then the result might be as heartbreaking as the lost promise of
Reconstruction for African-Americans.
33
Bibliography:
Books:
Agozino, Biko, Black women and the criminal justice system: towards a decolonization of
victimisation (Aldershot 1997)
Hall, Stuart, Policing the crime: mugging, the state, and law and order (Basingstoke 1987)
Henderson, Donald H., The negro freedman: life conditions of the American negro in the
early years after emancipation (New York 1952)
Kluger, Richard, Simple justice: the history of Brown vs. Board of Education, the epochal
Supreme Court decision that outlawed segregation, and of black America’s century-long
struggle for equality under law (New York 1977)
Norton, M.B. e.a., A People and a Nation: a history of the United States (9e editie;
Wadsworth 2008)
Quispel, Chris, Hardnekking wantrouwen: De relatie tussen zwart en blank in de VS
(Amsterdam 2002)
Smaje, Chris, Natural Hierarchies: the historical sociology of race and caste (Malden,
Massachusetts 2000)
Woodward, C. Vann, The strange career of Jim Crow (New York 1966)
Woodward, C. Vann, Origins of the New South 1877-1913 (Baton Rouge, 1964)
Articles:
Blécourt, Willem de, ‘The making of the female witch. Reflections on witchcraft and gender
in the early modern period’, Gender & History 12:2 (2000)
Campbell, James, A murderer of 'a somewhat dark complexion'?: criminal justice and
constructions of race in Antebellum Virginia, American 19th century history 5:3 (2004)
34
Carrigan, William D., In defense of the social order: racial thought among white Presbyterians
in the nineteenth century, American Nineteenth Century History (July 2000)
Covington, Jeanette, Racial Classification in Criminology: The Reproduction of Racialized
Crime, Sociological Forum 10:4 (1995)
Dixon, Travis L, and Christina L. Azocar, ‘Priming crime and activating blackness:
understanding the psychological impact of the overrepresentation of blacks as lawbreakers on
television news’, Journal of Communication 57:2 (2007)
Foucault, Michel, ‘About the concept of the “dangerous individual” in 19th-century legal
psychiatry’, International Journal of Law and Psychiatry 1:1 (1978)
Golub, Mark, ‘Plessy as passing: judicial responses to ambiguously raced bodies in Plessy vs
Ferguson’, Law & Society Review 39 (2005)
Harrison, Robert, ‘Race, Radicalism, and Reconstruction: Grassroots Republican Politics in
Washington, D.C, 1867-74’, American Nineteenth Century History (2002)
Hartman, Ian C., Appalachian Anxiety: Race, Gender, and the Paradox of “Purity” in an Age
of Empire, 1873–1901, American 19th century history 13:2 (2012)
Healy, Paul, ‘Between Habermas and Foucalt: On the limits and possibilites of critical and
emancipatory reason, South African Journal of Philosophy, 16:4 (1997)
Kolsky, Elizabeth, ‘”The Body Evidencing the Crime’: Rape on Trial in Colonial India, 18601947’. Gender and History 22:1 (2010)
Koshar, Rudy, ‘Foucault and social history: Comments on ‘combined underdevelopment’’,
American Historical Review (1993)
Kousser, J. Morgan. The Supreme Court and the Undoing of the Second Reconstruction.
National Forum, Vol. 80 Issue 2 (Spring 2000)
35
Light, Michael T., and Casey T. Harris, ‘Race, space and violence: exploring spatial
dependence in structural covariates of white and black violent crime in US counties’, Journal
of Quantative Criminology 28:4 (2012)
Melossi, Dario, ‘Changing representations of the criminal’, British Journal of Criminology,
40 (2000)
Parker, Ian, ‘Discourse: definitions and contradictions’, Philosophical Psychology, Vol 3,
issue 2/3 (1990)
Re, Richard M., and Christopher M. Re, ‘Voting and Vice: Criminal Disenfranchisement and
the Reconstruction Amendments’, Yale Law Journal (May 1, 2012)
Robert, R.J., ‘James L. Kemper and the Virginia redeemers face the race question: a
reconsideration’, Journal of Southern History 38:3 (1972)
Schaefer, Brian P. and Peter B. Kraska, ‘Felon disenfranchisement: the judiciary’s role in
renegotiating racial divisions, Race and Justice 2:304 (2012)
Stone, Andrea, ‘Interracial sexual abuse and legal subjectivity in Antebellum law and
literature’, American Literature (2009)
Thompson, Kevin, ‘Historicity and transcendentality: Foucault, Cavailles, and the
phenomenology of the concept’, History and Theory 47 (February 2008)
Primary sources:
American Memory, ‘The Dred Scott Decision: opinion of Chief Justice Taney (1857),’ Slaves
and the Courts 1740-1860, http://memory.loc.gov/cgibin/query/r?ammem/llst:@field(DOCID+@lit(llst022div3))
BlackPast.org: remembered and reclaimed, ‘Reconstruction Amendments’
http://www.blackpast.org/?q=primary/reconstruction-amendments
BlackPast.org: remembered and reclaimed, ‘(1866) Mississippi Black Codes’
http://www.blackpast.org/?q=primary/1866-mississippi-black-codes
36
Hermann Burmeister e.a., ‘The comparative anatomy and psychology of the American
Negro’, Republished from: Evening Post (1853), From Slavery to Freedom: the American
Pamphlet Collection, 1824-1909
http://memory.loc.gov/cgibin/query/r?ammem/rbaapc:@field(DOCID+@lit(rbaapc03500div2
)):
Kathryn.Cullen-DuPont, "State of Missouri v. Celia, a Slave: 1855." Great American Trials.
2002. http://www.encyclopedia.com/doc/1G2-3498200071.html
Plessy vs Ferguson, ‘Error to the Supreme Court of Louisiana’, Cornell University Law
School: Legal Information Institute
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0163_0537_ZS.html
Taylor Strauder Case- Reports of Cases argued and determined in the Supreme Court of
Appeals of West Virginia. Vol. VIII, from July 17th, 1874, to January 1st, 1876. Reprint 1910.
Also known as West Virginia Reports.
http://www.wvculture.org/history/africanamericans/strauder02.html
Thomas Cobb- An Inquiry into the Law of Negro Slavery
http://ia600301.us.archive.org/19/items/inquiryintolawof01cobbiala/inquiryintolawof01cobbia
la.pdf
United States Census Bureau, ‘Population distribution and change: 2000 to 2010’,
http://www.census.gov/prod/cen2010/briefs/c2010br-01.pdf
Walter F. Willcox- Negro criminality: an address delivered before the American Social
Science Association at Saratoga. September 6, 1899, From Slavery to Freedom: the American
Pamphlet Collection, 1824-1920
http://memory.loc.gov/cgibin/query/r?ammem/rbaapc:@field(DOCID+@lit(rbaapc33600di3)
37