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Electronic Theses, Treatises and Dissertations
The Graduate School
2013
Civiliter Mortuus: Florida Supreme Court
and the Civil Rights Movement, 1845 1896
Chris Day
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FLORIDA STATE UNIVERSITY
COLLEGE OF ARTS & SCIENCES
CIVILITER MORTUUS: FLORIDA SUPREME COURT AND THE CIVIL RIGHTS
MOVEMENT, 1845 – 1896
By
CHRIS DAY
A Dissertation submitted to the
Department of History
in partial fulfillment of the
requirements for the degree of
Doctor of Philosophy
Degree Awarded:
Fall Semester, 2013
Chris Day defended this Dissertation on November 1, 2013.
The members of the supervisory committee were:
Maxine D. Jones
Professor Directing Dissertation
Maxine Montgomery
University Representative
Peter Garretson
Committee Member
James P. Jones
Committee Member
Joe M. Richardson
Committee Member
The Graduate School has verified and approved the above-named committee members, and
certifies that the dissertation has been approved in accordance with university requirements.
ii
DEDICATION
I would like to thank several people for their assistance and patience in the completion of this
endeavor. First and foremost I would like to thank my family for all of their support without
which I could not have made it through these years. To my mother, I would like to thank you for
teaching me to be persistent and focused and never allowing me to give up on myself. To my
wonderful wife, Zainab Day, who is the most beautiful human being I have ever met. You are
my every breath and without you my life would be lost and empty. You have given me two
beautiful and vibrant children and I will always remember the sacrifices you made for our family
and me. I will never forget the hundreds of hours you gave me to finish this project and while I
may have written this dissertation it is indeed our work. This publication is ours because we did
it together. Thank you and realize words can never express my admiration for you and the
totally of your indomitable spirit.
iii
ACKNOWLEDGMENTS
I would like acknowledge my graduate committee for their hard work and patience. Dr. Joe M.
Richardson’s direction on my work on Reconstruction and postbellum activism helped clearly
articulate my prose on the subject. Dr. James P. Jones’s expertise on the Civil War and its
impact on African Americans was significant because it allowed me to better understand the
paradigm shift experienced as a result of those events. Dr. Peter Garretson was always mindful
that this subject area was not confined to the American South and that it was important to have a
global prospective in order to ask more insightful questions about human rights activism. Dr.
Maxine Montgomery always provided a kind ear and advice on how to improve my writing. To
my major professor, Dr. Maxine D. Jones, I would like to personally thank you for all of your
kind words and support over the years. Your calming strength has allowed me to transcend from
ignorance to maturity. You never gave up on me and allowed me to grow as necessary and
taught me lessons that I will never forget. Without your guidance in all aspects of my work,
from the antebellum period on, I would never have been able to finish this.
iv
TABLE OF CONTENTS
Abstract...........................................................................................................................................vi
INTRODUCTION ...........................................................................................................................1
1.
ABOLITIONISTS ARTICULATE THE CIVIL RIGHTS MOVEMENT...........................12
2.
SLAVE CODES AND THE PROTECTION OF PROPERTY ............................................31
3.
THE ENSLAVED AND A JURY TRIAL............................................................................53
4.
CIVIL WAR AND A NEW PARADIGM ............................................................................87
5.
RECONSTRUCTION AND THE NEW DISCOURSE OF FREEDOM...........................108
6.
ASSAULT ON AFRICAN AMERICAN CIVIL RIGHTS ................................................154
CONCLUSION............................................................................................................................202
BIBLIOGRAPHY........................................................................................................................207
BIOGRAPHICAL SKETCH .......................................................................................................231
v
ABSTRACT
In the American political context African Americans have the greatest legacy because of their
crusade for freedom and civil rights. Unlike Anglo-Americans, African Americans were barred
from society for no other reason than their skin color, but their fight for freedom forced
Americans to define themselves and how to protect their rights in a free society. The American
system has been touted by historians such as Gordon Wood as being a radical departure from the
British model of government. Barbara Clark Smith argued that the American Revolution was
not a radical event because it failed to meet the egalitarian principles set forth by the
revolutionary intellectuals. Wood’s response was that the radical nature of the Revolution was
not seen until well after the war and subsequent nation building, because those principles led to
emancipation and universal suffrage. Smith’s point is important to note because the immediacy
created by the concept of “radical” was not met during the Revolutionary period. For the
enslaved their lot in life had not changed with Treaty of Paris or the Constitution of the United
States. The Constitution, previous to the passage of the 14th Amendment, did not provide a
definition of citizenship. It was just assumed that an American citizen was a white male
landowner. The reality of this situation was that racial discrimination caused many to turn their
backs on egalitarianism for a racially bifurcated society. At this point, African Americans, free
and enslaved, had to collectively speak out against this discrimination and remind AngloAmericans of their egalitarian principles. The greatest legacy of Civil Rights Movement was
that it forced America to abide by its altruistic principles. African Americans forced the
definition of citizenship and created greater protections for American civil rights. This was not a
process that started in the twentieth century; it began with the inception of the American
Republic. In order to understand the true nature of society historians must look at the
dispossessed to see the worst effects of society over time. In the Antebellum period enslaved
and free blacks were those groups. The want of freedom is the simplest civil right. When
enslaved African Americans went into the court system laws used to protect freedom had to be
disfigured to protect bondage. With intent or not, every time a slave went into the court system
they had to be given a minuscule amount of rights in order to participate in the trial. This was a
challenge to the oppressive system. In a society that is governed by laws, enforcement in the
courts should be autonomous enough to overcome social discrimination, but the law is a slow
lumbering beast that has to wonder the dark woods of a fickle society before it can see the light
vi
of true autonomy. The Civil Rights Movement was significantly impacted by the court system
because it controlled the impact of law on African Americans. The movement first had to get the
courts to recognize them as human beings before they could continue the quest for freedom.
This journey can be seen in the Florida Supreme Court. The battle between property and
humanity raged on until after the Civil War and emancipation. Reconstruction created a new
dialogue of African American freedom and citizenship. No longer did they have to suffer the
courts’ myopic view of them as property. Federal intervention allowed African Americans to
exercise suffrage and participate in jury trials. After the threat of Federal intervention was
removed by apathy and paternalistic adjudication in the U.S. Supreme Court, states began
attacking African American rights and enacting segregationist laws. The Civil Rights Movement
faced an all out assault in Florida with the removal of African Americans from the voter rolls and
public conveyances. This trend towards a rigid society based on racial division was solidified
with the Plessy decision. The courts for a short time were willing to view African Americans as
first-class citizens, but inevitably reverted back to antebellum jurisprudence that saw blacks as
having no rights they were bound to respect. For African Americans, their contribution to the
historical lexicon has been the protection of rights set forth by the Constitution. They gave the
Republic a road map explaining how to protect their rights in the courtroom and on the streets.
vii
INTRODUCTION
In July of 1852, Frederick Douglass was invited to speak at a July Fourth event in
Rochester, New York. The speech known as “What to the Slave is the Fourth of July” was not
the typical patriotic oration. Douglass took the opportunity to question whether the principles of
the Declaration of Independence were extended to African Americans. He said, “The rich
inheritance of justice, liberty, prosperity, and independence bequeathed by your fathers is shared
by you, not by me.”1 Was he there to be mocked as they celebrated liberty and freedom while
his enslaved brethren could not? He said he heard the mournful wails of the enslaved and on that
day those wails were more intolerable before the backdrop of jubilance. He used cunning
imagery by stating the conduct of the nation was never blacker than on the Fourth. This color
association connotes evil in the minds of Anglo-Americans as well as the reality of bondage. His
speech should not be interpreted solely as parody. The concept of slavery as a polar opposite to
republican ideals was not lost on his audience or his followers. The speech developed more
significant dynamics; it offered an argument for civil rights activism. Douglass, along with other
abolitionists, understood the necessity for civil rights in a republic of laws. While the
Abolitionist Movement was primarily focused on the destruction of slavery, many African
American abolitionists understood it was only the first step in a much broader struggle.
Douglass claimed that slavery trampled on the Constitution and the Bible and was the sin
of America. As a rhetorical point this was a strong statement, but historically both documents
were used to support slavery in the same breath it was used to define freedom and goodwill.
This rhetorical device was used to reach his audience at a variety of levels. The invocation of
religion was not an unusual way to find common ground between the races. In the late
nineteenth century, Ida B. Wells-Barnett used similar language in her anti-lynching campaign.
Not only was Christianity used to create a common bond; it was also used to demonstrate
morality in the African American community. Many black advocates sought to reform the
morals of the community in order to prove they deserved the same rights as whites.
Douglass mentioned that some argued abolitionists did not make a favorable impression
in the public mind. He asked how he was supposed to do this. Should he spend more time
arguing a slave is a man? He felt slaveowners had already done so by enacting a number of laws
1
Herbert Aptheker, ed., A Documentary History of the Negro People in the United States, Volume I: From the
Colonial Times Through the Civil War (New York: Citadel Press Book, 1951), 331.
1
to protect slavery and control African Americans lives. Douglass continued this argument by
asking whether all men were entitled to liberty. “That he is the rightful owner of his own body?”
He claimed that the Republic had already declared the answer to this question, thus he had
nothing to prove. The goal was to understand that slavery was incongruent with God’s
morality.2
He used the Fourth of July celebration to express what he called a “scorching irony.”3
This former enslaved man was not speaking as an outsider, although some in his audience may
have seen him that way. He was speaking as a fellow American extolling the principles of the
nation in order for his enslaved brethren to share in the liberty they had earned by birth and
bloody toil. African Americans were not foreigners; they were neighbors. They were forced to
travel to the Americas and work on a variety of plantations, small farms, and perform other types
of labor. By the time this speech was given tension over slavery was reaching a fevered pitch.
African Americans were not involved in abolitionism because they were following white
activists. They were a part of the movement because it was the first major step towards their
civil rights. Black abolitionists, such as Douglass, understood that emancipation was but one
step in the process towards freedom. They understood that the protection of civil rights was
imperative to their survival in a free society. This notion was not a post-bellum creation. The
Civil Rights Movement was an evolutionary process that began during the colonial period and
later infused with republican rhetoric. This created a common political language that could be
used to discuss the nature of freedom and the definition of citizenship. This discourse was
typically contentious and violent and remained so over history.4
The Abolitionist Movement is not typically framed within the lexicon of Civil Rights
historiography. Douglass’s speech is evidence that blacks in the movement understood they
needed to fight for civil rights if they ever hoped to achieve true freedom. Emancipation was
only the first step, but civil rights are supposed to protect that freedom. Historians need to
include all eras of American History in order to adequately expand the narrative of the Civil
2
Ibid., p. 333.
Ibid., p. 334.
4
For more on Abolitionist rhetoric see Herbert Aptheker, ed., A Documentary History of the Negro People in the
United States, Volume I: From the Colonial Times Through the Civil War (New York: Citadel Press Book, 1951);
C. Peter Ripley, ed, The Black Abolitionist Papers, Volume III & IV: The United States, 1830 – 1846 (Chapel Hill:
The University of North Carolina Press, 1991); and Andrea McArdle, “The Confluence of Law and Antebellum
Black Literature: Lawyerly Discourse as a Rhetoric of Empowerment.” Law and Literature, Vol. 17, No. 2
(Summer, 2005), p. 183-223.
3
2
Rights Movement. The discourses on suffrage and segregation have overlooked the dynamics of
the movement. It ignores the definition of citizenship and how African Americans shaped it
through their activism. By allowing the lexicon to overlap different historical periods one can
better understand the complexity of the movement. This is not designed to connect the cognitive
actions of all participants, but an attempt to better understand how their actions influenced the
overall nature of civil rights activism.
Jacqueline Dowd Hall’s Long Civil Rights Movement matrix tends to fixate on the
movement in the modern era without fully recognizing the impact of activism over time. 5
Historians who use this thesis are searching for the origins of direct action in order to explain the
nature of the modern movement. If direct action was significant then why would outright
rebellion not fit into that framework? Slave rebellions were a type of direct action that elicited a
legal response in the form of stricter laws and punishments. Granted American slave rebellions
did not have the impact of the Haitian Revolution, but it is no less a form of active resistance
than a sit-in or bus boycott. Why are slave rebellions and other forms of protest ignored in civil
rights historiography? Why is the antebellum period compartmentalized? Many of the issues
that arise in that era carry over into Reconstruction and influenced race relations in the
subsequent years. The impact of law during the antebellum period should not be ignored. How
do the courts view African Americans over time and what does that say about the Civil Rights
Movement?
In order to fully realize this concept of linking the Civil Rights Movement to the
antebellum period it will be important to understand that historiography must overlap. This can
be accomplished through a state study on Florida, which will focus on the impact of the State
Supreme Court on African Americans. The use of republicanism will break with traditional
historiography by using Revolutionary Period studies. The use of the State Supreme Court will
explain the impact of law on the African American community because the purpose of civil
rights is to protect the people against government sanctioned oppression and to have those laws
protect people from attacks from other citizens. The republican synthesis used by Revolutionary
Period historians Gordon Wood and Jack Rakove will be used to frame the rhetoric of the
5
Jacquelyn Dowd Hall, “The Long Civil Rights Movement and the Political Uses of the Past,” Journal of American
History, Vol. 91, No. 4 (2005), p. 1233-1263.
3
movement.6 The conservative nature of the Revolution and its inability to implement its
egalitarian virtues will not be discussed in this study. The rhetoric and its influence on the
movement will be, which is why Wood’s thesis on the radicalism of republican ideology will be
important. These ideas are central to civil rights discourse, not the actions of revolutionary
leaders because their failures are obvious and stating them would be redundant. Rakove’s work
on the constitution and the intellectuals of the revolution provide another useful framework. He
states the revolution was not of a monolithic ideology because of the multitude of interpretations
of republicanism used to express these ideals. He believes this was important when dealing with
the strict constructionist idea of the constitution. It was a document of compromise, influenced
by numerous individuals and groups, so trying to understand its true intent is almost impossible.
The Civil Rights Movement is similar in this regard because not all activists had the same
view on how to obtain their civil rights. This study will open with a discussion on African
American abolitionist language and its diverse ideas for obtaining freedom. This is significant
because it creates a context in which the actions of enslaved blacks can be discussed.
Abolitionists articulated the intellectual ideas of freedom while enslaved blacks actually fought
for freedom whenever possible. By opening this study with the abolitionists, the Civil Rights
Movement is given an intellectual framework in the context of republican discourse.
At this point the construct must move from the theoretical to the realistic. The virtues of
the Revolution are only perfect in the realm of ideas. When the reality of racism and paternalism
are infused with these ideas egalitarianism cannot be realized. Slavery was firmly entrenched in
colonial society and there did not appear to be any reason to remove its vestiges from the new
Republic even in the face of its contradiction to revolutionary principles. They did not fail to
remove slavery; they failed to live up to their own standards and cowered behind political unity
to do so. Living in the lurch were free and enslaved blacks. This is the beginning of their
journey for civil rights in the new republic. Laws will be passed to insure their permanent
subjugation whether in bondage or in “freedom.” In the process of formulating a uniform
connection legal historiography must be used to explain how laws were interpreted.
Legal history originally shrouded itself in questions of constitutionality and the cases that
challenged or affirmed it. Law was seen as an autonomous structure separate from societal
6
Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Alfred A.
Knopf, 1966). Gordon S. Wood, The Radicalism of the American Revolution (New York: Alfred A. Knopf, 1992).
4
influences. Morton Horwitz characterized this view as Classical Legal Thought.7 Lawrence
Friedman, a legal realist, argues this approach was misleading because it fails to understand the
influence society had on the laws it passed and arguments made by jurists. He believes law was
a mirror of society and should be interpreted as such.8 He understood law could not be
articulated in a vacuum. Social history could not be ignored in the scholarly works concerning
American jurisprudence. Mark Tushnet agreed with this idea, but with some reservations.
Tushnet contends those in power perpetuate their position at the cost of others through the use of
the law, and argues that class was a better determinant for the discourse about law than anything
else. Like Eugene Genovese, he contended that race was secondary to class.9 Tushnet also
believed Classical Legal Thought had some relevance in legal historiography, but not at the cost
a full historical context.10
The Florida Supreme Court cases from the antebellum and post-bellum periods will be
used to discuss the nature of law and race relations. One of the difficulties African Americans
faced during slavery, and after, was forcing the courts to allow for their humanity and not see
them only as property. The Supreme Court is used because it provides a set of cases that were
argued to the highest level in the state and further explains how civil rights was initially a state
issue. The cases will provide evidence of how African Americans were viewed solely as
property until a criminal act was committed and how a small number of rights were given in
order to hold a trial. The right to a jury trial is one of the basic rights provided in a free society
and while these trials may have primarily benefited the slaveowner, it did give the enslaved some
rights and forced the courts to recognize their humanity. After emancipation a new paradigm
was presented, but the courts did not react quickly to the new status and still struggled with the
removal of property status. The concept of life, liberty, and property was difficult to achieve
when African Americans were trying to obtain life and liberty while at the same time whites
were trying to enforce their property “rights” upon them. The study will conclude with a
discussion on how the states reacted to Federal protection of civil rights. Justices, on the state
and federal level, were willing to use antiquated jurisprudence to justify exclusion of civil rights
7
Morton J. Horwitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (New York:
Oxford University Press, 1992), 4.
8
Lawrence Friedman, A History of American Law (New York: Simon and Schuster, 1973).
9
For more on Genevese see Roll, Jordan, Roll: The World the Slaves Made (New York: Pantheon Books, 1974)
and The World the Slaveholders Made: Two Essays in Interpretation (New York: Pantheon Books, 1969).
10
Mark V. Tushnet, The American Law of Slavery, 1810-1860: Considerations of Humanity and Interest (Princeton:
Princeton University Press, 1981).
5
in order to force blacks into second-class citizenship. This status allowed for local whites to
violently oppress them with indirect police power granted by the state as a result of nonenforcement of the law.
The framework that will be used in this study involves the concepts of republicanism,
legal realism, and the ultimate connection to the Long Civil Rights Movement. The difficulty of
linking the movement to the antebellum period is citizenship. It can be easily argued that slaves
did not have citizenship and therefore the movement does not impact them. This argument falls
short of a full explanation. The goal of the movement is freedom and the protection of that
freedom through law. From the post-Civil War era to the modern era that focus was on suffrage
and equality in public spaces. Each of these rights was needed to change the laws protecting
American citizens. If indeed this was a nation governed by laws it would be essential to make
sure those laws protected the interests of the individual and that occurred through political
representation. Civil rights gave citizens the ability to protect themselves from government
oppression and hopefully from the abuse of fellow citizens. The antebellum period should not be
ignored in this process. Slavery was a system codified by laws passed by elected lawmakers
who were supposed to represent the interests of their constituents. Those searching to legalize
bondage in the face of freedom had to use creative legal theory to do so and enslaved blacks
challenged this every time they came into the court system because the status of property could
not be fully realized in the face of their humanity. Their actions had political consequences,
none more evident than the increase in slave patrols after rumors of, or actual, rebellions. These
events are typically viewed as resistance to the institution of slavery and not civil rights activism,
but this is nothing more than grassroots activism on the part of the enslaved.
Current civil rights historiography does not concentrate on enslaved activism, instead it
has focused on the origins of the modern movement of the 1950s and 60s using Hall’s thesis.
The argument made was that the quest for civil rights changed when activists began to use
grassroots protests deriving power from the community instead of the educated elite in the court
system and intellectual circles. Historians such as Clayborne Carson argued the true nature of
the movement is derived from the people and that historians should focus more on community
activism instead of the leaders such as Dr. Martin Luther King. Carson was not stating that
6
King’s and other leaders’ experiences were not important, but rather that the community offered
a richer context to the story of the Civil Rights Movement.11
Glenda Gilmore aptly concludes the modern movement found its origins in the
communist party during the 1930s and 40s. She proposes that southern activists were educated
in the north and radicalized by communist ideology. This in turn spurred activist like Pauli
Murray to organize sit-in protests in Washington D.C. in the 1940s. Also, A. Philip Randolph
organized a rally in D.C. to protest discrimination in the workplace during World War II.12
Unfortunately, Gilmore did not fully recognize the grassroots activism of the South. Her
argument about leaders being educated in the north and then returning to the South to fight for
equality inadvertently articulates a view that southern African Americans could not find
intellectual opportunities that afforded them activism. She failed to recognize the impact of the
church and local schools on educating and politicizing communal issues. Granted it was not part
of the scope of her study, but it would have clarified her point on the regional influence within
the movement.
The Long Civil Rights matrix has not been adequately used to discuss the movement in
Florida. Paul Ortiz is one of the few historians to attempt this in his book Emancipation
Betrayed. He argued that the movement in Florida began during Reconstruction and African
Americans fought for the promise of emancipation in the face of Jim Crow. The connection
Ortiz attempts to make is during the nadir period. What was the nature of the movement
between redemption and Plessy? This time period tended to focus on the process of segregation
and rise of racial violence. This was the realm of C. Vann Woodward, Howard Rabinowitz, and
Joel Williamson who discuss the nature of race relations in the post-Reconstruction era.13 Ortiz
did not focus on the nature of race relations and when segregation was codified in the South.
Instead he demonstrates how the activism of the Republican Party was replaced by labor unions,
secret societies, and other political organizations. This explains how the movement transformed
11
Sundiata Keita Cha-Jua and Clarence Lang, “The ‘Long Movement’ as Vampire: Temporal and Spatial Fallacies
in Recent Black Freedom Studies,” The Journal of African American History, Vol. 92, No. 2 (Spring, 2007), p. 268;
Clayborne Carson, “Civil Rights Reform and the Black Freedom Struggle,” The Civil Rights Movement in America,
ed. Charles W. Eagles (Jackson: University of Mississippi Press, 1986), 19-37.
12
Glenda Elizabeth Gilmore, Defying Dixie: The Radical Roots of Civil Rights, 1919-1950 (New York: W.W.
Norton & Company, 2008).
13
Howard N. Rabinowitz, Race Relations in the Urban South: 1865-1890 (New York: Oxford University Press,
1978); C. Vann Woodward, Strange Career of Jim Crow (New York: Oxford University Press, 1966); Joel
Williamson, The Crucible of Race: Black-White Relations in the American South Since Emancipation (New York:
Oxford University Press, 1984).
7
from a narrow political movement to a broader community movement in Florida. The
significance of this interpretation is its use of the Long Civil Rights Movement because union
activism could be characterized as direct action within the community. He used the Jacksonville
streetcar boycott to buttress his argument by showing the involvement of local unions and
political organizations to protest local law. While this work made a correlation not previously
found in Florida historiography, it falls short of the true nature of the Civil Rights Movement.14
The construct of the Long Civil Rights Movement fails to understand it evolutionary
nature. Historians typically catalog African American history into the antebellum period and
post-Civil War struggle for equality. The distinction made is that slaves were not citizens
afforded civil rights because they were property. When citizenship was bestowed on African
Americans following the war they had to fight to define their citizenship in an increasingly
hostile society. This idea misrepresents the movement. First of all, citizenship was not bestowed
on African Americans; it was earned. The definition of citizenship was not fully realized until
enslaved blacks seeking their freedom challenged the lack of definition. The Dred Scott decision
had a dramatic impact on the drafting of the Thirteenth Amendment because lawmakers wanted
to make sure to negate all vestiges of U.S. Supreme Court Justice Roger B. Taney’s “legal
argument.” Historians could avoid this issue by calling this process the quest for freedom, but
that is also short-sighted because the argument could be made that this occurred with the passage
of the Thirteenth, Fourteenth, and Fifteenth Amendments. This is a complicated issue that
requires historians to break out of the rigid classification of history.
Historians such as Michael Vorenberg in his book Final Freedom: The Civil War, the
Abolition of Slavery, and the Thirteenth Amendment explained that the debate over the Thirteenth
Amendment dealt with the legal jargon of the Dred Scott decision and how lawmakers wanted to
make sure Taney’s decision could not be used to undermine the amendment.15 Dred Scott was
not the first enslaved black to challenge the idea of citizenship and freedom. The manumissions
suits, also known as freedom suits, challenged the institution of slavery by fighting for freedom
in the courts. Those cases were not unusual during the antebellum period, but typically were not
used to explain the nature of the Civil Rights Movement. Taney made sure to argue that African
14
Paul Ortiz, Emancipation Betrayed: The Hidden History of Black Organizing and White Violence in Florida from
Reconstruction to the Bloody Election of 1920 (Berkley: University of California Press; 2005).
15
Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment
(Cambridge: Cambridge University Press, 2001).
8
Americans could never be citizens because of their African heritage and the fact they were traded
as property, but Missouri, until Scott, argued that freedom could not be taken by law once it was
granted by law. Manumission cases argued for the most basic right, freedom. Without freedom
civil rights could never materialize because Taney’s logic would reign supreme. Most civil
rights historians, with the exception of Vincent Harding and Stephen Kantrowitz, tend to avoid
making this connection out of fear of over generalizing the subject matter.16
Harding tried to accomplish this task in his book There Is A River: The Black Struggle
for Freedom in America. He explains the struggle by attempting, “to convey its long, continuous
movement, flowing like a river, sometimes powerful, tumultuous, and rolling with life; at other
times meandering and turgid, covered with the ice and snow of seemingly endless winters, all too
often streaked and running with blood.”17 His attempt to unite the struggle to freedom from the
enslavement on African shores to the modern movement is appropriate, but it did not recognize
the historical context of the events. He simply linked events of resistance and abolitionist
rhetoric during the antebellum period to discuss the movement over time. He failed to discuss
the response of owners and lawmakers in a discernible way. The fact that African Americans
resisted their position was not enough to place it within the context of the Civil Rights
Movement. Harding needed to articulate how their actions impacted their status and the
response of those in power. He did not convey the nature of legal regulation placed upon the
enslaved and its impact on the free black population and their calls for equality in the north. He
created a simple survey expressing the resistance of African Americans in history.
Kantrowitz focuses his study on the struggle for citizenship led by Boston’s black
leadership. He states that this struggle influenced post Civil War activism because it articulated
the necessity for formal citizenship in a white republic. He writes, “This broad understanding of
what full citizenship would mean helps explain why they were never content to win only ‘civil
rights.’”18 According to Kantrowitz black activists wanted to articulate equal citizenship as their
ultimate goal. The notion that “civil rights” was simply a part of this quest does not contemplate
the nature of those rights. Citizenship is a status created by law and can be broadly defined
based on those laws. Women in the American republic were citizens, but were barred from
16
Vincent Harding, There Is A River: The Black Struggle for Freedom in America (New York: Harcourt Brace
Jovanovich, 1981); Stephen Kantrowitz, More Than Freedom: Fighting for Black Citizenship in a White Republic,
1829-1889 (New York: The Penguin Press, 2012).
17
Harding, p. xviii – xix.
18
Kantrowitz, p. 427.
9
direct political participation because they were denied suffrage until 1920. The definition of
citizenship is protected by civil rights. This kept the government, and later citizens indirectly
granted with police powers, from infringing on that status and creating second-class citizenship.
While the necessity for citizenship was impactful, the fundamental goal of civil rights was
important because it allowed those who had their rights violated to find recourse even within a
hostile judicial system. Kantrowitz’s work did not have the same problems of generalization as
Harding’s, but it does pose the quandary of which was more vital, citizenship or civil rights.
In order to solve this historical problem and avoid generalization, a state study would be
appropriate in furthering civil rights historiography. State studies are not unusual in African
American history and they have yielded diverse views of the black experience. This could hold
true for a lengthier study on Florida. Previously it was argued that the compartmentalization of
history failed to fully articulate the process of civil rights activism. By allowing the antebellum
period to be dominated by slavery without discussing how their existence and struggle impacted
laws and political responses disallows enslaved blacks to have what Steven Hahn called political
capital.19
Slave agency is not only found in their active and direct reaction to slavery; sometimes it
can be found in their indirect responses. Hahn concludes that slavery and emancipation should
be viewed as an international event instead of a uniquely American event. He used the “Atlantic
World” construct to support his theory by stating that global issues influenced domestic events.
While this idea has merit within a global context it could be better understood within state
borders. If slaves understood the ramifications of the Haitian Revolution through “cultural
diffusion,” then why could they not craft their responses within the context of American
Revolutionary ideology? Hahn argues that history writing about African Americans should
move on from failed revolutionary ideals of freedom and equality and focus on selfdetermination and self-defense. He believes that by taking history out of the context of
republicanism that historians can better understand the African American political movement
and the people who were involved. It can be argued that in order to better contextualize this
issue one must place the participants into the culture that influences their world. It would be
19
Steven Hahn, The Political Worlds of Slavery and Freedom (Cambridge: Harvard University Press, 2009). 113.
10
incorrect to ignore one aspect for the other, but rather discuss how the two interact and what it
creates.20
By the middle of the nineteenth century the African American population was not
African; they were American. They understood the ideals of the Revolution and its impact on
their lives. By using republicanism to articulate their views of oppression they were doing two
things: pointing out hypocrisy and fighting oppressors with their own ideas. This does not take
away from their agency; it strengthens it. They did not use American political ideology because
they did not have any of their own; they used it because they were familiar with it. They
attacked the very language used to justify the contradiction of slavery and freedom. This Civil
Rights Movement was a complex movement because it not only needed to destroy slavery, but
protect all African Americans after emancipation by advocating for the rights needed to protect
them from the government. This study will be able to provide a narrative that shows how the
courts were used in this fight and how it impacted African Americans, because unless the courts
enforced those rights the protections afforded by them failed to do anything.
20
Ibid.
11
CHAPTER 1
ABOLITIONISTS ARTICULATE THE CIVIL RIGHTS MOVEMENT
African Americans originally came to this hemisphere by force and stayed because it was
the land they knew. Within the American political context African Americans have the greatest
legacy. Unlike Anglo-Americans, African Americans were barred from society for no other
reason than their skin color, but their fight for freedom forced Americans to define who they are
and how to protect their rights in a free society. For African Americans, their contribution to the
lexicon has been protection of rights set forth by the Constitution. They have given the Republic
a road map explaining how to protect civil rights in the courtroom and on the streets. This was
not created during the Modern Civil Rights Movement; its origins must be traced to abolitionism.
The Abolitionist Movement provided the intelligentsia with a voice and activism that
shaped the nature of slave rebellions and resistance. The rhetoric used by abolitionists was no
less radical than revolutionaries Patrick Henry and Thomas Paine. African Americans draped
their arguments in republican rhetoric because it was the land of their ancestors, whether it was
chosen or not. The call for freedom did not begin with the organization of the movement; it
began much as the Civil Rights Movement, with individuals fighting for their rights. The
principles of the Revolution were not lost on the enslaved. During the colonial period an
enslaved man named Felix petitioned Massachusetts Bay Colony governor Thomas Hutchinson
for his emancipation along with several other enslaved people in Boston. With Boston being the
focal point of revolutionary ideology, this petition was well placed in the historical record. The
enslaved Felix poignantly stated the true nature of his existence in the colonies. He wrote, “We
have no Property! We have no Wives! No Children! We have no City! No Country!”1 This
plainly stated the true nature of enslavement in the colonies and eventually the forthcoming
United States of America. All rights and liberties enjoyed by British citizens and further extolled
by Enlightenment writers such as John Locke were denied enslaved African Americans in a
quest to profit from their labor. Several historians, at great length, have discussed the nature of
slavery and its purposes, but perhaps one aspect has been overlooked; the position of slavery in
the Civil Rights Movement. Felix’s declaration established evidence he understood that rights
were essential to freedom. He explained their status in society and what they hoped to gain upon
1
Herbert Aptheker, ed., A Documentary History of the Negro People in the United States (New York: Citadel Press
Book, 1951), 6.
12
manumission. The discussions of republican ideals in Boston influenced Felix and he hoped to
use this ideology to find freedom and protection.
In 1774 an appeal was made to Massachusetts Bay Military Governor Thomas Gage by
an enslaved male who wrote he was in a state of slavery in “the bowels of a free and christian
Country.”2 He argued that they were entitled to the same natural rights as free men and should
not be deprived of them by their fellow man. “But we were unjustly dragged by the cruel hand
of power from our dearest frinds [sic] and sum [sic] of us stolen from the bosoms of our tender
Parents and from a Populous Pleasant and plentiful country and Brought hither to be made slaves
for Life in a Christian land.”3 Similar to future advocates the enslaved were willing to articulate
freedom and religion in the same breath, because if they were not seen legally as citizens perhaps
morally they would be seen as one of God’s children.
As the Revolutionary War raged on and the Declaration of Independence took its place in
the lexicon the enslaved understood the principles being discussed and the impact on them. In a
petition to the Connecticut General Assembly, written in 1779, enslaved men Prime and Prince
attempted to explain their situation within the rhetoric of the revolution. They said, “Your
Honours who are nobly contending, in the Cause of Liberty, whose Conduct excites the
Admiration, and Reverence, of all the great Empires of the World; will not resent, our thus freely
animadverting, on this detestable Practice.”4 The petitioners wished to be freed, but they stated
they did not wish to use violent means to remove the yoke of servitude because it was not useful
to them.
Advocacy was not limited to enslaved African Americans. In 1780 Paul and John Cuffe
argued “no taxation without representation.” They had been denied the right to vote and
believed they should not pay the taxes levied against them because they lacked representation in
the Massachusetts legislature. They argued for their rights as “free” men, but their African
descent impacted their citizenship. The petition stated that because of their African descent they
were unable to benefit from their own labor or inherit property. They said,
While we are not allowed the Privilage of freemen of the State having no vote or
Influence in the Election of those that Tax us yet many of our Colour have
cheerfully Entered the field of Battle in the defence of the Common Cause and
2
Ibid., p. 8.
Ibid., p. 9.
4
Ibid., p. 11.
3
13
that (as we conceive) against a similar Exertion of Power (in Regard to taxation)
too well Known to need a recital in this place.5
Cuffe understood that without the elective franchise African Americans would be reduced to
beggars. They wanted to be granted relief from the burden of taxation until they were allowed
equality with whites. The Cuffes provided a strong example of what happens when principles
become reality. Altruism does not always translate into action. Similar to civil rights advocates
in the following decades the Cuffes challenged the definition of citizenship and showed how it
lacked proper republican parameters. They were hardworking businessmen who wished to have
a say in the taxes levied upon them through the political process. A right argued by white
Boston revolutionaries.
Many advocates sought to redress their grievances through petitioning; others used the
one constant throughout the Civil Rights Movement, the courts. During the early years of the
Republic many enslaved blacks sued for their freedom in the court system. Shortly after the
Revolutionary War, Virginia saw several freedom suits filed by enslaved blacks. Historian
Michael Nicholls explains how freedom suits began in the late eighteenth century as a result of
Virginia’s manumission law of 1782. He states the courts were flooded with these cases and
then the Virginia legislature stepped in and began restricting the type of suits that could be filed.
Nicholls points out the government ultimately controlled the use of property and this was no
more accurate than with slavery. When enslaved blacks began seeking their freedom more
frequently the legislature curtailed those suits and emancipation as a whole. Like most Southern
states Virginia feared large free black populations because they believed they threatened the
institution of slavery. By 1802, Virginia required freed slaves to be removed from the state.
According to Nicholls, the Virginia legislature failed the principles of the revolution by
restricting the quest for freedom by peoples of African descent. Nicholls does not touch on the
fact that most Virginians would never view it that way, but he makes a compelling argument that
African Americans understood this by using evidence from black abolitionists of the time.
Virginia was not the only state to find itself adjudicating freedom suits. Missouri had 300
manumission cases leading up to Dred Scott. The courts provided a tangible resolution to the
question of civil rights. The outcomes were not always favorable, but for many it was the only
5
Ibid., p. 15.
14
direct avenue available to redress their grievances and it remained that way through the twentyfirst century.6
The arguments posed by abolitionists provide a rich context for these court cases. It
would be misleading to view each one in a vacuum because they influenced each other. As these
court battles raged on abolitionists continued to argue for their rights under the Constitution.
James Forten outlined his views in a series of letters written in 1813. He was a Revolutionary
War veteran and a leader in the abolitionist movement. In one letter condemning the
discriminatory proposals before the Pennsylvania state legislature, Forten sought to stop the
legislation designed to prevent people of color from immigrating into the state. African
American violators were susceptible to a twenty-five dollar fine, imprisonment, and sale. This
law could impact all African Americans; because if approached by a state authority they had to
produce a certificate of registration or they faced punishment. Forten opened his letter quoting
the Declaration of Independence and its connection to the principles of the Constitution. He
wrote that these ideals embraced, "the Indian and the European, the savage and the Saint, the
Peruvian and the Laplander, the white man and the African.”7 In response to this discriminatory
practice Forten argued they were antithetical to the principles of the Constitution. If the bill
became law it threatened their property and protection under the law. He wrote, “Many of our
ancestors were brought here more than one hundred years ago; many of our fathers, many of
ourselves, have fought and bled for the independence of our country.”8 Forten understood the
dichotomy created by this juxtaposition of historical events. It would be wrong for the
6
For more on Freedom Suits and Northern emancipation please see David N. Gellman, Emancipating New York:
The Politics of Slavery and Freedom, 1777–1827 (Baton Rouge, LA, 2006); Joanne Pope Melish, Disowning
Slavery: Gradual Emancipation and “Race” in New England, 1780–1860 (Ithaca, NY, 1998); Gary B. Nash and Jean
R. Soderlund, Freedom by Degrees: Emancipation in Pennsylvania and Its Aftermath (New York, 1991); and
Richard S. Newman, The Transformation of American Abolitionism: Fighting Slavery in the Early Republic
(Chapel Hill, NC, 2001). Dee E. Andrews, “Reconsidering the First Emancipation: Evidence from the Pennsylvania
Abolition Society Correspondence, 1785-1810.” Pennsylvania History, Vol. 64 (Summer 1997), p. 230-249.
Christopher Doyle, “Judge St. George Tucker and the Case of Tom V. Roberts: Blunting the Revolution’s
Radicalism from Virginia’s District Courts.” The Virginia Magazine of History and Biography, Vol. 106, No.
(Autumn, 1998), p. 419-442. Eric Gardner, “‘You Have No Business to Whip Me’: The Freedom Suits of Polly
Wash and Lucy Ann Delany.” African American Review, Vol. 41, No. 1 (Spring, 2007), p. 33-50. Richard S.
Newman, “The Age of Emancipating Proclamations: Early Civil War Abolitionism and its Discontents.” The
Pennsylvania Magazine of History and Biography, Vol. 137, No. 1 (Jan., 2013), p. 33-55. Michael L. Nicholls,
“‘The squint of freedom’: African-American Freedom Suits in Post-Revolutionary Virginia.” Slavery & Abolition:
A Journal of Slave and Post-Slave Studies, Vol. 20, No. 2 (1999), p. 47-62. Kelly Marie Kennington, “River of
Injustice: St. Louis’s Freedom Suits and the Changing nature of Legal Slavery in Antebellum America.”
(Unpublished Dissertation: Duke University).
7
Aptheker, p. 60.
8
Ibid., p. 61.
15
legislature to pass this law and ultimately sell them into slavery because of their participation in
the creation of the nation. Justice Roger B. Taney later remarked that African Americans had not
participated in creating the American political community and therefore were not citizens.
Forten's remarks made forty-four years earlier contradict that notion.9
Forten did not believe the authors of the Pennsylvania Constitution sought to exclude
them from its protections. He argued they had been too recently touched by the tyranny of
England to terrorize and enslave others. “They were convinced that if amenable to the same
laws in our actions we should be protected by the same laws in our rights and privileges.”10 This
concept defined life after emancipation and the discourse over the definition and protection of
citizenship. He hoped the legislature acted with patriotism and humanity in order to stop this
destruction of civil liberty. Forten claimed that if passed it proved the advocates of emancipation
could pass laws more tyrannical than those who advocated slavery. This would be the
destruction of African Americans’ inalienable rights. He articulated his point within the context
of republican rhetoric and civil rights advocacy. He understood the necessity of equal protection
under the law and the adverse effects that occurred when this was not achieved. The era in
which his argument was made allowed him to use the most despicable form of oppression,
slavery, to counterpoint the guiding light of civil liberties. This was a petition to protect his
rights as a free citizen of Pennsylvania; to have his rights protected equally. The discussion of
equal protection dominated the Civil Rights Movement for more than a century. His efforts were
not in vain because the measure did not pass.11
The abolitionists’ arguments were not always made from a strictly political point-ofview. Similar to the Modern Civil Rights Movement as led by Dr. Martin Luther King,
Christianity played a significant role in articulating the demise of slavery and the affirmation of
civil rights. African American churches were the activists’ pulpit used in the advancement of
civil rights and abolition. On July 5, 1832, Peter Osborne delivered a speech to the New Haven
Church in Connecticut. In his address he hoped the Declaration of Independence would be
extended to all men regardless of race. He asked, “Why, then, should we forbear contending for
9
For more on Justice Taney’s remarks please see Benjamin C. Howard, Report of the Decision of the Supreme
Court of the United States and the Opinions of the Judges Thereof, in the Case of Dred Scott Versus John F. A.
Sandford: December Term, 1856. Washington: Cornelius Wendell, Printer, 1857.
10
Aptheker, p. 62.
11
Ibid., p. 60.
16
the civil rights of free country-men?”12 He called for all his brethren to unite and with the
Declaration of Independence in one hand and the Bible in the other, they would fight for their
cause. African Americans believed God’s law was superior to human law and believed it
trumpeted equality, but secular arguments were not ignored. He asserted, “The Declaration of
Independence has declared to man, without speaking of color, that all men are born free and
equal.”13 Osborne declared that they were all Americans and were bound by the same principles.
They should not be denied their rights because of their race and he believed with perseverance
and faith they would be successful. He closed his address with, “Take, courage, ye AfricAmericans! Don't give up the conflict, for the glourious prize can be won.”14
The movement also found its strength in organization. In the early nineteenth century
there were several abolitionist societies operating in the North. Black abolitionist societies were
beginning to move away from gradualist organizations. Historian C. Peter Ripley states that
several African American Anti-Slavery societies began to form during the 1830s. One such
organization was the Colored Anti-Slavery Society of Newark, which was an auxiliary of the
American Anti-Slavery Society. Their job was to raise funds for the American Anti-Slavery
Society and improve the public perception of their situation and rights. They also wanted to
obtain equal civil and religious privileges with whites. This group created a constitution
outlining their principles in reflection of republican values. The organization was not mimicking
this ideology nor were they seeking parity. The members of the Colored Anti-Slavery Society
found it necessary to articulate their concerns within the American republican vernacular. The
preamble of their constitution supports this assertion. It noted that since the Declaration of
Independence, African Americans had continued to be held in bloody bondage. They stated,
“that if all the blood of out colored brethren, shed by the people of the United States, since the
Declaration of Independence, was kept in a reservoir, the framers of that instrument, and their
successors might swim in it.”15 These are powerful words expressing their views of bondage.
Other conventions held similar meetings and argued for the same rights. The Fifth
Annual National Negro Convention held in 1835 resolved to petition the United States Congress
and state legislatures for the rights and privileges enjoyed by American citizens. They said it
12
Ibid., p. 137.
Ibid., p. 137-138.
14
Ibid., p. 138.
15
C. Peter Ripley, ed., The Black Abolitionist Papers, Volume III: The United States, 1830 – 1846 (Chapel Hill:
The University of North Carolina Press, 1991), 133.
13
17
was their duty to God and human rights to break fugitive slave laws by not returning slaves to
their masters. In New York, African Americans organized meetings in order to petition the state
for suffrage. Their goal was to amend the state constitution granting them suffrage on the same
terms as whites.16
Not only did black abolitionists argue the necessity of civil rights they also discussed how
racism prevented their equal participation in public society. In a speech entitled “To the
American People,” William Whipper boldly claimed that racism was a moral depravity facing
America. He believed this was brought on by privilege based on complexion and national
distinctions. Whipper said because of their skin color, privilege was kept from them and as a
result they were forced to live in a degraded state. He said with their hand bound by racism their
minds were, “left to grope in the prison cell of impenetrable gloom, and our whole action
regulated by constitutional law and a perverse public sentiment.”17 This characterization
explains how laws negatively impacted enslaved and free African Americans. Slave codes were
created not only to constrain the life of enslaved African Americans, but also to quash the fears
of slave rebellion that flared up occasionally within white society. Separate laws also controlled
free blacks because it was believed they would foment slave rebellion. Slavery as an institution
may have had some roots in “custom,” but its was perpetuated by law. The states ultimately
regulated that portion of property.
The essence of the Civil Rights Movement is found in the antebellum period. The
legality of slavery and the fight not only to remove those shackles, but the restrictive legislation
concerning free blacks is evidence of a Civil Rights Movement. Civil rights were supposed to
protect life, liberty, and property from government restriction; all of which was either taken or
restricted by laws passed by the government. Whipper said, “We plead for the extension of those
principles on which our government was formed, that it in turn may become purified from those
iniquitous inconsistencies into which she has fallen by her aberration from first principles.”18 He
wanted equality as set forth by the Declaration of Independence. He said, “We love our country,
and pray for the perpetuation of its government, that it may yet stand illustrious before the
nations of the earth, both for the purity of its precepts, and the mildness and equableness of its
16
In New York at the time voters had to be a male resident, twenty-one years of age with property valued at $250.
Ripley, p. 146-147. William Whipper was an African American abolitionist from Pennsylvania. From his home
in Columbia, Pennsylvania he participated in the Underground Railroad.
18
Ibid., p. 148-149.
17
18
laws.”19 Whipper was not speaking as an outsider. Whipper was an American citizen whether
the laws granted it or not and he hoped the Republic lived up to its ideals through the protection
of civil rights regardless of race, color, or eventually previous condition of servitude. These will
be the same ideals that drive activists after the emancipation.
The rhetoric of black abolitionists such as Whipper proves that while they may have been
focused on emancipation and the removal of this blight on humanity, they understood what was
needed to protect that impending freedom. Civil rights advocates, more than any other group,
understood the necessity for protection under the law because of the hostile society they lived in.
Whipper promoted universal liberty, which could not be taken by the government. He noted that
in the preamble of the American Moral Reform Society’s constitution they were American
citizens and were unwilling to converse with anyone who did not believe a person born and
reared in this country was not a citizen. He believed any dialogue must begin with the
acceptance that all races have inalienable rights, because otherwise the discussions would never
move beyond simple citizenship. Whipper wanted to place everyone on equal footing with
natural rights and build up from that point.
African Americans more than any other group at the time forced white Americans to
define citizenship under the Constitution. The document itself did not define it and advocates
did not wish to remain silent in the creation of that definition. The Appeal of Forty Thousand in
1838 is a good example of this discourse. This appeal came in response to the 1837
Pennsylvania Constitutional Convention, which provided for the disfranchisement of free
African Americans in the state. They hoped to thwart its ratification with petitions, but to no
avail. The Appeal said before this “Reform Convention” African Americans had enjoyed the
elective franchise in the state. “To all her citizens the right of suffrage is valuable in proportion
as she is free; but surely there are none who can so ill afford to spare it as ourselves.”20 The
group argued they were to be taxed without the appropriate representation in the state legislature.
They characterized suffrage as the only voice for the weakest and without the right to vote they
had no voice in the laws enacted and would be at the whim of the despotic majority.
Black Pennsylvanians argued that the Articles of Confederation recognized them as
citizens because they were not listed with noncitizens such as paupers, vagabonds, and fugitives.
19
20
Ibid., p. 149.
Aptheker, p. 177.
19
Later in Dred Scott, Justice Taney used similar logic in the denial of citizenship because he said
free persons did not include African Americans. The petition argued they had done nothing to
have their rights removed. Blacks had not oppressed anyone or used their rights in a less than
virtuous way. They were taxpayers and made up a large portion of that revenue base. They
further argued that taking from the treasury to benefit them did not counterbalance taxed sums.
“We have the right of suffrage only as the reward of industry and worth.”21
African American activists in Pennsylvania did not care what the qualifications for voting
were, just that they were applied equally. “We are not intruders here, nor were our ancestors.
Surely you ought to bear as unrepiningly the evil consequences of your fathers' guilt, as we those
of our fathers' misfortune. Proscription and disfranchisement are the last things in the world to
alleviate these evil consequences.”22 They argued the convention was disfranchising them in
order to gain favor among the slave states. “Is Pennsylvania, which abolished slavery in 1780,
and enfranchised her tax-paying colored citizens in 1790, now, in 1838, to get upon her knees
and repent of her humanity, to gratify those who disgrace the very name of American Liberty, by
holding our brethren as goods and chattels?”23 This was an excellent question because it placed
the issue of race at the forefront of their intentions. Why have such a dramatic shift? What
happened to the ideals that created one of the more democratic state constitutions and helped
create the Bill of Rights? Black Pennsylvanians while protecting their civil rights articulated
broader questions about race and political expediency. Their stance was taken in order to protect
their inalienable rights from the government that was instituted with the consent of the governed.
In Ohio, African Americans organized to repeal discriminatory laws and play a more
active role in abolishing slavery. The State Convention of Ohio Negroes was held in Columbus,
Ohio, in January 1849 and was attended by Dr. Charles Henry Langston, William Howard Day,
David Jenkins, and James Poindexter. The convention advocated universal education,
temperance, and Christianity. Delegates refused to submit to any laws that curtailed their natural
rights because of their race. They called for the boycott of stage houses and other hotels in Ohio
that did not accommodate respectable African Americans. The word “respectable” was used to
delineate themselves from any blacks who were viewed unfavorably. It was stipulated that
liberty for the oppressed was not worth having without them striking a blow for themselves. The
21
Ibid., p. 183.
Ibid., p. 183-184.
23
Ibid., p. 184.
22
20
convention resolved that African Americans should thank whites for their assistance, but take an
independent course towards freedom. They advocated the support of Douglass’s North Star
newspaper and wanted to print and circulate multiple copies of Walker’s Appeal and Henry H.
Garnet’s Address to the Slaves.24
The convention used revolutionary rhetoric to support their positions. They claimed that
there were two principles to which the new republic adhered: the object of legislation was to
secure rights and government was done with the consent of the governed. If a government did
not adhere to these principles it was not just. “We believe not only that ‘liberty is the birth-right
of all, and law its defence,’ but we believe also that every human being has rights in common.”25
Ohio did not allow African Americans to vote. The convention stated the elective franchise was
one of the dearest rights of a free society and blacks were denied that right. African Americans
were excluded from equal participation in education and it created ignorance in the community
and this ignorance encouraged vice.
In children, thus divided by law, the most Satanic hate is likely to be engendered.
This, no one who has studied human nature will deny. This hate ‘grows with the
growth and strengthens with the strength.’ What children are in the school-room,
they are when manhood has come over them, and what feeling the school-room
fosters appears in after life in the shape of a monster called law.26
They did not ask for equality because of pity, but because they earned it. The Convention of
Ohio Negroes wanted all vestiges of race removed from the state constitution. They quoted
Heauton Timorumenos written by Terence, a Roman playwright and slave from North Africa.
“In the spirit of the heathen slave, and we hope as intelligently, we each say, ‘Homo sum, atque
humani nihil a me alienium puto’ – ‘I am a man, and I think that nothing is estranged from me
which pertains to humanity’ – and therefore entitled to all the privileges – moral, mental,
political and social, to which other men attain.”27
Civil Rights advocates never had a monolithic message for their cause. This was seen
during the Modern Civil Rights Movement with King and Malcolm X. While King focused on
Christian non-violence and racial cooperation, in his early years of advocacy Malcolm X
24
Aptheker, p. 280-288.
Ibid., p. 284.
26
Ibid., p. 286.
27
Ibid., p. 288.
25
21
promoted Black Nationalism and armed protection if necessary. During the abolitionist
movement there were also a diverse set of opinions about how to achieve the same goal. Many
African American abolitionists espoused moral reform and petitioned for their rights, others
called for more immediate action. Abolitionist David Walker wanted abolition by any means
necessary. Born in North Carolina to a free black mother, Walker moved to Boston when he
decided he could no longer stand to witness enslavement. While in Boston, Walker became a
leader in Boston's Colored Association and did work for Freedom’s Journal. His greatest
achievement was the 1829 publication of his pamphlet Walker's Appeal, in Four Articles. He
continued to publish this work until his death at the hands of unknown persons in 1830.28
Controversial in its time Walker's Appeal was banned by many Southern states, because
they blamed it for inspiring Nat Turner’s Rebellion. Walker anticipated that his work would
instigate violent feelings amongst the people. He not only attacked those who owned slaves, but
those who benefitted directly or indirectly from their labor, even if those individuals were
African American. Walker blended religious imagery with direct action. He closed the book’s
introduction with the poignant line. “I appeal to Heaven for my motive for writing – who knows
that my object is, if possible, to awaken in the breasts of my afflicted, degraded and slumbering
brethren, a spirit of inquiry and investigation respecting our miseries and wretchedness in this
Republican Land of Liberty! ! ! ! ! !”29 In contrast to other African American abolitionists of his
time Walker could be characterized as radical, but his language was no more incendiary than
previous American revolutionaries. He attacked the power structure used against him in a direct
antagonistic manner as an American, much as the colonists had done as British citizens.
Walker wrote, “America is more our country, than it is the whites – we have enriched it
with our blood and tears.”30 He fought for the freedom of all of his brethren and was unwilling
to wait for others to grant it to them. Walker wanted the enslaved to take their freedom because
their white masters were murdering them. He argued it was justifiable to kill a person who was
trying to kill you. Along with Walker's threat came a solution. He stated that if whites listened
to blacks and allowed them to be taught the same virtues they were taught then African
Americans could love them more than they hated them. Walker asked whether white Americans
would not throw off the murderous yoke of their government if they endured slavery as African
28
Ibid., p. 90.
Ibid., p. 93.
30
Ibid., p. 96.
29
22
Americans had. He asked this question after citing portions of the Declaration of Independence.
He did not attack certain aspects of slavery; he attacked all of them. He argued that historians
could not find a more wretched treatment of people than enslaved African Americans at the
hands of white Christian Americans. Walker's words could be deemed radical, but considering
the institution he was fighting against they seem more adequate than radical. Within the
republican lexicon his words are no less radical than Paine or Henry who openly advocated
treasonous revolution that would cost lives in a bloody conflict. In the context of the other
African American abolitionists Walker's use of religious imagery was far more militant in its
goals, but no less telling of the nature of slavery and goals of emancipation.31
Sympathetic to Walker’s views, Henry Highland Garnet gave a speech in 1843 called
“An Address to the Slaves of the United States” at the National Negro Convention held in
Buffalo, New York. In this address he felt it was more appropriate to advise the enslaved on
how to break the chains of bondage. Aside from the fact that Garnet may have been a little naïve
as to the nature of the control exerted under slavery his words were appropriate examples of how
more militant abolitionists framed their views. He lamented that conventions always meant to
discuss their lot and hope for their liberty, but they never advised the enslaved on what to do.
Garnet proclaimed that none were free until the bonds of enslavement were broken.32
Garnet asserted that white Americans blamed England for the abomination of slavery, but
when they wrestled themselves from their grasps they continued the institution they claimed was
forced upon them. He said, “The Declaration of Independence was a glourious document, the
patriotic of every nation reverenced the God-like sentiments which it contained.”33 He believed
the Declaration was the impetus for their revolution and that nothing should stand in their way of
acquiring freedom. He said,
Your condition does not absolve you from your moral obligation. The diabolical
injustice by which your liberties are cloven down, NEITHER GOD, NOR
ANGELS, OR JUST MEN, COMMAND YOU TO SUFFER FOR A SINGLE
MOMENT. THEREFORE IT IS YOUR SOLEMN AND IMPERATIVE DUTY
31
Walker, David. Walker’s Appeal to the Coloured Citizens of the World. University Park: Pennsylvania State
University Press, 2000.
32
Aptheker, p. 226-227. Also see C. Peter Ripley, ed., The Black Abolitionist Papers, Volume III: The United
States, 1830 – 1846 (Chapel Hill: The University of North Carolina Press, 1991), 403-411.
33
Ibid., p. 228.
23
TO USE EVERY MEANS, BOTH MORAL, INTELLECTUAL, AND
PHYSICAL THAT PROMISES SUCCESS.34
Garnet called on the enslaved to break free from their bonds claiming that they were native-born
American citizens deserving of the same rights as the freest citizen. He said it was better to die
immediately than persist under slavery. He characterized Nat Turner as a patriotic example of
what needed to be done in order to be free. Garnet closed his remarks by stating no oppressed
people secured their rights without resistance: “behold your dearest rights crushed to the earth!
See your sons murdered, and your wives, mothers and sisters doomed to prostitution. In the
name of the merciful God, and by all that life is worth, let it no longer be a debatable question
whether it is better to choose Liberty or death.”35
The discussion over how to obtain civil rights was ever-present in the black abolitionist
movement and some advocates were unsure that the Constitution would ever make it
permissible. A debate over the nature of the Constitution raged among black intellectuals. In
1851, at the State Convention of Ohio Negroes they debated this issue. H. Ford Douglas
proposed abstaining from voting in upcoming elections as a form of protest. He did not believe
the Constitution would ever permit an African American to vote under its protection. He stated
the Constitution was a pro-slavery document because it protected the international slave trade
until 1808 and doomed many Africans to the middle passage and perpetual servitude in the
“asylum of western Liberty.”36 Douglas also said the fugitive slave law was further evidence of
the constitution’s pro-slave nature and considered this a blight on all revolutionary principles,
likening it to a ubiquitous poisonous tree.
Fellow black abolitionist William Howard Day rebutted Douglas’s argument. He
mentioned the illegal decisions of the U.S. Supreme Court to uphold slavery. Day argued that
these decisions and laws were not the Constitution. He remarked that people had used the Bible
to justify inequalities, does that mean the Bible should be discarded and by doing so remove the
shield protecting those inequalities. Day stated, “I consider the Constitution the foundation of
American liberties, and wrapping myself in the flag of the nation, I would plant myself upon that
Constitution, and using the weapons they have given me, I would appeal to the American people
34
Ibid., p. 229.
Ibid., p. 231.
36
Ibid., p. 317.
35
24
for the rights thus guaranteed.”37 He clearly outlined the issue between altruism of principle and
the reality of oppression. He did not believe the Constitution promoted slavery, but the people
who applied it did. Douglas and Day have solid points about the nature of the Constitution
further deepening the interpretation of the document. Charles Henry Langston agreed with
Douglas, but understood the importance of political action and argued that while the constitution
was pro-slave it was necessary to vote in order to obtain freedom. Douglas’s resolution
requesting that blacks not vote in upcoming elections was defeated.38
John Mercer Langston did not agree with Douglas. He argued that the Constitution
allowed them to fight for and secure their rights. Langston wrote a letter to the Frederick
Douglass’ Paper outlining the electoral victories of the abolitionists. He believed the only way
to end prejudice was through political influence. Langston was not talking about social equality.
He said the future could only be secured with the elective franchise and they needed to work
diligently to secure that right. Robert Purvis shared Langston’s optimism. On May 12, 1857,
Purvis gave a speech in New York City in response to the Dred Scott decision. Purvis resolved,
That to attempt, as some do, to prove that there is no support given to slavery in
the Constitution and essential structure of the American Government is to argue
against reason and common sense, to ignore history and shut our eyes against
palpable facts; and that while it may suit white men, who do not feel the iron heel,
to please themselves with such theories, it ill becomes the man of colour, whose
daily experience refutes the absurdity, to indulge in any such idle fantasies.39
He argued that the Constitution was a pro-slave document and it was absurd to argue to the
contrary. Purvis did not separate the altruism of republican ideology and the actual
implementation of those ideals. He believed they were one and the same and the actions of those
implementing those ideals were able to do so because of the Constitution. He stated he would
not eulogize a government, created by the Constitution that trampled on him. If it created the
government that oppressed him then it failed to do what was necessary for freedom, hence a pro-
37
Ibid., p. 318.
Ibid., p. 320.
39
Ripley, C. Peter, ed. The Black Abolitionist Papers, Volume IV: The United States, 1847 – 1858 (Chapel Hill:
The University of North Carolina Press, 1991), p. 363.
38
25
slave document. He went beyond the Fugitive Slave Law and focused on the application of
republican principles. He said the constitution was befitting the slaveholders who created it.40
Segregationist laws did not help those advocating the sage-like nature of the Constitution.
As pointed out by Leon Litwack in North of Slavery, segregation occurred in the North during
the antebellum period.41 Historically, abolitionists have been discussed because of their fight
against enslavement, but most realized this was only the beginning. By using the moniker of
Civil Rights Advocate black abolitionism fits into a much broader historical context. They
fought many of the same battles as the Modern Civil Rights Movement and used many of the
same tactics such as boycotts and petitioning local and state governments. Purvis played a role
in this antebellum activism by protesting school taxes in Philadelphia because the monies were
not equally distributed. In a letter to the tax collector, published in The Liberator, Purvis wrote,
You called yesterday for the tax upon my property in this Township, which I shall
pay, excepting the ‘School Tax.’ I object to the payment of this tax, on the
ground that my rights as a citizen, and my feelings as a man and a parent, have
been grossly outraged in depriving me, in violation of law and justice, of the
benefits of the school system which this tax was designed to sustain.42
Purvis characterized the African American school as, ‘the most flimsy and ridiculous sham
which any tool of a skin-hating aristocracy could have resorted to, to cover or protect his
servility.”43
African American activists questioned the validity of democratic institutions in the face
of racial prejudice. In New York City, Elizabeth Jennings, an African American teacher, sued
the Third Avenue Railroad Company for being forcibly removed from a horse-drawn streetcar in
1854. Peter S. Ewell presented Jennings’s testimony about the event on July 17, 1854, at the
First Colored Congregational Church in New York City. Jennings was on her way to church
when she attempted to ride one of the streetcars. The conductor told her she was not allowed on
that streetcar and had to wait for the segregated car. She refused because she was in a hurry to
get to church and the segregated car was a block away. Jennings argued with the conductor and
after she tried to board the streetcar he forcibly removed her. The conductor then instructed the
40
Ibid.
Leon Litwack, North of Slavery: The Negro in the Free States, 1790-1860 (Chicago: The University of Chicago
Press, 1961).
42
Aptheker, p. 360.
43
Ibid.
41
26
driver to find the nearest police station or officer. The police officer also told her she could not
ride the streetcar. Jennings successfully sued the company for compensatory damages of $250.44
A year later in 1855, James McCune Smith delivered a speech at the First Colored
Presbyterian Church in New York City discussing this matter. Smith opened his remarks with,
“The great question of human brotherhood is brought to a direct test in our persons and position;
the practicality of democratic institutions, their ability to overcome the last vestige of tyranny in
the human heart.”45 He said they could not end discrimination through inactivity and that slavery
must be abolished through African American activism. He believed others could help, but they
had to take the lead in this endeavour. Smith called upon his audience to organize the
community, because only as an organized front could they be successful. He asserted, “so
closely does oppression encompass us that we can act constantly in behalf of our cause by simply
maintaining for ourselves the rights which the laws of the land guarantee to us in common with
all citizens.”46 Those who enslave others because of their race are traitors to liberty. He
contended that, “from the mere act of riding in public conveyances, up to the liberation of every
slave in the land, do our duties extend – embracing a full and equal participation, politically and
socially, in all the rights and immunities of American citizenship.”47 Smith argued that the
necessity for equal rights was to protect black freedom after slavery. He noted the successes of
African American activism in Pennsylvania and Connecticut in obtaining suffrage and how this
proved they must lead the abolition movement. Smith believed the only way to prove their
citizenship was to fight for themselves.
The Black Abolitionist Movement provides a plethora of evidence to support the
presence of an intellectual component to the Civil Rights Movement since the Revolutionary
Period. Their primary focus was the freedom of their enslaved fellow Americans and this
dominates the literature about them, but they were civil rights advocates at their core. African
American abolitionists better understood the nature of life after slavery than their white
counterparts. They knew it was imperative to secure their civil rights if they were ever going to
be truly free in the American Republic. Their ideas did not fall on deaf ears. There is not much
evidence to support a strong organized abolitionist presence in Florida, but one event did show
44
Ripley, The Black Abolitionist Papers, Volume IV: The United States, 1847 – 1858, p. 230-233.
Ibid., p. 290.
46
Ibid., p. 291.
47
Ibid., p. 292.
45
27
that it existed on a minimal level. This event transpired because of the activism of a white
abolitionist named Jonathan Walker.
Walker believed in the Declaration of Independence, “That all men are created equal.”48
He briefly lived in Pensacola and was charged with aiding in the escape of some enslaved men.
He defied a law he believed to be unjust. Historian Joe M. Richardson is correct in stating
Walker was not as famous an abolitionist as Douglass or Garrison, but his impact was not
lessened by his lack of notoriety. Walker did as most activists had done; he worked for what was
right and not for notoriety. The fact that he fell into obscurity proves this assertion and all the
while he continued to fight for human rights. Walker did not believe he had committed a crime
because “peaceably aiding those robbed of their liberty could not be considered stealing.”49 He
was sentenced to an hour in the pillory, 15 days in prison, a $150 fine, and his hand was branded
“SS” for slave stealer. Frederick Douglass and Charles L. Redmond went on speaking tour to
drum up support for Walker’s case in Florida. Response to the case was that aiding a slave’s
escape was punishable by death and slave patrols temporarily increased. This was definitely a
political response to this case. The most glaring example was the increase in punishment. The
people and their political representatives created law in response to his actions.
Walker’s trial had broad political implications because the crime he was charged with
challenge the institution of slavery. The “Report of the Legislative Council of Florida” states
that the law against “negro-stealing” was too lenient, because larceny was not strong enough of a
charge. The legislative council said, “It is no longer a mere larceny, but a species of treason
against the State – a direct assault upon the very existence of our institutions.”50 The jurors of
the second trial were reminded that they should not be sympathetic to the defendant because of
the severity of the law, but judge him based on the law, “for it was not the accused who had the
right to complain of the severity of the law, or demand their sympathy; but those that were dead
and their friends.”51 Walker argued this was a reference to the Haitian revolution and the death
of those slaveowners. As a result of these fears, Walker received a sentence he believed was
cruel and unusual and therefore unconstitutional. He was aware of the contradiction occurring in
48
Joe M. Richardson, Trial and Imprisonment of Jonathan Walker, at Pensacola, Florida, for Aiding Slaves to
Escape From Bondage: A Facsimile Reproduction of the 1845 Edition with an Introduction and Index (Gainesville:
The University Presses of Florida, 1974), xx.
49
Ibid., p. xliii.
50
Ibid., p. 91.
51
Ibid., p. 54.
28
his trial and sentencing. He believed the system being protected was antagonistic to the virtues
of the Republic. Walker argued that one American-born citizen owning another American-born
citizen was repugnant to every republican and Christian virtue.52
The memoir of Walker’s ordeal is as balanced as Richardson states. When Walker spoke
about slavery, he spoke from experience. Like a good historian, Walker let the facts tells his
story and editorial was minimal at best. Simply stated, Walker believed slavery was antirepublican and went against the principles of the Declaration of Independence. He knew he
would never be acquitted, but did not blame the people. He blamed the institution for poisoning
the people and clouding their Christian judgment. Like most people of his time Walker regularly
invoked Christian ideals into his work, but not as a justification of his position, but rather as a
rebuking of the pro-slave arguments of God’s support in controlling the sons of Ham.53
The Walker case allows for some connection to be made between abolitionism in the
North and the enslaved in the South. Walker’s ordeal may not have changed slavery in Florida,
but the rhetoric was consistent with African American abolitionists. The events that transpired in
Florida and the use of the court system provide a dynamic opportunity to articulate the Long
Civil Rights Movement on the state level. Florida provides an opportunity to present the idea of
a long continuous struggle for civil rights by looking at the State Supreme Court. The cases to
be covered will begin at statehood in 1845 and continue until 1896 and the Plessy decision.
Cases from the U.S. Supreme Court will also be analyzed in order to understand the Federal
response to a predominantly state issue. Florida provides a rich context to this narrative because
of its unique racial make-up and its flexible racial lines in East and West Florida during the
territorial period. The focus of this study is the law and its applicability to the dispossessed and
its continued use to oppress first a captive people, and lastly a freed people in a hostile
environment. The focus on law and judicial interpretation is used because this is one of the few
constants streaming through the antebellum and post-bellum periods.
The Civil Rights Movement began at the state level and continued on to the national level
after emancipation. Advocates initially petitioned local government to redress their grievances
and it would not be until the Federal government was willing to intervene did they focus their
attention on them. The Civil Rights Movement did not begin with citizenship because it had not
52
53
Ibid., p. 94.
Ibid., p. 98.
29
been yet defined. It began with enslavement because the legal definition and the ramifications of
it impacted all blacks regardless of status and this can be seen best in the court cases filed. The
courts were used directly and indirectly to fight for rights and was the constant throughout the
movement and continues to play a role into the twenty-first century.
30
CHAPTER 2
SLAVE CODES AND THE PROTECTION OF PROPERTY
The historiography of slavery is extensive in its discussion of the impact on the slave and
their community. As part of the overall Civil Rights Movement, slavery does not always garner
the attention it deserves because historians typically compartmentalize topics in order to neatly
organize subject matter into a timeline. The Civil Rights Movement is a subject with a historical
focus on direct action and protest in the twentieth-century. This conceptualization of the Long
Civil Rights Movement tends to focus on direct action in the movement to the detriment of other
forms of protest and resistance. Slavery does not fit into this framework because historians do
not fully recognize enslaved persons’ struggle for citizenship and freedom in the context of the
American political paradigm. Slavery is an obvious contradiction to the republican ideals set
forth by revolutionaries, but reality and ideology do not always coalesce.
Enlightenment intellectual John Locke had perhaps the greatest impact on Thomas
Jefferson, as seen in the Declaration of Independence, as well as other revolutionary thinkers.
Locke argued the concept of slavery in a republic created by social contract and ruled by law.
He understood that these ideas were incompatible, but nevertheless attempted to explain that
slavery could exist under certain conditions. The difference between Locke’s elucidation and the
reality of American slavery was its perpetuation through law. For Locke a state of perfect
slavery is only achieved when a conqueror has complete control over the life and death of the
conquered. People cannot willingly give up their liberty and sell themselves into slavery because
they, by natural law, cannot consent to give up their life to an arbitrary power. Slavery can only
occur by force.1 American slavery was debated during the revolutionary period and this
argument was perfectly acceptable because in their minds, enslaved Africans were considered a
conquered people. A people who had lost their freedom through force of another, whether it was
by foreigner or fellow countryman. The flaw in this logic can be found in the idea of dominion
over the conquered life. If a person has complete control over another then that person should
not have to worry about rebellion because in a state of nature a person can kill another as
punishment fitting to the crime and as a deterrent of future crimes. If this was so then why were
laws needed to protect slavery in a civilized society? If, according to Locke’s reasoning, laws
1
Peter Laslett, ed., Locke: Two Treatises of Government (Cambridge: Cambridge University Press, 2002), 284-285.
31
were a contract entered into by consenting parties can it not be reasoned that slaves must enter
into those laws as a consenting party. These laws directly impact them and their ability to obtain
freedom.2
Laws and society were created to stop the State of War, but as long as slavery continues
to exist a State of War is never over. Locke may argue that this was a legal status in a civil
contracted society, but if it is to be believed that man naturally seeks an end to a State of War
then legal support for such a state cannot exist. Therefore, slaves cannot be completely
controlled due to fear of death because they will always, according to Locke, seek an end to a
State of War in order to get out of a State of Nature into a civilized society based on laws. At
this point in the evolution of their political lives slaves were in a constant State of War until they
were able to end their participation in a State of Nature. This was the political capital given to
the slaves by Lockean reasoning. His conclusions were based on the assumption of complete
control and it is clear by the mountain of evidence of resistance and outright rebellion that slaves
fully understood their right to freedom and that they were no longer the conquered, but rather
they were imprisoned because a conquered person loses that status upon their death and appeal to
Heaven according to Locke.3 By perpetuating this status through inheritance created a status of
enslavement that is counterintuitive to freedom and liberty. The children of the conquered
should be free as the result of birth. An owner cannot claim dominion over those they did not
create. Even though revolutionaries could justify slavery during their time, they could not justify
it for future generations and slaves made sure that that their freedom would not be denied by a
false conqueror.4
Steve Hahn contends that historians do not give slaves any political capital in the
American narrative.5 His assertion is based on the impact of the Haitian Revolution and slaves’
understanding of the event and its impact on their daily lives. Hahn concludes that slavery and
emancipation should be viewed as an international event instead of a uniquely American event.
This use of the Atlantic World construct is designed to further the understanding of emancipation
2
Ibid.
Ibid., p. 279-284.
4
For more information please see John Hope Franklin and Loren Schweniger, Runaway Slaves: Rebels on the
Plantation (New York: Oxford University Press, 1999), Paul Finkleman, ed., Rebellions, Resistance, and Runaways
within the Slave South (New York: Garland, 1989), and Larry Rivers, Rebels and Runaways: Slave Resistance in
Nineteenth-Century Florida (Urbana: University of Illinois Press, 2012).
5
Steven Hahn, The Political Worlds of Slavery and Freedom (Cambridge: Harvard University Press, 2009), 113.
3
32
as a global event in Hahn’s mind. The connection between Haiti and America is found in
Florida. This thesis, also proposed by Larry Rivers, asserts that news of the revolution filtered
into Florida via port cities such as Jacksonville. Rivers writes,
The French sugar island of Saint Dominguez lay not far distant across the waters,
and by the late 1790s veteran Haitian revolutionaries had resettled in La Florida
with responsibilities for the colony's defense, facts that set in place patterns of
militancy coupled with military competence. Florida also stood out as a haven
that attracted runaways from up and down the Atlantic coast and other parts of the
developing cotton, tobacco, and rice kingdoms.6
Rivers concludes these groups influenced the Seminole Wars. It appears Rivers is outlining the
formation of rebellion within a cultural and geographical framework. He believes Florida's
frontier society and access to the Atlantic World gave it a unique set of circumstances that allows
for a rich story of revolution. Within that context Rivers appears to be setting up a thesis that
will show how republican ideals may have influenced these events. He states that acculturation
cannot be ignored and that most American born English speaking bondservants had assimilated
into Anglo-Saxon culture. Succinctly stated, they understood the American Revolution and its
ideals and believed they were applicable to their situation.7
While both historians attempt to place Florida into a global framework they overlook the
direct impact slaves have on the institution. Scholarship on slave resistance is extensive, but the
breaking of tools, slowing of work, and theft are only part of that resistance. If the concept of
republican ideology is used to discuss slaves’ political capital, then it is important to comprehend
how slavery was maintained. Locke’s conceptualization allowed for slavery to exist in a
republican society, but it was limited to the individual who lost their rights by force and not the
child who loses them at birth. For Americans the perpetuation of slavery could only be created
through law. Legal historians have often discussed the evolution of this codification and its
origins in English Common Law.8 United States Senator Stephen Douglas understood the
necessity of law in order to maintain slavery; he declared laws needed to be passed and enforced
for slavery to exist. If a state did not want slavery they merely did not enact the laws protecting
6
Rivers, p. 4-5.
Ibid.
8
David J. Bodenhamer and James W. Ely, Jr., eds., Ambivalent Legacy: A Legal History of the South (Jackson:
University Press of Mississippi, 1984), 4.
7
33
it. The Freeport Doctrine negatively impacted Douglas’s political career, but allows for
significant insight into the nature of law and slavery. This is where slaves’ political capital and
civil rights advocacy converge.
Antebellum jurists had an interesting task placed before them; reconcile republican
ideology and slavery. Laws are a reflection of society’s beliefs and concerns as well as
protection of rights. Legal historian Thomas D. Morris argues that law reflects the concerns of a
collective society and a criminal should be punished for not following those norms and be an
example to others.9 While revolutionary theorist such as Thomas Jefferson argued against the
institution of slavery his racism did not allow him to accept African Americans as equals.
Jefferson concludes African Americans “were incapable of becoming part of a republican
society.”10 Even though revolutionaries may have detested the institution as a contradiction to
their ideals, that did not mean they were fighting for the civil rights of those enslaved. For slaves
their focus was freedom, but the rule of law made it difficult to obtain. Since they were not
considered legal persons, their foray into the legal system was a constant challenge to that status.
Whether the action was intentional or not, the result was still a legal conflict between property
and humanity.
Jurists consistently had to deal with cases of enslaved property who committed a crime.
They had to articulate a legal opinion that both denied and accepted the humanity of the
enslaved. When a slave broke a criminal code, they were not doing it for the greater good of the
Civil Rights Movement. Assaults can occur because personalities do not always reconcile with
each other. Theft, while a form of resistance, sometimes occurs simply as a matter of survival.
Once the court acknowledged the crime committed they acknowledged the slave’s humanity and
for a brief moment they were allowed minimal rights by having a jury trial. If the status of
property was constantly intact then a criminal code could not be created, because only a thinking
being can break a law and understand the consequences of that act.
In order to better understand this construct it will be necessary to focus on two things: the
law and the courts. In this study, Florida law codified after statehood and the State Supreme
Court will be analyzed. The reason the Supreme Court is used as the focal point of law in action
9
Thomas D. Morris, Southern Slavery and the Law, 1619-1860 (Chapel Hill: The University of North Carolina
Press, 1996), 299-300.
10
David Brown and Clive Webb, Race in the American South: From Slavery to Civil Rights (Gainesville:
University Press of Florida, 2007), 77.
34
is because it is not only the highest court in Florida it is also the last point in which a case can be
appealed. The challenge of law can ultimately end in the State Supreme Court, which allows
historians to better understand how far law will go to either enforce slavery or grant freedom.
Florida’s slave code was designed to maintain slavery as well as the control of African
Americans who were not enslaved. Historian Joseph Conan Thompson argues Florida’s slave
codes controlled the master and the slave, but the code must delineate between the races because
any sense of equality before the law threatened the institution of slavery. The slave code secured
the institution by not flaunting liberties or inhumane cruelties.11 The code also created
impressive controls over property and how it was used. Masters did not have complete control
over their property. They were allowed to assert their dominance at the behest of the state. The
state provided the legal protection of their labor system and directed how the property could be
used, transported, and transferred. This was most evident in the manumission laws passed by the
state. The restriction on the release of property was staggering if taken within the context that
property was to be protected by the government for the profit of the individual. Even if owners
were able to dominate the lives of their enslaved, it was only because it was permitted by the
state. The state defined who was a slave and the means to either be freed from the institution or
to be sold into it. At this point those working in a slave labor camp were kept there not only by
the whip, but also by the law.12 The whip controlled their immediate lives and the laws
controlled their entire life and the lives of their offspring.
To focus on suffrage and equality would be a mistake because it does not fit the regional
struggles of the period. In the process of fighting for civil rights, the question was not of the
rights acquired, but what those rights ultimately do for those who have them. Because of
forceful migration any legal action has civil rights implications in a civil society. Civil rights are
designed to protect the people from government oppression, but in the case of slavery laws were
used to protect subjugation in spite of their humanity. As soon as an incident reaches the court
rights have to be applied based on the Constitution and republicanism. Employment of Hall’s
Long Civil Rights thesis in the antebellum period must be clarified because the rebuttal argument
11
Joseph Conan Thompson, “Toward a More Humane Oppression: Florida’s Slave Codes, 1821-1861.” Florida
Historical Quarterly, Vol. 71, No. 3 (Jan., 1993), 324-325.
12
For more on the use of slave labor camp instead of plantations please see Edward E. Baptist, “The Slave Labor
Camps of Antebellum Florida and the Pushing System,” Robert Cassanello and Melanie Shell-Weiss, eds. Florida’s
Working-Class Past: Current Perspectives on Labor, Race, and Gender from Spanish Florida to the New
Immigration (Gainesville: University of Florida Press, 2009).
35
will always be that slaves were not citizens. They were not allowed to be citizens in the truest
sense of the word. Free blacks’ rights were tainted by slavery, but in reality it was their race that
had a greater impact. The law bound both free blacks and enslaved persons together because of
how it regulated their lives. At this point in the process of the Civil Rights Movement the goal is
positive recognition of the law. Only when the shackles of law were broken would those chained
be free to live and die as they saw fit. Law and slavery have a symbiotic relationship that must
be severed to free all Americans of African descent. The challenge of those laws made it
increasingly difficult to control all of the enslaved because circumstances will not always allow
the dominant group to be victorious. In order to see how those laws were challenged it is
important to understand the code itself.
The Florida Slave Code is a prime example of a slave’s political capital and how it
impacts them and their free brethren. Fear of insurrection played a significant role in Florida’s
law code. After the Nat Turner Rebellion the territorial legislature gave more power to slave
patrols and harsher punishments for slaves picked up by them. “Inciting slaves to revolt”
became “a capital offense and defined murder of a slave in an act of rebellion as justifiable
homicide.”13 In order to make these laws enforceable, it was necessary to determine who was a
slave. Thompson’s Digest defines a slave as:
All persons lawfully held to service for life, and the descendants of the females of
them, within this State, and such persons and their descendants as may hereafter
be brought into this State pursuant to law, being held to service for life, or a given
time, by the laws of the State or Territory from whence they were removed, and
no other person or persons whatsoever shall henceforth be deemed slaves.14
This law not only controls the lives of the slaves, but the lives of their offspring. The control of a
slave’s children was designed to maintain the institution and the law goes to great lengths to find
ways to perpetuate the system. Typically lineage was based on the father, but in the instance of
slavery this was changed to the mother. By invoking the legal axiom partus sequitur ventrem –
the child to follow the condition of the mother, the state was able to further protect this
13
Thompson, p. 326.
Leslie A. Thompson, Esq., Manual or Digest of the Statute Law of the State of Florida, of a General and Public
Character, in force at the end of the Second Session of the General Assembly of the State, on the sixth day of
January, 1847 (Boston: Charles C. Little and James Brown, 1857), 531.
14
36
peculiarity.15 This not only forced slaves who wished to be free to prove they were the child of a
free mother, it also negated the relationships between white men and black women. The
products of those relationships were not given equality and the child, regardless of gender, was
never able to inherit the property of the father unless specifically stated in the father’s will, but
that was easily challenged.
The state also defined the status of the children produced by an interracial relationship.
Under the section entitled “Of Offences Committed by Slaves and Free Persons of Color,” it
states, “Every person other than a negro [sic], who shall have one fourth part or more of negro
[sic] blood, shall be deemed a mulatto.”16 Once this is established they will be bound by the
code set forth by the above-mentioned title. After the establishment of status and race the law
moved on to clarify their role in taxation. Each slave was assessed a tax of fifty cents to be paid
by their master. “Upon every free man of color, over the age of twenty-one years, and under the
age of sixty years, there shall be assessed and collected a tax of three dollars.”17 This tax placed
on free blacks, including mulattoes, is clearly punitive in its measures. White non-slave owners
were not assessed the same level of taxation. It was also evident slaveowners had an advantage
in the lawmaking process because of the low property tax rate they paid, but they were not given
complete control over their property. The state imposed its will upon the right to release a
person’s property in the form of manumission laws.
One of the things many Floridians feared was an increase in the free black population.
Many believe they would impact the tranquility of the slave population by inciting them to rebel.
Lawmakers used the Seminole Wars to buttress this notion and sought to make sure Florida
would not tolerate emancipation or the migration of free blacks into her borders. The
importation of slaves was a regulated by law. According to the statutes, “It shall not be lawful
for any person whatsoever to bring into this State, or to hold therein, after the passage of this act,
any slave or slaves that shall have been convicted of any offence and therefore transported by the
laws of any State.”18 Violators of this provision could be fined $250 and must give bond to the
Judge of the Circuit Court for the transportation of said slave out of the state of Florida within
twenty days. Besides prohibiting the importation of slaves who had committed crimes, the state
15
Wilbert E. Moore, “Slave Law and the Social Structure.” The Journal of Negro History, Vol. 26, No. 2 (April,
1941), 185.
16
Thompson, Leslie, p. 537.
17
Ibid., p. 87.
18
Ibid., p. 531.
37
also required notification about slaves moved into the region for the purpose of sale. Traders
were required to obtain a certificate describing the slave signed by a judge or two Justices of the
Peace in order to bring the slave into the state. Florida did not wish to become a haven for slaves
who commit crimes, nor a place for runaway slaves to flee.19
Florida also had to deal with manumission. Though not a common practice, it could
create a free black population feared by many Middle Florida residents. It was more common in
East Florida where race relations were more relaxed than in Middle Florida. Rivers states the
world-view of slaves in East and West Florida was different from those of Middle Florida
because of their access to the Atlantic and the Gulf of Mexico. This increased their knowledge
of this world and exposed them to news of revolution. Rivers contends that Florida was a blend
of land and water people that gave it a unique character of expression.20 Middle Florida also had
a higher population of people from South Carolina, which had a more stringent view of slavery
as opposed to East and West Florida who were more influenced by the Spanish who were more
lax in their controls on slavery. In order to help regulate manumission in those areas the
territorial legislature passed manumission laws in 1829. The statute read:
Any person or person who shall manumit any slave or slaves brought into this
State, after the passage of this act, shall forfeit and pay, for every slave so
manumitted, the sum of two hundred dollars; one half to be paid into the State
Treasury, and the other half to the person suing for the same.21
After the fine was paid, the owner had to give a probate judge two bonds of security for the
transportation of the slave out of the state of Florida within thirty days of their manumission. If
this laws were violated the slave would not be deemed free, then arrested, and sold by the county
sheriff at public auction. Slaveowners did not disagree with this restriction on how to release
their property. The fear of free blacks in the state and the protection of their institution far
outweighed any fear of government control over their property. This law was a good example of
the state’s control over slave property and the lengths it was willing to go in order to control
African Americans.22
19
Ibid., p. 531-534.
Rivers, Rebels and Runaways, p. 48-49.
21
Thompson, Manual or Digest of the Statute Law of the State of Florida, p. 533.
22
Ibid., p. 533-534.
20
38
The rules put in place for runaway slaves were almost as extensive as those controlling
their behavior towards whites. Slaves were considered runaways when they were more than five
miles away from their master’s plantation without proper documentation or a witness to explain
their business. Suspected runaways could be apprehended by a member of the community and
brought before the local Justice of the Peace and that person was paid five dollars for every slave
apprehended. The state was able to create a system of informants in order to make it more
difficult for slaves to escape. Once a runaway was committed to jail the sheriff placed an ad in
the local paper with their description for six months. If the owner of the slave did not claim their
property within a year the sheriff gave thirty days notice of public auction and sold the slave to
the highest bidder. If the owner appeared to claim their property and provided the proper
documentation proving they owned said slave after this period had expired they were reimbursed
the value of the slave sold at auction minus expenses incurred due to imprisonment.23
The previous set of statutes specifically targeted the movement of slaves and free blacks;
the next set focus on their actions. As previously stipulated the codification of slavery not only
had to deal with the property status of slaves, but the humanity of the slave. The law took into
account the fact that slaves were thinking beings and not simply property. This was the area
where minimal rights were applied, because those crimes that were not punished on the
plantation had to be tried in the court system. One of the few, if only, rights a slave could obtain
was a jury trial. Granted it was not a jury of their peers, it was still a trial and for a brief moment
the slave participated in a process similar to their white counterparts. “In the trial of any slave in
the Circuit court, the same rules and regulations shall be observed as are observed in the trial of
free persons.”24
Much of the law code dealt with an individual doing bodily harm to another. Slaves and
free blacks typically faced some form of corporal punishment for their transgressions. Free
blacks could be fined and if that fine could not be paid they faced payment through labor to the
highest bidder. Crimes such as assault and battery, poisoning, murder, manslaughter, arson, and
rape were met with death. All of these criminal statutes, with the exception of arson and
poisoning involved the commission of the crime against a white person. Another code dealing
with black on white crime was titled “Shooting a white, &c.” it read:
23
24
Ibid., p. 543-545.
Ibid., p. 542.
39
If any slave shall willfully and maliciously shoot at any free white person with a
gun, or other instrument, with the intent to kill such person, or if any slave shall
willfully and maliciously wound any free white person in attempting or
endeavoring to kill another person, the slave so offending, his or her aider and
abetter being a slave, shall be deemed guilty of felony, and shall therefore suffer
death.25
The intent of these laws was to harden the racial divide in an attempt to further dominate an
enslaved people.
It was also unlawful for slaves and free blacks to have firearms and ammunition. If
caught with a firearm slaves faced the lash and free blacks forfeited their guns and ammunition
and for the second offense they received the lash.26 These laws coupled with laws against
insurrection and riotous speeches are a clear indication of the fear of rebellion. Nat Turner and
the Haitian Revolution were part of the lawmakers’ historical memory. For example,
If any negro [sic] or other slave shall at any time consult, advise, or conspire, to
rebel or make insurrection, or shall plot or conspire the murder of any free white
person or person whatsoever, every such consulting, plotting, or conspiracy, shall
be adjudged and deemed a felony, and the slave or slaves convicted, shall suffer
death.27
It was also unlawful for free blacks to give “seditious speeches,” along with slaves. They also
faced punishment if they were believed to have initiated a riot or unlawful assembly. These laws
were designed to manage African Americans’ political views. The punishments for these
transgressions were a fine of not more than twenty dollars for free blacks and no more than
thirty-nine lashes for slaves. The statutes also gave Justices of the Peace considerable power to
manage African Americans in their district. They were tasked with breaking up unlawful
meetings and assemblies. They could even issue arrest warrants for suspected participants up to
ten days after the event. The Justices of the Peace assisted in the set up of the slave patrols in
their districts and they had the power to break up meetings they felt were unlawful.28
25
Ibid., p. 538.
Ibid., p. 541.
27
Ibid., p. 537.
28
Ibid., p. 544.
26
40
Enslaved Blacks were also prohibited from participating in commerce. It was illegal for
them to trade merchandise without the consent of their master. They faced the lash if they were
caught trading goods without the proper permission. It was also illegal for whites to trade with
slaves and they faced fines and forfeiture of articles. This was an attempt to prevent slaves from
either trafficking in stolen goods or obtaining any property in the open market. The lash also
punished theft unless a slave commited burglary against a white person in which case they
suffered death. Slaves were also not allowed to own horses, mares, geldings, mules, or cattle.29
These laws were designed to make sure slaves could not earn money or anything extra that did
not benefit the master. The wealth created by a slave’s labor was to benefit the master and not
the slave. Property was the ultimate status for the enslaved. Most of the lawmaking energy dealt
with property and the maintenance of that status in the face of their humanity. This can be seen
in some of the cases that were heard before the State Supreme Court.
Thompson’s Digest outlines the nature of the State Supreme Court as an appellate
division of the judicial branch. In the “Title Sixth” it reads:
If a party, in either of the Circuit Courts of this State, shall feel aggrieved by a
final judgment, sentence, or decree, made or pronounced by any or either of said
Courts, it shall and may be lawful for such party, during the session of the Court
at which such judgment, sentence, or decree is rendered or pronounced, or within
ten days thereafter, to obtain in Court, if the appeal be made in term time, or in the
clerk’s office, if it be in vacation, his, her, or their appeal to the Supreme Court of
this State; and an appeal obtained, shall, in all cases, operate as a supersedeas.30
Once the appeal was made and the writ of errors was filed with the Clerk of the Court, the party
appealing the ruling had to provide bond to cover the court’s costs. If the appellant lost the case
they paid costs and any other fees or fines associated with the case. When the appeal bond was
approved in open court or by the Clerk of the Circuit Court the Appellee was given twenty-five
days notice before the first day of the term of the Supreme Court that the judgment would be
appealed. Along with the notification of the persons involved with the case the law stated that,
“notice of said appeal or writ of error may be given by publishing the same in such newspaper in
29
30
Ibid., p. 541.
Ibid., p. 446.
41
this State, as may have the most general circulation, for thirty days.”31 The process to appear
before the State Supreme Court was not simply a request for an appeal. It required paperwork
and the expertise of counsel to draft the writ of errors and determine when and how to file it.
Lastly, the appeals process required a monetary offering binding the appellant to the court. If the
case was not found in their favor the bond provided to cover costs was lost. For a slave without
property or limited means of earning wealth their owner covered the cost of an appeal, but this
begs the question of why an owner would go to such lengths to appeal a case. For free blacks,
their limited earning potential due to their status made it difficult for them to appeal rulings.
Typically free blacks had to be assigned a white guardian by the probate courts and they supplied
the necessary funds.32
A majority of the cases heard in the Florida court system normally argued the property
status of slaves and did not involve free blacks. These cases cannot be dismissed as not having
significance in the dialogue of civil rights. The law had to justify the status of property for
slavery to function in a legal society. In cases of property transfer for debt or inheritance and
cases of recovering the value of damaged or lost property dehumanized slaves. The cases rarely
referred to slaves by name and usually listed names to merely enumerate the possessions in
question. The 1848 case Camp v. Moseley was a prime example of this idea. This case
concerned the debt owed to Union Bank of Florida by Samuel Parkhill. He, along with his
brother John, were Virginia merchants who moved to Tallahassee around 1828 and developed a
mercantile business in town. John Parkhill also developed a resort community south of town,
which he called BelAir. In the 1830s Samuel Parkhill was the second largest stockholder in the
Union Bank of Florida--he owned 5,404 acres of land and 210 slaves. He also had considerable
debts and when he died in 1841 he owed $143,782, which nearly wiped out his estate. Parkhill’s
landholdings included Springwood Plantation, Lake Jackson Plantation, and Orchard Pond
Plantation.33
Parkhill’s widow, Martha Ann Manly, argued she was due her widow’s dower. The legal
concept was rooted in English common law and it entitled the widow to one-third of her late
husband’s estate. Manly’s new husband Hiram Manly sued for her portion of the estate before
the debt to the Union Bank had been paid. William Dunn Moseley, first governor of Florida,
31
Ibid., p. 447.
Ibid.
33
Clifton Paisley, Red Hills of Florida, 1528-1865 (Tuscaloosa: University of Alabama, 1989), 88.
32
42
along with the widow and her new husband were the administrators of said estate. The estate
property in question was 180 slaves. Moseley and Manly charged John G. Camp, Marshal of
Middle Florida, of trespassing and seizure of 180 slaves. This was done during the Spring Term,
1846, of the Leon County Circuit Court. They argued that Camp’s long-term detainment of said
slaves hindered production on three of their plantations and prevented them from “enjoying
profits, benefits, and advantages, of their labor and services.”34 They estimated the damage to be
approximately $50,000 in lost production.35
This case provides evidence of the maintenance of enslaved property status. The
humanity of the enslaved was minimally mentioned in the proceedings and when it was it dealt
with profit. Witness John George Anderson said he was at the sale and asked Camp if he could
give a sum for a slave family. Camp referred the request to Moseley who denied it and Camp
was unwilling to go against Moseley’s wishes. Moseley wanted to break up the enslaved
families and sell them separately in order to garner a higher price. This was one of the few times
the humanity of the slave was mentioned in this case beyond simply itemizing their names for
the record. The willingness to break up a family unit in order to increase profit expressed the
domination of the plantation culture while reinforcing the status of property. The question
looming over this case was whether Camp had the right to seize the property of the Parkhill
estate and sell it and whether Moseley and Manly were aware this could occur. If the testimony
of Camp’s witnesses proved to be true they were aware of the sale because of their participation
in it. Moseley was present at the sale and advised people to buy the slaves.36
When Camp presented the evidence before the State Supreme Court, Justice George S.
Hawkins reversed the ruling of the lower court finding for the Appellant, Camp. Hawkins
argued Camp was within his outlined duties to seize the property and sell it at public auction.
The role of this case was not to outline the argument over inheritance and the aftermath of
Samuel Parkhill’s death. The purpose of this case was to explain the legal wrangling those in
power were willing to go to protect their property. They were not arguing among themselves
thus creating an interpersonal debate over property. They involved the legal mechanisms of the
state that were duty bound to abide by the laws of said state. In this case the role of the slave
34
James T. Archer, Reports of Cases Argued and Adjudged in the Supreme Court of Florida, at January Term,
1848, Vol. II (Tallahassee: Southern Journal Office William Bartlett, printer, 1848), 172.
35
Ibid.
36
Ibid.
43
was minimized to that of inanimate objects without agency and this was not an uncommon
occurrence.
In the above case the execution of Parkhill’s estate included the disposition of slave
property. The State Supreme Court argued the case within the confines of property law and the
listing of the enslaved as mere property reflected this idea. Enslaved Blacks had a tremendous
task to overcome; emancipation was but one step towards freedom. Unless the courts were
willing to pass verdicts dealing with African Americans as persons then freedom could not be
achieved. The law had to be torn down in order for African American natural rights to be
asserted. The following case is further evidence of the entrenched property laws governing
antebellum blacks.
As the debate over slavery intensified the wealth invested in the enslaved was increased
and as a result many people challenged the transfer of property after the death of the original
owner. In the 1858 case Linton v. Walker, the disagreement was over who ultimately owned the
enslaved property. Was it the children of the mother who originally owned the slave or was it
the stepfather who had taken them up and hired them out?
On April 2, 1856, the children of Minor Walker sued for damages in Jefferson County to
recover the slaves hired to Thomas J. Linton for the years 1850-1855. He was supposed to pay
$6,000 over five years for the slaves’ labor.37 He stated he paid Minor Walker for the hire before
Walker’s children laid claim to the enslaved. Jaqueline Peterson of Hancock County, Georgia,
originally owned the slave property and after his death in 1829 bequeathed it to his daughter
Martha Peterson. According to his will the property was to be transferred to Martha’s children,
if she had any, after her death. Martha later married Minor Walker in 1833. A witness for the
plaintiff, Henry L. Taylor, testified Walker did not own any slaves before his marriage to
Martha. The argument being made was that Walker never owned the slaves because the children
received title after their mother’s death. Martha Walker died before 1850.38
William Butler, plaintiff witness, stated Linton knew the slaves were not Walker’s, but
was pleased with the inexpensive price. Walker mortgaged the slaves to the Union Bank. Butler
stated Walker had exercised ownership over the slaves until Dr. Thomas Martin Palmer took out
papers of guardianship for Walker’s children in 1843. Mrs. Behethland Byrd of Jefferson
37
Mariano D. Papy, Reports of Cases Argued and Adjudged in the Supreme Court of Florida, at Terms Held in
1858-1859, Vol. VIII (Tallahassee: Office of Floridian & Journal, Jones & Dyke, 1859), 145.
38
Ibid.
44
County tried to buy a couple of the slaves, but Walker said the sale would not be good because
he did not have a title for them. Walker said he made an agreement with Linton to convey lands
mortgaged by Walker to the Union Bank for $6,500.39 The agreement included the hiring of
seven male and six female slaves.40 The contract stated the slaves were to be treated kindly and
given proper food and clothing. On January 1, 1855, Linton was, “to return such of them as shall
be alive, with the increase of the females, to the party of the first part,” Walker.41
The original case found judgment in favor of the plaintiffs and the defendant, Linton,
appealed. During the case before the Florida Supreme Court James Archer and Mariano Papy
were for the appellant, Linton, and W.S. Dilworth and B.C. Pope were for the Appellees,
Walker’s children. Justice Thomas Baltzell, in his opinion, notes, “No proposition is clearer than
that the owner alone has the right to hire his property, nor is he less owner that his rights are
unknown.”42 The Florida Supreme Court reversed the lower court’s decision, two to one. Justice
Bird M. Pearson dissented stating Walker could not profit from the labor of the slaves because he
did not legally own them. The essence of this case is who ultimately profited from the slave’s
labor, Linton, Walker, or Walker’s children; not the slaves. This was evidence that labor was
real property because of its earning potential.43
Florida law also restricted slave involvement in commerce as shown in the 1860 case
Harrison v. State. This case on the eve of the Civil War was significant because of the use of the
letter of the law to argue the viability of slave statutes. The indictment read as follows:
An indictment under the act in relation to trading with slaves, approved January
24, 1851, which charges the defendant with buying and receiving grain from a
slave, “whose name is to the jurors unknown,” but avers the name of the owner of
the slave and charges the offence to have been committed on a day certain; held
sufficient, without giving the name of the slave.44
The omission of a slave’s name was not unusual in antebellum cases. The case was originally
decided in Marianna and the writ of error was to Jackson County Circuit Court. Winder
39
Ibid., p. 148.
Slaves were listed as Abendnego, Meshach, Allen, Monroe, Starling, Cheney, Drew, Major, Winney, Caroline,
Nancy, Mary, and Silla.
41
Papy, p. 148.
42
Ibid., p. 152.
43
Ibid., p. 158-161.
44
John B. Galbraith, Reports of Cases Argued and Adjudged in the Supreme Court of Florida, at Terms Held in
1860-1861, Vol. IX (Tallahassee: Office of Floridian & Journal, Dyke & Carlisle, 1861), 156.
40
45
Harrison was charged with buying grain without a permit from a slave owned by Olympia
Sullivan. Harrison bought a bushel of corn for $0.50 without a permit. Sullivan had instructed
the slave to dispose of the corn. At trial in the Jackson County Circuit Court Harrison was found
guilty and fined $100.45 The judgment was appealed because the indictment did not provide the
slave’s name and therefore was too vague to prove guilt. Without a name or other description
Harrison could not determine which slave the state argued he bought the grain from nor could he
produce the slave and prove he had a permit.
Justice William A. Forward delivered the opinion for the court. He noted the Alabama
cases Francois v. The State and Starr v. The State in order to show that the omission of a slave’s
name was not unusual in a case such as this. Forward affirmed the decision stating that the slave
was owned by Olympia Sullivan was enough of a description for the law. The impact of slave
codes was not only felt by the slaves, but white farmers as well. In this case Harrison appealed
the judgment at his own expense and eventually lost his bond and had to pay the original fine.46
Florida statutes not only impacted the enslaved, but free blacks. The only thing
distinguishing free blacks from those in bondage was they were not considered property, but the
restrictions were no less great. This was evident in the 1853 case Davis v. Administrators, &c. of
Samuel Elliot.47 Loammi Davis, a free man of color, was sued by the Appellee in a Justice’s
Court for a $50 promissory note. Even though Davis had legal representation, he lost the case
and appealed to the Southern Circuit Court in Hillsborough County and received a new trial, but
lost again and the judgment was for $66. The Supreme Court reversed the judgment because
Davis did have the right to sue for judgment if he had a guardian. Davis could not be sued
without joining his guardian, making the latter party to the suit. The necessity for making the
guardian a party of every suit brought by and against a free person of color, was supposed to
45
Ibid., p. 157.
Ibid., p. 158.
47
The administrators of Elliot’s estate were Martha and Charles F. Fitchett. He was born in Georgia in 1807. In the
1830s he moved to Columbia County, Florida, and was elected Sheriff of Columbia County in the 1840s. After he
was defeated in a reelection bid he and his wife Martha W. Fitchett moved to Alachua County where he worked as a
tailor. He died in Tampa on October 11, 1856.47 James Gettis and Mathew Whit Smith were the attorneys for
Loammi Davis, a free man of color. Gettis was a Pennsylvania born attorney in Tampa. He was well regarded in
the community and tutored other law students. Mathew Whit Smith was born in Tennessee in 1814 and came to
Florida to volunteer in the Second Seminole War. He remained in Columbia County. James T. Magbee is the
attorney for the Appellee. Magbee was from Georgia and was the state representative from Hillsborough County.
46
46
arise as a provision of the Act of January 8, 1848.48 In this case the statute in question was the
Act of January 8, 1848 entitled, “An Act to authorize Judges of Probate of the several counties in
this State to appoint guardians for free negroes.”49 This required free blacks to have guardians
appointed to them by the probate courts. This was done in probate courts and not circuit courts;
further reinforcing African Americans were first regarded as property before the law even when
they were free. Guardians were supposed to be chosen by them unless they were under the age
of ten and then the parents chose the guardian. The duty of the guardian was to sue for and
recover all such sums of money as were or may hereafter be owed to such free blacks. Basically
in order to circumvent the legal system, the legislature created a proxy. Blacks were not legally
recognized because of slavery. Free blacks created a quandary that was solved by having whites
as the parties of these cases. Essentially this was a paternalistic role devised to control the free
black population and to continually deny African American civil rights.
In 1853, Forsyth v. Perry proved the status of property was not merely found in probate
cases. Slaves were not only property, but valuable property and damage, or loss, of it was a
serious matter. Not all slaves worked in the fields of Florida. In East and West Florida, a
number of slaves were hired out to other people for the financial benefit of the master. The law
regulated how slaves were hired out and the liability assumed by the person hiring them. In
Forsyth, George Perry sought damages for the death of one of his slaves while under the employ
of Joseph Forsyth and Ezekiel Simpson. The said slave drowned while executing an order to
jump on board the steamer from another vessel by the Mate of the Steamboat, the General
Hamer. The Circuit Court of Santa Rosa County found for Perry and Forsyth and Simpson
appealed the verdict.50
Forsyth and Simpson, appellants, appealed the case to the Supreme Court. They argued
that the Mate was an employee and therefore the action of said employee was not the
responsibility of the owners. Since the Mate and the slave were engaged in the same business
the owner of the slave has no recourse against the business owners because the Mate was not the
third person liable for the slave, therefore the claim was void. “As between a master and his
slave, the latter is property, and nothing but property: but he may, as to third persons, occupy the
48
Mariano D. Papy, Reports of Cases Argued and Adjudged in the Supreme Court of Florida, at Term Held in 1853,
Vol. V, No. 1 (Tallahassee: Office of Floridian & Journal, Charles E. Dyke, 1853), 262.
49
Ibid.
50
Ibid., p. 337.
47
same relation as a freeman.”51 They argued the relationship between the Mate and the slave was
not that of a master and slave so he did not have to slavishly obey him. They said,
The true test of the responsibility of the appellants is, whether the owners of a
vessel are responsible for injuries received by a sailor, in consequence of the
negligence or misconduct of the mate. To apply any other would be to throw
greater safeguards around the person of a slave than a freeman, and to permit the
master to enjoy the profits of an avocation, and yet relieve him from an important
risk incident to it—the danger to his property from the misconduct of
subordinates.52
The appellants did not believe they were responsible because they did not give the direct order
that ultimately caused the death of the enslaved.
Forsyth, appellee, rebutted this claim by stating they were the respondeat superior and
therefore responsible for the slave as a course of employment. Forsyth and Simpson must be
considered third persons because Perry did not hire himself out, but his property. The hiring of a
slave was bailment with all incidents and responsibilities. “The [N]egro slave cannot hire
himself—possesses no free-will, option or discretion as to his employment—he cannot, if he
would, leave the service of his employer in case of harsh treatment.”53 Forsyth emphasized the
status of the slave as the dominated property of another without any freewill or thought. In order
to prove his case Forsyth stripped all humanity from the slave in the face of the appellants trying
to place the slave on equal footing with the Mate and therefore had the ability to ignore the order
to jump on to the steamer.
Florida Supreme Court Justice Albert Gallatin Semmes wrote the court’s majority
opinion. The point of law Semmes argued was, “In all relations and in all matters, except as to
crimes, a slave is regarded by our law as property. The contract of hiring of a slave, between the
owner and the hirer, constitutes a bailment of the slave, and the hirer is bound to take ordinary
care of him.”54 He noted that the appellants argued it was the Mate’s fault because he gave the
order for the slave to jump from a flatboat to the steamboat that led him to fall into the water and
drown. Semmes replied that unlike white persons, enslaved persons did not voluntarily incur the
51
Ibid., p. 339.
Ibid.
53
Ibid., p. 340.
54
Ibid., p. 337.
52
48
risks associated with the job because of their status. Semmes qualified this by stating that since a
slave was a human being it increased the liability of the person who hired them, but did not
impair the rights of the owner. In his affirmation of the lower court decision Semmes used the
humanity of the slave to prove it did not impact the domination of the owner, nor released the
liability of the employer. In the context of the law the only issue in question was whether or not
the value of the slave was to be repaid to the owner, not that the negligence of another that
resulted in the death of a human being.55
The last case dealing with loss of property was Tallahassee Railroad Company v. Macon
in 1859. It focused on the death of an enslaved man named Esop. He contracted pneumonia
while under the employ of the Tallahassee and St. Marks Railroad Company (a.k.a. Tallahassee
Railroad Company) and died from a lack of medical care. Arthur Macon, his owner, sought
damages equaling the value of Esop. The case was originally heard in October 1858 at the
Middle District with Judge J. Wayles Baker presiding. Macon was the plaintiff and Tallahassee
Railroad Company was the defendant. Macon’s attorneys filed the case with the clerk on March
4, 1858, and claimed $2,000 in damages. According to Macon’s attorneys, he made an
agreement with the plaintiffs to hire Esop on January 1, 1857, and they agreed to provide proper
treatment for him if necessary. On January 2, 1857, the Tallahassee Railroad Company hired
Esop to the Georgia and Pensacola Railroad Company where he later died of pneumonia. Macon
charged Tallahassee Railroad Company with neglect in Esop’s death because they held the
original obligation. Macon valued Esop at $1,500 and the doctor’s bill was $500. The defendant
pleaded not guilty.56
A subpoena was issued October 20, 1858, for Dr. George W. Betton to appear before the
Circuit Court of Leon County, Middle Circuit of the State. Betton testified for Macon about the
circumstances surrounding Esop’s death. He said he examined him in the railcar the night he
died and did not believe Esop had been given proper treatment. Betton testified only one door
was open and Esop did not have access to a bathroom. Esop was supposed to go outside of the
railcar if “nature called.” The jury in the Leon County Circuit Court found for Macon and
awarded him $600, which the Tallahassee Railroad Company promptly appealed and moved for
55
Ibid., p. 344.
Tallahassee Railroad Company v. Arthur Macon. Florida State Archives, Record Group 1100, S 49, Box 473,
Wallet 853.
56
49
a new trial on the grounds a verdict was contrary to the evidence and the judgment was
excessive. The case was referred to the Supreme Court.57
During the appeal, the facts of the case concerning Betton’s testimony were argued and
once again the value of the slave was also debated. Betton said Esop was about 40-45 years old
and worth about $800-1,000. Glennon, an overseer for the company, testified that Esop had
complained about a pain in his side, but did not seem any worse than some other sick men. He
believed he received enough care before the doctor came to see him. He believed Esop was
about 50-60 years old and worth about $300. Dozier, another employee, testified he knew Esop
and corroborated Glennon’s testimony.58
After reviewing the record of the lower court, Justice Bird M. Pearson wrote the majority
opinion of the court. He noted Betton examined Esop at Macon’s request and Glennon and
Dozier testified Esop was ill, but had been up and around moving freely. They did not believe
his illness was life threatening. Pearson noted Glennon and Dozier were charged with
overseeing Esop and therefore may have been testifying in their favor. They also did not provide
testimony contradicting Betton’s conclusion of neglect. Pearson then spoke to the nature of the
law in this case. He stated, “This Court, recognizing the general principle, said, in cases of this
peculiar species of property, the American Courts, by a spirit of enlightened humanity, have
extended a more enlarged protection than prevails in cases of mere chattels.” 59 He affirmed the
lower court’s decision and ordered the appellant to pay the court costs. The slave law code did
everything possible during its evolution to ignore the humanity of the slave. Legal logic argued
for property compensation for death and dismemberment, ignoring any other humane legal
recourse.
The status of slaves as property was defined and defended in the court system. Historian
Wilbert E. Moore states most cases and law viewed slaves as chattel property to be exchanged by
sale or inheritance.60 The willingness of owners to take cases of property loss and inheritance to
the State Supreme Court was strong evidence of the value of the property. The above cases were
shown to argue the law’s ability to ignore the humanity of the slave while bolstering their
57
Ibid.
In the original record the first names of Glennon and Dozier were left blank. Record does not reflect why this
occurred.
59
Mariano D. Papy, Reports of Cases Argued and Adjudged in the Supreme Court of Florida, at Terms Held in
1858-1859, Vol. VIII (Tallahassee: Office of Floridian & Journal, Jones & Dyke, 1859), 304.
60
Moore, p. 191-192.
58
50
profitability. Moore notes, “Of course, from a common-sense point-of-view, much of the value
of the slave as property arose from the fact that,” they, “had characteristic human qualities.”61
Peter J. Parish, “describes southern slavery as ‘the paradoxical institution’ because ‘its guiding
principle was that slaves were property, but its everyday practice demonstrated the impossibility
of living up to, or down to, that denial of the slave’s humanity.”62 If this idea was accurate then
these cases do allow for the humanity of the slave to be viewed in the record. Their value, more
so than livestock, was their ability to think and complete complex tasks. The cases enforcing the
property rights of white owners were designed to further codify the property status of slaves even
though their humanity could not be ignored in the monetary value it created.
The court system was a real world expression of legislative action. Laws were not
meaningful until they were challenged and enforced in the court system. Within this context
these court cases can take another position in the understanding of slavery and its civil rights
implications. Since slaves are not legal persons, their foray into the legal system was a constant
challenge to that status. Whether the action was intentional or not, the result was still legal
conflict between property and humanity. At this juncture in the civil rights struggle of the
enslaved the goal was not suffrage or even equality, it was the establishment of a legal person.
The Civil Rights Movement must be understood as a process and not a singular focus on
certain rights earned by citizens. Slaves were not citizens, nor persons, as evidenced in the law
code. In order to obtain their rights as citizens they had to first challenge the legal definition of
property. Legal historian Thomas Morris writes, “It was as human beings subject to the
protection of the law, as well as to its commands and the commands of their owners, that the
slaves’ humanity was most evident.”63 Moore further argues that slave codes were built on the
presumption that the slave was a legal person in the sense they could commit crimes and should
be tried for those crimes.64 A North Carolina judge, William Goodell, exemplified this concept
when he wrote; “a slave becomes a person whenever he is to be punished!”65 This concept of the
introduction of “person” when slave commits a crime shows the law must, in some capacity,
accept the humanity of a slave. If this is accurate then Morris’s assertion that “because of the
cruelty of human bondage, almost all slave offenses should be viewed as political” helps
61
Ibid., p. 196.
Brown and Webb, p. 119.
63
Morris, p. 2.
64
Moore, p. 197-198.
65
Morris, p. 229.
62
51
formulate a different understanding of slaves in the judicial system.66 This allows slaves to have
Hahn’s political capital and therefore “the criminal in this theory is a primitive rebel.”67 How
does this theory hold up in the Florida Supreme Court? How do these cases allow for political
capital? How do they express the passions of the rebel? How does these challenges, whether
direct or indirect, fit into the process of civil rights?
While the status of property was not challenged in these Supreme Court cases, they
appropriately express the relationship between the enslaved and the judicial system. The courts
were determined to protect enslaved property at every opportunity. Conflicts over property
dominated the court during Florida’s early statehood. This was an insurmountable position to
overcome and the enslaved understood that they had little to no recourse in the court system to
voice their desire to be free, but their participation in court cases, whether directly or indirectly,
forced jurists to recognize their humanity. The Civil Rights Movement during the antebellum
period was not about voting rights or equality in public spaces; it was simply about freedom.
The legacy of the courts was how they viewed African Americans and the first step was to
remove the shackles of property and find a status of humanity. The person cannot be free until
they are viewed as a legal person. The cases of property were proof the courts fixated on African
Americans as property and not as human beings who could potentially become citizens. The
majority of the cases reflect this property status, but how does the court deal with enslaved and
free blacks when oppressive codes were challenged and broken. This “criminal action” results in
the courts providing the realization that the enslaved were human beings and allowed for a jury
trial dominated by slaveowners seeking to protect their property.
66
67
Ibid., p. 236.
Ibid. p. 299-300.
52
CHAPTER 3
THE ENSLAVED AND A JURY TRIAL
The criminal code written for the enslaved, as well as free blacks, was extensive and
strictly regulated their movement in order to maintain the status of property. When the enslaved
violated those statutes it was not a conscious act of rebellion or civil rights activism. The nature
of this action was the broader implication that the legal system must deal with a thinking being
who was traded as property. It forced slaveowning justices to further articulate the
inconsistencies between freedom and bondage in a republic governed by laws. Abolitionists
understood this dilemma and argued their case for emancipation based on these principles of
freedom. Enslaved blacks indicted for criminal activity momentarily ceased to be property in
order to be tried for the offense. Civil rights were created to protect the people from government
oppression and a jury trial was one of those protections. This situation was unique in American
jurisprudence because the system was dominated by slaveowners and their singular goal of
protecting an investment in human chattel. Criminal cases give historians an insight into the
legal means used to solidify slavery and the extent in which slave societies were willing go in
order to protect it. For the enslaved they were extended a limited jury trial in order for the state
to deal with events that transpired outside the domain of the plantation or between fellow
slaveowners. The existence of the enslaved in the legal system did not guarantee freedom or any
other civil right, it merely expressed how the law saw them and what needed to occur before they
could ever dream of equality.
In 1860, Murray v. The State was tried during the most contentious period of the slavery
debate. With secession on the horizon the need to solidify the status of property became crucial.
An enslaved man named Clem Murray was charged with running an illegal gambling
establishment out of a barbershop. The case focused on whether or not Murray could be
convicted of this crime because as a slave he could not own any property; only his master could.
Therefore, he could not be held responsible for the offense because he did not own the
barbershop.1
Murray was indicted in Franklin County under Florida’s anti-gaming statutes. He was
charged with gambling by playing poker with Jim Dunham, a.k.a. Jim Deblois; an African
1
John B. Galbraith, Reports of Cases Argued and Adjudged in the Supreme Court of Florida, at Terms Held in
1860-1861, Vol. IX (Tallahassee: Office of Floridian & Journal, Dyke & Carlisle, 1861), 246-254.
53
American man, but it was not clear if he was enslaved. The court found Murray guilty and
assessed a punishment of fifty lashes. During the original trial a motion to arrest the judgment
was presented stating there was not a statute to be enforced against the enslaved because they
could not own property. The motion was overruled and the defendant, Murray, filed a writ of
error with the State Supreme Court.2
The objection to the original verdict was based on Murray’s status. It was argued that
Murray could not be convicted of this crime because it was not specifically outlined in the slave
code. In Justice Forward’s opinion he stated, it would have been a stronger objection if the
conflict between Murray’s status and the law code had been made before the trial began.
Forward noted that the acting Attorney General, W. D. Barnes, said the statute did cover slaves
even though the punishments were not different because of their status. Barnes stated the term
“person” included slaves as well as white persons. Forward then cited the 1853 Florida Supreme
Court case Luke v State to explain how the law code covered crimes committed by slaves, free
blacks, and whites, but the punishments were different because of the sixty-first section of the
Act of 1828. He argued the same laws could not govern masters and slaves because they
differed in position, rights, and duties. He further articulated that since slaves could not be
punished under the state penal code because it would equate them with their masters, slave states
had to enact slave codes to appropriately punish transgressions committed by them.3
Regarding the statute referencing gaming, Forward argued if the state legislature intended
the law to include slaves, a corporal punishment would be written into the statute, instead a fine
was provided. He wrote,
They fix a punishment which to the slave is no punishment at all, because he has
no means, nor can he have, of paying a fine, nor has he any liberty of which to be
deprived. At the time of the passage of this act, the policy of the State legislation
was clearly manifest and established, to-wit: in keeping up the distinction between
free persons and slaves, in separate codes, and in providing different
punishments.4
Forward believed this was proof the legislature did not intend to make slaves responsible. He
stated slaves could not commit this crime because of their situation; they are not supposed to
2
Ibid., p. 248.
Ibid., p. 249.
4
Ibid., p. 252.
3
54
have money. Slaves, by law, cannot have charge, control, or managements of any house or
dwelling, therefore they would not have any place to keep a gaming table they would be
responsible for. “In this case the Barber Shop was the shop of the master. If he permits his slave
to act as a public barber, the slave is his agent. The slave has no control or management thereof,
that is not under the master.”5 Forward supported this conclusion by outlining that a slave does
not have a right to private property because the nature of the master/slave relationship deprives
him of it. “His person and his time being entirely the property of his master, whatever he may
accumulate by his own labor, or is otherwise acquired by him, becomes immediately the property
of his master.”6
Forward made an interesting distinction in his opinion. While maintaining a slave has no
rights in the eyes of the law he was indirectly allowed some rights by appearing in court. He
wrote,
It is urged with some force and propriety that this conduct of slaves is a crying
evil; if so, the remedy is with the legislature. It is much better for the master, the
slave, and the community at large that provisions be made for the summary
punishment of slaves for such offences before a Justice of the Peace, than that the
slave be dignified and brought into court with the same importance with the white
man, and the master in consequence thereof put to heavy expense in employing
counsel and protecting his slave.7
Using this logic Forward arrested the judgment and Murray was discharged. Murray’s status
was both a blessing and a curse. He was released because he was not legally a person and spared
the lash, but he had no rights to protect him from further oppression.
This case provided evidence of the contradiction in the court system and how it allowed
for rights in a minimal way. Murray had no rights until he was prosecuted for a crime, then he
was granted a jury trial. He was able to appeal the original verdict all the way to the State
Supreme Court. Granted his master paid for the attorney and the bond to appeal the case, as state
law required it, but in the end it was Murray who challenged the system. He obtained a jury trial
similar to a free person, indirectly challenging the system by forcing them to recognize his
humanity by punishing him. As part of the Long Civil Rights Movement this case was not
5
Ibid.
Ibid., p. 252-253.
7
Ibid., p. 254.
6
55
groundbreaking, but it indicates that the courts struggled to categorize human beings as property.
As one of the steps in the process of civil rights the courts needed to recognize the “person.”
Once the person is recognized then the discussion of civil rights can occur because the status of
property would have been removed. This did not happen in this case, but the discussion of it is
significant because it became more and more difficult to articulate the legality of slavery.
Florida justices continued to construct illogical legal paradigms in order to justify the institution
and this would not have happened if those ideas were not challenged by enslaved African
Americans.
In the above case Luke v. Florida was cited, because it dealt with the dominance of the
master. It questioned when the will of the master stopped and the intellect of the slave began.
Historian Craig Buettinger argued whether slaves could have free will in a system that denied
them the thinking ability of a human being in lieu of a dominated slave.8 Buettinger may have
oversimplified the idea about whether a slave could actually commit a crime. The question about
whether or not they could consciously commit a crime fails to recognize the law. It was obvious
that a slave could make the decision to commit a crime; the question was whether the law
allowed the overt act to be acknowledged and whether or not that acknowledgement deteriorated
the dominance of the master. Perhaps Morris has a clearer view of this subject when he writes,
“The more absolute the power of the master in theory, the more recognition of the slave’s
humanity.”9 The dominance of the master was in direct response to the will of the slave so the
free will of the slave is not in question because the law reflects that will. At this point the
question then becomes who was responsible for the criminal act because if the courts say it was
the slave then the master loses control and if the courts say the master was, then the slave cannot
commit a crime and therefore slave codes are irrelevant because they can never be held
responsible. This was quite a balance the court system dealt with and the following case will
bear this out.
Luke v. State originated in St. Johns County on November 3, 1851. Luke was charged
with maliciously wounding an animal. He allegedly killed two mules, worth $300, owned by
Joseph M. Hernandez on July 20, 1851.10 Luke had complained to his master, Andrew DuPont,
8
Craig Buettinger, “Did Slaves Have Free Will? Luke, a Slave, v. Florida and Crime at the Command of the
Master.” Florida Historical Quarterly, Vol. 83, No. 3 (Winter, 2005), 241-257.
9
Morris, p. 282.
10
Luke v. State, Florida State Archives, Record Group 1100, S49, Box 440, Wallet 773.
56
about mules getting into his enclosed garden. When Luke asked what he should do DuPont
responded that he should shoot the mules. Adam, Hernandez’s African American slave driver,
found the mules and determined they had been shot and followed the blood on the ground back
to DuPont’s plantation. Adam asked Luke if he knew who shot the mules and Luke said he did it
at the behest of his master, because they had been menacing DuPont’s plantation and he wanted
to get rid of the nuisance.11
The case was brought before Judge Thomas Douglas of the Eastern District Court.
Luke’s attorney, McQueen McIntosh, asked the judge to instruct the jury that the crime was not
malicious because Luke was under the control of his master; Judge Douglas declined. Luke was
convicted and sentenced to three months in the St. Johns’ County jail and ordered to pay the
costs of his prosecution. After the trial, McIntosh moved to arrest the verdict based on Douglas’s
overruling the requested charge not to hold the slave responsible because of the control of the
master. Luke’s master along with four other men put the necessary bond of $1,000 each to free
Luke until his appeal was heard.12
In the appeal McIntosh argued Luke could not be prosecuted under the act of February
10, 1832, because the punishment proscribed was for free white persons. He stated that the
Legislature never intended to fine a slave. He said the eighth section proved this because it was
the outlined exception that proved the rest of the statute was for free persons. Since there were
two codes of punishments the legislature’s intentions were clear. He noted sections nineteen and
twenty in Thompson’s Digest outlined separate punishments for slaves.13 McIntosh continued by
arguing,
It might be contended that the act under which the prisoner was indicted is general
in its terms, when it says, “if any person shall maliciously,” &c. Yet it would be
in contravention of the spirit of the law to apply to slaves such portion of it as
relates to bigamy, adultery, &c., wherein the same phraseology is used. The
11
Mariano D. Papy, Reports of Cases Argued and Adjudged in the Supreme Court of Florida, at Term Held in 1853,
Vol. V, No. 1 (Tallahassee: Office of Floridian & Journal, Charles E. Dyke, 1853), 185-188.
12
Luke v. State, Florida State Archives. The other men were Archibald Gould, Godfrey Foster, Peter C. Lylstra, and
James Pellicer.
13
Thompson, p. 541. Section 19: When any negro [sic] or mulatto slave shall be convicted of any felony not
punishable with death, such negro or mulatto slave shall be whipped, not exceeding one hundred lashes, by the
proper officer of the Court, and suffer such other corporal punishment as the Court shall think fit to inflict. Section
20: If any negro [sic] or mulatto, bond or free, shall commit any other crimes or misdemeanors against the laws of
this State, it shall be lawful for the jury convicting him of the same, to punish him by such number of stripes as they
may award, not exceeding one hundred.
57
prisoner, acting at the instigation and under the control of his master, was
incapable of committing the offence charged in the indictment. There was the
absence of will, without which there was no malice, the essence of the crime, and
what must be proven. The slave is a chattel in law, and has no volition to disobey
a master.14
His arguments caused problems for the laws binding slaves within Florida’s society. If a slave
does not have free will then a separate code was meaningless because the master would be the
only one held accountable for their actions. This issue was not lost on John P. Sanderson who
argued the case for the state.
He outlined, since Florida statutes do not distinguish between persons acting under
direction or command of the master, Sanderson turned to the legal relationships between husband
and wife, and parent and child. He argued they are not excused for committing a crime if the
husband or father commanded it. He concluded Luke was alone and not under the direct control
of his master, therefore responsible for his crime. “The principles of common law are held to be
applicable to the slave—not as a slave—but as a reasonable being.”15 He further articulated the
slave was recognized as a person and protected by Florida law. “Humanity—self-preservation—
public policy and necessity, enforce and demand that the ruling of the court below be
sustained.”16
Justice Leslie A. Thompson wrote the majority opinion of the court. He stated, the jury
found Luke guilty under the fifty-ninth section of the act of February 10, 1832. It had been
argued that Luke could not be convicted under the fifty-ninth section of the statute, but the sixtyfirst section of the act of Nov. 21, 1828.17 Thompson ignored this with the explanation that there
was not enough time to provide the proper legal consideration for this issue. He said that the Act
of 1832 was the only law in force. It was the State’s intention to provide separate punishments
between free whites and slaves. Thompson noted that the statute for assault provided whites
with a punishment of a fine. If a slave commits the same crime they receive thirty-nine lashes
and if the intent of the assault was to kill they received a death sentence. The difference in
severity was proof of the slave’s inferior status. “Although in the absence of the Act of
14
Papy, p. 188.
Ibid., p. 189.
16
Ibid., p. 190.
17
For more information see Thompson’s Digest, p. 541.
15
58
November 21, 1828, the punishment of that inferior caste of persons who are either slaves or
free, might be inflicted under the general laws, yet as the Legislature has provided other and
different modes and degrees of punishment for them, the latter must be observed.”18 The
Legislature did intend to disrupt the distinction made between whites and slaves with the passage
of the Act of 1832. The distinction made by the Act of 1828 was still enforced. On slavery
Thompson wrote:
The perpetuation of the institution, indeed the common safety of the citizens
during its continuance, would seem to require that the superiority of the white or
Caucasian race over the African [N]egro, should be ever demonstrated and
preserved so far as the dictates of humanity will allow—the degraded caste should
be continually reminded of their inferior position, to keep them in proper degree
of subjection to the authority of free white citizens. And thus there is an obvious
propriety in visiting their offences with more degrading punishment than is
inflicted on the white citizens, while the humanity of the law is demonstrated by
securing to them the same forms of law in making defense—a trial by jury—
compulsory process for their witnesses—the aid of counsel—and indeed, as full,
fair, and impartial trial, as can or may be claimed by a white person.”19
Thompson concluded by stating the indictment should have been for the sixty-first section of the
Act of November 21, 1828, and not the fifty-ninth section of the Act of February 10, 1832. This
was an error and therefore the judgment of the lower court was reversed, vacated, and set aside.
Thompson’s section about the inferiority of the slave and its reflection in the punishments
for crimes is quite telling. Thompson was from Middle Florida where South Carolinian attitudes
impacted the views of the people. According to historian Daniel L. Schafer they had a rigid view
of race relations as opposed to the more liberal views of Eastern Florida.20 Even though
Thompson tried to ignore the section about free will, his opinion did not support that omission.
If he allowed for the idea of free will then he was equating slaves with whites who, in his
opinion, had a free will. He did not avoid the idea; he shut it down and maintained the notion of
African American inferiority. The concept of free will was not the issue in this case; it was the
18
Ibid., p. 193.
Ibid., p. 195.
20
Daniel L. Schafer, “A Class of People Neither Freemen Nor Slaves: From Spanish To American Race Relations
in Florida, 1821-1861.” Journal of Social History, Vol. 26, No. 3 (Spring, 1993), 587-609.
19
59
implication created by accepting that concept. Buettinger did argue as to why the justices
skimmed over the free will portion of the defense. He believes the courts did so because of time
constraints and decided to rule on procedural law and not the applicability of common law. The
simple assumption made was that Justice Thompson understood that by arguing free will they
had to legally accept the humanity of the slave. This could complicate property laws. Florida
lawmakers and jurists worked diligently to maintain the status of property. Buettinger could
have made a stronger case if he had cloaked it in civil rights terminology. It is not unusual for
historians to avoid the civil rights debate during the antebellum period because slaves were not
citizens, but they did strive for freedom. Lawmakers understood that the only way to protect
slavery was to codify its restraints on slaves, masters, free white citizens, and free blacks. If they
had legally recognized him as a human with free will who could have committed a crime without
compulsion how was the judicial system going to reconcile property and humanity, it was not
possible. Luke’s participation in the court system forced Florida jurists to solve this quandary.
If he was not granted a jury trial this could not have occurred and this small access to civil rights
forced the court define to the humanity of the slave within the dominance of slave society.
The definition of whether or not separation of the races was implied in the law statutes
was but one area the Supreme Court adjudicated. The other was the determination of how a
confession was obtained. A slave was allowed a jury trial and their confessions could not be
obtained through force. The 1853 case of Simon, a slave v. State articulated this best. It
involved the confession of the enslaved Simon after a number of fires broke out in Pensacola.
He was arrested for the crimes and a group of whites gathered in front of city hall while he was
being interrogated. As a result Simon argued that his confession was obtained under duress and
therefore invalid under the law. This is an interesting case because the fact that he was enslaved
should imply duress, but the courts did not believe this to be the case. They looked at the
circumstances in which the confession was taken and made their decision accordingly.21
Simon was arrested for the crime of arson in Escambia County and interrogated by
Pensacola mayor Joseph Sierra. The indictment from the grand jury was presented before the
Escambia County Circuit Court during the June term in 1853. Simon was found guilty of the
charges and sentenced to death by hanging. The strongest evidence against him was his
confession and when the case was appealed to the Supreme Court it was the most contentious
21
Papy, p. 285-300.
60
issue. The question was whether his statement was coerced or given voluntarily. The evidence
did not corroborate his confession. The testimony of two witnesses contradicted parts of
Simon’s confession, but this was ignored in the original ruling. The appeal focused on a couple
of points regarding the confession. First, the court and not the jury should make determination of
the voluntary nature of a confession. When the court determined the confession was involuntary
it should have been arrested and withdrawn from evidence for the jury. “To render a confession
voluntary and admissible in evidence, the mind of the prisoner should at the time be free to act,
uninfluenced by fear or hope.”22
The circumstances surrounding the confession must be examined to understand the legal
issue being discussed. The difficulty about the “voluntary” nature of a confession was a slave
who was under constant domination could hardly provide anything voluntarily because of the
compulsion that dominated their life. This was one of the questions raised by Simon’s attorney.
The state contended the confession was not coerced and therefore legal evidence to be used
against Simon at his trial. Sierra testified Simon confessed knowing he would be hanged for the
offense and he did not believe Simon was coerced. Before he finally confessed to Sierra, he
requested to see his master, McVoy. Simon asked McVoy if he would be hanged for the crime
and McVoy confirmed Sierra’s explanation of the situation. Sierra testified no threats were
made against Simon.23
Simon was questioned again in prison and he stated a boy was his accomplice, the record
does not provide a name. A person was arrested, but could not be connected to Simon and was
released. Simon did not offer any other accomplices. Sierra testified Simon stated he started the
fire at the east window under the gallery, but statements given by two other witnesses
contradicted this. Joseph Commyns testified for the defense and stated the fire started in the
upper story of Richard Maxwell’s house. He said he saw the fire from the Customs House 200
yards away. Chester P. Knapp also testified for the defense. He said he saw the fire in the
southeast attic before the rest of the house. He tried to get in through the gallery window. After
these witnesses the defense rested and the state proceeded with its case and the issue of the
confession becomes apparent.24
22
Ibid., p. 285.
Ibid., p. 287-288.
24
Ibid., p. 290.
23
61
The state then called McVoy to the stand to testify that Simon was his slave. The defense
objected to McVoy as a witness but the judge overruled the objection. The state established
Simon was McVoy’s property. Under cross-examination McVoy testified Simon, “was under a
great state of excitement, that he was laboring under great terror, and that he never saw anyone
more terrified.”25 After this testimony Simon’s counsel moved to have his confession withdrawn
from consideration by the jury. Simon’s attorney stated the confession was obtained by undue
terror, but the court overruled the motion. During Sierra’s interrogation a crowd gathered
outside the office and called for Simon to be hanged. The defense argued the confession was
inadmissible because it was not voluntary, but was induced by fear. They stated, “The prisoner
was a slave, and therefore more readily operated upon by the appliance of fear.”26 Sierra felt he
provided enough protection for Simon because if he had not then the crowd would have taken
and hanged him. Simon’s attorney argued that the mayor’s promise of protection was a favor
for Simon’s testimony, which makes it inadmissible. The defense continued by stating the
mayor promised to put his accomplices on trial and not him if he gave them their names. They
did not believe the statement of Simon being hanged alone if there were no accomplices was
enough to remove the influence of the first statement. The defense believed Simon’s life as a
slave influenced his behavior. Simon “might very naturally have thought it necessary to
ingratiate himself with the only protector he had in multitude around him.”27 The question posed
at this point was whether Simon confessed to avoid danger knowing he could later appeal the
decision? It is unclear that he was knowledgeable enough about the law to do that. The Judge
and the defense believed he was dealing with the threat at hand, so it is plausible he was dealing
with the immediate threat. The fact he could ultimately appeal the decision and not face
execution was not anticipated.
Justice Albert Gallatin Semmes wrote the majority opinion for the court. He argued that
it was “fair to presume that . . . his confession was the only immediate security for his person and
his life. The fear of immediate punishment may be as powerful an agent in extorting a
confession, as the punishment itself.”28 He stated the second confession made in jail was
influenced by the circumstances of the previous confession. Semmes cited Simon’s status as a
25
Ibid., p. 291.
Ibid., p. 292.
27
Ibid., p. 293.
28
Ibid., p. 297.
26
62
slave should make the courts use more caution in weighing the viability of a confession. He
said, “the ease with which this class of our population can be intimidated, and the most absolute
control which the owner does involuntarily exercise over the will of the slave, should induce the
courts at all times to receive confessions with the utmost caution and distrust.”29
Attorney General James T. Archer argued it was too late to rule on a confession already
entered into evidence and used by a jury. Semmes disagreed and said it was within the purview
of the court. He also noted the confession was uncorroborated with any evidence and portions
were testified to as false by defense witnesses. The prosecution did not offer any rebuttal
witnesses. Semmes reversed the judgment and ordered a new trial. The courts erred on the side
of the slave. Semmes believed Simon’s status was significant in his reaction to the crowd
outside of city hall. The fact Simon was under constant intimidation actually saved his life in
this regard. The court also had to recognize his humanity because of their discussions about how
his confession was obtained. Property could not be threatened, so the court had to acknowledge
the person and the statute provided the trial for that person. While this may not have been a case
about suffrage, it did have civil rights implications. It is further proof that the courts had to
concede the person before rights could be granted. Simon, for a brief moment, was a person
whose confession was obtained through terror and therefore could not be found guilty because
that evidence was inadmissible. These were limited rights, but it is rights nonetheless.30
In 1855 another case that provided an interesting degree of legal latitude was Frances, a
slave v. The State.31 The Putnam County case involved an enslaved female named Frances.
According to the record she assaulted a white woman named Amelia Hundley in the, “Peace of
God, and said state.”32 James H. Hundley signed the complaint against Frances, but his
relationship to Amelia is unclear. In 1853, Samuel St. George Rogers was the solicitor for the
Eastern Circuit Court. He had Sheriff Robert T. Boyd arrest Frances and bring her before the
Eastern Circuit Court Judge. Typically the presiding judge would have been William A.
Forward, but he was unable to attend to his duties due to illness so the Western Circuit Court
29
Ibid., p. 298.
Ibid., p. 298-300.
31
Mariano D. Papy, Reports of Cases Argued and Adjudged in the Supreme Court of Florida, at Terms Held in
1855-1856, Vol. VI, (Tallahassee: Office of Floridian & Journal, James S Jones, 1856); State of Florida v. Francis,
a slave. Florida State Archives, Record Group 1100, S 49, Box 773. The Florida Reports have the case listed as
Frances, a slave v. The State but the original written record lists the appellant as Francis. It appears the name was
amended to show gender. Frances was a female slave.
32
State of Florida v. Francis, a slave. Florida State Archives, Record Group 1100, S 49, Box 773.
30
63
Judge Jesse J. Finley presided over the trial. A jury was then empanelled and sworn in during
the Fall Term in November of 1853. Frances pled not guilty to the charge of assault and battery.
After the jury heard the testimony, which was not included in the record, her attorney, McQueen
McIntosh wanted the jury to be instructed that if Frances was proven not to be a slave she had to
be acquitted. Rogers wanted the jury to understand that an assault and battery upon a slave from
a white person did not necessitate a violent response unless it was in self-defense. The jury
found Frances guilty of all charges and sentenced her to twenty-nine lashes on her bear back with
a cowhide.33
After the November 1853 trial McIntosh filed a motion to arrest the judgment. He said
the verdict was contrary to the evidence, Frances was never proven to be enslaved, and that the
juror William W. Dalton was not properly empanelled. On November 5, 1853, the motion was
sustained based on the first two arguments and a new trial was awarded, but the court did not
provide an opinion on the other arguments. In order to retry the case $600 bond had to be
provided and three men, Abner M. Hall, Spencer Brooks, and Peter Munroe, paid $200 each to
cover the expenses of a new trial. Hall was listed as Frances’s owner, and went to great lengths
to vacate an assault and battery charge.34
In the Spring Term held in April of 1854, the solicitor for the Eastern Circuit Court James
M. Baker prosecuted the new trial. The original judge for the Eastern Circuit Court, William A.
Forward, presided over the new trial. On April 18th both attorneys were present and ready to
start the proceedings. During jury selection McIntosh challenged one of the jurors and the judge
could not find a new man to replace him. The record does not reflect who was challenged or
why. Judge Forward empowered Sheriff Boyd to find a new juror, which he believed he could
do by the following day. A new jury was empanelled and sworn in the following day as Boyd
promised. The following statute governed the new trial:
Our Statute provides that in the trial of any slave in the Circuit Court the same
rules and regulations shall be observed as are observed in the trial of free persons.
An assault is an attempt with force or violence to do a corporal injury to another
and may consist of any act leading to such injury accompanied with
circumstances denoting an intent coupled with a present ability to use violence
33
34
Ibid.
Ibid.
64
against the person. A Battery is the actual infliction of violence on the person:
To justify a [N]egro or mulatto, bond or free, for making an attack upon a white
person it must appear that such [N]egro or mulatto was wantonly assaulted and
did nothing more than was necessary for self-defense.35
Frances was again found guilty of assault and battery, but the sentence increased to fifty stripes
on the bare back, to be executed on Monday July 3, 1854.36
After the trial, McIntosh again made a motion to arrest the judgment stating the verdict
was contrary to the evidence and Florida law. He argued the State failed to prove in the
indictment that Frances was a slave or a free person of color because the owner was not listed.
According to McIntosh if her status was not clearly defined in the record the law in which she
was punished under did not apply. Judge Forward denied McIntosh’s motion to arrest the
judgment and they decided to appeal the ruling to the State Supreme Court. In order to do this a
$1,000 bond had to be paid and once again three men were willing to post a portion of the bond.
Frances’s owner posted $500, after losing $200 from the first appeal, and Charles G. Lynch and
Williamson W. Dalton each posted $250. After the secured appeal bond was provided, a writ of
error was filed with the court.37
The appeal made its way to the State Supreme Court in 1855. After reviewing the record
and counsels’ arguments Justice Thomas Douglas wrote the court’s majority opinion and he dealt
with the issues of the jury, Frances’s status, and the wording of the indictment regarding
Hundley. He stated, it had been a practice in Florida since the territorial days to allow the jury to
disperse in misdemeanor cases and all other cases not capital. He cited that there was not a
precedent to support not allowing a jury to disperse in a misdemeanor case. As far as Frances’s
status was concerned Douglas argued the state did not have to include the owner’s name in the
indictment, because the slave knew who their owner was, therefore the state could easily
determine that person was a slave. Lastly, Hundley’s race did not have to be determined in the
court record to invoke the statute against Frances. The justices affirmed the ruling of the lower
court.38
35
Ibid.
Ibid.
37
Ibid.
38
Ibid.
36
65
This case expresses the centrality of slavery in Florida jurisprudence and jurists could use
it to argue for the enforcement of different statutes. McIntosh felt it was imperative that
Frances’s status as property be explicitly written into the record because if it was not then she
was regulated by a different set of rules. The question of “person” was proposed by the defense
in an attempt to overturn the verdict, but it has greater impact on the overall process of civil
rights activism. The court recognized her humanity by stating she knew her owner, therefore she
was a “person.” As quickly as they acknowledged this they took it away by stating she knew she
was enslaved. The law could not allow the judgment to be overturned on such a technicality
because in their mind her race determined she was enslaved. The Civil Rights Movement in the
antebellum period had to deal with these issues. The courts refused to separate race and
enslavement much like society and lawmakers had done. Until this separation was made and the
status of property was removed and humanity implemented, civil rights could never be achieved.
Frances also provided evidence to support the nature of race in the lawmaking process.
It dominated the statutes and had implications on both races, but ultimately the role of the law
was to subjugate the African American populace and maintain a separation of the races. This
was most evident in cases of gender interaction. The state had laws against white women and
black men having romantic relations with one another. This was seen in marriage statutes
forbidding interracial marriages and rape statutes enforcing death penalties on black men who
rape white women. The 1847 case of The State v. Charles, a slave exacerbated the latter. In this
case Henry Pennington’s slave Charles was charged with attempting to rape Henry’s wife,
twenty years his junior, Zilpha Pennington. Charles pled not guilty to all charges.39
Pleas were given in Jasper at the Circuit Court of Hamilton County during the fall term
1846. Middle District Judge George S. Hawkins presided over the case. On October 20, 1846,
the grand jury of Hamilton County returned their Bill of Indictment. The indictment revealed the
views of this crime in Florida. Charles was charged with assaulting and felonious carnal
knowledge of Zilpha Pennington. The indictment stated Charles did great damage to Zilpha
Pennington and the statutes, peace, and dignity of the State of Florida. Thomas Jefferson Heir,
Solicitor for the Middle Circuit of the State of Florida signed the indictment. The jury heard the
case and found Charles guilty on October 22, 1846. Charles’s counsel, John Coleman made a
39
State of Florida v. Charles, a slave (1847), Florida State Archives, Record Group 1100, Series 49, Box 473,
Wallet 855.
66
motion appealing the judgment on the grounds of insufficiency of and defect in the indictment,
and the court entertaining a doubt upon the legal question so arising. Coleman wanted to arrest
the verdict because the original indictment did not denote Zilpha Pennington as a “white
woman.” The court agreed and sent the case to the Florida Supreme Court.40
During the original proceedings Judge Hawkins had questions about the indictment and
under the Territory of Florida act, approved on February 6, 1841, entitled “An Act regulating
Appeals and Writes of Error in criminal cases,” he wrote a certificate of doubt and sent it to the
Supreme Court for its consideration and decision. The defendant could not appeal the issue after
the trial, but the judge could question the writ after the verdict and before judgment. The
question about the indictment was made before the original judgment was rendered. The
Supreme Court did not interfere in the original case, but acknowledged Hawkins’s note. In
Thomas Douglas’s opinion he remarked that the only reason the court even entertained the
question of law from Hawkins was because it was a case of a high penal character. Two items
stand out in this instance. First, Hawkins was willing to question the indictment on the simple
fact that Pennington was not explicitly identified as a white woman in the affidavit. Only white
women, at the hands of an African American male, could be raped. Hawkins adhered to the
exact letter of the law. Second, Douglas’s characterization of the crime as high was evidence of
how Floridians viewed interracial relationships. The court decided that the question of the law
was not under the jurisdiction of the court. They dismissed the case, deeming it out of their
appellate jurisdiction. The record did not provide any evidence as to what happened to Charles
after the appeal was dismissed.41
Another case dealing with the separation of the races based on gender occurred in 1860,
Cato, a slave v. The State. The complexity of this case was not found in the simplicity of a black
man having carnal knowledge of a white woman. It went beyond this to include the status of
white women in Florida and also challenged the view of who was allowed to make rape
accusations. The character of the accuser was placed at odds with the accused and in this
instance overruled race.
The original case was heard in the Middle District Circuit Court in Jackson County. Cato
was indicted for the rape of Susan Leonard, a white woman, and was tried during the October
40
Ibid.
Joseph Branch, Reports of Cases Argued and Determined in The Supreme Court of Florida: January Terms 1846
– 1847, Vol. 1 (Tampa: Tribune Publishing Company, 1914), 299.
41
67
term in 1859. He pled not guilty to all charges. Leonard was listed in the 1860 census as a
twenty-five year old laborer with a five-year-old daughter, Missouri A. Leonard.42 Dr. Horace
Ely, a landowner in Jackson County, owned Cato. During the trial Leonard testified that Cato
came to her house early in the morning. She stated it was an hour and half before sunrise.
Leonard recognized him and Cato identified himself as one of “Dr. Ely’s black men.”43 She said
she recognized him because the moon was shining bright in the room. Cato held her down on
the bed by her arms. She told him to leave, but he refused and told her to hush or he would kill
her. Cato took out a knife and put it up to her throat at which time she stopped struggling.
Leonard stated Sarah A. Alsobrook was in the next room when the attack occurred. Alsobrook
testified she knew both Cato and Leonard. She said someone was in the house, but could not
confirm Leonard’s claim it was Cato. She stated there was a black man in the house and on
Leonard’s bed, but did not verify his identity. Alsobrook finished her testimony by stating
Leonard was convinced Cato was the man who attacked her and that he had been to the house
before. The defense challenged the validity of their testimony by producing twelve witnesses
who testified Leonard and Alsobrook were common prostitutes.44
After the defense rested, Judge J. Wayles Baker instructed the jury with some telling
language. He referred to rape as a crime of a horrible and revolting character, but all the rules of
law which would apply to a white man, if put upon his trial for the crime of rape, must apply in
this case.45 Judge Baker instructed the jury about the rape statute and stated that the legal
definition for rape was carnal knowledge of a woman by force and against her will. If a woman
yields as a result of bodily harm or distress then it is legally rape. He also noted that a man could
have unlawful carnal knowledge of a woman and it not be rape if she consented to the act. This
occurs in acts of adultery or interracial relationships. “And if a man have carnal knowledge of a
woman against her will, although she be a common strumpet or a common prostitute, it will be
rape, just as much as if the offence had been committed upon the purest and most virtuous
woman in the world.”46 The judge explained why the defense introduced evidence that Leonard
was a prostitute.
42
1860 United States Census, s.v. “Susan Leornard,” Jackson County, Florida, Households 1-218, Household #184.
John B. Galbraith, Reports of Cases Argued and Adjudged in the Supreme Court of Florida, at Terms Held in
1860-1861, Vol. IX (Tallahassee: Office of Floridian & Journal, Dyke & Carlisle, 1861), 164.
44
Ibid.
45
Ibid., p. 165-166.
46
Ibid., p. 166.
43
68
In prosecutions of this character it is allowed the defendant to prove that the
prosecutrix is a common strumpet or a common prostitute. This is a fact, which is
permitted to go to the jury for what it is worth, to indicate the improbability of a
woman of such character withholding her consent to the carnal knowledge of a
man. To this extent it goes to her credibility; but it is for the jury, after all, to look
to the testimony to see whether the statements of the prosecutrix are true, either in
whole or in part.47
The jury was then tasked to deliberate on the case behind closed doors. They were left in the
charge of Jackson County Sheriff James Griffin and his Deputy, Henry O. Bassett. The jury
returned a guilty verdict.48
On October 22, 1859, Cato’s attorney made a motion for a new trial on the grounds the
instructions to the jury prejudiced the panel against Cato. They believed her status as a prostitute
should have played a larger role in the deliberations. The judge did not believe her status as a
prostitute impeded the use of the rape statute. Cato’s attorney also argued the judge should have
allowed the jury to convict on the lesser charge of assault, which also implied her role in
prostitution. Lastly, the attorney stated the court erred in not allowing the testimony of Benjamin
Stevens into the record. He was willing to testify Leonard was a prostitute. With these
arguments and their belief that the verdict was contrary to the evidence they concluded a new
trial was necessary. Judge Baker disagreed and overruled the motion for a new trial. At this
point Cato appealed to the Supreme Court.49
The writ of error filed with the Supreme Court recounted the issues placed before the
Middle District Court as part of the motion to arrest the judgment. Chief Justice Charles H.
DuPont wrote the court’s majority opinion and took this opportunity to discuss the institution of
slavery and the role of the courts in its perpetuation. He wrote,
It is true that the unfortunate individual who stands charged with the commission
of the offence is one of an inferior caste--a slave. But it is the crowning glory of
our ‘peculiar institutions,’ that whenever life is involved, the slave stands upon as
safe ground as the master. The same tribunals of justice are open to each--the
same form of proceedings--the same safeguards that are extended to the one are
47
Ibid., p. 167.
Ibid., p. 167-169.
49
Ibid., p. 169-170.
48
69
fully and freely awarded to the other. Influenced by and impressed with these
views, we now address ourselves to the consideration of the case as it is presented
in the record.50
He wanted the record to prove slaves were treated fairly in the court system like their masters.
He ignored the role of court to maintain enslaved subservience to the master and the paltry rights
of a jury trial did not erase this. DuPont continued with the errors assigned to the case by Cato’s
attorney. He dismissed the error about the omission of Stephens’s testimony, because the
objection did not occur until a motion for a new trial. DuPont overruled the error that the judge
had not fully explained to the jury that Cato could be convicted of assault. He cited that the
assault cases did not fall under the jurisdiction of the circuit court, but the Justice of the Peace.
Therefore, the lower court was not bound to the explanation of that part of the statute. In
reference to the lower court’s remarks at the beginning of the original trial, DuPont stated that it
needed to be cautious in its instructions to the jury. He asserted this case dealt with one of the
highest crimes known to law and it was imperative for the lower court to do everything in its
power to make sure justice was found.51
DuPont sustained the error that the question of force was ignored and the issue of consent
was exclusively presented to the jury. He supported this by stating it was proven that Leonard
was a prostitute whose character had been brought into question. His argument about why her
life as a prostitute explains male views of women and their sexuality. As an act, sex was
supposed to be revolting, or shocking, to women, but the life of a prostitute was supposed to
minimize this effect. DuPont felt her life as a prostitute was applicable to this case and should
have been in the minds of the jury during their deliberations. He wrote,
Taking into consideration the degraded character of the witness, and that she was
contradicted in several important particulars by the other witness on the part of
the State, we think that it was a case which eminently demanded that the question
of force and violence should have been kept directly before the minds of the jury,
by occupying the most prominent place in the several instructions which were
given to them by the court.52
50
Ibid., p. 173-174.
Ibid., p. 178-180.
52
Ibid.
51
70
DuPont argued Alsobrook’s testimony contradicted Leonard’s because Alsobrook stated Leonard
“was almost willing to swear it was Cato,” but could not positively identify her attacker.53
Therefore, since her character had been deemed degraded her identification must be questioned
and found not credible. DuPont reversed the judgment of the lower court, annulled the death
sentence, set aside the jury verdict, and ordered a new trial. Cato’s foray into the appellate courts
gave him the rights necessary to protect his person at the degradation of Leonard. Dr. Ely,
Cato’s owner, also benefitted from this because he did not lose his property to state sponsored
execution. The civil rights implications of this case should be found in the trial itself and not the
gender inequalities raised in the testimony.54
The next case did not deal with rape, but interracial relationships. As was mentioned
earlier in this study, race relations in East Florida were not as rigid as they were in Middle
Florida. There were interracial couples living in Duval and Putnam counties. As laws were
passed in Tallahassee restricting them it became more difficult to have such relationships and, in
some cases, transfer property between people cohabitating together. Marriage was defined in the
law code as a union between whites.55 The importance of this was the courts viewed marriage as
a civil right between citizens and the denial of that right could be challenged. In 1851 Ponder v.
Graham raised this question and the State Supreme Court answered it. This case did not involve
African Americans, but its implications could be useful in the understanding of other cases.
Mary Graham sued William Ponder for her widow’s dower she was due after the death of her
husband Archibald Graham. Ponder argued she was not legally allowed to have the dower
because her marriage was not lawful. Ponder as the Executor of the will could claim the
illegality of a marriage when it was believed the marriage was absolutely void. When the
marriage was voided civil rights could not be acquired under it. It was the responsibility of the
executor to the distributees and creditors to challenge the validity of a marriage. The court also
needed to determine if state law could dissolve a marriage, which was a contract and a law
dissolving the marriage impairs that contractual obligation therefore it would be in conflict with
the U.S. Constitution. The State Supreme Court ruled the state could not pass laws violating
53
Ibid., p. 186.
Ibid.
55
Thompson, Manual or Digest of the Statute Law of the State of Florida, p. 219-220.
54
71
contracts such as marriage.56 It is interesting to note that there is a connection made between
civil rights to property under marriage. The clear transfer of property without legal restriction is
the basis of marriage civil rights. This will be helpful in discussing the idea of marriage during
and after the war. It could be interpreted as another form of civil rights activism.
The question of marriage was not one typically debated when it involved interracial
couples. They were not allowed to marry under Florida law, so the contract was never dissolved
because it was never allowed to happen. What occurs when an interracial couple lives together
for a number of years and has children together? What rights were they to expect? This question
was raised by the arrest of a white Putnam County man named James H. Cherry. He was
married to Eliza Hagan a light-skinned black woman.57 The 1850 census listed her and Hagan
as a white couple with a three-year-old son named James.58 Five years after the census was
taken Cherry was charged with living in a state of fornication with a colored woman. It was
unclear why it took five years for the authorities to figure out Eliza was a black woman. Did
Cherry run into a conflict with a member of the community who turned him in to the authorities?
The reasons for his arrest were unclear, but the statute under which he was arrested was not. It
stated, “All white male persons, resident within this State, who shall attempt to intermarry, or
who shall live in a state of adultery or fornication with any [N]egro, mulatto, quarteroon, or other
colored female, shall be liable to indictment.”59
Cherry was tried in the Eastern Circuit Court held in Duval County in the Spring Term,
1854, with Judge Forward presiding. The indictment stated Cherry had committed crimes
against the laws and dignity of the state. The testimony given during the trial was not in the
official record. The record only reflected the instructions given to the jury. The defense wanted
the jury to derive their verdict only from the evidence at hand and not from outside sources. It
also wanted to make sure that if there was any reasonable doubt about Cherry’s guilt they should
acquit him. The prosecutor, James H. Baker, requested if the jury convicted the defendant they
must find that the state had proved the defendant to be unmarried at the time that the offense was
charged to have been committed. Forward clarified the statute and that it was designed to,
56
David P. Hogue, Reports of Cases Argued and Determined in The Supreme Court of Florida in 1851-1852, Vol.
IV (Tallahassee: Office of the Floridian & Journal, Dyke, 1852), 21.
57
James Cherry, Appellant v. The State of Florida, Plaintiff. Florida State Archives, Record Group 1100. Series 49,
Box #776.
58
1850 United States Census, s.v. “Eliza Cherry,” Putnam County, Florida, 18th Division, Reel No. M432-59, p.
200a. There was no other evidence indicating they were legally married.
59
Thompson, Thompson’s Digest, p. 220.
72
“protect the public’s morals.”60 The jury found Cherry guilty of all charges and assessed a
$50.00 fine for living with a black woman. Cherry’s attorney E. Bissell, Jr. filed a motion to
arrest the judgment on the grounds that a true bill of indictment was not provided. The motion
was overruled and the judgment was upheld. Cherry then appealed to the Florida State Supreme
Court.61
He was brought before the Florida Supreme Court in Jacksonville during the February
Term in 1856. Justice DuPont’s majority opinion stated Cherry was indicted, tried, and
convicted for the statutory crime of “living in a state of fornication with a colored female.”62
The Circuit Court Minutes stated that the grand jury made a true bill on March 24, 1855. Bissell
argued that the indictment was not valid because there was no description of the woman. Since
the indictment did not specifically mention a black woman, Cherry did not break the laws of the
state. Bissell stated the indictment was defective and insufficient. The motion to arrest the
judgment was overruled by DuPont. The argument before the court was that since the grand jury
did not specifically note the woman’s race they could not indict under the statute. The Supreme
Court did not agree and the judgment was affirmed.63
The cases discussed in this chapter focused on how African Americans indirectly
challenged their status in cases of property, crime and interracial relationships, but the most
direct challenge came from manumission cases. These cases, also called freedom suits, provide
evidence of the fight for rights within the courts. For those trying to maintain the institution,
“Freedom suits reminded contemporaries of the tensions between a system of rule and a system
of law that were not easily molded.”64 Florida lawmakers recognized this and passed laws
making manumission punitive to the owner in order to reduce the free black population and
maintain the system of slavery. The law was challenged in the court system when an heir to the
estate or a prospective owner denied slaves claiming their legally earned freedom. In these cases
the potentially manumitted slave shoulders the burden of proof, because their race always made
them slaves first in the eyes of the law.
60
Cherry v. State, Florida State Archives.
Ibid.
62
Papy, Reports of Cases Argued and Adjudged in the Supreme Court of Florida, at Terms Held in 1855-1856, Vol.
VI, No. 1, p. 680.
63
Cherry v. State, Florida State Archives.
64
Michael L. Nichols, “’The squint of freedom’: African-American Freedom Suits in Post-Revolutionary Virginia.”
Slavery & Abolition: A Journal of Slave and Post-Slave Studies, Vol. 20, No. 2 (1999), 58.
61
73
A challenge by an heir can be found in the 1852 case of Bryan v. Dennis. Jacob Bryan
was killed on December 7, 1847 by a slavewoman named Celia. Historian Daniel Schafer
believes she might have been his daughter. The Eastern Circuit Court convicted Celia of
manslaughter and sentenced her to death.65 Jacob Bryan had moved from Georgia to Florida in
1830. Along with several other slaves, he brought Susan and her children Sarah, Dennis, and
Mary. “While the trial was underway the widow,” Susan, “and children of Jacob Bryan were
jailed as slaves even though they held manumission papers issued by the clerk of the court in
1842.”66 Isaiah D. Hart, Clerk of the Court, signed the manumission papers, but there was no
proof a bond for their transportation was given. Sheriff Thomas L. Ledwith valued Bryan’s
property at $3,997, which included $3,800 worth of slaves. This property included his commonlaw wife Susan, aged 60, and her eleven children and grandchildren.67 Susan’s children were
recognized by Bryan during his lifetime to be emancipated upon his death. On December 12,
1848, John Bryan and his sister Mrs. Amaziah Archer sued for ownership of Susan and her
family. Probate Judge William Crabtree declared Susan and her family free. They lived in
Jacksonville until the case was appealed to the Eastern Circuit Court.68
Bryan’s relatives filed a petition for the arrest of Dennis and Mary Bryan before Thomas
Douglas of the Eastern Circuit Court.69 They claimed them as their property. The Sheriff of
Duval County arrested them and they requested to be released because they were free persons.
They were released on $4,000 bond and ordered to appear before Judge Douglas. The bond to
free Dennis and Mary was put up by Isaiah D. Hart, father of Reconstruction Governor and
Florida Supreme Court Justice Ossian B. Hart, and John S. Sammis.70 Dennis did not appear
before the judge and the bond given for his release was null and void.71 He was eventually
located and he and Mary were once again brought before the court. Judge Douglas heard the
appeal in the Eastern Circuit Court and on November 26, 1851, freed Dennis and Mary, but
returned Sarah, the eldest, to slavery. She was born outside the state of Florida and subject to a
65
Schafer, p. 597-598.
Schafer, p. 598.
67
Ibid.
68
Ibid.
69
Papy, Reports of Cases Argued and Adjudged in the Supreme Court of Florida, at Term Held in 1853, Vol. V, No.
1, p. 234.
70
Sammis was married to Zephaniah Kingsley’s daughter Mary. Mary along with her brother and sister, were the
children of Zephaniah and Anna Madgigine Jai Kingsley, an emancipated slave he married. Sammis was a
merchant, slaveowner, and plantation owner.
71
This portion of the case will be challenged in the State Supreme Court case Archer v. Hart (1853).
66
74
different interpretation of the law. She was sold at public auction in Jacksonville.72 Bryan
appealed the ruling within the ten-day period required by law.
The case reached the Supreme Court in 1852. Bryan’s children were fighting for their
freedom and Bryan’s relatives were using the law to keep this valuable property. The counsel
for Dennis and Mary Bryan was Samuel Spencer, J. McRobert Baker, P. Frazier, and Felix
Livingston. They argued for their clients’ freedom pursuant Bryan’s legal manumission on
November 5, 1842. They also stated that if this was not accurate then the property was forfeited
to the state and not Bryan’s heirs.73
John P. Sanderson served as counsel for the heirs of Jacob Bryan. He argued that the Act
of 1829 had to be strictly followed for the manumission to be legal. He believed Jacob Bryan
did not give the bond of two or more securities. Since the bond was not given the deed of
manumission was void and the slaves remained the property of Jacob Bryan therefore his heirs
owned said slaves. Sanderson was clear as to why he believed the statute was in place. “The
policy of the State is to prohibit emancipation, and the consequent increase of a free negro [sic]
population.”74
Justice Semmes wrote the majority opinion and the issues the court focused on were,
“The policy of this State is, and ever has been, opposed to the settlement of free negroes [sic]
within her borders, and consequently to the unrestricted manumission of slaves.”75 The court
further stated, the Act of 1829 gave owners the right to manumit slaves, but required the owners
to transport them out of the state. This was a “remedy for the evil” of freed slaves.76 The Act
also required a $200 fine be paid for each manumitted slave and this had to be paid before
manumission. After which the owner would enter into a bond for the transportation of the
former slave out of Florida. Justice Semmes argued that although the act of 1842 related to “free
negroes and free mulattoes,” it did not supersede the clause in the act of 1829 because slaves
were not free blacks. Instead, the act of 1842 was meant to amend the portion of the 1829 act
dealing with free blacks and free mulattoes. The portion of the statute regarding slaves remained
intact.77
72
Schafer, p. 598.
Hogue, p. 449.
74
Ibid.
75
Ibid., p. 445.
76
Ibid.
77
Ibid., p. 449-454.
73
75
In Semmes’s opinion, the fact that Dennis and Mary were born in Florida was irrelevant
because the spirit of the law was the control of the free black population and manumission and
their birth in the state had no bearing on the spirit of the law. He stated the conviction of the
people of Florida and the Legislature was clear in dealing with the free black population.
The conviction upon the public mind is settled and unalterable as to the evil
necessarily attendant upon this class of population, and although treated by our
laws humanely, they have ever been regarded with a distrust bordering on
apprehension – a class of people who are neither freemen nor slaves, their
presence at all times deleterious and often dangerous to the public welfare.78
Within the context of the above statements, Semmes argued that the spirit of the law must
include the descendants of migrating slaves. Consequently he argued the matrilineal linkage of
this law. In almost all other laws of inheritance a patrilineal line was created, but slavery
focused on the mother. With this logic in place Semmes concluded the Act of 1829 was in force
and no bond had been given, therefore the deed was invalid. Since the deed was void the
property was not forfeited to the state and could be claimed by Jacob Bryan’s heirs. The court
ruled for the appellants and Dennis and Mary were returned to slavery. After the ruling, Dennis
ran away and Mary disappeared from the pages of history.79
In 1849 the case Sibley v. Maria manumission became an interstate issue. Maria sued
Charles and Samuel S. Sibley for her freedom. She claimed to have been freed in South Carolina
by her original owner, William Oliphant. The case originated in the Middle District Court held
in Leon County with Thomas Baltzell as the presiding judge. Maria filed her case on May 8,
1847, charging Samuel and his brother Charles Sibley with trespass, assault and battery, false
imprisonment, and wanted $5,000 in damages.80 Maria charged she had been imprisoned and
restrained of her liberty and held in servitude. Freedom suits typically used this language as part
of the complaint. Since there was no specific statute allowing slaves to sue for their freedom
they maintained their status as property before the criminal act could be implied, hence the
trespass. This was the same language used in the Dred Scott case when it was heard in
Missouri.81
78
Ibid., p. 454.
Schafer, p. 607, see note #54.
80
Sibley v. Maria (1849), Florida State Archives, Record Group 1100, Series 49, Box 440.
81
Ibid.
79
76
In the complaint filed, Maria stated William Oliphant freed her in his will. Oliphant was
from Edgefield District, South Carolina, and owned large tracts of land in South Carolina and
Georgia. Oliphant was never married and his estate was left to his siblings and their children.
The last will and testament was admitted to a South Carolina probate court in 1828 and enforced
in 1837. It stated Maria and her four children were to be freed by Oliphant’s nephew, William
Hollingsworth, and either allowed to stay with him in South Carolina or travel to Ohio and be
paid $250 to start a life there.82 A copy of the will was provided by South Carolina Judge John
Hill and corroborated by Judge Edward Frost. In order to further prove she was the same Maria
mentioned in the will she amazingly found three people living in Jefferson County, Florida, who
knew her in South Carolina; Daniel Byrd, Behethland Byrd, and Lloyd Skannel.83 All three
witnesses testified in their depositions that they knew Maria from their days in South Carolina
and they saw her again in Florida. None of the witnesses testified as to why she was in the state.
After the depositions were read into evidence, the plaintiffs rested their case. Defendants
responded by citing the South Carolina law of 1820, “That no slave shall be here or after
emancipated in this state except by the consent of the Legislature thereof.”84 The Sibleys were
found guilty of all charges and were ordered to pay damages. After the ruling was made Sam
Sibley filed an appeal bond of $100 with the state. The record does not reflect why his brother
was not part of the appeal. At the Supreme Court, Mariano D. Papy, Sibley’s attorney, argued
gifting Maria to Hollingsworth was void because it negated the master/slave relationship. “No
person can be a slave, the property of another, and yet enjoy the privileges of a free person.”85
Papy said manumission, even indirect, was prohibited by South Carolina law. He noted that
Maria would still be a slave until she reached a free state because she could not be manumitted in
South Carolina. Papy used the South Carolina case Frazier v. Frazier to buttress his argument
that slaves could only be freed if they left the state. He said if the case were held in South
Carolina in 1848 the appellee could not be manumitted because the legislature passed a law
forbidding it in 1841.86
82
The original will and the copy reflected in the court records in Florida spell Maria’s name, Moriah. The spelling
change was never discussed and appears to have been accepted by the courts. For more information on Oliphant’s
last will and testament please see: Oliphant, William of Edgefield District, South Carolina State Archives, MSS
Will: Book C, p. 57; Estate Packet; Box 21, Pkg. 764.
83
The record reflect two different spellings for Daniel and Behethland’s last name; Byrd and Bird.
84
Ibid.
85
Hogue, Reports of Cases Argued and Determined in The Supreme Court of Florida: January Terms 1849, p. 555.
86
Ibid., 557.
77
Papy stated that Florida had specific procedures for manumission that Maria had not
adhered to. Under that law the appellee could not be manumitted except by operation of the
state. He said this could be circumvented if an owner took a slave to a state that did not forbid
emancipation, free them and have another person bring them back to Florida in order to sue for
freedom. If she was still a slave she had no status in the court system. “In contemplation of the
law, slaves are mere chattels, things. They have no civil rights – they can hold no property, nor
can they bring a suit – they can acquire no right which does not, in the instant it is acquired, pass
to the master.”87 The previous two statements are tantamount to legal dehumanization, because
it failed to take into consideration how the law recognizes slaves when they commit a crime and
how they are given one right; jury trial.
Papy asked how the assumption she was freed could be made without proof. South
Carolina forbade such acts and she admitted being held as a slave. He said the only way she
could be freed was to go to Ohio, if she did so she would not be in Florida. If she was in Florida
she could only be a slave. Her freedom cannot be inferred; “nor can the principle of law that the
presumption of law is always in favor of liberty be invoked here.”88 In his argument he invoked
the classical heritage of Southern slavery even though the precedent of English Common law
governance of servants had to be used to create slave codes. Those laws originally focused on
servants under feudalism, which Papy denied influenced Southern slavery. He said slavery, “is
more like the slavery of the Greeks and Romans, where the slaves, as our slaves, had no legal
rights or privileges whatever, with the exception that here they are protected by our laws from
the cruelty of which the Roman slaves were exposed.”89 Papy asserted Maria’s complexion
creates the presumption of slavery until she can prove her freedom. “In the States of this Union
where slavery exists, the black complexion affords the presumption of slavery, and a black
person will be regarded until the contrary is shown.”90 He said this could not happen until she
proves she went to Ohio, or any other free state. At best she could be sent to Ohio and go to
Chancery court to enforce the trust. “It is better even that cases of transient injustice should be
endured, than that the general law and policy of the country should be disturbed.”91 He meant
87
Ibid., p. 556.
Ibid., p. 558.
89
Ibid.
90
Ibid., p. 558-559.
91
Ibid., p. 558.
88
78
the occasional mistake of enslaving a free black person was acceptable in order to protect the
system.
In the majority opinion Justice Hawkins argued the intent of the will was clear. He said
Maria, “had most favorably commended herself to the greatest kindness of her owner.”92 The
law presumed William Hollingsworth accepted the trust even though evidence was not provided.
Self-interest would motivate Hollingsworth to take the land and free Maria in order to keep the
land. Hawkins said if William Hollingsworth had freed her in South Carolina she would have
been arrested as a derelict and sold, because manumission was prohibited. When the will went to
probate there was no law stopping an owner from going to a free state to emancipate a slave and
Frazier v. Frazier upheld this ruling. Sibley did not produce evidence rebutting Maria’s claims
of being freed by Oliphant’s will. Hawkins does not know why she came to Florida. He said the
issue was Sibley provided no title of ownership and relied “upon what he deemed the weakness
of the cause of his adversary.”93 Sustaining the suit, in Hawkins opinion, would not infringe on
the laws of Florida. State laws could only be used if proof of her being a slave since Oliphant’s
death was provided. Then the laws of Florida would take affect. The Supreme Court ruled in
Maria’s favor.94
The last case of manumission involves an African American named Dick. His status as a
free black came into question and he attempted to prove his status by issuing a writ of habeas
corpus. This became problematic for Florida jurisprudence because they believed this was the
right of a free citizen, with the implication that the person invoking it was white. In the 1859
case Clark v. Gautier, Thomas Nicholas Gautier provided a petition stating Dick, a mulatto man,
was free and had been unlawfully detained in slavery and custody.95 He was appointed as Dick’s
guardian as required by Florida law. Florida Prosecutor, William Clark issued a writ of habeas
corpus to show why Dick had been detained. The record reflected that Dick had been held in
servitude since early infancy. Witnesses for Dick stated his mother was a white woman and he
was sold for a small price until he was twenty-one years old. Clark provided witnesses to the
92
Ibid., p. 556.
Ibid., p. 564.
94
Ibid., p. 564.
95
Ibid. Gautier owned a mercantile firm in Marianna and Oak Hill leather tannery.
93
79
contrary. The Jackson County Court granted Dick his freedom and ordered that he be set at
liberty. Clark appealed the decision.96
When the case appeared before the Supreme Court Thomas Baltzell wrote the majority
opinion. He used the language of Dred Scott to support his position on African American rights.
Baltzell stated:
It is sufficient to refer to these opinions to show that whatever rights the negro
[sic] or his descendents, if free, may have, are accorded to him, not by right, but
permission and grant of the State in which he is. People from other parts of the
globe, through the comity of nations, have a recognized position by the common
voice of the civilized world, which Africans have not. Condemned to servitude,
subjected indeed to the dominion of other people from time immemorial, they
have been, as they yet continue to be, chattels, subjects of trade and commerce.
The mark of color at once fixes upon them the status of inferiority and
degradation, and by whatever fact, in legal contemplation they are regarded as
slaves, so that, in case of contest, the burthen of proof is thrown upon them of
establishing their state of freedom. Nor is the rule established that the rights of
free negroes [sic] depend entirely upon municipal regulations.97
Baltzell noted that free blacks did have the protection of habeas corpus provided they had the
papers proving their freedom. “If it were otherwise, that wretched class would be altogether
without protection from the grossest outrages, and their personal liberty would be an
unsubstantial shadow.”98 According to Baltzell, the fact that a person was of African descent
meant they were a slave and it was up to them to prove they were not. Therefore the invoking of
the writ of habeas corpus denotes freedom and could not be done by African Americans because
by default they were slaves until they could prove otherwise.
Justice Baltzell claimed that the lower court should not have allowed Dick to go free
because he could not invoke the writ of habeas corpus. Even though Gautier, a citizen of the
state, filed the position it did not change the fact that Dick had not proven he was a free person.
The granting of guardianship does not increase the rights of the person under their supervision.
This case dealt with an issue typically left up to the states; freedom suits. The result of this
96
Ibid., p. 361.
Ibid., p. 362-363.
98
Ibid., p. 366.
97
80
scathing decision left African Americans in a permanent position of servitude with no hope of
ever achieving citizenship or changing the laws so that they could protect their rights as human
beings. While this case had implications for Africans Americans in Florida, a federal case
impacted the entire nation.
There is a plethora of scholarship on the Dred Scott case.99 The decision had a polarizing
effect on the political landscape. The ruling struck down the Missouri Compromise as
unconstitutional and proclaimed that the United States Congress did not have the authority to
regulate slavery in the territories. The U.S. Supreme Court did not deal with many manumission
cases; state courts adjudicated most of them. Further evidence of this can be found in the
decision itself. The cases cited by the justices were from state courts and not federal courts, with
the exception of Prigg v. Pennsylvania. The bulk of the slavery cases the U.S. Supreme Court
ruled on were within their jurisdiction in Washington D.C. Dred Scott was the court’s first real
opportunity to enter into the debate over slavery.
This case originated in Missouri and was challenged in the Missouri State Supreme Court
with Dred Scott finally seeking his final appeal in the U.S. Supreme Court. In Missouri, Scott
sued for his freedom along with his wife and children. The final case consolidated all of the
cases under his name. Legal historians Lea VanderVelde and Sandhya Subramanian argued this
was a mistake. They were not sure why Harriet Scott’s case was not argued instead, because she
had the stronger case. The intent of her master was clearer while she lived in Minnesota and if
she was freed her children would automatically follow because their status was tied to her.
Regardless of the mistakes that may or may not have been made, Dred Scott is an excellent
expression of the political debate of the time. The legislative branch, both state and federal, had
to find a legal way to not only deny Scott and his family citizenship, but also to deny their
natural right to be free.100
Missouri freedom suits were much different from Florida, because Florida was not
located near free territory. Missouri had been a point of contention since the 1820 Compromise
99
For more on Dred Scott please see Andrew P. Napolitano, Dred Scott’s Revenge: A Legal History of Race and
Freedom in America (Nashville: Thomas Nelson, 2009), Lea VanderVelde, Mrs. Dred Scott: A Life on Slavery’s
Frontier (New York: Oxford University Press, 2009), Dennis K. Boman, “The Dred Scott Case Reconsidered: The
Legal and Political Context in Missouri.” The American Journal of Legal History, Vol. 44, No. 4 (Oct., 2000), p.
405-428. Lea VanderVelde and Sandhya Subramanian, “Mrs. Dred Scott.” The Yale Law Journal, Vol. 106, No. 4
(Jan., 1997), p. 1033-1122.
100
Lea VanderVelde and Sandhya Subramanian, “Mrs. Dred Scott.” The Yale Law Journal, Vol. 106, No. 4 (Jan.,
1997), p. 1033-1122.
81
and it also had to deal with the legacy of the Land Ordinance of 1787 outlawing slavery in the
surrounding territories. Its courts consistently ruled on almost 300 freedom suits from 1824 to
1845. Missouri Supreme Court Justice George Tompkins worked under the axiom “Once free,
always free.” Tompkins did not believe the Missouri state laws had the right to enslave a person
who had been freed somewhere else by simply returning or moving to the state. This concept
had been commonplace in Missouri jurisprudence until Justice William Scott came to the bench.
He did not agree with Tompkins’s interpretation of the law. Scott tended to agree with Irene
Emerson’s attorney Lyman D. Norris who used incendiary language to strip Dred Scott of any
dignity as a human being. He did not believe Scott was entitled to his freedom by virtue of
traveling to a free state such as Illinois. Norris argued the laws of Missouri were supreme and
Illinois law was not valid in Missouri. Lyman Norris did not believe laws passed outside of
Missouri should force state citizens to forfeit property.101
When Justice Scott wrote his majority opinion for the court he organized it based on
Norris’s language. Scott wrote, “Now are we prepared to say, that we shall suffer these laws to
be enforced in our courts? On almost three sides the State of Missouri is surrounded by free soil.
If one of our slaves touch that soil with his master's assent, he becomes entitled to his
freedom.”102 Scott cited English precedent stating slaves were free upon reaching her soil, but
did not impact a person once they returned to their parent country. If slavery were the law of the
land in their country their status would revert back once they returned. He said it was duty of the
state to regulate the laws of slavery. It was an unsavory institution inherited by the state, but he
did not feel it was the court’s place to remove it. He believed the enslaved benefitted from their
residency in the United States compared to that of Africa. Dred Scott did not stand a chance in
the face of attitudes such as this. This case did not end with him simply losing his freedom
again. The case was challenged in the highest court in the land, but unfortunately the argument
of Norris and Justice Scott did not go away.103
When the original case was brought before the Missouri Circuit Court by Dred Scott who
charged John F. A. Sandford with trespass vi et armis, which was a form of a tort case. The use
of tort common law to sue for freedom was significant, because property must assert its status in
101
James B. Gardenhire, Reports of Cases Argued and Decided in the Supreme Court of the State of Missouri, Vol.
XV (Jefferson City: James Lusk, Public Printer, 1852), 577-579.
102
Ibid., p. 584.
103
Ibid. p. 584-587.
82
the charge of trespass before it can gain its humanity and civil rights. Justice Roger B. Taney
infamously wrote the majority opinion for the Dred Scott case. Once again the status of
citizenship was used to negate Scott’s natural rights. Taney argued that if the question of
citizenship was in the record the appellate court has the right to rule on it. He wrote, “If the plea
and demurrer, and judgment of the court below upon it, are before us upon this record, the
question to be decided is, whether the facts stated in the plea are sufficient to show that the
plaintiff is not entitled to sue as a citizen in a court of the United States.”104 Taney did not
believe African Americans could be citizens because of their ancestry. He argued they were
always slaves and their history in this country saw them bought and sold as property. He also
stated African Americans were not part of the creation of the American political community and
therefore had no stake in its rights and privileges. He questioned if they could ever be
considered citizens based on the construction of the Constitution. He did not believe this could
occur because the framers did not intend it to.105
Taney argued that the concept of citizen was synonymous with “people of the United
States,” meaning they were sovereign and part of the body politick.106 He stated that even after
emancipation blacks were never given the rights and privileges created by the Constitution
because they were never considered a citizen because of their race, they were subordinate and
inferior.
They had for more than a century before been regarded as beings of an inferior
order, and altogether unfit to associate with the white race, either in social or
political relations; and so far inferior, that they had no rights which the white man
was bound to respect; and that the negro might justly and lawfully be reduced to
slavery for his benefit.107
Taney claimed that this was the common view of African Americans at the time of the
Declaration of Independence and the ratification of the Constitution. He said the feeling was
universal in the civilized portion of the white race. Taney’s decision, more so than anything else,
104
Benjamin C. Howard, Report of the Decision of the Supreme Court of the United States and the Opinions of the
Judges Thereof, in the Case of Dred Scott Versus John F. A. Sandford: December Term, 1856 (Washington:
Cornelius Wendell, Printer, 1857), 8.
105
Ibid., 9-10.
106
Ibid., p. 10.
107
Ibid., p. 13.
83
proves American political ideology outlined during the Revolutionary Period always excluded
African Americans and that exclusion was to their detriment.
The Dred Scott decision was not unanimous. Justices John McLean and Benjamin Curtis
dissented. McLean said, “that a colored citizen would not be an agreeable member of society.
This is more a matter of taste than of law.”108 McLean pointed out a number of states had
granted citizenship to free blacks and argued slavery was not enacted by law, but protected by
law. Therefore, regardless of race, citizenship could be granted. McLean understood that the
revolutionary ideology did not reconcile with human bondage. He wrote,
I prefer the lights of Madison, Hamilton, and Jay, as a means of construing the
Constitution in all its bearings, rather than to look behind that period, into a traffic
which is now declared to be piracy, and punished with death by Christian nations.
I do not like to draw the sources of our domestic relations from so dark a ground.
Our independence was a great epoch in the history of freedom; and while I admit
the Government was not made especially for the colored race, yet many of them
were citizens of the New England States, and exercised, the rights of suffrage
when the Constitution was adopted, and it was not doubted by any intelligent
person that its tendencies would greatly ameliorate their condition.109
McLean acknowledged the humanity of the slave. He stated the enslaved were not mere chattel
because they bore the impression of their Maker. Unlike Taney, McLean understood the
contradiction introduced by racism and while not advocating social equality he did understand
certain rights had to be extended to all peoples in a civil society.110
Benjamin Curtis wrote the other dissenting opinion and he outlined many of the same
arguments as McLean. He argued that the mere fact that Scott was of African descent did not
mean he could not be a citizen. He noted the assumption of being a slave because of African
descent was not tantamount to evidence of Scott’s status. The record did not reflect he was a
slave, nor was there evidence proving he was a slave. Curtis did not believe African Americans
could be denied citizenship because they did not participate in the creation of the political
community. He said that at the adoption of the Constitution African Americans in New
Hampshire, Massachusetts, New York, and New Jersey were given citizenship and those states
108
Ibid., p. 139.
Ibid., p. 143.
110
Ibid., p. 156.
109
84
allowed franchise on equal terms with other citizens, with certain qualifications. Regarding the
place of African Americans in revolutionary rhetoric, Curtis wrote they were included in the
inalienable right to life, liberty, and the pursuit of happiness.111
Curtis did not want to try to articulate the feelings of past generations, but focus on
written state constitutions and how they were used to define citizenship. Curtis noted the
Constitution did not articulate who was a citizen and argued the citizenship of the slave was not
allowed by the master, but was the will of state. He believed citizenship could not be denied
based on race because the Constitution did not stipulate any restrictions on citizenship based on
race.112
This case is best characterized as Dred Scott screaming at the top of his lungs that he was
a human being and his humanity should not be ignored for the sake of property. With this
sentiment in the air the Justices discussed the authority of the Constitution and property, all the
while turning a deaf ear to Scott’s pleas. Ultimately, he lost his freedom and was returned to
slavery for a brief time. He was later manumitted by his former owners, the Blow family, and
shortly thereafter died of tuberculosis.
The process of gaining civil rights was a complicated journey with elating victories and
crushing defeats. While slaves and free blacks may not have always viewed what they were
doing as activism, their foray into the courts can most certainly be viewed as such. Their
existence forced antebellum jurisprudence to reconcile the plight of the slave with republican
ideology of freedom. This was clearly done with a biased logic that benefitted those who
controlled property. Many Supreme Court justices like Taney were slaveowners and judging by
their actions were influenced by the profits gained by the Peculiar Institution.
The Civil Rights Movement at this point was more fixated on the impact of law on those
estranged from society. The majority of African Americans were not residents of the United
States because of their ancestry; they were essentially prisoners. As a people they had to fight
their battles using the language of their oppressors. This was true of enslaved and free blacks.
While free blacks could articulate their views in speeches and literature, enslaved blacks had to
find other outlets. They fought the system of slavery everyday through a variety of methods.
The court system was one of the few options available to both free and enslaved blacks; both
111
112
Ibid., p. 180-181.
Ibid., p. 183.
85
groups used it in different ways. Slaves were not actively breaking laws in order to challenge the
system, but their existence and whites’ need to control their actions forced the system to
reconcile laws of freedom with bondage.
Florida created separate statutes in order to do this, but this was not always specific
enough to achieve total domination. Circumstances arose that did not always fit neatly into the
code so it was up to judges and lawyers to argue how they should or should not fit. Many of
these rulings were illegal in the sense that the law was autonomous. Many of them were
political, which in turn indirectly gave enslaved black men and women political capital because
their actions resulted in political responses. The response was the law and it needed to be
changed, but the political climate of the time was not always conducive to change. Only
sympathetic lawmakers and judges could grant this political viewpoint.
African Americans have always been denied civil rights because of their race. Slavery
was only an excuse to further racist ideology. Most stated blacks were considered slaves simply
by the color of their skin and it was up to them to prove they were free. The perception had to be
changed if they hoped to achieve freedom. Is the Civil Rights Movement more about changing
the racial character of law? No justice, no peace is a phrase heard in the Modern Civil Rights
Movement and is telling of the real nature of the movement. By looking further into the past
historians should be able to better understand the true roots of the movement. Jim Crowism was
merely another avatar to the god of racism, albeit a more deadly form in its lust for blood.
Activists sought to change laws in order to gain equality and be allowed to participate in civil
society. Historians tend to fixate on suffrage and office holding perhaps to the detriment of the
real issue of influencing law to their benefit. The United States is a nation ruled by laws created
by its sovereign people and African Americans sought to become part of that populous in order
for the law to reflect their residency, but this would not occur without a fight.
86
CHAPTER 4
CIVIL WAR AND A NEW PARADIGM
“The Yankees are king here now, and that they, the slaves, must go to their king for food
and shelter.”1 This was a quote from Babillard La Branche, a sugar plantation owner near
Carrolton, Louisiana.
Major Peck of Camp Parapet reported this on June 16, 1862, just a short
time after the firing on Fort Sumter. This quote, which was later disputed, provides insight into
what the future of the enslaved would become once the hostilities between the Union and the
Confederacy began. What was to be the lot of the enslaved people? It was obvious what their
future would be if the Confederates won the war, but what about a Union victory. The Civil War
would not last forever, a Texas slave advised his son, but “our forever was going to be spent
living among the Southerners, after they got licked.”2
How would the firing on Fort Sumter and a Union victory not only impact the Civil
Rights Movement, but the enslaved? Would emancipation grant true freedom or would it merely
remove the status of property? When they were emancipated would they be truly free or just
merely the subjects of a new king, or master, as La Blanche supposedly alluded to? The quest
for freedom did not start with the Civil War, but it had the potential to be accomplished with a
Union victory. The war placed the status of slaves in a state of flux. Historians such as Larry
Rivers and Steven Hahn have argued that the war was the largest slave rebellion in history. They
buttress their arguments by discussing the role of African American troops and their participation
in ending enslavement. This is not completely incorrect, but there is another issue at play during
the war. The Union had a difficult time determining the status of the enslaved. Their status was
tied to the South and its institutions that could or could not be protected by the Constitution. The
specter of the law reared its head once again. How was the law going to interpret their status and
how did the events of the war influence this?
The status of property was not easily removed because it was connected to custom and
paternalistic legal traditions. Historian Walter Manley states, “The institution of slavery and
defense of states’ rights represented focal points of the war, while the ability to gather armies
1
37th Congress, 2nd Session, Senate Executive Document 67. Instructions Given to Commanding Generals under
Act of Congress August 6, 1861.
2
Leon Litwack, Been in the Storm So Long: The Aftermath of Slavery (New York: Vintage Books, 1979), 63.
87
large enough to contest it formed another.”3 Within this mindset it was difficult for white
Northern lawmakers to advocate for equality and sought to simply end the institution. This was
an opportunity for lawmakers to achieve the altruistic ideals of their predecessors, but this was
not always in the politicians’ forethought. Some did advocate revolutionary ideals, but it was
merely rhetorical. Historian Michael Vorenberg writes, “Antislavery congressmen hauled out
the writings of Patrick Henry, and James Madison to prove that the natural sentiments of the
founding generation were against slavery.”4 The war saw its fair share of revolutionary rhetoric
from both sides of the battlefield. Northerners claimed to be fighting for the Constitution and the
Union, while the South claimed they were fighting oppression as their forefathers had done.
While all of these rhetorical and real battles raged on, enslaved blacks were simply doing all they
could for freedom. They did not wait for it, and it was not bestowed upon them; it was earned.
They fought for it on the plantations, in the cities, and in the courtroom. They continued to
struggle on their battlefronts as others wringed their hands over ideas. In Florida, slaves were
still challenging the law, but the frequency was lower. These multiple attempts to achieve
freedom were ultimately rewarded with the close of hostilities, but not without a legacy. Manley
writes that as the Civil War waged, Florida laws changed little and the Supreme Court
interpreted the laws as they did before the war.5 The journey from slavery to freedom was only
one portion of the fight and African American participation in the military played a significant
role, but their continued presence in the courtroom had a greater impact on the movement for
civil rights in the years following emancipation. The status of property would not be removed
with the stroke of a pen, but with activism in the courtroom.
During the war, the Florida Court system still functioned on a limited basis. The State
Supreme Court heard a lesser number of cases dealing with slaves, but the types of cases
adjudicated were significant. Most of them dealt with slaves as property and ignored their
humanity for their profitability. For example, McLeod v. Executor of B.M. Dell, Stephens v
Orman, and Smith v Hines dealt with African Americans as property in probate disputes as they
3
Walter W. Manley II, E. Cantor Brown, and Eric W. Rise, eds., The Supreme Court of Florida and Its Predecessor
Courts, 1821 - 1917 (Gainesville: University Press of Florida, 1997), 195.
4
Vorenberg, Final Freedom, p. 197.
5
Manley, p. 195.
88
had in the antebellum period.6 Enslaved African Americans were still barred from participating
in commerce as evidenced in Donaldson v The State.
Emily Donaldson was the widow of William S. Donaldson, a 45-year-old carpenter from
Maine living in Jacksonville, and by 1855 his estate was insolvent. Probate Judge Felix
Livingston published a notice dated June 20, 1855, stating the terms required by the court for the
debts to be paid. Florida Attorney General, John B. Galbraith tried the case. Justice Williams A.
Forward was absent and Judge J. Wayles Baker of the Middle Circuit sat in for him. Emily
Donaldson was indicted during the 1859 Spring Term of the Eastern Circuit Court in Duval
County of two counts of trading with a slave. One count was for receiving grain from a slave
who did not have a permit to do so, and one count for purchasing grain from a slave. The name
of the slave and the exact crop purchased was not provided in the record. Donaldson pleaded,
autrefois convict, which means a person cannot be tried or convicted for the same crime twice;
double jeopardy.7 Donaldson’s plea was overruled and she changed her plea to not guilty.
Donaldson was tried in October of 1859 and the original trial ended in a hung jury. The case was
tried again the following day with a new jury empanelled. They found Donaldson guilty of all
charges. They recommended clemency of the court and the court assessed a twenty-five dollar
fine. This may have occurred because Donaldson’s husband’s estate was insolvent and she may
have been facing financial hardships. Samuel L. Burritt, Donaldson’s attorney, made a motion
for a new trial, but it was overruled, therefore a writ of errors was filed with the State Supreme
Court.8
It concluded the autrefois convict plea was a good plea and should have been upheld. It
also contended that the court erred in charging, “the permit to a slave to sell or dispose of grain
must be in writing.”9 The court did not argue the above points brought up by Burritt. Instead it
looked at the law code itself and said that section eight of the code which regulated the trade
between slaves and whites had been repealed by the act of February 14, 1835, as stated in section
6
John B. Galbraith, Reports of Cases Argued and Adjudged in the Supreme Court of Florida, at Terms Held in
1860-1861, Vol. IX (Tallahassee: Office of Floridian & Journal, Dyke & Carlisle, 1861); Galbraith, Reports of
Cases Argued and Adjudged in the Supreme Court of Florida, at Terms Held in 1864, 1865, 1866, & 1867, Vol. XI
(Tallahassee: Dyke & Sparhawk, 1867).
7
Galbraith, Reports of Cases Argued and Adjudged in the Supreme Court of Florida, at Terms Held in 1860-1861,
Vol. IX, p. 403.
8
Ibid., p. 402-403.
9
Ibid.
89
nine of Thompson’s Digest.10 The amended portion of 1851 did not include Duval County and
therefore Donaldson could not be held liable. The case was reversed, but the intent of the law
was to continue the exclusion of the enslaved in commerce. If they were allowed to participate
in the economy it would challenge the status of property.11 Even though Donaldson was the
focus of the case the actions of the enslaved, and that challenge to status, led her to the
courtroom.
The Donaldson hearing was the typical case heard before the court during the war. It
focused on the enslaved as property and the application of law to sustain that status. The court
rarely adjudicated on cases that directly challenged bondage. The State Supreme Court record
mentions only one manumission suit found in 1864 and it was the result of a probate dispute over
the last will and testament of Thomas G. Gaskins of Wakulla County. James M. Gaskins,
Thomas G. Gaskins’s son, filed suit against Charles K. Miller because he felt Miller did not
abide by the terms of the will. According to Thomas G. Gaskins’s will he bequeathed two
slaves, Sarah, thirty-five, and William Henry, sixteen, to Miller. The enslaved were put into a
trust for him to manage and he was supposed to allow Sarah to go to a free state if she wanted.
Miller was to be given $100 from the estate to help her travel to a free state and William Henry
was to be bound out to a useful trade until he was twenty-one. Miller was to, “allow Sarah and
William Henry to enjoy such privileges and freedom as is consistent with law,” but he was to,
“have sole control and management of them for the purpose herein expressed, without account to
any one.”12 It was argued that Miller was not supposed to be vested with ownership of the
slaves, but facilitate their manumission when necessary. The court stated the bequest was void
because it was contrary to law. Slaves were not allowed to be partially free, or trade as free
persons. They could not live on a plantation without a white person. Sarah was not allowed to
decide whether or not she could go to a free state because she was a slave.13
10
Leslie A. Thompson, Esq., Manual or Digest of the Statute Law of the State of Florida, of a General and Public
Character, in force at the end of the Second Session of the General Assembly of the State, on the sixth day of
January, 1847 (Boston: Charles C. Little and James Brown, 1857), 509.
11
The enslaved was not typically prosecuted for this offense. The statute places the criminal act on the buyer and
not the seller. Lawmakers argued the law was designed to reduce theft, but it did not delineate between stolen goods
and rightfully obtained goods. The result was the full exclusion from the marketplace. Enslaved persons were
ultimately prosecuted for theft, although the record does state whether this happened or not in the Donaldson case.
12
Galbraith, Reports of Cases Argued and Adjudged in the Supreme Court of Florida, at Terms Held in 1864, 1865,
1866, & 1867, Vol. XI, p. 73.
13
Ibid.
90
In the original case before the Middle Circuit Court, James Gaskins argued the property,
Sarah and William Henry, belong to himself, Edward Barco, and Allen Felkel. Gaskins asked
Alfred Barco to start proceedings to find Sarah and William Henry, but he refused to do so citing
the will had been executed legally. All debts were paid and property was distributed. Judge
Baker ordered an injunction to keep Miller from taking Sarah and William Henry out of the
court’s jurisdiction. Both slaves were to be handed over to the Leon County Sheriff Richard
Saunders until the matter was resolved. Baker also required Gaskins to provide a $5,000 bond
made payable to the defendant, Miller, in case of damages. The injunction was not to be
enforced until the bond was paid. Gaskins received help with the bond from S.B. Ferrell and
H.H. Walker. Bond was paid on April 15, 1863.14
Thomas G. Gaskins died June 13, 1862, in Wakulla County. He had three children,
Christina, William G., and James M. Christina died before the testator and was survived by two
infant children, Allen Felkel and Edward Barco. In the original will, William was granted nine
slaves and 620 acres in Wakulla County. James was given eight slaves; Edward received three
slaves and land in Leon County. 15 William G. Gaskins also died before Thomas Gaskins.
Alfred T. Barco, Edward’s father, was the executor of the will. It was alleged Miller took
possession of the slaves with the permission of the executor, Barco. It was also alleged that
Sarah was living in Florida as a free woman without any restraints, payment of wages to Miller,
or subjection to him as a master. She was left to take care of herself at large in the city of
Tallahassee as if she was a free person. “It further states she threatens to run off . . . if an
opportunity is afforded or she has a chance.”16 William Henry was in Miller’s possession
working as a slave for Miller. He was being treated “with great severity.”17 Miller responded by
denying Sarah was given her freedom and that William Henry was treated with severity. On July
18, 1864, in the Middle Circuit Court, Judge Baker ruled Miller violated the terms of the will
making the clause in the will void. The slaves were to be confiscated and sold at auction with
the proceeds going to Thomas Gaskins’s estate.18
14
Miller v. Gaskins. Florida State Archives, Record Group 1100, Series 49, Box #780.
Galbraith, p. 73.
16
Miller v. Gaskins. Florida State Archives.
17
Galbraith, Reports of Cases Argued and Adjudged in the Supreme Court of Florida, at Terms Held in 1864, 1865,
1866, & 1867, Vol. XI, p. 74.
18
Miller v. Gaskins, Florida State Archives.
15
91
Miller appealed the judgment to the Supreme Court and Justice David Shelby Walker
wrote the court’s majority opinion. He argued it was important to understand the true intention
of the testator. He stated, “it is the first and great rule in the exposition of wills, and to which all
other rules must bend, that the intention of the testator expressed in his will shall prevail,
provided it be consistent with the rules of law.”19 Walker noted that in every other part of the
will slaves bequeathed were specifically stated as being slaves and owned by those mentioned in
the will. When it came to Sarah and William Henry they were not listed as slaves and therefore
were not intended to be held by Miller as such. Walker argued the will gave Miller the power to
protect Sarah and William Henry from “laws enacted against free negroes [sic], and against all
persons who should attempt to interfere with them.”20 He continued, “There is no evil against
which the policy of our laws is more pointedly directed than that of allowing slaves to have any
other status than that of pure slavery. By our act of 1828, the master or employer of a slave is
forbidden to allow such slave to go at large and trade as a freeman.”21 The language evoking the
concept of evil expressed the fear many had of freed slaves in the South. This case was heard in
1864, the waning years of the war when the tide of war was in favor of the Union. Walker
explained the necessity of the legal control over the disposition of enslaved property as yielding
a private right to the public good. He did not believe Sarah had the right to decide if she could
be free or not. Her status as slave did not provide her with that choice. He stated Florida law
only recognized absolute freedom or slavery, nothing in-between. Walker determined the sixth
clause of Gaskins’s will was null and void and the slaves were still part of the estate, therefore
upholding Baker’s judgment.22
In Florida, the above cases prove the law was unwilling to view slaves as anything more
than property. This viewpoint not only impacted the slave, but the free black population. Until
the law was amended to create a new vantage point it proved difficult for African Americans to
continue their quest for freedom. As much as the war assisted in the emancipation of the slaves
the law played a greater role. The Emancipation Proclamation did little initially to free the entire
slave population and had no real impact on free blacks in the South. The legal status of slaves
had to change in order to benefit all African Americans because they were seen as property first
19
Galbraith, p. 75-76.
Ibid., p. 78.
21
Ibid.
22
Ibid., p. 79.
20
92
and this made it difficult to fight for civil rights. As was seen in Dred Scott, jurists did not
believe African Americans belonged to the body politick because of the legacy of slavery. If this
is accurate then the only way for all African Americans to become involved in it was to remove
the property status of the enslaved. This would change the discourse because no longer could the
courts use property rights to support exclusion; they would have to deal with their humanity and
the protection of law. Where did this change emanate from, the state or federal level? The Civil
War provided a unique opportunity to finally deal with the contradiction that plagued the
Republic since its inception, slavery and freedom.
In 1860 after the election of Abraham Lincoln, the governor of South Carolina, William
Henry Gist, asked other Southern states if they would secede from the Union if South Carolina
did so. Many Southern states agreed that they would follow South Carolina if they decide to
leave the Union. South Carolina subsequently held a convention and voted unanimously to
secede from the Union. Mississippi, Florida, Alabama, Georgia, and Louisiana followed and
Arkansas, Tennessee, North Carolina, and Virginia seceded after the fall of Fort Sumter in 1861.
In the months following these events, Congress tried to come up with another compromise to
help keep the Union together, but it was clear that the time for compromise had passed and
question of the future of the institution of slavery must be answered once and for all on the
battlefields of the upper South.
The stage was set for the most horrific chapter in American History to be played out on
the battlefield with the deaths of thousands lying in the balance. Frederick Douglass wrote,
“They have exposed the throat of slavery to the keen knife of liberty, and have given a chance to
all the righteous forces of the nation to deal a death-blow to the monster evil of the nineteenth
century.”23 Everyone did not share this characterization of the war. In 1861 the Civil War was
not a war of emancipation. Lincoln understood that he would not have the support he needed to
keep the Union intact if the loyal slave states thought they were fighting for the emancipation of
slaves. The border states of Missouri, Kentucky, Maryland, and Delaware were important to
maintain. Lincoln had to keep these states on the Union side if victory was to be achieved, but
the question of freeing the slaves became apparent as early as 1861 at Fort Monroe in Virginia.
From the start of the war many slaves thought their freedom would be granted if they
escaped to Union camps. Some slaves were granted their freedom, but this was not always the
23
Vorenberg, p. 23.
93
case. Concerned about keeping the border states in the Union, military officials were especially
protective of slavery.24 This issue became important in the decision making of General John C.
Fremont in Missouri. On August 30, 1861, Fremont put Missouri under martial law, confiscated
the property of rebels, and proclaimed, “Their slaves, if any they have, are hereby declared
freemen.”25 This was only a few months into the conflict and Fremont was already trying to free
the slaves. Considering the political climate of the time Fremont’s act was premature. A few
days later Lincoln made Fremont rescind his declaration. Lincoln said, “it would alarm our
Southern Union friends and turn them against us; perhaps ruin our rather fair prospect for
Kentucky.”26 Lincoln understood the theater in which his political moves were being played out.
The enslaved participated in a debate that affected the rest of their lives and they did not have a
direct political voice in it. Their political voice may not have been direct in the traditional sense,
but their active resistance was no less effective.
Fremont’s declaration was an extreme measure of dealing with the issue of slaves coming
over to Union lines during the war. Many of the Union officers were not interested in freeing the
slaves and many were sent back to their masters. The justification for this was not merely that
they felt that slaves should always remain enslaved, but a much broader argument. The debate at
the time was whether the states that seceded could do so constitutionally. Did the fact that they
decided to leave the Union mean that they could legally? If not, were they still under the
protection of the Constitution? The Union officers had to enforce the Fugitive Slave Act if they
were still under the protection of the Constitution. For example, during an attack on Cedar Key
in Florida, Naval Commander George F. Emmons had three slaves escape from their master and
board his ship. Emmons sent the slaves back, which brought praise from the Confederates.27
Another example of officers returning slaves was in Virginia where General Robert C. Schenck
ordered the slaves of loyal citizens should always be surrendered when demanded by their
owners, and Colonel Dixon S. Miles sent back to their plantation ten Negroes belonging to John
A. Washington, an officer in the Confederate Army.28 Miles believed that even though
Washington was fighting against the Union he was entitled to the rights guaranteed him under
24
Ibid.
George Bentley, A History of the Freedmen’s Bureau (Oxford, Oxford Press; 1955), 3.
26
Ibid.
27
George Buker, Blockade, Refugees, and Contrabands: Civil War of Florida’s Gulf Coast, 1861-1865
(Tuscaloosa: University of Alabama Press; 1993), p. 43.
28
Bentley, p.3
25
94
the Constitution. The political landscape of the time and the reading of the law made the
prospect of a fair future for the slaves a difficult goal to achieve because of all the different
forces acting upon the direction of the path.
At Fort Monroe in Virginia, General Benjamin Butler needed to make a decision about
the fugitive slaves migrating to the fort. He was faced with the same political problems the other
generals encountered. Butler was a Democrat and before he was stationed at Fort Monroe he
offered to help Governor Thomas H. Hicks of Maryland to suppress a threatened slave
uprising.29 It was clear Butler was not an abolitionist. Three slaves of Confederate Colonel
Charles K. Mallory, commanding officer of the 115th Virginia Militia, escaped to Fort Monroe.
The slaves were building Confederate batteries with Mallory’s permission.30 The slaves, who
were the private property of Mallory, were being used as labor for the rebellion against the
Union and the fact that they were building military batteries proved this. The next day Major M.
B. Cary of the Virginia volunteers appeared at Fort Monroe, for Colonel Mallory, and said:
In accordance with the terms of the Fugitive Slave Act the slaves must be
returned. You say we cannot secede, and so you cannot consistently detain the
Negroes. Confronted with this dilemma, Butler rebutted, but you say you have
seceded, so you cannot consistently claim them. I shall hold these Negroes as
contraband of war.31
Butler created a new path for the slaves, which moved them from being property of the Southern
plantation owners to “contraband of war.” This was a transitory term because it continued to
create an inherent status of property while allowing the Union to eventually free runaway slaves.
This was not an enormous step, but it was the first step in an exceptionally long journey towards
a positive outcome.
The simple use of the word contraband alleviated many of the problems created by
Fremont’s declaration and Miles’s return of slaves to a Confederate soldier. By not immediately
emancipating the slaves the border-states did not feel that the fight for the Union was a fight to
end their institution of slavery and by not returning the slaves immediately made abolitionists
feel that slavery might eventually be abolished. As Edward L. Pierce, Butler’s Superintendent of
contraband labor, observed, there was “often great virtue” in such technical phrases as
29
Ibid., p. 1
Ibid., p. 2
31
Ibid.
30
95
“contraband of war” for shaping public opinion.32 Pierce was correct in his observations because
both sides were content with the state of the slave question.
The result of the events on the battlefield did affect the political attitudes toward the
plight of the slaves. In 1861, Southerners believed they had the advantage over the Union
because their way of life was superior due to enslaved labor. Many in the South felt that the war
would be over quickly and the North would be defeated. A North Carolina planter jokingly said,
“he expected to whup the North and be back for dinner.”33 The Battle of First Bull Run did not
help Northern morale. This possible chance of losing to the South made the necessity of keeping
the border-states loyal even more important because of their military necessity. This was evident
in Missouri because if the Union lost control of Missouri the Rebels would control the
Mississippi River further into Union territory and on both sides where Missouri and Tennessee
meet. If this happened it would be a tactical advantage for the Confederacy. The importance of
controlling the political theater was crucial in order to keep loyalty within the Union, because if
that loyalty disappeared then it could affect the outcome of the war. The use of the word
“contraband” was the Union balancing on a political tightrope that placed them between keeping
the border states loyal and assisting them in the war or losing their loyalty and possibly losing
the war.
The debate over refugee slaves was another step toward freedom, because without it civil
rights could not be garnered. The plight of the enslaved from bondage to freedom had to start
with the first step and as insignificant as it sounds that first step was being labeled contraband.
The title did not erase the identity of being someone’s personal property, but it did allow those
who were someone’s personal property to begin chipping away at that shackle and eventually
freeing themselves from bondage. It is also important to note that not all slaves were considered
contraband. Many of these slaves escaped from their master’s plantations near Union lines, but
many still existed in the South as property of other living souls. In the end, General Butler’s new
status for the fugitive slaves did create a chance for liberation within a political and wartime
environment that was not ready for the complete abolition of slavery.
Keeping up the morale of the soldiers was always an important issue of concern for
leaders of a military operation. Military leaders were quite aware that the will to fight had to be
32
Louis Gerteis, From Contraband to Freedmen: Federal Policy Toward Southern Blacks, 1861-1865 (Westport:
Greenwood Press, 1973), 15
33
Litwack, p. 5.
96
kept within their men or the battle they were fighting was lost. Soldiers had to believe they were
fighting for a just cause and have the resolve to defend that cause at all costs. The cause in 1861
was clearly the stability of the Union. It was difficult to determine whether or not the Union
troops would fight a war for emancipation. George Bentley writes, in his book The History of
the Freedmen’s Bureau, “Union troops at best were contemptuous of the black refugees and
were frequently brutal toward them.”34 This was not a characteristic of all Union troops, but
enough to be important in dealing with the plight of the slaves. How would the war have turned
out if Lincoln had announced in 1861 that it indeed was a war for emancipation? The evidence
suggests that the perhaps the border-states and the Southern Unionists might have sided with the
Confederacy. So once again the journey of the slaves was problematic and complex due to these
outside forces acting upon it.
Butler’s contraband policy received Congressional authority on August 6, 1862.
Secretary of War Edwin Stanton wrote, “Congress approved . . . setting free slaves who have
been employed by the consent of their masters, against the government and lawful authority of
the United States.”35 This act along with another one passed on July 17, 1862, were known as
the Confiscation Acts. The second Confiscation Act set the slaves of rebel owners forever free.
Both acts allowed the government to confiscate property of rebellious Southerners. This
included enslaved blacks, land, and crops if it was determined that it was being used against the
United States. These acts assisted the Union cause by taking away the needed labor, slaves, and
supplies produced by that labor and land. The confiscation of Confederate land and labor
benefitted the Union cause. Many of the jobs performed by Union soldiers could now be done
by contraband labor. The chief difference for African Americans was that now they would be
paid labor instead of slave labor. This was a much larger step in the journey of the former slave.
They were finally allowed to benefit from their labor instead of having their labor forcibly taken
away from them, although wage labor posed its own problems of equality. The question of what
to do with the new contraband laborers began to be answered in 1862.
The need for laborers placed the refugees in a situation that could benefit their wellbeing. On November 1, 1861, General Orders #34 was issued and these orders constituted the
valuation of labor of “contrabands.” The orders broke down the laborers into two classes:
34
35
Bentley, p. 26
37th Congress, 2nd Session, Senate Executive Doc. 67.
97
Class 1:
Negro men over 18 years of age, and able-bodied, ten dollars per
month, on rations, and the necessary amount of clothing.
Class 2:
Negro boys, from 12 to 18 years of age, and sickly and infirm
Negro men, 5 dollars per month, 1 ration, and necessary clothing.36
These orders gave guidelines to the Union officers on how to pay contraband laborers. The
wages were not always paid equitably. Many did not receive this much money or any at all. In a
report from General Butler’s successor Major General John E. Wool the contrabands were paid
at least eight dollars per month for males and 4 dollars per month for females.37 In some
instances quartermasters were given charge of the payroll and deducted the cost of food and
clothing leaving many contraband laborers with nothing to show for their labor. In a report by
the Special Commission of S. W. Bostick and Thomas Hood on a camp in Nashville they wrote,
“That the wages of colored refugees have not been paid, and submit that this omission on the part
of the government should be speedily remedied.”38 The contrabands labored in Union camps
and on confiscated plantations. For example, Secretary of the War Stanton ordered Captain R. S.
Davis, acting Assistant Adjutant General of New Orleans, Louisiana, to direct the possession of
plantations controlled by rebels and employ the inhabitants to production.39 Labor was one of
the uses the Union had for the refugees. As the war progressed the Union began arming the
refugees against the Confederacy.
The use of African American troops is an interesting case study, but for the purposes of
this discussion it will only be touched upon as part of the journey towards the freedom of the
slaves. The call for African American troops came after the formalization of the Emancipation
Proclamation in 1863. The formation of troops was not an acceptable avenue of enlistment until
after that time. In the beginning, most of the troops were used for menial labor and did not fight
often. As the war progressed that situation changed and the former slaves became active
participants in the Civil War. In Florida the refugees who fled to the navy were used to destroy
salt works along the coast.40 When Colonel Thomas Wentworth Higginson, an abolitionist, was
asked, “Do you think that, as preparation for the life of a citizen, the organization of Negroes into
36
37th Congress, 2nd Session, House Executive Doc. 85. Report of Major General Wool.
Ibid.
38
38th Congress, 2nd Session, Senate Executive Doc. 28. Treatment of Colored Refugees.
39
37th Congress, 2nd Session, Senate Doc. 67.
40
Buker, p.58
37
98
military bodies is important?” Higginson answered, “I should say of unspeakable value.”41 He
believed that the enlistment in the army could assist the freedmen in their new life of citizenship.
The organization of African American troops marked a change in political temperament towards
the slave question. The government was now willing to arm them, which a year earlier it was not
ready to do.
The issue of what to do with contrabands started when they first began to travel to Union
lines seeking freedom. Brigadier General J. W. Phelps wrote, “the slaves, old and young, little
ones and all, are suffering from exposure and uncertainty as to their future condition . . . with not
a decided welcome from us, what is to be their lot?”42 This was a good question to ask. What
was to be done with a people who had risked life and death for their freedom? Many left the
only life they knew for a chance at freedom in the Union camps. With few resources at their
command, many refugees walked long distances on swollen and bleeding feet, carrying bundles
of clothing or children on their shoulders.43 This was a great testament to the slaves’ resolve to
obtain their freedom. Since, in the beginning, the war was not characterized as a war of
emancipation, but of Union stability. Phelps continued to write,
The new article of war recently adopted by Congress, rendering it criminal in an
officer of the army to return fugitives from injustice, is the first support I have
ever felt from the government in contending against these slave influences which
are opposed to its character and its interest, but the mere refusal to return fugitives
does not now meet the case.44
Phelps felt the government should do more for African Americans and not returning them was
not enough, but it must also be noted the political climate in which these decisions about the
slaves were being made.
The political climate of the United States was changing in 1862. The tide of the Civil
War shifted in favor of the Union. General Ulysses S. Grant achieved sizable victories in
Tennessee and Union forces pushed back General Robert E. Lee at Antietam. President Lincoln
believed the time was right to begin the process of emancipation, because of Union victories, the
Confederate cause was coming into question. It appears that the Confederates were wrong when
41
38th Congress, 1st Session, Executive Doc. 53. Report of the Freedmen’s Inquiry Commission.
37th Congress, 2nd Session, Senate Doc. 67.
43
Litwack, p. 52-53.
44
37th Congress, 2nd Session, Senate Doc. 67.
42
99
they thought this would be a short war. The slave of the North Carolina Planter who jokingly
remarked that he would be back by dinner said, “He went away and it wuz four long years before
he cum back to dinner.”45 The basis of their “superiority” was now considered contraband and
confiscated by the United States. During this time Lincoln sent a message to Congress proposing
a gradual abolition of slavery. He resolved, “that the United States ought to co-operate with any
State which may adopt gradual abolishment of slavery, giving such State pecuniary aid, to be
used by such State in its discretion, to compensate for the inconveniencies, public and private,
produced by such a change of system.”46 This was a calculated move on Lincoln’s part because
he was not forcing abolition of slavery, but promoting the idea of it through government aid.
Lincoln remarked, “In my judgment gradual and not sudden emancipation is better for all.”47 It
is unclear exactly who “all” encompasses, but the welfare of the African-Americans had to be on
his mind. The idea that Lincoln wanted to create a gradual emancipation shows that he was not a
man who wanted to abolish slavery with a simple government proclamation.
In September of 1862 Lincoln announced the preliminary Proclamation of Emancipation.
This was not similar to his proposal of states being aided if they abolished slavery. The
Proclamation stated that the slaves held in states still in active rebellion against the United States
were to be set free on January 1, 1863. The former slaves could now move from slaves to
contraband, to freedmen. The act of Emancipation was more than just freeing those slaves used
to perpetuate the Confederate cause. Emancipation included all of the slaves in the South. The
decision to do this was a difficult one for Lincoln. He still had to contend with the issue of the
border-states, but he also had to deal with the abolitionists. Lincoln called a border-state
congressman to the White House to talk about gradual emancipation, which he had proposed
earlier in 1862. Lincoln said, “If the border-states did not make a decision at once to
emancipation gradually . . . the institution in your states will be extinguished by mere friction
and abrasion – by the mere incidents of war . . . and you will have nothing valuable in lieu of
it.”48 Historian James McPherson writes that, “even this blunt warning fell on deaf ears.”49
Lincoln also found opposition in Congress. In a minority report against the emancipation of
rebel slaves W. Noell wrote, “this sudden and unnatural process of emancipation would put an
45
Litwack, p. 5
37th Congress, 2nd Session, House Executive Doc. 69. Message of the President.
47
Ibid.
48
James McPherson, Battle Cry of Freedom: The Civil War Era (New York: Ballatine Books, 1988), 503.
49
Ibid.
46
100
end for the next twenty years to the production of cotton, sugar, rice, and tobacco in the Southern
States.”50 Lincoln finally decided to follow a more radical stance and emancipated slaves in the
insurrectionary states. It was the next logical step within the war and the future of the slaves was
an important matter at hand. This was accomplished when the final Emancipation Proclamation
took effect on January 1, 1863.
The release of the slaves started with the preliminary announcement of the proclamation
made by Lincoln. Litwack wrote,
Against background of military setbacks, mounting casualty lists, and unfilled
recruitment quotas, President Lincoln issued in September 1862 a preliminary
Proclamation of Emancipation which stipulated that on January 1, 1863, in those
states or portions of states still engaged in rebellion, the slaves would be forever
free.51
Was emancipation merely a result of wartime necessity? Historian Louis Gerteis wrote, “By the
end of 1863 the government’s policy was clear. ‘The fortunes of war,’ Secretary Stanton told
Congress, burdened the government with the care and support of large numbers of dependent
blacks. However bothersome to Union troops, these refugees represented a greater loss to the
enemy.”52 Emancipation was not solely a wartime measure. It was perhaps a benefit to the army
to take away Confederate labor, which would not free up as many men for battle. The Union
was capable of bringing up more men than the South because their population was greater at the
time. The Emancipation Proclamation was an opportunity seized upon by Lincoln to begin the
process of abolition.
The Emancipation Proclamation increased the influx of refugees to Union lines. Over the
years historical scholarship has concluded that many slaves were mere children when it came to
dealing with their freedom. Historian Stanley Elkins hypothesized, “[that] North American
slavery was so absolutely closed that its inmates, the slaves, were forced to become sambos.”53
The slaves, according to Elkins, were imprisoned not only in body, but in mind as well. These
were the typical products of the system individuals utterly infantilized, docile, and dependent
50
37th Congress, 2nd Session, House of Representatives Report 120. Emancipation of Slaves of Rebels.
Litwack, p. 69.
52
Gerteis, p. 32.
53
Edward Magdol, A Right to the Land: Essays on The Freedmen’s Community (Westport: Greenwood Press,
1977), 5.
51
101
upon their masters for their ideas, values, and existence.54 Many whites during the Civil War
thought African Americans were unable to fend for themselves and would not survive without
help from the white man. It may be true that they needed help in the beginning to adjust to their
new providence, but the assistance given to them was needed not because they were incapable of
survival. It was because even after their liberation many whites sought to oppress them and
enslave them once again. Abolitionist groups felt that it was important for the government to
have a plan to deal with the transition of slaves to free citizens. The Emancipation League wrote
a memorial concerning this issue on December 12, 1862. It stated:
In view of the emancipation of so many of these people, it becomes of the highest
importance to inquire what are the best regulations for their new condition, and
what has been the experience of other times and nations in similar emergences.
There is at present great ignorance on these points among our people and among
even out civil and military officers. To remedy like ignorance in England, France,
and Russia, in Denmark and Holland, the government of those countries have
instituted committees of parliament, grand commissions, and similar bodies,
which have accumulated facts of the greatest value to guide the action of these
governments. Your memorialists, therefore, respectfully and earnestly urge upon
Congress the importance of the immediate establishment of a Bureau of
Emancipation.55
The question of the needs of the freedmen was to be answered by the American Freedmen’s
Inquiry Commission.
Charles Sumner, Senator from Massachusetts, was an abolitionist and a man willing to
take up the cause of the freedmen. Sumner wrote in a letter, “This war is nothing unless it
finishes Slavery, & our State must lead.”56 His resolve was strengthened after South Carolina
Congressman, Preston Brooks, attacked him. Sumner was beaten with a cane and forced to leave
the Senate for a time and his “vacant chair” became a symbol of the South’s uncompromising
need to hold on to slavery as a part of their lives. On March 16, 1863, Sumner asked Secretary
of War Edwin M. Stanton to create the American Freemen’s Inquiry Commission, to “investigate
54
Ibid.
37th Congress, 3rd Session, Misc. Doc. 10. Memorial of the Emancipation League.
56
Beverly Palmer, ed., The Selected Letters of Charles Sumner, Volume II (Boston: Northeastern University Press,
1990), 35.
55
102
the condition of the colored population and to report what measures will best contribute to their
protection and improvement, so that they many defend and support themselves.”57 Stanton
commissioned social reformer, Robert Dale Owen and abolitionists, James McKaye and Simon
Gridley Howe.58 Howe was also one of the authors of the memorial for the Emancipation
League. The report compiled by the Commission was integral in determining what was needed
from the government to assist the freedmen.
After the Commission decided what questions they wanted to ask and how they wanted to
ask them they traveled to Virginia and North Carolina and gave a preliminary report on the
condition of the freedmen in those areas. The report dealt primarily with the economic condition
of the freedmen and how it had reduced some of them to stealing.59 Their economic condition
was dreadful enough that they did what they needed to do to survive. The commission was also
concerned with the marital practices of the freedmen. The need to emphasize this issue was
unimportant when dealing with the survival of a group of people. The commission did say that,
“Sufficient evidence is before us that the colored refugees in general place a high value both on
education for their children and religious instruction for themselves.”60 The freedmen
understood the importance of education.
The Commission felt that the two economic systems of enslavement and free
compensated labor were too divergent and four million people could not make that change
undirected. This was keen insight on the part of the Commission. Various potential employers
who only understood African Americans as slaves would not be able to adjust to them as wage
laborers. The direction was not only for the freedmen, but for the potential white employers as
well. The Commission wrote, “They must feel themselves treated as freemen before they can
fully realize the fact that they are and will forever remain as such.”61 In an almost naïve view of
race relations the Commission argued the only way for freedmen to feel truly free was to be
treated as free citizens. It would have been more accurate to state that freedom could only be
achieved when the American populace was willing to protect their civil rights, but the social
reformer and the two abolitionists did not utter this language.
57
David Herbert Donald, Charles Sumner (New York: Da Capo Press; 1996), 120.
Gerteis, p. 35.
59
38th Congress, 1st Session, Senate Executive Doc. 53.
60
Ibid.
61
Ibid.
58
103
After they finished traveling to contraband camps, the Freedmen’s Inquiry Commission
issued its last report on May 15, 1864. The final recommendation of the commission was that a
temporary agency must be created in order to aid the transition from slavery to freedom. The
Commission felt that it was necessary to make the institution temporary because, “The sooner
they shall stand alone and make their own unaided way, better for both their race and ours.”62
This was a simplistic solution to a complex problem. Allowing them to stand-alone cannot erase
two hundred years of bondage. Both races would need time and energy to adjust to this social
change. The Commission also dealt with the need to protect the freedmen from becoming
forcibly enslaved again. Emancipation would not become synonymous with independence.63
The Commission wrote in this regard, “secure to them, by law, their just rights of person and
property; relieve them, by fair and equal administration of justice, from the disgraceful prejudice;
above all, guard them against the virtual restoration of slavery in any form, under any pretext,
and then let them take care of themselves.”64 This report was the precursor to the formation of
the Freedmen’s Bureau.
Massachusetts Congressman, Thomas Eliot, first introduced the formation of the
Freedmen’s Bureau. The measure passed the House by a slim margin and went to the Senate
where Charles Sumner chaired the Senate Select Committee on Slavery and Freedmen.65 The
bill sat in Sumner’s committee for almost a year while they debated whether the bureau should
be under the Treasury or War Department. The American Freedmen’s Inquiry Commission felt
that any bureau should be under the direction of the War Department, as did Eliot. Sumner felt it
belonged under the Treasury Department because they controlled the confiscated lands. In the
end, the Bureau of Refugees, Freedmen, and Abandoned lands came under the umbrella of the
War Department.
House of Representatives Bill #51 was entitled “An act to establish a bureau of
freedmen’s affairs.” The Freedmen’s Bureau, as it came to be known, was the next step in the
journey for African American civil rights. Many thousands lacked the basic essentials of life;
they had been uprooted and they flocked to towns and cities to enjoy their newfound freedom
62
Ibid.
Gerteis, p. 32.
64
38th Congress, 1st Session, Senate Executive Doc. 53.
65
Donald, p.174.
63
104
only to find they did not have the means to support themselves.66 The Freedmen’s Bureau was
established for this purpose. The need for the Bureau was because, Thomas Eliot wrote, “the
shackles have been loosened from the slave, but conquering armies would leave the defeated free
to weld them on again with bolts that could not be stricken off.”67 House of Representatives Bill
#51 formed the agency to aid African Americans in their adjustment to freedom, but it also
helped with the transition from slave to free labor. The Freedmen’s Bureau was the last step
taken during the Civil War for the slaves’ journey to freedom. The role of the Bureau and the
national discourse was evidence of the changing paradigm of civil rights, but this was not fully
realized in Florida’s court system until after the war and emancipation.
Towards the war’s end, the Thirteenth Amendment was designed to codify Lincoln’s
proclamation. The historical scholarship on the Thirteenth Amendment is scant at best. The
most in-depth study on the debate over the amendment is by Michael Vorenberg. In his book
Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment,
Vorenberg discusses the politics of the amendment and its legacy. He wrote, “One of the
monumental legacies of the Thirteenth Amendment, then, was its signal to later generations that
the Constitution could be amended to enact social reforms rejected or unimagined by the
framers.”68
Typically the Fourteenth Amendment overshadows the Thirteenth Amendment, but its
impact should not be completely ignored. The Thirteenth Amendment was able to change the
nature of labor relations and the status of African Americans. Whether the Thirteenth
Amendment freed the slaves is debatable. While their status as citizens was not fully determined
by the amendment, their status as property under the law no longer applied. Even with the
failure of defining their citizenship, this was an important step in ending the legal codification of
slavery. From its ratification on, African Americans could never legally be recognized as
property. Vorenberg states, “In the same way that Republicans could not yet fathom and
articulate all the rights that inhered in freedom, they were unable to express with clarity the
related issue of citizenship.”69
66
John A. Carpenter, Sword and Olive Branch (Pittsburgh: University of Pittsburgh Press; 1964), 87.
Richard Finley, From Slavery to Uncertain Freedom: The Freedmen’s Bureau in Arkansas, 1865-1869
(Fayetteville: University of Arkansas Press; 1996), 6.
68
Vorenberg, p. 197.
69
Ibid., p. 105.
67
105
The specter of Dred Scott was not fully exercised in the proceedings in Congress.
Senators such as Charles Sumner discussed African Americans and civil rights in the same
breath, others refused to accept them as equal citizens. The fact that citizenship was not fully
defined was not an error on the part of lawmakers; it was a calculation. Much like abolitionists
of the time politicians may have wanted to end slavery, but they were not in agreement about life
after slavery. Prejudicial and paternalistic attitudes plagued logic and reason and created a
shortsighted view of liberty that protected white superiority.
Vorenberg argues some politicians were afraid to alter the Constitution for fear of
destroying it. He tends to ignore the nature of racism in the nineteenth century. What they did
struggle with was finding a way to define citizenship in a way that satisfied Dred Scott and
Frederick Douglass. In 1865, this compromise was the Thirteenth Amendment, but with the
criticism that can be heaped upon this legislation it does allow for a few things to occur. As a
nation it forced the people to redefine what it meant to be American. Vorenberg notes that after
the adoption of the amendment it was up to Americans, “to work out the origins and meaning of
freedom long after the measure was adopted.”70 Unfortunately, this was a parallel journey for
white and black America. The former slaves were forced to define their freedom through action
and sacrifice in the years following the war, while white America sought to maintain their
position through codification and intimidation. This latest chapter in the Civil Rights Movement
found African Americans in a position of quasi-freedom that will define their citizenship and test
their ability to protect what little rights they were granted. While the national stage witnessed
the discussion of emancipation and its impact on property through the use of titles like
contraband, the Florida Supreme Court tended to function as it had during the antebellum period.
The era of Reconstruction will be a significant challenge for the Movement because of the
promise of freedom and legal equality that will be taken away with the Redemption of the South.
The framers failed to define who was to be a citizen, but it was African Americans who forced
the United States to review its ideals and realize citizenship and freedom were synonymous in a
free society.
The journey to freedom was a Herculean task assumed by black men and women. The
last great surge towards freedom began with the firing on Fort Sumter. They took the initiative
and escaped to the Union lines in the hope that they would be freed. At the end of the Civil War
70
Ibid., p. 4.
106
the enslaved blacks had acquired the status of freedmen. The war had freed them and the federal
government set up a bureau to help them cope with the change. The Thirteenth Amendment and
the Emancipation Proclamation changed the civil rights discourse. Abolition was achieved, but
the war was far from over. The ratification of the Thirteenth Amendment paved the way for the
Fourteenth and Fifteenth Amendment, which were designed to further define citizenship and
civil rights. The Civil Rights Movement moved into its next phase; that of freed men and
women fighting for their rights as American citizens. Taney’s illogical definition of citizenship
could be ignored with regard to these amendments, but unfortunately this ideology did not
disappear from the vernacular of jurisprudence. This along with the invocation of states’ rights
as used by the Confederacy not only dominated the Florida court system, but eventually the
Federal Courts as well. The movement had new weapons at its disposal, but with it came new
and more stringent responses that would plague the effort throughout the nineteenth century.
107
CHAPTER 5
RECONSTRUCTION AND THE NEW DISCOURSE OF FREEDOM
The years following the Civil War were arduous for African Americans in Florida and the
rest of the nation. The majority were freed slaves trying to find their place in a free society and
the rest were former free blacks no longer oppressed by the same legal yoke as their enslaved
brethren. African Americans in Florida were not facing any unique challenges, but their plight
was telling of how Americans viewed revolutionary principles and race. The Emancipation
Proclamation and the Thirteenth Amendment may have legally ended bondage, but by no means
did it define the breadth and depth of freedom. African Americans were faced with a new battle;
forcing the egalitarian view of freedom through political action and economic stability.
The difficulty of the years of Presidential Reconstruction was defining freedom and the
extent of citizenship. The egalitarian view of freedom in the American Republic should have
extended to all citizens within its borders. The failure of this scenario was the definition of
citizenship and reality. The Dred Scott decision severely hampered the efforts of civil rights
advocates to obtain a legal status not bound by slavery. Taney argued that their African descent
precluded them from citizenship because they were never viewed as part of the body politick.
African Americans were never viewed as anything more than African regardless of countless
generations born and acculturated in the United States. The evolution of the Civil Rights
Movement shifted from bondage to definition.
The greatest legacy to the American historical narrative was the definition of citizenship
created by African American political activism. It was not until the Republic was forced to deal
with four million new citizens with a previously legalized status of property, did the nation find
it necessary to define itself in more specific terms. Reconstruction was perhaps one of the most
complicated eras in American history. The complexity of trying to reshape a nation within a
broader view of its own principles while dealing with a war ravaged region willing to violently
resist any change in their society created unprecedented problems that could not be solved in the
short timeframe historians refer to as Reconstruction.1 The court itself, especially the appellate
division, was slow to recognize the formerly enslaved as freedpeople. The courts also failed to
1
For general study of Reconstruction in Florida see, John Wallace, Carpetbag Rule in Florida: The inside workings
of the reconstruction of civil government in Florida after the close of the Civil War (Kennesaw, Georgia:
Continental Bk. Co., 1959); Davis, The Civil War and Reconstruction in Florida; Richardson, The Negro in the
Reconstruction in Florida; Shofner, Nor is it over yet: Florida in the Era of Reconstruction, 1863-1877.
108
fully recognize the rights of African Americans who were not previously enslaved. The moniker
of property was not easily removed. It was as if the removal of property rights devalued the
formerly enslaved and this had to occur before the courts would rule based on their humanity
instead of their monetary value. The status of property plagued the civil rights of African
Americans for most of Reconstruction. At this point in history what needed to occur was the
articulation of citizenship, but that discussion occurred in a hostile environment rife with violent
racism and polite paternalism.
During Presidential Reconstruction the main objective was political hegemony. President
Andrew Johnson’s plan required the states to ratify the Thirteenth Amendment and take a loyalty
oath.2 The President did not require the Ex-Confederate States to provide for black suffrage.
Southern whites resisted any attempt to grant freedmen suffrage. They feared the perceived
threat of “Negro Rule” and did everything within their power to prevent it. Political power was
the source of dominance and it was the key to all things in society. It would allow African
Americans to elect representatives who would protect their interests and enact laws that could
protect their life, liberty, and property. Without it any economic or social advances could not be
protected and therefore useless to the individual who obtained them.
The Florida Constitutional Convention of 1865 created a government that was
discriminatory towards African Americans. This was done by denying suffrage and disallowing
participation on state juries. The denial of these two basic rights allowed the state legislature to
enact any law it felt appropriate to control African American lives. It could be argued that the
constitution formed what historian George Fredrickson called a Herrenvolk democracy, which
was a democracy that was democratic for the master race, but tyrannical for the subordinate
group.3 The group in power benefited from democracy because they could vote, which gave
them a voice they could use to protect their interests. Those who do not have the right to vote or
any say in government were tyrannized by the whims of the dominant group. While
Frederickson’s assessment is not without merit it does fail to recognize the nature of the debate
occurring during Presidential Reconstruction. The Herrenvolk democracy was never created
because the nature of the American political system was not democratic in classical terms.
2
Johnson’s plan was similar to President Lincoln’s Ten-percent Plan with the exception of stricter penalties on those
with taxable property over $20,000.
3
George M. Fredrickson, The Black Image in the White Mind: The Debate on Afro-American Character and
Destiny, 1817 – 1914 (New York: Harper & Row, Publishing, 1971), 61.
109
American voters did not participate in every legislative decision; they elected representatives to
do this for them. The inclusivity of American political theory happened after Reconstruction and
was influenced by the Women’s Suffrage Movement that began in Seneca Falls in 1848, but
gained steam during the debate over black suffrage during Reconstruction. The Republic at this
stage in its history sought to define its citizenry and those in power found every opportunity
available to maintain their position at the expense of African Americans. The early years of
Reconstruction saw how Florida politicians determined to define freedom in their government.
During the 1865 constitutional convention, provisional governor William Marvin’s message set
the tone by outlining the necessary steps Florida needed to take in order to be allowed back into
the Union and its impact on the status of the freedmen.4
Governor Marvin accepted emancipation, but said, “I would not leave the fact of the
revival of freedom to argument or inference, but would plainly declare that all the inhabitants of
this State, without distinction of color, are free.”5 But his idea of freedom varied depending on
race. He believed that the formerly enslaved could be free without suffrage. Marvin told the
convention that the Constitution had to make a clear distinction between the freedmen’s civil
rights and their political rights. Freedom, according to Marvin, did not have to be obtained
through political expression. He said, “Freedom does not necessarily include the idea of a
participation in the affairs of government. The privileges of voting at elections, the capacity to
hold office, or to sit on juries, are not essential rights of freedom.”6 How could anyone be free
without the ability to vote, hold office, or participate in a judicial action? The governor
supported his assumption by stating that women, foreigners, and children were unable to vote
and were still free. Unfortunately, white males in power did not always protect the rights of
these groups. This paternalistic definition equated African Americans with children and women
who during this era were viewed as those to be taken care of and not as active participants in the
American Republic. The first shots fired during this phase of the civil rights battle found
conservative white politicians begrudgingly accepting emancipation, but unwilling to view
African Americans as active citizens. Marvin articulated a passive freedom that would be guided
by those in power because they knew what was best for all.
4
Journal of the Constitutional Convention of 1865 at Tallahassee, Florida. Microfilm, Florida State University, 9 –
12.
5
Ibid., p. 9.
6
Ibid.
110
The terms of Presidential Reconstruction did not benefit the freedmen in any specific
way, outside of emancipation. Marvin indicated, “I cannot think, however, that, if the
Convention shall abolish slavery and provide proper guarantees for the protection and security of
the persons and property of the freedmen, the Congress will refuse to admit seats, because the
freedmen are not allowed to vote at the State and other elections.”7 Marvin believed that if basic
rights were guaranteed southern representatives would be admitted to Congress and that black
suffrage would not be forced upon the states. Many hoped that voting rights would be left up to
the individual states and not mandated by the national government. In regard to the right to vote
Marvin stated that, “Neither the white people nor the colored people are prepared for so radical a
change in their social relations.”8 He indicated that the civil rights of the freedmen should be
outlined in detail in the Constitution and protected in order to prevent federal intervention. Many
believed that if freedmen rights were protected equally under the law they would have no need to
vote or express any political power. This was difficult to reconcile since African Americans
were not allowed to testify in court without their credibility being determined by white jurors.
Blacks could testify only against other blacks and did not really have any recourse against whites
in court. Whites tried to justify their position against black political rights by concluding that
they were not prepared to be participatory citizens, but the real reason was that they simply did
not wish to give up any control of society to the freedmen because whites believed that they were
inferior.9
The delegates to the Florida convention were made up of ex-Confederates and others who
were in power before the war, and they were determined to insure that political power remained
in white hands. For example, Andrew J. Peeler of Leon County was a plantation and slave
owner.10 His main interest was returning the freedmen to his plantation and working at the
production levels, or higher, than before the war. Silas Niblack, of the judicial committee,
reported that,
The people of the State of Florida in General Convention assembled, do ordain
and declare, that while we recognize the freedom of the colored race, and are
desirous of extending to them full protection in the rights of persons and property,
7
Ibid., p. 10.
Ibid., p. 11.
9
Ibid., 9 – 12.
10
Peeler was a member of the judicial committee during the 1865 Constitutional Convention.
8
111
and in our legislation to secure their elevation and improvement in all that is
calculated to promote human happiness, we declare it the unalterable sentiment of
this convention that the laws of the State shall be made and executed by the white
race.11
This sentiment reflected Governor Marvin’s view that the governing power should remain in the
hands of whites. The delegates clearly stated that Florida’s government would remain a white
man’s government and the freedmen would not have direct political power through elective
franchise or representation.
The General Assembly created under the 1865 Constitution enacted laws restricting the
freedom of former slaves. The governing body was made up of the same individuals who
attended the constitutional convention. Plantation owners, such as Peeler, held the reins of
power and they needed the freedmen working the fields. Former Florida Supreme Court justice
and Reconstruction Governor, David Shelby Walker in a speech to the General Assembly
remarked about the freedmen that, “If left alone, my opinion is that they would, in a few years
settle down into a quiet and orderly laboring population.”12 Walker’s words were not as harsh as
other members of the legislature. The judicial committee concluded, “The Constitutional
provision declaring the abolition of negro [sic] slavery suddenly removed from under the
restraining and directing influence of the master, nearly a full moiety of our population, and
creates the necessity of bringing them more fully under the operation of municipal law.”13 Any
perceived change in African Americans’ political or social status created hysteria of lawmaking.
Whites never gave freedmen a chance to break the social and economic constraints placed upon
them when they were enslaved. They concluded their land was more profitable with cheap black
labor and they wished to maintain that system. According to Peeler and DuPont, “The first
lesson to be taught them is that their new-found liberty is not license, and that labor is ordained
of God, and a necessity of their condition.”14
The laws passed by the General Assembly solidified white supremacy by creating strict
restraints on the lives of the freedmen. The oppressive Black Codes were a symbol of white
aspiration to maintain social control. African Americans could not carry arms, testify in court
11
Ibid., p. 80-81.
Journal of the Proceedings of the Senate of the General Assembly of the State of Florida at the 2nd Session of the
14th General Assembly. (Office of the Floridian: Printed by Dyke and Sparhawk, 1866), 14.
13
Florida, House Journal 1866, p. 58.
14
Ibid., p. 68.
12
112
against whites, or even choose not to be employed or look for another job without fear of arrest.
Historian Joe M. Richardson wrote that, “These laws were products of the ‘baneful heritage’ of
slavery which rooted in the southern mind false ideas of the Negro, including biological
inferiority and innate criminality.”15 White Floridians were determined to maintain the dominant
social status they had enjoyed before the war. The character of the former slave was always at
issue. The predetermined ideas formed during the antebellum period strongly influenced the
actions of lawmakers and the white citizenry. Fredrickson argued that the idea that bestial
savagery constituted the basic Negro character and the loyal “Sambo” was the product of
slavery, therefore the slave was lovable and the freedman was a monster.16
In Florida, the conception of how laws should be made was rooted in the idea that there
was a difference between the effects of punishment on a white man and a black man.
Lawmakers did not use gender-neutral terms because they did not equate women with political
activism or necessarily as potential enemies of the state. In a report to the General Assembly,
Charles Dupont and A.J. Peeler stated, “To degrade a white man by punishment, is to make a bad
member of society and a dangerous political agent. To fine and imprison a colored man in his
present pecuniary condition is to punish the State instead of the individual.”17 If a freedman was
sentenced to jail that individual would not be able to labor on the plantations. In order to keep
the labor on the farms the statutes on punishment had to be different for blacks and whites.
These differences were outlined in the acts and resolutions adopted by the Senate in 1865. The
code expressed two distinctly different forms of punishment for crimes against the state. If an
individual was found guilty of a crime that person could either be fined or imprisoned by the
court or alternately stand in the pillory for one hour, or whipping could punish that person, not
exceeding thirty-nine stripes on the bare back.18 This alternative form of punishment was
created to maintain the expediency of agricultural work and was connected to punishment during
the antebellum years when enslaved African Americans were whipped for any indiscretions by
whoever had the authority and after their punishment was executed they were immediately
returned to the fields.
15
Joe M. Richardson, “Florida Black Codes.” The Florida Historical Quarterly, Vol. 47, Issue 4 (April, 1969): 366.
Fredrickson, The Black Image in the White Mind, 54-55.
17
Journal of the Proceedings of the House of Representatives of the General Assembly of the State of Florida at the
2nd Session of the 14th General Assembly, 63.
18
Chapter 1,466 – [No. 3]: An Act prescribing penalties for the commission of offences against the State, and for
other purposes. Acts and Resolutions adopted by the 14th General Assembly of Florida, at its 2d Session, Dec. 18,
1865, (Tallahassee: Dyke and Sparhawk; 1866), 23.
16
113
The notion that blacks were by nature criminal and had to be controlled affected the
severity of punishments. Transgressions such as, burglary, arson, rape, and trespassing were
commonly seen as black crimes and were harshly punished as they were during enslavement.
The ultimate punishment of death was decreed for burglary and rape. The statute read that if any
person shall assault a white female with the intention of rape they shall be guilty of said offense.
The rape of a black woman was not recognized in law. The protection of white womanhood was
paramount in this piece of legislation. The sexual interactions between a white woman and a
black man were condemned as rape because any contact with a white woman was viewed as a
challenge to white supremacy. Whites believed that blacks would use white women as a vehicle
for social equality and this was unacceptable in an organic society.19 Arson was criminalized
because during the antebellum period some enslaved used it as a tool of resistance. The statute
also created a protection of plantation owners’ interests, because it covered agricultural products
as well as buildings and houses. The burning of crops, especially cotton, could affect the
livelihood of the planters and therefore had to be protected. Trespassing was also viewed as a
black infraction and the punishment was jail time and the prisoner could be sold out for his labor
in order to pay the fine.20
The most obvious example of laws enacted to control the labor of the freedmen was the
act to punish vagrants and vagabonds. The statute read, “That every able-bodied person who has
no visible means of living and shall not be employed at some labor to support himself or herself,
or shall be leading an idle, immoral or profligate course of life, shall be deemed a vagrant.”21
The said offender could be sentenced to one year of imprisonment, whipping, or one hour on the
pillory. If the person was unable to show visible means of support they could be arrested and
their labor sold out to the highest bidder. It was shrouded in colorblind language, but the reason
for this law was to control freedmen’s labor. Employers who terminated contracts with
freedmen and then have them arrested for vagrancy could use this law effectively. The employer
could then buy back that labor by paying the fine and for less than the original contractual
terms.22
19
Oliver Cromwell Cox, Race: A Study in Social Dynamics (New York: Monthly Review Press, First ed. 1948,
Reprint, 2000), 75.
20
Ibid., p. 24
21
Chapter 1,467 – [No. 4]: An Act to punish Vagrants and Vagabonds, Acts and Resolutions, 28.
22
Ibid.
114
The Black Codes ensured African American subordination to whites. Lawmakers denied,
“that the emancipated slave technically denominated a ‘Freedman’ occupied any higher position
in the scale of rights and privileges than did the ‘free negro.’”23 This narrow view of
emancipation drove lawmakers to enact legislation that curtailed the movements of the freedmen.
Emancipation was not viewed as an act to elevate the slaves’ status to full citizenship, but to the
status of antebellum free blacks as second-class citizens. In regards to the protection of rights by
the laws of the state it was impossible for this to occur if the freedmen were not allowed to seek
legal recourse in the court system. They were at the mercy of the dominant class at all times and
they were unable to escape that control under the oppressive Black Codes. During these years
the strict control of labor and the limitation of civil rights was the essence of legislative action.
This unfavorable political environment was coupled with an appellate court system that
still adjudicated cases characterizing African Americans as property. Former masters were
unwilling to relinquish their property without a legal fight. Difficulties of sales of enslaved
people during the Civil War did not end with the war and emancipation. Former owners did
what they could to retrieve monetary compensation for lost property. Some attempted to
challenged the Emancipation Proclamation in court in order to either garner damages or avoid
payment. In these cases, the voices of the formerly enslaved were barely audible and had the
stench of antebellum jurisprudence.
The first case to adjudicate on enslaved property after emancipation was David S.
Walker, Appellant v. James H. Gatlin, Appellee. This 1867 Supreme Court case saw Walker
briefly entertain the idea of using the Emancipation Proclamation to negate the sale of an
enslaved man named George. The case did not fixate on the Proclamation, but the Thirteenth
Amendment and abolition itself. The status of property was not easily shed in the court system
or by constitutional amendment. Walker v. Gatlin spoke to this issue and the Supreme Court had
to explain the nature of private property and the discretion of the Federal government in its
control over it.
This case originated in the Middle Circuit Court in Tallahassee on January 7, 1867, with
Judge J. Wayles Baker presiding. According to Walker’s complaint James H. Gatlin signed his
name as a surety for a promissory note issued by Joseph H. Alston. The note was for $300 to be
paid on the first day of October 1862, with a penalty of eight percent per annum. Around July
23
Florida, House Journal of 1866, p. 62.
115
31, 1861, Walker, “offered to said Gatlin in payment of said note the bills of this Pensacola &
Georgia Railroad Company which were then usually received in payment of debts but said Gatlin
refused to receive said bills.” On March 28, 1864, Gatlin obtained a judgment against Alston
and Walker for $305.83. When the judgment was executed on December 20, 1865, the Sheriff
informed Walker that Alston did not have any property to levy and that he would have to pay the
judgment. Walker, “endeavored to settle with said Gatlin by offering him in payment a
Comptroller’s warrant on the State of Florida or a Treasury certificate or an execution against
another person which,” Walker, “is advised and believes is perfectly good.” He said Gatlin
refused this type of payment.24
Walker wanted Judge Baker to determine whether he legally owed Gatlin any debt
because the note was for the payment for an enslaved man named George. The original price
was $400, but the other $100 was paid at the time of purchase. Walker argued the note was
invalid because of the abolition of slavery and Gatlin gave a warranty that George would be
enslaved for life. “The question presented to your Honor is will the Government after having
declared it unlawful for said Alston to own said property yet compel the surety of said Alston to
pay for it.”25 Walker wanted an injunction against Gatlin’s judgment until Baker could render a
judgment on the question at hand. Judge Baker executed an injunction against Gatlin’s judgment
and Walker paid a $600 bond in order for the injunction to take affect. During the time of the
injunction Judge Baker would determine the legality of Walker’s complaint. The injunction was
filed on December 3, 1866, and the bond was paid on December 8, 1866.
Gatlin responded to Walker’s complaint by stating he did try to pay him through a variety
of methods he determined to be less than equitable. The bonds and notes offered did not equal
the value of the enslaved property. In regards to abolition, Gatlin argued this could not be used
as a plea during the original trial in 1864 and no bearing on the current proceedings. He believed
that for the reasons outlined by his response that the case of injunction should be dismissed.
Gatlin offered a bill of sale as exhibit “A” in his plea. In the exhibit it showed he originally
purchased a forty-five year old enslaved male named George for $596 from Joseph H. Alston on
24
25
Walker v. Gatlin, (1867). Florida State Archives, Record Group 1100, Series 49, Box #779.
Ibid.
116
March 12, 1859. On January 7, 1867, Judge Baker dissolved the injunction, dismissed the bill,
and ordered Walker to pay his debt to Gatlin along with the costs of the suit.26
After the judgment was rendered Walker filed an appeal bond on January 10, 1867. John
McDougall, Commissioner of the City of Tallahassee Bank during the Civil War and David
Walker Gwynn provided security for the bond with Walker in the amount of $500. The case was
heard before the Florida Supreme Court with Robert Benjamin Hilton and Alfred L. Woodward,
Sr. as Walker’s counsel and James D. Westcott and Mariano D. Papy for Gatlin.27 The case
brought before the court was an attempt to argue the nature of the Thirteenth Amendment. It was
Walker’s contention that the contract made with Gatlin was null and void because the guaranty
of “slave for life” was not upheld because of emancipation. As a result, he did not believe he
was legally obligated to pay the balance of the promissory note. The debate centered on the
ability of the Federal government to confiscate property without due process of law. The
judgment of the case could set a dangerous precedent because it could effectively rule the
Thirteenth Amendment unconstitutional regardless of whether or not it was an amendment.
After hearing the facts of the case Chief Justice Charles DuPont delivered the opinion of
the court. He stated this issue was unprecedented in American jurisprudence and he did not
believe there were any recent adjudications that were binding under stare decisis. DuPont
argued the contract making an African-American “a slave for life” was commonplace under the
institution. The parties involved dealt with each other as equals. He said, “The one agreed to
transfer to the other his title in the property, and by clause of special warranty, to guarantee its
political status.”28 The other agreed to pay the specified price for the transfer and title of the
enslaved property. DuPont noted the date of the contract was one month before the Secession
Ordinances, and he wrote,
Can it for a moment be imagined, that at that interesting period, when all hearts
were aglow with buoyant hopes of national independence, it ever entered into the
mind of either party that the warranty given in the bill of sale was intended to
provide against the possible contingency which has since happened – the defeat
26
Ibid.
Hilton was member of the Confederate Congress and a state judge in 1867.
28
John B. Galbraith and A. R. Meek. Reports of Cases Argued and Adjudged in the Supreme Court of Florida, at
Terms Held in 1867, 1868, 1869, Vol. XII (Tallahassee: Edward M. Cheney, State Printer, 1869), 12.
27
117
and overthrow of the Confederate Government, and the consequent abolition of
the institution of negro [sic] slavery?29
DuPont argued the warranty was not created to deal with the eventuality of emancipation, but
instituted to indemnify the status of the enslaved at the time. If the enslaved ran away to a “socalled free State” the warranty would have been broken. He also stated that if a slave escaped
and was captured by the Union Army the owner again would lose control of that property
because they would be freed by their capture. “Thus subjecting the question to the test of
intention, the Court is clearly of opinion that there has been no breach of the warranty contained
in the bill of sale, and that consequently, the injunction which had been granted to stay the
execution at law, was properly dissolved.”30
He continued to discuss the concept of the covenant for “quiet enjoyment” which cannot
be broken by any action of the State. DuPont said it was, “based upon the established right of
‘eminent domain,’ as defined in the books. This right finds its sanction in the idea that the
ultimate title to all property resides in the government, and that its enjoyment by the citizen is
held subservient to that limitation and condition.”31 The right of property rested on the
sovereignty of the people and had the right to take possession of that property as directed by the
laws of the state set forth by their Constitution. DuPont stated, “The right of sovereignty has
been applied to and exercised over the negro [sic] involved in this controversy, so as to alter his
political status, as it existed at the date of the contract, from that of slavery to freedom, and we
do not think that the vendor should be held responsible for the act; it is one over which he could
exercise no control.”32 He said this was the first case to bring this issue to the court. The court
affirmed the dissolution of the injunction, but the fight over payment for enslaved property in the
court system was not over. This debate was significant because the state courts still wanted to
rule on the property rights of slaveowners even when those rights had been removed by a federal
constitutional amendment. Former slaveowners wanted to slowly erode the authority of the
Thirteenth Amendment in order to maintain the antebellum status quo. For African Americans
the new discourse for civil rights was in danger of being severely curtailed in favor of white
supremacy.
29
Ibid., p. 13.
Ibid., p. 15.
31
Ibid.
32
Ibid.
30
118
In Walker the question of abolition was raised with the passage of the Thirteenth
Amendment, but in Henry Slaback, Appellant v. Leoma L. Cushman, Appellee the question was
not abolition due to constitutional amendment. The question raised in this case attacked whether
executive proclamations during wartime were binding in regions not controlled by that
government; in essence was the Emancipation Proclamation binding before war’s end. The 1868
case originated in the Circuit Court of Santa Rosa County with Judge Allen H. Bush presiding.
A white woman named Leoma Cushman filed a complaint with the court through her attorney D.
H. Golson on May 21, 1866. The court heard the case on June 4, 1866. Cushman complained
that, “on the seventeenth day of March AD 1865” the defendant “was indebted to the plaintiff
(Cushman) in the sum of one hundred and thirty-six dollars for the fire of a negro [sic] woman
by the defendant [Slaback].”33 The action of assumpsit began in 1866 when Cushman wanted
recovery for the services of an African American woman she hired to Slaback from October 20,
1863 to March 20, 1865. He refused to pay any of the debt owed, so Cushman sued for $300 in
damages. Slaback’s attorney John Chain replied to Cushman’s complaint. He said Slaback was
not indebted to Cushman in any manner or form. Chain said the woman hired was a freedwoman
by virtue of the Emancipation Proclamation and Slaback paid her directly for her labor. After
the arguments from the attorneys were heard, Judge Bush charged the jury with the following:
1. If you are satisfied by the testimony in this case that the plaintiff hires to the
defendant a Negro Woman in October 1863. She [Cushman] is entitled to
recover of the defendant for hire of the Woman for such time as it may be
proven that he had the services of said woman under said hiring not extended
beyond the time named in said bill of particulars at said sum as been sworn is
rather, or at such price as may have been agreed upon between the parties.
2. If you believe from the testimony that the defendant was deprived of the
service of said Negro Woman by the action of the United States Military
Authority then the plaintiff would not be entitled to recover after that time but
no voluntary payment by Defendant to the negro [sic] woman would
exonerate him. If there is a conflict between the statements of witnesses you
33
Slaback v. Cushman, (1868). Florida State Archives. Record Group 1100, Series 49, Box #835.
119
cannot reconcile them you must decide for yourselves which you will believe
for you are the exclusive Judges of the credibility of the witness.34
Chain asked the judge to charge the jury that the African American woman hired was a
freedwoman and not a slave. The judge refused to grant this and Chain put it in his bill of
exceptions. The jury returned with a verdict for Cushman in the amount of $136.35
After the judgment was rendered Slaback filed a writ of error to the Florida Supreme
Court stating the lower court refused to charge the jury with Chain’s instructions. The writ also
stated the court erred, “In refusing to take judicial notice of the proclamation of the President of
the United States known as the Emancipation Proclamation.”36 Slaback retained the services of
Charles Williams Jones as his counsel. Jones argued, “The ruling of the court below was based
upon the supposition that the proclamation of the President was matter of fact. The court should
have taken judicial notice of the proclamation without formal proof.”37 Cushman did not have
counsel present and the record does not reflect any rebuttal on her part in this appeal.
Chief Justice Edwin M. Randall said the question before them to consider was the effect
of the Emancipation Proclamation. When it took effect on January 1, 1863, one of the states
mentioned, as being in a state of rebellion was Florida. Randall said,
The courts of the several States and of the United States have judicially
recognized the late insurrection and rebellion by the people of a portion of the
States of the Union, as a civil war, and have so recognized many of the measures
taken by the military authorities of the United States in conducting the war.38
He questioned whether a proclamation given by a military leader, Lincoln, was binding before
occupation by federal troops. He cited the Alabama case Leslie v. Langham and said the
proclamation, “had no force or validity until the Federal Government was enabled by conquest or
the power of arms to enforce it,” and “that the institution of slavery was destroyed by the act of
war.”39 Property within an enemy’s country may be taken by military order, “and the owner’s
34
Ibid.
Rate for hire was 17 months at $8/month = $136.
36
Galbraith and Meek, p. 473.
37
Ibid.
38
Ibid., p. 474-475.
39
Ibid., p. 475.
35
120
title thereby divested, but the right of the owners is not divested until seizure and
appropriation.”40
Randall argued that the government could take the title of ownership of said property, but
the owner still had a right to it until it was actually taken. He stated the proclamation was a
wartime creation that affected those within enemy lines, which the military had exclusive control
over. Randall did not find any decisions in the courts dealing specifically with this issue, but
was willing to use the previous citation in disposing of the case. He stated that if an occupying
nation owned slaves then the property would simply transfer from one owner to another, but in
the case of an occupier not owning slaves by default the slaves are emancipated.
Randall stated that during the war slaves who fled to Union camps were not returned to
their owners because they were confiscated as contraband of war and by 1862 that confiscation
led to emancipation. He declared the proclamation was merely a military order and did not have
the ability to make law and therefore could only be enforced in places occupied by the military.
The court affirmed the decision of the lower court because the proclamation was not enforceable
in Florida during the time the enslaved woman was hired out.
The courts had already dealt with the legality of enforcing the Emancipation
Proclamation because they argued it was a wartime measure that could only be enforced with
military action and could only continue to be enforced under military occupation. It appears with
this legal question the status of freedpeople was still under debate in the court system and local
lawmakers sought to quickly put in place laws used during the antebellum period before the legal
status of former enslaved people was established by the federal government. The voice of
African Americans in the Florida Supreme Court was minimal at this point in Reconstruction.
Cases appearing on the appellate docket continued to deal with property status of the formerly
enslaved population. While they may not have been directly affected by the outcome of these
proceedings, the discussion about maintaining the value of property was significant. This was
further evidenced by former owners who were unwilling to relinquish their control over their
enslaved property. African Americans were still viewed as a source of profit, whether directly
through labor or payment for sale. This was a dramatic impediment to the Civil Rights
Movement because reality hindered progression. The court system was mired in the debate over
property and unwilling to step out of the shadow of antebellum jurisprudence.
40
Ibid.
121
The quest to obtain payment for enslaved property that occurred during the war continued
with two cases; William Judge, Appellant v. Forsyth’s Executors, Appellee and Daniel R. June,
Appellant v. Thomas J. Myers, Appellee. These cases involved the sale of enslaved property that
came under contention during the war and recourse was sought after emancipation. Judge v
Forsyth originated in the Santa Rosa Circuit Court before the appeal was heard in Tallahassee.
Judge James Gettis from the Southern Circuit presided over this case in the Western Circuit.
Forsyth’s Executors’ attorneys Richard L. Campbell and Edward Aylsworth Perry filed the
petition in the Santa Rosa County Circuit Court.41 William Judge mortgaged several slaves to
secure a debt on May 2, 1859. In order to secure the note Judge mortgaged the following
enslaved black men: Seth (33), Bob (25), Charles (27), Pompey (30), and Jim (18).42
The petition stated the note had not been paid with the exception of $360 paid on May 4,
1860 and $144 paid on June 20, 1861. They argued the principle of $1816 was still due along
with $722 in interest. The original promissory note was signed by William Judge and witnessed
by John Chain, Judge of Probate and notary public. Judge’s plea to the petition stated the
property no longer existed because of the abolition of slavery. Forsyth’s Executors objected to
the plea by stating it, “is not sufficient in Law and for Cause for Demurrer say the abolition of
Slavery did not change the character of the instrument.”43 On November 27, 1866, Judge Gettis
sustained the demurrer to Judge’s plea and ordered the foreclosure proceedings to begin. On
March 13, 1867, Judge’s attorneys filed an Assignment of Errors to the Supreme Court.44 The
Supreme Court heard the appeal in 1867 and Justice Samuel J. Douglas delivered the opinion of
the court. He wrote that due to the Constitutions of both the State and United States
governments African Americans could no longer be legally recognized as property. Therefore,
the property mentioned in the mortgage ceased to be property as a result of abolition. The
judgment of the lower court was reversed. These decisions were troubling for the Civil Rights
Movement because the courts were willing to hear challenges to the Emancipation Proclamation
and the Thirteenth Amendment for the sake of white property rights. If these two vestiges of
freedom were deemed unconstitutional African American freedom from bondage would have
41
Perry was elected governor of Florida in 1885.
Judge v. Forsyth. Florida State Archives, Record Group 1100, Series 49, Box #779. The “colour” of all the
enslaved men, except Pompey, was designated “black.” He was designated “yellow.”
43
Ibid.
44
John B. Galbraith, Reports of Cases Argued and Adjudged in the Supreme Court of Florida, at Terms Held in
1864, 1865, 1866, & 1867, Vol. XI (Tallahassee: Dyke & Sparhawk, 1867), 261.
42
122
been in jeopardy. For the Civil Rights Movement this theme of attacking federal legislation
granting their freedom by state governments dominated the last half of the nineteenth century.45
In June v. Myers a similar set of events occurred regarding the possession of enslaved
property. This case originated in Alachua County with a complaint from Thomas J. Myers. He
served in the Confederate Army and during the war wanted to take his enslaved property from
Daniel R. June’s plantation to Fairfield District, South Carolina. The complaint said Myers left
his Alachua County home in 1861 and gave possession of his “three negro [sic] slaves” to June
with the understanding they were to labor on his plantation, along with other forms of
employment, and Myers would receive an equal share of the crop produced. June was also
supposed to pay all expenses regarding the feeding and housing of the enslaved men. Myers
alleged that they worked continuously, “from February or March, 1861, to the first of May, 1865,
and that appellant has failed and refused to account for said services as per agreement between
them.”46 Myers also stated that he had left two promissory notes worth $250, “or some other
large amount,” in June’s possession and had given power of attorney to June in order to rent his
plantation between 1861 and 1865. June denied the allegations leveled by Myers. He said, “the
slaves were left in his possession, subject to the orders of the complainant, and avers that he was
fully settled with complainant and that upon a fair and equitable settlement, complainant owes
him five hundred dollars.”47 June denied he had possession of any promissory note, “except for
one note for one hundred dollars, which was paid to another person by direction of
complainant.”48
June said he rented out the plantation for one year at $150 and half year at $50 and Myers
received payment for this time. The Chancery side of the Circuit Court found for Myers and
order June to pay $1,250.92 in compensatory damages and $250 in court costs.49 June appealed
the decision. The decision was reversed because the rules dealing with these types of cases were
not followed. Judge Edwin M. Randall reversed the decree and gave directions to the court, “to
take such further proceedings as may be agreeable to the rules and practice of the court, and in
45
The Civil Rights Movement during this time is not an organized endeavor. It was typically individuals, and
sometimes communities, fighting for their rights to life, liberty, and property.
46
Galbraith and Meek, p. 310-311.
47
Ibid., p. 312.
48
Ibid.
49
Ibid.
123
accordance with his opinion.”50 The opinion of the court failed to mention the nature of levying
a suit against enslaved property in the years following abolition. It is also further evidence that
the courts still had to deal with suits that saw African Americans as property and not citizens.
This case could have easily been dismissed because the property rights had been removed due to
emancipation under eminent domain, but it was not. African Americans had to continue to fight
for the removal of property status even after emancipation and this coupled with challenges to
the Thirteenth Amendment and the Emancipation Proclamation made for a contentious climate in
the Florida appellate court.
The Civil Rights Movement not only had to deal with the courts viewing African
Americans as property, they also had to contend with oppressive laws. The legislature passed
the Black Codes that were nothing more than revised slave codes. Conservative Democrats
sought to define their position in society much as they had done during the antebellum period.
They created a detailed legal code to regulate African American behavior in a punitive way. The
appellate court was still dealing with the status of property and was unwilling to view the
formerly enslaved as citizens and to some degree people. The title of property was still tied to
their person and until the courts were willing to devalue them they were unwilling to notice the
rights of the individual. The status of African Americans did improve with the passage of
Congressional Reconstruction and suffrage, but the state appellate court did not permit the
distinction of property to be removed without “due process.”
The introduction of Congressional Reconstruction at the behest of politicians such as
Thaddeus Stevens and Charles Sumner changed the dynamics of the Civil Rights Movement.
The Federal government made an unprecedented move and sought to directly protect the civil
rights of citizens living under state jurisdiction. In 1867 Congressional Reconstruction dissolved
the Johnson governments and mandated black suffrage. Many Southerners felt betrayed because
they had done what Johnson had asked and were not readmitted to the Union or Congress.
Congressional Reconstruction required the Southern States to ratify the Thirteenth Amendment
as well as the Fourteenth Amendment. The late insurrectionary states had to rewrite their
constitutions to include universal male suffrage.51 Southern whites rigorously opposed black
50
51
Ibid., p. 314.
Foner, Reconstruction: America's Unfinished Revolution, 1863-1877, 114 – 122.
124
suffrage, because with the vote came political power and the end of white political hegemony.52
This reconstruction plan was the first true opportunity for the freedmen to receive the benefits of
citizenship previously denied to them. In Florida, the 1868 Constitutional Convention saw more
African American participation and improved legal protections with the removal of the Black
Codes.
On January 20, 1868, the convention met in Tallahassee. Unlike the 1865 convention,
white Republicans and African Americans were in a majority. Daniel Richards, a former United
States District Tax collector stationed in Fernandina, was elected president of the convention.
He came to the convention with the hope of creating a constitution that had the, “privilege of
elevating and benefiting humanity by forming for a whole state a fundamental law that shall tend
to promote patriotism, permanent peace and enduring prosperity with all our people.”53 He
added, “Let no recollections of the bondage that was so long a withering disgrace of American
civilization be impressed upon the Constitution we are about to form.”54 Richards’s ideals were
not the overwhelming tone of the Convention of 1868, but it was a sign of possible political
change to come in Florida.
In a report to the United States Congress on the Proceedings of the Florida Convention it
was noted that, “The constitution has been framed by men who understand the situation, and who
believed it was far better to extend the olive branch of friendship to those who have hitherto
opposed the government, than place them in a position of perpetual outlawry.”55 They believed
that in order for the government to function the conservative element had to be taken into
consideration. Their faith in the authors of the Black Codes was remarkable. Historian Jerrell
Shofner theorized that the Constitution of 1868 was not a radical document forced upon
conservative whites, but a document of compromise that was made between moderate
Republicans and conservative Democrats. This was evident in the varying ideals expressed in
the constitution. The Declaration of Rights in the 1868 constitution stated that, “All men are by
nature free and equal, and have certain inalienable rights, among which are those of enjoying and
defending life and liberty, acquiring, possessing, and protecting property, and pursuing and
52
Ibid., p. 84.
Journal of the Proceedings of the Constitutional Convention, 1868 (Tallahassee: Edward M. Cheney, Printer;
1868), 6.
54
Ibid.
55
United States Congress, House of Representatives Misc. Doc. #114, 40th Congress, 2d Session, Proceedings of the
Florida Convention, 11.
53
125
obtaining safety and happiness.”56 This was a clear statement that the freedmen were going to
receive the equal treatment that they deserved under the law and would have the political power
to protect that equality. The same declaration proclaimed, “Neither slavery or involuntary
servitude, unless for the punishment of crime, shall ever be tolerated in this State.” The portion
dealing with servitude for punishment of a crime allowed for convict-leasing, which claimed
unpaid labor from blacks until 1926.57 The 1868 Constitution gave the freedmen a better
opportunity for civil rights, but at the same time it was framed by men who did not always
believe in egalitarianism. The Black Codes may have been dissolved, but attitudes had not
changed and the definition of citizenship and freedom was far from complete.
As a result of the 1868 Constitution, African Americans could hold public office. This
permitted blacks such as Jonathan Gibbs, Robert Meacham, and Charles Pearce to play
prominent roles in Florida’s government, but whites reacted violently to this advancement. The
acts and resolutions passed during Presidential Reconstruction had a strong racial tone to them.
Congressional Reconstruction saw the obliteration of the Black Codes, the Civil Rights Act of
1866, and the ratification of the Fourteenth Amendment that were positive steps in the Civil
Rights Movement. This optimism was evident in Governor Harrison Reed’s inaugural address
when he said the Constitution was, “based upon the great theory of American government that all
men are by nature free and endowed with equal rights.”58 But in the same ceremony Colonel
John T. Sprague gave a speech as part of his formally relinquishing power in the state and
returning authority to the civil government. Sprague said to the blacks in the hall:
You are called upon as freemen to sustain your own respectability. The white
man is your friend; upon him you must rely, and with him you must take counsel.
You have rights and privileges as freemen, but these rights and privileges are
nothing without virtue and intelligence; and especially because God has placed a
mark upon you, which requires that you should meet it by proving your capacity;
and your fidelity to the laws of your country, in spite of it.59
56
United States Congress, House of Representatives Misc. Doc. #114, 40th Congress, 2d Session. Proceedings of
the Florida Convention, 12.
57
Ibid. Some whites were affected by convict-leasing.
58
A Journal of the Proceedings of the Assembly of the State of Florida at its 1st Session begun on Monday, June 8th,
1868 (Tallahassee: Tallahassee Sentinel, 1868), 4.
59
Ibid., p. 34.
126
These remarks serve as an example of the paternalistic nature of whites at the time. Even though
Sprague was an army officer he shared some of the same prejudices as his elected counterparts.
This was also attestation that reality typically overruled altruism.
The opportunities for African American political expression improved after 1868, but
politicians like Charles H. Pearce, a fifty-one year old minister of the African Methodist Church
and state Senator from the Leon County District, found out that those rights could be taken away
under false pretenses. He was charged with bribing a public official, Frederick Hill, a
representative from Gadsden County. This allegedly occurred during Governor Harrison Reed’s
impeachment hearings. Pearce was supposedly trying to influence Hill’s vote in the proceedings
against Reed. According to the indictment Pearce wanted Hill to vote against the impeachment
of Reed in return for a cash payment of $500. He was found guilty of the offense and under
Florida law his felonious conviction stripped him of his civil rights. Governor Reed sent a
communication to the Supreme Court inquiring as to whether a pardon would restore a person’s
civil rights. Chief Justice Edwin M. Randall replied a pardon would restore someone’s civil
rights; Reed did not pardon him.60 After the verdict Pearce appealed his conviction on grounds
that the jury was not properly empanelled, therefore could not legally hear the case. In his
opinion, Justice James D. Westcott said the record reflected a grand jury was legally empanelled
and provided a true bill of indictment.61
Pearce argued the original indictment was a true bill endorsed by the “jurors” and not the
“grand jury.” He said this was a fatal defect in the process leading up to his trial. In response to
Pearce’s claim that the jurors were improperly sworn in, Westcott stated there was not an
objection at trial so there was nothing for the Supreme Court to rule on. Regarding the actual
oath taken by the jurors, Westcott did feel that while the words spoken for the oath were not
strictly adhered to, it did not mean they were not duly sworn in. Westcott affirmed the judgment
and sentence of the lower court. Pearce was unable to regain his civil rights until he was
pardoned with the assistance of Ossian B. Hart.62 This incident had political overtones, but it
was significant because of what was at stake. When Pearce lost his civil rights via a felonious
60
William Archer Cocke, Reports of Cases Argued and Adjudged in the Supreme Court of Florida at Terms Held in
1871, 1872, 1873, 1874, Vol. XIV (Tallahassee: Floridian, 1874), 318.
61
Ibid., p. 154.
62
Larry E. Rivers and Canter Brown, Jr. Laborers in the Vineyard of the Lord: The Beginnings of the AME Church
in Florida, 1865-1895 (Gainesville: University of Florida Press, 2001), 80.
127
conviction it was obvious no one was immune to losing their rights as a result of capricious
charges, but in spite of this episode the legal status of African Americans was improving.
The next challenge facing the Civil Rights Movement in Florida dealt with the
constitutionality of the Fourteenth Amendment and Florida’s 1868 Constitution. In Adam
McNealy, Appellant v. Jason Gregory, Appellee the court directly attacked the scope of the 1868
convention. It challenged whether the convention could stop the adjudication of cases dealing
with monetary recovery for enslaved property. This case was heard before the Supreme Court on
two separate occasions. The first case argued the legal obligation connected with paying a
promissory note, but after the 1868 state constitution was ratified the scope changed because it
was revealed that the note was for the purchase of enslaved property. This changed the
dynamics of the case because the court questioned whether the 1868 convention had the
authority to take away property without due process of law when it said all sales of enslaved
property were void. Article sixteen, section twenty-six of the 1868 Constitution stated all monies
transferred or judgments made after January 10, 1861, were no longer legally binding. This
language was in accordance with section four of the Fourteenth Amendment barring claims for
compensation for the emancipation of enslaved property. The Supreme Court took this
opportunity to weigh on the constitutionality of this proclamation, but while it did not directly
address the Fourteenth Amendment it was a sign of attitudes the courts had about its
ratification.63
The original case filed on March 27, 1866, by McNealy’s attorney James M. Landrum
was an assumpsit for $3,000.64 A summons was then issued for Jason Gregory to appear before
the court in Abe Springs Bluff in Calhoun County. It was executed on May 1, 1866, and a copy
was filed with William Clark, Clerk of the Court, on May 15, 1866.65 The assumpsit case did not
involve specific property, but whether or not someone could sue upon a promissory note if that
person did not have legal title to it. Gregory claimed he originally made the note payable to
Judge Allen H. Bush. McNealy argued the note had been transferred to him and that Gregory
must pay him the sum of the note, which was $2,344.88.66 Gregory felt Bush was the only
person entitled to the note. McNealy charged Gregory with, “trespass on the case upon
63
James B. C. Drew, Reports of Cases Argued and Adjudged in the Supreme Court of Florida During the Years
1869, 1870, 1871, Vol. XIII (Tallahassee: Charles H. Walton, State Printer, 1871), 417-451.
64
McNealy v. Gregory. Florida State Archives, Record Group 1100, Series 49, Box. #795.
65
Ibid.
66
Galbraith and Meek, p. 579-580.
128
promises.”67 McNealy said the note was past due and since Bush transferred the note to him
Gregory needed to honor the debt. Justice James D. Westcott rendered judgment on the above
case in favor of McNealy on October 25, 1866 for $2,344.88. Gregory appealed the case to the
Supreme Court. After the Court heard arguments in this case they affirmed the judgment for
McNealy on April 14, 1869.68
After the Supreme Court ruled against Gregory’s appeal he filed a petition with the 2nd
Judicial District of Florida and Judge Pleasants Woodward White. It stated that Gregory issued
the note to Bush in order to pay for an enslaved man named Charles in March, 1860. He further
stated that the previous cases had ruled the note was legally transferred to McNealy, but he
wanted the court to place an injunction on the execution of that judgment by the Calhoun County
Sheriff. During the fall term in 1869 the court responded to Gregory’s petition and said the
judgment against Gregory was set aside because judgments for enslaved property were set aside
by the 1868 constitution. The Sheriff was then ordered to return all property taken as a result of
the original judgment. Judge White rendered a verdict on October 12, 1869.69
During the Spring Term 1870, McNealy filed a motion in Calhoun Circuit Court, to set
Judge White’s judgment aside. McNealy wanted this done because of the following reasons:
1. That it was done without notice.
2. It was done without opportunity to the Plaintiff to plead.
3. It was done without opportunity to plaintiff to offer testimony.
4. It offered plaintiff no opportunity to be heard.
5. It was made without any trial by jury or otherwise, that the 26th section of the
16th article of the Constitution of this opposed to the Constitution of the U.S.70
The court decided to hear arguments regarding McNealy’s motion on April 11, 1870. After
McNealy had his motion to set aside the judgment overruled, he decided to appeal the case to the
Florida Supreme Court. Adam McNealy and George W. McNealy pledged their bond for appeal
in the amount of $500. Allen H. Bush for McNealy, Appellant, filed the assignment of errors.71
This case, which started in 1866, was being heard because the note was meant as
payment for an enslaved man, but Florida’s constitution specifically set aside all transactions and
67
McNealy v. Gregory. Florida State Archives, Record Group 1100, Series 49, Box. #795.
Ibid.
69
Ibid.
70
Ibid.
71
Ibid.
68
129
judgments dealing with slaves. George S. Hawkins, for the Appellant, argued that article
sixteen, section twenty-six of the Florida Constitution violated article one, section ten of the U.S.
Constitution which forbad states from passing laws impairing the obligation of contracts.
Hawkins did not believe the Florida Constitutional Convention had the authority to do this. He
said when the contract was made the United States recognized the institution of slavery and the
property rights associated with it, which had not changed until the 1868 convention. According
to Hawkins, the rebellion legally occurred without repercussions, so it was as if it never
occurred. He argued that they may have been considered a conquered country at the end of the
war, but this did not change the rights of property held by the people in that territory. “The
United States government, the conquering party, has not altered or changed the rights of property
in Florida, and no other power can do so.”72 Hawkins failed to realize that all constitutions had to
be approved by the U.S. Congress and they did not reverse that clause.
Eldred James Simkins, for appellee, wrote that the government formed in Florida under
Presidential Reconstruction was deemed illegal and dissolved. As a result of the dissolution of
government the courts were unconstitutional and in order for any court to have jurisdiction it
must be constitutional. Therefore, neither the government nor the court system was continuous
in its legality. Simkins said the convention was created not only to erect a republican
government, but also to reverse the laws and proceedings of illegal courts and tribunals.
It was a revisory body, and as such it approved some laws, rejected others; it
abolished the old courts and their officers, established courts of new and different
jurisdictions; it approved certain judgments and decrees and transferred them to
the custody and control of the various courts, while others it not only refused to
ratify, but declared them set aside, and slave judgments since the year 1861 were
thus unratified and set aside.73
Simkins noted that when Florida lost their government in 1865 they were controlled by the U.S.
Congress and that body approved the Constitution of 1868 and all of its provisions including
article sixteen, section twenty-six. He argued this provision could be easily defended because if
72
73
James B. C. Drew, 422.
Ibid., p. 428.
130
the government could take enslaved property without compensation, then it had the power to
deny courts jurisdiction over certain cases.74
After hearing the arguments of both parties, Justice James D. Westcott gave the court’s
opinion. He opened by asking questions about the clause in Florida’s constitution that voided all
sales, titles, and judgments regarding slaves. He noted the clause covered the following:
1. All deeds or bills of sale given for slaves, with covenant or warranty of title or
soundness, or both.
2. All bills, bonds, notes, or other evidences of debt, given for or in
consideration of slaves which are now outstanding and unpaid.
3. All judgments and decrees rendered in any of the courts of this State since the
10th day of January, A. D. 1861, upon all deeds or bills of sale, or upon any
bond, bill, note, or other evidence of debt, based upon the sale or purchase of
slaves.
4. When money was due previous to the 10th day of January, 1861, and slaves
were given in consideration for such money.75
Article sixteen of the 1868 Constitution covered the miscellaneous needs of the state. It further
destroyed the remnants of Confederate Florida while at the same time created new judicial
districts and other lingering issues. “A decision of this question involves the consideration not
alone of this clause, but of all the clauses of the constitution having reference to like subjects
matter, viz: indebtedness accruing from the sale of this species of property and the jurisdiction of
the courts.”76 Westcott made reference to several sections of the 1868 constitution that he
believed proved that Florida, by result of said clauses, never lost its statehood because of the
retroactive clauses. The sections in question were article fifteen sections one, two, three, four,
and seven and article sixteen, section twenty-seven. Westcott argued that by voiding the
secession ordinances, Florida reverted back to her status of statehood held before the war. The
remaining sections deal with laws passed and judgments made and the constitution outlined that
those were binding as long as they were not contrary to the Constitution of the United States.77
74
Ibid,. p. 431-432.
Ibid., p. 433.
76
Ibid., p. 434.
77
Ibid.
75
131
Article sixteen, section twenty-six of the state constitution impacted cases such as Russ v
Mitchell and Westcott believed this proved the courts had some jurisdiction over the sale of
enslaved property because in cases such as Russ the property in question was enslaved property.
Westcott noted,
This judgment was rendered by a court organized in conformity with the
constitution of 1865, which constitution was formed at the instance of the
President of the United States. We deem it entirely unnecessary, in determining
this question, to enter upon any discussion of the various theories of restoration
and reconstruction which have been the source of so much political controversy.
If the theory of the President was correct, then the judgment is certainly valid; and
if this theory was wrong, and that of Congress correct, then the judgment was
equally valid. The Supreme Court of Alabama has gone as far as any judicial
tribunal in denying power to the President in the premises, and in admitting the
paramount power of Congress over this subject.78
The case alluded to was Powell v Boon. In Powell the Alabama Supreme Court set aside a
judgment rendered under Presidential Reconstruction because it was deemed an illegal
government by an act of the U.S. Congress. Westcott said the Reconstruction Acts did not
declare the governments void, but permitted them to continue as provisional governments.79
Westcott concluded that as a result of these precedents in the courts and the U.S.
Congress that the judgment rendered in 1866 was valid and therefore the court did have
jurisdiction over the case. “A final judgment is a contract. Contracts or obligations of record
consist of judgments, recognizances, and statutes staple.”80 He said the actions of the convention
were legislative and not judicial because no pleas were made or trials held. As a result of this
legislative act, article sixteen, section twenty-six was unconstitutional because it impacted only
one type of judgment and property was taken as punishment. Westcott believed this was a bill of
attainder and the convention was organized under the constraints of the U.S. Constitution. They
were not authorized to exercise judicial power because the laws of the United States did not grant
that to them. He said if the convention attempted to become a tribunal it would destroy the
system of government.
78
Ibid., p. 437.
Ibid.
80
Ibid., p. 438.
79
132
Westcott argued the clause was in conflict with the Fourteenth Amendment, but not
section four. He wrote,
Such an act at this time would be in conflict with the fourteenth amendment to the
constitution of the United States, which provides that no State shall make or
enforce any law which shall abridge the privileges or immunities of citizens of the
United States, nor shall any State deprive any person of life, liberty, or property,
without due process of law, nor to deny any person within its jurisdiction the
equal protection of the laws.81
Westcott concluded the lower court had jurisdiction and therefore the judgment was binding.
Historian Walter Manley concludes, “The McNealy decision entailed short- and long-term
consequences. It shielded former slaveowners from further economic losses resulting from
emancipation.”82
During a time when the courts were dealing with the legality of emancipation and the
reconciliation that African Americans were no longer property, the formerly enslaved and their
brethren were looking to finally be the sole benefactors of their labor. There were a numbers of
factors impacting the creation of a new labor system. First, most potential employers viewed
Africans Americans as slaves who would only work under compulsion. These stereotypes
created during the antebellum period persisted throughout Reconstruction and the latter half of
the nineteenth century. Lastly, the legal protections afforded African American workers, largely
unskilled, were limited and typically benefitted the employer. The notion that a person’s labor
was their property had not been fully realized. The prevailing view of the time was that the labor
of another only benefitted the one who purchased it. During the antebellum period only the
master could enjoy the fruits of the enslaved laborer and many were unwilling to allow that to
change.
The most daunting task of Reconstruction was the creation of a free labor economy,
because slavery was the socioeconomic system that was the heart of the agricultural wealth in the
South. Planters believed that cotton was unprofitable without slave labor. For years slavery had
robbed African Americans of the ability to make economic gains from their sweat. Planters
81
Ibid., p. 450.
Walter W. Manley II, ed., E. Cantor Brown, and Eric W. Rise. The Supreme Court of Florida and Its Predecessor
Courts, 1821 - 1917 (Gainesville: University Press of Florida, 1997), 236.
82
133
placed a property value on them and like the land that was tilled they were productive property.
Land and labor were the two essential ingredients to a productive economic life. The end of
slavery meant a separation of property and labor. Their labor became their property to do with as
they saw fit, if they were able to do so.
Land was the tangible property required for the freedmen to begin to compete in the
Southern economic sphere. Many blacks after the war wanted to obtain land because they
believed it was the key to wealth and power, it was also their right, because they, like their
fellow citizens, were in pursuit of property. Emancipation gave the freedmen control over their
labor so in order to compete they needed land. Some were able to purchase a piece of property
and start a farm, but it was difficult to do in the hostile environment of the South. Attacks upon
black landowners were not uncommon and they were often driven from their homes. The
dominant group’s control over land and labor insured their economic hegemony. If they
managed both they could dictate wages, hours, and contracts in order to increase profits. In a
capitalist economy the ambition of the individual to maximize their profits was the cornerstone
of the market and this was what made it profitable.83
Historian Kenneth Stampp noted that white farmers rose up in vigorous opposition to
freedmen landownership because they knew that they were potential economic competitors.84
Not all African Americans in Florida were barred from purchasing land. There were a few
formerly “free” blacks who were able to purchase land before emancipation through the use of
guardians. During the latter half of the antebellum period Florida law required all free blacks to
have a white guardian who was approved by the Probate Court. William Ryal Long, a free
person of color in 1863, managed to acquire property through the use of guardians during the
war because Florida law at the time prohibited free blacks from purchasing property in their own
names. Born in Georgia in 1833 Long was trained as a blacksmith. He later moved to Jefferson
County, Florida, where, after the war, he became a tax assessor, county commissioner, and state
representative.85
83
Leon Litwack, Been in the Storm So Long: The Aftermath of Slavery (New York: Vintage Books, 1979); Davis,
The Civil War and Reconstruction in Florida; Foner, Reconstruction: America's Unfinished Revolution; Richardson,
The Negro in the Reconstruction in Florida; Stampp, The Era of Reconstruction.
84
Kenneth Stampp, The Era of Reconstruction: 1865 – 1877 (New York: Alfred a. Knopf, 1966), 195-196.
85
Canter Brown, Jr. Florida’s Black Public Officials, 1867-1924 (Tuscaloosa: The University of Alabama Press,
1998), p. 106.
134
In the 1869 case Josiah T. Budd, Administrator of Jackson Kemp, Deceased, Appellant v.
William Ryal Long, Appellee, Long attempted to prevent a legal challenge to his ownership of
property. He filed a complaint in Chancery Court in 1868 against former Jefferson County
Sheriff and ex officio administrator of the Kemp estate Josiah T. Budd. It was alleged that the
current Sheriff, Daniel L. Oakley, informed Long he was seizing the property purchased on
October 25, 1863, for payment of a debt owed by Valentine Clem. Long had been able to
purchase the land from Clem through his guardian Charles A. Bradley who conveyed the deed to
Long on December 14, 1863. Long had remained in possession until Sheriff Oakley attempted
to execute a judgment against the property on November 13, 1868. Oakley claimed their was a
lien against Clem’s property, “by virtue of a writ of attachment issued October 22, 1863 in favor
of Kemp against Clem which returned executed “by levying upon the following property, to wit,
one half acre.”86
These proceedings were initiated because Jackson Kemp, plaintiff, sued Valentine Clem
in the Spring Term 1863 in Jefferson Circuit Court. Kemp’s attorney C. G. Fife filed a
declaration outlining the charges on Kemp’s behalf. He took an action of assumpsit against
Clem for $1,000 for goods and chattels sold to Clem. Kemp claimed to have made several
attempts to get Clem to pay his debt to him, but Clem failed to do so. The record reflected that
Kemp appeared before the Clerk of the Court to present his case on October 22, 1863. He stated
that Clem was indebted to him for $729.73 and believed Clem tried to sell the property in order
to avoid Kemp from levying a judgment against it. The same day he made his complaint, Kemp
along with John K. Williams and John Moore as security guarantees filed a $1,500 bond in order
to sue Clem for the debt. If they lost the case the bond would be paid to Clem for the costs of the
proceedings.87
The Clerk of the Court, Thomas Simmons, then issued a writ of attachment. The writ
sent to the Coroner of Jefferson County said,
We command you to attach and take into your custody so much of the slaves,
lands, and tenements, goods, and chattels of Valentine Clem, as will be sufficient
to satisfy Jackson Kemp in the sum of seven hundred & twenty-nine & 73/100
86
87
Budd v. Long. Florida State Archives, Record Group 1100, Series 49, Box #833.
Ibid.
135
dollars, beside costs and that you make return of this writ on or before the second
Monday in November next.88
The writ was returned and it stated the Coroner S. Carroll levied upon Clem’s property to satisfy
the writ. Kemp then went before Simmons and said he did not believe Clem had enough
property to levy against to satisfy the debt. Kemp then swore out a writ of garnishment against
Charles A. Bradley. He was ordered to come before the court to answer questions about whether
he was indebted to Clem and if so could he pay that debt so Kemp could obtain his payment. If
Bradley was not indebted to Clem the court wanted to know if he knew of anyone who was in
order to obtain payment.89
The case finally went to trial in the fall term in 1864 and Judge J. Wayles Baker of the
Middle Circuit presided. Kemp was now seeking $932 in damages and costs of the suit. Bradley
went before the court with Clem’s attorney, Fife, and said he had a certificate of deposit for said
sum and would give the deposit to whomever the court directed him to. Bradley stated,
That at the time of the service of this writ he had in his possession nine hundred
dollars in Confederate money, and by the request of the defendant and consent of
plaintiff’s attorney refunded the money in four percent certificates or Bond of
Confederate States which certificate of deposits he is not ready to turn over.90
Judge Baker ordered him to give it to Budd.
The above case impacted Long’s property rights and he filed a complaint in Jefferson
County to stop the proceedings. Judge W. Archer Cocke, 2nd Judicial Circuit of Florida, took
pleas for this case in Monticello. In the complaint Long said due to the laws of Florida in 1863
he had Bradley purchase one and a half acres in Monticello. He, “said the deed was made a
matter of public record on the 14th day of December A.D. 1863.”91 Long said the title was vested
in him because Bradley had renounced all claims to the title and turned it over to him using a
quick claim deed. Copies of all applicable paperwork were provided to prove his claim. Long
said this injunction and potential sale depreciated the value of property to almost nothing. The
November 1864 decision in favor of Kemp did not mention his property. He said the attachment
executed on October 22, 1863, by the Jefferson County Coroner was a pretend attachment
88
Ibid.
Ibid.
90
Ibid.
91
Ibid.
89
136
because it was executed on an affidavit and was never officially filed with the court. The Clerk
of the Court failed to sign the affidavit and place his official seal upon it. The copy of the record
as a result of the Writ of Certiorari supported this claim. Long claimed that there was nothing in
the original record to prove the attachment was connected to the original case and judgment. He
said there was not announcement for the attachment nor any other notice given that it was being
executed beyond the Coroner’s report that it had been executed.
Long later pointed out the inconsistencies of the monetary declarations for damages in
the assumpsit. One document declared $1,000 and another declared $729.73. Long noted that
during the garnishment proceedings the monies for the lands was outlined in the answer of the
plaintiff’s attorney. He wrote, “that plaintiff agreed that the purchase money of the said lands in
the hands of the said Bradley should be funded in four percent certificates or Bonds of the socalled Confederate states; thus the sale and conveyance was fully recognized by both parties to
the said suit.”92 There was no equity in offering the same lands for sale to pay the same debt
twice. During the garnishment hearings the court recognized the certificates were in Bradley’s
possession and were turned over to Budd for payment of said debt. Judge Cocke issued a
summons for Budd and Oakley to answer the questions in the complaint. The Clerk of the Court
who filed this was Samuel Pasco. Long provided records showing the Valentine Clem’s wife,
Jane, relinquished all claims and rights to the property on October 24, 1863. Long paid Bradley
ten dollars to purchase the land for him. He not only purchased property from Clem, but Stephen
Ellenwood and John E. Wirick. All lands were purchased using Long’s guardian Bradley. All
deeds were filed in the county deed book. It appears these parcels were adjoining and Long was
trying accumulate land through the purchase of different parcels of land.93
C. G. Fife responded to the complaint on behalf of his clients Oakley and Budd. Fife said
Simmons’s name not appearing on the attachment affidavit was, “merely a clerical omission as
will appear by reference,” in his affidavit.94 Fife said Long was, “personally informed a short
time after his pretended purchase of said land that said lot had been levied upon by attachment
and thereupon and complainant proceeded as best he could to secure himself from loss.”95 The
certificates handed over by Bradley to Budd were to be held until further notice of the court as
92
Ibid.
Ibid.
94
Ibid.
95
Ibid.
93
137
stipulated by Confederate law, but in the meantime the Confederate government had been
destroyed by the Union. As a result the certificates became worthless to the holder. Fife said
Clem did receive personal notice that an attachment had been filed against his property and
therefore it was unnecessary to publish the filing in the local paper. Fife said Clem was served
with a writ of summons in order to inform him of the levy. They left a copy of the summons, “at
the house of said Clem with a white person of lawful age by S. Carroll, Coroner (the said Clem
being at the time, Sheriff of Jefferson County) on the 2nd day of April 1863.”96 Clem’s attorney
John M. Smith answered the summons. Fife concluded that as a result of these events the case
should be dismissed. Judge Cocke rendered the final decree on January 28, 1869, in the 2nd
Judicial Circuit of Florida, Jefferson Circuit Court in Chancery. The court adjudged there was
not a legal lien against Long’s property and that all action against Long’s land should cease.
Budd filed his appeal on March 20, 1869.97
The Supreme Court heard the case with Alfred L. Woodward representing Budd and
Robert B. Hilton and Samuel Pasco representing Long. Woodward argued, “A judgment may be
impeached in a court of equity for fraud, never for irregularity, the correction of error being the
exclusive province of a court of law.”98 The appearance of Long’s vendor by attorney was a
waiver of irregularity in the action at common law. Long’s vendor, the person who sold him the
land, was Valentine Clem. Woodward argued the purchase of the lots in question with some
litigation pending did not infect the sale with fraudulent intentions, so fraud was not an issue.
“In a case of legal rights, the doctrine of caveat emptor,” buyer beware, “applies, though
equitable rights may be lost by sale to a bona fide purchaser without notice.”99 Woodward said
the levy could be applied to Long’s property because he could have voided the contract of sale
with Clem in a court of equity as a result of a bad title. He wrote, “As a general rule, the validity
of a sale property is protected, unless the proceedings under which it was made are absolutely
void.”100 Woodward said, Long purchased the property with full knowledge that there was a
cloud over the title that could impact his ownership of said property. According to Woodward,
96
Ibid.
Ibid.
98
James B. C. Drew, Reports of Cases Argued and Adjudged in the Supreme Court of Florida During the Years
1869, 1870, 1871, Vol. XIII (Tallahassee: Charles H. Walton, State Printer, 1871), 289.
99
Ibid.
100
Ibid., p. 291.
97
138
Long understood if a judgment was passed against the property as a result of Clem’s debt he
could lose the property.101
Hilton said the attachment in question was not properly processed by the Clerk of the
Court, therefore there was not a cloud over the title and Long had rightful ownership of the
property. Pasco argued the lawsuit Kemp v. Clem abated with the death of Kemp, the plaintiff.
He did not believe the case had been re-filed by his executors after his death and he argued Budd
admitted as much in his answer to the bill of complaint. Budd said the suit was an attachment to
another suit and therefore it was binding. Pasco argued this was not applicable because the
original case was abated and the Clerk of the Court had not sworn to Budd’s affidavit. For this
reason Pasco argued the attachment was void. Budd tried to file the affidavit ex parte, but failed
to get permission to do so and therefore, in Pasco’s estimation, made a fatal mistake. Pasco
concluded Budd no longer had any claim to Clem’s property and therefore the title for Long’s
purchase was clear of any liens.102
Chief Justice Edwin Randall wrote the majority opinion for the court. He stated, Long
owned the property, “until the 13th November, 1868, when Oakley, sheriff of Jefferson county,
levied upon them under an execution issued in favor of Budd, as administrator of Kemp, against
Clem, upon a judgment rendered November 14, 1864, for $932 and costs.”103 Long said this
judgment was void due to “sundry irregularities in the record.”104 Long bought the property
through his guardian, Bradley, but Randall said he could not justify the subjection of property
legally purchased by a free person of color. Randall wrote,
Is it true that the money earned by a free colored person could purchase nothing?
that such money was not a good consideration for a conveyance to him or to his
use, or that the conveyance was void? I cannot consent to this, nor do I find a hint
toward it in the reported decisions of our courts. The only importance, in my
opinion, to be attached to the statutes in question, is that they treat this class of
persons as under similar disabilities with infants, and these laws are rather
101
Ibid., p. 293.
Ibid., p. 297.
103
Ibid., p. 305.
104
Ibid.
102
139
designed for their protection, than to be used as traps and snares for despoiling
them.105
The decree from the Circuit Court was affirmed and Long’s injunction against the sale of the
land was affirmed. Both parties were required to pay half of the court costs. From the evidence
presented in this case it was clear that class did play a role in whether or not the court was
willing to protect land purchases. Long was also able to use the courts to protect his property
rights. This was a significant step for the Civil Rights Movement that previously had to deal
with a reduction of rights. Unfortunately, the majority of potential African American
landowners were not skilled workers such as Long, therefore had to look to the Freedmen’s
Bureau for assistance.
Shortly after the war the intent of the Federal government was to restore the economy of
the South and to return the former slaves to the plantation to harvest the crops. Shofner noted
that Bureau policy in Florida was based on the Southerners’ view of the freedmen as an
agricultural labor force. Even though the Bureau wanted African Americans to return to the
plantation they also tried to help them acquire land through the Homestead Act of 1866.
Implementation proved difficult because of the obstinate white population. In 1870, Harrison
Drew wrote Secretary of State, Jonathan Gibbs that, “they [Democrats] told them [blacks] that
the lands in this part of Florida [Dade County] belonged to them [Democrats] and was not
subject to homestead entry.” Drew later checked with the land office in Tallahassee and found
that the land was indeed available for homesteading.106 In 1866, homesteads were the central
idea of a report by U.S. Senator from Florida, Thomas Osborn. He wanted to buy land in
southern Florida and make it available to freedmen as homesteads. Osborn felt that this was an
opportunity for the Bureau to help the freedmen obtain economic independence.107 All parties
involved knew that land was important. The Freedmen’s Bureau in Florida helped secure 2,012
homesteads in Florida by 1867.108
The bulk of the issues impacting African American laborers tended to focus on unskilled
agricultural workers. The Bureau tended to be their only means of recourse when a dispute
105
Ibid.
Correspondence of Secretary of State – Jonathan C. Gibbs – 1868-1873: Florida State Archives, Box 4, Folder
4. Letter Dated June 26, 1870 - from Harrison W. Drew from Miami (Dade).
107
F. Bruce Rosen, “A Plan to Homestead Freedmen in Florida in 1866” Florida Historical Quarterly, Volume 43,
Issue 4, (April, 1965): 380 – 385.
108
Richardson, The Negro in Reconstruction of Florida, 73.
106
140
occurred between themselves and their employer. African Americans who were able to learn a
skill while enslaved had a better opportunity to not only earn higher wages, but find access to the
court system. This was evident in the case John W. Price and Wife, Administrator, &c., et. al.,
Appellants v. Henry Hicks, Appellee. This 1874 case dealt with a partnership formed in 1863
between Hicks and Henry B. Fitts while Hicks was owned by Joseph H. Alston. After
emancipation, Hicks had a distinguished political career as a vice president of the Democratic
convention in Jacksonville in 1872 and as a councilman in Tallahassee in 1875.109 He was
respected in the community and after his death on January 11, 1876, his obituary read, “HENRY
HICKS, a colored mechanic, well known to the community of over 30 years (1846) died near the
Depot of pneumonia. Ran for Legislature in 1874 with a good showing (independent ticket) and
was elected to the City Council in 1875. Peace to his ashes.”110
Hicks initiated the complaint in 1869 against John W. Price, administrator, and Elizabeth
O. Price, administratrix of Henry B. Fitts’s estate and infant children. Hicks was hired to work
as a blacksmith in Tallahassee and Alston collected the money earned. When Hicks was
emancipated he renewed the partnership with Fitts in January 1866 until Fitts’s death in July
1866. When Hicks was hired out in 1863, his owner Alston was to be paid $600 out of Hicks’s
earnings. During the original partnership two lots were purchased in Tallahassee and Fitts took
the title and placed it under his wife’s name, Elizabeth O. Fitts. Hicks stated, “That Fitts
collected during the copartnership in 1866 the sum of $3,583, clear profits, no part of which he
divided with” Hicks.111 He also claimed during the partnership in 1863, two mules and a horse
were purchased with partnership funds and later sold by Fitts who kept the proceeds. Hicks also
alleged a levy was placed upon Fitts’s property and his widow along with her new husband, John
W. Price, tried to pay the levy with partnership funds.112 He argued that co-partnership funds
109
Canter Brown, Jr., Florida’s Black Public Officials, 1867-1924 (Tuscaloosa: The University of Alabama Press,
1998), 167; Canter Brown, Jr., Ossian Bingley Hart: Florida’s Loyalist Reconstruction Governor (Baton Rogue:
Louisiana State University Press, 1997), 264.
110
Julianne Hare, Historic Frenchtown: Heart and Heritage in Tallahassee (Charleston: The History Press, 2006),
66.
111
Cocke, p. 567.
112
Price appears to be familiar with the affairs of previously married women. In 1858 he was married to Sabina
Price, formerly married to Cornelius DuPont, and she refused to pay a mortgaged levied by her husband DuPont.
He used her enslaved property to secure the mortgage and when he did not pay the mortgage it was foreclosed upon.
She did now wish to pay his debt, while it was incurred during their marriage and Price had possession of said
enslaved property named John. The Supreme Court found for the appellant. (See Price and Wife v Sanchez 8 Fla.
136 Florida Reports)
141
were due to him from the estate or property purchased for said blacksmith business. Price
objected to Hicks’s claims and it was overruled.
Elizabeth Price responded by stating Hicks was a hired servant in 1863 and denied any
partnership. She argued that property purchased was done with separate funds provided by her.
The account books of the business were turned over to the referee of the chancery court, Jesse
Talbot Bernard, and he determined the account books were so badly kept that it was, “impossible
to obtain any correct idea of the status of the parties.”113 He filed his report on February 12,
1872.114 Fitts’s administrators objected to twenty items in the report. On July 7, 1873, the court
overruled all exceptions, except thirteen and fifteen, with an interlocutory order. The specific
exceptions were not enumerated in the record. The report was sent back to Bernard for further
investigation. He ultimately determined that Hicks was due $2,929.31 as of January 6, 1872.
Bernard filed his revised report on November 18, 1873. No exceptions were filed against this
report. 115
The court ruled that Price and his wife as administrators owed Hicks $3,185.42 for his
share of the partnership’s property and profits. The difference in the judgment amount and the
previous amount was the recalculation from 1866 at 8% instead of 6%. “It being duly
established from the testimony that the land, house and lot, horse, and mules and wagon, were
bought with the partnership property, though titles were taken in the name of Mrs. Fitts, yet they
were not purchased with her funds.” The court found for Hicks on February 18, 1874, and the
defendants filed an appeal.116
When the case went to the Supreme Court, the Appellants had new counsel from the law
firm Papy and Raney. Hicks, appellee, hired the services of Robert B. Hilton. The appellants’
attorney argued the judgment was erroneous because it was contrary to law. Papy and Raney did
not believe Hicks was entitled to anything more than a portion of the property in question and
did not feel it was necessary to sell the entire property in order to settle the debt owed to Hicks.
They argued Hicks was not a creditor and therefore it was not necessary to sell the entire
property to satisfy a debt to him. Papy and Raney also said the property was in Elizabeth Price’s
113
Cocke, p. 568.
Price v. Hicks. Florida State Archives, Record Group 1100, Series 49, Box #847. Bernard served on Florida’s
Board of Education and was the mayor of Tallahassee in 1876. He was also a Leon County Judge from 1869-1873.
He was a Democrat who served in the Confederate Army.
115
Cocke, p. 569.
116
Ibid.
114
142
name, and therefore it could not be levied upon for this debt. The last salvo in this argument was
that they deemed, “Hicks was an incompetent witness, and his testimony in regard to transactions
and communications between himself and H.B. Fitts should be disregarded, because Hicks is a
party to the action and Fitts was deceased at the time Hicks’ testimony was taken.”117
Hilton in response stated that the defendant did not object to the referee’s report in the
original trial. “When no exceptions are filed to the report of the master, no exceptions can be
taken to it in the Supreme Court.”118 Hilton argued the partnership made in 1863 with Hicks’s
owner was valid in the sense that Hicks had legally entered into a contract with the consent of his
master, therefore all property obtained with funds created by the partnership were legally his to
claim. Hilton cited Mississippi case Leiper v Hoffman (1853) to support continuum of the
contract from slavery to freedom. Hilton said Leiper, “was between the emancipated slave and a
party who, with notice of the trust, had taken a deed of the property from the person in whom the
title was vested for the slave’s benefit.”119 Hilton stated this established a trust and that the
trustee had a legal claim resulting from the proceeds of that trust.
Chief Justice Randall wrote the court’s opinion on the matter. He overruled Hilton’s
earlier position, “When no exceptions are filed to the report of the master, no exceptions can be
taken to it in the Supreme Court.”120 He said the, “rule can hardly be made to apply here.”121
Randall said,
This was a reference under the provisions of the Code, not for the purposes of a
trial by the referee, but for the information of the court, to take and state an
account of the partnership transactions, and of the partnership property, and what
has become of it, what were the debts and creditors of the copartnership, what real
and personal property was purchased by either of the copartners with
copartnership funds, and ‘to take testimony and report the same in writing upon
all facts and issues in the case.’122
He ruled that the numerous conflicts found in the record and how the previous trial determined
who owned what property made it inappropriate to pass a decree. Randall overruled the previous
117
Ibid., p. 573.
Ibid., p. 575.
119
Ibid., p. 576.
120
Ibid., p. 575.
121
Ibid., p. 576.
122
Ibid., p. 576-577.
118
143
decree and ordered that new pleas could be entered into the case in the lower court. While Hicks
may not have been able to recover his damages due to the appeal he was at least able to employ
his right to trial to the highest appellate court in Florida, which could not be said for many
unskilled laborers. Similar to the Long case, Hicks provided evidence that African Americans
could fight for their property rights in the courts, but the Civil Rights Movement was far from
accomplishing its goals.
While African Americans were fighting for their civil rights in the courtroom and the
halls of the legislature they had to contend with constant intimidation. When a people’s civil
rights are withheld by the State that group is at the mercy of their fellow citizens. They are not
equally protected by civil authorities and as a result must live in a state of constant terror that
their actions may result in their violent death. Emancipation ended African American
enslavement, but it did not provide any protection of their freedom. They may have no longer
been enslaved, but they were not completely free either. Reconstruction provided a new venue
in which the discourse over the definition of citizenship was to take place. Whites clearly
wanted to create a status of second-class citizenship for African Americans, but blacks were
unwilling to accept this without a response. They were able to vote and hold office, which
allowed them to actively participate in the administration of their civil rights. In response to this
many whites decided to use violent intimidation to maintain the status of second-class citizenship
and since African Americans were no longer property whites were less reluctant to murder them.
Joe M. Richardson wrote that, “Many Floridians did not place a high value on the life of a
freedman.”123 Historian Allen W. Trelease concluded that, “Without the protection that their
property value as slaves had once conferred, they became easier and safer targets for the pent-up
fear [and] hatred . . . of frustrated whites.”124 If blacks were not property they became an easy
target for unspeakable acts of cruelty and murder. The discourse over citizenship and placement
in Florida’s society took a violent turn during Reconstruction.
In 1871 the federal government created a congressional committee to determine the
conditions of the former Confederate states. The Committee held hearings in Jacksonville and
the testimony revealed the plight of freedmen. The testimony of Samuel Tutson was an example
of white retaliation against freedmen who attempted to secure a portion of the resources needed
123
Richardson, The Negro in the Reconstruction of Florida: 1865 – 1877, 162.
Allen W. Trelease, White Terror: The Ku Klux Klan Conspiracy and Southern Reconstruction (New York:
Harper and Row, 1971), xliii.
124
144
for economic stability. Tutson was born in Virginia and later moved to Florida and resided in
Clay County on the property he owned near the Number Eleven Pond. One night while he was
asleep a group of nine men rushed into his house and attacked him, his wife, and family. Tutson
said someone tried to pull him away by his arm, but they were unable to, so they pulled his feet
out from under him. They then “flung” him across a cellar-door and near broke his neck. Tutson
said that five of the men were attending to him while the other four were attacking his wife.
After taking him outside, he said, they, “dragged me over the fence and . . . took me away down
the hill on the side of a hammock” where his attackers mercilessly beat him and his wife.125
Hannah Tutson was born in Gadsden County, Florida, and at the time of the incident
resided with her husband. When the men entered their home they forcefully pulled her from the
bed, and jerked away the baby in her arms. Fortunately the baby was not killed by the fall. The
men then forced her out of the house and over her fence like “a dumb beast.” Her arms were tied
around a pine tree and the men whipped her with saddle-girths. She did not know how many
times she was whipped, but recalled that, “they whipped me from the crown of my head to the
soles of my feet. I was just raw. The blood oozed out through my frock all around my waist,
clean through.” Unlike her husband, Mrs. Tutson had to deal with another form of aggression,
rape. When one of the men forcibly tried to have sex with her, she said he, “would get his knees
between my legs and say, God Damn you, open your legs.” He sat down there and said, “Old
lady, if you don’t let me have to do with you, I will kill you.” She said, “No; do just what you
are going to do.” Mrs. Tutson survived the night with only a beating, but there was a fear that
she would not only be whipped, but brutalized sexually as well.126
Why did these horrific events occur? When Samuel Tutson asked the intruders why they
were attacking him, one told him that he had taken down his fences and allowed other people’s
stock on to his land and killed them. Tutson denied this. Some of the others said that he was on
the land of another man and that he should leave immediately. Tutson knew that the land was
his because he had produced two crops there and had a third in the ground at the time of the
attack. He had been warned to leave the area, but remained and men he believed were in the
Klan came to remove him from his property. Not only did they beat Tutson and his wife, they
125
United States Congress, House Report #22, pt. 13, 42nd Congress, 2d Sess., Report of the Joint Select Committee
on the Condition of Affairs in the Late Insurrectionary States: Misc. and Florida. (Washington: Government
Printing Office; 1872). 54; Richardson, 173.
126
Ibid., p. 59-60.
145
tore down his house as well. The men were arrested but were never convicted of any crime and
to add insult to injury Mrs. Tutson was jailed for filing a false report. A friend of theirs had to
pawn an ox and a cart to get her out of jail. The Tutsons left the land that was theirs to work.
These white attackers violently impeded their right to the pursuit of property and infringed on
their rights and privileges. At the time of his testimony Tutson was trying to sell the parcel.127
The Tutson attack is evidence that while African Americans such as Long and Hicks were able to
seek protection of their property rights in the courts other African Americans were having their
rights violated by fellow citizens. Tutson’s attackers were not brought to justice and the lack of a
response by the state proved the state government was unwilling to protect the rights of its
African American citizens.
Charles H. Pearce provided other examples of violence against black landowners.
Pearce, a black leader in touch with the plight of the freedmen, told the congressional committee
that many of the ministers from around the state had written him of the violence committed
against blacks in their parishes. He said, “They have been whipped and driven off their places.”
Some had been forced to leave comfortable homes, and others were shot and some were
killed.128 Ministers wrote Pearce requesting that he inform Governor Harrison Reed of the
problems that blacks were dealing with, and ask for his assistance. Pearce noted that Reed said
he lacked the power to help with the situation. Florida had no organized militia and Reed knew
he could not organize blacks into a militia without fear of white reprisal. The Governor tried to
bring arms into the state, but unknown persons destroyed the guns that he purchased himself en
route to Tallahassee from Jacksonville.129
In 1871, Pearce discussed these issues at the African Methodist Episcopal Church
(A.M.E.) convention in Florida and the convention body resolved to take action in favor of the
freedmen. They resolved to move blacks out of Jackson County where violence had become a
daily occurrence and find them homes elsewhere. This proved difficult because, as Pearce said,
large property owners, especially in Leon County, were unwilling to sell. The possible violent
reaction of whites to black land ownership made it difficult to find any sort of tangible property.
Despite this difficulty, the resolution expressed the desire of some freedmen to unite and work
together to survive the onslaught of violence. The A.M.E. convention also decided to launch an
127
Ibid.
Ibid., p. 166-167.
129
Ibid.
128
146
economic boycott and resolved not to support “steamers, Railroad Companies, merchants, and
other companies who treat our people so disgracefully from sheer hatred, malice, and
prejudice.”130 Pearce’s testimony was another example of how African Americans were willing
to organize to protect their rights. He proposed boycotts of companies that discriminated against
them. African Americans were not waiting for anyone to hand them their rights. They fought
everyday for the same rights enjoyed by white citizens.
After Congressional Reconstruction politics became a polarizing issue. Conservative
politicians claimed that African Americans were incapable of voting, that they were inferior
which meant that they were not able to make decisions without white assistance. According to
the testimony given to the Congressional Committee in Jacksonville after 1868 most white
violence against blacks was politically inspired. Whites did not want blacks to have political
power. The Constitution of 1865 did not afford the right of suffrage to black males. White fear
of black suffrage was apparent since the end of the war.
Some thought that if they protected the
property and liberty rights of the freedmen that the federal government would not force them to
accept black suffrage.131 How could the former slaves be free without the ability to protect that
freedom by voting? The only chance blacks had of maintaining their freedom was to be active in
politics and that opportunity came three years after the war ended. The election of 1868 was the
first opportunity for African Americans to become directly involved in the political process.
Freedmen joined the Republican Party because it was the party of emancipation.
Democrats claimed that Republicans were out to fleece the South and destroy Southern society.
Black political power was a threat to white supremacy, and the battle cry became no “Negro
Rule.” White fear of black political power and economic independence created tension in the
South during Reconstruction. The threat of a “Negro Revolution” was reminiscent of the
insurrection fears that plagued Southerners during the antebellum period and the Civil War.
Now that the wolf’s ears had been released the former beneficiaries of slavery feared a race war,
but this was not the problem entirely.132 Many believed that a race war could erupt if blacks
were not controlled, but an actual physical war was only a part of the notion of insurrection. The
entrance of the freedmen into the political realm was viewed as another form of insurrection.
130
Ibid., p. 170-171.
Proceedings of the Constitutional Convention, 1865, p. 10
132
Thomas Jefferson characterized slavery as holding a wolf’s ears. He said we have the wolf by its ears and we can
neither hold him nor safely let him go.
131
147
The end result of it would be the loss of control over society; the fear that the super-ordinate
group would become the subordinate. The control of government was significant, because that
controlled society. Those who made the laws made the society.
During Reconstruction, Republican and black were synonymous to many Southerners.
Even before the war, Republicans were often called the “Black Republicans” because of their
stance on slavery. Black and white Republicans alike became the targets of conservative white
violence. Richard W. Cone, a white Republican, had lived and worked in Jacksonville as a
carpenter since 1858. Cone testified in 1871 that he had been dragged out of his house and
placed over a log and whipped with a leather strap. The mob told Cone that he was being beaten
because he supported black suffrage. His wife, Florida, said that, “his back was all raw; the skin
was cut in . . . one or two places, but it was bruised from one end to the other.”133 Marcellus
Stearns, from Quincy, testified that in the 1870 election Democrats showed up at the polls armed
and violence almost erupted. He stated that the former President of the Florida State Senate,
A.K. Allison, urged people in the crowd to shoot Stearns. Whether or not Allison tried to incite
Stearns’ murder, the sentiment that Republicans must be eliminated especially if they were seen
as Radical was common. Stearns believed that Democrats were not kept from voting at the
election. He also mentioned that the polls were generally segregated.134
“In Jackson County, Negroes were shot down, beaten, or threatened for expressing
political opinions.”135 Lawlessness forced Emanuel Fortune to leave Jackson County and his
crime was that he was a African American man involved in politics. He participated in the
Constitutional Convention and had been a member of the legislature in 1868. Fortune testified
that he got into arguments over blacks’ right to vote and stated that whites said, “The damned
republican party has put niggers to rule us and we will not suffer it; Intelligence shall rule the
country instead of the majority; and all such as that. They always said that this was a ‘white
man’s government’, and that the colored men had no right that white men were bound to
respect.”136 When asked about the purpose of the “organization” Fortune stated that, “the object
of it is to kill out the leading men of the Republican Party. They have never attacked anyone but
those who have been somewhat prominent in the party, men who have taken prominent
133
House Report #22, pt. 13, p. 73.
Ibid., p. 65-83.
135
Ralph Peek “Lawlessness in Florida,” Florida Historical Quarterly, Vol. 40, Issue 2, (October, 1961): 171.
136
House Report #22, pt. 13, p. 94.
134
148
stands.”137 The Klan threatened Fortune personally. He said, “in fact I got, indirectly,
information very often that I would be missing some day and no one would know where I
was.”138 Fortune moved to Jacksonville where he worked as a carpenter.
Jonathan C. Gibbs served as Secretary of State, 1868 – 1873, under the Reed
administration, which was the highest position held by any African American in state
government. Gibbs came to Florida in 1867 in order to establish Presbyterian churches.139 He
gave the Committee on the Condition of Affairs in the Late Insurrectionary States a letter dated
February 23, 1871, written to him by J. Q. Dickinson, before he was killed. The letter read,
“Practically the civil rights of the colored man are subordinate to those of the white man. The
press has been and is disgustingly uncandid, abusive of everything republican, and at times
openly seditious. Human life is counted cheap when passion or politics call for its sacrifice,”
Dickinson continued, “and the frequency and cold blood which have characterized our murders
had not been to me so fearful a fact as the carelessness with which the public learn a new
outrage.” The letter ended with Dickinson writing, “To say that the colored man here have
through my agency, uniformly obtained even-handed justice, would be a lie!” Gibbs believed
that although political strife was a problem in counties such as Jackson, “colored people” in
Florida were generally better off than in other Southern states. Gibbs also stated that he,
“believed there is more liberty, more personal freedom for them here [Florida]; that they are
doing better, notwithstanding there has been that slaughter.”140
White violence against black Republicans occurred regularly. “Six or seven colored
Republicans had been murdered in Columbia County during the eighteen months following the
fall of 1868, and the conditions under which these killings occurred struck fear into the hearts of
Negroes.”141 Blacks were not the only political participants that feared attack. White
Republicans were also targets. W. J. Purman was a former Freedmen’s Bureau agent and labeled
Radical in the Republican Party. He lived in Jackson County and became an object of
aggression. Like Fortune, Purman ended up leaving the area due to an attack, but his story was
more violent than Fortune’s. He noted that at the time of his testimony that he was not living in
137
Ibid., p. 95.
Ibid., p. 94.
139
For more on Jonathan C. Gibbs see Williams, Learotha, Jr. "A Wider Field of Usefulness: The Life and Times of
Jonathan Clarkson Gibbs, 1828-1874” (Unpublished Dissertation, Florida State University, 2003).
140
Ibid., p. 222-223.
141
Peek, “Lawlessness in Florida” p. 166
138
149
Marianna. Purman said, “I am unwillingly away from there because I am not permitted to live
there, in consequence of the murderous political opposition to me; my life would not be safe
there for one hour; that is a sentiment publicly expressed by the leading men there.” In February
1869, Purman was shot after he and Dr. John L. Finlayson left a concert at night. Purman was
hit in the neck, but the bullet killed Finlayson. This was one of several attacks that occurred in
Jackson County. The events that took place there were so numerous that it was called the
Jackson County War. 142
Democrats blamed Radical Republican political leaders like Purman for the violence in
the area. White Circuit Court Judge Thomas T. Long stated,
The governor (Reed) said that if it had not been for . . . Mr. Purman the condition
of society there (Jackson County) would not be as it is now. We all know that
colored men are prejudiced and ignorant, but generally willing to do right. They
are led astray by bad and wicked men.143
Men such as Long believed that some Republicans were not pitting blacks against all whites, but
Southern whites. Long was a Republican, but was considered a moderate as opposed to Purman
who was seen as a Radical. He believed that the Radicals’ political aspirations were the reason
for poor race relations. The charge that Radicals incited blacks against Southern whites was used
by Democrats as well as some Republicans, but the Democrats went one step further and used
violence to correct this “wrong.” Some Democrats created clubs like the Young Men’s
Democratic Club and the Ku Klux Klan.
Joseph John Williams, a thirty-nine year old planter from North Carolina, was the head of
the Young Men’s Democratic Club of Leon County. According to him the Democratic Party
needed to organize because black voters outnumbered whites seven to one. He said, “These odds
required the formation of a club.”144 Williams’ assumption was inaccurate.145 He also believed
that fraud was being committed at the polls and it was their job to make sure that this did not
happen. Another job of this “political” club was to keep people from inciting riots among the
black voters. The Young Men’s Democratic Club came to the polls armed reputedly in order to
142
House Report #22, pt. 13, p. 144.
Ibid., p. 205. Circuit Court Judge for Baker, Bradford, Clay, St. Johns, Nassau, and Duval counties.
144
Ibid., p. 227
145
According to the 1870 Census the black population in Leon County only outnumbered whites approximately 4.5
to 1. The evidence is not substantial enough to warrant the creation of the Young Men’s Democratic Club for
political reasons only.
143
150
maintain peace, but in reality to intimidate black voters. Frank Myers, also a member of the club
in Alachua County, testified that there was a “secret service club” within the general club. When
asked what the secret service club did Myers replied, “to use force or violence to prevent certain
parties from exerting too great an influence with the colored population in that county, to be
prepared to do it effectually and secretly.”146 It was their job to exert control over the black
voter. The Young Men’s Democratic Club is an excellent example of the curtailment of civil
rights by private citizens due to prejudice.
White violence perpetuated upon blacks was doubly despicable, because it was rarely
punished. Convicting a white for crimes against a freedman was almost nonexistent during
Reconstruction. George Bentley concluded that, “Racial discrimination in the courts was
accompanied in some localities by unwillingness or inability of the police authorities to protect
colored people from violence.”147 An example of this was the case of Mary Jane Baker in
Jackson County. She swore out a warrant against William Parker, a white man who allegedly
beat her. The Justice of the Peace refused to act until she paid a six-dollar fee, which was an
amount equal to a month’s wages. Baker paid the fee and Parker was arrested. He was tried and
fined five dollars.148 Baker gave over what she had earned in a month and the man she sought
justice against was fined less money than she paid.
It was difficult to protect blacks against nightriders. Since many whites throughout
Florida sympathized with them it was a challenge to find anyone to testify against them. R. W.
Cone said that, “This Ku-Klux business, or regulating business, whatever they call it, has been
going on here ever since the war, and even before the war, yet I have never seen anybody get
justice in the State Courts against them; they always bring up evidence to clear themselves.”149
David Montgomery, the Sheriff from Madison County declared, “that if a white man kills a
colored man in any of the counties of this state you cannot convict him.” L. G. Dennis of
Gainesville believed that prejudice prevented the laws from being fairly administered. Terror
and violence against blacks and Republicans had become the weapon of choice and law
enforcement either could not or would not work effectively to curb it.150
146
Ibid., p. 256.
George Bentley, A History of the Freemen’s Bureau (Philadelphia: University of Pennsylvania Press, 1955),
158.
148
Jerrell H. Shofner, Jackson County, Florida – A History, 262.
149
House Report #22, pt. 13, p. 66-67.
150
Ibid., p. 125.
147
151
During Reconstruction African Americans faced daunting obstacles that made the
progression of the Civil Rights Movement difficult to achieve. With the conclusion of the war
and emancipation the Republic once again had an opportunity to live up to its egalitarian
principles, but failed to achieve them because of racist and paternalistic attitudes. The intrigue of
Reconstruction was its potential revolutionary character. An enslaved and oppressed population
saw an opportunity to voice their concerns equally in the political realm. The hope was they
could earn their own wealth and be protected by the same laws and rights as their fellow
Americans. The American identity was challenged by this notion because most whites refused to
see African Americans as anything more than African and, according to Justice Taney, was
equated with non-citizenship. The appellate courts also had this myopic view because they
continued to deal with blacks as property and not as citizens. They were unwilling to allow the
loss of real property value as a result of constitutional amendments. For African Americans this
created a new set of problems they had to deal with because the courts were not always willing to
protect their interests, especially if they were unskilled workers. They did not acquiesce to these
challenges, they fought them when they could, but they were not always successful. African
Americans tried to buy land, but that was not always easy and those who had it found that deeds
they held for years were not always safe from legal theft. Skilled workers were able to find some
recourse in the appellate courts, but this appears to have been rare.
African Americans spent Reconstruction seeking their definition of freedom. They were
not going to be bound by Governor William Marvin’s view of freedom and when given the
opportunity in 1868 to voice their political concerns via suffrage, they did so. Presidential
Reconstruction and the restriction of suffrage saw the creation of Black Codes, but when African
Americans could vote and participate in the 1868 Constitutional Convention the scope of the
state government changed dramatically. Black Codes were repealed and a more egalitarian legal
code was put in its place, although it still was not perfect. African Americans understood that
they had to actively participate in government in order to see their interests protected and have
laws passed that protected their rights.
The Civil Rights Movement took a dramatic turn with abolition, but was actively
propelled by African American activism during Reconstruction. This era was more about
creating a definition of American freedom and citizenship. For the first time in the Republic’s
history it had to acknowledge that those of African descent were now American citizens. Justice
152
Taney’s legal argument had to be destroyed, but this was not going to happen in a short period of
time. Whites fought any definition of freedom and citizenship that allowed for equality between
the races and this was most evident in the South. The status of African Americans was in a state
of flux from Reconstruction until the Plessy decision when the courts finally levied a legal
argument for the separation and unequal treatment of the races. This decision was not rendered
in a vacuum, earlier court decisions both on the federal and state level gradually led to Plessy.
This coupled with the gradual disfranchisement of African Americans solidified their secondclass status. The end of Reconstruction and the remaining years of the nineteenth century
unfortunately culminated in a critical loss for the Civil Rights Movement, but out of the ashes of
defeat rose the phoenix of victory.
153
CHAPTER 6
ASSAULT ON AFRICAN AMERICAN CIVIL RIGHTS
In his characterization of the decades following Reconstruction historian Thomas Graham
said, “Florida politics were in a fluid, transitional stage between the two more clearly defined
periods of Reconstruction and the Populist-Progressive era.”1 This Woodwardian description is
nothing more than a polite academic response to an increasingly violent political scene in
Florida. For white politicians this soft transition, hence the liquidity, may seem accurate, but for
African Americans this period was a siege on their civil rights led by conservative Democrats
with the quiet complicity of white Republicans looking to solidify their party’s white leadership
supported by an African American voting bloc. The quiddity of the Civil Rights Movement was
not in a state of flux; that connotes passivity. African Americans fought for their elective
franchise in the courts as well as the streets of Florida towns. This siege was not dealt with
passively, but with direct actions from the African American community. Historian Paul Ortiz
concludes, “black Floridians sacrificed tremendously for the principles of representative
democracy.”2 The years after the so-called Redemption saw Civil Rights legislation attacked in
the courtrooms in Washington D.C. and Florida. The Enforcement Acts ceased to protect
anyone’s rights and this downward spiral took the movement to its darkest place since bondage.
The elective franchise was the single most significant civil right African Americans
possessed after emancipation. It was necessary to allow them to have a voice in the continuing
process of defining freedom in the Republic. It was the right that made some lawmakers listen to
their needs and attempt to protect their persons and property. After the election of Democrat
George Drew as Florida’s governor, the franchise was the first right lawmakers sought to control
and hopefully eradicate.
In 1877, the State Assembly passed a law granting the County Boards of Commissioners
the right to draw the election districts in their counties as well as determine who qualified to be
on the voter registration lists. This law gave Democrat Commissioners tremendous power over
African American suffrage. The Board could remove those they believed had left the district or
were deceased without verifying those facts. They were not required to notify its citizens of their
1
Thomas Graham, “Charles H. Jones: Florida’s Gilded Age Editor-Politician.” The Florida Historical Quarterly,
Vol. 59, No. 1 (Jul., 1980), p. 1-23.
2
Paul Ortiz, Emancipation Betrayed: The Hidden History of Black Organizing and White Violence in Florida from
Reconstruction to the Bloody Election of 1920 (Berkley: University of California Press; 2005), 27.
154
disqualification and the law required all who were improperly removed to petition the Board to
be reinstated after taking an oath and providing two witnesses who were qualified voters to
verify they were citizens in good standing. Once these tasks were completed at a board meeting,
a certificate was to be given to that person who then took it to the Clerk of the County Court to
have their name returned to the voter rolls. All of this had to be completed at least ten days
before the election.3 The major flaw in this process was that many of the disqualified voters did
not find out this occurred until they tried to vote on election day and the board did not hold
multiple meetings leading up to the election to deal with these cases. This issue was most
apparent in Jefferson County in the case of The State of Florida, Ex Rel. Charles Scott v. The
Board of County Commissioners of Jefferson County held at the Supreme Court in the June term
of 1880.
Charles Scott, an African American living in Jefferson County, was involved in the
investigation into the 1876 Presidential Election. He along with six other African Americans
testified before the United States Senate panel about what they witnessed during the canvassing
in Jefferson County.4 Scott was not a novice voter when he challenged the County Board of
Commissioners about his right to vote in 1878. This case was designed to ferret out the issues of
discrimination surrounding the 1877 act. Scott claimed that his name along with several other
African Americans was improperly removed from the voter rolls. The County Board of
Commissions was to review its voter rolls at its regular meeting in September 1877. At this
meeting commissioners were supposed to purge the rolls of anyone who was deceased, no longer
permanently resided in the county, or had been disqualified from voting. In order to have his
name, along with several other names, returned to the voter rolls, Scott needed the County
Commissioners to meet more frequently in order to obtain the certificate necessary to be put
back on the voter rolls. He sought the assistance of the judiciary in the form a writ of mandamus
to force them to convene. The Judge of the Circuit Court issued writ of mandamus in 1878
against the Board to restore Scott, along with fifty others, to the voter rolls. The writ also
3
United States Congress. House. Index to the Reports of Committees of the House of Representatives for the First
Session of the Forty-Seventh Congress, 1881-1882 (Washington: Government Printing Office, 1882), 25.
4
United States Congress. Senate. Report of Committees of the Senate of the United States for the Second Session of
the Forty-Fourth Congress, 1876-77, Vol. II (Washington: Government Printing Office, 1877), 317. The other
African American men were Isaac Williams, A.J. Eston, Willis Young, Nathan Williams, Ed Dallas, and Alex
Rains.
155
ordered two thousand more names to be placed back on the rolls without designating those
names.5
Scott tried to file a peremptory writ of mandamus to make sure the Board met to deal
with any wrongfully removed citizens from the voter rolls. The firm of Pasco & Palmer
represented the Board of County Commissioners. They responded to Scott’s writ by stating,
“The Board does not confine itself to the special meeting in October as the only time when it can
examine into the case of parties claiming to have been improperly stricken from the registration
lists.”6 Their argument was that they had multiple meetings to deal with these issues, but they
never announced the names that had been removed to the public. They stated Scott was not part
of the “stricken class” and they did not understand what authority he had to file a lawsuit on the
behalf of other African American voters in the County. They stated the writ, “does not allege
that Scott is authorized by them to act for the persons whose names he seeks to have restored.
They may not desire it. They may not desire to be subject to Jury duty. A man is not compelled
to be a registered voter.”7 Pasco & Palmer further argued those who wished to be reinstated had
not followed the procedures to do so and the writ was improper because it could only be binding
if no other recourse was made available to the applicants. They also stated that all of the names
were not listed in the writ and therefore the Board did not know whom to replace. The district
court agreed with them and overturned the original writ.
In response to this Scott filed an alternative writ of mandamus, written by Horatio Bisbee,
Jr., designed to order the Board to hold more meetings to deal with these cases. Bisbee wrote
that Scott was a male over the age of twenty-one, a citizen of the United States and Florida, and
had resided in Jefferson County for six years. Scott was a registered voter of the county prior to
1877 when his name was removed from the voter registration rolls. He was denied his franchise
for the 1878 election through no fault of his own. It was alleged this happened to Scott as well
as fifteen hundred other voters in Jefferson County. The petitioners were living in Jefferson
County when the commissioners drew the districts. He also argued the Board failed to determine
the validity of statements made about the mortality of a voter or their residency before striking
them from the rolls. None of the petitioners ever informed the Board of their death or change of
residency. Bisbee stated the, “County Commissioners manifestly and arbitrarily disregarded and
5
Scott v. Jefferson County (1880). Florida State Archives, Record Group 1100, Series 49, Box #564.
Ibid.
7
Ibid.
6
156
neglected the performance of their duty in the premises; that in point of fact they did not locate
but about fourteen hundred voters out of over four thousand voters in said county.”8
Several of the voters went to the Clerk of the Court to have their elective franchise
restored, but were denied because they needed to go before the Board of County Commissioners
per the statute. Bisbee said the Clerk hired deputies for each district except the one he lived in
and instructed them not to place anyone on the registration list who had been previously
removed. Bisbee referred to the Board’s ability to remove names without investigation a
“pretend power under said statute.”9 The petitioners could not obtain the needed certificates
because the Board did not hold a meeting in a timely manner prior to the election. They argued
that a new set of protocols needed to be formulated to prevent this problem from occurring again
during the 1880 general election. Bisbee wrote, “Your petitioners answer that the omission of
and neglect of duty by the County Commissioners aforesaid above states and complain of has
become a public grievance . . . and if not remedied . . . may result in the disturbance of the public
peace.”10 Bisbee said the failure of the County Commissioners has, “aroused public attention . . .
and excited much public and private discussion among a large portion of intelligent citizens and
property holders and taxpayers of said county and State.”11 This issue not only impacted those
removed from the registration rolls, but the rights of all citizens if this was allowed to continue.
He wanted the court to force the County Commissioners to return the erased names to the voter
rolls and make provisions to meet as necessary so those who were removed in the future could
get their certificate to vote.
The board responded by outlining several facts they wished to dispute. Scott’s writ
appeared to not only return several names to the voter rolls, but also require the Board to hold
meetings to make sure those who wanted to vote during upcoming elections would have
immediate recourse if they found their names removed. Scott estimated that 800 to 2500 names
had been removed from the voter registration lists in Jefferson County. He wanted the Board of
Commissioners to meet, “from day to day and hear applications of such persons for certificates
to enable them to have their names” restored on the voter registration lists.12 The Commissioners
contended, “that the elective franchise is a private and personal privilege and whether or not it
8
Ibid.
Ibid.
10
Ibid.
11
Ibid.
12
Ibid.
9
157
shall be enjoyed concerns only the individual and not the public at large.”13 Scott believed the
erasure of so many names was a public wrong, whether done collectively or not, which should be
dealt with collectively in order to insure the rights of the citizens. The Commissioners said any
citizen could file a writ of mandamus but it was unnecessary because the statute provided
remedies for improperly removed names. Scott argued the remedy was not extended to a
singular individual but to all persons who were removed; therefore they could have their names
returned collectively.14
Scott contended that the statute made the Commissioners the judges over suffrage by
determining who was disqualified. This was not done publically and the disfranchised person
could not respond until it was too late to vote. Their rights were stricken without due process of
law. They subtly argued that due process was not occurring because the Board of County
Commissioners was not a judicial body, but they were restricting suffrage without a jury of the
person’s peers and readily access to the Board for any remedies due to incorrect removal.
The Board argued there was nothing in the statute that required them to publish their
proceedings or notify the public in any manner. Scott argued the Board had to be made available
to hear grievances for erasures because the statute required it. “If any person whose name has
been improperly erased shall declare under oath before the Board of County Commissioners at
any time before the tenth day proceeding the day of any general election.”15 The Board said over
a three year period they held approximately forty meetings and during that time none of the
petitioners appeared before them. They concluded their argument by stating it was not their
responsibility to return names to the voter rolls, only to purge them. They were not given the
authority to do anymore than that.16
The case went before the Florida Supreme Court in 1880 with Alva A. Knight and LeRoy
D. Ball for Charles Scott; T. L. Clarke and Pasco & Palmer for the Board of County
Commissioners. Chief Justice Edwin M. Randall delivered the court’s opinion in favor of the
Board of County Commissioners, with Justice James D. Westcott concurring. Randall said, “A
few mistakes may be inevitable, and the duty of the board is to give sufficient opportunity to
13
Ibid.
Ibid.
15
Ibid.
16
Ibid.
14
158
correct them.”17 If the earlier writ of mandamus called for 2,500 names to be restored it appears
that more than a “few” mistakes were made by the Board of Commissioners. Randall was
comfortable with the procedure in place to return the names to the voter rolls. He said, “We find
in this alternative writ no allegation that any of the persons included in the writ, or described
therein, have not had opportunity to apply to the board, or that any of them have applied and
been refused anything demanded.”18 He did not believe the Board was responsible and did not
have the power to merely restore a person to the voter registration beyond what was given to
them by statute and the constitution.
Randall argued that Scott had not proven the Board of Commissioners refused to meet in
order to keep from issuing certificates of reinstatement and he believed Scott did not have a case
entitling him to a writ of mandamus. Randall continued to discuss a few more points of law. He
said, “that by the striking off of the name of a person once registered and having had a right to
vote, his right to vote cannot be lawfully impaired.” Since this right could not be taken away,
those who were removed had every right to have their name reinstated if they followed the
procedure provided by the statute. Randall did not believe the Board was guilty of
discrimination in the removal of several hundred African American voters from its rolls. The
Justice dismissed the writ of mandamus because he believed Scott’s rights had not been violated
by the Board of Commissioners, so the court did not need to act. 19
The siege against suffrage was not limited to the County Board of Commissioners.
Conviction in a court of law also threatened the ability to vote as seen during the Reconstruction
and the bribery case against Charles Pearce. While that case had more direct political
motivations, the case The State of Florida Ex Rel. Richard Jordan v. T. E. Buckman, Respondent
dealt with an African American citizen trying to reestablish his right to vote in Duval County.
Richard Jordan was a member of the 2nd U.S. Colored Infantry, Company G and resident of
Duval County. Jordan had been politically active in past elections and was involved with
Horatio Bisbee’s contest against Jesse J. Finley for the U.S. House of Representatives from
Florida in 1876. He filed a writ of mandamus in the Florida Supreme Court to force former
Confederate soldier and Clerk of the Fourth Circuit Court, T. E. Buckman, to place him back on
17
George, P. Raney, Cases Argued and Adjudged in the Supreme Court of Florida, During the Years 1878, 1879,
1880, Vol. XVII, 712.
18
Ibid.
19
Ibid. p. 716.
159
the county voter rolls. Jordan had been removed for a larceny conviction. Jordan was charged
with larceny valued under $5 and the Justice of the Peace convicted and fined him $0.10 plus
court costs. The larceny case saw the State of Florida as the plaintiff and Richard Jordan and
Venancio Hall as the defendants. The Justice of the Peace was Judge Aaron William Da Costa.
There was no grand jury indictment. They pleaded not guilty of larceny and the jury found
Jordan guilty, but not Hall.20
Bisbee wrote the writ of mandamus with Jordan as the relator. Bisbee based his
argument on two grounds; it was not the intention of the legislature to disfranchise a citizen for a
petty larceny conviction or without a grand jury indictment.21 Bisbee noted that the Bush Digest
stated that any theft of property under twenty dollars was considered petty larceny. He further
argued that the legislature never enumerated petty larceny as a disqualifying offense.
Disqualifying offenses were enumerated in article fourteen, section two of the 1868 constitution.
Those sections of the constitution were not valid without legislative action necessary to provide
laws preventing people from voting if they had been convicted of a felony. He said those acts
were not self-acting and must have legislative enforcement. Registration officers did not have
the authority to prevent citizens from taking the registration oath.22
Bisbee said the legislature provided penalties for voting after it was stripped for felonious
conviction. He did not believe petty larceny was one of the grades of larceny that qualified a
person for disfranchisement. Bisbee argued the 1868 constitution recognized a difference
between grand and petit larceny. Section eight of the Declaration of Rights outlined, “that petit
larceny may be tried otherwise thru express indictment and by so providing it has declared it not
to decreed and infamous crime.”23 He said the framers did not mean for larceny and petit
larceny to be defined equitably because they specifically spelled them out differently. Bisbee
said the legislature did not intend to discriminate against those citizens who committed petty
larceny. That it was not the policy of the state to do so because petit larceny did not have the
moral turpitude of infamous crimes. Bisbee asserted petty larceny was a minor grade offense,
20
The archival record did not provide the exact reason why Hall was found not guilty.
State of Florida ex rel. Jordan v. Buckman. Florida State Archives, Record Group 1100, Series 49, Box #580.
22
Ibid.
23
Ibid.
21
160
“conviction for which shall disfranchise, deprive the citizen of being a juror and a witness, and
reduce him to a condition of ‘civiliter mortuus’ to which death itself is preferable.”24
Bisbee said a person could not be disfranchised until after a conviction for a grand jury
indictment.
The citizen shall not be excluded from office and from the election franchise until
he has been convicted in the form and method according to that orderly course of
procedure which was secured to the people by Magna Charter and know and
understood by people who when accused of crime have the right to an impartial
trial in a court of record when both judge and jury are jealously watched and
criticized for their conduct by their countrymen.25
Failure to follow proper procedure for a jury trial was tantamount to removing a person’s rights,
or property, without due process of law. Bisbee said due process of law required a jury trial with
an indictment from a grand jury. The Constitution implied, “that while for certain minor
offences the legislature may provide some other mode of trial we regard the consequences of
disfranchisement as so grave and serious that we will return the trial on indictment by a grand
jury for all persons who shall be accused of any crimes, conviction of which a
disfranchisement.”26
Buckman felt the court should quash the writ because it proved Jordan was duly
convicted of larceny and did not prove he was entitled to have his civil rights restored. In
Attorney-General George Pettus Raney’s brief he outlined the argument as to why this writ
should be quashed. He contended that the intent of the framers of the Constitution was to
include petty larceny as a disqualifier, because they did not specifically state otherwise. He said,
“section 2 settled the question as to classes of crime and decided that all felonies along as a class
should be attended to wit a certain consequences, then in section 4 address themselves to the
suffrage consequences which should attend the commission of certain specific crimes.”27 Raney
argued that section four gave the legislature the power to determine which crimes determined
disqualification. Raney did not believe section two could be used as a restriction to section four
of the 1868 constitution.
24
Ibid. Civiliter mortuus is a Latin phrase referring to the loss of all or almost all civil rights by a person due to a
conviction for a felony or due to an act by the government of a country that results in the loss of civil rights.
25
Ibid.
26
Ibid.
27
Ibid.
161
The Florida Attorney-General concluded the framers intended for petty larceny to be
considered an infamous crime. Raney wrote, “I am unable to see that larceny of every kind is
not an infamous crime in this State. As to the ‘State policy’ of making petit larceny a
disqualification, and not other misdemeanors generally I can not see that there is any less moral
turpitude in stealing a small sum than a large sum.”28 He tried to support his argument about not
differentiating between larcenies by stating, “the murder of a child should not have the effect
where the murder of a man should.”29 Raney said all larcenies were disqualifications before the
1868 constitution. He also did not believe a disqualifying conviction had to be done through a
jury trial created by an indictment determined by a grand jury.
Justice Westcott delivered the court’s opinion and the majority of language used in his
opinion came from Raney’s brief to quash the writ. Westcott said, “he was denied registration
upon the ground that, under the Constitution and laws of this State, his conviction of petty
larceny did destroy his right to vote.”30 He quashed the writ because he said the Constitution
clearly states that conviction of petty larceny disqualifies a person to be an “elector in this
State.”31 Westcott argued that the use of the term larceny in the Constitution encompassed petty
larceny as well. The result of this ruling was that a politically active African American citizen of
Florida was denied suffrage for a five-dollar theft. How did this occur? Why did the federal
government not intervene under the Fifteenth Amendment? This role of the federal government
and the relationship between it and the states over civil rights changed dramatically during the
nadir period.
After emancipation the United States Congress found it necessary to pass legislation to
legally end slavery and protect the civil rights of African Americans. Two important things
occurred as a result of this. First, the Republic had to fully define the rights that had been
assumed until the 1860s. Secondly, the federal government had to increase its authority to
protect those rights in regions hostile to them being extended to African American citizens. The
last change was significant because it sought to extend the Bill of Rights to the states in a way
that had not occurred until then. This change was not going to transpire without tremendous
debate in the court system. The specter of Dred Scott was not eradicated with the passage of the
28
Ibid.
Ibid.
30
George P. Raney, Cases Argued and Adjudged in the Supreme Court of Florida, During the Years 1881-1882,
Vol. XVIII (Tallahassee: Floridian Book and Job Office, 1882), 268.
31
Ibid., p. 270.
29
162
13th, 14th, and 15th Amendments and the Civil Rights Acts. In a number of key cases on the
federal level the United States Supreme Court found itself once again vindicating Justice Taney’s
assertion that citizenship was created by the states and the role of the federal government in its
protection was limited to interstate commerce and foreign relations. The cases that fully outlined
this were Slaughter-House, Cruikshank, and Reese. While these cases may not have involved
specific parties in Florida, the definitions of the constitutionality of the Civil War Amendments
and Civil Rights Acts had a tremendous impact on Florida jurisprudence.
The Civil Rights Movement faced a daunting challenge towards the end of
Reconstruction and the remaining decades of the nineteenth century. The definition of
citizenship and its protections were constantly being debated in the halls of Congress and the
courts. African Americans were not silent participants in this process. They voiced their
concerns in a multitude of ways, but the court system was the most impactful forum for their
activism. While most historians do not articulate the curtailment of African American civil
rights until after Reconstruction, the reality was that those rights were being diminished rather
quickly before the election of President Rutherford B. Hayes. The 1870s saw three critical cases
before the U.S. Supreme Court that altered the intentions of the federal government to protect the
rights of all Americans. This coupled with a lack of a Congressional response created the
greatest challenge to civil rights since slavery. The first case to argue the intent of the Fourteenth
Amendment did not directly involve African Americans, but butchers from New Orleans.
What became known as the Slaughter-House Cases originated in New Orleans, which
was dealing with cholera outbreaks and poor sanitation conditions. The city’s slaughterhouses
were contaminating the local water supply with animal urine, feces, blood, and entrails. The city
wanted to move the slaughterhouses to the south side of the city, but did not have the authority to
do so. The state legislature stepped in and passed “An act to protect the health of the City of New
Orleans, to locate the stock landings and slaughter-houses, and to incorporate ‘The Crescent
City Live-Stock Landing and Slaughter-House Company.’” The Butchers’ Benevolent
Association of New Orleans sued The Crescent City Live-Stock Landing and Slaughter-house
Company arguing their Fourteenth Amendment rights of due process, privileges or immunities,
and equal protection rights had been violated. Six cases were brought before the Louisiana State
Supreme Court and all six were ruled in favor of Crescent City Live-Stock Landing and
Slaughter-house Company. Five of the cases were appealed in the United States Supreme Court,
163
two were dismissed and three were heard before the court. The cases were filed under a single
title known as the Slaughter-House Cases.
Former Supreme Court Justice John Archibald Campbell and John Quincy Adams
Fellows represented the butchers. In their brief they concluded the monopoly created by the
State of Louisiana violated their Fourteenth Amendment right of due process. They felt their
property had been illegally taken from them without trial and the appropriate due process as
mandated by the Constitution. They argued that not only were they losing their shops, but their
livelihood, which they believed was their property as well. Campbell and Fellows quoted French
historian Adolph Thiers,
The right to one’s self, to one’s own faculties, physical and intellectual, one’s own
brain, eyes, hands, feet, in a word to his soul and body, was an incontestable right;
one of whose enjoyment and exercise by its owner no one could complain, and
one which no one could take away. More than this, the obligation to labor was a
duty, a thing ordained of God, and which if submitted to faithfully, secured a
blessing to the human family.32
They conjured Lockean liberalism when they stated, “free competition in business, free
enterprise, the absence of all exactions by petty tyranny, of all spoliation of private right by
public authority – the suppression of sinecures, monopolies, titles of nobility, and exemption
from legal duties, - were exactly what the colonists sought for and obtained by their settlement
here.”33 They believed the removal of this was a form of Lockean slavery.
Campbell and Fellows argued the monopoly created and government regulation of the
slaughterhouses was tantamount to involuntary servitude. They concluded that monopolies
violated the Thirteenth Amendment by not focusing on the antebellum definition of slavery, but
the concept of involuntary servitude. The Act passed by the Louisiana State Legislature
controlled how livestock was stored, shipped, and slaughtered. They felt this left their clients in
a state of servitude because they were unable to practice their trade because of government
intervention. Campbell and Fellows claimed the law violated the Fourteenth Amendment more
32
John William Wallace, Cases Argued and Adjudged in the Supreme Court of the United States, December Term,
1872, Vol. XVI (New York: Banks & Brothers, Law Publishers, 1889), 45. Thiers was a French historian who
argued republicanism was the central theme of French history.
33
Ibid., p. 48.
164
than the Thirteenth, because it was a more comprehensive statement of the Thirteenth
Amendment.
They accurately concluded the Constitution did not provide a definition of citizenship
until the Fourteenth Amendment and said the purpose of defining citizenship was,
To establish through the whole jurisdiction of the United States ONE PEOPLE,
and that every member of the empire shall understand and appreciate the fact that
his privileges and immunities cannot be abridged by State authority; that State
laws must be so framed as to secure life, liberty, property from arbitrary violation
and secure protection of law to all.34
The Act deprived citizens of property without due process of law as so protected by the
Fourteenth Amendment. “The right to labor, the right to one’s self physically and intellectually,
and to the product of one’s own faculties, is past doubt property, and property of a sacred kind.
Yet this property is destroyed by the act; destroyed not by due process of law, but by charter.”35
This was a struggle many unskilled African American workers dealt with after
emancipation. During the antebellum era their labor was used to profit the owner and not the
laborer; in that sense it was real property. After emancipation that concept did not transfer to the
African American worker, but to the employer. Labor as a form of real property was not a fully
realized concept during this period; it was still for the benefit of the one who purchased it.
Essentially it could not be bartered and sold depending on market value, but the willingness of
the employer to buy in order for them to profit. Unfortunately the court was not interested in the
plight of the worker or their right to their labor property.
On April 14, 1873, Justice Samuel Freeman Miller delivered the court’s opinion and the
legal logic used dealt a tremendous blow to the Civil Rights Movement. In response to
Campbell and Fellows’s arguments, Justice Miller said, “This court is thus called upon for the
first time to give construction to these articles.”36 He said in reference to the Thirteenth
Amendment in Campbell and Fellows’s argument, “a declaration designed to establish the
freedom of four millions of slaves – and with a microscopic search endeavor to find in it a
reference to servitudes, which may have been attached to property in certain localities, requires
34
Ibid., p. 53.
Ibid., p. 56.
36
Ibid., p. 67.
35
165
an effort, to say the last of it.”37 He said the use of the word servitude was designed to cover all
aspects of slavery, whether it was serfdom or apprenticeships. Miller said after the war it was
necessary to increase federal authority in order to protect the freedpeople or they could be
returned to a state of slavery. The passage of the Fourteenth Amendment was designed to
protect the freedpeople from unjust laws passed under Presidential Reconstruction. He added the
Fifteenth Amendment was passed because African Americans, “living in the midst of another
and dominant race, could never be fully secured in their person and their property without the
right of suffrage.”38 Miller understood the necessity for the protection of these rights and the
result of the failure to do so, but to what extent was he willing to allow the federal government to
intervene?
Justice Miller stated the definition of citizenship found in the Fourteenth Amendment was
written as a response to Dred Scott. Since Taney’s decision had never been overruled it was
necessary for the Legislature to provide the appropriate language in the amendment to thwart
future legal challenges using Dred Scott as precedence. He continued to define the amendment
by stating, “It is quite clear, then, that there is a citizenship of the United States, and a citizenship
of a State, which are distinct from each other, and which depend upon different characteristics or
circumstances in the individual.”39 Miller concluded that since there were two types of
citizenship their argument did not have merit. He said the protection of privileges and
immunities applied to the federal government and not the states. Since citizenship of the Union
and the state are not one and the same the Fourteenth Amendment was not applicable to this
case. Miller defined privileges and immunities as, “protection by the government, with the right
to acquire and possess property of every kind, and to pursue and obtain happiness and safety,
subject, nevertheless, to such restraints as the government may prescribe for the general good of
the whole.”40 Miller questioned whether all protection of civil rights fell under federal
jurisdiction instead of the states. He said if Campbell and Fellows’s premise was adhered to it
would. He believed the protection of civil rights was within the domain of states’ rights and
could not be controlled by the federal government because they did not have the power to do so.
37
Ibid., p. 69.
Ibid., p. 71.
39
Ibid., p. 74.
40
Ibid., p. 76.
38
166
Miller argued that the role of the federal government was to protect life, liberty, and
property on the high seas or within the jurisdiction of a foreign country. This was a strict
interpretation of the Constitution that did not allow for the fundamental changes that occurred as
a result of insurrection. In order to protect its citizens, the U.S. Congress increased its authority
over the states and made provisions to do so. The U.S. Supreme Court did not believe this was
the intent of the amendments and reverted to antebellum interpretations of the Constitution.
Miller claimed that the equal protection clause was written to void the Black Codes, but
believed that after that was completed it was not applicable unless a strong case was made for its
application. It would have to be a case of denial of equal justice in the courts or a case of state
oppression for the claim to applicable. Miller did not believe the case at hand fell into these
criteria. He did not believe the Civil War Amendments, especially the Fourteenth, were
designed to sway the balance of power toward the federal government. He believed the
protection of civil rights still rested with the states unless there were egregious acts made by the
state. Based on this argument, the court affirmed the ruling of the lower court and set into
motion a chain of events that would not be overcome for over eighty years.
The argument used in the Slaughter-House Cases was not confined to that set of events.
The court not only sided with the creation of a monopoly they also defined the Fourteenth
Amendment in a way some believed was not the intent of its framers. Justices Stephen J. Field,
Joseph P. Bradley, and Noah H. Swayne did not agree with this definition. Justice Field argued
that the Fourteenth Amendment was designed to “protect the citizens of the United States against
the deprivation of their common rights by State legislation.” He further stated that in his,
“judgment the fourteenth amendment does afford such protection, and was so intended by the
Congress which framed it and the States which adopted it.”41 Regarding the Thirteenth
Amendment, Justice Field asserted that the words “involuntary servitude had not been the subject
of any judicial or legislative exposition, that I am aware of, in this country, except that which is
found in the Civil Rights Act,” of 1866.42 He felt that it meant that all forms of slavery were
prohibited regardless of race. Field argued the abolition of slavery and involuntary servitude was
designed to create a free society where a person could pursue their livelihood unencumbered and
enjoy the fruits of their labor. Black Floridians who “envisioned a republic where democracy
41
42
Ibid., p. 89.
Ibid., p. 90.
167
meant economic justice, equal pay, and dignity, as well as equal citizenship” shared this
sentiment.43
Justice Field believed the Civil Rights Act of 1866 further explained the true nature of the
Thirteenth and Fourteenth Amendments. He argued that denial of civil rights and equality before
the law subjected the citizen to involuntary servitude. He further stated that before the
ratification of the Fourteenth Amendment there was much debate about where citizenship
originated. John C. Calhoun, an argument used by Campbell and Fellows, said there was no
citizenship independent of the state. In the Dred Scott decision Justice Curtis claimed,
“citizenship of the United States in reference to natives was dependent upon citizenship in the
several States, under their constitutions and laws.”44 Field remarked,
The first clause of the fourteenth amendment changes this whole subject, and
removes it from the region of discussion and doubt. It recognizes in express
terms, if it does not create, citizens of the United States, it makes their citizenship
dependent upon the place of their birth, or the fact of their adoption, and not upon
the constitution or laws of any State or the condition of their ancestry.45
In a footnote Field wrote, “The property which every man has in his own labor, says Adam
Smith, as it is the original foundation of all property, so it is the most sacred and inviolable.”46
Field concluded that a free government, in the American sense of the term, only existed when
inalienable rights were unrestrained, except by impartial laws.47
This last quip, “American sense of the term,” was designed to show the separation
between English monopolies and American enterprise. Everyone did not share the notion, as
Adam Smith put it, that the work of one person was their first labor and they had the sole benefit
of its profit. This was the ideal in American republican folklore that did not always translate into
reality. The flexing definition of citizenship and its practical applicability created vexing issues
for civil rights advocates. The States, not always limited to the South, typically found ways to
impede the profitability of African American labor through legal means. This case along with
several others to be discussed slowly eroded any hope of achieving the desired effect of the
Fourteenth Amendment. The majority opinion of this court reduced the effectiveness of federal
43
Ortiz, p. 196.
Wallace, p. 94.
45
Ibid., p. 95.
46
Ibid., p. 110.
47
Ibid., p. 111.
44
168
oversight regarding rights and returned it to the states where African Americans were previously
legally enslaved in perpetuity until the forcible removal of those shackles at gunpoint.
Justice Bradley said citizenship was not based on which state a person resided. He
argued that a person could travel from state to state without losing their citizenship because it
was protected by the Constitution. According to Bradley one of the central tenets of citizenship
was the enjoyment of property. Citizens were to be guaranteed the protection to buy and sell
based on their individual motivations. Justice Swayne furthered this argument by defining
property as, “everything which has an exchangeable value, and the right of property includes the
power to dispose of it according to the will of the owner.”48 Bradley contended the federal court
could provide redress for those whose privileges and immunities were abridged by the State. He
said this could not be done before the Fourteenth Amendment was ratified. Bradley said it
would be naïve to state the Fourteenth Amendment was not passed to benefit African Americans,
but the language was broad enough to encompass all American citizens regardless of race. In a
prophetic tone Swayne closed his opinion by stating, “I earnestly hope that the consequences to
follow may prove less serious and far-reaching than the minority fear they will be.”49
It was not long after this case was adjudged that the fear expressed above came to
fruition. In 1873, a race riot broke out in Colfax, Louisiana, after African American Republicans
clashed with white Democrats over the 1872 election. A large number of African Americans
were killed as opposed to a smaller number of whites. As a result of this incident the federal
government charged some of the members of the white mob with conspiring to deprive a person
of their constitutional rights as stated in the Enforcement Acts of 1870. The Enforcement Acts
gave the Executive Branch the authority to enforce the Fifteenth Amendment in the States, if
suffrage was being denied citizens on the basis of race, color, or previous condition of servitude.
The case was eventually heard in the U.S. Supreme Court and had a dramatic effect on the
interpretation of the Fourteenth Amendment.50
William J. Cruikshank, along with two other white men, were indicted for violating the
civil rights of two African American men, Levi Nelson and Alexander Tillman. They were
48
Ibid., p. 127.
Ibid., p. 130.
50
For more on the Colfax Massacre please see Leeanna Keith, The Colfax Massacre: The Untold Story of Black
Power, White Terror, and the Death of Reconstruction (New York: Oxford University Press, 2008); Charles Lane,
The Day Freedom Died: The Colfax Massacre, The Supreme Court, and the Betrayal of Reconstruction (New York:
Henry Holt and Co., 2008).
49
169
indicted under section six of the Enforcement Acts of 1870. This statute outlined that if two or
more persons conspired to intimidate any citizens from exercising their rights as a citizen they
were guilty of committing a felonious act and could be imprisoned for ten years. It was alleged
that the defendants intimidated Nelson and Tillman in an attempt to prevent them from
exercising their right to free assembly. They were also charged with depriving them of their
lives and liberty without due process of law. The defendants were originally convicted under the
Enforcement Acts of 1870, but they appealed the judgment to the U.S. Supreme Court on the
basis that the laws were unconstitutional and the charges were vague and insufficient. At the
Supreme Court, E. John Ellis, David Dudley Field, Reverdy Johnson, R. H. Marr, Philip Phillips,
and W. R. Whitaker defended Cruikshank. Attorney General Edward Pierrepont, Solicitor
General Samuel F. Phillips, and J. R. Beckwith argued the case for the United States. Chief
Justice Morrison Remick Waite delivered the court’s majority opinion.51
This case came before the U.S. Supreme Court because the judges of the U.S. Circuit
Court for the District of Louisiana were divided over their opinion on whether to arrest the
judgment of conviction. The original indictment had sixteen counts of violating section six of
the Enforcement Acts of 1870. Not all counts were listed in the U.S. Supreme Court because
they said the other eight counts were repetitive because they merely reworded the counts to
include the words, “combine, conspire, and confederate together.”52 Waite argued, “to bring this
case under the operation of this statute, therefore, it must appear that the right, the enjoyment of
which the conspirators intended to hinder or prevent, was one granted or secured by the
constitution or laws of the United States.”53
The Slaughter-House Cases was the first citation used by Waite. He argued that the
federal system was a government of several distinct states. The protection of citizens’ rights was
the obligation of the government who had direct jurisdiction over the citizen at the time of the
violation and that protection could vary from state to state. In that capacity, the duty of the
government was to protect the citizen within the power granted by its constitution. Waite noted
the federal government was created for national purposes as evidenced in the creation of the
51
William T. Otto, Cases Argued and Adjudged in the Supreme Court of the United States, October Term, 1875,
Vol. II (New York: Banks & Brothers, Law Publishers, 1890), 545.
52
Ibid.
53
Ibid., p. 549.
170
Constitution of the United States after the failure of the Articles of Confederation. Waite quoted
the Constitution’s preamble about a more perfect union to further his point.54
The arguments used in the Slaughter-House Cases and Cruikshank demonstrated that
scope of the federal government was still in question. After the war the federal government
sought more oversight in the affairs of the Southern states in order to reconstruct the Union and
its newly diverse political community. Waite noted that, citizens were part of the political
community in which they resided. If Reconstruction proved anything, it proved that admission
to that community was not an organic creation. It had to be protected by an outside authority
vested in the welfare of all its citizens and not just those in power. While this ramshackle
altruism only had a short shelf life it did dramatically change the role of the federal government.
African Americans looked to the federal government for protection that state governments were
unwilling to provide. The Supreme Court refused to allow this type of nation building to occur.
The Slaughter-House Cases proved this because of the Court’s unwillingness to define the
Fourteenth Amendment in such a way that gave the federal government the authority to intervene
for those not being protected by state laws. Their interpretation had all the earmarks of Dred
Scott, short of stating African Americans could not be citizens because of their heritage. The
cases differentiated between national and state citizenship in a way that created more authority in
state citizenship. Under this construction, the Fourteenth Amendment only worked if a person
was on the high seas or in a foreign nation. In this same vein, Waite sought to continue this
theme in his Cruikshank decision.55
Waite said the United States government was one of delegated powers. He argued the
Bill of Rights was not designed to impact the state governments, but regulate the power of the
national government. This logic was more applicable during the early years of the Republic and
its fear of a large central government such as Parliament. As the Republic continued to define
citizenship and the nature of civil rights the scope of the federal government inevitably changed.
Waite based his logic on the idea that only local communities fully understood the affairs and
needs of its citizenry in ways distant central governments could not. The difficulty that arose
after the war was when those local communities who were supposed to protect its citizens,
instead oppressed them and created a society of terror and perpetual servitude. The role of the
54
55
Ibid.
Ibid., p. 551.
171
federal government as the beacon of revolutionary ideology had to step in and enforce those
rights held so dear by the populous. This was not well received in rural communities and those
unwilling to allow African Americans to participate in their political community. The Civil
Rights Movement at this stage needed the federal government to extend its authority over the
protection of all its citizens, but the willingness to continue that fight was less than ardent. The
Supreme Court’s constant reduction of those powers and Congress’s lack of response was
evidence of this.
Waite further argued the First and Second Amendments only applied to Congress’s
interference and not the individual. Waite also did not believe the Fourteenth Amendment went
any further in its protections. This distinction between government and the individual had
drastic ramifications because it removed all culpability from state governments who could turn a
blind-eye to violence against African American citizens. Justice Waite did not believe race was
a motivating factor in the Colfax Massacre, but citizens prohibiting citizens from practicing their
right of suffrage. With race removed from the equation, Waite argued intent was not proven in
the indictment; therefore it could not be in the conviction. He reinforced his position on the
Fourteenth Amendment, but stated that it was up to the states to protect these rights and the role
of the federal government was to make sure that occurred. Waite did not believe this was direct
action, but oversight in laws passed. According to Waite the role of the federal government was
to make sure the states did not pass laws abridging these rights. He did not believe use of law
enforcement was an applicable form of enforcement or that protection against other citizens was
necessary. The arrest of the judgment was affirmed and the defendants were discharged.56
Not only did the U.S. Supreme Court redefine the applicability of the Fourteenth
Amendment, they also sought to narrowly define the Fifteenth Amendment. United States v
Reese et al. originated in Kentucky, where an African American named William Garner sued
election inspectors Hiram Reese and Matthew Foushee for prohibiting him from voting. They
told him he had not paid his poll tax, but when he tried to pay, the tax collector would not allow
him to. The inspectors refused to accept Garner’s affidavit stating he was a qualified voter.
Garner argued they violated his civil rights as stated in the Enforcement Acts of 1870. Similar to
56
Ibid., p. 559.
172
other civil rights cases under the federal appellate division the lower courts stated the language in
the indictments was too vague and went beyond the scope of the Constitution.57
Pursuant the Kentucky state constitution, election inspectors were, “charged by law with
the duty of receiving, counting, certifying, registering, reporting, and giving effect to the vote of
all citizens qualified to vote at said election in Ward 3 of the city.”58 Since tax collector James F.
Robinson refused to collect Garner’s poll tax he went to the election inspectors mentioned in the
indictment. Reese and Foushee were not the only inspectors, there was another named William
Farnaugh. He was willing to receive, count, and register Garner’s elective franchise, but the
defendants as the majority refused to comply. This case came before the court because the
judges of the Circuit Court in the District of Kentucky were divided over the demurrers being
appealed. U.S. Attorney-General George Henry Williams and Solicitor-General Samuel F.
Phillips argued the case for the federal government. Reese’s counsel was Henry Stanbery and B.
F. Buckner. Chief Justice Morrison Waite once again presented the court’s decision.59
The case dealt with sections three and four of the Enforcement Acts of 1870. These
sections covered the instances when African Americans were barred from voting by either a state
officer or by intimidation or any other means of coercion. Waite argued the question before the
court was whether any law had been broken by the refusal of the election inspectors to allow an
African American man, a qualified voter, to vote because of his race. Waite did not believe the
Enforcement Acts impacted election inspectors because they were only tasked with receiving and
counting votes from qualified voters. Waite argued the Enforcement Acts were not applicable
because the, “The Fifteenth Amendment does not confer the right of suffrage upon any one.”60
He stated the amendment only prevents states, or the United States, from passing laws
prohibiting suffrage based on race, color, or previous condition of servitude. The Fifteenth
Amendment created a guarantee to the elective franchise previously unknown in the
Constitution. In the language of the amendment it stated that Congress may use appropriate
legislation to support this power. Waite wondered whether the Enforcement Acts were
appropriate legislation.61
57
William T. Otto, Cases Argued and Adjudged in the Supreme Court of the United States, October Term, 1875,
Vol. II (New York: Banks & Brothers, Law Publishers, 1890), 224.
58
Ibid.
59
Ibid.
60
Ibid., p. 217.
61
Ibid., p. 217-219.
173
He said the states regulated elections and the qualifications of electors. In his opinion the
Enforcement Acts of 1870 interfered with this process and presented a radical change in election
laws. The election supervisors were supposed to accept Reese’s affidavit as lawful regardless of
its mention in state statutes. In his view, this was a violation of states’ rights. He believed the
statute was vague and could not be interpreted objectively, because it did not clarify what was
needed in the affidavit in order to make it valid. He said that section lacked clarity and created
subjectivity that could cause misplaced accusations. Waite concluded that since the language of
the legislation was too broad and vague that it could not be regarded as appropriate legislation.62
Justice Nathan Clifford concurred with Waite in that the indictment was bad, but for
different reasons. Clifford argued the Enforcement Acts did not proscribe penalties for those
officers who were found guilty of discrimination. An indictment was valid only if all aspects
were clearly and accurately expressed. Unless it met the letter of the law it was invalid. Clifford
did not allow for intent to play a role in the indictment process. He said that a law must be
universally enforced in order for it to be valid and noted that the city charter of Lexington stated
that all free males must pay a poll tax in order to vote. Clifford said this law did not make a
distinction against race, color, or previous condition of servitude. Since there was not a law
prohibiting suffrage based on these factors the Fifteenth Amendment and the Enforcement Acts
were not binding. He did not believe the indictment could be sustained because Garner did not
provide proof that he had paid his poll tax to the inspectors. Clifford did not feel any
discrimination had occurred. This type of logic failed, or refused, to understand the impact of
the attitudes enforcing those laws. Clifford and Waite used classical legal logic that believed the
law was autonomous and unaffected by outside influences. The Court ruled in favor of the
demurrers raised and gave judgment to Reese and the other defendant.63
In his dissenting opinion Justice Ward Hunt stated there was opposition to the indictment
and hostility towards the statute in the majority opinion. He believed the indictment and the
statute were sufficient in scope and prosecution. Hunt said, “The Fifteenth Amendment had just
been adopted, the object of which was to secure to a lately enslaved population protection against
violations of their right to vote on account of their color or previous condition.”64 It was absurd,
Hunt said, to argue that Congress did not intend to fine those officers who discriminated against
62
Ibid., p. 219-220.
Ibid., p. 251.
64
Ibid., p. 241.
63
174
African American voters. Hunt stated that Garner offered payment for his poll tax, but Robinson
illegally refused to take the payment on account of race. He scathingly wrote, “I cannot but
think that in some cases good sense is sacrificed to technical nicety, and a sound principle carried
to an extravagant extent.”65 He argued the intent of the action was important when developing
the mala mens, instead of outlining every detail of the offense in such a way to perfectly match
the statute. The intent Hunt referred to was discrimination. While it was clear by the letter of
the law discrimination could be argued away, the intent of discrimination was clear when the
context of being refused twice was examined. Hunt said strict construction in indictments and
penal statutes was not necessary.66
To Hunt, the intention of the inspectors was clear in their actions to refuse Garner’s
petition. He argued the third and fourth sections of the 1870 Enforcement Acts were intended to
punish the inspectors for discrimination and the abrogation of civil rights.67 He believed the
indictment and the statute were sufficient in dealing with the offence. Unlike his colleagues,
Justice Hunt reviewed the debate in Congress and interjected the discussion in his dissent to
prove the intent of the legislation. From this evidence Hunt concluded, “It is both illiberal and
illogical to say that this protection was intended to be limited to an election for particular
65
Ibid., p. 243.
Ibid., p. 248.
67
Sec. 3. And be it further enacted, That whenever, by or under the authority of the constitution or laws of any State,
or the laws of any Territory, any act is or shall be required to [be] done by any citizen as a prerequisite to qualify or
entitle him to vote, the offer of any such citizen to perform the act required to be done as aforesaid shall, if it fail to
be carried into execution by reason of the wrongful act or omission aforesaid of the person or officer charged with
the duty of receiving or permitting such performance or offer to perform, or acting thereon, be deemed and held as a
performance in law of such act; and the person so offering and failing as aforesaid, and being otherwise qualified,
shall be entitled to vote in the same manner and to the same extent as if he had in fact performed such act; and any
judge, inspector, or other officer of election whose duty it is or shall be to receive, count, certify, register, report, or
give effect to the vote of any such citizen who shall wrongfully refuse or omit to receive, count, certify, register,
report, or give effect to the vote of such citizen upon the presentation by him of his affidavit stating such offer and
the time and place thereof, and the name of the officer or person whose duty it was to act thereon, and that he was
wrongfully prevented by such person or officer from performing such act, shall for every such offence forfeit and
pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered by an action on the case, with
full costs, and such allowance for counsel fees as the court shall deem just, and shall also for every such offence be
guilty of a misdemeanor, and shall, on conviction thereof, be fined not less than five hundred dollars, or be
imprisoned not less than one month and not more than one year, or both, at the discretion of the court.
Sec. 4. And be it further enacted, That if any person, by force, bribery, threats, intimidation, or other unlawful
means, shall hinder, delay, prevent, or obstruct, or shall combine and confederate with others to hinder, delay,
prevent, or obstruct, any citizen from doing any act required to be done to qualify him to vote or from voting at any
election as aforesaid, such person shall for every such offence forfeit and pay the sum of five hundred dollars to the
person aggrieved thereby, to be recovered by an action on the case, with full costs, and such allowance for counsel
fees as the court shall deem just, and shall also for every such offence be guilty of a misdemeanor, and shall, on
conviction thereof, be fined not less than five hundred dollars, or be imprisoned not less than one month and not
more than one year, or both, at the discretion of the court.
66
175
officers; to wit, those to take part in the affairs of the Federal government.”68 Hunt said
Congress understood the importance of allowing African Americans to protect their rights. He
concluded the Fifteenth Amendment embraced all elections, whether local or national. He
understood the reality that those enforcing the law must be taken into consideration when
determining the impact a State had on voter discrimination. Hunt believed the ruling should be
reversed and a new trial ordered upon the indictment.
This myopic definition of the Fourteenth and Fifteenth Amendments made it extremely
difficult for federal authorities to continue to protect African American civil rights. In the early
1880s, the Enforcement Acts could still be used to punish those who sought to infringe on the
civil rights of the African American citizens. The area the federal appellate division had not
dealt with directly in Florida was jury selection. Beyond the ballot this was perhaps one of the
most important civil right to have in the Republic. The ballot provided a voice in legislation;
jury trials were its implementation. Three cases in Florida sought to deal with the issue of jury
selection and the impact race had on those civil rights. The most notorious of those cases was
Charles H. Savage and Howard E. James, Plaintiffs in Error v. The State of Florida, Defendant
in Error.
Charles H. Savage was an active African American Republican in Madison County
politics. He and Howard E. James were associated with Irish born Republican leader Dennis
Eagan, who held inquiries about the voting irregularities that occurred in Madison County during
the 1880 general election. Political tensions in Madison County ran high especially after the
bloody altercation between white Democrat William T. Forrester and an African American
election official Augustus Crosby. Eagan decided to continue his inquiries and sent Savage and
James, who were in Jacksonville with Eagan, back to Madison to testify. Savage feared for his
life and arrived in Madison armed. Historian Robert Goldman wrote, “On February 8, 1881, a
young Madison County attorney, Frank Patterson, was shot and killed in the county
courthouse.”69 Savage was indicted in Madison County for the first-degree murder of Frank P.
Patterson. Howard E. James was indicted for second-degree murder for aiding in the criminal
act. Dennis Eagan was also charged with aiding and abetting in Patterson’s murder. Savage
argued that he shot Patterson in self-defense because Patterson attacked him for testifying against
68
Otto, p. 247.
Robert Michael Goldman, A Free Ballot and a Fair Count: The Department of Justice and the Enforcement of
Voting Rights in the South, 1877-1893 (New York: Fordham University Press, 2001), 88-89.
69
176
him before the grand jury. The indictment was made during the Spring Term of the Circuit
Court in 1881. During the original trial Savage feared for his life. In order to receive a fair trial
Savage requested a change of venue and it was moved from Madison to Hamilton County.
Circuit Court Judge Enoch J. Vann presided over the trial in Jasper and Bishop B. Blackwell
prosecuted the case for the state. Alva A. Knight and Joseph N. Stripling, prominent white
Republicans, defended Savage and James.70
Dennis Eagan fled the state after the events transpired in Madison. Eagan was captured
trying to board a train in Albany, Georgia. He said he fled because he did not feel he would
receive a fair trial in Madison. After his capture he was sent to the Leon County jail in the
custody of Sheriff Alexander Moseley. While in Tallahassee Eagan petitioned the State Supreme
Court for a writ of habeas corpus, which the court reluctantly granted after the state’s attorney
acquiesced. Eagan’s case was heard before the Supreme Court and the testimony of those
witnesses recounted a story of political discord turn violent.71
The first person of record to testify was C.W. Stephens of Madison County. He was a
poll inspector during the 1880 election that saw Savage as a candidate for the Assembly on the
Republican ticket. Stephens also knew Patterson as an ardent supporter of the Democratic ticket.
After the election, Stephens exchanged words with Eagan after Stephens finished counting the
ballots. He said Eagan and Patterson also exchanged words that day. Stephens did not believe
Patterson and Eagan had a friendly relationship. He testified he was in the office with Eagan
when the shots were fired. Stephens was there representing Jesse J. Finley in the election matter.
He said,
I did not see the commencement of the shooting; immediately after hearing the
reports of the pistols in quick succession I jumped up and saw Howard E. James
and Charles H. Savage and F. P. Patterson all together near the door of the court
room; I saw Patterson as though he seemed to be pulling off from the two
negroes, Savage and James; I left my seat and ran towards them as fast as I
could.72
70
Ibid.
George P. Raney, Cases Argued and Adjudged in the Supreme Court of Florida, During the Years 1881-1882,
Vol. XVIII (Tallahassee: Floridian Book and Job Office, 1882), 194-195.
72
Ibid., p. 202.
71
177
He did not remember hearing Eagan mention anything about killing Patterson. He testified that
an African American named Burk Stevens had been locked in the room with them and became
uneasy and wanted out of the room. Stephens said Stevens went to the window and talked with a
group of African Americans that had congregated outside. Stephens was then asked if that
conversation incited excitement amongst the crowd, which he answered in the negative. He later
joined the posse that eventually arrested Savage and James and he did not remember Eagan
assisting in the apprehension of the suspects. In the redirect by the defendant’s counsel,
Stephens said he did not see Eagan threatened by any of the members of the posse, but words
were exchanged.73
Benjamin Franklin Moseley, drugstore owner in Madison, was sworn in and deposed. He
testified to the contentious nature of Eagan’s character after the 1880 general election. He said
Eagan left Madison County for Jacksonville after the election to a position as revenue collector.
Parramore Smith Coggins testified he saw Savage and James with Springfield Army Cavalry
rifles, breech-loaders, at the train depot when they came in from Jacksonville.74 John B. Brinson
testified he saw Savage, James, and Eagan with guns when they disembarked the train. Brinson
said that he had seen others in the county, black and white, with those guns, but never after they
got off a train.75
Edmond Burroughs, an African American, testified Savage and James left their rifles at
his house the night before Patterson was shot. Burroughs said after the incident occurred Amos
Savage, Charles’s father, went to his house to pick up the guns. Savage and James had already
been taken to jail when Amos picked up the guns. The court records do not provide an adequate
voice for the African American participants in this affair, but what little is available proved they
actively engaged in this affair.76
The Madison County Sheriff, Sylvanius M. Hankins testified he arrested the pair in the
courthouse where the incident occurred. He testified that he,
Placed a guard at the door to keep the negroes from going up stairs until I made
the arrest; some of the negroes [sic] were armed; I saw one double-barrel gun, and
some of them had sticks; Burk Stephens' [Stevens] wife was in a wagon with a
73
Ibid., p. 207.
Ibid., p. 216.
75
Ibid., p. 213-217.
76
Ibid., p. 217-218.
74
178
gun calling to the crowd to come on and show themselves as men; the wagon that
Burk Stephens' wife was in was about twenty feet from the court-house door.77
W. R. Boyd testified that Viney Stevens was standing in a wagon with a double-barrel shotgun
telling African Americans in the crowd to go into the courthouse and keep the white posse from
taking them. She further stated they should arm themselves before they go into the courthouse.
She told the men not to be cowards and to help Savage and James. Boyd told Stevens to lay
down her gun and she complied by sitting down in the wagon and laying her gun across her lap.
She did not stay in the seat for long. Boyd further testified Viney Stevens said now was the time
because the white men would be there soon with their guns. Boyd said he and some others tried
to calm the crowd of African Americans who became more excited when Savage and James
were brought out of the courthouse in the Sheriff’s custody.78
Amelia Daniels was an African American woman who lived with and worked for John
Miller, who lived on the route to Eagan’s plantation and near the African American school in
town. Daniels testified, “I saw a little boy running by the gate, and he said ‘the white people had
been killing up the black people and they were not going to stand it any longer.’”79 D. L. M.
Walker testified he saw a “colored woman” say “that Burk Stephens [Stevens] was too smart for
them, they would not get him.”80 Horatio Jenkins further testified that when the Sheriff and the
prisoners walked outside he saw white men coming out the stores with a general indication that
trouble was about to ensue, but nothing happened at that time.81
After being locked in the room with those involved with the altercation Burk Stevens
alerted the crowd of African Americans outside as to what had happened. The fear within the
community was that Savage and James would be lynched for the shooting and they would never
see the inside of the courtroom. After word came to Viney Stevens she sought to protect her
husband by bringing guns and people to the courthouse. This may seem to be excessive force
and perhaps the guns may have been unnecessary. Unfortunately, this does not hold up in a rural
town such as Madison. Like most rural Southern towns Madison had a gun culture because there
was not enough police presence to protect them if necessary so Stevens, or even Savage and
James for that matter, would have had a gun and would have been willing to use it. Ortiz writes,
77
Ibid., p. 221.
Ibid., p. 221-224.
79
Ibid., p. 237.
80
Ibid., p. 238.
81
Ibid., p. 248.
78
179
“Armed self-defense was part of a long tradition of black resistance in Florida.”82 For her effort
Stevens was arrested and charged with attempting to aid in the escape of two prisoners, which
was a felony. Stevens was convicted of all charges and immediately made a motion to arrest the
judgment, but it was overruled. She then appealed her case to the State Supreme Court.
Joseph N. Stripling represented Stevens and Justice Robert Bruce Van Valkenburgh
delivered the court’s opinion. The court stated Stevens was, “not standing in the relation of
husband or wife, parent or grandparent, child or grandchild, brother or sister, by consanguinity or
affinity to either of such prisoners.”83 This was noted because the statute dealing with crime
makes this distinction. Stevens was indicted for aiding in Savage and James’s escape. The error
with this charge was that Savage and James never escaped custody as evidenced in the testimony
of Ex Parte Eagan. Stevens was also accused of offering a large group of “evil-disposed
persons” firearms to assist in the escape of the fugitives. Justice Van Valkenburgh questioned
whether this was a good indictment because it did not state whether she actually prevented the
officer from doing his duty. He said this was important because if they had indeed escaped she
would be charged under a different statute, which provided a different punishment. As a result
of this question the State Supreme Court ruled the indictment was too vague to be supported by
law and the judgment was arrested and Stevens was discharged.84
The testimony in the Eagan case revealed the events that transpired and the role Savage
and James played in it. The testimony given by the witnesses failed to adequately discuss
Savage’s claim that Patterson attacked him first and he fired in self-defense or whether Eagan
was actively involved in the affair or any other event that transpired. The majority of the
witnesses were white with the exception of one African American male and one African
American female. After the Supreme Court Justices reviewed the testimony they decided to
discharge Eagan because there was not enough evidence to warrant his continued detention and
trial.85
The U.S. Department of Justice became intrigued when it received news of violence in
Madison. The renewed violence was over the inquiry into the election for the Second
Congressional District between Horatio Bisbee and Jesse J. Finley. Bisbee sent a report to the
82
Oritz, p. 216.
Raney, p. 904.
84
Ibid., p. 906
85
Ibid., p. 254.
83
180
U.S. Attorney General Charles Devens explaining the events that had transpired. United States
Marshal Joseph H. Durkee compiled an account of the event three days later. Durkee reported
the excitement in the community was so great that Judge Vann contacted Governor William D.
Bloxham and asked him to send troops to guard the jail. Bloxham complied and sent two
companies of men to Madison. In order to further insure the security of the accused, Governor
Bloxham had them moved from Madison to Tallahassee. While in Tallahassee, Savage tried to
have his case moved to the U.S. District Courts because he felt he could not get a fair trial in the
state courts and he feared for his life. Savage and James knew if they were tried in a state court
they would be convicted and executed. His request was denied. The case went to the State
Circuit Court in Hamilton County where as predicted they were found guilty and sentenced to be
hanged. Their counsel immediately appealed the verdict, but they needed to raise $1,500 to
cover the costs of the appeal. Dennis Eagan was able to raise money for their defense.86
After their conviction on April 19, 1881, Savage and James’s counsel immediately made
a motion to appeal the judgment. In the writ of errors they argued the defendants were unable to
obtain legal counsel until a few days before the arraignment. They also argued that the jury pool
was biased and resulted in a discriminatory verdict. They pointed out that in 1881 the Madison
County Commissioners selected a jury list of 300 men. Only thirty-eight of those men were
African American. The remaining potential jurors were whites who were either former
slaveowners or taught to regard African Americans as inferior and not entitled to equal rights.
They concluded that 800 African American men were qualified to be on that list and only thirtyeight were selected. As a result of this biased jury they concluded it was necessary to waive their
guilty plea and make a plea in abatement in order to postpone the trial. Madison Mayor Frank
W. Pope testified he personally knew the County Commissioners who created the list and he
believed the African Americans left off of the list were not excluded purposefully or with malice
intentions. During the trial, they tried to strike Pope’s testimony from the record but Judge Vann
overruled their objection.87
Knight, White, and Stripling, Savage and James’s attorneys, filed a brief along with the
writ of errors outlining their position to the court. They wrote, “The plaintiff in error, in the
petition which he filed for transfer of his cause to the United States Circuit Court, alleged that all
86
Jesse Jefferson Jackson, “The Negro and the Law in Florida, 1821-1921: Legal Patterns of Segregation and
Control in Florida, 1821-1921” (M.A. Thesis, Florida State University, 1960), 148.
87
Raney, p. 912.
181
colored persons were excluded from serving as jurors on account of their race and color.”88
They cited the U.S. Supreme Court Case Neal v Delaware, which stated exclusion from a jury
because of race, was a violation of the prisoner’s rights and courts must redress this issue. They
argued the Madison County Commissioners purposefully omitted 800 potential jurors based on
race and previous condition of servitude. They said Frank Pope’s affidavit stated there was only
one African American on the grand jury. There were none on the petit jury. As a result of this
discrimination Savage and James’ counsel argued they should be able to withdraw their not
guilty plea and make a plea in abatement. They felt it was necessary to bring fresh proceedings
because of this error made by the State. They further cited in Virginia v. Rives that if a court
officer obtained a jury list through discriminatory practices the defendants did have legal
recourse. Counsel further argued the defendants were on trial for their lives, they were recently
emancipated, poor and friendless. Counsel overstretched themselves in claiming they were
friendless, but they did accurately feel they were quickly arraigned and forced to make a plea
without creating a suitable defense. They also were granted a change of venue because there was
tension in the community over the murder. They believe these issues should have been taken
into consideration in withdrawing the plea and filing a plea in abatement.89
The County Commissioners created their grand and petit jury lists at their January 1881
meeting. Defense counsel said discrimination against potential African American jurors had
become a custom over the past four years. As a result of this process they felt the venire should
have been quashed because not only did it occur in Madison County, but Hamilton as well.
Counsel also felt the court erred in giving the prosecution ten peremptory challenges and the
defendants only had five. They argued the statute outlined that the defendant should have
received twenty challenges to the State’s five and since there were two defendants those numbers
should have been doubled for both parties. They asserted that potential jurors were asked if they
felt pressure from the community to sway the verdict against the defendants or if they had any
biases towards the accused. The State had objected to these questions during the original trial
and it was sustained. Counsel claimed that the answers to these questions would have shown the
true feelings towards the defendants and better established their competency as jurors.90
88
Ibid., p. 920.
Ibid., p. 922.
90
Ibid., p. 930.
89
182
Florida Attorney General Raney said there was nothing in the petition to constitute a plea
in abatement. The defendants were treated equally before the law and received the same jury as
any other county citizen. Raney did not deny that out of a pool of 800 potential African
Americans only thirty-eight were chosen to be on the jury lists, but he argued if they sought to
discriminate against blacks then there would not be any on the jury list. He was also supportive
of having 300 white potential jurors on the list from a county with a majority of African
American citizens in it. All parties agreed there were at least 500 more potential black jurors
than white jurors, but Raney argued that a 4.75% sampling of the black electorate as opposed to
a 52.4% sampling of the white electorate was ample evidence to support nondiscriminatory
practices. Raney further stated, “No person is anywhere guaranteed the right to have one or
more colored persons on the list, or on his jury; it is merely a right against having colored
persons excluded there from on account of their color.”91 Raney also cited Virginia v. Rives, “A
mixed jury in a particular case is not essential to the equal protection of the laws, and the right to
it is not given by any law of Virginia [nor Florida], or by any federal statute. It is not, therefore,
guaranteed by the 14th Amendment.”92 He argued that the plaintiffs in error had not provided
sufficient proof to support the charge of discrimination in jury selection. They also had at least
twelve to fourteen days to make this determination about the make up of the jury and should
have made a motion before pleading not guilty. Therefore it was not necessary to withdraw the
original plea for one in abatement.93
Raney’s response to the error regarding preemptory challenges stemmed from the lower
court not quashing the venire of the petit jury because the state took more challenges than the
defense. He did not believe the jury was biased as a result and argued the process of jury
selection and venire was legal. The Clerk of the Court drew the names and the State was not
required to provide the name of the clerk who did so. The certificate did show the clerk chose
the names in the presence of other court officers as required by law. He said the defendants were
given ample opportunity to question and select potential jurors and were in no way discriminated
against in the process. Raney did believe the extra challenges exercised by the State negatively
impacted the plaintiffs in error because lesser jurors were not empanelled, but it did not believe it
was grounds for a reversal. Within the context of this analogy, Raney does not provide any
91
Ibid., p. 935.
Ibid., p. 936.
93
Ibid., p. 936-938.
92
183
examples of when it was appropriate to reverse a judgment when the state takes several
challenges to the defendants few. Raney concluded his response to the preemptory challenges by
stating that when no harm comes to the prisoners as a result of this issue then there are no
grounds to a new trial. What exactly constitutes harm and who makes that distinction? Raney
did not attempt to delve into these questions because the answer could negatively impact his
argument. There was not a statute or precedent to support this claim.94
Chief Justice Edwin M. Randall delivered the court’s opinion. He said when Savage and
James, plaintiffs in error, pled guilty they could not rescind their plea and make one in
abatement. Plaintiffs in error stated the jury was made of white former slaveowners. Randall
stated there was no evidence to support this claim as overtly discriminatory so the venire could
not be quashed. Randall agreed with the plaintiffs in error arguing the State had excessive
preemptory challenges and it had an impact on the rights of the accused. He agreed with
Raney’s argument that the accusations were unsubstantiated therefore it was not an error that
could reverse a judgment. He did not reverse the case because of jury discrimination.
Randall instead went after the intent of the action and the subsequent sentencing after
conviction. He argued the case in the lower court failed to prove the intent needed to convict a
person of first-degree murder. He said the instructions to the jury should have articulated that
the state must prove the murder was a deliberate act of forethought. “There are here three stages
of mental progress necessary to be established by the State according to this proposition: the
conception of the thought of taking life, meditation upon the conception and thought, and finally
deliberate determination after meditation followed by the execution of the original conception.”95
Randall said this series of events had to be experienced by the murder in order to be found guilty.
He did not believe the State’s case proved this beyond a reasonable doubt. Randall also noted
the sentence was improperly applied because the statute stated an execution had to occur in the
prison of the county in which the criminal act transpired. Judge Vann said the Sheriff of
Hamilton County instead of Madison should complete the execution. Randall said the argument
was not provided in the writ of errors, but felt it was necessary to resolve at that time. The court
reversed the judgment and ordered a new trial.
94
95
Ibid., p. 943.
Ibid., p. 965-966.
184
After the appeal Savage and James were granted a new trial. On their way to Tallahassee
from Jasper, Savage and James were attacked in Madison. A white mob waited for the train
transporting them in Madison and when it stopped they forced their way into the railcar shooting
Savage multiple times. James was able to escape the railcar, but was pursued and shot by the
mob. Hugh Patterson, Frank Patterson’s brother, was one of the few assailants indentified by
eyewitnesses.96
While many politicians publically denounced the actions of the mob, none of the
perpetrators were ever tried in a court of law and the official coroner’s report stated they were
killed by unknown persons; a typical official response to spectacle lynchings in the South. This
was a measured response by Florida Democrats because proof of voter intimidation and violence
could lead to federal interference in the state’s political process. Edward C. Williamson wrote,
“Scholarly George Fairbanks editorialized in his Fernandina Florida Mirror that the Madison
lynching was of far greater importance than just the race issue; it was a question of which would
prevail; ‘law or anarchy.’”97 Fairbanks failed to recognize the scope of the events that transpired
in Madison County. Law and order was merely one facet of this public discourse.
At the heart of this issue was societal control through fear and intimidation. As Bourbon
Democrats sought to regain control of the reins of government there was an intensification of
violence as part of the electoral process. This began as an argument over election discrepancies
and ended in the deaths of Frank Patterson, Charles H. Savage, and Howard E. James. Patterson
was incensed by Savage’s testimony against him and attacked him resulting in Savage’s deadly
response. This was not about law and order; it was about power. Black Republicans such as
Savage were willing to exercise their political rights, but when they questioned the methods of
their counterparts the consequences could be deadly. The lynching of Savage and James is
evidence of what happened when the proper authorities did not protect citizens’ civil rights. The
Civil Rights Movement has countless martyrs and Savage and James should be included among
them for their sacrifice. Many in the black community understood the necessity for political
leverage and were willing to protect it not only in the court systems, but in their town’s streets as
well.
96
Edward C. Williamson, “Black Belt Political Crisis: The Savage-James Lynching, 1882.” The Florida Historical
Quarterly, Vol. 45, No. 4 (Apr., 1967), 408.
97
Ibid., p. 409.
185
The question about the prejudices of all white juries continued to be an issue in Florida
through the remainder of the nineteenth century. There were two Supreme Court cases that
illustrated this problem: Peter Pinder, Plaintiff in Error v The State of Florida, Defendant in
Error and Israel Jenkins, Plaintiff in Error v The State of Florida, Defendant in Error. These
cases dealt with the voir dire of the jury pool. These African American defendants felt it was
appropriate to question potential jurors as to their prejudices or pressures they felt from their
community would impact their ability to be objective. These concerns were typically overruled
in the Circuit Courts, but were reasonable grounds for an appeal to the Supreme Court.
The Supreme Court split the decisions regarding these cases. In Pinder the African
American defendant killed a fellow African American as a result of an argument over the
payment of fifty-cents. The jurors were questioned by the defense regarding the prejudices of
potential jurors that the lower court deemed inappropriate. The Supreme Court felt it was
necessary to determine the competency of a potential juror and reversed the judgment and
ordered a new trial.98
In Jenkins, the Supreme Court did not take the same precautions when the African
American defendant set fire to a cotton mill owned by a white man. The defense asked potential
jurors if they could weigh evidence the same for an African American as they would a white
person. The court felt this question was inappropriate because the race of potential witness was
immaterial at the time of the voir dire.99
Florida was concerned the federal government would intervene if the rights of African
Americans were not properly protected. The Enforcement Acts of 1870, 1871, and 1875 were
designed to extend the reach of the Civil War Amendments. The federal government extended
its authority as the sovereign protector of the inalienable rights of its citizens. The scope of the
amendments had been narrowed in previous U.S. Supreme Court rulings, but the Civil Rights
Cases of 1883 restricted all federal protections to the point of being figurative. Plessy v
Ferguson is usually viewed as the case that impacted the Civil Rights Movement the most, but
the Civil Rights Cases laid the groundwork for the Plessy decision. The counterpoint to this
destruction was the impact of Supreme Court Justice John Marshall Harlan. His dissenting
98
William B. Lamar, Cases Argued and Adjudged in the Supreme Court of Florida at the January Term, 1891, Vol.
XXVII (Tallahassee: Tallahasseean Book and Job Office, 1892), 370-375.
99
William B. Lamar, Cases Argued and Adjudged in the Supreme Court of Florida, At the January Term, A. D.
1893, Vol. XXXI (Tallahassee: Tallahasseean Book and Job Office, 1893), 196-205.
186
opinion in the Civil Rights Cases was an expanded version of his Plessy dissent. In both
instances Harlan excoriated his colleagues for their myopic interpretation of the Enforcement
Acts and Civil War Amendments. Perhaps more than any other justice on the court Harlan
understood the legal intent of this legislation and the impact it would have if restricted.
The Civil Rights Cases was made up of five separate cases that dealt with discrimination
in public spaces. Civil Rights Cases encompass:
1. United States v. Stanley (Kansas)
2. United States v. Ryan (California)
3. United States v. Nichols (Missouri)
4. United States v. Singleton (New York)
5. Robinson & Wife v. Memphis and Charleston Railroad Company (TN)
These cases challenged the Civil Rights Act of 1875, which was supposed to protect equality in
public accommodations, public transportation, and exclusion from jury selection. The Stanley
and Nichols cases were levied because of the refusal of accommodations and privileges of an inn
or hotel. Ryan was denied a seat at Maguire’s Theater in San Francisco. Singleton was denied a
seat at the Grand Opera House in New York. Robinson originated in the Western District of
Tennessee because his wife was refused accommodations on the Memphis & Charleston railroad
car. Robinson sought to recover the $500 fine levied against them. The Robinson case originally
ruled in favor of the Railroad Company and Robinson filed a writ of error stating the judge
improperly charged the jury about the conductor’s testimony. The conductor alleged Mrs.
Robinson was not a proper lady because a white man allegedly accompanied her. The judge
allowed this testimony so the jury could consider it in their deliberations about the company’s
liability. Stanley, Nichols, and Singleton were appealed because the judges in the lower court
were divided in their decision. The Ryan case came to the court because the lower court
sustained a demurrer to the information. Stanley, Ryan, Nichols, and Singleton were submitted to
the court on November 7, 1882. Robinson was presented on March 29, 1883.
The court used Slaughter-House, Cruikshank, and Reese as citations explaining the
meaning and intent of the Civil War Amendments. Solicitor-General Phillips wrote,
Restraint upon the right of locomotion was a well-known feature of the slavery
abolished by the Thirteenth Amendment. A first requisite of the right to
appropriate the use of another man was to become the master of his natural power
187
of motion, and, by a mayhem therein of the common law to require the whole
community to be on the alert to restrain that power.100
Phillips further stated that restriction of locomotion was a trespass against liberty committed by
private citizens in several regions of the country. He argued the Enforcement Acts were
appropriate legislation in full view of the Republic’s recent history to prevent the creation of a
new oppressive institution. Phillips argued the denial of accommodations and privileges of inns
and public conveyances fell under the Civil Rights Act of 1875 because the individual was part
of the community, “State,” and offered public accommodations. William M. Randolph, counsel
for Robinson & Wife, said of the Robinson case, the penalty was a denial of the full enjoyment
of accommodations because of race. This penalty was not applicable to all races, because whites
did not have to pay the same fines nor move from the black cars.
In Justice Joseph P. Bradley’s majority opinion he said the Fourteenth Amendment
prohibited state action and not individuals against other individuals. Congress was not granted
the power to pass laws that encroached on the States’ ability to legislate within its jurisdiction.
Bradley argued if Congress began to protect civil rights beyond the scope of the Constitution
they were in effect passing municipal law regulating all private citizens. In his mind the state
legislatures would cease to exist if this was allowed to occur. He said, “It is absurd to affirm
that, because the rights of life, liberty and property (which include all civil rights that men have),
are by the amendment sought to be protected against invasion on the part of the State without
due process of law, Congress may therefore provide due process of law for their vindication in
every case.”101 He argued that if the United States Congress legislated the interactions of
individuals en lieu of the state legislatures then it would violate the Tenth Amendment. The
Constitution could only protect the usurpation of civil rights by the federal and state
governments. He said the wrongful act of an individual acting outside legal authority was a
private wrong and not a state sanctioned act, so the state was not culpable.
Bradley foolishly stated an individual could not deprive a person of their rights. They
can intimidate them through criminal means, but unless these acts were empowered with state
authority those rights cannot be destroyed. Bradley refused to understand that if the state did not
protect citizens, through incompetence or refusal, from this type of aggression they were
100
J. C. Bancroft Davis, Cases Argued and Adjudged in the Supreme Court of the United States, October Term,
1883 (New York: Banks & Brothers, Law Publishers, 1884), 6.
101
Ibid., p. 13.
188
culpable. Is it not state sanctioned when members of the political community of that state
decided to impede the civil rights of fellow members of that community who by law have the
same rights as they do? By taking this narrow view of federal and state relations Bradley
undermined the ability of the federal government to protect its African American citizens.
Bradley did not believe denial of accommodations and privileges at an inn, public
conveyance, or theatre violated the Thirteenth Amendment because it did not subject them to
servitude or place the badge of slavery upon them. His remarks regarding the argument were a
strong example of the court’s impressions of the Thirteenth Amendment. Bradley said, “it would
be running the slavery argument into the ground to make it apply to every act of discrimination
which a person may see fit to make as to the guests he will entertain, or as to the people he will
take into his coach or cab or car, or admit to his concert theatre, or deal with in other matters of
intercourse or business.”102 He asked how long it would be necessary to enforce laws for the
protection of African Americans. He said once they were elevated to the status of citizen they
had the same rights as other citizens to life, liberty, and property, therefore it would be
unnecessary for them to be the “special favorite of laws.”103 Bradley did not believe racial
discrimination was a badge of servitude. The judgments of Ryan and Robinson were affirmed.
For Nichols, Singleton, and Stanley the Civil Rights Act of 1875 was deemed unconstitutional
and the judgments of the lower courts should reflect that decision. Justice John Marshall Harlan
wrote the dissenting opinion. Harlan poignantly stated,
The opinion in these cases proceeds, it seems to me, upon grounds entirely too
narrow and artificial. I cannot resist the conclusion that the substance and spirit
of the recent amendments of the Constitution have been sacrificed by a subtle and
ingenious verbal criticism. It is not the words of the law but the internal sense of
it that makes the law: the letter of the law is the body; the sense and reason of the
law is the soul.104
He stated that the court had always delicately handled the relationship between legislative power
and constitutional limits. The court typically voided legislation when it violated the constitution
beyond a reasonable doubt. He said, “One branch of government cannot encroach on the domain
102
Ibid., p. 24-25.
Ibid., p. 25.
104
Ibid., p. 26.
103
189
of another without danger. The safety of our institutions depends in no small degree on a strict
observance of this salutary rule.”105
Harlan masterfully articulated how the role of the federal government evolved from the
antebellum to post-bellum periods. He argued that the Constitution gave the federal government
the implied power to enforce the Fugitive Slave Law in states where slavery was abolished in
order to protect the property of slaveowners. Following this line of logic Harlan said
emancipation forced an evolution in this concept. He said, “That doctrine ought not now to be
abandoned when the inquiry is not as to an implied power to protect the master's rights, but what
may Congress, under powers expressly granted, do for the protection of freedom and the rights
necessarily inhering in a state of freedom.”106
He argued the Thirteenth Amendment was designed to remove the institution of slavery,
not just the servitude. The institution was codified by law and created a status of non-person in
the eyes of the law. By simply ending the form of involuntary servitude did not destroy the
institution. Harlan argued,
That there are burdens and disabilities which constitute badges of slavery and
servitude, and that the power to enforce by appropriate legislation the Thirteenth
Amendment may be exerted by legislation of a direct and primary character, for
the eradication, not simply of the institution, but of its badges and incidents, are
propositions which ought to be deemed indisputable.107
He believed it was necessary to protect the rights of the formerly enslaved people in order to
eradicate all vestiges of slavery.
Harlan stated that the Fourteenth Amendment was adopted to remove the vestiges of
slavery by providing protection of fundamental rights to make and enforce contracts, to sue, give
evidence, and inherit and convey property. He concluded that because of slavery it was more
important to protect the formerly enslaved than any other group. While Harlan’s reasoning may
have been slightly paternalistic regarding the inferiority of the former slaves, it did have some
merit. He said since slavery, “rested wholly upon the inferiority, as a race, of those held in
bondage, their freedom necessarily involved immunity from, and protection against, all
discrimination against them, because of their race, in respect of such civil rights as belong to
105
Ibid., p. 28.
Ibid., p. 34.
107
Ibid., p. 35.
106
190
freemen of other races.”108 He realized slavery was equated with race and it was necessary to
make sure that discrimination did not carry on into a free society. Harlan questioned whether
legislation like the Black Codes during Presidential Reconstruction did not create a badge of
servitude by excluding people from finding their own economic stability through property. He
said there was not a court in the country that would not find this a violation of the Thirteenth
Amendment. He also said it was inconsistent with the Fourteenth Amendment and the
fundamental rights of citizenship.109
Regarding their rights on railroads, Harlan explained that the railroads ran for the public
benefit and the government typically made improvements to those highways. The land in which
railroad tracks were located could not be sold to satisfy a creditor because of the public interest.
Harlan believed this relationship bound the private companies to adhere to the rights of its
passengers as the government would because it was necessary to the public benefit. As a result
the business was invested with government authority and the court could regulate their actions.
Harlan said discrimination itself did not infer a badge of servitude, but when a class of people
was denied equal access to accommodations they were labeled inferior, or infected, thusly
“robbed of some of the most essential means of existence.”110 He contended that inns and places
of amusement have the same relationship with the government as railroad companies because
they are proving a public service.
Justice Harlan discussed how the Fifteenth Amendment protected the elective franchise
and argued if that was the case then suffrage came from the federal government, not the states
and therefore could be protected by its authority. Congress had the right to determine the
passage of appropriate legislation, not the judiciary, Harlan claimed, and that he did not believe
Congress had overstepped its authority with the passage of the Civil War Amendments or the
Civil Rights Acts. He said during slavery Congress was authorized to make direct and primary
legislation to protect the property of the master in every state with the fugitive slave law. Harlan
stated,
With all respect for the opinion of others, I insist that the national legislature may,
without transcending the limits of the Constitution, do for human liberty and the
fundamental rights of American citizenship, what it did, with the sanction of this
108
Ibid., p. 36.
Ibid., p. 36-37.
110
Ibid., p. 30-40.
109
191
court, for the protection of slavery and the rights of the masters of fugitive
slaves.111
Harlan effectively analogized his fellow justices opinions to antebellum traditions.
Harlan said, “It was perfectly well known that the great danger to the equal enjoyment by
citizens of their rights, as citizens, was to be apprehended not altogether from unfriendly State
legislation, but from hostile action of corporations and individuals in the States.”112 This was a
key point in this debate. Justice Waite and Bradley wrote their opinions based on the concept
that the greatest threat to liberty was the government. While this concept was not misplaced it
was born of revolution and the perceived trampling of rights by the British Parliament. The
events that transpired in the Republic created a new wrinkle in this argument that needed to be
taken into consideration, fellow citizens. When the Constitution was written the convention was
not focused on how citizens would infringe on the rights of other citizens, but the government.
This concern was evident with the passage of the Bill of Rights. The discrimination connected
with slavery, regardless if a person was enslaved or not, caused the federal government to review
its position as protectors of civil rights. Were the rules only designed to impact the role the
government played in the infringement of rights or would it be expanded? Logic would dictate
that a government of the people and for the people needed to understand that the people could
also infringe on the individual’s rights. Perhaps the convention understood this best and realized
the abolition of slavery would have created a new set of legal definitions they were not wholly
prepared to deal with, but war and emancipation forced this task on the Republic and not
everyone agreed with how to proceed. “Exemption from race discrimination in respect of the
civil rights which are fundamental in citizenship in a republican government, is, as we have seen,
a new right, created by the nation, with express power in Congress, by legislation, to enforce the
constitutional provision from which it is derived.”113
Harlan said the amendments did not interfere with the State’s rights to control its
domestic affairs, but did recognize the enlargement of the powers of general government to
protect civil rights from all threats. He wrote that the government could not legislate social
interactions between individuals and he did not advocate that, but affirmed that no one wielding
authority of the State whether given directly or through a business for the public benefit could
111
Ibid., p. 53.
Ibid., p. 54.
113
Ibid., p. 56.
112
192
discriminate against African Americans. Harlan argued that African Americans had a legal right
to use public space or accommodations the same as whites. He explained there had always been
a class of citizens discriminated against, and that the group who felt the tyranny of this time was
African Americans. He predicted that at some point in time it would be another group who
would be oppressed, but if the constitutional amendments were enforced properly it should not
happen in the American Republic. Unfortunately, Harlan’s colleagues did not share his
interpretation of the intent of the Enforcement Acts and the Civil War Amendments. As a result
the legislation was practically unenforceable and left the protection of African American civil
rights to the very authority seeking to restrain them.114
The Civil Rights Movement spiraled downward as many African Americans saw the
guarantees of civil rights eroded away through antiquated jurisprudence. The U.S. Supreme
Court justices were unwilling to allow any change in the enumerated powers of the federal
government. For the first time in the Republic’s history the federal government was forced to
define civil rights in order to protect them. No longer were the concepts of life, liberty, and
property only found in the Declaration of Independence. The Civil War Amendments, Civil
Rights Acts, and Enforcement Acts all sought to define citizenship and the protections afforded
to it. This was unprecedented in American political history, but as unprecedented as the
definition was, the removal of it was even more so.
When the U.S. Supreme Court ruled the Enforcement Acts as unconstitutional this paved
the way for Florida lawmakers to begin their restriction of African American civil rights. The
Constitution of 1885 and the legislation that followed was strong evidence to that effect. The
convention deemed it necessary to pass a poll tax as a suffrage requirement, forever prohibited
intermarriage, and stipulated the races would be separated in their education. In the entirety of
the document this was the only place where the word “colored” was used. In the requirements
for suffrage the language was kept colorblind. This was designed to make sure federal
authorities could not intervene as they had in the past, but with the recent verdict in the Civil
Rights Cases it was unlikely the federal government was going to intervene.115
After the Constitution of 1885 was ratified the state legislature further regulated the
interaction of the races in the public sphere. In 1887 lawmakers empowered railroad conductors
114
Ibid., p. 62.
A. H. King, Constitution of The State of Florida Adopted by the Convention of 1885, Together With An
Analytical Index (Jacksonville: Dacosta Printing and Publishing House, 1887), 22-30.
115
193
with police powers to remove African Americans who were found in the “whites only” railroad
car. Conductors were allowed to detain them until they could be turned over to the local
authorities and tried for violation of the Jim Crow law. The statute stated first-class tickets were
to be sold at the same rate, but the accommodations provided must be separate and never
integrated. The only African Americans allowed to ride in the “white” car were nurses caring for
white patients. If an African American refused to comply they could be fined $500 and
sentenced to six months in prison.116 This law infringed upon African Americans’ right to move
about with liberty. The government who empowered the railroads to enforce their laws
controlled their movements. Alice Williams, an African American woman, challenged this law
in the courts, but her case did not challenge segregation directly. Williams filed a tort case
because she was injured when the railroad company sought to enforce the law.
Alice Williams et al., Appellants v Jacksonville, Tampa & Key West Railway Company,
Appellee was an appeal from the Fourth Circuit Court of Duval County with Judge James M.
Baker presiding. The language of this complaint dealt with the issues of the era. Williams as an
African American woman had to define herself as lady-like in all manners of dress and action.
This was used to explain not only that she did not instigate the confrontation, but that she should
have been treated as a lady. The other issue at hand was that Williams simply wanted what she
paid for, first-class accommodations. Historian Barbara Welke focused on this aspect of the
story. She discussed the impact of marriage on the lawsuit, but failed to place it within the scope
of Civil Rights historiography. The role of gender is important to this story, but not the impact
of marriage on the lawsuit. What is important to mention is how Williams had to clarify her
demeanor and enforce the notion that she was indeed a lady: a concept that was not always
accepted among the white populous. 117
According to her complaint on September 20, 1886, Williams and her husband, Daniel B.
Williams, were traveling on the railroad between Jacksonville and Palatka. At the Green Cove
Spring rail station the conductor asked her to change cars because of her race. When she refused
to change cars the conductor with the assistance of the brakeman forcibly and violently removed
her from the railcar. By way of their lawyer, Joseph Robinson Parrott, the railroad company
116
Pauli Murray, ed., States' Laws on Race and Color and Appendices: Containing International Documents,
Federal Laws and Regulations, Local Ordinances and Charts. (Cincinnati: The Methodist Church Literature
Division, 1951), 85-86.
117
Barbara Young Welke, Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 18651920 (Cambridge: Cambridge University Press, 2001), 303-306.
194
replied to the declaration stating they were not guilty. They argued, “Alice Williams suffered
any injuries at the time set forth in said declaration that said injuries were the result of her own
carelessness negligence and wrong-doing.”118 They further argued, “that it or its agents servants
or employers never did illegally, wrongfully and willfully order the said Alice as alleged to leave
said first-class car.”119 They also alleged they never ordered her into a second-class car, so by
default they had not committed assault and battery upon Williams. The company denied any
culpability in the physical and mental distress experienced by Williams.120
The defendant stated they offered, “Alice Williams a first class car and a car equally good
with equally good accommodations with every car on the train provided for persons paying the
same fare as paid by the plaintiff.”121 The defendants also questioned why Daniel Williams was
one of the plaintiffs because he was not injured and therefore had no interest in this cause. The
railroad company claimed Alice Williams was not a decent lady and was objectionable to the
other passengers. They further alleged, “Alice Williams was one of several conspiring on said . .
. day . . . to damage and do injury to the said defendant in its business as a common carrier.”122
Williams’s counsel Robert Hilton and John Wallace tried to have Parrott’s pleas set aside
because it was not sworn in properly. They also said that each and every one of Parrott’s pleas
were, “insufficient in law.” They argued the pleas did not directly answer their actions and were
generally vague and uncertain. Judge Baker responded to the plaintiff’s demurrer to the
defendant’s pleas and sustained their objections to several of the pleas. Hilton and Wallace
amended their original plea stating the conductor acknowledged her presence in the first-class
car from Jacksonville to Green Cove Springs, about half the distance to Palatka. They argued the
conductor permitted and gave Williams sanctuary until Green Cove Springs. Parrott replied to
this amended plea stating it was vague and indefinite and if admitted the plaintiffs had no cause
of legal action. Judge Baker overruled Parrott’s objections.123
After all pleas and demurrers were settled the trial in the Fourth Circuit Court was finally
held on May 23, 1888. When the plaintiffs called Alice Williams to testify the defense objected
to her competency as a witness. They said she could not testify because her husband was a
118
Williams v. Jacksonville, Tampa, & Key West Railway, Florida State Archives, Record Group 1100, Series 49,
Box #498 & #685.
119
Ibid.
120
Ibid.
121
Ibid.
122
Ibid.
123
Ibid.
195
fellow plaintiff in the suit. The court sustained the objection. The plaintiffs did not have any
other witnesses to call and rested their case. The judge ruled the case a non-suit and the
plaintiffs had fifteen days to draft a Bill of Exceptions in order to appeal the decision. Hilton and
Wallace then made a motion for Judge Baker to make a final judgment on the cause in February
5, 1889. The reason this motion was made was because the Clerk of the Court had failed to file
the original judgment on May 23, 1888. Baker officially non-suited the plaintiffs and made them
pay the defendants court costs. It was officially placed on record, which meant the plaintiffs
could now appeal the decision based on their objection to the exclusion of Alice Williams’s
testimony.124
Once they appealed the judgment the plaintiffs had to agree to pay all court costs with
interest if they lost their appeal or it was dismissed. Alice Williams, Daniel B. Williams, and
Alonzo R. Jones signed the guaranty. Jones, an African American activist from Jacksonville,
served as an election inspector and took an active role in reform movements in municipal
governments. He was also a member of the Masons, Odd Fellows, and Knights of Pythias.
After an incident between an African American man and a police officer sparked riotous
violence, Jones organized groups of armed guards outside of the Jacksonville jail to prevent
lynchings. As a result he was arrested for inciting a riot, but eventually was released and left
Jacksonville shortly after. Their appeal bond for $100 was filed on December 25, 1889. The
hearing was held on January 14, 1890.125
The original appeal had difficulties because of a technicality. After the original trial was
ruled a “nonsuit” the Clerk of the Court failed to file the dismissal on record so the Supreme
Court refused to hear the case. Hilton continued to make motions to the court to have the
dismissal order vacated and have the case reinstated. Hilton argued they had a right to appeal the
case because of the errors of the lower court and said the final judgment was contrary to the
evidence proposed. He said the dismissal had been a, “mistake of facts the court will now in
furtherance of justice vacate the order of dismissal and reinstate the case.”126 The case ultimately
appeared on the Supreme Court docket and Chief Justice Raney delivered the court’s opinion.
Raney contended that the only error assigned to the original case was the exclusion of
Alice Williams’s testimony. Raney asked,
124
Ibid.
Ibid.
126
Ibid.
125
196
Upon plaintiff's theory of the case she was offered as a witness as to her own
interests, in her own behalf, or in behalf of plaintiffs suing in her right, and the
question is, did the fact that she was a party to or interested in the suit, or that she
was the wife of the other plaintiff, or all such facts, disqualify her from testify?127
Raney stated Williams could testify in the suit because the act of 1874 allowed her to testify in
her own interest regardless if her husband was fellow plaintiff and ruled that Williams was a
competent witness, reversed the judgment and the case was remanded. It is unclear whether
Williams pursued this case any further because there is no record of the case being filed again in
the Fourth Circuit Court or the Supreme Court. Regardless of whether she followed up her
actions were clear; challenge the law. This was a direct action within the court system. The
railroad company believed it was part of a larger protest, but this was not corroborated.128 The
possibility of this type of protest was not unlikely. Homer Adolph Plessy staged a similar type of
advocacy in Louisiana by testing the legality of their segregation of public conveyances.
In 1892, Plessy, a light-skinned African American male, bought a first-class ticket on a
Louisiana railroad. He sat in the “whites only” car and when the train departed he informed the
conductor he was indeed an African American. He was arrested and brought before Judge John
H. Ferguson and convicted for violating Louisiana’s segregation law. Plessy appealed his case to
the U.S. Supreme Court, an entity that had proven it was not overly concerned with the
protection of African American civil rights at the federal level. The case Homer Adolph Plessy,
Plaintiff in Error v. John H. Ferguson, Judge, Defendant in Error was the culmination of the
previous civil rights cases. It would finally define the Fourteenth Amendment in a way that
lasted for fifty-eight years.
Albion W. Tourgee, a civil rights advocate since the Reconstruction Era, and former
Solicitor-General Samuel F. Phillips represented Plessy. They argued the Louisiana law violated
the Thirteenth and Fourteenth Amendments. The Thirteenth Amendment was designed to
abolish slavery, but it was deficient in protecting African Americans’ right to pursue life, liberty,
and property and therefore giving their freedom insufficient value. They believed Congress
passed the Fourteenth Amendment to solve this issue. This argument was similar to the one
127
William B. Lamar, Cases Argued and Adjudged in the Supreme Court of Florida During the Year 1890, Vol.
XXVI (Jacksonville: Times-Union Book and Job Office, 1891), 535-536.
128
Ibid.
197
posed by Justice Harlan in the Civil Rights Cases. Associate Justice Henry Billings Brown
delivered the court’s majority opinion.129
Brown’s view of federal intervention into state civil rights cases was not much different
from Chief Justice Waite’s. He felt the federal government overstepped its authority when it
involved itself in the affairs of the states, but he went a step further and gave Jim Crow a catch
phrase; separate, but equal. Brown stated,
A statute which implies merely a legal distinction between the white and colored
races- a distinction which is founded in the color of the two races, and which must
always exist so long as white men are distinguished from the other race by colorhas no tendency to destroy the legal equality of the two races, or reestablish a
state of involuntary servitude.130
Brown said the Fourteenth Amendment was not intended to enforce social interaction or the
“commingling of the two races upon terms unsatisfactory to either.”131 Laws separating the
races, in Brown’s view, did not imply the inferiority of one race to the other. He said this had
already occurred in education in states where African American political rights had been
enforced and he did not believe it created a status of inferiority. Brown argued the Louisiana law
did not violate the Fourteenth Amendment any more than segregation of schools in Washington
D.C.
Brown did not feel the law was unreasonable because it promoted the public welfare.
“We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that
the enforced separation of the two races stamps the colored race with a badge of inferiority. If
this be so, it is not by reason of anything found in the act, but solely because the colored race
chooses to put that construction upon it.”132 Brown said if African Americans became the
dominant force in the legislature and passed laws against whites they would not acquiesce to
these laws. Brown failed to realize this case was a good example of not acquiescing. He said
social prejudices could not be eliminated through legislation and went further to say equality
could not be achieved through commingling of the races. Brown naively believed if the civil and
129
J. C. Bancroft Davis, Cases Adjudged in the Supreme Court at October Term, 1895 (New York: Banks &
Brothers, Law Publishers, 1896), 537-543.
130
Ibid., p. 543.
131
Ibid., p. 544.
132
Ibid., p. 551.
198
political rights of both races were equal one could not be inferior to the other. Brown affirmed
the judgment of the lower court.133
Justice Harlan wrote in his dissent, “However apparent the injustice of such legislation
may be, we have only to consider whether it is consistent with the Constitution of the United
States.”134 He believed it was unnecessary to know a person’s race when it came to civil rights,
because it was not applicable. Louisiana’s law was inconsistent with equality of rights
regardless of State or National citizenship. Harlan believed the issue at stake was personal
liberty. The ability to pursue life, liberty, and property that he believed was being infringed upon
by this type of legislation. He wrote that the Thirteenth Amendment protected citizens from the
deprivation of any right to freedom. This assumption was based on the Lockean ideal that a
person became a slave when the government forcibly took their rights. While this was not the
same as African American enslavement the fact that he associated it with the emancipation
amendment showed a strong connection. Harlan believed the Civil War Amendments removed
the color line from the American government system. He articulated personal liberty as the
ability to move about the country without fear of restraint unless under due course of law, such
as conviction of a crime. He argued African Americans could occupy the public spaces of
conveyances with whites without fear of government intervention. If the color line was removed
from the government then this expression of personal liberty should be allowed.135
Harlan further outlined what would become Jim Crow in the South. He asked if the
States could make laws to separate the races on public conveyances what would stop them from
separating them on the streets, in street cars, courtrooms, and legislature galleries. Harlan also
asked why the Louisiana law only impacted race and not citizenship status or religious
affiliation. He said his colleagues’ response was that those regulations would be unreasonable
and could not stand before the law. He believed the court should enforce the will of the
legislature regardless of their stance on this issue because the law was supposed to be the will of
the people. Harlan stingingly wrote that the judgment rendered by the court was as pernicious as
the Dred Scott decision. He believed the Civil War Amendments were supposed to eradicate the
133
Ibid.
Ibid., p. 553.
135
Ibid., p. 555.
134
199
vestiges of the Scott decision and in its place provide the protections afforded to all citizens
regardless of race.136
Harlan argued that the races would always be connected in this country and that it was
repugnant to the Constitution and the republican ideals that one “superior” class of citizens
thought to dictate civil rights through state edicts. He maintained,
What can more certainly arouse race hate, what more certainly create and
perpetuate a feeling of distrust between these races, than state enactments, which,
in fact, proceed on the ground that colored citizens are so inferior and degraded
that they cannot be allowed to sit in public coaches occupied by white citizens?137
Harlan said the arbitrary separation of the races created a badge of servitude inconsistent with the
civil rights the government was supposed to protect. “The thin disguise of ‘equal’
accommodations for passengers in railroad coaches will not mislead any one, nor atone for the
wrong this day done.” Harlan argued that until all rights are protected for all citizens, peace
could not be achieved in the republic, no justice, no peace. 138
The Plessy decision was the final major assault on the Civil Rights Movement in the
nineteenth century. The decades that followed the end of the war were rife with possibilities and
obstacles. African Americans saw a definition of rights presented and slowly eroded through
judicial activism and legislation. The erosion started with the Slaughter-House Cases and
continued its downward spiral toward Plessy. The assault on civil rights in Florida involved the
judiciary, legislature, and intimidation. The Civil Rights Movement of the late nineteenth
century does not receive the notoriety of the Modern Movement. Historians failed to adequately
discuss the impact of that movement in the late nineteenth century because it culminated in a
defeat unlike the twentieth century and the Brown victory. This does not make it any less
significant. Civil rights activism during this period was similar to later activism. It tended to be
136
Ibid., p. 560.
Ibid.
138
Ibid., p. 562. Harlan eloquently wrote, “The white race deems itself to be the dominant race in this country. And
so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for
all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of
the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is
no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of
civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards
man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the
supreme law of the land are involved. It is, therefore, to be regretted that this high tribunal, the final expositor of the
fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by
citizens of their civil rights solely upon the basis of race.”
137
200
a community affair that invoked the court system and sought the protection of their rights at the
federal level because the states were unwilling to protect them. In Florida, civil rights martyrs,
Charles Savage and Howard James, lost their lives in order to voice their political views.
African Americans fought jury discrimination, voter fraud, and segregation in their quest for
equality. The movement in the latter half of the nineteenth century laid the groundwork for the
final push for an equitable definition of citizenship. Plessy may have been a failure, but it was
not an end. The Civil Rights Movement continued to fight within the same court system they
had used since the Republic’s inception and finally overturned that defeat in 1954 with Brown v.
Board.
201
CONCLUSION
The extension of the Long Civil Rights Movement into the antebellum period created a
unifying theme within the movement. The focus on suffrage and segregation sometimes ignores
the legal precedents that allowed those inequalities to occur. It also provided a view of
American legal history that focused on how the necessity for a definition of citizenship created
an activist discourse and forced the Republic to review its sense of itself. The Civil Rights
Movement in contemporary historical memory is fixated on the modern movement due to media
and video sources that express the events in a dramatic way. The nineteenth century movement
does not have this glamour and is often overshadowed by its twentieth century counterpart. The
Movement originated as the result of the basic inalienable right of freedom. African American
abolitionists fought to redefine freedom in the Republic that allowed for counterpoints to exist,
slavery and freedom. Revolutionaries did not overlook this contradiction; it was avoided.
African Americans such as Paul Cuffe knew from the Republic’s inception that the ideals of the
revolution did not extend to him and his brethren. While African American abolitionists fought
to free those in bondage, they understood the necessity for civil rights to protect the freedom they
were fighting for. This activism continued throughout the antebellum period and the Civil War.
After the conclusion of the war and emancipation the Civil Rights Movement found it
needed to fight the same battle, but with new terms. No longer did they have to worry about
slavery, they feared civiliter mortuus, the death of civil rights at the hands of the government.
The court system was more than willing to curtail African American rights. If African
Americans could successfully define American citizenship in ways that prohibited racial
discrimination then perhaps real freedom could be obtained. This was the goal of the postbellum Civil Rights Movement, but the Plessy decision was not the outcome many activists were
hoping for.
The Civil Rights Movement over time was one of great strides and turbulent failures at
the hands of jurists. African Americans did not slump down in defeat and helplessly succumb to
their wide-awake nightmare; they stood back up and fought in the court system that sentenced
them to subjugation. They used the language of the Civil War Amendments, especially the
Fourteenth Amendment, to fight their battles in court. The significance of the Civil War
Amendments is that they were born of Justice Taney’s definition of citizenship. Lawmakers had
to find a way to void his legal argument in the Thirteenth Amendment and furthered those
202
protections in the Fourteenth and Fifteenth Amendments. Taney’s decision was not an isolated
one. African Americans had been in the court system since the colonial period.
By tracing events further into history, historians can better understand how court cases
shaped public discourse and lawmaking. It also expressed the extent in which the Civil Rights
Movement was fought on the state level. Florida, used as the conveyance in this matrix, proved
that African Americans had to effectively use the one right granted to them in slave society. In
all aspects of jurisprudence enslaved persons were viewed as property, with the exception of
crime. These acts not only broke the law, they provided proof of a thinking being that could not
be compartmentalized with property laws that regulated inanimate objects. While this challenge
of the system was not a conscious act of civil rights activism, it was still a right that could be
used to protect them. The fact that some owners were willing to appeal the cases to the Florida
Supreme Court at personal expense shows that sometimes property needed protection from
government interference. Free blacks also had some access to the court system, but the presence
of enslaved blacks in the courts was a powerful challenge to the system. It also forced courts to
find a way to balance slavery in a free society. They had to make sure to acknowledge the
humanity at the same time they were denying it. If they gave the enslaved too much humanity
they could have free will, which meant complete dominance was ethereal.
Manumission cases were the most direct attack on slavery. These cases forced the court
system to reconcile the concepts of slavery and freedom. This process was never easy for the
applicant because they were considered property until they could prove otherwise because of
their race. In states like Missouri if a slave went to free territory, they were free. Before Dred
Scott Missouri Supreme Court justices did not believe the American government could forcibly
take away a person’s freedom. Florida did not have this issue because it was surrounded by
slave states. The manumission cases in Florida required evidence to prove their master through a
will, or some binding contract, had manumitted them, but Florida did not stop there. The
legislature required that all manumitted slaves must leave the state within thirty days of
manumission or face arrest and re-enslavement.
These cases led to Dred Scott and Taney’s infamous decision. The importance of his
words was the definition of citizenship. It had always been assumed citizenship equaled
European descent, but it had never been codified until Taney. Lawmakers were cognizant of this
issue when they framed the Civil War Amendments. They were also aware of the abolitionist
203
rhetoric about civil rights and when it was necessary decided to expand federal authority to
protect African American rights.
The expansion of civil rights historiography to include the antebellum period, or earlier,
is crucial to the understanding of the breadth and depth of advocacy. It also must be
acknowledged that civil rights is a legal concept that while it can be fought for in public spaces,
ultimately cannot be achieved until the courts render a decision. Through the early Republic,
antebellum, and post-bellum periods the one constant, besides oppression, was the court system.
It was the one area African Americans were able to regularly have their voices heard regardless
of the allowable volume. This is why it was necessary to focus on Florida’s Supreme Court.
This allowed for a manageable sampling of cases to show how the highest court in the state dealt
with civil rights. As much as civil rights historiography tends to focus on the Federal courts, the
majority of the battles were fought in the states. This concept may be seen as a top down view of
history; it is not. Court cases provide a pristine view of the grassroots movements that
dominated civil rights history. Typically these cases were filed in the community, dealt with
community issues, and were argued by those living in the community. In Florida these cases
allowed for the understanding of the African American experience to be one of recognition of
their humanity in the court system, to be an active member in creating the definition of freedom,
and forcing the Republic to live up to its ideals.
Further study in Florida needs to be done on the rulings of the lower courts. This should
provide more evidence supporting the impact of the enslaved and free blacks in the state. They
will also provide a deeper understanding of community politics and race relations. Lastly, this
would also provide insight into how the lower courts and the Supreme Court interacted with each
other and perhaps the influence each had on the other. By reviewing these cases historians can
determine how local communities defined themselves as Americans further advancing the
understanding the civil rights activism.
The Civil Rights Movement is about the definition of freedom and citizenship. The
colloquialism states that freedom is only as strong as the protection of it. While this typically is
used in a manner involving weaponry, civil rights advocates understood that it meant equal
rights. The only way to be free in American society was through the exercise of rights of life,
liberty, and the pursuit of property, but this was not defined for all in the same way. Plessy was
nothing more than a glaring example of what was already happening in America at the time, the
204
exclusion of African Americans in the body politic. White citizens were unwilling to define
citizenship and freedom equally because they believed African Americans were inferior and nonAmerican. Blacks fought for over a century to not only prove they were Americans, but that the
definition included them equally.
The inclusion of antebellum court cases has shown that the movement was not simply
designed to fight slavery or segregation. The Civil Rights Movement was created to advocate for
rights provided under the Constitution. African Americans were fighting for the rights the
revolutionaries campaigned for in their call for independence. The framers never wrote a
definition of citizenship because they did not include African Americans in their vision of
America. The virtues of a republican society were assumed for whites and fought for by African
Americans. Their activism over the history of the Republic provides all citizens with the tools
necessary to protect their rights. The necessity of a definition of citizenship made Americans
better understand what their rights were and how they could be protected.
The Plessy decision was devastating to the Civil Rights Movement because it destroyed
any chance for equality. The U.S. Supreme Court granted legal justification to separation of the
races. This separation was most apparent in the South where Jim Crow ruthlessly maintained the
status quo by creating a police state that controlled the public movement of both races. When
Jim Crow was challenged in the South it was swiftly quashed with the blood lust of the most
contemptible tyrants in history.
Plessy was the not the case that sparked the Civil Rights Movement. It just gave it the
direction it would follow into the twentieth century. This court decision is typically viewed as
the catalyst for the Modern Movement and its characteristic protests fighting “separate, but
equal.” Hall’s Long Civil Rights Movement searches for that connection, but the context of that
movement has more depth than a simple response to Plessy. By understanding the movement
over history the narrative can better explain the implications of the decision and how activism
was a continuous independent activism that used the same rhetoric and protest as their
predecessors.
The Long Civil Rights Movement did not begin with direct protest in the twentieth
century. It began with enslavement in a free society. The debate over civil rights is not simply
over the abrogation of certain rights. It is about freedom and the ability to protect it. The
extension of the historical discourse shows the evolution of the movement and the ultimate goal
205
of protection from, not only government, but from fellow citizens as well. African Americans
forced white Americans to reevaluate revolutionary ideology and ask whether it could be
inclusive. The collision of ideology and reality is a violent event with countless casualties. This
evolutionary process is a shining example of the complexity of a free society. That power is not
easily shared or garnered and those who challenge it will find multiple obstacles in their way.
Poignantly, it must be asked, “What to a Slave is the Fourth of July?” This question perhaps
defines the Civil Rights Movement because until a person is treated equally in a free society,
who is to say the vestiges of slavery have been removed.
206
BIBLIOGRAPHY
Primary Resources
State Supreme Court Cases – Florida State Archives:
Archer v. Hart (1853). Florida State Archives. Record Group 1100, Series 49, Box 440, Wallet
773.
Branch v. Wilson (1868). Florida State Archives. Record Group 1100, Series 49, Box 835.
Budd v. Long (1869). Florida State Archives. Record Group 1100, Series 49, Box 833.
Cherry v. State of Florida (1856). Florida State Archives. Record Group 1100, Series 49,Box
776.
Miller v. Gaskins (1864). Florida State Archives. Record Group 1100, Series 49, Box 780.
Frances v. State of Florida (1855). Florida State Archives. Record Group 1100, Series 49, Box
773.
Holland v. State of Florida (1867). Florida State Archives. Record Group 1100, Series 49, Box
779.
Jordan v. Buckman (1881). Florida State Archives. Record Group 1100, Series 49, Box 580.
Judge v. Forsyth (1867). Florida State Archives. Record Group 1100, Series 49, Box 779.
June v. Myers (1867). Florida State Archives. Record Group 1100, Series 49, Box 834.
Kelly v. Wallace (1856). Florida State Archives. Record Group 1100, Series 49, Box 773.
Luke, a slave v. State of Florida (1853). Florida State Archives, Record Group 1100, Series 49,
Box 440, Wallet 773.
Linton v. Walker (1858). Florida State Archives, Record Group 1100, Series 49, Wallet 805.
McNealy v. Gregory (1869). Florida State Archives, Record Group 1100, Series 49, Box 795.
Price v. Hicks (1874). Florida State Archives, Record Group 1100, Series 49, Box 847.
Scott v. Jefferson County (1880). Florida State Archives, Record Group 1100, Series 49,Box
564.
Sibley v. Maria, a woman of color (1849). Florida State Archives, Record Group 1100, Series
49, Box 440.
Slaback v. Cushman (1868). Florida State Archives, Record Group 1100, Series 49, Box 835.
207
State of Florida v. Charles, a slave (1847). Florida State Archives, Record Group 1100, Series
49, Box 473, Wallet 855.
Sumpter v. State of Florida (1866). Florida State Archives, Record Group 1100, Series 49, Box
779.
Tallahassee Railroad Company v. Arthur Macon (1859). Florida State Archives. Record Group
1100, Series 49, Box 473, Wallet 853.
Walker v. Gatlin (1867). Florida State Archives. Record Group 1100, Series 49, Box 779.
Williams v. Jacksonville, Tampa, & Key West Railway Company (1890). Florida State Archives.
Record Group 1100, Series 49, Box 498 & 685.
State Supreme Court Cases:
2 Fla. 171, 1848 WL 1262 (Fla.)
John G. Camp v. William D. Moseley, and Martha Ann Manly, and Hiram Manly, in right of his
wife, administrators and administratrix, de bonis non, of Samuel Parkhill, Deceased (January
Term, 1848).
2 Fla. 207, 1848 WL 1264 (Fla.)
William G. Ponder, Appellant, v. William. D. Moseley, Martha Ann Manly, and Hiram Manly de
jure uxoris, Administrators. de bonis non OF Samuel Parkhill, deceased, Appellees.
2 Fla. 553, 1849 WL 1274 (Fla.)
Samuel S. Sibley, Appellant v. Maria, a woman of color, Appellee. (January Term, 1849).
4 Fla. 23, 1851 WL 1091 (Fla.)
William G. Ponder, Executor of Archibald Graham, Appellant, v. Mary Graham, Appellee.
(January Term, 1851).
4 Fla. 283, 1852 WL 13 (Fla.)
Farish Carter, Appellant vs. Archibald T. Bennett, Appellee. January Term , 1852.
4 Fla. 445, 1852 WL 1109 (Fla.)
Heirs of Jacob Bryan v. Dennis, Mary, and Others (1852).
15 Mo. 576, 1852 WL 4171 (Mo.)
Supreme Court of Missouri, Scott, a man of color, v. Emerson, March Term, 1852.
5 Fla. 185, 1853 WL 1268 (Fla.)
Luke, a slave, Plaintiff in Error v. The State of Florida (1853).
5 Fla. 234, 1853 WL 1273 (Fla.)
Amaziah W. Archer, Appellant v. Isaiah D. Hart and John S. Sammis, Appellees (1853).
208
5 Fla. 261, 1853 WL 1274 (Fla.)
Loammi Davis, Appellant v. Martha Fitchett and Charles F. Fitchett, Administrators, &c. of
Samuel Elliot, Deceased. (Term held in Tampa, 1853).
5 Fla. 337, 1853 WL 1283 (Fla.)
Joseph Forsyth and Ezekiel Simpson, Appellants v. George Perry, Appellee. (1853).
6 Fla. 306, 1855 WL 1389 (Fla.)
Frances, a slave, appellant v. The State. February Term 1855.
6 Fla. 679, 1856 WL 1529 (Fla.)
James Cherry, Appellant v. The State of Florida, February Term, 1856.
6 Fla. 690, 1856 Florida Reports
Kelly, Timanus & Co. Appellants, v. Andrew Wallace, Trustee, &c., Appellee, (1856).
7 Fla. 180, 1957 WL 3563 (Fla.)
Smith and Armistead, Appellants, v. Bryan Croom, et al., Appellees. January Term, 1857.
8 Fla. 144, 1858 WL 1644 (Fla.)
Thomas J. Linton, Appellant, v. Hamilton K., and Mary H. and Minor W. Walker, Appellees
(1858).
8 Fla. 299, 1859 WL 2322 (Fla.)
Tallahassee Railroad Company, Appellant, v. Arthur Macon, Appellee. (1859).
8 Fla. 360, 1859 WL 2327 (Fla.)
William Clark, Appellant, v. Thomas N. Gautier, in behalf of Dick, a person of color, Appellee.
(1859).
9 Fla. 163, 1860 WL 2051 (Fla.)
Cato, a slave, Plaintiff in Error, v. The State. (1860).
9 Fla. 156, 1860 WL 2049 (Fla.)
Winder H. Harrison, Plaintiff in Error, v. The State. (1860).
9 Fla. 402, 1861 WL 1288 (Fla.)
Emily L. Donaldson, Appellant, v. The State, 1861.
11 Fla. 73, 1864 WL 1117 (Fla.)
Charles K. Miller, Appellant, v. James M. Gaskins, Appellee (1864).
11 Fla. 247, 1866 WL 1106 (Fla.)
Calba Sumpter v. The State of Florida, 1866.
209
11 Fla. 257, 1867 Florida Reports
William Judge, Appellant v. Forsyth’s Executors, Appellee. (1867).
12 Fla. 9, 1867 Florida Reports
David S. Walker, Appellant v. James H. Gatlin, Appellee. (1867).
12 Fla. 117, 1867 WL 1453 (Fla.)
John Holland, Appellant v. The State of Florida, Appellee. (1867).
12 Fla. 310, 1867, Florida Reports
Daniel R. June v. Thomas J. Myers. (1867).
12 Fla. 472, 1868 WL 1394 (Fla.)
Henry Slaback, Appellant v. Leoma L. Cushman, Appellee. (1868).
12 Fla. 543, 1868 WL 1400 (Fla.)
Franklin Branch and Edward A. Clark, Appellants v. William R. Wilson, Appellee. (1868).
12 Fla. 579, 1869 Florida Reports
Jason Gregory, Plaintiff in Error v. Adam McNealy, Defendant in Error. (1869).
13 Fla. 288, 1869 WL 1547 (Fla.)
Josiah T. Budd, Administrator of Jackson Kemp, Deceased, Appellant v. William Ryal Long,
Appellee. (1869).
13 Fla. 417, 1869 WL 1559 (Fla.)
Adam McNealy, Appellant v. Jason Gregory, Appellee. (1869).
13 Fla. 631, 1869 WL 1585 (Fla.)
Thomas Dixon, Appellant v. The State of Florida, Appellee. (1869).
13 Fla. 636, 1869 WL 1586 (Fla.)
Thomas Dixon, Plaintiff in Error v. The State of Florida, Defendant in Error. (1869).
14 Fla. 153, 1872 WL 2155 (Fla.)
The State of Florida, Respondent v. Charles H. Pearce, Appellant. (April Term, 1872).
14 Fla. 318, 1872 WL 2447 (Fla.)
In the Matter of the Executive Communication of the 23rd of September, 1872.
83 U.S. 36, 1873, United States Reports
The Butchers’ Benevolent Association of New Orleans v The Crescent City Live-Stock Land
and Slaughter-House Company. (1873)
210
14 Fla. 565, 1874, Florida Reports
John W. Price and Wife, Administrator, &c., et. al., Appellants v. Henry Hicks, Appellee.
(1874).
92 U.S. 214, 1876, United States Reports
United States v Reese et al. (1876).
92 U.S. 542, 1876, United States Reports
United States v. Cruikshank et al. (1876).
17 Fla. 487, 1880 WL 3059 (Fla.)
Sarah and Bethel Daniel and Bernice Sams, Appellants v. Mollie Sams, Appellee. (January
Term, 1880).
17 Fla., 707, 1880, Florida Reports
The State of Florida, Ex Rel. Charles Scott v. The Board of County Commissioners of Jefferson
County. (June Term, 1880).
18 Fla. 194, 1881 WL 2965 (Fla.)
Ex-Parte Dennis Eagan. (January Term, 1881).
18 Fla. 267, 1881 Florida Reports
The State of Florida Ex Rel. Richard Jordan v. T. E. Buckman, Respondent. (1881).
18 Fla., 903, 1882 Florida Reports
Viney Stevens, Plaintiff in Error v. The State of Florida, Defendant in Error, (1882).
18 Fla., 909, 1882 WL 3046 (Fla.)
Charles H. Savage and Howard E. James, Plaintiffs in Error v. The State of Florida, Defendant in
Error. (January Term, 1882).
19 Fla. 722, 1883 WL 2596 (Fla.)
James Kingsley, William and Osceola Kingsley, Plaintiffs in Error v. Adel E. Broward, Frank
Broward et. als., Defendants in Error. (January Term 1883).
109 U.S. 3, 1883, United States Reports
Civil Rights Cases. (1883).
22 Fla. 553, 1886 WL 1248 (Fla.)
Enoch Carter, Plaintiff in Error v. The State of Florida, Defendant in Error. (June Term 1886).
26 Fla. 533, 8 So. 446
Alice Williams et al., Appellants v Jacksonville, Tampa & Key West Railway Company,
Appellee. (December 23, 1890).
211
27 Fla., 370, 8 So. 837, 26 Am. St. Rep. 75
Peter Pinder, Plaintiff in Error v. The State of Florida, Defendant in Error. (1891).
31 Fla. 190, 1893, Florida Reports
Israel Jenkins, Plaintiff in Error v The State of Florida, Defendant in Error. (1893).
31 Fla. 196, 12 So. 677
Israel Jenkins, Plaintiff in Error v. The State of Florida, Defendant in Error. (1893).
35 Fla. 49, 1895, Florida Reports
Mark Williams, for use of John Wallace, Appellant v. Adolphus Kimball, Appellee. (1895).
163 U.S. 537, 1896, United States Reports
Homer Adolph Plessy, Plaintiff in Error v. John H. Ferguson, Judge, Defendant in Error. (1896).
38 Fla. 297, 1896, Florida Reports
Harry Singleton, Plaintiff in Error v. The State of Florida, Defendant in Error. (1896).
39 Fla. 520, 1897, Florida Reports
Harry Singleton, Plaintiff in Error v. The State of Florida, Defendant in Error. (1897).
Periodicals:
Pensacola Gazette, Vol. XIX, October 23, 1852, No. 31 – State Library, Shelf # Np 3331, Reel
#N1-255.
Manuscripts:
Call and Brevard Papers, Florida State Archives, Tallahassee, Florida.
Correspondence of Secretary of State – George Alden – 1868, Aug. - Sept. 9, Florida State
Archives, Tallahassee, Florida.
Correspondence of the Secretary of State – George Alden – 1868, Sept. 10 – Dec. 22, Florida
State Archives, Tallahassee, Florida.
Correspondence of Secretary of State – Jonathan C. Gibbs – 1868-1873, Florida State Archives,
Tallahassee, Florida.
Correspondence of Secretary of State – Jonathan Gibbs – 1868-1873, Commission of Deeds,
Florida State Archives, Tallahassee, Florida.
Correspondence of Secretary of State – Jonathan Gibbs – 1868-1872, Publications and Reports,
Florida State Archives, Tallahassee, Florida.
Correspondence of Secretary of State – Samuel McLin – 1873-1876, Florida State Archives,
Tallahassee, Florida.
212
“Florida Union” Leaflet – 1867, Special Collections, Florida State University, (MSS) Box 146m.
Jefferson County Records, Coroner’s Inquests, Florida State Archives, Tallahassee, Florida.
Jefferson County Records, Court Cases, Florida State Archives, Tallahassee, Florida.
Jefferson County Records, Case Files of the Circuit Court, Florida State Archives, Tallahassee,
Florida.
Jefferson County Records, Freedmen Contracts, Florida State Archives, Tallahassee, Florida.
Jefferson County Records, Grand Jury Records, Florida State Archives, Tallahassee, Florida.
Jefferson County Records, Witness Reports, Florida State Archives, Tallahassee, Florida.
“Memoirs of Helen M. Edwards”, Special Collections Florida State University, (Mss) FL. Pam
443.
Oliphant, William of Edgefield District, South Carolina State Archives, MSS Will: Book
C, p. 257; Estate Packet; Box 21, Pkg 764.
Susan Bradford Eppes – Manuscripts, Special Collections Florida State University, Box
682 MSS 8617 (A4).
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Character, in Force Up to the First Day of January, 1872. Tallahassee: Charles
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of Florida at Terms Held in 1871, 1872, 1873, 1874, Vol. XIV. Tallahassee:
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of the Floridian: Printed by Dyke and Sparhawk, 1866.
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Session begun on Monday, June 8th, 1868. Tallahassee: Tallahassee Sentinel, 1868.
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Session (1868) under the Constitution of A.D. 1868. Tallahassee: Tallahassee Sentinel,
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Legislature Held in the Capitol, Nov. 3d, 1868, and of the Senate and Assembly of the
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Florida. A Journal of the Proceedings of the Assembly of the State of Florida at its
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Journal Articles:
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______________, “Masters on Trial: The Enforcement of Laws against Self-Hire by
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226
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227
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228
Richardson, Joe M. “The Freedmen’s Bureau and Negro Labor in Florida.” Florida
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_______________, ed. “A Northerner Reports on Florida: 1866.” Florida Historical
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_______________. “An Evaluation of the Freedmen’s Bureau in Florida.” The Florida
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_______________. “Florida Black Codes.” The Florida Historical Quarterly 47
(April, 1969): 366 – 380.
_______________. “We Are Truly Doing Missionary Work: Letters from American
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Journal, Vol. 106, No. 4 (Jan., 1997), p. 1033-1122.
Welke, Barbara Y. “When All the Women Were White, and All the Blacks Were Men:
Gender, Class, Race, and the Road to Plessy, 1855-1914.” Law and History
Review, Vol. 13, No. 2 (Autumn, 1995), p. 261-316.
229
Williamson, Edward C. and Henry S. Sanford. “Florida Politics in 1881: A Letter of
Henry S. Sanford.” The Florida Historical Quarterly, Vol. 31, No. 4 (Apr.,
1953), p. 279-281.
Williamson, Edward C. “Black Belt Political Crisis: The Savage-James Lynching,
1882.” The Florida Historical Quarterly, Vol. 45, No. 4 (Apr., 1967), p. 402409.
Unpublished Material:
Cassanello, Robert. “African American Protest in Jacksonville, Florida: 1895-1920.”
Unpublished M.A. Thesis: Florida Atlantic University, 1995.
_______________. “The Great Migration, Migrants and Identity in the Making of New
South Jacksonville, Florida, 1865-1920.” Unpublished Dissertation: Florida
State University, 2000.
Jackson, Jesse Jefferson. “The Negro and the Law in Florida, 1821-1921: Legal
Patterns of Segregation and Control in Florida, 1821-1921.” Unpublished M.A.
Thesis, Florida State University, 1960.
Kennington, Kelly Marie. “River of Injustice: St. Louis’s Freedom Suits and the
Changing nature of Legal Slavery in Antebellum America.” Unpublished
Dissertation: Duke University.
230
BIOGRAPHICAL SKETCH
Chris Day earned his Bachelor’s of Arts from Stetson University. He majored in American
history with a minor in Asian studies. He continued his education at Florida State University by
earning his Masters of Arts and Doctorate of Philosophy in American history. His research
interests are African American studies and the Civil Rights Movement.
231