Been in the Storm So Long (62 page)

N
OTHING SEEMED BETTER DESIGNED
to drive blacks into total exasperation and ultimately into lawlessness than the law itself. In the experience of many freedmen at least, the differences between the law and lawlessness often became so blurred as to be indistinct. Not surprisingly, the legal system and its enforcement agents reflected, as they always had, the domination and the will of the white man. Few voiced that conviction more eloquently than an illiterate rural delegate to a freedmen’s convention in Raleigh, North Carolina. Although confessing his “ignorance” and lack of skill in oratory, he insisted upon sharing his observations with the other delegates.

Upon examining the quality of postwar justice, some blacks compared it unfavorably to what they had known as slaves. The comparison revealed far more about the bleakness of the present than the brightness of the past. Although the slave codes had imposed penalties on slave owners who failed to treat their slaves humanely or who killed them maliciously, the protection such provisions afforded black men and women had been minimal, largely because they could neither file a formal complaint nor testify against a white person; moreover, the need to maintain racial unity and control made white witnesses reluctant to testify and white juries even more reluctant to convict.
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While blacks had been slaves, the self-interest, if not the paternal instincts, of the master had often prompted his intervention to protect his property. “Our former masters,” a group of Richmond blacks declared after the war, “did once protect us from the tyrant that now rules in the Mayor’s Court, and those who sit in the Hustings Court and those in the jury box.
because we were their property.” This same point was made repeatedly by former slaveholders, as if to warn their now emancipated slaves of the fragile nature of their freedom and to impress upon them their state of dependency. Before emancipation, an Alabama judge observed in 1865, “the wrong done by a third party to a negro, was a wrong done to the owner or master, and the negro was merged in the Master, the black man in the white man—and the controversy was really between the two, although a third person was involved. The white man, recognized as master, felt a pride in the very dependence of the slave—the slave must appear thro’ the master in court, in all contracts. He could not speak, act, or be spoken to or acted with, except by the consent, express or implied, of the owner.” A Georgia newspaper editor made the point even more precisely: “when detected in his frequent delinquencies, Sambo will now have no ‘maussa’ to step in between him and danger.”
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But in some crucial respects emancipation made little difference. Whether dealing with slaves or freedmen, southern courts and jurists seldom wavered from the urgent need to solidify white supremacy, ensure proper discipline in blacks, and punish severely those who violated the racial code. In his charge to a postwar jury, a South Carolina judge managed to combine these imperatives with the old paternalism.

Whatever the magnanimous spirit in which the judge made his charge, the judicial system rarely reflected it. Even the most conscientious jurists, who were able to reconcile their belief in white supremacy with a commitment to equal justice and protection for blacks, often had to confess their helplessness. Julius J. Fleming, for example, a magistrate and lawyer in Sumter, South Carolina, conceded that despite his best efforts, wrongs were inflicted upon freedmen “with absolute impunity,” few of them had the funds to meet litigation costs, and many of them were swindled out of legal claims to wages because they could not post the necessary bond as plaintiffs. “It is a stupendous wrong to emancipate & then desert them,” Fleming concluded. “The master’s interest was once their protection—but that is now gone. My interest in their behalf has not added to my business or popularity—but I care not.”
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Until the civil courts were thought to be ready to protect the legal rights of the freedmen, the provost courts (operating under military authority)
and the Freedmen’s Bureau dispensed justice in the postwar South. While in many ways fairer toward the freedmen, the quality of that justice varied according to the competence and commitment of the particular officers and depended on their success in securing the cooperation of the Union Army to enforce their decisions. Like many such officials, John De Forest, a Freedmen’s Bureau agent in South Carolina, thought his primary obligation was to teach the whites to accord equal protection under the law to the freed slaves. “I so interpreted my orders as to believe that my first and great duty lay in raising the blacks and restoring the whites of my district to a confidence in civil law.” When Cato Allums, a freedman, shot and killed a white man in self-defense, De Forest permitted civil authorities to handle the case. But he followed their actions carefully, warned them that they were on trial as much as the freedman, and attempted in every way to protect Allums’ rights when he was indicted for murder. The refusal of several white witnesses to testify ultimately resulted in the dismissal of the indictment. De Forest hailed the outcome as “a triumph of justice, public conscience, and public sense” and a vindication of his decision to allow local whites to resume judicial power. Although grateful for his release, Allums resented his lengthy confinement and the expenses he incurred in his defense. Unlike De Forest, he deemed the outcome less than a triumph of white justice. “I never was treated like most niggers was,” he told De Forest. “Mighty few white men has tried to ride over Cato.” By 1866, in most sections of the South, civil courts had resumed their jurisdiction, although the Freedmen’s Bureau reserved the right to intervene if it thought blacks had been denied impartial justice. That it seldom did so revealed more about the predilections of Bureau officers than the impartiality of civil justice.
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After their initial experiences with the judicial system, many freedmen found little reason to place any confidence in it. The laws discriminated against them, the courts upheld a double standard of justice, and the police acted as the enforcers. Arrested often for the most trivial offenses (for which whites would rarely be apprehended), blacks found themselves in jail for months without a trial, denied the right to competent counsel (lawyers feared losing their white clients), charged exorbitant legal fees, and sentenced as much for their race as for the nature of their crime.
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Upon entering the town of Selma, Alabama, a northern journalist came across a gang of black prisoners at work in the street, each of them linked to the other by a long chain. Anxious to learn what they had done to deserve such “ignominious” punishment, he obtained a list of their crimes, the most serious of which was “using abusive language towards a white man”; the other offenses included disorderly conduct, vagrancy, petty theft, and selling farm produce within the town limits (the offender had been unable to pay his fine of twenty dollars). “But it was a singular fact,” the visitor learned, “that no white men were ever sentenced to the chaingang,—being, I suppose, all virtuous.” The all-black chain gang, like the two Bibles required in some courtrooms, one for white witnesses and the
other for black witnesses, symbolized all too graphically the kind of justice many freedmen had come to expect.
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If only because they feared Federal intervention, some courts made scrupulous attempts to guard the rights of accused blacks. But the infrequency with which whites were apprehended, tried, and convicted of crimes against freedmen made a mockery of equal justice and encouraged still more white violence. At nearly every step in the judicial process, the victims of such violence found themselves frustrated, even in swearing out a complaint against a white man.

To lodge a complaint against a white person was also to invite harassment and sometimes violence. “The idea of a
nigger
having the power of bringing a
white man
before a tribunal!” a Georgian exclaimed. “The Southern people a’n’t going to stand that.” Moreover, as a Freedmen’s Bureau officer in Alabama observed, anyone making a complaint had to provide bail to appear as a witness or be kept in jail until the trial. “As no white man will give bail for a negro to appear as a witness against a white man, and as they don’t fancy lying perhaps weeks in jail in order to be heard, they prefer to suffer wrong rather than seek redress.”
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Even when the names of the offenders were known, whites could be expected to abide by a “gentlemen’s agreement” not to cooperate with the authorities in apprehending them, and the police were often less than eager to pursue the matter and in some instances conspired to effect the escape of a white prisoner accused of a serious crime. When murders were committed, neighbors and friends would invariably hide the offenders, and few men possessed the necessary courage to expose the guilty parties lest they share the same fate. Without military protection for himself and the witnesses, no freedman could be expected to help prosecute a white man for assault, murder, or any other crime. That was the conclusion reached by a Freedmen’s Bureau officer in Grenada, Mississippi. “As against freedmen the majority of whites are a unit and even honorable men, otherwise, will vouch for persons of, to say the least, doubtful character as ‘high social Gentlemen.’ ”
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If a white man should be apprehended and tried for offenses committed against freedmen, the chances of convicting him were slight so long as whites dominated the juries. And if convicted, the penalties assessed against him were likely to be far less than the gravity of the crime warranted or that would have been imposed upon a black person. The double standard of white justice was nowhere clearer, in fact, than in the disparate
punishments meted out to whites and blacks convicted of similar crimes. In Marion County, Florida, for example, James J. Denton, after being convicted of the slaying of a black man, had to pay a fine of $250 and serve one minute in prison; most blacks found guilty of petty theft could expect a more severe sentence. (In nearby Lake City, two blacks convicted of stealing several boxes of goods from a railroad company were fined $500; unable to pay the fine, their services were sold to the highest bidder.) No doubt many whites still needed to learn that killing a black person amounted to murder. But a Freedmen’s Bureau officer in Georgia despaired of any early or mass conversion to that principle. “The best men in the State admit that no jury would convict a white man for killing a freedman, or fail to hang a negro who had killed a white man in self-defence.” The need to demonstrate to the satisfaction of a white jury that the defendant had been “animated by the intention to kill” complicated the conviction and punishment of any white person for murder, as did the underlying principle of slave law that a master’s severe chastisement of his blacks did not justify resistance. As the Georgia Supreme Court had once ruled, even if the owner should “exceed the bounds of reason … in his chastisement, the slave must submit … unless the attack … be calculated to produce death.”
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Rather than press for a diminution or increase in the penalties assessed by the courts, blacks simply insisted that the punishment fit the crime and be applied equally to both races. In New Orleans, the local criminal court sentenced a white person convicted of theft (a pair of shoes valued at $13) to one day in prison; the same court on the same day committed a black person found guilty of theft (shirts and petticoats valued at $18) to three months in prison—or, as the local black newspaper noted, “three days for the stealing, and eighty-seven days for being colored.” The disparity in punishments, however, was not confined to the regular courts; in many regions, the provost marshals adopted the same double standard. In Salisbury, North Carolina, a white woman killed a black mother who had tried to rescue her child from a severe beating; a military court found her guilty of manslaughter and fined her $1,000, and within several days the white community had collected and paid the fine. In Natchez, a white man who brutally assaulted an elderly black woman was fined $15 ($5 for the provost marshal who sentenced him and $10 for the injured woman); the victim contributed her award to the Lincoln Monument Fund, exclaiming, “I don’t want money, but justice.”
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