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Equal Justice Under Law

Inscription over the front door of

U.S. Supreme Court

By Tom Rubillo

Once you go black …

When Wade Hampton’s white supremacist forces regained control of South Carolina’s government, they did so on a pledge that everyone would enjoy the equal protection of the law, all without regard to skin color.

On July 9, 1903, Augustus M. Flood was injured when struck by a trolley car as he crossed King street in Charleston, between Line and Columbus streets. He suffered a broken cheek bone and his leg was badly bruised.

Complaining that the trolley car operator did not ring his bell to warn the inattentive, jaywalking pedestrian, Flood sued the Charleston Consolidated Railway, Gas & Electric Company for $1,000 in damages. That was a good bit of money in those days, something like $100,000 in today’s money.

On October 9, 1903, the Charleston News and Courier published a story about the lawsuit. The story fairly and accurately recited what Flood had alleged in his court papers. But it also contained a mistake. It said that Flood was a “colored” person.

Describing himself as “a white man of pure Caucasian blood  … [who has] always enjoyed the respect and confidence of his white fellow-citizens,· the same having been of value to [Flood] in his business, and a source of pride and pleasure to him in his social life,” Flood sued the newspaper, this time asking for $10,000 (about $1 million today) in damages to soothe his wounded pride.

The lawsuit complained that, by identifying Flood as “colored”, the newspaper had injured his reputation and caused him to be shunned by decent white society. Flood also alleged that the false publication had been defamatory per se — that is, that being identified as “colored” was so harmful to him that he was entitled to an award of “special damages.”

The law today recognizes several categories of slander (spoken lies) or libel (written ones) that are defamatory per se. They are (1) falsely impugning another’s reputation for chastity, (2) falsely suggesting that another suffers from a “loathsome disease,” (3) falsely accusing another of committing a crime, and/or (4) falsely accusing someone of dishonesty or incompetence in their occupation or profession.

The law recognizes that any one of these four categories of smears can expose a person “to public hatred, contempt, ridicule or obloquy, or cause him to be shunned or avoided, or to injure him in his office, business or occupation.” In those circumstances, out-of-pocket losses do not have to be proven by the injured party. “Special damages” in an amount determined appropriate in each individual case can be awarded by a trial jury. Truth, however, is always an absolute defense.

The question in Flood v. News & Courier Co. was simple enough. The Supreme Court said that it was whether “… it libelous per se to publish a white man as a negro?” The Supreme Court ruled that it was, adding, for a time, a fifth category of assertions that were defamatory per se.

“To call a white man a negro affects the social status of the white man so referred to,” the court opined. Quoting an earlier US Supreme Court decision in Strauder v. White Virginia, South Carolina’s counterpart court reasoned that “The colored race, as a race, was abject and ignorant, and that condition was unfit to command the respect of those who had superior intelligence.” Nothing in the Constitution or law changed that in the unanimous opinion of South Carolina’s white justices.

“If one race be inferior to the other socially, the Constitution of the United States cannot put them on the same plane. We therefore hold that these three amendments to the federal Constitution [13 abolishing slavery, 14th guaranteeing equal treatment under the law and 15th barring racial discrimination in voting] have not destroyed the law of this state which makes the publication of a white man as a negro anything but libel.”

You can’t go back.

Being identified as a “negro” or as being in any way “colored” had drastic practical consequences back then, as yet another South Carolina Supreme Court decision reveals.

Tucker v. Blease was an action brought directly to the Supreme Court in its original jurisdiction — that is, without having to go before a lower court first. It sought review of a decision of the State Board of Education expelling several children from a whites-only public school in Marion County because of their race.

John Kirby was the son of Big John Godbolt. Godbolt was one-eighth African and seven-eighths European. That meant Big John was “colored” as a matter of law, as the law was written in those days. Like racial purity laws of Nazi Germany not many years later, one-eighth of the unwanted blood was the cutoff.

John Kirby’s mother was white. That meant that John Kirby and his siblings had less than one-eighth African blood and, as a consequence, these children were not “colored” under then existing law. Instead, having only one thirty-second (1/32) African blood, they were legally “white.”

One thirty-second (1/32) John Kirby grew up and married to a white woman. They had some children, all of whom were 1/64th African and of 63/64th European extraction.

The Kirby family all attended Catfish Church, an all-white congregation of mostly Baptists. They all had reputations of being decent people. The children were all well behaved in church and school. John Kirby owned more than 300 acres of land in Dillon County, making him eligible to vote without having to pass a literacy test.

Kirby’s family, economic and community status notwithstanding, John Kirby was guilty of a serious social faux pas. From time to time, he associated with “colored” people and allowed his children to do so too.

For reasons left unknown in the South Carolina Supreme Court’s opinion, John Kirby has been killed by a man named Edwards. The killer had a brother named Sam. After Kirby’s slaying, Sam Edwards carried a petition around the neighborhood saying that the Kirby children were not “clear blooded” and should be expelled from the white school they had otherwise peacefully attended for several years. Based on that petition, the Kirby children were kicked out of the school.

Faced with these facts and the law as then written, the South Carolina Supreme Court reasoned:

“The law recognizes that there is a social element, arising from racial instinct, to be taken into consideration between those with and those without negro blood. The statutes and provisions of the Constitution herebefore quoted [all of which were part of the existing “Jim Crow” regime] show that the law not only recognizes a classification, but makes it mandatory, and provides a penalty for failure to observe the laws in this respect, in the instances therein mentioned. The decisions prior to the abolition of slavery show that the classification between white and colored persons did not depend upon the extent of the mixed blood.

“… We cannot say what admixture of negro blood will make a colored person, and by a jury one may be found a colored person while another of the same degree may be declared a white man. In general, it is very desirable that rules of law should be certain and precise; but it is not always practicable, nor is it practicable in this instance, nor do I know that it is desirable.”

So much for strict construction.

The court continued “The status of the individual is not to be determined solely by the distinct and visible mixture of negro blood, but by reputation, by his reception into society, and his having commonly exercised the privileges of a white man. But his admission to these privileges, regulated by the public opinion of the community in which he lives, will very much depend on his own character and conduct, and it may be well and proper that a man of worth, honesty, industry and respectability, should have the rank of a white man, while a vagabond of the same degree of blood should be confined to the inferior caste. It will be a stimulus to the good conduct of these persons, and security for the fidelity as citizens.”

(Now John Kirby and his children were which?)

Citing an earlier case, the justices said that “It may happen that persons in equal degree from the African stock may present such different complexions and features that they would readily be assigned to different castes. Habit and education have so strongly associated with the European race the enjoyment of all the rights and immunities of freedom that [being white] alone is felt and recognized as a claim [to those rights and immunities]. On the contrary, a strong repugnance prevails against a participation in the rights of citizenship by any who bear in their persons the traces of their servile origin.” (Emphasis added to the Court’s acknowledgment of its own racial hatred.)

Out of this twisted homespun logic, the decision concluded that if the local white community wanted to kick the Kirby kids out of their school, it was all right with the court, albeit with a suggestion that other accommodations be made for the children’s education. As it turned out, those were “colored” schools funded at seven cents to the dollar compared to the school they had been attending.

The Brave New World

Writing of the “Negro Problem” of those times, University of South Carolina Sociology Professor G. Croft Williams, in 1929, contended that

“There is no widespread desire in this State to harm or humiliate the Negro, but his social status is often taken advantage of to further the interests of others …

This denial notwithstanding, he nonetheless acknowledged that:

“In many instances the treatment given by the police and by the courts is not such as to advance justice. Negroes are often brutally handled by police, when a fit of baseless anger or the flare of race hatred is the only cause for such action.”

Williams went on to admit that “[o]ccasionally a colored man is shot to death on a flimsy excuse, and the killer goes free, perhaps with congratulations,” as if these sorts of deaths were aberrational in the hateful days of the segregated South.

He also acknowledged that “[i]n the courts the Negro is likely to meet three deterring factors: his own poverty, race prejudice, and the untrustworthiness of the testimony of his fellow blacks. His poverty precludes adequate legal aid; race prejudice sometimes dictates the verdict before all the evidence is presented, especially if the prisoner is a ‘sassy nigger’; and the testimony of his racial fellows is usually so conflicting and so mixed up with their own feelings that a shrewd cross-examiner and a puzzled jury seal the defendant’s fate.”

Williams went on to allege that “In the higher courts this is not so prevalent as in the lower ones.” He apparently had not read their opinions.

As to local courts, the Professor noted that “[m]any magistrates, vociferously echoing local sentiment and securely resting in the obscurity of their little districts, are the chief promoters of Negro nagging. Small offenses and far-fetched suspicions start the mills of these petty courts. Now that Prohibition has come in, giving the officer an excuse for search and arrest at every turn, with suitable fees for his pains, the condition is aggravated.”

But once again, he closed his eyes, genuflected, and rationalized that “… we should not leave this subject without saying that the Supreme Court of South Carolina cannot be charged with any partiality because of color.”

Returning to day-to-day justice, those convicted of misdemeanors were sentenced to serve time on county chain gangs to work on public roads or to be hired out as private contract labor. (In his Pulitzer Prize winning book “Slavery by Another Name,” Douglas A. Blackmon details the profiteering and day-to-day abuses of this system of forced labor.)

Whatever their days’ toils, at night “… the chained men sleep in shacks or tents or cages, when they sleep in shacks or tents their shackles have a chain run through them, and this chain is locked to a post or a tree. Discomfort, and often great pain, ensue from this practice. While at work the convicts wear shackles and stripes, precautions against escape, we are told, and it must be admitted that there is every temptation to escape. Punishment is usually administered by means of a strap, a piece of thick leather about three inches wide and two-and-a-half feet long. The prisoner is laid over a barrel or log, and from thirty to forty stripes are given him. This beating is so severe that it often lays up the man for weeks, it usually dazes him, so that after the flogging he reels like a drunken man. The pay of chain-gang foremen and guards is so pitifully small that seldom are any but the most ignorant gotten for these positions. Such men are usually filled with race hatred and take advantage of their positions to wreak cruel vengeance upon the Negroes under their control …”

The wagon used to transport prisoners on Georgetown’s chain gang to their labors rests in silent repose today in the front yard of the Georgetown County Detention Center, slowly rusting away, a sad testament to times past.

Same old world

Recalling his most vivid memory from his days of enslavement, 100+ year old Georgetonian Ben Horry told of being forced to witness his mother being whipped for resisting an overseer’s sexual advances. His description can be found among the narratives of former slaves compiled by writers working for the WPA during the Great Depression.

His mother was laid over “the pony” (a barrel or log) and was given so many lashes or stripes with a leather strap that her blood ran freely and stained the floor of the barn where she was beaten at Brookgreen Plantation. According to Mr. Horry, the stain from her blood was still clearly visible when, in the 1930s the Huntington family tore the barn down.

Faith of our forefathers

This is the world our grandparents and great-grandparents inherited. They did not create it. But it shaped the beliefs, attitudes and behavior of many who, in turn, passed similar ideas, predilections and prejudices on to following generations, all without giving the matter much thought. If they had, few would want to be exploited, disrespected, abused and lynched in the way others were during this extremely hate-filled era in American and local history.

Tom Rubillo used to practice law, but is now retired. He has held public office, taught government, ethics and law at area colleges and has published several books. The episodes written in connection with this project will be, at its conclusion, available in one volume, or at least that is his best laid plan.