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PART I. DENIALS OF CONSTITUTIONAL RIGHTS
Racial violence against Negroes in the South is lawlessness with a history and a purpose. First with explicit and then with implicit legal sanction, violence has been used since the early days of slavery to maintain and reinforce the traditional subservient position of the Negro. Contemporary problems of violence against Negroes should be viewed in the context of this long history.
Negro slaves in the early days of slavery had “no rights which the white man was bound to respect." 1 Slaves were considered property, without personal rights, and thus were unprotected by the general criminal laws applicable to other persons. Although in the late 18th century some slaveholding States began to pass special statutes making certain types of violence against slavessuch as murder or manslaughter-punishable criminal offenses, in practice these statutes offered slight protection to Negroes. Not all types of criminal assault were interdicted, and a
1 Taney, C. J., in Scott v. Sanford, 60 U.S. (19 How.) 690, 701 (1856). ? See Cobb, The Law of Negro Slavery $$ 83-93 (1858).
Compilations of these statutes may be found in Cobb, op. cit. supra note 2, § 87 n. 2; and in Stroud, Sketch of the Laws Relating to Slavery 36-40 (1827).
* Cobb, op. cit. supra note 2, $ 95; Henry, Police Control of the Slave in North Carolina 75 (1914). See, e.g., Commonwealth v. Booth, 2 Va. Ca. 394, 1 Catterall 139 (1824) (assault); State v. Piver, 2 Haywood 79, 2 Catterall 15 (N.C. 1799) (manslaughter). In some States, fugitive slaves were declared outlaws and could be killed or assaulted with impunity. Cobb, op. cit. supra note 2, $$ 113–20; Henry, supra at 37; Stroud, op. cit. supra note 3, at 100-05.
slave was not permitted to testify against a white man. As a result, most violence against slaves was either not punishable or not punished by the law.
In theory, free Negroes were protected by the criminal law. But, in fact, they fared little better than the slave, since almost any conduct, such as “impertinence," was deemed sufficient provocation to justify an assault by a white man. The free Negro, like the slave, was not permitted to testify against his white assailant." Free Negroes could lawfully be stopped at night and whipped by white vigilante patrols if they failed to produce written proof of emancipation.
The legal relationships inherent in the institution of slavery established a tradition of Negro inequality which continued after emancipation and the end of the Civil War. As one authority commented: “[W]hite people during the long period of slavery became accustomed to the idea of 'regulating' Negro insolence and insubordination by force with the consent and approval of the law.'
In March 1865 Congress established the Bureau of Refugees, Freedmen and Abandoned Lands—known as the Freedmen's Bureau-to protect and assist the former slaves. From its inception the Bureau was deeply involved in the administration of justice. The continuing refusal of State courts to accept the testimony of a Negro against a white led to the establishment of Freedmen's Bureau courts to adjudicate civil and criminal cases
6 Cobb, op cit. supra note 2, § 104; Stroud, op. cit. supra note 3, at 66.
See, e.g., Ware v. Canal Co., 15 La. 169, 3 Catterall 525 (1840); State v. Harden, 2 Speers 152, 156, 2 Catterall 350 (S.C. 1832) ("... words of impertinence . . addressed by a free Negro, to a white man, would justify an assault and battery."); State v. Jowers, 11 Iredell 555, 2 Catterall 151 (N.C. 1850) (free Negro's insolence to white excuses assault because he “has no master to correct him.").
? See note 5 supra.
9 Johnson, “Patterns of Race Conflict," in Race Relations and the Race Problem 125, 130 (Thompson ed. 1939).
Act of March 3, 1865, ch. 90, 13 Stat. 507.
between the races. In the fall of 1865 the Southern States reacted to the intrusion of these Federal courts by passing laws which extended the protection of most of the general criminal laws to Negroes and permitted them to testify against whites. Where such laws were passed, Freedmen's Bureau courts were abolished or suspended and full responsibility for the administration of justice with respect to Negroes was returned to the States. Local Bureau agents, however, continued to attend trials involving Negroes and to report incidents of discriminatory treatment. 13 These reports and subsequent congressional investigations revealed that despite a theoretical improvement in legal status, Negroes remained virtually unprotected by State criminal processes.
In the winter of 1865–66, the Joint Congressional Committee on Reconstruction conducted the first Federal investigation of racial violence in the South. After hearing extensive testimony, the Committee concluded that emancipated slaves were subjected to acts of "cruelty, oppression, and murder, which the local authorities were at no pains to prevent or punish.
There was ample evidence to support this conclusion. In southwest Mississippi, for example, during a four-day period in November 1865 more than 50 Negroes reported to the local Freedmen's Bureau that they had been whipped and assaulted by white men. These complaints were then referred to the civil authorities, but, with one exception, no action was taken. Similar conditions were said to exist in western Mississippi. A Freedmen's Bureau official there stated in a report:
[A]s to protection from the civil authorities, there is no
Bentley, A History of the Freedmen's Bureau 64-68 (1954). 12 Id. at 167. See, e.g., Miss. Laws 1865, ch. IV, at 82.
Bentley, op. cit. supra note 11, at 156. 14 Report of the Joint Committee on Reconstruction, H.R. Rep. No. 30, 39th Cong., ist Sess. vii, xvii (1866). Although there was widespread criticism of the report itself, other investigators with differing viewpoints reached similar conclusions. Compare Report of Benjamin C. Truman Relative to the Condition of the Southern People and the States in Which the Rebellion Existed, S. Exec. Doc. No. 43, 39th Cong., Ist Sess. 1, 10-11 (1866).
Report of the Joint Committee, supra, pt. III, at 184.
of the peace or any other civil officer in the district, eight
complaint from a negro. ...16 In April 1866, a few months after publication of the Joint Committee Report, the first Federal civil rights act was passed. This act was intended to secure “the full and equal benefit of all laws for the security of person
But it was soon evident that legislation alone could not solve the problem. Officials of the Freedmen's Bureau throughout the South continued to report that it was “almost impossible for Negroes to get justice in the State courts despite the Civil Rights Bill.” 18 A Bureau official in Tennessee reported the murder of 35 Negroes by gangs of whites during an 18-month period and stated that “not one single murderer of this vast number has yet been punished by a court of justice in Tennessee.
An official from the North Carolina Bureau charged:
Sheriffs, constables and magistrates are very unwilling
to do their duty. . Charges of this nature led first to reactivation of the Bureau courts in 1866 and then to an extension of the Bureau itself by Congress in 1868. It was later estimated that Bureau courts heard as many as 100,000 complaints a year.
After ratification of the 15th amendment, the violence and intimidation which had surrounded attempts by Negroes to vote and
16 Report of Carl Schurz on the States of South Carolina, Georgia, Alabama, Mississippi, and Louisiana, S. Exec. Doc. No. 2, 39th Cong., ist Sess. 2, 78 (1865).
Act of April 9, 1866, ch. 31, § 1, 14 Stat. 27.
Letter of Ass't. Commissioner Caslin, January 11, 1868, in T. D. Elliot papers (National Archives).
Letter of Agent G. S. Hawley, January 15, 1868, in T. D. Elliot papers (National Archives).
Bentley, op. cit. supra note II, at 152, 158.
to exercise their other newly won rights continued to grow. Much of the violence was perpetrated by the Ku Klux Klan which, by 1869, had become a powerful terrorist organization. Attempts by various States to control Klan activities were unsuccessful.24 The growth of vigilante terror led to a second major congressional investigation by a Joint Select Committee in 1871. Lengthy hearings were held on the extent of violence and the conduct of local law enforcement officials in most of the Southern States. The purpose was to investigate allegations that the “execution of the laws and the security of life and property were ... most seriously threatened by the existence and acts of organized bands of armed and disguised men, known as the Ku Klux.'
The testimony was much the same as in 1865. The Lieutenant Governor of Mississippi summed up the experience in his State by testifying that where an outrage against a Negro was involved, “it would have been impossible to have convicted anybody in the State courts as organized.” He added that he did not know of a single case in which a white man was convicted for crimes against Negroes and that he knew of only one case in which indictments against whites were returned. The sheriff of Lowndes County, Mississippi, reported “six or eight” cases of Negroes whipped by hooded men in his county, but he testified that he had never heard “of a single instance in which they have been brought to justice or punishment in any manner for any of these crimes." Although the Mississippi legislature had enacted a law in July 1870 making it a crime for persons "masked or in disguise” to
U.S. Commission on Civil Rights, Freedom to the Free 46–47 (1963) [hereinafter cited as Freedom to the Free).
Report of the Joint Select Committee to Inquire Into the Condition of Affairs in the Late Insurrectionary States, Rep. No. 41, 42d Cong., 2d Sess. (1872). The report and the testimony taken fills 13 volumes. [The report and hearings of this Committee are hereinafter cited as Select Committee Report.) 28 Select Committee Report, pt. 1, at 2. Select Committee Report, pt. 11, at 591. Select Committee Report, pt. 12, at 678.