American Law and the Rhetoric of Race

Spring 2013
4/1/13
Theory of Law and Race:
o My theory about law and race in American legal history is
that as soon as race comes in the law drops out
Judges are essentially just making policy and then
rationalizing it in rhetorical terms
**I want to focus on these rhetorical strategies and
tactics- what are they trying to establish and what
are they trying to avoid
Ex, Boon we see massive techniques of
avoidance
What are the objectives of these people/ to what extent have
they seen the consequences of what theyre doing? To what
extent are they constantly adjusting their techniques? Courts and
litigants are constantly adjusting to political reality and perceived
social change
o Idea that SCOTUS interprets the equal protection clause of
the 14th is nice but theyre doing something different
o How do these white male judges constitute the idea of
color for purposes of legal liability? What do they say is
significant about the idea of race?
Antebellum Period
o Judges commonly used the words negro and slave
interchangeably
o The law is highly dynamic- dont assume that even
particular judges lock in their positions early and retain
them
Focus on NC for 2 reasons:
o 1. Geography- western half of thes ttae is mountainous,
little saveholding
o 2. NC only has one good port- Wilmington, so slave ships
didnt arrive in NC bc outerbanks made it too problematic
so most of the NC slaves came from Virginia or SC,
economy depends in NC largely on farming or naval stores,
so slaves werent as useful as in the big plantation states
Plantation Justice- there were more than 4500 criminal trials
involving whites, but only 160 involving slaves because generally
just left to plantation justice- slave code of 1750 provided for the
power of slave courts to make punishments for inapproproiate
public behavior by slaves, but they almost always just left it to
masters of the slaves

o From 1750 on any slave away from his place of

employment was required to have a ticket signed by a
master or an overseer identifying where he was allowed to
be
o 1750 Code- held that any white person could detain a
slave and demand to see a ticket Significantly for the
culture, this authorized whites, whether slave owners or
not, to have some level of control over slaves a century
of assertion of white authority over slave behavior,
regardless of the relationship between the white and the
slave
Friction publicly between black or white usually occurred
between strangers- Piver is the model for this
State v. Weaver
State v Weaver
(HAYWOOD 1798), p1
Owner brings suit in NC
Supreme Court against
temporary hirer that
killed his slave.

I.

NOTE that HAYWOOD does

- Notice, there are
not want this case in his court.
not many facts
The instruction he gives could
offered in this case,
have come down much harder
which is unusual for
on the temporary hirer.
this time.
- Lays out the common law of
killings but then notes that this
is the common law for freemen
and that the common law for
slaves is different.
- Need to assume that masters
have some control and
discretion in discipline over their
slaves.
- White on black crimes are
still very new to the South,
not used to second guessing
decisions made by a master or
quasi-master.
State v Weaver (HAYWOOD 1798), p1 First case to offer any sort of
judicial opinion about a white man killing a slave. Shows courts
reluctance to enter the realm of white-black crime, and ultimate
objective is to preserve the existing social order.
a. BACKGROUND
i. Consider in context of NC A lot of slave hiring (slaveowners
could rent out their slaves, typically for a year). As a matter of
both political and social dynamics, slave hiring was very difficult
for slaveowners because it disrupted the master-slave
relationship that they had previously established. E.g., if the
hirer acted in an abusive manner.
ii. Remember, the system was always thinking of slaves as
economic objects, as well as about their humanity.
iii. Remember the powerful assumptions during this time about
how one class of people was treated.
iv. Abolition movement is not a factor in these cases until 1830s.
Viewed with contempt. Judges are not writing for their benefit
until late 1830s.
v. Also all of the judges are slaveowners themselves.
-

vi. There has been a legal apparatus in NC purporting to regulate

master-slave relations since 1715. Most recent (1774 and 1791)
Killing of a slave is punishable under criminal law of NC.
vii. By 1794, killing of a slave was a crime at common law, though
no one will come out and say it.
viii. New regime of courts at this time Old colonial laws have been
reestablished. Only a collection of county courts, no Supreme
Court of NC.
b. ANALYSIS
i. Question #1 Why is this an issue in 1791 (and not
earlier)?
1. Moral Constitution had just been ratified.
2. Economic Increasing migration to the South.
3. Political
ii. Question #2 Owner of the slave who had hired him out
was the white person who wanted the case brought.
1. Wanted Weaver made an example of because this was
bad for business.
2. NC legal regime at this time Why didnt Smith just sue
Weaver for value of slave Lewis? Civil suit for damages
Conversion of property or breach of contract. Why
not?
a. Example made of Weaver.
b. Weaver may have been judgment-proof. May not
have had enough money sitting around to satisfy
the judgment ($20-25,000 today).
c. Owner wants to deter this type of behavior.
Through a criminal suit can deter this type of
activity.
d. Dont want to let someone who only paid for one
years of work to be able to destroy a slave that
has many more years of labor left in him.
3. Obedience and docility Ultimate master and owner
is the one that wants to set the metes and bounds
between himself and the slaves.
a. Ensure obedient slaves while at the same time
not allowing temporary hirers to destroy the
property.
b. Conflict is embedded in HAYWOODs charge to
the jury. If he were only on the side of the master,
he would be coming down much harder on the
temporary hirer.
c. BUT if he were only interested in obedience, then
he would not give such instructions either.
iii. Question #3 Why was HAYWOOD unhappy to have this
case in his court?
1. Any sort of provocation is enough to make this killing
justifiable to Judge HAYWOOD. Im gonna get you
sucka.
2. Slave that was unarmed that got into a fistfight or
threatens the hirer, or somehow is in an altercation
whose genesis is ambiguous. Hirer uses a pistol to instill
obedience.

3. Murder vs manslaughter Basically need to respond to

provocation in kind.
4. Highly unlikely that the deceased slave had a pistol in
this situation.
5. HAYWOODs primary objective here then is to protect
the hirer and to preserve the social order of the
slaveocracy.
a. Secondary interest is the economic interest
of the slaveholder.
b. Aforethought Needed to load pistol, use of a
deadly weapon.
iv. NOTE that at this time, courts usually used a lot of detail. Not
found here Shows HAYWOOD did not want to spend a lot
of time on this and that this typically was an issue dealt
with on the plantation.
1. White on black crime is novel to the courts.
2. Previously, courts had focused on misdeeds on slaves,
and had respected the autonomy of the owners.
3. Now, second-guessing all decisions by a master or quasimaster in terms of obedience. However, the strongest
aspect of slavery is that the slave knows he only has one
master.
v. Statute of 1774 Moderate correction point is a big
loophole. Under HAYWOODs formulation, it seems that almost
anything can be considered as moderate correction and thus
justifiable. All of these go into the jurybox:
1. Turbulence of the slave Failing to take a hat off,
smirking.
2. Disobedience by the slave.
3. Hearsay allegations.
4. Shows us that the NC courts have no taste for white on
black crime.
vi. Courts Slavery is a peculiar institution that has its problems,
but it is not well-suited to the governance of the courts.
1. No rules, then have classic default mechanism of
process, where everything goes into the jurybox.

Emphasizing Hirers Need for DisciplineWeaver v State

(Haywood) (1798): A hirer killed a slave with a pistol.
According to the court, an unarmed slave who gets into a
fistfight or an argument with a hirer can be justifiably killed.
a. Offer to Resist by Force: The slave need only offer to
resist by force, which may include an insult or fistfight. The
court will ignore whether the hirers response is
proportional.
b.Liberal Rules of Evidence: The court will allow the jury
to consider the turbulence or non-docility of the slave,
disobedience, and hearsay allegation to determine whether
the hirers reaction was justified.
c. Preserving the Private Sphere: The court wants to
delegate the decision about correction to the jury because

the NC courts have no desire to superintend the discipline

of slaves.
d.Masters Interest in Preserving Property: The masters
want to prevent hirers from abusing slaves for a year
because the hirers are insensitive to the long-term costs
imposed on these human beings. This decision ignores that
interest.
MY NOTES:
o 2 things to keep in mind in these cases:
1. This is a system enforcing terror, enffoced by the
lash.
18th Century, most of the slaves in NC dont
speak English, so its a lie to think they were
disciplined with paternalism
You will see in these cases that the masters are
frustrated by 2 ideas they have trouble keeping
their heads around: 1. Duality of slave between
being property and being human beling- not
clearly property because master not allowed to
kill off old slaves etc, but also never argued for
the rights of slaves
Dogma of masters having absolute dominion
over their slaves
o Question 1 in Analysis: Which white man wants this
decided in a court as opposed to more informally?
*State v. Weaver is first case in NC Superior Ct (at
the time there was no SC of NC)
Smith was the owner of slave Lewis, he hired Lewis
out to Weaver for 1 year, ct doesnt care about the
facts so we dont really know what happened
We can figure out that what probably happened
was slave did something, white guy got mad,
and generally referred to as correction gone
bad
Smith is furious because hes lost the
equivalent of a ford, not to mention , from a
management standpoint there is the issue of
Smith being a benign owner hiring out to evil
whip Weaver will cause tension
Reason Smith wants this in court is to make an
example out of Weaver
*Note how judge structures his analysis- first he says
in white common law these are the rules, but that
cant possibly apply here
State v. Piver

- Note the
Because the in this
racialized
case is a white stranger
language and
rather than hirer or
interchangeability of
master, then Weaver is
the terms Negro
not directly on point.
and slave.
- Slaves that respond to
force in a disrespectful
fashion and then in a
physical fashion to any
white person should bear
the consequences of his
temerity.
- Now the system is
beginning to be at
conflict with itself
Masters want their
autonomy but at the
same time want the
value of their property
to be protected.
State v Piver (1798), p2 Only case that gives us some inkling of the
actual altercation. Slave shoved a boy and the boy shot the slave
court finds this is manslaughter under Act of 1791, which is afforded
no punishment at this time.
o CLASS ANALYSIS
NOTE racialized language Slave and Negro are used
interchangeably. Even in statutes.
First statute is in mid-16th c. Not racial.
Only common law analogy Not racial.
Common impulse of law
o 2 % of NC population at this time is free and
black.
o 75% of NC population is white.
This is manslaughter because the was pushed and could have
been hurt if he had not caught himself with his hands.
Slaves that respond force in a disrespectful fashion and
then in a physical fashion to any white person bear the
consequences of their temerity.
Controversial 1. Seemed to fly in the face of at least the
ambitions if not the technical apparatus established by the
legislature in 1774 and 1791. 2. Masters begin asserting
themselves. System is in conflict with itself.
Prompts the sustained discussion of the issues in State v
Boon.
Conflict Masters want autonomy as well as
having the value of their property protected.
o Ultimate fear at this time is slave rebellion.
o Growing theme in first quarter of 19th c.

State v Piver (1798), p2

White stranger is shoved
by a slave, and when he
gets up, shoots him. Court
finds white stranger guilty
of manslaughter, which at
that time goes unpunished.

White Strangers
1.Slight Provocation SufficientState v Piver (per curiam)
(1798): A slave was walking down the road, and a thirteenyear-old boy threatened to shoot him. The slave shoved the
boy, and the boy shot him. The boy is acquitted because it is
manslaughter.
a. Interchangeability of Slave/Negro: The court
interchangeably uses the word slave and negro, despite
the fact that over 2 percent of the population is free black.
This is a rhetorical trick later used by Ruffin.
b.Controversial Decision: This decision was controversial
because masters objected to the idea that white strangers
should be able to kill perfectly good slaves. The master
also fears that gratuitous cruelty from white strangers will
break down the system. It prompted sustained discussion
in Boone.
MY NOTES
o Not Weaver because Piver is a STRANGER- boy 13/14
shoots slave in the back
o This shows real tension at the end of the century, if you
have strangers who can go around shooting slaves, this is
problematic not just because of their value but because
could incentivize slaves to rebel
o Court says there was provocation here so thats
manslaughter, but nothing in the 1791 act about
manslaughter, so go on your way
o This really shows you how reluctant the NC judges are to
start superintending black/white alterncations in superior
courts
State v. Boon
State v
Boon
(1801), p4
Common
law does
not apply
to slavery,
only use
statutes.

While the Act of 1791 reforms

the laws pertaining to killing of
slaves, the judges are not
ready for reform. In the end,
they argue that the statute is
ambiguous and give a narrow
construction of the criminal
statute under the Rule of Lenity.
- Judge nullification.
- Slaveholders have to
ensure that their system
does not violate external
laws.
-

HALL Very positivist

approach. Refers to slave as
chattel as the underlying reason
why masters are able to recover
the fair value of their slaves if
they are killed.
JOHNSTON Although his
opinion is very strong that the
legislatures intent is clear in the
statute, he nevertheless relies
on the Rule of Lenity to find that
the if the statute is doubtful,
construe in favor of life (but its
not doubtful here!).
Also, describes slaves as
defenseless against the
masters wishes.

Takes on the intellectual

Achilles heel of the slave
system.
TAYLOR While he feels that
the common law definition of
murder encompasses both
killings of freemen and slaves,
relies on the canon of
construction that the legislature
must be absolutely clear when
taking away the benefit of the
clergy.
MACAY Argues that the killing
here amounts to neither
manslaughter nor murder, and
thus no punishment.

The ultimate case

State v Boon (1801), p4 Famous and frequently cited.
o ANALYSIS
Act of 1791 that if any person shall hereafter be guilty of
wilfully and maliciously killing a slave, such offender shall upon
the first conviction thereof be adjudged guilty of murder, and
shall suffer the same punishment as if he had killed a
freeman, any law, usage or custom to the contrary
notwithstanding.
HALL Whether the killing of a slave the equivalent to the
killing of a freeman.
All murders are killings but not all killings are murder.
Murders in first clause, killings in the second clause.
o Court was searching for an ambiguity.
o Legislature made it clear in the preamble their
meaning.
Presumption in interpretation of penal statutes in favor
of life Legislature was not clear enough in the statute
as to what punishment should be inflicted on a killer of a
slave.
While under English law, slaves are given certain rights,
this is by statutory grant and not through the traditional
definition of slavery. Finds that slaves in the US have
no such rights. Bases finding of ambiguity on dual
punishment of killer Pay value of slave and be
sentenced to death? Not clear that killing of a slave
constitutes a felony at common law.
JOHNSTON Finds that the definition of murder applies to a
freeman as well as a slave. While JOHNSTON himself feels that
the legislatures intent is undeniably clear, nevertheless relies
on the presumption in interpretation of penal statutes to find
that the prisoner cannot be punished here.
TAYLOR While he too feels that the common law definition of
murder encompasses both murder of a freeman and of a slave,
relies on the canon that the legislature must be absolutely clear
when taking away the presumed benefit of the clergy.

MACAY Killing here amounts to neither murder or

manslaughter, and thus no punishment.
CLASS ANALYSIS
HUTCHINSON Case is straightforward and judges treatment
of it renders it needlessly complex. Shows growing anxiety of
judicial class over their engagement in the maintenance of the
system.
Each judge has to weigh in with his particular anxieties and
each takes a slightly different spin.
No one said that they knew what the legislature wanted
to do but they were not ready to do it.
Cotton gin.
Frequently if there is a correction question Last thing judge
wants is to work out a detailed code of different degrees of
homicide. At this time, ruling principle must be deduced
from lowest common denominator from all of the judges
different approaches.
Come up with all sorts of little ways to get out of it.
Any differences in approach?
o HALL Very positivist approach.
o Other judges More functional.
o JOHNSTON Taking on intellectual Achilles heel
of slave system. If you take system seriously from
an economic standpoint, can waste your property
if you think it is valueless. But ultimate logic of
this statement as applied to slavery leads to
discomfort.
Need to infantilize slaves.
Duality of the slave that will vex the
slaveocracy.
NOTE that Roman law is never appealed to by these judges.
Roman law allowed slaves to escape their slavery by
buying their freedom.
American law contemplates it, but never seriously.
o Requires approval by quasi-legislative bodies.
o Becomes more impossible in tidewater states
with the rise of abolitionist movement.
Bad paternalism Killing someone so much in your power.
Dont want to be here. But the control of the system
rests in the slaveholders hands. Slaveholders have to
ensure that their system does not violate any external
laws.
Extraordinary abuses Slaves will not tolerate it.
JOHNSTON is the only one that speaks so frankly.
NOTE that society at this point is very hierarchical and
everyone sees the society this way.
Benefit of clergy Becket jurisdiction to try clerics for
offenses against the Crown. Thomas a Becket created such a
political controversy that Henry II had to make sure that a
Becket asserted that power no longer, thus had him executed.
Clergy would assert their jurisdiction for civil crimes committed
by the clerics.

Advantage Would not be hanged or head chopped off.

Felony and misdemeanor All felonies were capital.
Concept of benefit of clergy was established, and for the
first felony offense (except those exempted by
Parliament), benefit of clergy was available if you could
prove that you were a true and faithful Christian.
o Prove if you were Christian Read a scripture
correctly.
o Outgrew its associations with the clergy and with
the ability to read. Eventually became a way for
common law to mitigate penalties. See in Boons
Case.
Not a hypothetical benefit. 1/3rd of crimes mitigated
because of benefit of clergy for freemen. No crimes were
mitigated because of benefit of clergy for slaves.
Act of 1817 Designed, not to clear up ambiguity that the
Court strained to find in Boons, to provide a mitigation of
punishment. See note at p10.
H: Lawyer with clients who abuse slaves. Recognize that the
standards for white-white crime (especially provocation) are
fundamentally different from white-black crime because of the
feeling that slave relations are fundamentally different.
Boons Common law does not apply to slavery, only
use statutes.
Need to start using dogmas of common law that are
implacable by statute in Act of 1817.
BUT common law can talk without thinking twice of
necessity of adaptability Concerns of culture, local
assumptions, etc.

Slight Provocation Fine Despite StatuteState v Boone

(1801): The NC Supreme Court addresses whether the Act of
1791 makes the killing of a slave unlawful according to the
same terms as killing a white person. In a seriatim opinion,
the court concludes that different standards apply to the
murder of a slave.
a. Statute Clear: The statute clearly calls for the murder of
a slave to be judged by the same standards as the murder
of a white person.
b.Hall
i. Positivism: This judge argues that since the first clause
of the statute discusses killing, and the second clause of
the statute discusses murder, the statute is ambiguous.
In the face of that ambiguity, the court will interpret the
statute for maximum leniency towards the criminal
defendant.
ii. Common Law Inapplicable: Judge Hall argues that the
common law does not prohibit the killing because in
England the common law only applies to white persons
rather than slaves or negroes.

c. Johnston: This concurrence argues that killing a helpless

slave is even more abominable than killing a white person
because it is bad paternalism. However, controlling
paternalism is the masters duty, and the statute is
ambiguous, so the defendant goes free.
MY NOTES
o Judges in this case each have real rhetorical differencesjudge Johnston p. 5 doesnt really ad anything to the
discussion
o Highest common factor in the opinions is the application of
the rule of lenity- theres ambiguity with repsect to what
the punishment should be under the act of 1791 (p. 3)
o 1793= invention of the cotton gin makes slaves much
more valuable- so suddenly the reformist instinct that had
happened in the Act of 1791 and the judges are trying to
get around this
o Principle of Clergy- if you can receive god and can
demonstrate it you get one bite at the murderous appleway you show it is read the lords prayer so everyone
memorized it/ literacy test- was a way for whites to get out
of capital punishments but not blacks
o What did Judge Taylor say? Exactly the opposite of Hallhall says leglislature makes the rule and I follow them,
Taylor is saying is this practical/ a sound system that allows
for absolute dominion? This could lead ot unfortunate
results/ bad incentives? Hes the first judge to imply thisthat it has to be a defensible system
4/3/13
Judges are reluctant to see the slaves as just property, but they
arent people with full rights- the courts are being forced to
reconcile that in some way because of the act of 1817
P. 5 Johnston: the murder of a slave appears to me a crime of the
most atrocious and barborous nature- flows from the assumption
that there is no rational decision making by slaves because they
lack the capacity
1. Lack of Capacity
2. Infantilizaiton
3. Conditioned subservienceo In order to sustain and maintain the conditioned
subservience, whites naturally thin-skinned around slavestheyre not going to take any crap because they are so
invested in keeping up the sociological construct of
subservience
*These 3 cases are the most important in the antebellum period!

State v. Tackett (1820)

State v Tackett (TAYLOR
1820), p15
19th c love triangle between
black , slave, and white
stranger. Provocation by slave
and white stranger shoots
him. Remanded for new trial.

Lower court instructs the jury as if this is a

white on white crime and says that words are not
sufficient provocation to find manslaughter.
- TAYLOR rules that evidence of the slaves
general disposition toward whites is admissible
because it shows a greater probability of
provocation.
- Creates a double standard for white on white
crimes and white on black crimes. Finds that the
threshold of provocation for white on black
crimes is much lower. Thus, words by a slave are
sufficient provocation to find the lesser crime of
manslaughter.
- Court does not want to threaten the legal
order here by finding guilty.
- Distinguish this case from Walker on the
grounds that this slave was anti-systemic.
Moreover, this case involved manslaughter and
not murder.
a. State v Tackett (TAYLOR 1820), p15 Classic early 19th c love
triangle among Lotte, Daniel, and Tackett. Mutual threats between
Daniel and Tackett of death. Final altercation occurs when Tackett
returns to home of his employer and finds Daniel waiting for him.
Verbal altercation and then Tackett kills Daniel. Shoots at his pelvis
area.
vii. ANALYSIS Evidentiary question of whether can consider the
deceaseds general behavior and attitude toward white persons.
Court finds that such evidence is admissible and need not be in
relation to the prisoner in particular. Also recognizes the double
standard that is applied to determining degrees of homicide for
white-white crimes and white-black crimes. Much lower
threshold for provocation in white-black crimes, which is met
here.
viii. CLASS ANALYSIS
1. Kept = Euphemism for molestation and rape.
2. Technical legal issue Evidentiary. Can evidence of
general turbulence and insolence come in?
a. Trial judge Need to show insolence toward
Tackett himself.
b. Supreme Court Error.
c. Seawell Trying to help court out of the box they
got themselves into in Boon. Points out places in
statutes where law takes into account differences
in power.
i. Whats at stake is our social structure
If you find Tackett guilty of murder
here, you are threatening the racial
order in which we live.
ii. Supreme Court of NC cannot ignore
reality, because if they do, they will end
up with jury nullification and chaos.
iii. How to argue by analogy, sets up rule of
decision that he wants.
-

3. Genesis of TAYLOR How to reconcile Walker and

Tackett?
a. Walker Murder is a matter of law. Dont talk to
us about manslaughter.
b. Tackett Need more evidence, consider the real
world, etc.
c. Reacting to the governors pardon? Do they think
that Seawell has his finger closer to the political
pulse than the Attorney General?
d. Contrast the slaves in each case slave in Walker
is pro-systemic whereas in Tackett is a
troublemaker.
e. Supreme Court is very worried about the rules
they lay down because of concern that they are
rewarding pro-systemic behavior and penalizing
anti-systemic behavior. Early 19th c American
legal realism.
b. Subsequent cases begin to expose the cleavages between the judicial
response and the changing politics.

Punishing Antisystemic Slave BehaviorState v Tackett

(1820): Daniels (a slave) common law wife was a free
colored woman. There was a rumor that the prisoner had
raped the Daniels wife. It led to serious altercations and
mutual threats to kill each other. Tackett (the prisoner)
eventually shot Daniel.
a. Evidentiary Issue: The legal issue is whether evidence of
Daniels general turbulence against whites should be
considered when the court evaluates provocation. The NC
Supreme Court says evidence of general turbulence is
admissible.
b.TaylorGeneral Turbulence as Jury Issue: The
common law often allowed the jury to consider disparities
in power and social status when considering the
seriousness of a provocation. Since a precise rule is
impossible, the jury should determine the effect of a
slaves general turbulence on the degree of provocation
caused to a white person.

MY NOTES
o 1820- the other two cases are in 1823
o Tackett is not long after the Missouri compromise of 1820this makes slavery again the hottest political issue- if
Missouri comes in as a slave state then someone else has
to come in as a free state (Maine), value of salves go up/
the market increases
o Tackett= Love triangle- holy trinity of violence in the
south sex, race, and alcohol

o Tackett (white D), was having an affair with free black wife
of Daniel (deceased/ slave), Lotty- was kept aka
molestaition- rumor that she was being sexually abused by
Tackett
o They both threatened to kill eachother somewhere along
the way
o Tackett shot Daniel in the crotch- designed to humiliate and
incapacitate
o Judge Daniel SHOCKING gives a color-blind jury chargevery good judge correctly reading the act of 1817- so
charges it the way he would charge a case between two
whites hes basically punting the case upstairs with this
jury instruction
o Death sentence given to Tackett- obvs pretty surprised/
appealed
o Evidence that becomes CENTRAL ground for overturningDaniel (slave) was impudent to all whites, rather than just
the prisoner, so its basically a presumed provocation
o Court is categorizing pro-systemic good v. anti-systemic
bad slaves ****Tacketization of Provocation- take
everything into account, thrown into the jury box,
whatever they decide will be fine because were not
going to review their findings as long as they take
everything into account- but as to the provocation/
trubulence of the slave, thats to the fact finders- its
a way of lowering their profile and localizing law
State v Reed 1823
State v Reed
(HENDERSON
1823), p20
Life and limb
exception. Killing of
a slave is a common
law offense that is
probably established
prior to the statutes
enacted that were
considered in the
prior cases.

TAYLOR Boon has already

decided this issue by holding
that murder of slaves is a
statutory crime.
HENDERSON Finds that the
master does not own the
life of the slave, nor the
limbs of the slave. Wants
sharply demarcated limits as
to the authority of masters
over their slaves. Seems like
he is trying to preserve the
slaveocracy here by
providing such clear lines of
what is permissible. Compare
to Manns case.

Note that this case

comes on the heels of
two important incidents:
1) Compromise of 1820,
2) Slave rebellion in SC.
While slaveocracys was
fearful of slave rebellions
up to this point, the
actual incident of one
probably drives the point
home in a much more
real sense.
- The immediate
response to the fear
about the slave rebellions
is increased penalties
that were away from
masters without
permission, and
manumission becomes
almost impossible in SC,
-

GA, and NC.

Common law is now
implicated in the slave
system along with
statutory law.

State v Reed (HENDERSON 1823), p20 Finds that killing of a slave is

a common law offense that was probably established prior to the statutes
enacted that were considered in the prior cases.
c. ISSUE Whether killing a slave is a common law offense.
d. ANALYSIS While, in the establishment of slavery, owners were
vested with the absolute right to services of their slaves and discipline
of their slaves, it is not established that this meant that the lives of the
slaves were at their disposal. Finds that the statutes previously
considered do not make a clear case that killing of a slave was not a
crime at common law prior to these statutes (looks to language of
these statutes). Cannot be that the life of a slave is at the mercy of any
individual, without recourse.
e. CLASS ANALYSIS
i. Reed and Hale come on the heels of two incidents:
1. Compromise of 1820 Congress decrees that slavery of
the 36th parallel, 30th minute. As states are admitted
into the Union: one slave, one free.
a. Dissimilar to fear aroused by Nat Turner (1830)
because outside of system.
b. Racialize system Outsider for propaganda
purposes.
2. Summer of 1822 Slave rebellion in Charleston, SC.
Plan by a freed black (carpenter and evangelist) to bring
9000 of his comrades to Haiti or Africa. Plan exposed, 97
conspirators tried, a bunch hanged.
a. Net effect Makes tidewater slaveocracy
extremely anxious about their own security.
b. Immediate response Increased penalties for
slaves that were away from master without
permission, manumition became almost
impossible in SC, GA, and NC.
ii. Overall, slaves are well-treated, but at times, force is necessary
for discipline. By and large, system protects the slaves
internally and does not need a legal regime to set metes and
bounds for discipline.
iii. Reason why this question arises is because this is an indictment
for murder at common law.
1. Difference in punishment for murder and manslaughter.
2. Act of 1817 Legislature equates murder of slave with
murder of freeman.
3. Why indictment at common law here?
a. Straight answer Tackett courts interpretation
applies to murder of a slave by a stranger.
Murderer in Reed was the temporary hirer and
the slaveowner wanted this charge brought.
Prosecutor thought that whatever was said about
Act of 1817 in Tackett could go to stranger-slave

homicide. When owner/quasi-owner kills, have to

look to common law.
b. Cynical answer Prosecutor, one more time, was
caught between contending factions in the
master class (example made of temporary hirer
by slaveowners vs temporary owners who argued
that power was racial).
c. HUTCHINSON Suspects the latter.
iv. Insufficiency of indictment. Hogg simply cites Boon.
v. TAYLOR Boon controlsassertion that homicide of a slave at
common law was murder. It was HALL who said that common
law did not contemplate slavery, and thus homicide of a slave
could not constitute murder at common law.
vi. HENDERSON Indictable under common law. Definitional sop.
Slaves are property, but not in the same sense as a
horse or a chair. Its one thing to say that because of
peculiar nature of the institution, the common law will
not allow slaves to be killed gratuitously. The master has
absolute authority over the slave, except that he does not
own the life of the slave, nor the limbs of the slave.
1. This is not based in statute.
2. HENDERSON is attempting to establish limited protection
for slaves under the law. Correction must stop short
of dismemberment. This is a common law principle
because everyone agrees on it.
3. Dismemberment point While he may be trying to
protect the slave, but more likely that he is trying to
preserve the system. Look to Mann Common law
does not want to stand idly by as people are being
carved up under the guise of slavery. But court does not
want to get involved in the line drawing problem.
4. Problem arises again in Manns case.
5. HUTCHINSON Shows a judge who is willing to go along
with some sort of legal, systemic control over slavery,
but only within sharply demarcated limits.

Temporary Hirers
1. Extending Common Law Murder to Hirers and Slaves
State v Reed (1823): The prosecutor indicted a white person
under common law for the murder of a slave.
a. TaylorExtending Common Law to Slaves: Judge
Taylor argued that the common law provided a sufficient
basis for indicting the hirer.
b.HallCommon Law Inapplicable: Judge Hall argues that
in the US the common law does not apply to slaves. This is
consistent with Halls position in Boone, and it would allow
the NC Supreme Court to avoid difficult issues about the
sufficiency of provocation.

c. HendersonLife or Limb Exception: Henderson argues

that the master does not own the life or limbs of the slave.
Masters cannot kill slaves gratuitously, and correction must
stop short of dismemberment.
d.Beginning of Interference in Discipline: This is the first
time courts are willing to embroil themselves in the
punishment handed out by masters. This will present
difficult line-drawing problems, and the courts will have a
difficult time policing these relations.
MY NOTES
o Slave from the Caribbean won lottery and bought his
freedom- started a church, was caught when two of his
fellow plotters ratted out his rebellion plan, claim that
there were going to be 9k slaves and free blacks who
would kill whites, torch Charleston, and sail to Haiti
o The literally made him into fucking soap
o Theres a tradition of extraordinary violence in the 18th and
early 19th century of the slaveocracy onto slaves
o QUESTION: does the murder of a slave get brought under
common law? The Act of 1741 prohibits penalizing those
who cause death in a non-malicious way as a result of
lawful correction
o It IS indictable under common law but he wrote the lead
opinon in boon so how does he get around that?
Hes saying as soon as they passed the act of 1817
(repealing 1741????) they were telling us to look to
the common law to provide the gradations
Public will not stand for taking life or limb
Tackett basically localizes the rule of provocation and
reed essentially says its all up to you, we wont get
involved, but
Hale presents what will be a growing problem for the slave
owning class
o Q: whether assault and battery on a slave is indictable?
o H: basically saying sure its indictable, have to protect the
property of the master, but at the same time

State v Hale
(TAYLOR 1823),
p22
Finds that battery
committed on a
slave by a white
stranger with no
justification is an
indictable offense
under the
common law.

Makes a distinction between

masters and white strangers.
While masters do have the full
authority to discipline their
property (see Reed), slaves are
likely to rebel if white strangers
take this role upon themselves as
well. It will undermine the
technical authority and
paternalistic relationship
established.

Trial judge:
DANIEL
- Language on RHS
p23 about the how
the is poor white
trash and such
actions by such
individuals is likely
to produce even
more chaos and
vigilantism.
-

Need to preserve the existing

social structure.
- Safety valve of saying that to
allow such cruelty would be an
anomaly in the police system.
-

Notes that the

common law has
often been invoked
to protect animals
and thus should
also be used to
protect a human
being, even if he is
property.

HALL Focuses on the fact that

there was no justification for this
assault and thus this is an
anomalous case.
State v Hale (TAYLOR 1823) (Trial judge: DANIEL), p22 Finds that
battery committed on a slave by a stranger constitutes an indictable
offense at common law.
f. ISSUE Whether a battery committed on a slave, no justification or
circumstances attending it being shown, is an indictable offense.
g. ANALYSIS Because there is no statutory basis for such a crime, look
to common law and general principles. Notes that the legal protections
afforded to slaves in recent years has done much to preserve the
current social structure. Thus disputes the claim that because slaves
are property, only civil actions are available for battery on a slave, and
finds that criminal law acts to protect the peace and the social order.
Need to distinguish between battery by a master (ok) and by a
stranger (may be prosecuted). Battery by a stranger is an offense to
ones property (the slave), and threatens public peace. Moreover,
recognizes the dual standard for the offense between white-white
crimes and white-black crimes, and defenses in white-black context are
more lenient.
h. CLASS ANALYSIS
i. Had to be at common law because no statute that proscribed
the beating of a slave.
ii. Prosecutor brought indictment at common law for assault of a
slave because the prisoner was a stranger to the slave
(poor white trash). See RHS p23. Beat a slave, but did not
dismember or maim him. Intolerable to system because:
1. This is a system of power (force and terror), and slaves
will put up with it because they have no choice. But if
the system is placed upon them by someone other
than their masters, they are more likely to rebel
and resist because the master has the technical
authority and the paternalistic relationship.
Involving a stranger disrupts this relationship.
2. When poor white trash behaved this way, there is
an impulse for vigilantism that is bad for
everyone. Masters likely to incur private vengeance
which will hasten a response by the poor white trash.
3. Moreover, poor white trash would be judgmentproof in the event of a civil action.
4. These strangers are the worst type of strangers
because these are the lowest whites on the social ladder.
iii. Safety valve Mitigated as slavery is by the humanity of our
laws, the refinement of manners, and by public opinion, which
revolts at every instance of cruelty towards them, it would be
an anomaly in the system of police p24.

iv. Theme Murder is indictable both at common law and statute.

Some think there is a life and limb exception to masters
absolute authority. BUT this is not going to protect against
cruelty and barbarism in the systemsomething else in the
system must protect the slave. The masters themselves,
who by Christian guidance and benevolence, will control
the temperance of the slave system. Is this capitulation or
strategy?

D.

White Strangers

1.Assault by a White Stranger UnlawfulHales Case

(1823) (Taylor): The indictment charges a white stranger with
common law assault on a slave.
a. Preserves Masters Monopoly Over Violence: This
preserves the masters monopoly over disciplining a slave.
This may minimize the amount of violence that slaves have
to endure in the system.
b.Vigilantism/Uncontrollability: Allowing white strangers
to violently attack slaves would promote vigilantism and
allow the white stranger to participate in random violence.
Since these white strangers are the lowest white people on
the social ladder, there is a great deal of tension between
these whites and the slaves.
c. Retains Lower Standard for Provocation: The white
stranger will still be able to beat the slave with less legal
justification than is necessary to beat another white
person. [M]any circumstances which would not constitute
a legal provocation for a battery committed by one white
man on another would justify it if committed on a slave,
provided the batter were not excessive.
State v. Roane 1828- Famous Opinion
In some sense, this isnt a black/white issue at all, this is a
reckless person with a gun, he sees a person leaving his garden
and fires a lethal warning shot, is this murder, manslaughter, or
justifiable homicide?
Roanes lawyer argues dif things- pushes strongest for third
argument: D found at the scene at late hour, didnt know him, so
the killing was excusable notwithstanding the mistake that he
didnt intend to kill, just to frighten the deceased because he
thought a felony was about to happen
Judge Daniel, emerging as a liberal- refused to give the
instruction, but charged the jury that if he had shot the gun in a
reckless manner, then manslaughter- but on appeal the tackett
point is raised, but it seems there is no factual predicate on the
record to sustain

Master class is saying this is what puts our slaves at risk- have to
protect good workers- courts saw nothing wrong with what the
victim had done (cut across a lawn) and they saw recklessness
on the part of the D
Although Henderson sustains the manslaughter, the sentence is
only 6 months hard labor because he confessed right away- think
of this as an unfortunate rather than a wicked place, there would
have been no evidence against D except that he confessed- this
is a theme to watch for- when violence occurs, how does the
perpetrator respond- flight, denial, confession, etc- the reaction
weighs not only on punishment but on liability

State v. John Mann (Ruffin 1829)

State v John Mann
(RUFFIN 1829), p25
Finds that a cruel
and unreasonable
battery on a slave
by a hirer is not
indictable.
Dominion is
essential.

General principle must

be that the master has
absolute dominion over
the slave.
- Argues that if the courts
were to intervene, it would
create a slippery slope of
intervention and the
effectiveness of the
absolute dominion of the
master of the slave would
be undermined.
- Thus, distinguishes
Hale on this basis Hale
involved a white stranger
while here it involved a
temporary hirer who was
vested with equivalent
authority of a master.
-

Trial judge: DANIEL

- NOTE that RUFFIN
himself is a slaveowner
and throughout this entire
opinion he is crying only
crocodile tears.
- In 5 years, s actions
would be punished with
hanging.
- After this case if you
can make a plausible
claim that death resulted
from correction, theres no
liability.
- Slaveowners were
furious with this opinion
because it made them
look bad. Growing fear
of slave insurrection.
- The negative reaction to
Mann was described by
MOORE in Will Only
displeased the good men
and giving bad men a
license that they otherwise
didnt know they had. P38.

II.

State v John Mann (RUFFIN 1829), p25 Most famous case in the
law of slavery. Finds that battery committed on a slave by owner or one
vested with equivalent authority is not an indictable offense.
a. ISSUE Whether a cruel and unreasonable battery on a slave by the
hirer is indictable.
b. ANALYSIS Rearticulates general principle that authority of master
over the slave is absolute, and that there is no room for the court to
intervene. Although Hale established that a battery committed by a
stranger onto a slave is indictable, it is not indictable when the is the
owner or one vested with equivalent authority. Judge shows a lot of
remorse over this holding.
c. CLASS ANALYSIS
i. Harriet Beecher Stowe praised RUFFIN for his opinion for not
calling something terrible something good. But are these
crocodile tears?
1. Look to first paragraph Another way of saying that this
kind of case does not belong in our court. Dripping with
cold disengagement.
2. Well-educated, large plantation. Had more slaves than
anyone else.
3. RUFFIN knew what he was doing here. See LHS p27
Dealing with law of plantation which is like the law of
the ship when the captain is in control. He is in complete
control and common law would be foolish to intrude into
this relationship. Also see RHS p27.
a. One of the earliest slippery slope cop outs by a
judge.
b. Anomaly of hiring makes this visible. Wont
change operation of system, and the law is the
last mechanism to intrude in that respect.
ii. Hirer maimed temporary slave with a gun while shes fleeing.
These factors within 5 yrs would put John Mann behind bars for
manslaughter.
iii. RUFFIN has tried to use a lot of ameliorist language that
HENDERSON and others have worked to set up.
iv. Attorney General argues that this issue was determined in Hale
(Hall). RUFFIN argues this is not Hale because this is a de facto
master. Thus, this defense does not lie at common law.
1. See LHS p27 Death struggle of master and slave is
inextricable. Who can ameliorate or untangle it? Only
God can fix this.
2. Most masters dont gratuitously slay their property and
are careful not to hire their property to people such as
John Mann. But, they all also suffer the frustration that
leads to the inevitable violence against the slave.
v. Slaveowners were furious with this opinion because it
made them look bad.
1. Abolition movement hasnt started yet.
2. Growing fear of slave insurrection.
3. Mann is vulnerable on political grounds because paints
slaveowners in a way that they disagree with.

Shooting Slave to Prevent Flight LegalState v Mann

(1829) (Ruffin): A temporary slave was fleeing from a hirer,
and the hirer shot the fleeing slave. The court held that this
was legal.
a. Distinguishing Hale: The Attorney General argued that
Hale, which made common law assault by a white stranger
illegal, should apply to this case. Ruffin distinguishes Hale
because this case involves a de facto master, and there are
no limits on the control of a de facto master.
b.Discipline as an Internal Matter: Ruffin complained that
the violence and discontent among slaves naturally spurs
the master to violence, but there is no effective way to
monitor the mater-slave relationship. Master-slave
disciplinary issues should remain on the plantation.
c. Religion only Corrective Force: Ruffin admits the
violence that inheres in the master-slave relationship and
argues that only religion or morality can temper the
masters discipline and rage.
d.Political Lightening Rod: Slaveowners were furious with
the opinion because it explicitly acknowledged the power
of the masters and risked motivating abolitionists even
more. The slaveowners did not want to be seen as the
brutal class of totalitarians that this candid opinion
portrayed them as.
MY NOTES
o RUFFIN had probably seen some of the work of David
Walker (abolitionist)
o How do slave owners reconcile slavery and Christianity?
With respect to the violence of slavery- violence
came with slavery but wasnt central to slavery- sin
of violence associated with slavery was just one
more sin/evil that should be resisted by the Christian
o Religious discourse by the 1820s around slavery had
settled into 3 forms:
1. For some it was a sin for one person to own
another
2. It was just a moral evil of a lesser degree, slave
owners werent sinful
3. Slavery was neither sinful nor a moral evil
o Harriet beecher stowe lauded this opinion in her book
hutch asks what was she smoking?
o Objective was to lock down the abosolute dominion of the
master over the slave- Ruffin, judge, is the antithesis of
Henderson- he might get upset if a slave dies from

o
o
o
o

o
o
o

correction, ut he says fine if its justifiable under the act of

1741
The record just says that to resist physical chastisement
Lydia ran, and then Mann asked someone for a gun, shot at
Lydia and lodged the bullet in her bak, she kept running to
the small plantation- Mann had hired slave Lydia for a year,
but she was owned by Elizabeth Jones, a minor, so man
named Small, who was in charge of Jones, brought this
case
Ruffin is able to use this as a vehicle to argue for absolute
power of master over slave
First trick is to make this man a master- but hes
actually just a hirer, not a master
Original judge charged the jury that if they believed the
punishment inflicted by D was cruel and unwarrantable,
and disproportionate to the offense committed by the
slave, then D guilty, as he only had a special property in
the slave
Not surprisingly, there had been complaints by Ruffins
neighbors of his treatment of his own slaves and his
treatment of their slaves when he rented them
Important demographic point that helps explain the last
part of Ruffins opinion- it was a jury of a masters peers,
not of Manns peers
Mann was fined $5 (like $90 today)- no counsel for D- AG
says theres no difference between this and Hale
AG has t-d up Ruffin and provided all the targets that Ruffin
thinks he has to hit: 1. Hirers arent strangers 2. This is not
parent and child 3. This is not master and apprentice 4.
This is something else, this is property
Harriet Beecher Stowe swoons because he says I dont
want to do this, but I have to because its the law- Im just
following orders
*hes trying to divorce himself and the courts from the
moral responsibility of whats going on here
He frames the issue exactly the way he wants it
1. First step is he says this isnt Hale- here the slave
had been hired by D- interestingly note that he
doesnt cite Weaver- note that the opinion is virtually
bereft of precedent
2. Next step- what does the community deman/
require/ accept- look around you, have you ever seen
a prosecution for something like this before? No, and
there cannot be

3. Next move- there have been no prosecutions of

the sort, the established habits of the country is the
best evidence of the whole community
Note that he totally ignores the jury- probs
cause he fears theyre like Henderson/
sentimental
Its a real weakeness in the position
His intent was to use the Localizaiton of Tackett
doctrine- there may be different attitudes in
different parts of the country- bue he doesnt
go that way at all- hes asserting that theres a
mindset in which we all recognize and must
yield to and the only way it can changed is
through the authoritative organs of the state,
not us- only time they ever talk about
correction is 1741- which said justifiable
homicide if death ensues from correction

State v Tom (RUFFIN 1830), p28

In the context of principal and
accessory, the acquittal of the
principal is an immediate and
absolute discharge of the
accessory. Rationale is that there
can be no aid given where no deed
was perpetrated.

State v. Will (Gaston 1829)

Is highly possible that the

legislature sought to impose a
higher level of morality on
a slave than a freeman.
- Statutory interpretation to
determine if conspiracy to
murder is within the Act of
1802.
- Must be that the legislature
sought to encompass in this
statute the conspiracy for
murder of a master (intent
includes protecting those who
exercise dominion over the
slaves).
- Court remands in search of
other parties who could also be
convicted for this conspiracy.
-

- Trial
judge:
DONNELL

III.

State v Will
(GASTON
1829), p34
Temporary hirer chases
disobedient slave and
fatally shoots him in the
back. The slave runs and
ends up stabbing the hirer.
He is convicted of murder in
the lower court. Reversed.

MOORE (for ) Argues

that although Mann
established that the
master has absolute
dominion over the slave,
must also recognize the
Reed life and limb
exception.
- Focuses on the fact
that if the slave had
died from the fatal
shot, then would have
at least been
manslaughter.
- Argues that as a
Christian Nation we
should not allow
masters unqualified
authority over slaves.
- does not exhibit
depravity of character
or of the act required
for manslaughter or
murder.
MORDECAI (for )
Argues that the law has
been moving in the
direction of treating
slaves as humans for a
long time. Goes through
the list of precedents
relevant to this case.
- Must apply same
rules of
guilt/innocence as
for freemen, but
concedes that a
double standard
must be used.
- Double standard is
determined by facts.
- Must protect those
the law has
subordinated.
Attorney General
Pedestrian and flatfooted.
- Argues that the
definition of murder
does not apply to
slaves because only
applies to reasonable
beings.

NOTE this the first

case we have looked at
where the slave kills a
white man (overseer).
This case comes on
the heels of the Turner
rebellion (3 years
prior). South tightens its
laws and polices the
slaves more closely.
Fact description is
highly detailed.
Two key facts: 1)
Legal consequence.
Shot in the back could
have been fatal. 2)
Social fact. This was a
pro-systemic slave
(the prisoner took off
his hat in an humble
manner RHS p34).
GASTON is antislavery. Also has a
much more indirect
and rhetorical style
than RUFFIN.

The actual rule that

comes down from Will is
1) It is not simply by
virtue of the
unlawful act that
there is sufficient
legal provocation.
2) Also, just because
the slave killed a
white overseer or
master, we do not
presume malice or
murder.
3) If we dont
presume malicious
intent, then it is
proved on a factspecific basis.
4) THUS, it does not
go into the jury
box when it is
ordinary battery
(slave does not
get to offer
evidence of
provocation).

Slaves are
considered property,
and thus to reverse the
decision below would
be to interfere with
ones property rights.

GASTON Recognizes
the need for a double
standard.
- However, follows the
precedent of Reed in
stating that There is
no legal limitation to
the masters power of
punishment, except
that it shall not reach
the life of his offending
slave. RHS p55.
- States that if the
overseers shot had
been fatal it would
have been at least
manslaughter, and
probably murder.
- However, note that
the provocation being
indictable is not the
criterion for whether
an act constitutes legal
provocation.
- Points out that it
cannot be that if the
lives he is a murderer
but if he dies he is not.
- Finds Mann not to be
on point because that
case is limited to the
holding that cruel and
unreasonable battery.
- Refuses to find the
rule that if a slave
commits unlawful
violence against his
master or one with
equivalent authority
then it must spring
from unlawful malice.
IV.

State v Will (GASTON 1829), p34 p

a. FACTS
i. Two determinative facts 1. Legal consequence. Shot in the
back to slave could have been fatal. This was illegal correction
(barbaric). Moreover, he had to go back into the house to get

the gun (calculated). 2. Social fact. This was a pro-systemic

slave (see RHS p43). Wills owner fears rebellion.
ii. Argument between Will and another slave over a hoe. Overseer
(deceased) decides to discipline Will. First goes for cowhide,
then goes for gun later.
iii. Worst thing we can say about Wills behavior Pulled out his
knife and began to stab overseer. So, perhaps this was an
uneven fight.
b. ISSUE
c. BACKGROUND
i. Comes 3 years after the Turner rebellion.
1. Turner rebellion Lasted 2 days. Uprising which was
designed the Ribisi rebellion, but ultimately could only
garner support and participation of 75 other slaves.
Killed white masters Within a period of 2 months, 17 of
the rebelling slaves had been captured and hanged
with/out judicial process. 38 more were tried and
executed over the period of Sept-Dec 1831.
2. Turner, himself, was dismembered in order to desecrate
his body. Grease made into lye and soap and distributed
as souvenirs.
3. Greater anxieties that had developed in those who
depended on slaveowning class for their economic
vitality Great disruption of social fabric of slaveocracy.
4. Excited a newspaper reporter in Boston Garrison.
Published abolitionist newspaper (Liberator) drawing on
call for rebellion and resistance in 1829. Immediately
Southern press gave him a lot of attention. GA
legislature offered reward for capture of Garrison in GA.
5. Reaction in the South Laws tightened, more slave
patrollers. Policing became even closer.
ii. Thus, when case of Will arises, there is an enormous question
as to technical leap of faith of Will. BF Moore paid highest fee to
any attorney representing a slave.
iii. Even after Mann, there was an immediate backlash. Question
now is what kind of posture to take with slaves that act
inconsistently with their masters. Now we have some tensions
between the judges instead of austere judges from before,
now we have lenient and expansive Catholic judges.
1. RUFFIN First Catholic to hold public office in NC.
2. Among GASTONs clients were the abolition and
manumition organizations.
a. GASTON Liberal. Gave baccalaureate speech at
UNC that slavery should not continue.
b. Sharp contrast to RUFFIN Where RUFFIN is
direct, unsparing and noneuphemastic, GASTON
is indirect, and rhetorical.
c. GASTON believed in convincing his readers that
his approach would help to mediate the system,
and RUFFIN instead grabbed them by the throat.
d. MOOREs argument
i. Legal arguments Masters actions = unlawful action, and if
slave had died, then it would be manslaughter.

1. Tries to pull facts of case into NC law, including statutory

regime.
a. Act of 1774 One way to get around this case
law that is driven by policy concerns and not
consistently maintained categories is to go
through statutory constitutional base.
b. Distinguishes between act of resistance and
disobedience.
i. We know there is a difference between
resistance and rebellion, and we only look
to Turner rebellion to see the difference.
ii. Irony of this strategy Get into fine
distinctions that Manns Case tells you
court cant do. BUT Moore takes it as
intuitive and obvious that this slave was
acting in a humble manner.
iii. Tells you how out of touch or marginalized
RUFFINs approach in Manns Case was
Speaking only for minority of slaveowners.
2. Responding to negative reaction to Mann Only
displeases the good men and giving bad men a license
that they otherwise did not know they had. P38.
3. Lawyers are more and more recognizing the humanity
and the sophistication of the slaves. LHS p45.
a. MOORE They understand the common law very
well. Understand equal treatment by overseers
and masters, cognizant of what the courts do,
and have calculated responses to both.
ii. While the master has absolute authority over the disciplining of
the slave, there is no right to kill the slave. Points to the fact
that we are a Christian nation, and to allow masters the
unqualified right over a slaves life inconsistent with those
values.
e. MORDECAIs argument
i. Argues that slaves are humans, and that the law has been
moving in that direction for a while. Piver, Tacket.
ii. Then must apply same rules of guilt/innocence as for freemen,
except use a double standard.
1. Double standard determined by specific facts.
2. Must protect those that law has placed in such a
subordinate position.
f. Attorney Generals argument Pedestrian and flat footed
argument.
i. Concedes that the master has no right to take the life of a slave
under such circumstances as would evince malice aforethought.
However, the master does have plenary authority to discipline
the slave.
ii. While there has never been absolute authority of the master
over the slave in this country, the definition of murder does not
apply to a slave. Definition requires the killing of a reasonable
being, and a slave is not a reasonable being, rather, only
freemen are.

iii. Instead, slaves are considered property, and to apply these

principles would be to annihilate ones property rights.
iv. Because the masters rights over the slave are so broad, it
follows that the slave has a legal duty to submit to these rights.
It is only if there is an unlawful attempt by the master to take
the life of the slave that there may be legal provocation on the
part of the slave. Here, however, the slaves alleged
provocation was lawful correction. While this might constitute
as provocation to freemen, not the case with slaves.
g. GASTON, p54
i. How does GASTON respond to MOOREs argument?
1. Noticing difference between relations between masterslave and two freemen.
2. Master does not have right to take life of a slave, but
MORDECAI did not go that far. Whole game in common
law analogy.
a. Mann is relevant, but not the most relevant case.
b. Instead, look to HENDERSON in Reed. Life and
limb exception to slaveowners absolute authority
over slave.
ii. Legal Rule that comes out of State v Will with respect to a slave
who slays a white master or overseer Reed does not overrule
Manns case, and in a case such as this, murderous intent is not
shown. Absence of malice results in manslaughter.
1. Know there is absence of malice Slave acted toward
overseer in a respectful manner.
2. While passion etc are not legal defenses, judges have a
duty to weight the malicious nature of the intent. Here, it
seems that there was no such malice, but instead the
slave was reacting to a feeling of sheer terror.
iii. Master does not have absolute authority as a sovereign does.
iv. NOTE Battery which endangers the slaves life is sufficient
legal provocation to mitigate a homicide.
h. CLASS ANALYSIS
i. Huge case when it came down.
ii. Designed to establish some sort of larger theme rather than
deal with a single episode.
1. H: What if Will had died and the overseer had lived?
a. See p55.
b. Wills Case is not very analogous to NC
precedents.
c. Is Wills behavior rebellion or resistance? GASTON
deems it disobedience. Then look to behavior of
overseer Is it moderate correction or is it an
unlawful act?
d. Use of the gun, slave was respectful.
2. System is always asking what the decision can do for
itself Maintenance of slave system, autonomy of the
master, and preservation of black-white relations.
3. GASTON vs RUFFIN.
a. Is RUFFIN merely holding his tongue or is he
adapting to the system?
b. Slaves are going to have to start thinking about
how theyre being treated. MOORE makes this

argument and GASTON recognizes it. Moreover,

judges must think about how the outside world is
going to take such a decision.
c. Sees politics moving more quickly and in a more
complicated fashion. GASTON is the perfect
spokesman for this because of his perceived
humanity and eloquence.
4. Whats the legal rule that comes out of this case?
a. Judge DICK (most adamant about slave system)
How would he interpret GASTONs
interpretation when a slave comes in your court
who has killed his master?
i. It is not simply by virtue of the unlawful
act that there is sufficient legal
provocation.
ii. RULE Also, just because the slave killed
a white overseer or master, we do not
presume malice or murder.
iii. Secondary RULE If we dont presume
malicious intent, then it is proved on a
fact-specific basis.
iv. Qualification It does not go into the
jury box when it is ordinary battery (slave
does not get to offer evidence of
provocation).
b. THUS, the judges are leaving the door open for
evidence. The jury is going to determine what
constitutes malicious intent.
c. What constitutes ordinary battery and who makes
the decision? The judge.
5. Uses the liability of the common law as a balance wheel
with respect to how masters deal with their slaves, and
modulating excess while not intervening gratuitously or
too often. Gives the system more legitimacy and more
political cover for the common law.
a. By and large, the jurors are going to be
slaveowners.

C.

Masters and Overseers

1. Slave Can Respond to Deadly Threat from Overseer
State v Will (1834): Will and another slave fought over a
tool that Will had made. The overseer finds out and asks for a
cowhide and then a gun to punish or correct Will. The
overseer shot Will. Will was armed with a knife that he
eventually killed the overseer with.
a. Key Facts: There are two key facts: (1) The overseer used
a gun to administer correction or prevent flight. He went
back to his house to get the gun, and his wife warned him
not to do it. (2) Will was a prosystemic slave. He got down
off the screw and took his hat off in a humble manner. The

slave only defended himself after receiving an almost fatal

wound.
b.MooreManslaughter: Moore argues that Will has only
committed manslaughter.
i. Overseers Actions As Unlawful: Moore shows that
the overseers actions were unlawful under the statute of
1771. He says that the slave was only insolent, and the
overseer responded with too much violence.
ii. Overseer Similar to White Stranger: Moore
distinguishes Mann by arguing that the overseer should
be treated differently from either the master or
temporary hirer. The court would treat the overseer as a
white stranger.
iii.
Limits to Tolerable Violence: Moore openly
discusses the possibility of overcorrection or excessive
violence leading to rebellion. He warns the despair of
individuals cannot last forever.
c. GastonLife or Limb Exception: Gaston says that Mann
is not as relevant as Hale or Reed. Gaston says that the
rule is [t]here is no legal limitation to the masters power
of punishment, except it shall not reach the life of his
offending slave.
i. Killing Overseer Not Automatically Murder: Gaston
says that just because the slave kills someone in bond
over him, we will not automatically presume it is murder.
ii. Severe Provocation Goes to Jury: If the overseers
provocation is more than simple battery, then the judge
cannot automatically conclude the murder it the only
appropriate charge. Instead, the jury must consider all of
the surrounding facts to determine whether the slave
killed with malicious intent.
MY NOTES
o State v. Negro Will, Slave of James S. Battle (SC of NC
1834)
Will traveled 20 MILES with buckshot in his back
Required great moral courage for counsel to give
this slave who killed his overseer a fair trial
P. 27= most important fact- Slave took off his hat in
compliance with the deceased- was pro-systemic
slavekey fact
There was a real division in NC- how stringent must
we be in order to avoid an insurrection? Worried that
northerners would take advantage of anything that
did that looked harsh or unchristian in dealing with

slaves- from here on there are multiple audiences for

anything that is said or done
P. 29 trying to narrow Mann and revive Henderson in
Reed
Think of how large the provocation must have been
for such a well-behaved, pro-systemic slave to kill a
master
*p. 32- prisoner was engaged in disobedience (prosystemic slave saying Im not going to do that/ cant
do that right now), resistance would be something
more- there is a substantial difference (this almost
gets us back to the pro-systemic, anti-systemic
distinction
This brings up the Tacketization of Provocation: have
to have all of the circumstnaces before you, what
was the slave like, what was the supervisor like, what
was the supervisors intention, what were the
circumstnaces
Mordecais argument for the prisoner comes super
close to saying that Will is Hendersons life or limb
exception
Some things that are indictable are not provocations
and some things that are provocations are not
indictable
One of the tricky things (p. 44) about these cases is
that if its a true correction case they say death
unhappily ensued and then theres no liability for
murder- legislature made that deicison long ago
How would Piver be decided in 1833 after this case
(the case in which the guy pushed the stranger kid
who yelled at him almost to the point of falling, and
the kid shot him in the back, killing him)

State v Hoover
State v Hoover (RUFFIN
1839), p59
Master beat a slave who
was pregnant over a period
of four months to such an
extent that she died. Jury
instruction was only for
manslaughter and the Court
disagreed.

RULE If the beating

has the character of
cruelty and the slave
dies as a result, then the
master may be held to
murder.
- Finds that the masters
authority is not unlimited
and he must not kill.
Killing of a slave may
amount to murder
independent of the Act of
1791.
- Seemed from the
factual description
-

Trial judge: DICK

- Need to preserve
the slaveocracy
Masters such as this
one give the entire
system a bad name.
- hung and not
pardoned by the
Governor (unlike
Walker).
- Nasty remarks
about the .
- Highly detailed
factual description,

that the slave was prosystemic though the

tried to impute a number
of crimes to her.
- Disagrees with DICKs
instructions because
they favored the prisoner
more than the
circumstances
authorized.
- Court inferred intent
from the s continual
and unrelenting
beatings.
I

V.

as well as of the
beatings themselves
in RUFFINs opinion.
- This case was
opportunistic
Other slave owners
wanted this case
tried so system
could defend itself.

State v John Hoover (RUFFIN 1839) (Trial Judge: DICK), p59 Master
beat a female slave who was pregnant over a period of four months to
such an extent that she died. Jury instructions included instructions for
manslaughter that the Supreme Court disagreed with, however, because
the master was convicted of murder in the lower court, the verdict merely
remained unchanged.
i. While the court will give great leniency to the master when the beating
took place during the course of disciplining, if the beating has the
character of cruelty and the slave dies as a result, then the master
may be held to murder.
j. Court shows absolutely no sympathy for the master in this case.
k. CLASS ANALYSIS
i. Master was hung for killing his slave and was not pardoned by
the Governor.
1. Formal Violates what HENDERSON said in Reed.
Master has right to extract services and labor from the
slave, but he must not kill the master. Moreover, Will just
told us that Mann does not overrule Reed.
2. Practical John Hoover is bad for the system, and gives
everyone in the entire system a bad name. Chance to
show how humane the common law is.
ii. RUFFIN has the opportunity to re-categorize this case, and does
not even make this a fine-tuning of legal categorization.
iii. Nasty remarks about the .
iv. Probably the baby was interracial and Hoovers, and the brevity
of the record reinforces that idea.
v. Facts of the case made a mockery of the line that RUFFIN had
tried to draw in Manns Case and to modulate in Wills Case.
Even Master Cannot Torture and Kill SlaveHoover (1839) (Ruffin): Hoover killed his pregnant
slave after extracting her confession through severe beatings.
a.
Gives Slavery Bad Name: Even Ruffin declares this illegal, saying that the acts lay
beyond the pale of civilization, perhaps worried that masters like Hoover would
give slavery a bad name.
b.
Proves Mann Untenable: This case proves that the line the NC Supreme Court
drew in Mann was untenable. Even Ruffin is unwilling to allow torture and murder
of a pregnant woman to remain solely an internal matter on the plantation.

MY NOTES
o RUFFINIAN NIGHTMARE

o This is about as bad an advertisement for the system of

slavery as you can get- beat a woman slave horrendously
even though pregnant
o He had a terrible reputation in the community- important
to bare in mind that community had no sympathy for him
when he got in trouble
o Slave Mira was missing so community / coroner go to
Hoovers house and find a fresh grave, he has a bunch of
dif stories of how she died, said VD, tries to stop coroner
from exuming body, Coroner does it and finds her body
covered with bruises, lacerations, etc several of which
could have caused death- Hoover changes his story and
says he had to correct her, had to beat her to get her to do
anything is story 2, story 3 is that she tried to poison
Hoovers family when cornoer finds wounds to her head,
Hoover tries to bribe coroner to drop it while they are in the
wagon with the body on the way into twon
o In trial 13 witnesses said theyd heard Hoover say multiple
times that he was going to kill mira, whole legal proceeding
lasts less than a day
o Other slaveholders want this guy made an example of
because this is bad for slave businesso *Hoover is the only white man ever executed in NC for
murdering a black person during the antebellum period
o Trial is before Dick- one of Ruffins brothers in law- had the
worst reversal rate- reversed in about half his cases
o Key for Ruffin is that this was in no way correctional- just
cruelty
o Key message that Ruffin is sending is that normal beating
for disobedience is fine, but this guy is just a sadist
o Hes being categorical here and saying that this just isnt
correction- suggests a malicious intent
o Ruffin, Gaston, and Daniels were the judges in this case
and we get them again in the next case
State v. Jarrott (1840)
State v Jarrott (GASTON
1840), p62
Conflict between slave and
white stranger. Mutual
provocation and the slave
killed the white man with
blows from a hickory stick.
Case is remanded for new
trial because lower court
erroneously refused a
proposed jury instruction.

Finds that the jury instruction

relating to the double standard
was appropriate as it is
mandated by the existing
social structure of slavery
(double standard continues to
apply even if the deceased
debased himself by associating
with slaves.
- A white man has more leniency
when he beats a slave than a
-

Trial judge:
DICK
- Highly
detailed
factual
record
(goes
through
testimony of
each
witness).

white man. While the white man

does have a right to chastise or
whip the slave if the slave is
insolent, it infringes on the
slaveocracy he it is done
disproportionately.
- RULE If the battery
endangers the slaves life,
then this is legal provocation
to which the slave may
respond.
- It is in the province of the
jury to determine whether the
hickory switch constitutes a
deadly weapon.
- Need to preserve the line
between owners and
strangers. Whats at stake here
is the masters paternalistic
autonomy.
State v Jarrott (GASTON 1840) (Trial Judge: DICK), p62 Conflict
between a slave and a white man who was not his master. Seemed to be
mutual provocation, and the slave killed the white man with blows from a
hickory stick.
a. The prisoners first proposed jury instruction, that slaves and white
men should have the same criteria for determining whether a homicide
constitutes murder, was properly refused. There is clearly a double
standard that is mandated by the social structure of slavery, and that
while words may not be sufficient provocation for a killing between
equals, the rule is modified in the context of slave-white man. While
this white man may be similar to a slave because he debased himself
by associating with the slave, the firm hierarchy still applies in the
course of the law.
b. The fourth instruction proposed by the prisoner was erroneously
refused. While it is true that a battery of a slave by a white stranger
may constitute a public offense, while ordinarily if committed by the
master is justified, there is still a double standard to be applied, and
the white man has more leniency when he beats a slave than if he
beats a white man.
i. If the slave was insolent, then the prisoner had a right to whip
him or chastise him.
ii. However, must also look to the amount of time that elapsed
between the insolence and the whipping (idea of provocation).
iii. Unless a sufficiently short period of time had elapsed, then the
deceased was not justified because there are many
mechanisms in the law to correct for the slaves insolence.
iv. Such a point should have been made in the jury instruction, and
the lower courts failure to do this constitutes a reversible error.
c. Trial judge erroneously refused the third proposed jury instruction on
manslaughter. While typically the reaction required of the slave by law
if he is attacked is not to fight back but to flee, the law cannot
extinguish the instinct of self-defense from the slave. Thus, the rule
emerges that if the battery endangers the slaves life, then this
is legal provocation to which the slave may respond.

i. However, also note that if the act of manslaughter evinces

cruelty etc, it may be considered murder.
d. Province of jury to determine whether the hickory switch in this case is
a deadly weapon.
e. CLASS ANALYSIS
i. Slave system has been tampered with since Pivers Case
Distorts the social dynamic.
ii. Nightmare problem Three blacks and underemployed whites.
Gambling, drinking, and sooner or later the whites are going to
be losing their money and will begin to beat the blacks.
iii. Jarrott ends up killing one of the whites with a hickory switch.
1. Victim is scrawny white guy with a knife and a rail.
Jarrott is much bigger.
iv. Jury charge that was asked for by the prisoner, p64 Compare
to the actual jury instructions that DICK gave.
1. Prisoners proposed jury instructions are ridiculous. Wellestablished that blacks and whites are different.
2. DICKs legal hook This is justifiable moderate
correction. Problem is that this is a slave-stranger
relation.
a. Wills Case has to apply here because of the
habits of our community. More important as time
wears on for the races to be aligned and for class
distinctions to not get out of control.
b. GASTON Ordered new trial (venire de novo) on
ground that one of the instructions that prisoners
counsel asked for should have been given.
i. Why does GASTON do this? Want to
preserve line between owners and
strangers.
ii. Whats at stake here is the masters
paternalistic autonomy. Interfering with
that is worse than aligning of the races
because that simply emboldens the
Chathams of the world.
iii. Have masters pay more attention to their
slaves, and the opinion leaves a mystery
as to what invoked in law and invoked in
fact?
3. NC records would lead to a pathbreaking book
Reconstruct social dynamic from the ground up.

Battery as Provocation and Importance of Circumstances

Jarrott (1840) (Gaston): Whites and blacks end up drunk
on a fishing trip, and the whites begin beating the blacks.
Chatham (deceased) approached Jarrott (defendant) with a
rail and a knife. The defendant was much bigger than the
deceased. Jarrott killed the deceased, and the question is the
degree of murder.
a. GastonOrders New Trial

i. Should Have Requested Discipline from Master:

Gaston says that the white stranger should have asked
Jarrotts master to administer the discipline, or waited
until sunup and then ask the master to administer
discipline.
ii. Paternalistic Autonomy: Gaston is seeking to
preserve the masters paternalistic autonomy. The
master class should retain control over slaves, to the
exclusion of white strangers.
iii.
Remands for Manslaughter Instruction: Gaston
remands the case to the trial judge so that the jury can
receive the proper instructions on manslaughter.
b.Ignores Previously Relevant Racial Difference: The
NC Supreme Court ignores racial differences that had
previously been considered relevant when determining the
severity of provocation. Compare Tackett (admitting
evidence of general turbulence).
MY NOTES
o Slave off the grounds at night with free slaves and white
trash, ends up killing teenage white kid
o Theyre gambling and Jarrott says that white kid stole his
money and wont leave Chatham (deceased) alone
o Jarrott struck him with a baseball bat more than once- this
detail is important because judges say it means he cant
claim self defense- in this case there are provocations and
death threats on both sides, so what degree of liability is
Jarrott going to suffer
o Jarrott convicted of murder and the appeal goes up
o Gaston writes the opinion- says questions of provocation
cannot be colorblind in NC
o Neither of the white boy had the legal right to correct a
slaves behavior, so case has to go for retrial
o Slave who gets really angry is either 1. Tackett turbulent/
anti-systemic or 2. Will- has suffered an extreme
provocation
o Gaston is trying to set it up that if its ordinary battery from
black to white, doesnt get to jury on provocation question,
if its extraordinary battery the question of provocation
does get to the jury box- but differs with judge dick on this
State v. Cesar (Caeser) (Pearson 1849) (Trial Judge: Dick)
State v Caeser
(PEARSON 1849),
p68
Altercation between
slaves and two white
strangers. White

PEARSON Distinguishes past

cases on the basis that 1) Will
dealt with an overseer and 2)
Jarrott involved deadly assault
and battery.
- Notes the double

Trial judge: DICK

Background: Cusp of the
Great Compromise of
1850 and the California
goldrush.
Judges are also writing

strangers beating up
on one of the slaves
for no reason and
one of the other
slaves delivers a
mortal blow to one of
the strangers. Held,
conviction of murder
reversed.

standard that is again

applicable here. Slaves
should be able to withstand a
lot more because of their
subordinate position.
Must recognize that the
law does not authorize a
stranger to inflict blows
upon a slave.
In that instance, the slave
has the right to self defense
if done within a short and
immediate timeframe.
Extends this principle to a
friend of the victim.
Emphasizes not only the
physical provocation but also
the feeling of being
provoked. Goes to the
feelings of subordination of
the slaves and not wanting to
be mistreated by white
strangers.

more consciously for the

outside world.
-

NASH (concurring) Notes

that determination of
whether this is an ordinary
battery is highly
dependent upon the
attending circumstances.
Jarrott; Will.
RUFFIN (dissenting)
- Tries to first pinpoint the
wrong on the slaves.
- Emphasizes the
importance of considering
the existing social
circumstances and points
out how often the judges
have referred to those in
order to establish the
existing double standard.
Hale; Tackett.
- Pro-Union Concerned
with the integrity and
preservation of the Union.
- Expounds the importance
of having rules. Uses this
explanation for why Court
today should adhere to
past precedents, thus
finding the guilty of
murder. Hale; Tackett; Jarrott.
- Sticks most closely to

Highly detailed
factual record (goes
through testimony of
each witness).
Opens up by
appeasing slaves
Convincing proof of the
due subordination and
good conduct of our
slave population, and to
suggest that, if any
departure from the
known and ordinary
rules of the law of
homicide is to be made,
it is called for to a very
limited extent.
The here is
prosystemic.
Despite the rhetorical
niceties of PEARSON and
NASHs opinions, the
outcome will probably
be the same as RUFFINs
because in the end it is
determined by a jury
and the jury is likely to
be comprised of
slaveowners.
NOTE that Caeser is
the only American case
that cites the friend
exception.
RUFFINs dissent is
nakedly racist.

Jarrott arguing that it is

within the lower courts
discretion to determine
whether an act constitutes
ordinary assault and battery.
If it does, then the could
not have retaliated legally.
Moreover, points out that
Jarrott was a unanimous
opinion, and thus its
precedential value should not
be taken lightly.
Points out that slaves
should submit when being
assaulted.
Common law dictates that
slaves 1) provide
productive labor and 2)
are subordinate to the
white race.
Cites to the long history of
whites abusing African
Americans and how no
killings of the whites have
arisen. Thus, if the battery
on the African American
was not life threatening,
but yet his response was
fatal, then the reason
must be that he has a bad
heart, and not from
uncontrollable
resentment.
States that Hale only
stands for the proposition
that a battery on a slave is
indictable and nothing
more.
Distinguishes Wills Case
on the basis that those were
real provocations.
was a mere onlooker.

- Big problem for RUFFIN is

that in Jarrott GASTON defers
the intermediate injuries to
the triers of fact, and not to
the judge.

State v Caeser (PEARSON 1849) (Trial Judge: DICK), p68 Altercation

between slaves and white strangers. White strangers beating up on one of
the slaves (for no reason), and one of the other slaves delivers a mortal
blow to one of the strangers. Lower court found slave guilty of murder.
f. Lower courts jury instructions Instructed that this was a crime
of murder, that it involved a deadly weapon, and that the facts did
not amount to legal provocation because the attacks by the whites
on the slaves were nothing more than instances of ordinary assault
and battery.
g. PEARSON
i. None of the precedents have dealt with the issue of whether
the rules of law, by which manslaughter is distinguished
from murder, as between white men, are applicable,
when the party killing is a slave.
1. Will is not applicable because the person killed was an
overseer.
2. Jarrott is not applicable because involved deadly assault
and battery.
ii. Appeases slaves by lauding their good conduct, and states
that any legal distinction made between the standards
applied to whites and slaves would be to a very limited
extent.
iii. Equate deceased and Brickhouse Common purpose.
iv. Consider outcome of situation involved two freemen
Manslaughter because it involves passion, and provocation.
v. Notes the double standard that is applicable to whites and
slaves Slaves should be able to withstand a lot more because
of their subordinate position.
vi. Analogizes to situations involving master-apprentice, etc.
However, this case is distinguishable because it involves a
stranger and the law does not allow a white man to
inflict blows upon a slave, who is not his property. Thus,
a stranger is not afforded the same discretion in discipline that
a master is.
1. General rule Indictable offense = legal provocation.
2. Will shows us that exceptions to the general rule exist
to accommodate feelings of nature.
vii. Rule [I]f a white man wantonly inflicts upon a slave, over
whom he has no authority, a severe blow, or repeated blows
under unusual circumstances, and the slave at the instant
strikes and kills, without evincing, by the means used, great
wickedness or cruelty, he is only guilty of manslaughter, giving
due weight to motives of policy and the necessity for
subordination. P74.
1. Moreover, this rule is extended to the slaves friend,
who can also exert such force when such blows are
inflicted upon his friend. Principle relies on the fact that
such a reaction is prompted by passion and
excitement.
viii. Notes that a finding of manslaughter is not the same as being
acquitted. Second offense results in forfeiture of life.
h. NASH/CONCURRENCE
i. Argues that this was not an ordinary assault and battery.
Must look to context.

i.

j.

1. Trial judge misled the jury by giving an instruction that

would lead them to believe that there is no assault on
a slave unless a deadly weapon is used.
2. Ought to have instructed the jury that: an assault
made by a white man upon a slave, which endangers his
life or threatens great bodily harm, will amount to a legal
provocation. P77. State v Jarrott; State v Will.
ii. NOTE that at the time of the fatal blow, the slave was not in
any immediate danger, instead his friend was being beaten
up.
1. No evidence of malice, should the law imply malice?
2. Under common law, would be mitigated to
manslaughter. Must see if there is an affirmative
legislative act which distinguishes the application
of this principle among freemen to among slaves.
3. To alter the application of the common law by context
would be a legislative act. Not within the purview of
judicial authority.
4. While societal conditions may require a different law to
be applied to slaves, it is not within the authority of
courts to make such a change.
5. Note that judges have always had difficulty with this
issue of balancing their role with the societal conditions
that they are faced with. Difficult to draw the line in
common law, and balance the need to judge the case
within its circumstances and with due regard to
the habits and feelings of society.
RUFFIN/DISSENT
i. Argues that he is simply applying the rule from Jarrotts Case
that the law will not permit the slave to resistthat is, in a
case of ordinary assault and battery on himbut that it is his
duty to submit, or flee, or seek the protection of his master: as
in almost every instance he would do. P85.
ii. Focuses on the disparity between the condition of the
slave and the freeman, and how the slaves passions ought
to be and are tamed down to his lowly condition. P86.
iii. Notes that the slaves were acting unlawfully by being out
without their masters permission to begin with.
iv. Points to precedent which emphasizes the importance of
considering the existing social circumstances in
determining these cases. Hales Case and Tacketts Case.
CLASS ANALYSIS
i. NASH and PEARSON Mainly rhetorical niceties, probably
would result in the same outcomes as RUFFINs dissent. Jury
would most likely be comprised of white slaveholders who
would be unsympathetic to Caeser.
1. Look fair minded and judicious to the North and
abolitionists (good name for slavery), while allowing the
triers of fact make the ultimate decision.
ii. Evinces the vacillation of the slave regimemostly rhetorically.
iii. Seems like dj vu of Jarrottwhy does the Court split?
RUFFINs dissent is nakedly racist.
iv. NOTE up to this point how little race has played an overt role in
the judicial rhetoric, and judges keep hypothesizing different
racial situations.

v.

vi.
vii.
viii.

ix.
x.

xi.
xii.

1. These judges, from the first time that they encounter

slavery issues, were trying to find common law
analogues to give them political cover, and to show how
they were part of a larger tradition and framework.
2. BUT this is a doomed attempt.
Rhetoric whose racial characteristics seem to be inverted or
backwards. Trying to use whiteness, which they equate with
common law, to give them some analytical purchase on these
black/white issues.
Same trial judge (DICK).
Changes from Jarrott:
1. Court has changed.
2. A decade has intervened.
Political Background
1. Comes on the cusp of Great Compromise of 1850.
2. CA goldrush. 90,000 people crossed the continent.
3. CA turns from territory into state-owned overnight, and
upsets delicate balance of Great Compromise.
4. 12/1849 Emerging and established parties are split
very badly over issue of slavery.
5. 1846 Wilmot proviso to appropriations bill for the
purchase of Mexican territories that General Taylor had
pursued (no slavery in the new territories). Passed in
House, did not make it through Senate. Ringing bell as to
what political debate would be.
6. Let CA in as a free state. In return for admitting CA as a
free state, proposed organization of UT and NM
territories and tightened enforcement of Fugitive Slave
laws.
a. Federal Commissioners instead of state courts.
b. Congress conceded it had no power over
interstate slave trade because control over
slavery was a reserved power of the state
governments under the Constitution.
7. Judges are writing now, more so consciously to the
outside world.
8. 1850 Census in NC shows that the white population has
reached 550,000 and slave population 290,000, and free
black, 27,000. Significance is that in a period in 20
years, the percentages have changed dramatically. 1830
Percentages are approximately 75%, 25%, 2%.
What Mizell and Brickhouse really wanted that night was sex.
Judges look upon these two white men as being the lowest of
the low.
NASH The very nature of the engagement is such and so
unusual that the case can go to the jury on manslaughter. This
is an extraordinary position, even in light of GASTONs opinion
in Jarrott.
NOTE that Dick continuously begs to be let go.
Flashpoints
1. 2 on 1. As soon as its two against one, Dicks reaction
was that he couldnt stand it any more. If you buy into all
of the rhetoric about submission, then the slaves are
used to being treated like this. BUT 2 on 1 is too much.

xiii.

xiv.
xv.

xvi.

xvii.

2. he (the prisoner) and Dick laughed. Perhaps this

was a low level of harassment by two drunk layabouts.
RHS p70. Everything is routine, and it is until the white
guys walk off and the slaves laugh at them. This must
have been what set off the whites to a much more
severe altercation. The slaves laughing at the whites in
1850 (abolitionists, some concern that the NC
slaveocracy has been living on borrowed time for some
time).
If you could abstract out the issue of race, then ask if this is a
proper application of Jarrott.
1. GASTON in Jarrott Must look to circumstances, let jury
get to the case. BUT sometimes the cases are so
ordinary that they need not get into the jury box. What
RUFFIN seizes upon. PEARSON and NASH say that
although GASTON may have been getting there, he did
not get that far. Jarrott
a. Primary rule Cant generalize. Depends on all
of the facts and circumstances.
b. Secondary rule The more and more of these
cases we see, some of the cases cannot get to
the jury. Some things just cannot lead to
response.
2. NASH is willing to concede RUFFINs point, but says that
the actual circumstances here means that it cannot be
an ordinary instance of assault and battery.
3. This is the first time that the judges argue about the
cases, and the rules that such cases promulgate. If they
deviate from the established rules, they will be usurping
the role of the legislature.
4. Before this, the judges had been starting pretty much
from scrap every time.
Caeser is the only American case that cites the friend
exception.
How grave was the threat to Dick that triggered the deadly blow
from Caeser?
1. Dick was being beaten up by fists, not by weapons.
2. Caeser does not join the fight to make it 2 on 2, but
instead uses a weapon.
Commentator (COBB) Third party provocation was wrong as a
matter of common law and was bad for the system.
1. Both PEARSON and NASH defend their decision to order
a new trial.
2. PEARSON Most salient point he makes is that its not
just a physical risk thats important for physical
provocation but also the feeling provoked.
a. Unusual insight for this period.
b. As bad as GASTON worrying about whether slaves
will feel they are being treated justly on the
plantation.
c. Must have drive RUFFIN crazy.
RUFFINs dissent Case in which RUFFIN not only sets
himself against his colleagues, but also feels himself obliged to
engage in a number of different analyses and rhetoric that

made his colleagues nervous. Most racist opinion in

Antebellum opinionracial nature of altercation must affect
what the law must be (policy) and what it should be (legal
matter). Dictates result, and nature of system dictates result.
Moreover, this result as both a formal and functional matter is
fully consistent with the law as it has developed.
1. Immediately goes to facts and establishes that this is
not legal provocation.
2. Subsequently never ceases to emphasize that this is an
altercation between white and Negro slaves This
is important to RUFFIN because slaves are fundamentally
different and are brought up to recognize that. Essential
that the common law recognize that and take that
into account as it assesses what un/reasonable
responses are to assault and battery.
a. Also needs to establish white superiority If
slaves are allowed to become arbiters of the
appropriate response to their treatment by
whites, they will take it a step too far
immediately. To agree with the majority in this
case is to invite slave rebellion.
b. Assertion up-front that if this were a same race
affray, then the result would be manslaughter
only because they are functionally equal. BUT if
its black-on-white, then it is murder.
c. Both NASH and PEARSON stay away from this
argument. Instead, start with comparison that
this looks a lot like monoracial affray. RUFFIN is
responding to this analogy and its
inappropriateness. Essential here for blacks to
suck it up.
3. Then turns immediately to case law Shows
importance of making his dissent consistent.
a. Hale and Tackett Both establish that the
common law rule must be adapted to and
reflective of the social circumstances of the
community of which it deals, if it is to have any
integrity, legitimacy, or authority.
b. Jarrott is RUFFINs big case Provides RUFFIN
with his answer because in terms of common law
of provocation, the rule is that if it is an assault
and battery that the slave may reasonably think
puts his life in jeopardy, then he can respond in a
homicidal way, and it may be manslaughter
depending on all of the facts. BUT if it is simply
an ordinary assault and battery, then this does
not constitute legal provocation, and murder is
the only possible charge.
4. At this time, judges decided whether something is an
ordinary assault and battery case.
a. BUT what the white stranger did in Jarrott was
unlawful and the law does not allow for stranger
correction in such circumstances.

i. GASTON in Jarrott 1. Ordinary battery. 2.

Excessive battery.
ii. If it is other than ordinary battery, of the
kind that can reasonably be seen by slave
to place his life in danger and is unlawful,
then issue may reach the jury.
iii. BUT between these two types of battery is
intermediate injuries that lie between
the two obvious extremes. RUFFINs
problem is that GASTON states that these
types of injuries should be left to the
intelligence and conscience of the triers.
iv. Analyzing Caesers Case objectively with
the premises that RUFFIN lays down (Hale,
Tackett, and Jarrott) Answer is not at all
clear. Hard to tell from the record whether
this is ordinary battery or excessive
battery. THUS does this go in favor of
RUFFIN or not? Shouldnt the jury be
making this decision and given both
instructions?
b. Always ask What is most beneficial from a
systemic standpoint? Clear that RUFFIN does not
consider Caeser is a pro-systemic slave, and that
hed clearly prefer the problems presented by the
hoodlums of Brickhouse and Dick in order to
preserve the slaveocracy. Prior to this case, there
are only a couple of instances where slaves have
the temerity to kill whites.
xviii. Then, what were PEARSON and NASH trying to do in reaching
the opposite result?
1. Could argue that nothing will stimulate a slave rebellion
faster than gratuitous beatings by those whites who
have no authority over them.
2. On p88 RUFFIN is concerned about the integrity and
preservation of the Union. Until 1861, he is a Unionist
because he thinks that if push comes to shove, the
South is vulnerable and that its ongoing economic
strength rests in the Union, and existing under the
Constitution that protects slavery as an institution (why
the South should not secede). Accepting as a given what
Congress takes 10 years to debate.
3. RUFFIN Considered for seat on Supreme Court by
Millard Fillmore in 1852. BUT it was an election year, and
therefore did not give RUFFIN a nomination.
xix. RUFFIN argues that case law has developed along an unbroken
trajectory.
1. H: Caeser arose in 1823. More racialized along the lines
that RUFFIN suggests.
2. H: Hoover arose in 1823. Lack of respect for people like
Hoover as early as 1823. Persists throughout the entire
period.
3. H: Tackett in 1850. Looks a lot different, and looks
himself to be in the wrong, had a grudge against Daniel,
and used a gun.

4. H: Piver in 1850. At least manslaughter because thats

the kind of incitement that RUFFIN is concerned about. If
white strangers can go around shooting slaves for only a
push or a shove, then chaos will ensue. Shootings are
not tolerated.
5. H: Mann in 1850. Discipline ok as long as it does not
result in death. Much closer case in 1850.
6. Shows what a moving target all of this stuff is.
Emphasizes that no matter how hard the judges try to
delineate clear categories and alternatives, there is
always the wiggle room in the middle that all opinions
try to leave to protect autonomy on the ground and local
control of the institution. In the end, thats what this
elaborate set of slave law is doing more often than not.

3. Equalizing Murder Law for Attacked BlacksCaeser

(1849): Brickhouse and Mizell, two white men, get drunk and
come across two slaves. The white men claim to be patrollers
and begin to hit them lightly with boards. Charles, a slave,
shows up, and Brickhouse grabs Charles and requests a whip
from Dick. Dick refuses, so Brickhouse starts beating Dick
while Mizell holds him. Caeser grabs a board and hits both
white men, killing one.
a. NashGo to Jury: Judge Nash says that the
circumstances of the engagement, even before a fist is
thrown, are so unusual, that the issue of manslaughter
should go to the jury
b.PearsonAs if White Trope: Pearson begins with the
counterfactual where all parties are white. The
counterfactual ignores the essential factor that the parties
are different cases, which the NC Supreme Court
repeatedly considered vital in murder cases. Pearson
ignores the fact that Brickhouse was only beating Dick with
his fists and Dick acted to prevent harm to a third party.
c. Pearson and NashPrevent Rebellion: Both Pearson
and Nash appear to warn that violence from the white
stranger will only provoke the slaves into rebellion.
d.Ruffins Dissent
i. Characterizing the Facts: Ruffin emphasizes colored
or Negro status rather than slave status.
ii. Overtly Racist and Caste Conscious: He says the
common law must consider the differences between
whites and blacks when judging reasonableness. Ruffin
says that if slaves can respond to white strangers with
violence, it will risk rebellion. Ruffin says that if it were a
white/white or black/black interaction it would be
manslaughter, however the interracial crime should be
murder.

iii.
Case Law: He reads Hale and Tackett as establishing
a rule that the common law must be adapted to the
community with which it deals. The ordinary rules of
provocation do not apply. He reads Jarrott as saying that
a slave must reasonably think there is a mortal threat to
respond with force, and the slave cannot respond to
simple batter with deadly force. The problem with this
reading is that Jarrott said the law forbids white stranger
correction, and Jarrott says the difference between
ordinary and life-threatening battery is a question for the
jury.
iv.
Degree of Provocation: The critical question is
whether the assault on Dick was serious enough to
threaten his life. Ruffin bears a heavy burden of proof to
justify withholding that issue from the jury entirely. He
must proves that a reasonable jury could only reach the
conclusion that the assault threatened Dicks life.
v. Preserves Judges Flexibility: Ruffin does not want to
make the rules too clear or trial judges will lack the
flexibility to make the system work. This partially
explains his reading of Hale and Tackett.
vi.
Preventing Secession: Ruffin said judges must
manage the system to preserve national institutions or
prevent secession. Ruffin was a unionist and thought
slavery was enshrined by the Constitution.
MY NOTES
o RUFFIN says slavery is a NATIONAL INSTITUTION
Saying this because the whole rhetoric of the 1840s
is that of the security of national institutions
o Then we have the facts and judge Dicks decision- 2 of
which are surprising:
1. He saying that the beating was ordinary battery so
the Q of provocation doesnt get to the jury
*so for the first time find that the question of
whether its ordinary or extraordinary battery is
one of law
2. Instructed to find that it is BY LAW a deadly
weapon- saying its not within your discretion to
decide wehther in these circumstnaces its a deadly
weapon whereas in the previous case Gaston said it
was the jurys decision
o Hes the most reversed judge in the NC superior ct system
and has an animous for slaves who kill whites, even if
theyre poor whites, better to have them with him than
against him

o CT Majority said that the circumstnaces determine whether

the weapon is a deadly weapon for purposes of the lawnot just the objective details consistent with TACKETT
From TACKETT onwards the judges want to localize
the fine tuning of liability- jurors are in the right
position to decide what society expects- creating a
very localized balance wheel for black-white relations
in these rare instances in which black-white death
occurs and it gets to court
o Start with Judge Pearsons opinion p. 61
First think he does is say the general question is
being presented for the 1st time so weve got a clean
slate- which is just bs- Ruffin spends some time
showing why its rubbish
Next Pearson says there are only 2 cases, aka our
hands off policy has been going really well so we
should keep our hands off
Next paragraph clinches it- the deceased acquiesced
by silence
o Nash seems to think that he has to resolve provocation
more than Pearson does
In past 200 years theres really no case in which third
party provocation reduces murder to manslaughter,
so instead he argues that you have to allow the
common law rule to apply here, otherwise it will be a
judge made rule instead of legislative response
In the end he falls back on Jarrot, the case Ruffin
relies on, suggests theres something else going on
here and they want to get out with the least amount
of embarassmnt
o Ruffin
Doesnt want to frame it as two white men attacking
slaves- wants to frame it as no one here was doing
what they were supposed to do here Ruffin is
talking about the essential need for white superiority
regardless of class
P. 66 it is very clear that the question turns on the
difference in the condition of a free white man and a
negro slave
Hes anti Tacketization- he wants the rules adhered
to- says that Jarrott controls
State v. Jowers (1850) (RUFFIN, NASH, PEARSON- same as Cesar)
Indictment of a black man for a fray and its held by Pearson
that hes liable. why? Because hes black.

State v. George
Penultimate sentence of the opinon says if such evidence were
received, crowds would always assemble when there was a
charge of the commission of a horrid crime, in order to extort a
confession- aka tried to lynch mob this guy to get a confession
out of him but thats not legit
NORTHERN COURTS

Roberts v. City of Boston

Roberts v City of Boston (SHAW
1849), p101 Denied black girl
admission into white primary school.

Equality depends on social

condition.
- SUMNER does not argue physical
inequality, but instead that segregation
creates a caste.
- SHAW concentrates the on the
procedural aspect of the case by
using a reasonableness standard
The School Board has been granted
almost plenary discretion. Their
decisions, as long as careful and
deliberate, will be upheld. Is this a
copout for SHAW?
- SHAW rebuts the political argument
This prejudice, if it exists, is not
created by law, and probably
cannot be changed by law. RHS
p106.
-

Chilling parallels
School segregation
debated at this time,
to maintain the segre
of SUMNERs argume
rendered moot by the
- While SUMNER fel
lose by bringing this
One of the most
the country upheld
- Pragmatic and fina
SUMNER to the caste
argument MARSHA
-

B. Northern Courts
I.

Roberts v City of Boston (SHAW 1849), p101 Issue of whether an

African American girl can be compelled to attend a primary school only for
African American children, when there is a white school much closer to her
home. Judge considers the question of whether such a segregated system
in the context of primary schools violates the broad principle that all are
equal before the law, but ultimately defers to the judgment of the school
committee. States that the stigma argument is one that they should
consider.
a. CLASS ANALYSIS
i. Almost simultaneous with Caeser.
ii. Communication between state courts Only formal and only
that provided by newspaper coverage or publication of official
reports.
iii. All-star cast Most famous common law judge of the day,
SHAW. Helped to adapt English law to American law (torts,
property, contracts).

1. Also famous for the paradox of his anti-slavery beliefs

but also his harsh administration of the federal fugitive
slave laws.
2. Prompted a legal scholar from 20 years ago if he was the
model for Captain Veers in Billy Budd. Herman Melvilles
father in law was SHAW.
iv. Case is extremely famous for its result and its many chilling
parallels with Brown v Board of Education which was decided a
century later.
1. Exclusion of a black child from a public school solely on
the basis of her race.
2. Opinion of Court rejects the same arguments that are
successful 100 years later.
3. JACKSON, while Brown was pending, was sent a Law
Review article that summed up SUMNERs arguments in
Roberts Same arguments.
4. All politically contested and all fought over legal
language capable of multiple meanings and born out of
political context, and whose meaning will continue to
change in a highly-charged political atmosphere.
5. 4 years before Roberts was filed, there was a report by
the Boston school committee that looked into the quality
of the African American-only schools.
a. Fiscal qualities and teacher qualities Declined.
b. Issue was being debated within the context of the
abolitionist fervor that had become so heated in
Boston during the 18351840s.
c. Report (1846) Majority of reporting group
recommended maintenance of racially
segregated schools. Noted that there were
inherent differences between the races in terms
of physicality, intelligence, etc.
i. Minority report Written by Wendell
PHILLIPS. Racially segregated schools,
once established, lead to neglect, abuse,
decline of level of scholarship, and
teachers and scholars are considered and
become an inferior class.
d. Petition filed, signed by 201 black parents, to
Boston grammar school board seeking abolition
of segregated schools. School committee rejected
petition and Roberts ensued.
e. This means that the arguments presented by
SUMNER had already been mooted by the Boston
School Committee.
6. Supreme Judicial Court of MA Faced with making failed
political arguments into successful legal arguments.
a. Hard to do, and unlikely to happen. Especially
when presented to a distinguished judge who had
established a reputation as SHAW had.
b. Then what did SUMNER think he would achieve
by litigating Roberts?
i. Keep the cause up.
ii. Third bite at the apple.
iii. Racist vs segregated policies.

c. Facts emerged in the 1846 that showed that the

African American schools were clearly inferior and
dilapidating.
7. How does SUMNER try to overcome this?
a. MA Constitutions Equality of Rights provision
deprived of equality of rights.
b. MA Constitution also puts enormous discretion as
to the statutory provisions to the School
Committee Set up dozens of school districts
that depend on a number of factors, not just
geography. Thus, must argue that this is abuse
of discretion.
i. SHAW What about females?
ii. SUMNER Age and sex classifications are
recognized by the law and are reasonable.
iii. SHAW BUT the law also distinguishes
between races.
iv. Then what makes distinctions based on
sex and age reasonable but not race?
Proxy in terms of gender is ok, but the
racial proxy is invalid because it is
inaccurate.
v. SHAW Distinctions that were results of
due deliberation. Distinctions must be
reasonable, and what is reasonable is
determined by procedure (careful
deliberation by the School Committee).
This is the rule of MA for exercise of the
police power.
1. As soon as we start talking about
equality as a legal matter, we have
a problem. Equal compared to
what?
2. What is the baseline to which the
measurement is made?
3. These distinctions do not lend
themselves to formal legal
analysis.
4. Interpreted standard of MA
Constitution and the relevant
statutes that allow to sue in court
to be a reasonableness standard
Stay away from substance
and say that simply must be a
legitimate process. THUS, equal
protection becomes a question
of procedural due process.
c. Having disposed of the legal grounds, he
addresses the political merits of the case.
i. Caste system is not made by law and
probably cannot be changed by law. p106.
Most quoted part of this opinion.

ii. Common law Once the judge decides

something, it takes on a life of its own.
Although legislature abolished racially
segregated public schools by statute in
1855 (5 years and 2 mos later). THUS
although the object of this litigation was
subsequently achieved, the language
takes on a life of its own.
iii. Quoted in Plessy (1896).
iv. When race enters the court room, you
can trust that judgment will flee.
PHILLIPS. Judges are not eager to address
race in a way that will change the status
quo.
v. SUMNER, PHILLIPS, and GARRISON
Given politics of the day, they had
nothing to lose. Allowed a very good judge
to make a very predictable opinion that
gave legitimacy to segregated system to
have a life beyond what it otherwise would
have had. Successors to these used Equal
Protection Clause of 14th to make the
same arguments.
vi. Shape discourse that everyone uses.
vii. Politically charged notions such as caste
are extremely subjective and have
strongest appeal to those who have equal
rights.
viii. Repudiation now has to come from highest
source possible now that segregated
system has been given legitimacy by a
prestigious judge such as SHAW.
d. Imposition on Roberts Has to walk mile
further. Only inconvenience that SUMNER was
willing to document for the record.
i. When it comes to questions of racial
segregation and their social costs and how
theyre to be measured by legal means,
those who attack racial segregation face a
dilemma What they hate is the
symbolism in the implicit caste. Other
hand is that the immediate cost to people
like Sarah Roberts is to go to a second rate
school. If you focus your litigation on
physical equality, then you will be
litigating physical equality and will be
constantly deploying your resources to
measure physical equality.
ii. Poses problem Easier to argue that
segregation causes caste, but very
subjective and thus presents hard
struggle.

VI.

IV. Northern Courts

A.

IntegrationRoberts v City of Boston (1849)

1.Facts: A black child was excluded from a public school, and

the case goes to the Massachusetts Supreme Court.
2.Political Background: The Boston school committee had
rejected integration a few years before. The majority
supported the continuation of segregation; the minority
argued that segregation bred neglect, underfunding, and
borderline abuse.
3.Litigation Goal of Actual Equality: The black schools had
poor facilities, few resources, and bad teachers. Sumner
really wanted to force the court to equalize services, since he
did not reasonably expect them to order integration.
4.Shaws Opinion
a. MA ConstitutionDue Deliberation: The Massachusetts
Constitution guarantees equal rights. Shaw also notes,
however, that the constitution places enormous discretion
in the hands of the school committee. Shaw says that
racial classifications are accurate proxies and distinctions
based on race are sustainable if the product of due
deliberation. Reasonable distinctions will be upheld as
valid.
b.Limited Judicial Role: Shaw says the problem of equal
rights does not lend itself to a judicial decision/standard. If
there is an adequate attention to deliberative processes,
then that is the best the courts can do.
c. Caste as Nonlegal: Shaw says the case-like social
divisions were not created by law and cannot be remedied
by law. The prejudice, if it exists, is not created by law,
and probably cannot be changed by law.
d.Legitimizes Segregation: A very famous judge placed
his imprimatur on segregation. The Supreme Court would
rely on similar reasoning in Plessy and courts throughout
the South would routinely refer to this opinion as authority.
MY NOTES
o Question is whether the treatment of Sarah Roberts is
equal under the law- only a quarter mile from her house so
not really about convenience, its about the caste system/
racial inequality
o What are the analytical moves that Shaw makes that are
disastrous?
Most quoted passage is on p. 83/4, he observes that
the **maintenance of separate schools seems to
further the caste but this prejudice is not created

by law and cant be fixed by law- committee gets to

decide on it
Saying caste is a social costrruct and that
integrating schools isnt going to change
anybdys mind about caste, may make it worse
Second big piece of this opinion is what is
equality?
o 1. Likes are treated alike and
o 2?
Dred Scott v. Sandford (TANEY 1857)
Dred Scott v Sandford
(TANEY 1857), p116
Held slave citizen and
thus did not have
standing to sue his
master for freedom in
federal court.

TANEYs opinion
depends on the original
understanding of the
framers when they ratified
the Constitution Clear
that they did not intend
for African Americans to
be citizens.
- Argues that any other
outcome would threaten
the legitimacy of the Court
Any other rule of
construction would
abrogate the judicial
character of this court,
and make it the mere
reflex of the popular
opinion or passion of the
day.
-

TANEY held the Missouri

Compromise
unconstitutional because
Congress could not
interfere with an
individuals property rights
(right to hold slaves). First
time since Marbury that the
Court declared an act of
Congress unconstitutional.
- TANEYs rhetoric is raw
and frank.
- BUCHANAN was eager
for the slavery question to
be resolved and thus
requested that the Court
render a broad opinion.
- Justices were bound to
reach a political result in
this case Racial rhetoric
decided the case. As the
Court tried to make
political peace through this
decision, they ended up
accelerating the political
rupture.
-

CURTIS (dissenting)
Counters TANEY with his
own historical analysis.
However, qualifies his
dissent. Although African
Americans may be citizens,
not all citizens have equal
rights, etc. States have
power to decide what
rights go with what kind of
citizenship.
II. Dred Scott v Sandford (TANEY 1857), p116 Held Dred Scott did not
have standing to sue his master in court as a citizen of Missouri, being a
descendant of slaves, and thus could not sue for his freedom.
a. Citizens are those who define the body politic, and who exercise
sovereign power of the state. TANEY relies on a very originalist
understanding of the word citizen, and relies on how the Framers
defined the term at the time of the adoption of the Constitution.
i. Notes that at that time, slaves, and African Americans in
general, were considered a subordinate race, and thus not
considered to be within the purview of the definition.

ii. Also takes a very nonactivist approach in asserting that

the role of the judiciary is to interpret the law and not to
decide on the justice of the laws.
iii. Distinguish between a state citizen and a national citizen
Finds that most of the rights conferred by citizenship are by
virtue of state citizenship, and that at the time of ratification,
the Union was really a grouping of the states.
iv. The question then is whether the provisions of the
Constitution, in relation to the personal rights and
privileges to which the citizen of a State should be
entitled, embraced the Negro African race, at that time
in this country, or who might afterwards be imported,
who had then or should afterwards be made free in any
State; and to put it in the power of a single State to
make him a citizen of the United States, and endue him
with the full rights of citizenship in every other State
without their consent The answer must be no, because it
is clear from the history of the Constitution that African
Americans were not meant to be considered under the purview
of the document. Not only is this attitude pervasive in American
history, but it is also pervasive throughout European history.
1. NOTE that TANEY tries to make a appeal here to public
opinion by saying that this attitude, while true, is hard
to believe.
2. Goes through the history of this opinion, not only in
America, but also in England.
b. Also looks to the language of the Declaration of Independence
While the broad words seem to include all members of the human race,
TANEY argues that this cannot be the case because in the context of
the way that the Framers lived (as slaveowners), it is
impossible to reconcile this lifestyle with the idea that these
words were meant to be interpreted to include slaves and their
descendants.
i. This is true because at that time, slaves were not considered as
humans, but instead were only referred to as property. [NOTE:
Ask whether, in the course of the NC Supreme Court opinions
this seems true? In class we discussed how there was a
dichotomy as to how the Justices spoke of and referred to
slaves. It seemed that while they were referred to as property,
at times their human characteristics were also recognized. Also,
a lot of those cases refer to the abuse that slaves endured, and
being able to bring those claims to court alone shows that they
were not mere property.]
ii. Also look to the structure of the Constitution TANEY points to
two different clauses which refer to slavery (right to import
slaves until 1808, and the Fugitive Slave Act). [BUT as a real
originalist, seems that TANEY fails to recognize that these
constitutional examples that he points to were not the product
of a common intent, but instead the product of controversial
compromises that seemed to fracture the Convention.]
c. TANEY then turns to public opinion, and states that No one, we
presume, supposes that any change in public opinion or feeling in
relation to this unfortunate race, in the civilized nations of Europe or in
this country, should induce the court to give to the words of the

Constitution a more liberal construction in their favor than they were

intended to bear when the instrument was framed and adopted.
i. Instead, he points those frustrated with the opinion to the
process of amendment.
ii. Then takes a very righteous air and notes that [a]ny other
rule of construction would abrogate the judicial
character of this court, and make it the mere reflex of
the popular opinion or passion of the day.
d. DISSENT/CURTIS
i. Argues that at the time of adoption of the Constitution, the
states were the primary structure of the overall government,
and thus played the dominant role in determining matters of
citizenship. Thus, to determine whether any free persons,
descended from Africans held in slavery, were citizens of
the United States under the Confederation, and
consequently at the time of the adoption of the
Constitution of the United States, it is only necessary to
know whether any persons were citizens of the States
under the Confederation, at the time of the adoption of
the Constitution.
1. Notes that in many states at this time, all of those born
free into a state were considered its citizens, regardless
of race.
2. At the time of the original state constitutions, no
distinctions based on race were present. Instead,
restricting the franchise to white males, etc, did not
occur until later.
3. NOTE however, that in some states African Americans
were allowed to vote.
ii. Moreover, TANEYs historical analysis is inaccurate and
superfluous. States that the Framers did believe in this universal
truth that all men are created equal, and that their behavior
and opinions were simply constrained by the times.
iii. Looks to the Articles of Confederation to determine whether
citizenship is denied on the basis of race.
1. Art 4 The free inhabitants of each of these States,
paupers, vagabonds, and fugitives from justice,
excepted, shall be entitled to all the privileges and
immunities of free citizens in the several States.
2. This was the final form in which the Article was adopted,
despite proposals that the word white be added. Thus,
free African Americans were within the purview of the
definition.
iv. Did the Constitution then deprive African Americans of
citizenship? CURTIS finds nothing in the history to show that this
was the intent.
1. While this is not the case and thus every free person
born in a state who is a citizen of that state is also a
citizen of the United States.
2. However, CURTIS greatly qualifies his dissent here. He
notes that while one may be a citizen, this does not
mean that all citizens have equal rights,
privileges, and immunities. Thus, the states still
have the power to determine what rights go with

what kind of citizenship (look to the womens suffrage

case in Voting Rights).
e. CLASS ANALYSIS
i. Consider the rhetorical strategies on both sides, the concepts of
race that they employ, and how those concepts compare to the
concept of race that the slaveocracy employed.
III. War is politics by another means. Perhaps the same idea is true for
constitutional law. Nowhere more true than in the Reconstruction
Amendments (13th, 14th, 15th).
a. 13th Amendment Abolishes slavery.
i. Congress rammed through this amendment in the sense that
none of the Confederate states had been readmitted to the
Union yet.
b. 14th Amendment Ratification was a precondition to readmission to
the Union.
i. Content was hotly debated, mostly 2 and 3. 1 received
plenty of debate, but it was fairly vague. BUT it becomes the
constitutional fulcrum of the Court.
ii. All persons born or naturalized in the US, and subject to the
jurisdiction thereof, are citizens of the US and of the State
wherein they reside. Overrules Dred Scott.
iii. Not clear what privileges or immunities would be construed to
mean.
iv. Big issue Should this include an antidiscrimination principle?
1. Thaddeus Stevens unsuccessful Amendment: All
national and State laws shall be equally applicable to
every citizen, and no discrimination shall be made on
account of race or color.
2. 39th Congress was afraid that an antidiscrimination
principle would require black suffrage that was
constitutionally mandated. Afraid of a Negrophobia
backlash.
3. NYC during the draft riots of 1862 and 1863 Took black
babies out of carriages, bang their hands against fire
hydrants, and kill them.
4. Question of how long troops would have to remain in the
North. Newly organized KKK that thrived in NC and SC.
5. Part of what spurred the Civil Rights Act of 1866
a. Vetoed by Andrew Jackson, but was passed by a
supermajority.
b. What is the constitutional ground to legitimate
the sweeping ground of the Civil Rights Act?
c. 14th Amendment intended to provide a firm
constitutional base for the Civil Rights Act of
1866.
d. Slaughter House Cases What does privileges
or immunities of federal citizenship mean? Now
this case is taught as a weak escape by Justices
of their duty to uphold these rights.

B.

Slavery in the TerritoriesDred Scott (1857)

1.Issue: Under the Kansas-Nebraska Act (Missourri
Compromise), Congress attempted to regulate slavery in the
territories. The Court held that regulating slavery in the

territories exceeded Congresss enumerated powers and

represented a taking.
2.Lack Standing: The Court technically decides the case on
the grounds that blacks lack standing because at the time of
the framing they were considered an inferior race that should
not have citizenship under the federal constitution.
3. Beyond Enumerated Powers: The Court also notes that
the Constitution explicitly contemplates the continued
legality of slavery when it bans importation after 1808 and
places a duty upon free states to deliver escaped slaves back
to their masters. This proves that Congress lacks the power
to regulate slavery in the territories.
4.Takings Argument: The Court says that banning slavery in
the territories represented a taking of property without just
compensation. Does that mean that compensation would
make it constitutional? Why doesnt this fall within the scope
of Congresss police powers?
5.Curtiss Dissent: The dissent argues there is a difference
between free blacks and slaves, citing NC law for this
proposition. Curtis argues that free blacks should have
standing to sue.
6.Impact of Dred Scott
a. Radicalized Republicans and Democrats: The
Republican Partys entire platform rested on barring the
expansion of slavery, and Dred Scott prevented them from
doing so. Republicans then had to argue for total abolition.
The decision also emboldened Democrats to push for
slavery in the territories rather than simply popular
sovereignty. The Court accelerated a rupture that had been
inevitable since the 1820s.
b.Power of Northern States? Some northern
commentators worried that the decision proved that
northern states lacked the power to outlaw slavery. If the
Constitution recognizes the right to own slaves as a
property right, then state governments might lack the
power to ban it because of Article IVs Privileges and
Immunities Clause.
c. Lincolns Narrow Reading: Lincoln said that Dred Scott
only stood for the proposition that a slave lacks standing to
sue in federal courts. That allowed him to evade the
constitutional problems inherent in either state regulation
of slavery or federal regulation of slavery in the territories.
FOURTEENTH AMENDMENT
Slaughter House Cases

II.

Fourteenth Amendment

Slaughter House Cases

(MILLER 1873), p125
Narrowest possible
construction of the 14th
Amendment.

I.

MILLER goes through

the history behind the
Reconstruction
Amendments and finds
that they do not alter the
political structure as
petitioners argue.
- Instead, Privileges or
Immunities clause of the
14th protects limited
rights of federal
citizenship.
- Not the role of the
Court to create new
rights.
-

Background Volatile
politics between the
North and South.
- MILLER wanted to
preserve the Union.
- MILLERs opinion is
dripping with irony and
paradox.
- Often taught as
Supreme Courts missed
opportunity to construe
the Privileges or
Immunities clause of the
14th broadly.
- South saw these
amendments as the
creation of Northern
carpetbaggers.
- Analytical approach
is reminiscent of
Boon.
- Federalism point
Court does not want to
become arbiter of all
state legislation.
- Court is wary to do
Dred Scott again Does
not want to be subject
to political winds (not
decided along partisam
lines).
-

Slaughter House Cases (MILLER 1873), p125 Narrowest possible

construction of the 14th Amendment.
c. Statute Creates a corporation in the city of New Orleans that will
have a monopoly over stockyards and slaughter houses. Allows
butchers to pay a fee to slaughter their animals at the corporation, but
they may not have their own sites for doing so.
d. Concentrate on the privilege of the monopoly over the
slaughterhouses as basis of claim that it creates a gross injustice
to the public and constitutes an invasion of private right.
e. Clearly, it is within the province of the legislature to determine the
localities where slaughtering can take place. Here, that is simply what
the statute does. Moreover, it does not prevent butchers from
slaughtering their own animals, but instead confines where they may
do it. Thus, butchers are not deprived of the right to labor in
their occupation, or the people of their daily service in
preparing food, and thus does not interfere with this
occupation. The power exercised by the legislature here is simply the
police power in regulating an industry that may be injurious to the
public health.
f. ISSUE Can any exclusive privileges be granted to any of its
citizens, or to a corporation, by the legislature of a State?

i. Presumption Unless we find some constitutional (state or

federal) reason for restraining this power of the legislature, we
should assume that the power is quite broad. And if the
restraint does lie in the state constitution, then we it should not
be subject to review by this court.
ii. Constitutional provisions
1. Thirteenth Amendment Creates an involuntary
servitude.
2. Abridges the privileges and immunities of the citizens
of the US.
3. Denies plaintiffs equal protection of the laws.
4. Deprives them of property without due process of
law.
g. The original 12 amendments were all adopted around 1803. The
Reconstruction amendments were adopted in the last 8 years.
h. First look to the Reconstruction amendments
i. Unity of purpose With an eye toward recent history, the
amendments sought to create additional guarantees of
human rights, additional powers to the Federal
government, additional restraints upon those of the
States.
ii. History of the Amendments Grew out of the Civil War and
the fight to abolish slavery.
1. Following the Civil War, the legislature did not want
emancipation to rest solely on a proclamation by the
executive, but also wanted it to be entrenched into the
Constitution itself. (13th Amendment).
2. The country knew that without some sort of extra
protection by the federal government, circumstances
would quickly revert to their previous position. This was
demonstrated immediately following the Civil War when
a number of states acted quickly to enact laws that
placed great burdens and disabilities on African
Americans.
3. Also proposed the 14th Amendment, and made
ratification a condition for former Confederate states to
reenter into the Union.
4. Because of the frustration that white men controlled the
laws and therefore could place burdens on African
Americans, the 15th Amendment was also ratified.
iii. Purpose Freedom of the slave race, the security and firm
establishment of that freedom, and the protection of the newlymade freeman and citizen from the oppressions of those who
had formerly exercised unlimited dominion over him.
iv. 14th 1 Definition of citizenship. Enacted in order to
overturn Dred Scott and makes all persons born within the
United States and subject to its jurisdiction citizens of the
United States (without regard to state citizenship).
v. 14th 2 Then must look to the distinction between
federal citizenship and state citizenship. No State shall
make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States. What are the
privileges and immunities under federal citizenship?

i.

1. Articles of Confederation Privileges and Immunities

clause of Article IV.
2. Corresponding provision in current Constitution is in Art
IV 2.
3. Then ask, what are the privileges and immunities
of state citizens?
a. Corfield v Coryell (Cir 1823) Defined the
privileges and immunities of state citizenship as
those which are fundamental to the citizens
of any free government, such as protection
by the government, with the right to acquire and
possess property of every kind, and to pursue
and obtain happiness
b. Ward v The State of Maryland Embraces
nearly every civil right for the establishment and
protection of which organized government is
instituted.
c. Paul v Virginia those privileges and
immunities which are common to the citizens in
the latter States under their constitution and laws
by virtue of their being citizens.
4. Note that these provisions declared to the several
States, that whatever those rights, as you grant
or establish them to your own citizens, or as you
limit or qualify, or impose restrictions on their
exercise, the same, neither more nor less, shall be
the measure of the rights of citizens of other
States within your jurisdiction.
5. Looking back to 14th 2, it cannot be that Congress
meant to transfer all of these privileges of state
citizenship to federal citizenship. Such an idea
would violate the fundamental principle of
federalism, and such a huge change must be expressed
through a clear statement.
vi. Then ask, what are the privileges of federal citizenship?
1. Come to the government with claims, protection by the
Federal government when in admiralty jurisdiction or in a
foreign country.
2. Redress of grievances.
3. Habeas corpus.
CLASS ANALYSIS
i. HUTCHINSON MILLERs narrow holding in Slaughter House
Cases is consistent with the history of the time. Rights in the
main body of the document and apparently flowing from the
Articles of Confederation (right to travel).
1. MILLER It is not our part to create new rights.
ii. Possibilities of interpretation:
1. Maintain constitutional foundation for the rights
enumerated in the Civil Rights Act of 1866 and in the
Articles of Confederation.
2. Incorporation Incorporate into rights of federal
citizenship the Bill of Rights. This argument reemerges
after in WWII by BLACK (look to his dissent in Adamson v
California).

iii.

iv.
v.

vi.

3. Whatever the Supreme Court and/or Congress says.

Some radical Republicans argued for this but were
quickly muted. Argument was that 14th Amendment
brings public power back into the government.
a. Original Constitution Recognized limited
enumerated powers of federal government.
b. 14th Amendment announces a new political
structure. Empowers the national government to
be the final authority on the exercise of personal
rights and liberties and is the ultimate check on
insular, parochial, and local abuses of power.
c. Problem with this view Scant evidence in the
historical record of 39th Congress that anyone
pushed this view very seriously. Most Republicans
campaigned that we have preserved the
historical structure of the Union with modest
inroads to preserve justice.
d. This provides the axis for MILLERs opinion in
Slaughter House Cases. The elections at this time
(1866) had the highest voter turnout for the next
20 yrs.
e. Republicans had to be standing for virtue, that
there had been a noble cause, but could not
argue that they were radically reconstructing the
government.
Plaintiffs are white butchers, and their case was argued by John
Archibald Campbell (former Justice of the Supreme Court) and
was in the War Cabinet of the Confederacy.
1. Criticizing the statutes created by this carpet bag
legislature. Established a centralized location for the
receipt of stock and an authority in a corporation to
administer all butchery services.
NOTE that this case was not decided along partisan lines, unlike
Dred Scott.
Campbell knew that this was an unattractive case and that
MILLER would probably have to make a consequentialist
argument about (Court does not want to become the ultimate
censor). Court did not want to extend itself into the shifting
political wind.
15th Amendment 40th Congress (after Nov election of 1868).
This was a lameduck Congress that thought if it sent out this
amendment and sent it to state legislatures under Republican
control, it would probably go through.
1. 3/5 Compromise has been negated, and now the
Southern Democrats have more opportunity by being
able to count slaves as 1.0 instead of 0.6.
2. Republicans want the black vote in the North to
counterbalance this.
3. 1874 Corruption of the GRANT administration and the
split within the Republican party that was evident in the
1872 election cost the Republicans Congress. Thus, the
Civil Rights Act of 1875 is a dead letter when it arrives.
4. How did they get the Civil Rights Act of 1875 through?
a. Tribute to Charles SUMNER on his deathbed.

b. Didnt let it die but amputated it: 1. Extension to

churches. 2. Prohibition of racial segregation in
public schools.
c. Reaction against 2: Would produce white flights.
d. Excaberated by Panic of 1873 Chicago Fire,
downfall of markets. Cut back on revenues that
national government enjoyed and put pressure on
GRANT to cut back on enforcement of all civil
rights statutes in the South.
vii. Slaughter House Cases must be seen in context of volatile
politics in the North and the South. Think of amendments as
sequential episodes with dwindling public support in both the
North and the South for aggressive engagement of the Black
Codes.
viii. By the end of the 19th c New mantra is reunion and
reconciliation.
IV. ASK What kind of conception of Equal Protection is the Court trying to
accomplish? How does this conception change as politics change and the
composition of the Court changes?
a. Political landscape changes rapidly and dramatically after the second
Grant administration. Commitment to Reconstruction diminishes.
b. 1880s90s Further diminishment in protecting the rights of the
freedmen.
i. 1893 Status of blacks at its lowest since the end of the Civil
War.
ii. Protection by the national government has become negligent
and the politics of the day is Reunion and Reconciliation.
iii. For the first time, civil war reunions are celebrated as blue-grey
unions, and concentrates on idea of all (white) people as
Americans.
VII.
VIII.

Part B: The Fourteenth Amendment

I.
Early Interpretation

A.
Legislation

Reconstruction Amendments and

1.Thirteenth Amendment: This amendment was submitted

for ratification a month before Appomattox and ratified later
that year. The amendment outlaws slavery.
2.Fourteenth Amendment: This Amendment was submitted
in June 1866, but it was not ratified for more than two years,
partly because ratification was a precondition for admission
to the union for previously seceded states.
a. Overrules Dred Scott: The first sentence of Section 1
overruled Dred Scott.
b. Equal Protection: Congress chose a weaker standard of
equal protection over an anti-discrimination principle. The
anti-discrimination principle would require black suffrage,
and the Republicans were afraid that this would increase
southern democrats power in the South by too much.

3.Civil Rights Act of 1866: This statute was enacted over

Johnsons veto, in response to KKK violence in North and
South Carolina. There was a dispute over its constitutionality
until the Fourteenth Amendment was passed.

B.
Privileges and ImmunitiesSlaughterhouse
Cases (1873)
1. Facts: The Louisiana statute granted a monopoly to certain
butchers in order to reduce health and sanitation problems.
The plaintiffs argued that this deprived them of the privilege
or immunity of earning their living as butchers.
2. Adopts Historical Definition: Millers majority chose a
narrow set of historically defined rights. Miller looks to the
purpose of the Fourteenth Amendment and argues that it is
exclusively about slavery. These included the right to hold
title to land, the right to travel, and the right to habeas
corpus.
3. Avoid Superintending Exercise of Police Powers: The
implication is that the Court will not engage in Dred Scott
again and tack out into the wind of shifting political ideas.
The states will be permitted the flexibility to exercise their
police powers.
3. Other Possible Interpretation of Privileges and
Immunities
a. Delegates Power to Congress: The most expansive
interpretation was that the Fourteenth Amendment gave
Congress and the Supreme Court the power to define the
privileges and immunities of citizens, and the former slaves
must share in them equally.
b.Incorporation: The Clause could incorporate the first
eight amendments of the Bill of Rights and impose them as
a matter of constitutional requirement against the states.
Strauder v. West Virginia
Strauder v West
Virginia (STRONG
1879), p140 Held
statute excluding blacks
from juries violated Equal
Protection Clause of 14th.

Unanimous decision
(in order to be
unanimous, the opinion
had to address 15th
Amendment issues).
- STRONG holds that
the 14th secures to
African Americans civil
rights (formal legal
status and capacity as
under Civil Rights Act of
1866) including political
and social rights.
- States that the fact
-

Racial and
paternalistic language
reminiscent of RUFFIN.
NOTE that this was
typical of the political
rhetoric of the day.
- Meant to provide the
South with a roadmap
for evasion Can
impose other
requirements that
prevent blacks from
voting, serving on juries.
- Catholic bashing
-

III.

that African Americans

p143.
alone are precluded from - STRONG was a real
jury service places upon
nutcase.
them a brand of their
- Civil Rights Cases
inferiority.
At some point, the newly
- Prohibits all
emancipated race is no
discrimination 14th
longer the favorite of the
is no longer about
law, but is merely a
protecting newly freed
citizen.
slaves, but about race
in general. Thus,
whites, if they are ever in
the minority, can use this
to their advantage.
Strauder v West Virginia (STRONG 1879), p140 Points to a Court
that is still searching for its own definitional parameters for what
equal protection is. Held a WV statute allowing only white males to serve as
jurors violated the Equal Protection Clause of the 14th Amendment.
a. ISSUES 1. Whether every citizen of the US has a right to a trial of an
indictment against him by a jury selected and impaneled without
discrimination against his race or color, because of his race or color. 2. If
he has such a right, and is denied its enjoyment by the State in which he is
indicted, may he cause the case to be removed into the Circuit Court of
the United States?
b. ANALYSIS
1. First notes that the issue is not framed as whether the petitioner has a
right to a jury comprised of members of his own race, but instead
whether members of his own race may be excluded from the jury
solely because of their race.
2. Must look to the Reconstruction Amendments
i) 14th Amendment Purpose (common with the other Reconstruction
Amendments) is to secure to African Americans the civil rights that
whites enjoy. Must look to the history of the times when
interpreting these amendments. See Slaughter House Cases.
ii) NOTE that while STRONG is writing a pro-African American opinion,
his tone is very racist and paternalistic. The colored race, as a
race, was abject and ignorant, and in that condition was unfitted to
command the respect of those who had superior intelligence. Their
training had left them mere children, and as such they needed the
protection which a wise government extends to those who are
unable Dto protect themselves. p142.
iii) These amendments prevent the states from taking away from
African Americans the equal protection of the laws.
iv) 14th 5 Gives Congress the power to enforce the 14th
Amendment if the states did not willingly comply.
iii. Clearly the WV statute is such a law that discriminates on the
basis of race.
1. Argues that such an exclusion creates a brand or
stigma upon African Americans.
2. The composition of the jury is a fundamental part of the
guaranteed right of a jury of ones peers.
3. Need to balance out the prejudice that must exist in
particular communities.

iv. NOTE that the Court does not question limits on jurors based on
other characteristics, such as gender, property owning status,
and age.
v. The 14th does not specify which rights it seeks to protectthis
implies that it is to be interpreted as broadly as possible. Any
State action that denies this immunity to a colored man is in
conflict with the Constitution. p144.
vi. Holds that 14th 5 is enough to justify passage of 641 of the
Revised Statutes, which states that when any civil suit or
criminal trial is pending and the civil rights of one of the parties
is denied or violated, then the suit may be removed to the next
Circuit Court of the United States.
c. CLASS ANALYSIS
1. STRONG was a GRANT appointee for political reasons.
i) Also a nut case.
ii) Resigned from the Court and lived for another 15 years.
iii) Christian societies and after resignation and tried to pass a religious
amendment stating that Jesus is the governor of nations.
2. To what extent is the Court acting in an utterly cynical fashion in
Strauder
i) Strauder was convicted of murdering his wife with a hatchet.
3. Court was interested in drawing a bright line.
i) What if S was white?
ii) Real victim of WV provision was the potential juror.
iii) Look at other Supreme Court decisions May need to show actual
prejudice.
iv) Can S get a fair trial with exclusion of blacks from jury pool?
(1) Emphasize case is not about blacks being on jury as remedy for
this sort of case.
(2) Instead, cannot exclude them from jury pool.
(3) Why help the axe murderer?
(a) P142 Racist, paternalistic language reminiscent of
RUFFIN.
(i)
Mirrors debate that had been going on between
SUMNER and HOWARD in Congress.
(ii)
Piggybacking on political rhetoric that had been
equivalent of Federalist Papers of the Reconstructionist
era.
(b) Need to show Equal Protection Clause not simply about
blacks. 2 big steps
(i)
Strauder About race.
(ii)
Yick Wo About all minorities.
(c) Strauder Assumed that if blacks become majority, whites
will be able to make similar claims.
(d) Scant record of protection of Chinese.
(i)
In struggle for rights compared to artificial entities.
(4) Civil Rights p142
(a) Civil Rights Act of 1866 Make and enforce contracts, give
evidence, property (formal legal status and capacity).
(b) Political rights Run for office, vote, not to be discriminated
against on the basis of race while voting (could include jury
service as part of polity).
(c) Social rights Right not to be excluded from 1st class
transportation and other public places.

4. STRONG is searching for a way to define a concept in negative terms.

i) Ex Parte Virginia; Virginia v Reves; Strauder v West Virginia What
is he trying to do is draw line of exclusion.
ii) Broad language but does not say states cannot impose other
requirements.
iii) Why does he raise the issue of the constitutionality of the statute?
In order to gain political credibility, needed to raise the issues of
poll taxes etc that were debated in the 40th Congress.
iv) Initial draft of the 15th Cannot discriminate on the basis of race
including through literacy tests, etc.
(1) BUT to get broad based support, these parts were dropped.
v) Decides these methods of exclusion are ok.
vi) Drew a blueprint for old Confederacy on how to discriminate.
5. Celtic Irishmen, p143 Catholic bashing
i) Principle majority thinks it is addressing? Does this resolve our
affirmative action issues?
(1) 4 years later the Civil Rights Cases are decided.
(a) At some point, the newly emancipated race is no longer the
favorite of the law, but is merely a citizen.
(b) Concept of equal protection had little data in 39th Congress.
Most of the debate was focused on the Privileges or
Immunities clause.
(c) Tripartheid distinction introduced to Equal Protection Clause
that was not recognized by language of the Equal Protection
Clause itself.
6. Strauder changes the Equal Protection Clause from protecting the
newly emancipated race to prohibiting all discrimination.
i) Immediate effect Blueprint for Southern states to discriminate.
ii) Jim Crow only beginning to develop.
iii) End of decade?
iv) Racial segregation began and legislation caught up at the end of
the decade.

C.

Exclusion from JuriesStrauder v W Va (1879)

1.Facts: Strauder was an African-American convicted of
murder by an all-white jury, and W Va systematically
excluded blacks from serving on juries.
2.Strongs Opinion for a Unanimous Court
a. Doctrinal Points
i. Ignores Harmless Error: The majority opinion does not
even consider whether the error was harmless or not.
The majority does not consider Strauders guilt or
whether an integrated jury would have convicted the
man.
ii. Defendant as Victim? The remand for a new trial must
mean that the Court considered the defendant the
victim, but why isnt the excluded juror the real victim. In
a later case, Peters v Carroll, the Court reversed to
conviction of a white defendant because the jury
excluded blacks. Half of the majority rested its opinion

on constitutional grounds, and the other half based its

opinion on federal statute.
iii.
Only Eligibility Required: The majority emphasizes
the blacks need not be included on every jury, but they
must be eligible for jury service.
iv.
Literacy and Property Ownership
Requirements: Strong says the states can still impose
literacy tests and the like on potential jurors. This
qualification provides southern states with a blueprint for
effectively and legally discriminating against blacks.
b.
Theoretical Points
i. Stigma as Harm: Strong describes the harm of the law
as stigma, and says the same law discriminating against
whites would be constitutional. A few years later, the
Court would change course and argue that the law must
stop favoring African-Americans at some point.
ii. Description of 13th Amendment as Paternalistic:
Strong says that the Thirteenth Amendment suddenly
raised African-Americans to the level of citizenship.
Strong describes blacks as primitive, child-like, and
vulnerable. The EP is about paternalism for AfricanAmericans.
iii.
Definition of Civil Rights: The majoritys definition
of civil rights is somewhat unclear. It could comport with
the definition used in the Civil Rights Act of 1866the
formal legal capacity to make contracts, and buy
property. It may mean political rights, which include
voting, running for office, and jury service. It might
embrace social rights, which would include the right of
access to transportation and restaurants.
Yick Wo
Yick Wo Hopkins
(MATTHEWS 1885),
p146 Held a SF
ordinance that regulates
laundries in a neutral way
but is administered in a
discriminatory fashion
against the Chinese
violates the Equal
Protection Clause.

Unanimous opinion.
The Equal Protection
Clause applies equally to
the Chinese (14th is
about minorities).
- Though the law itself
be fair on its face and
impartial in its
appearance, yet, if it is
applied and administered
by public authority with
an evil eye and unequal
hand, so as practically to
make unjust and illegal
discriminations between
persons in similar
circumstances, material
to their rights, the denial
-

Unanimous opinions
do not change the social
fabric Here the Court
finds that if the state
can show reasonable
ground for the
discrimination, the
Court will uphold it.
- Another reason for the
Courts unanimity is that
the petitioners are
losing their livelihood.
Civil rights at this time
look more like
commercial rights.
- Strauder and Yick
Wo help to establish the
Courts position that
-

of equal justice is still

within the prohibition of
the Constitution.
IV.

they are not agents of

social change.

Yick Wo v Hopkins (MATTHEWS 1885), p146 Held a SF ordinance that

bars operation of laundries in wooden buildings, except with the consent of
the Board of Supervisors (which gives permits to all but one of the nonChinese applicants, and none to the Chinese applicants) was discriminatory in
its administration, and thus violates the Equal Protection Clause.
a. Citys Argument The city should have plenary power in the
administration of its local laws. Clear that under the police power they had
the power to enact such an ordinance, and the State should be able to
construe her own laws.
b. First refutes the argument that such ordinances give the Board of
Supervisors discretionary authority. Instead, the ordinances confer
upon the Board plenary power to do whatever they wanted, with
no checks, It is purely arbitrary, and acknowledges neither guidance nor
restraint.
1. Precedent does not apply here because the precedents cited did not
involve invidious discrimination. Instead, in the precedents, all
individuals were subject to the same rules, and the same
restrictions.
c. Also note that the fact that petitioners are aliens and Chinese does
not dilute their rights.
1. Cites a treaty.
2. The Fourteenth Amendment applies universally and does not
distinguish between strangers, aliens, and citizens.
d. While states may have some discretion in their lawmaking authority, they
may not abuse that power by creating or administering their laws in
arbitrary and discriminatory ways.
e. Here the state engaged in discriminatory administration of the laws.
Though the law itself be fair on its face and impartial in appearance, yet,
if it is applied and administered by public authority with an evil eye and
unequal hand, so as practically to make unjust and illegal discriminations
between persons in similar circumstances, material to their rights, the
denial of equal justice is still within the prohibition of the Constitution.
f. CLASS ANALYSIS
1. Any time you see unanimous opinions Cannot be important and
cannot change the social fabric.
2. Yick Wo is not a person. Name of a laundry and in fact is the
combination of two names.
3. Chinese imported Coolie labor. Stay. By 1880 they constitute 10% of
Californias population.
i) California and SF took all kinds of steps to circumscribe their
entrepeneurship ventures.
ii) Most demeaning Ordinances of 1876.
(1) Queue ordinance All persons lawfully arrested and
incarcerated in SF county jail shall have his hair cut to 1.
(2) All designed to put Chinese out of business.
(a) Clothing manufacturers, shoes, laundries, cigars.
4. Statute purports to have perfectly neutral grounds but is discriminated.
5. The site of the laundry is now memorialized as Yick Wo elementary
school.
6. Most famous p154

7. On surface of the opinion Great step.

i) Race includes the Chinese.
(1) Does not include Mexican Americans until 1954.
ii) P155 If you can show reasonable grounds for disparate treatment,
then the S Court is obliged to uphold it.
8. HUTCHINSON Yick Wo is a disaster for those trying to combat
discrimination.
9. Cost to Yick Wo of discriminatory administration Lose their
livelihood.
i) In some respects, this is a property case.
ii) Court is piercing superficial neutrality of ordinance Look to dissent
in the Slaughter House Cases as being central to the rights of
citizenship.
iii) Civil Rights Formal, commercial rights.
Question of social rights debated at this time. Civil Rights Cases.

D.

Naked Racial HostilityYick Wo (1886)

1.Facts: San Francisco passed an ordinance making wooden
laundries illegal, unless the owner obtained a variance. The
city then refused to grant to grant a variance to any Chinese
people, including the owners of the Yick Wo laundry.
2.Extension to Chinese-Americans Uncontroversial: The
Court deems extending the Fourteenth Amendment to
Chinese-Americans as unconstitutional. It seems to deviate
from Strauders pronouncement that the Equal Protection
Clause is all about race.
3.Facially Neutral Ordinance Can Be Unconstitutional:
The court explained: Though the law itself may be fair on its
face and impartial in appearance, yet, if it is applied and
administered by public authority with an evil eye and an
unequal hand, so as practically to make unjust and illegal
discrimination between persons in similar circumstances,
material to their rights, the denial of equal justice is still
within the prohibition of the constitution.
4.Racial Animosity as Sole Justification: The Court
emphasizes that the only reason for the ordinance was racial
hostility. The Court implies that any alternative justification
would make the statute unconstitutional. By implication, the
Court says it will uphold reasonable exercises of the police
power that have a disparate impact.
5.Importance of Right at Stake: The Court also emphasizes
that the laundry owners will lose their livelihood/property
solely because of discriminatory enforcement. The Court says
this type of discrimination goes to the core purpose of the
Fourteenth Amendment.

Plessy vs. Ferguson (Brown 1896)

Plessy v Ferguson (BROWN 1896),

164 Separate but equal.

V.

This is clearly not slavery. Thus not

covered under 13th.
- 14th only protects civil and political
rights, not social rights.
- Discusses Roberts v City of Boston
(bad choice because that was decided
prior to the Reconstruction
Amendments). Too much reliance on
SHAW.
- No deprivation of property here.
- We consider the underlying fallacy
of the 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. P198.
- With respect to reasonableness of
the states action, must look to
established usages, customs, and
traditions of the people. LHS p198.
-

HARLAN (dissenting) Used TANEYs

inkwell to pen his dissent.
- Constitution is colorblind.
- White supremacy Cowardly
attempt tp overthrow Slaughter House
Cases.
- Criticizes the equal treatment of the
Chinese.
Plessy v Ferguson (BROWN 1896), p164.
a. HUTCHINSON
1. It was, from a litigation standpoint, an utter fiasco on the part of the
plaintiff. Ill-conceived, ill-strategized, and ill-timed.
2. Political standpoint. Captured in The Plessy Era. By 1896 (6 yrs after
contemplated), there was no way that Plessy was going to succeed.
The politics by 1894 or 1895 had locked in both poor whites and
redeemer whites in a coalition with the single goal of overcoming the
economic panic of 1893 by creating a way of dislodging the power of
Black Republicans. Republicans abandoned its goal of protecting
freedmen in the South and no longer cared about equality in the
franchise or in the politic. Evidence of this is not only seen in the
politics of the period, but also in the Supreme Courts continued
movement to narrow the ambit of the Reconstruction Amendments in
the decade preceding Plessy v Ferguson.
i) See Case v Alabama Alabama law that punishes interracial
fornication more severely than intraracial fornication does not
violate the 14th Amendment. FIELD argues that there is no
inequality here because the whites are punished the same as the
blacks. Sends bright, unambiguous signal about interracial
marriage and a distinction among rights (civil rights, political rights,
social rights).

ii) Reinforced by the Civil Rights Cases (1883) Civil Rights Act of
1875, insofar as Congress tries to reach private discrimination in
public accommodations, Congress has gone too far and beyond the
authority conferred upon it by the 14th Amendment, which only
prohibits discrimination through state action. Only one dissent
(HARLAN).
iii) BRADLEY There will come a point when newly freed slaves will
cease to be the favorites of the law.
iv) BRADLEY (1876) Civil Rights Act of 1875. Advocating to his
colleagues a concept of lines of demarcation for the 14th
Amendment, and that the idea of civil and political rights were
limited to the Civil Rights of 1866 and the 15th Amendment.
v) Plessy v Ferguson is a non issue when it was decided. NY Times
included it in the Railroad News.
vi) Tourgee was up against a mindset that had locked into place for a
half a decade. Tourgee was asking for something that this Supreme
Court was never going to give.
3. Interesting question about the litigation The composition of the New
Orleans Committee to attack the segregation on the railroads.
i) Plessy was 7/8 white. HARLAN had a brother who was a slave, and
was white as can be.
ii) HARLAN owned slaves, condemned 13th Amendment as a politician,
and argued that the Civil Rights Act of 1866 was unconstitutional.
Sole dissenter in Civil Rights Cases and Plessy v Ferguson.
iii) Tourgee is a very famous carpetbagger, has written an expose of
the KKK, and the most prominent figure to take on the case.
(1) Immediately suggests having someone who can pass for white
be the plaintiff. Runs the risk of splitting the group (dominantly
Creoles, and also a number of dark skinned African Americans
in group).
(2) Two of the Civil Rights Cases also involve plaintiffs such as
Plessy, because these are the ones who have the most to lose.
Tourgee argues that the principal loss here was the property
right of being treated as white.
(a) No precedent to call the capacity to pass for white as a
property right.
(b) Same argument that SUMNER made in Roberts The
odious idea is the act of separation. That is what constitutes
the violation. BUT he has used someone who is used to not
being discriminated against.
(c) If he were really trying to bring SUMNERs point home, then
he would have presented a plaintiff who was African
American and dark-skinned male, and a African American
woman who is a nurse to a white child.
(i)
Irrationality.
(ii)
Absurdity of exceptions made.
(d) THUS, Tourgee starts out bass-ackward.
4. Precedents Slaughter House Cases (privileges or immunities, went
the other way).
i) Argues this is not police power. Cf Yick Wo,
ii) Argues that Slaughter House is wrong.
iii) If that is the law, what is there to prevent a State from enacting
the old rule of slavery jurisprudence, that insulting words from a
colored man p176 RHS.

iv) Argues that the act of separation itself is the violation. See
MARSHALLs arguments in Brown v Board of Education.
v) Problem of the New South to an outsider is that the New South
wants the old Negro Jim Crow is all about keeping the African
Americans in their place.
5. Remember, you have to have reasons.
6. Notwithstanding the disaster of Tourgees brief Nature of the
argument that Tourgee made invites the rhetorical response that
BROWN supplied (legitimation of Jim Crow and recognition of the
principles underlying Jim Crow).
i) Letter to Louis Martinette Wrong in every sentence in terms of
where the law is moving.
ii) BUT he was still ready to push forward, as were his clients. Political
judgment was better to make a stand and lose, than to not make a
stand at all.
b. Brief for Plaintiff in Error
1. Errors by the lower court
i) 13th and 14th Amendments.
ii) Exercise of police power.
iii) Regulation of domestic commerce.
iv) Enforces substantial equality of accommodation supplied to
passengers of both races.
ii. Such segregation perpetuates a distinction based on race and
thereby places a badge of inferiority and servitude on the
African Americans.
iii. Such a statute does not enforce substantial equality of
accommodation among the railroads passengers.
iv. Not within the states police powers.
1. The federal government has the power to inquire into
and decide upon the force, tenor and justice of all
provisions of State laws affecting the rights of the
citizen. p171.
2. Slaughter House Cases Formulated theory of exclusive
police power by the state.
3. Strauder v West Virginia The Court concluded that the
14th Amendment would prevent discrimination as a
right.
4. Police powers Hard to define. Regulations necessary
to secure the physical health and moral welfare of
society.
5. Rule The Courts definition of the relation of the 14th
Amendment to the States power to enact and enforce
police regulations is, that it has the sole power and
sovereignty to do so, as long as it does not distinguish
against the rights of color citizens as such. p172.
6. Impairs the rights of octoroons to be classed among the
whites.
v. Violates equal protection and due process.
1. By denying the plaintiff in error the right to ride and
associate with the whites, the state is denying the
plaintiff in error of property (analogous to a right of
action or of inheritance) in violation of the Due Process
Clause.

vi.

vii.

viii.

b. Brief
i.

2. Also a conductor that refuses to carry a passenger

because of his resistance to ride in a particular car is to
deprive that passenger of the liberty and the property of
the citizen in violation of the Due Process Clause.
3. Distinction between state and federal citizenship. Argues
that federal citizenship is paramount to state citizenship
because as a result of the 14th, state citizenship is
incidental and coextensive with federal citizenship.
4. Thus, 14th 1 prohibits states from taking away
personal rights from its citizens. States no longer have
exclusive jurisdiction over the personal rights of its
citizens.
5. The 14th Amendment also eliminated all vestiges of the
caste system.
6. Consider the history that the country has just lived
through 30 years earlier, and the dangers of federalism.
7. US v Cruikshank Does not focus on the affirmative
rights given in the 14th, but only concentrates on the
negative provisions.
8. Strauder recognized the need to create universal
equality.
9. Civil Rights Cases Turns on difference between
individual and State acts. Look to HARLANs dissent.
10. Must recognize that the 14th created new rights for
African Americans that had not existed before.
Violation of the natural rights of citizens.
1. By distinguishing between races, such a classification
prevents interracial couples and families from riding
together.
2. Clearly the exception that the statute makes for African
American nurses shows that the problem here is the
racial hierarchy, and the purpose of the statute to make
one race more comfortable while continuing to
subordinate the other.
An officer or conductor should not be the one to determine
whether an individual is of a certain race because there are no
set guidelines to make such a determination.
1. Slavery not only introduced the rule of caste but
prescribed its conditions, in the interests of that
institution. The trace of color raised the presumption of
bondage and was a bar to citizenship. The law in
question is an attempt to apply this rule to the
establishment of legalized caste-distinction among
citizens. p169.
Officers and conductors who do make such determinations are
without liability to the state, and are given immunity from civil
and criminal claims.
1. Denies the individuals who are wrongly put off the train
of a right of action, thus denying them the equal
protection of the laws.
of Defendant in Error.
Ferguson Judge of the criminal District Court for the parish of
Orleans.

ii. Analogizes to a Mississippi statute that was the model for this
statute. The MS statute was held constitutional because it did
not interfere with Congresss regulation of interstate commerce.
iii. Moreover, the statute did not force anyone into servitude, and
thus did not violate the Thirteenth Amendment.
iv. Regulation of civil rights is clearly with the purview of the
states police power.
v. Equality of accommodation does not mean identity of
accommodation.
vi. 14th Amendment is only violated when the States attempt to
legislate and establish an inequality.
vii. Color is not a term that is as hard to define as the plaintiff in
error contends.
viii. And any passenger of the white race insisting on going into a
coach or compartment set apart for the colored race, is guilty of
exactly the same offense as when a passenger of the colored
race insists on going into a coach or compartment assigned and
set apart for passengers of the white race. p190.
c. Supreme Court Opinion.
i. ISSUE Constitutionality of Louisiana Act providing for
separate railway carriages for the white and colored races
under the 13th and 14th Amendments.
ii. 13th Amendment A statute which implies merely a legal
distinction between the white and colored racesa 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. p194.
1. Purpose of the 13th was to abolish slavery as it existed
prior to the Civil War. Slaughter House Cases.
2. The 14th Amendment was later passed when Congress
recognized that the 13th did not protect African
Americans from laws passed by the Southern states to
impose upon African Americans extra disabilities (Black
Codes).
3. The Civil Rights Cases held that the refusal of
accommodation by a single owner of an inn was not
enough to constitute a violation of the 13th Amendment
because to have the 13th Amendment and the slavery
argument apply in such instances would be to run the
slavery argument into the ground. p194.
iii. 14th Amendment
1. The main purpose of the 14th Amendment was to
establish the citizenship of African Americans, to give
definitions to federal citizenship, and to protect those
privileges and immunities of federal citizenship.
Slaughter House Cases.
2. Clear that it is within the States police power to require
separation of the races in certain places, and that such a
distinction would not prove to brand one race inferior to
the other.
3. Segregation has been well-established as within the
states police power. See Roberts v City of Boston. Also
consider the state statutes forbidding interracial

marriages. Must recognize that not all citizens have the

same rights, but they do have the right to equal
protection of whatever rights they hold.
4. Distinguish Strauder v West Virginia from these cases
because in that case the defendants life, liberty and
property were at stake.
5. While the Court has held that segregation in interstate
railway cars is unconstitutional, the basis for these
decisions has been purely on the fact that the states
were attempting to regulate interstate commerce, an
area traditionally under the purview of congressional
authority.
6. The Civil Rights Cases helps to determine the scope
Congresss authority under the 14th Amendment is.
BROWN states that it is not for Congress to legislate
upon subjects which are under state authority, but
instead to provide relief against state legislation.
7. Points to precedents which state that segregation among
intrastate railway cars is constitutional.
8. No deprivation of property here because no right to ride
in white car in the first place.
9. Instead, the test should be whether the statute itself is
reasonable and give state legislatures a lot of leeway in
making this decision.
iv. We consider the underlying fallacy of the plaintiffs 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. p198.
v. Dissent/HARLAN Argues that the Constitution is colorblind
and thus laws cannot be enacted that base distinctions on race.
1. The statute interferes with the individuals right to travel
by preventing whites and blacks from traveling together
on a public conveyance.
2. While it may be true that whites are the superior race,
the Constitution does not recognize that.
3. The decision today will only lead to further conflict.
4. Compares the equitable treatment of Chinese (even
more foreign and did not fight for us!) with the inferior
treatment of African Americans.
vi. CLASS ANALYSIS
1. What happened to Plessy?
a. Apprentice shoemaker in New Orleans from a
Creole family. Died in 1925. Successful career
during WWI as insurance salesman.
b. On remand, Plessy pled guilty and was fined for
$25.
c. Tourgee acted pro bono. Counsel to Bordeaux.
2. Famous for being for the highwater mark of vicious
racism.
a. HARLAN Everyone loves Justice Harlans
dissent. Thurgood Marshall, Laurence Tribe,
William Bennett, William Bradford Reynolds.

b. Only HUTCHINSON and MACKINNON do not like

HARLAN
3. Procedural posture Comes up from writ of prohibition,
so there is no factual record.
a. Case begins as an artificial affair.
b. Plaintiffs tend to win when the accommodations
are not equal. Sioux Suit against a ship
because a black woman who had a first class
ticket was excluded and forced to sit in the saloon
car.
c. Railroad Company vs Brown Does exclusion
from a white car on the basis of race (plaintiff
being black) to an allegedly equal colored car
constitute a denial of a chartered provision that
prohibits exclusion?
i. Involved a charter provision not enacted
by Congress. Basis for technical
distinction.
ii. Very little deliberation.
iii. Did not deserve more respect than it got.
iv. This was why no one mentioned it in
Plessy.
4. Heart of BROWNs argument
a. 13th This clearly is not slavery, and we cannot
go down the road of calling every
inconvenience a badge of slavery.
i. BUT cant one argue that this creates a
racial caste system that perpetuates the
evils of slavery?
ii. Slavery is insulting, demeaning,
humiliating.
iii. Ultimate effect Telling people that they
options are not limited by merit, but
instead on the composition of their blood.
b. 14th Political and civil rights are protected by
the Constitution, but social rights are not.
i. Freedom of/from association now Then
it was a matter of scope of rights.
ii. Civil status is what is conferred by 14th,
and that is encompassed by the
ingredients of the Civil Rights Act of 1866.
BUT does not apply to social rights.
iii. Relies on Roberts BUT that was decided
in 1849, and is no longer the law in MA
after the Act of 1855. Highly selective
reading of case law. Could have looked
harder and found Coger (purchase of a
first class RR ticket is not a first class
ticket).
iv. Argues that the states have the power to
make reasonable regulations, and that in
doing that legislatures are able to look at
customs, practices and usages.

1. NOTE that all of the precedents he

cites do not support this.
2. BROWN himself does not support
this.
3. Shows us that Congress itself
segregated schools Easily
refuted by arguing that just
because Congress did that in their
house, didnt mean that thats
what they wanted in the States.
4. Biases in 1890s Booker T
Washingtons Atlanta Compromise
speech Cotton Exposition 1895.
Accommodation. Lay off pressure
for renewed protection of the
franchise. Just ask for better
schools and vocations. Seen as
capitulation by blacks in the South
to the new segregation.
c. This is a reviled and disingenuous opinion Too
much reliance on SHAW in Roberts.
d. HARLAN Second guessing the police power
judgment of New Orleans. Sole reason for this
cannot be discomfort or fear of affray.
i. p201 Personal freedom. Isnt 14th
about equality? Is there a distinction
between freedom and equality?
1. Implication Trying to redefine
what the debate should be and
reargue Slaughter House Cases.
2. Perhaps he is arguing about an
inequality of freedom.
3. Throughout the dissent, there is an
idea that freedom is tied to
citizenship (that has to be tied to
the privileges or immunities
clause), and that the constitutional
protections must be earned, and
are distributed according to color.
ii. Potential counterargument This is an
opinion about citizenship and freedom and
not about equality or egalitarianism. Every
time he wants to talk about equality, he
wants to dismiss it as a formal matter.
1. BUT does this opinion give a
countertheory to the majority?
2. Monument to white supremacy
because HARLAN argues that we
do not need to look at law, and do
not want to rub it in the African
Americans faces how second class
they are.

VII.

3. Ends up looking cowardly in his

attempts to overthrow Slaughter
House Cases.
d. The Plessy Era, Supreme Court Review 1998.
Idea of educating blacks was controversial in the South. Freedmen schools
were constantly under attack. Border state black schools were first to be
established, and were established by race-specific taxing schemes. Early to
mid 1880s, such schemes came under attack. Before the readjustor/redeemer
mvt took foothold post-Reconstruction, the Reconstruction legislative body
tended to support black education moderately well. But they always
supported segregated education, and there were no racially integrated
common schools in the South. The spending per capita for black schools in NC
in 1880s exceeded that for spending for whites. By 1915, those numbers had
reversed, and NC schools were spending 3 times on white education than on
blacks, and 6 times in Alabama, and 12 times in SC. In TN, teachers at white
and black schools were paid the same.
a. Progressive mvt Urges education but not training(???)
b. High schools present a stark case. Retarded development of public schools
in the South. 1890 less than 1% of blacks were attending any school,
and less than 2.8% were attending high schools in 1910.

IX.

II.

Ratifying Jim Crow

A.

Social Rights and the Prelude to Plessy

1.Declining Strength of Republican Party: From a political

perspective, there was no way that Plessy could succeed in
1896. Poor whites and redeemer whites had formed a
coalition in response to the financial panic of 1893, which
crushed the Republicans political power. In 1890, there were
100,000 registered voters in Louisiana. By 1904, there were
only 1400 registered black voters in Louisiana. The
Republican Party had no political incentives to protect blacks.
2.Discriminatory Fornication LawsPace v Alabama: The
Court upheld a law that punished black/white fornication
more seriously than same-race fornication. There is a
developing distinction between political, civil, and social
rights. The Court is very reluctant to extend constitutional
protection to social rights.
2.Civil Rights Cases: The Court held that Congress lacked the
power to compel equal access to rail transportation, hotels,
movie theaters, and amusement parks. The Court explains
that blacks must stop receiving special treatment under law,
and the Court obviously wants to avoid protecting social
rights.

B.

Plessy v Ferguson (1896)

1.Litigation Strategy: From a litigation standpoint, this case

was poorly planned and organized.
a. Litigation Committee: The litigation committee was
primarily composed of Creoles, and they selected Tourgee
as their attorney, who was a famous carpetbagger and
novelist. They chose a plaintiff who could pass for white to
challenge the law.
b.Right to Pass as White: Tourgees principal argument is
that the plaintiff lost a valuable property right, when he
lost the ability to pass for white. There is zero precedent for
labeling the ability to pass as white a constitutionallyprotected property right.
c. Beyond Scope of Police Powers: Tourgee strangely cites
to the Slaughterhouse Cases, when attempting to argue
that the regulation is beyond the scope of Louisianas
police powers.
d.Overturn Slaughterhouse and Civil Rights Cases:
Tourgee argues that the Court should overturn both of
these cases.

e. Segregation as Discrimination: Finally, Tourgee makes

the backhandededly argues that the act of segregation
degrades and attempts to keep blacks down. Segregation
attempts to maintain the social structure of slavery.
2.
Browns Majority Opinion
a. Distinguishes RR Co v Brown: The majority easily
distinguishes this 1873 suit. The Court had held that
exclusion from a white car on the basis of race violated a
charter provision that prohibited exclusion of blacks from
passenger facilities used by whites. That case, however,
involved interpreting a federal statute rather than the
Constitution.
b.Discounts Thirteenth Amendment: Tourgee had argued
that segregation perpetuates a racial caste system, which
is assaultive, demeaning, and humiliating. The majority
does not adequately address this argument.
c. Fourteenth Amendment Excludes Social Rights: The
Court says the Fourteenth Amendment protects political
and civil, but not social, rights. The Court cites Roberts v
City of Boston for this proposition.
d.Reasonableness Measured with Reference to
Custom: The Court also states that the exercise of the
police power need only be reasonable and enacted in good
faith for the protection of the public good. The Court says it
is reasonable for the state to act with reference to the
established usages, customs, and traditions of the people.
3.
Harlans Dissent
a. Disputes State Interest: Harlan says that blacks and the
commingling of the two races do not really threaten whites.
He says that the state should handle any discomfort or
social unease after the fact.
b.Focus on Citizenship and Freedom: Harlan emphasizes
that the statute interferes with the freedom and rights of
citizenship possessed by former slaves.
c. Colorblind Constitution: Harlan admits that whites may
be the superior race socially, but he argues that the
Constitution must regard blacks and whites as equal.
d.Memorializes White Supremacy: The opinion appears
to reinforce white supremacy. Harlan simply argues that
noblesse oblige calls for integration. He does not justify it
on terms of equality.
4.Decision Legitimates Jim Crow: The Court was not ever
going to strike down the Louisiana ordinance. Instead, an 8-1
decision locked in an interpretation and definition of the
constitution that would endure and retard equal opportunity.
The Court provided legitimacy to Jim Crow.

MY NOTES
o *Panic of 1893 the worst depression the country had ever
experienced, also damaged any interest the country had in
protecting black rights
o Hard to imagine a less favorable tribunal than the one they
(Turgee defending Plessy) faced in Plessy
o What are the three worst mistakes Turgey makes in his
brief?
1. Uses rhetorical questions so kind of arguing
against himself
2. He seems to be trying to reargue the civil rights/
slaughterhouse cases- its not like the civil rights
cases were supportive so its weird that hes trying to
use them
3. THE REAL VICE OF PLESSY V FERGUSON from a
LEGAL STANDPOINT- p. 160- all that the 14th requires
is reasonability just has to be a reason, almost
sounds like ruffin
o 1895 Frederick Douglas dies and thus the most elegant
voice for blacks is dead
o *Look to Harlans Dissent in Plessy
o Cummings shows that the court was simply reflecting,
rather than inspiring or directing the attitudes of the day
o High schools were essentially non-existent for Blacks- as
late as 1916 Georgia, LA, MI, AL had ZERO

Cummings v. Board of Education

Cumming v Board of
Education (HARLAN
1898), p214 County
school board closed down
black high school in order
to use the facilities to
educate black
schoolchildren.

This is really a gender

discrimination case!
The school for white high
school boys is privately
managed, and thus those
parents could have a
claim of gender
discrimination.
- The remedy that could
be given to the black s
would not benefit them
Instead, would result
in closing the white
schools.
- Narrows the purview
of the 14th any
interference on the
part of Federal
authority with the
management of such
schools cannot be
-

HARLAN is mainly
looking to cut the losses
from Plessy NOTE that
he does not mention
customs and usages.
- HARLANs possible
motivation If you
force integration in the
South at this point, kill off
the common education
movement and blacks
will be worse off due to
white flight.
- Follows SHAW and
Roberts except does not
get to the issue of caste
and social stigma.
- This case was not
going to be successful
Only one new Justice
since Plessy.
-

justified except in the

case of a clear and
unmistakable
disregard of rights
secured by the supreme
law of the land. RHS
p222. This is the price
of unanimity.
- HARLAN does not feel
there was an abuse of
discretion here, instead
school board did what
they could with scarce
resources.
VIII.

Very formalistic stance

Markedly different
from his approach in
Plessy.
- Remember that
HARLANs big beef is
about elicit motivation.
-

Cumming v Board of Education (HARLAN 1898), p214 Ware School was

the only high school educating blacks. There were only 3 high schools
throughout the old Confederacy providing education to blacks in 1898.
a. ANALYSIS
1.
b. CLASS ANALYSIS
1. Argued by George Edmond (Senator and established lawyer,
committed Republican).
2. High school scheme White boys (Richmond Academy), white girls
(Tubman), black girls and boys (Ware). Richmond Academy was
privately managed but receiving some public funds. Three other
industrial training schools that were privately funded, educating blacks,
and run by churches (Haines, Walker, and Payne). Management and
funding structure of public school system in Richmond county is
different than now.
3. The school committee was established by act of Georgia legislature in
1872 (end of Reconstruction). Authorizes and requires the board to
create a common school (elementary) system. Does not require board
to create a high school system. Piggybacked on Richmond Academy to
educate white males, established and operated the Tubman school for
high school age white females. Until it was overwhelmed with
educating elementary blacks, operated Ware.
i) Critical tradeoff 300-400 black elementary age school children. 60
that were attending the Ware school for high school education. High
schools had small classes per year.
4. Claim Tax money collected from plaintiffs is being used to support a
white only high school system. Why did they try to enjoin the tax
collector rather than seeking mandamus to the school board to reopen
Ware or to close Tubman?
i) Problem here is the Richmond Academy because it is not under
school board control.
ii) The 3 others are not under school board control and charge less
than Ware does.
5. Georgia Constitution then requires racially segregated schools.
i) Superior Court judge grants relief. HUTCHINSON is astonished. S Ct of
Georgia reverses. Then goes to Supreme Court.
6. HARLAN 3 yrs after Plessy and the colorblind constitution.
Unanimous opinion rejecting EP challenge to a segregated school

system. Frames issue as a gender discrimination case and says that

the record does not present a racial discrimination case.
i) Real people being discriminated against by the public school board
are the taxpaying parents of the boys who are not getting a public
school education because Richmond is where white boys go and
black boys have nothing because Ware has been shut down.
ii) HARLAN is taking an entirely different approach to this case than he
advocated in Plessy 3 yrs ago. Takes a very formalistic stance.
iii) Scarce resources that have to be allocated, and in the allocation of
those resources, tradeoffs have to be made. The Supreme Court of
Georgia stated that 60 high school students or 400 little Negroes
(echoes RUFFIN).
iv) By focusing on the problem confronted by educating high school
boys through public education, he argues that discretion is
necessary. Similar to Roberts and SHAW, without taking the next
step without analyzing caste, racial discrimination, etc.
v) Then, what was HARLAN up to? Contradicts Plessy in that does not
look to customs and usages. No support in 1897 and 1898 for
desegregating schools when they are not enough schools to
desegregate.
vi) Wants to cut losses from Plessy.
vii) This opinion reaches only conclusion Court could possibly reach but
does so in a way that has enough circumlocution to it that you cant
pull out of it the sort of language that you can in Roberts about
racial segregation. Only a handful of Republicans as late as 1874
and 1875 who wanted to push for integrated public schools. Thus,
the desire for racially integrated schools was already dying 25
years before this opinion was announced. Though, may help to
explain HARLANs behavior. The more moderate Republicans, of
1874 and 1875, were ones who did not want to take the next step
wrt to public schools because if you force integration in the South
at this point, you will kill off the common education mvt and blacks
will be worse off than they are now (white flight). This may have
animated HARLAN.
viii) Theory that HARLAN comes up for the EPC Unless there is a
clear and unmistakable disregard for rights, then the fedl govt will
not interfere. p222 RHS. Price of unanimity.
(1) BUT then ask what constitutes a violation of rights.
(2) HUTCHINSON Cannot believe that the other 8 justices signed
off on this decision.
(3) Is this coherent? What would show hostility to the race? Modern
echo affirmative action.
ix) Shows that lodestar is still Roberts and that operation of schools
requires discretion. The disparity msut be so extraordinary htat no
constitutional ends can possibly be perpetuated. Yick Wo (the price
of Yick Wo).
x) Some of the attacks on the roots and vestiges of Jim Crow are
launched at a local level by lawyers who are used to drawing deeds
and preparing abstracts of titles, and constitutional litigation is
rare. Structure prayer and request for relief on grounds that are
analogous to litigation that they are more experienced with.
(1) One of the critical challenges to NAACP to continue with this
misshapen record.

C.

Educational Segregation
1.Education at Turn of the Century: The common school
movement was just taking hold in the South, and the idea of
educating blacks was controversial. Tennessee, Kentucky, and
Missouri were the first states to establish black schools and
taxed blacks to pay for the schools. By 1915, the southern
states were spending much more on white education than
black education. The black education that existed focused on
industrial training rather than high schools.

2.Cumming v Richmond Co Board (1899): Richmond had

three high schools: Richmond Academy operated as a private
high school for white boys; Tubman operated as a public high
school for white girls; and Ware operated as a public high
school for black boys and girls. Three privately operated
church, industrial schools educated blacks. The Board shut
down Ware High School to fund primary education for blacks.
a. Statutory Duty to Provide Primary Education: State
law required a common school system for primary
education but not high school.
b.Plaintiffs Wanted to Block Funding for Tubman: The
plaintiffs sought to enjoin the tax collector from collecting
taxes for the Richmond Academy and Tubman.
c. Harlans Opinion for Unanimous Court
i. Gender Discrimination Case: Harlan characterizes it
as a gender discrimination case and argues the racial
issue is not before the court. Harlan says the taxpaying
parents of boys are being denied an education because
the state, by keeping Tubman open, is funding the
education of girls and not boys.
ii. Celebrates Local Discretion: Harlan argues that the
school board operates in a world of scarce resources,
and the board must make funding choices between
primary and high school education. He skirts the equal
resources and segregation issues.
iii.
Brackets Issue of Requiring Black School:
Harlan notes that if the plaintiffs had sought a court
order establishing a black school, and there was
evidence that the local school board had acted out of
racial animus, then the case might present a different
issue.
MY NOTES
o Litigation brought by well-to-do blacks in Augusta who saw
their position threatened, they appealed to Edmunds, who

vacationed there, and he was so outraged by the school

committee that he agreed to take the case for free
o So the case is a double fluke: 1. Because there are next to
no black high schools in the south, and 2. Because if it had
been handled by local counsel as opposed to Edmunds it
wouldnt have gone anywhere, and 3. Because at the trial
stage the Ps got some relief
o Edmunds obviously came to the case with baggage, as did
Harland (Harlan had opposed emancipation, 13th, and 14th,
then suddenly was a champion for blacks, and when he
campaigned for governor suddenly he was a champion for
blacks, though he lost.
o Facts:
There were only 60 students in the high school, so
decided to turn it into an elementary school instead,
and then kept taxing the black families even though
their children could only go to some of the schools
So services were decreased but taxes stayed the
same, which really got under their skin
Edmunds is attempting to use Strauder and Yick Wothis is one of the first times we see a lot of reliance
on precedent
Get some relief at trial but then goes up to GA SC
and reversed, big time
Giles and Harris
Suit brought against the grandfather clause- any person
registered before blank would thereafter be registered for life,
and anyone not registered at that time would have to pass a
literacy test
5k people sued to declare the AL voting law invalid and for relief
argued that he should be enrolled, as should every other black
citizen
SC denied relief on the ground that there was no jurisdictionopinion by HOLMES in 6-3 court
Court does eventually invalidate the clause, 12 years later
Lochner v. NY famously holds that the due process clause protect
freedom of contract and thus cant limit the hours of bakers
Berea College
New court- harlans last major opinion
By 1900 there were only 2 private integrated colleges in the
south- Berea had been formed as a predominantly black school,
but by litigation it was 80% white and had recently fired only
black faculty, segregated dorms and dining halls, and barred
interracial dating

Berea College v. Kentucky, 211 U.S. 45 (1908) was a significant case argued before
the United States Supreme Court that upheld the rights of states to prohibit private
educational institutions chartered as corporations from admitting
both black andwhite students. Like the related Plessy v. Ferguson 163 U.S. 537 (1896)
case, it was also marked by a strongly worded dissent by John Marshall Harlan.

TheSupremeCourtruledinfavorofthestate.JusticeBrewerdeliveredthemainopinionthatas
thecorporationinquestionwascharteredunderthelawsofthestateofKentucky,itwaswithin
therightsofthestatetomakesuchprohibitiontothecollege.Whilethestatemightnothavethe
righttothusrestricttheactionsofprivateindividuals,thatportionofthelawwasaseparateissue,
andnotunderdirectconsideration;andthattherightsandrestrictionsonindividualswerenot
necessarilythesameasforcorporations.

HarlanDissentImoftheopinionthatthisisanarbitraryinfringementontherightsofliberty
andproperty.

JusticeHarlanvigorouslydissented,arguingthattheformaltitleofthelaw,"AnActtoProhibit
WhiteandColoredPersonsfromAttendingtheSameSchool,"andthenatureofitsprovisions
madeclearthatnosuchdistinctionbetweenindividualandcorporaterestrictionexistedinthe
intentionsofthelegislators,andthattheseparateconsiderationofthoseaspectsofthelawwasnot
appropriate.Harlanfurthermoredeclared,"Thecapacitytoimpartinstructiontoothersisgivenby
theAlmightyforbeneficentpurposesanditsusemaynotbeforbiddenorinterferedwithby
Governmentcertainlynot,unlesssuchinstructionis,initsnature,harmfultothepublicmorals
orimperilsthepublicsafety.Therighttoimpartinstruction,harmlessinitselforbeneficialto
thosewhoreceiveit,isasubstantialrightofpropertyespecially,wheretheservicesarerendered
forcompensation.Butevenifsuchrightbenotstrictlyapropertyright,itis,beyondquestion,part
ofone'slibertyasguaranteedagainsthostilestateactionbytheConstitutionoftheUnitedStates."

[edit]Subsequent developments

Theresultoftherulingwastoallowstatestoprohibitintegratedschoolinginprivateinstitutions,
aswellasinpublicschools.KentuckyeventuallyamendedtheDayLawin1950toallow
voluntaryintegration,shortlypriortotheBrownv.BoardofEducationcasewhichstruck
downracialsegregation.

 [edit]
United States v. Shipp
Background
Lynchings were the
primary concern of the
NAACP at this time.
NAACP worked for 30
years to get lynching to
be a federal crime but
their attempts were
unsuccessful. Main
problem was establishing
state action.
- Lynchings at this time
were very violent and
highly publicized.
- Court felt that they
needed to create a
legal structure that
could maintain the
social structure of Jim
Crow But the question
is to what extent did they
overestimate the
importance of the legal
structure in keeping the
social structure from
collapse?
United States v Shipp (1906) Now the biggest threat to blacks is
lynching.
a. CLASS ANALYSIS
1. NAACP is formed in 1910 in order to do something about lynching.
i) Usual ground for lynching was murder. Most number of lynchings in
any one state during this period is MS (573). 532 blacks, 41 whites.
Most whites in any one state is in TX (143).
ii) Wasnt simply the violation of DP that HOLMES gives you. Violent,
highly publicized. Particularly true in cases involving accusations of
rape (mutilation).
iii) NAACP worked for 30 yrs to make lynching a fedl crime, but they
never succeeded.
iv) Bill was tricky because their had to be state action. liability on the
part of sheriffs, marshals, policemen who knowingly and
intentionally to allow the lynchings to occur. Can this kind of
inaction be penalized constitutionally? ROOSEVELT not ready to
make a stand on lynching.
2. Shipp was convicted and the court deliberated for 5 months about
what his penalty should be for intent. HOLMES who was not a ravid
interventionist argued that contempt of court was so egregious that
one year in jail was necessary. FULLER knew that he could not get the
unanimous court for that position, and instead compromised 60 days in
jail. Met by a brass band and 10,000 wellwishers when he got out of
jail.

United States v Shipp

(HOLMES 1906), p223
African Americans
criminal proceedings were
stayed to give him time to
make his appeal of the
highly suspect nature of
his trial. Mob led by
sheriff lynched the African
American.

IX.

is Chattanooga
sheriff.
- Only time the Court
has ever held a
criminal trial.
- The contempt of court
was so egregious in this
case that they found
against the s.
-

X.

3. Court needs to create a legal structure that can maintain the social
structure of Jim Crow. To what extent did they overestimate the
importance of the legal regime? They thought that if they took the
legal legitimacy of Jim Crow, the structure would collapse.
III. Criminal Rights Cases

A.

Lynching

1.Background: Lynching was seen as the most pressing black

political issue. Between 1882 and 1904, there were over 4000
lynchings, The high water mark was between 1890 and 1905.
Lyinching violated due process and the standing order of law.
It was violent and well-publicized. The usual ground was
murder.
2.US v Shipp (1906): The sheriff permitted a black prisoner to
be taken out and hung in violation of a habeas order issued
by the US Supreme Court. The Supreme Court held a trial for
criminal contempt, convicted Shipp, and sentenced him to 60
days in jail.
McCabe v. Atchinson
McCabe v Atchison,
Topeka, and Santa Fe
Railway Company
(HUGHES 1914), p231
Luxury cars for African
Americans. First full
blow engagement with
state imposed
segregation statute
that is based on equal
protection grounds and
addresses it as such.

Asserts that the right

to equal protection is a
personal right and thus
the low/no demand for
luxury accommodations
by African Americans was
not a legitimate basis for
railways not to provide
this service.
- Introduces the
substantial equality
test to replace the Plessy
reasonableness test.
- Although the Court
ultimately denies the
relief, says that if such a
need ever came up, RRs
would be obliged to
provide substantially
equal accommodations.
- Turns OKs
argument on its side
and says that OKs
argument (lack of
demand) implies that
discrimination is
occurring.
- Sends signal that
Court is going to take
the equality side of
separate but equal
seriously.
-

One big problem for

the is that no African
American had ever
requested luxury
accommodations by
the time the suit is
brought. THUS, where is
the actual injury?
- Sounds like RUFFIN
Cries crocodile tears
but ultimately
dismisses the case!
- NOTE that the other
Justices concur in the
result but not in the
opinion.
- HUGHES does not
mention Plessy at all
in the opinion!
- This opinion is a
bright beacon for the
NAACP.
- WILSON federalizes
Jim Crow in 191415.
-

McCabe manifests the

ongoing debate about
the scope of the police
power.

X.

McCabe v Atchison, Topeka, and Santa Fe Railway Company (1914),

p231 Began as a curiosity, turned into a seminal case.
a. CLASS ANALYSIS
1. Composition of the Court Chief Justice White, Justice McKenna
(California, replaced Justice Field), Justice Holmes (Roosevelt
appointee), Justice Day (Taft), Justice Hughes (Taft, most distinguished
public figure on the Court), Justice Mandeveder (Taft), Justice Lamar
(Taft), Justice Pittney (Taft), Justice McReynolds (Wilson). Dominated by
Republicans.
2. Court has been turning back one suit after another challenging racial
segregation. Reason is that more and more states are passing
segregation laws, or are beginning to enforce them. Oklahoma is the
last one in line as of 1914, and it is brought by a group of local lawyers.
Case of bad lawyering (fortunately for the NAACP because otherwise
would not be unanimous).
3. Dissenting opinion in 8th Circuit written by Judge Sanborn Very
strong and it is on the basis of that opinion that NAACP was willing to
print the record and file appeal with Supreme Court. BUT when it was
filed, the NAACP pulled its money because he thought it was a loser.
4. HUGHES Shows us what can be done in a losing case.
5. The way that OK argued its case hurt it emotionally and legally.
i) OK Black plaintiffs in the case were spoilsports who did not like the
passage of the statute as a political matter and were whining about
it.
ii) Plaintiffs Luxury car proviso was passed with invidious motive to
target one group when other groups were more deserving of
targeting.
iii) What does the Equal Protection clause require?
(1) BROWN in Plessy Reasonableness. But does not require equal
with respect to separate, instead this was a statutory
requirement. As time wore on at beginning of 20th c, why didnt
more and more states simply drop the equality provisions of
their statutes if they knew that they were vulnerable?
(2) HARLAN in Plessy and in Cumming v Board of Education
Concerned with reasonability and his concern stems from
motivation. Worried about elicit motivation. Is present in Plessy
but not in Cumming.
(3) On top of these two conceptions is an ongoing debate that is
manifested in McCabe that began in Yick Wo Scope of the
police power, and to what extent can the state regulate groups
in order to ensure social comfort.
(4) EPSTEIN The vice of justice PECKHAMs opinion in Lochner is
not the subjectivity with which he found the right to freedom of
contract, but instead the problem is that he took too large of a
view of the police power. Instead, should have argued that this
was a choice of the individual and the police power does not
extend that far. Same can be said of Plessy and Buchanan.
Instead police power only extends to nuisances (issues of public
health). Otherwise it is too easy for states to intervene in the
private affairs of citizens.
(5) Assumption is that essentially whatever the Republic (state)
says is a threat to the morals, health of the community will be
acknowledged as such by the Supreme Court. Origin of
substantive due process concept.

XI.

6. What emerges from McCabe is the first full blown engagement of the
Court with a state imposed segregation statute that is based on equal
protection grounds and addressed as such. Difference in issue in
McCabe as opposed to Plessy.
i) McCabe Involves luxury cars rather than standard coach cars.
(1) Argument that OK makes is that the statute requires separate
but equal, but when it comes to luxury cars, theres so little
demand by African Americans such that when that rare demand
comes, it would be inconvenient to require railways to have
such cars.
(2) NOTE that no African American had never asked for such a car.
This is the evidence of the bad lawyering (attacked statute
before it went into effect). Mere allegation that African
Americans did want this.
(3) Lower court blows past this standing issue and instead goes
straight to the merits.
(4) HUGHES Starts off talking about merits, and then like RUFFIN
with crocodile tears, dismisses the case.
(5) NOTE that the Justices concur in the result but not in the
opinion.
(6) The remarkable dicta about the merits is remarkable because
seems to say that if the lawyering had been done right, they
would have won the case. NOTE that HUGHES does not mention
Plessy at all in the opinion!!!
(a) HUGHES gets away with this by recognizing that equal
protection protects to individual rights and not group rights.
(b) Substantial equality test replaces the reasonableness test
Suggestion in this opinion that rhetoric allows by inference
is that accommodations need not be equal, but need be
pretty damn close.
(c) Feud with HOLMES Initially planned a dissenting opinion
in this case because thought HUGHES had gone too far in
the substantial equality argument.
(d) HOLMESs concurrence Argued that HUGHES was looking
for an exacting standard of equality.
(e) Basically, HUGHES turns OKs argument on its side and says
that OKs argument (not a lot of demand for the luxuries)
implies that discrimination is occurring.
(f) Sends signal that the Court will take the equality side of the
separate but equal doctrine seriously.
(i)
Bright beacon for the NAACP and that their litigation
strategy has some hope (political strategy had already
been abandoned).
(ii)
WILSON federalizes Jim Crow in 19141915.
Between McCabe and Buchanan v Warley Birth of a Nation. Breakthrough
film that use of the scope of filming, nature of the scenes, how the story was
being told. Changes the possibilities of filmmaking for generations.
a. Problem is that the story told is repatious blacks during Reconstruction
who lust for white women in the South and is drunk. KKK is only salvation
for the South.
b. Adaption of book The Klansmen. In NYC alone showed that it sold 850,000
tickets.
c. Reason for its success was that it received quasi endorsement of President
(screened at White House).

MY NOTES
o What

does hughes do that is so clever?

1. He notes that a constitutional right isnt based
on how many people are harmed- he changed the
axis- were talking about racial discrimination
against INDIVIDUALS- changing the focus at the
outset
2. It moves away from reasonableness
arguments and arguments about custom etc o
by the way- what he requires is what the LA
statute, but not plessy, requried, and that is
SEPARATE BUT EQUAL- which is what holmes
objects to
Hughes is clearly saying if you want separate but
equal, its got to be EQUAL, whereas before it had
always been substnatial equality
BUT McCabe isnt law because theres no standing
here
BIRTH OF A NATION
Horrible KKK movie about rape that comes in between
McCabe and Buchannan and really sets back everyone
because its so famous and its the only people learn about
different races
BUCHANAN V. WARLEY
Buchanan v Warley
(DAY 1917), p239
White homeowner wishes
to sell his property to a
black buyer despite
zoning ordinances that
prohibit this.

Actual injury is found

here because the s
right to sell his property
has been affected.
- Note that this is a
strong basis for finding
violation of equal
protection because at
this point equality is
focused on property
rights. (This is what the
various Civil Rights Acts
focused on).
- Police power cannot
run counter to the
limitations of the federal
Constitution. LHS p246.
- That there exits a
serious and difficult
problem arising from a
feeling of racial hostility
which the law is
powerless to control, and
to which it must be give
a measure of
-

DAYs opinion is
sloppily drafted.
- This case was
planned and litigated
perfectly. Shows the
NAACP what it can do
if it carefully
strategizes.
- Real importance
White desire to
segregate moves from
zoning ordinances to
private covenants (not
struck down until Shelley
v Kraemer).
- Message
Questions of
substantiality of
equality and
deprivation of rights
can be litigated and
resolved under the
constitutional schema
the Court is prepared
to create and enforce.
-

consideration, may be
freely admitted. But its
solution cannot be
promoted by depriving
citizens of their
constitutional rights
and privileges. P249.

XII.

HOLMES (dissenting)
Never filed.
- Argues that Court
should not be in the
business of resolving set
up cases (BUT shouldnt
he notice that McCabe;
Plessy; Dred Scott are all
set up cases?)
- Strict view of what the
cost to the is.
Buchanan v Warley (1917), p239
a. CLASS ANALYSIS
1. Importance is underscored when compared to McCabe Planned and
litigated perfectly.
i) White plaintiff.
ii) Pitch the focus on the case on the deprivation of a property right.
The most conservative and unassailed view of what equal
protection stands for.
iii) Wants to make sure that black buyer wants to buy it to live in it in
order to trigger the ordinance. Court falls for it hook, line, and
sinker.
2. DAYs opinion is sloppily drafted.
3. Real importance is not that it struck down segregation ordinances, but
instead that white desire to segregate moved from zoning ordinances
to private covenants that are not struck down until 1948 (Shelley v
Kraemer and Hurd v Hodge). Shows that careful litigation strategy can
win for the NAACP and the NAACP triples its membership in one year.
4. By the late 1920s Movement to get money from Progressives to
engage in direct frontal attack on Jim Crow.
5. DISSENT/HOLMES Never filed.
i) This is a set up case and we should not resolve set up cases.
McCabe, Plessy, Dred Scott. This is probably something he would
say in front of his colleagues.
ii) Strict view of what the cost to the plaintiff is.
6. As soon as race enters the picture, technicality flies out the door.
7. Remember 14th at least stands for the rights in Civil Rights Act of
1866.
8. Supreme Court is saying that these cases of question of substantiality
of equality and deprivation of rights can be litigated and resolved
under the constitutional schema we are prepared to create and
enforced.
9. What happens is that the charge (NAACP) is delayed because these
cases improve economic dislocation and changes behavior and forces
reorientation of strategy. WWII also intervenes.

XIII.

Cases for Friday Gong Lum raises question of if Chinese girl can be
classified as colored. In these cases, the important aspect is the rhetoric.
Patterns of Jim Crow justice.
a. Note the evidentiary tools.
b. What moved the Court is its disgust.
c. Court is saying things that otherwise would have been inconceivable at the
turn of the century.
d. Must note the changes that occur between the seminal cases (e.g.,
between Brown v Board of Education and Plessy v Ferguson.

MY NOTES
o Buchannan is clever because picked white Ps property
rights- capitalizes on Lochner and Yick Wo
o Clearly this ordinance was unneeded (because no one
was going to sell their home to a black person
anyways), so they were only passing these ordinances
for votes- so that these politicians could brand
themselves as anti-black
o What did you think of Justice Holmes circulated but
unfiled opinion on p. 327
o The threat of violence was so common and pervasive
that this ordinance was just window dressing

Great achievement of McCabe is that equality can be

measured. Moore v Dempsey almost propels the NAACP
into court because of the scale and the notoriety of what
happened.

The Lynching Material (my notes)

NAACP was established to bring attention to/ stop the

lynchings that were happening
3 Disturbing Features of Lynching in America
o 1. It was spectacle. Picnics and BBQs were held in
conjunction with the murder of another human being.
o 2. Second evil is the additional brutality. In most cases it
wasnt enough to just lynch someone, once the victim
was dead his body was frequently mutilated,
dismembered, shot
o 3. Third disturbing feature is the additional spectaclepostcards being made to show your friends what was
being done in the south to black miscreants.
Seems to concentrate from 1908-1930- spike right before and
right after wwi

Moore v. Dempsey
Moore v Dempsey
(HOLMES 1922), p252

Based on Frank v
Mangum If a trial is

Background These
cases start to attract

Held that the trial of 5

African Americans under
the threat of mob
lynchings deprived them
of their constitutional
rights to due process.

controlled by public
passions and is a farce,
then deprives s of
constitutional rights.
- Big obstacle for
HOLMES granting habeas
corpus here relying on
Frank is that cannot get
habeas corpus relief if
complaining about
evidentiary rules or trial
problems. If you have
had a trial and there
have been corrective
processes, then due
process requirements
have been fulfilled.
- NOTE that it is only
the essence of due
process that is
required.
- HOLMES gets out of
this two ways 1) Finds
that if the trial was a
farce then jurisdiction
was ousted. If the trial is
so mob dominated then
it is as if nothing
happened and therefore
prisoners are being
unlawfully held. 2)
Neither lower court
provided adequate
correction. Not clear if he
is overruling Frank here.

international attention as
to the carriage of
Southern justice.
- Local officials had to
try and show the
integrity of the system.
- NOTE the sarcasm
that HOLMES has for the
justice that was carried
out by the lower court.
- McREYNOLDS begins
by questioning the
reputability and the
credibility of the
witnesses.
- NOTE that
McREYNOLDS dissent is
cut and pasted from
Frank. Thus, not very
convincing.

McREYNOLDS dissent
This is Frank (lower court
did provide corrective
processes and thats all
that needs to be shown).
Fear of opening the
floodgates.
XIV.

Moore v Dempsey (HOLMES 1922), p252 Held that the trial of five
African Americans under the threat of mob lynchings deprived them of their
constitutional rights to due process.
a. ANALYSIS
1. Mob would have lynched the defendants but the localized committee
investigating the matter promised justice.
2. Trial was 45 minutes long with no witnesses for the defendants and the
jury was all white.
3. Political upheaval and public pressure forced the Governor to set an
execution date.

4. Under Frank v Mangum if a trial is dominated by a mob then there is

no due process.
b. DISSENT/McREYNOLDS
1. First questions the reputability and credibility of the witnesses.
2. Fear of opening the floodgates if we allow these s to appeal their
state case in a federal court. Need to recognize the gravity of this case.
3. Frank v Mangum Need to be reminded of the duty of a federal
court in reviewing a writ of habeas corpus. I.e., the complainant must
show that he is being held in custody in violation of the Constitution.
Must note that mere errors in points of law committed by a
criminal court in the exercise of its jurisdiction over a case
properly subject to its cognizance cannot be reviewed by
habeas corpus.
i) The required elements of a criminal case to fulfill due process
requirements Notice, hearing, opportunity to be heard, court is of
competent jurisdiction, established modes of procedure.
ii) must show that the court did not have jurisdiction to begin with or
lost it during the course of the proceedings.
4. Must note that the federal court should afford more deference to the
state court as a matter of right and of law.
5. Mob domination can deprive a court of jurisdiction, thus
depriving the of due process.
i) However, the state may engage in corrective processes in
order to remedy this problem.
ii) In this case, moved for a new trial. Once it was denied, the
appealed the case whereby the court affirmed the decision below.
6. Elaine Riot Met with nothing less than an honest effort to reconcile
the situation.
7. Notes the long delay between the initial sentence and the current case.
8. Should not afford petitioners extra sympathy because they are poor,
black, and ignorant.
c. CLASS ANALYSIS
1. Level of generality Whether trials ensuing from mob dominance
follow due process requirements.
2. These cases cause international attention, especially Scottsboro Boys
Never before has Southern justice been subject to such public
scrutiny.
3. Meeting in the church Meeting of union organizers (returning black
soldiers from WWI) who wanted to organize the sharecroppers in the
area to negotiate in a formal union or at least organized way for formal
terms with respect to the proceeds of their farms.
i) Idea of blacks organizing over economic terms and asserting
themselves against white landlords is very odd. Would be even
weirder if they were Catholics (but they are all Baptists).
ii) Shooting of white man and the circumstances are quite murky.
iii) Violence that ensues kills Clinton Lee and 5 black men are arrested.
iv) Whites in the town threaten to lynch him and the US troops are
waiting outside of the jail. Promised that a Committee of Seven will
execute the law.
v) The 5 who are in jail go to trial 45 minutes.
vi) 2 years later they file for writ of habeas corpus which is dismissed
by state court.
vii) By the end of the affray, there were 12 blacks on death row as a
result of all the prosecutions. 67 were serving life terms.

viii) Became cause celebre because the whites involved and the
involvement of the National Guard, and brevity of the trial.
(1) Newspapers evaluating criminal justice system Just as racist
as the other whites. Round of self-congratulation in the local
papers that there was no lynching.
(2) Same thing happens in Scottsboro Boys cases. Local officials
performed admirably in assuring both the safety of the
prisoners and the integrity of the trial system.
(3) Impossible to imagine how biased the Southern criminal justice
system was.
(4) 499 Cases from Alabama and MS with closing arguments
that should be hung and be hung in a lawful way because
they killed a white mans black man.
(5) Principal cause of lynching Perpetuation, particularly by black
men, of the hideous crime of rape.
4. Problem for the majority in granting habeas corpus Frank v
Mangum which involved a Jew in Georgia who had been accused of
rape and suffered a mob dominated trial who sought habeas corpus
and who was denied. The ground of denial in Frank that HOLMES must
confront in Moore is Frank says that you cannot get habeas corpus
relief if complaining about evidentiary rules or trial problems. If you
have had a trial and there have been corrective processes, then due
process requirements have been fulfilled.
i) Remember that in Hurtado said that Due Process Clause did not
require grand jury indictments.
ii) Due Process Clause of 14th does not require states to prohibit selfincrimination.
iii) It is only the essence of due process that is required.
iv) NOTE that HARLAN dissented in both cases.
v) Frank reaffirmed trend of judicial review.
vi) HOLMES finds 2 ways out
(1) Must have a fairly precise legal ground that grants relief in
cases such as this one but does not turn the federal writ of
habeas corpus and does not turn federal courts into parallel
court for appealing all state criminal convictions. Similar to
Bush v Gore in its limited holding.
(a) If the lower courts trial was a farce then jurisdiction was
ousted.
(b) If its so mob dominated so that nothing that goes on can be
taken seriously, then its as if nothing happened and
therefore prisoners are being held unlawfully.
(2) Correction p254 Neither lower court provided adequate
correction. Does he overrule Frank here?
(a) Position in Frank was that it was a farce.
(b) Between that and the failure of the corrective process, the
Court would be inclined to read Moore in subsequent cases
as saying that
(3) McREYNOLDS dissent This is Frank. There was a corrective
process here and we do not need to go further. If we do this, we
will do nothing but this. Basically saying that this is as good as
the process will get. Must expect this degree of tumult to occur.
vii) Mid 1950s Great controversy of WARREN court is whether to
have federal courts review state court criminal proceedings. One of
the first watershed opinions of BRENNAN.

(1) As a legal and political matter, this is what makes these

opinions here so remarkable.

B.

Extending Habeas ReviewMoore v Dempsey (1923)

1.Facts: Union organizers were meeting in a church with
sharecroppers to negotiate for better terms. Some whites
shoot into the church and a firefight breaks out. A white man
is killed. Five black men go to jail, and a lynch mob is assured
the black men will be punished. By the end of the affray,
twelve blacks are on death row and sixty-seven are serving
life sentences.
2.Limited Availability of Habeas Review: The problem for
the majority is that the Court previously held in Frank that
habeas corpus relief was unavailable if a trial has been held
and the state provided appellate review.
3.Holmess Justifications for Review
a. Sham TrialNo Jurisdiction: Holmes argues that the
trial was a farce, so the court did not really have
jurisdiction. That would justify collateral review, according
to Holmes.
b.Corrective Process Insufficient: On another reading of
the opinion., Holmes could be saying the overall process
was insufficient because neither the trial nor appellate
court adequately corrected for the errors below.
c. McReynoldss Dissent: McReynolds dissents because the
habeas petition was based solely on the blacks testimony.
He thinks this case is the same as Frank and reviewing
them will send the federal courts down a path that never
ends.