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Excerpted from: Melissa Milewski, Reframing Black Southerners' Experiences in the Courts, 1865-1950, 44 Law and Social Inquiry 1113 (November 2019) (69 Footnotes/Reference List/ Case List) (Full Document)


MelissaMilewskiIn civil cases that took place in southern courts from the end of the Civil War to the mid-twentieth century, black men and women frequently chose to bring litigation and then negotiated the white-dominated legal system to shape their cases and assert rights. In some ways, these civil cases were diametrically opposite from the criminal cases of black defendants who did not choose to enter a courtroom and often received unequal justice. However, this article draws on almost 2,000 cases involving black litigants in eight state supreme courts across the South between 1865 to 1950 to argue that in both civil and criminal cases African Americans were at times shaping their cases and fighting for their rights, as well as obtaining decisions that aligned with the interests of white elites. Southern state courts during the era of Jim Crow were thus spaces for negotiating for rights and sites of white domination, in both criminal and civil cases.

In 1906, two county courts in Georgia heard cases involving an African American litigant. In the first case, a white farmer's wife named Georgia Hembree accused a black man named Will Johnson of raping her between 6:00 a.m. and 7:00 a.m. on the morning of August 15, 1906. Johnson did not match the physical description Hembree had given to a reporter immediately after the crime--she had told the reporter the rapist was "heavyset" while Johnson was described as "slender." But now, three months later, Hembree had identified Johnson as the rapist and Johnson was unable to produce a strong alibi. He said only that he was sick that day and had stayed home from work. His lawyers, assigned the case only a few days earlier, did little to refute the charge. After a brief trial, the jury convicted Johnson of the crime and sentenced him to hang. Then, the case took a twist. The white foreman at Johnson's employer, a concrete company, discovered a time book that showed that Johnson had worked from 7:00 a.m. to 5:00 p.m. on August 15. He and a white subforeman submitted affidavits testifying that Johnson had been at work the morning of the alleged rape. The subforeman noted, too, that the Atlanta-based concrete company was at least a forty-minute walk from the site of the crime. Yet within the one-hour window that Hembree had placed the crime, she had said the rape occurred "nearer seven" o'clock. On the basis of the new evidence, Johnson's lawyers applied for a new trial. When the local court denied their request, they appealed to the Supreme Court of Georgia. The state's highest court, though, affirmed the lower court's conviction of Johnson. Because Hembree may have been referring to "sun time" and the foreman to "railroad time," the court explained that Johnson's alibi was still not "perfect." In the end, Johnson was executed for a crime it would have been almost impossible for him to have committed.

That same year, another case involving a black litigant came before a Georgia county court. Unlike Johnson's criminal case, this was a civil suit. Lou Bonds, an elderly black woman, alleged that she had approached a white woman named Mrs. C. G. Brown for a loan of $406. Brown agreed to a one-year loan on the condition that Lou Bonds give her a "warranty deed" to her land-- essentially using the elderly woman's land as security for the loan. Just before the loan came due, in the fall of 1904, Brown approached Lou Bonds and allegedly told her that she could have an extra year to pay off her debt if she signed a document extending the loan. Bonds agreed and signed the document. Soon, though, she discovered that the new document had actually transferred all of her land--worth an estimated $1,500--to Brown. The two women then turned to the courts to contest the transaction. First the case was brought to a magistrate's court, which ruled against Lou Bonds. With the aid of two white lawyers, Bonds responded with a suit in 1906 before the local superior court. In an affidavit presented at the trial, Bonds framed the dispute to enhance her own legal claims and appeal to the white judge's understanding of race. To show her lack of understanding of the transaction, she described herself as "an ignorant negro woman, without education" who "had the utmost confidence in Mrs. Brown and signed the paper without any knowledge as to its contents." In fact, the court record noted, Bonds had some writing ability and may not have been as uneducated as she claimed. Her affidavit about her lack of education and her trust in a white woman, however, reinforced the legal basis for a claim of fraud and appealed to many white southerners' ideas of racial difference. Bonds's case also leveraged the testimony of whites to strengthen her claims. During the trial, several local white men gave affidavits in support of Bonds, stating that her land was worth far more than $406. In the end, both the trial court and, on appeal, the Georgia Supreme Court, ruled in favor of Lou Bonds and declared the transaction to have been usurious and void. In this case, the black litigant obtained exactly what she sought from the southern justice system.

For many years, scholars have been all too aware of the obstacles that African Americans like Will Johnson faced in criminal cases in the post-Civil War South, documenting a host of factors--former slaveholders' desire to maintain power, state and local officials' quest for profits, and white southerners' fear and racism--that yielded a criminal justice system that handed down vastly different justice for people of color and incarcerated millions of black southerners. At the same time, the civil cases that African Americans like Lou Bonds litigated in the same courts have largely escaped scholars' attention. Yet in civil cases that took place in southern courts from the end of the Civil War to the mid-twentieth century, a number of individual black men and women chose to bring litigation before a southern court, hired white lawyers, and then negotiated the white-dominated legal system to shape their own cases and assert rights. More often than not, in the cases examined, black litigants won their civil suits against whites on appeal. In some ways these civil cases were diametrically opposite from the criminal cases of black defendants, who did not choose to enter a courtroom, often had very limited legal representation, and received starkly unequal sentences. In other ways, African Americans' civil and criminal cases in southern courts were more similar than they initially seemed.

This article argues that examining civil and criminal cases together allows a fuller and more nuanced understanding of African Americans' experiences in the justice system in the postbellum South. If one only looks at criminal cases in southern courts, it can appear that African Americans could rarely negotiate and assert rights in the justice system. Only looking at civil cases, however, can minimize the brutality of the justice system and its role in upholding white supremacy. But looking at criminal and civil cases together brings forward a more complicated picture. This was a justice system in which black litigants both initiated civil cases and had criminal cases brought against them. It was a system where African Americans could negotiate the system in some cases for their own benefit and could assert their rights. At the same time, it was a system that worked to maintain white supremacy and ruined millions of lives.

Examining these civil and criminal cases in tandem also provides insights into particular kinds of cases. On one side, black southerners' civil suits help us better understand their criminal cases. In civil cases, the way that black litigants negotiated a white-dominated system to gain a favorable outcome is often clearly manifest. In criminal cases, black litigants' attempts to influence the cases' outcomes are often subtler. But when one looks for it, black defendants were also at times working to shape their cases and assert their rights, even as they often faced considerably greater barriers in doing so. Criminal cases shed light on civil cases during the same period, too. Looking at the depth of the racism black litigants faced in criminal cases helps us to understand the proceedings and outcomes in African Americans' seemingly successful civil suits. In fact, the outcomes of black southerners' civil suits--even when they won--often relied just as much on ideas of white supremacy as the outcomes of criminal cases.

Through an examination of the range of black southerners' litigation, then, this article contends that southern state appellate and trial courts during the era of Jim Crow were often both spaces for shaping cases and fighting for rights and sites of white domination, in criminal and civil cases alike. Black litigants could sometimes influence their legal action and assert their rights in criminal cases in which they were on trial for their lives as well as in civil cases over property and test cases over equal rights. Concurrently, black litigants experienced the power of white supremacy as they gained decisions in their favor in civil suits as well as upon receiving vastly unjust sentences in criminal cases. A decision in an individual black person's favor could reinforce whites' property rights, strengthen racial hierarchies, and protect whites from hazards in their communities just as a decision against a black litigant could reinforce white economic, social, and political power. This duality within the courtroom took place in everyday cases involving individual black men and women, as well as in high profile suits initiated or supported by racial justice organizations.

Increasingly, other scholars have also shown the courts to be both sites of oppression and crucial spaces in the struggle over rights. However, not all courts have been viewed equally as spaces where this duality could occur. Certain courts, at particular times in history, are more frequently portrayed as providing spaces for contesting inequality. In particular, scholars have given particular consideration to the struggle for African American rights in state and federal courts in the antebellum era, the period of Reconstruction, and the long Civil Rights era. This article demonstrates that both of these processes occurred even in courts seen as particularly oppressive such as southern state courts under Jim Crow. I argue, too, that instead of stopping and starting, black southerners' contestations of rights and negotiations of a white-dominated legal system, as well as the impact of white supremacy within the courtroom, occurred throughout the period from 1865 to 1950, continuing through the height of Jim Crow.

[. . .]

Looking at civil and criminal cases together also reveals both the brutality and the occasional subtlety of the system of white supremacy that undergirded daily life in the South as well as the astonishing boldness and creativity with which this white supremacy was challenged. A court could be working to further the ends of white power when ruling in favor of an elderly black woman by portraying her as unequal and in need of white assistance as well as when condemning a man to death who the justices must have known was likely innocent. Yet even when black litigants had largely lost the right to vote and experienced widespread racial segregation, they still sought to maneuver within the last government institution still accessible to them, the courts. They did so by working with white lawyers to negotiate the racial ideas of whites in their communities and by asserting their rights, even as they faced death sentences, the loss of land, and white violence.

In conclusion, these cases highlight the many limits within the southern judicial system, which could make them difficult spaces to claim rights and gain justice. At the same time, they demonstrate the ways in which black southerners--even as they experienced segregation, disfranchisement, and violence--continued to seek to navigate the legal system in both civil and criminal cases to gain the best outcomes for themselves and their families, and at times their larger communities. Despite the many structural differences in how civil and criminal cases proceeded, then, they were linked by black litigants' assertions of their rights and negotiation of a biased system even in the face of deep and systematic racism.

Melissa Milewski is a Senior Lecturer in American History at the University of Sussex in England and the author of Litigating across the Color Line: Civil Cases between Black and White Southerners from the End of Slavery to Civil Rights.

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