1897: John Gibson, under Jim Crow

On this date in 1897, John Gibson was hanged for murder.

In its particulars, the case itself was as minute and forgettable as a homicide ever could be: Gibson got into a spat with a plantation overseer over the theft of 20 or 25 cents from his wages. Later that night, still steaming and now drunk, he called the boss out through the window. The overseer went out to the confrontation armed (Gibson wasn’t), and wound up shot dead by his own gun in the struggle.

This literal two-bit crime became national news, however, and went twice to the Mississippi Supreme Court and twice to the U.S. Supreme Court as a vehicle to challenge Mississippi’s new Jim Crow constitution.

After Reconstruction but especially in the 1890s, the dreadful regime of American apartheid reversed black civil rights gains.

Mississippi’s all-white* constitutional convention of 1890 was a signal event for this nadir of race relations — the first of a wave of new southern constitutions aimed at setting up a color bar. In addition to mandating segregated schools, that constitution imposed a few, ahem, reasonable requirements for voting, which lacked any overt racial language but just so happened to disenfranchise the black electorate almost to a man. (Don’t even get started about women.**)

  • every voter must pay “a uniform poll tax of two dollars”;
  • “every elector shall … be able to read any section of the constitution of this State.” Now, lest one miss the intent here, Mississippi added a clause permitting anyone descended from a legal voter pre-1867 to cast a ballot without passing the exam: if your grandfather could vote, you could vote too … too bad if your grandfather couldn’t vote on account of being property. This one-two punch throughout the South kept poor whites on the right team, and bequeathed to English the phrase “grandfather clause”.

Both these gratuitous hurdles to voting are now confined to the history books, but two other important techniques of disenfranchisement remain very much in use today.

  • a needlessly onerous voter registration process;
  • and, the franchise is reserved for upstanding voters who have “never been convicted of bribery, burglary, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement or bigamy.” In a context where wholesale incarceration of African Americans was a matter of policy.

Plus of course, brute force up to and including lynch law for political terrorism. “In those days,” one black Mississippian said, “it was ‘Kill a mule, buy another. Kill a nigger, hire another.’ They had to have a license to kill anything but a nigger. We was always in season.”

From 1901 to 1973, the South never once seated a black lawmaker in the U.S. Congress.

So it’s a grim scene for racial justice in the twilight of the 19th century. But we dwell on the voting-rights aspect because jurors were drawn from the voting rosters: all the filters that excluded African Americans from the ballot box likewise excluded them from the jury box. And here’s where we get back to John Gibson.

Gibson’s case was taken up by African-American attorneys† Cornelius Jones and Emanuel Hewlett, who argued it all the way to a Supreme Court. R. Volney Riser argues in Defying Disfranchisement: Black Voting Rights Activism in the Jim Crow South, 1890-1908 that they weren’t just trying to save their client — they were mounting a cagey attack on the Mississippi constitution and the pillars of Jim Crow law. If Jones and Hewlett

could show a racial motive in refusing potential black voters (and likewise potential black jurors), they would have a reasonably strong case.

The elements of a strong, jury-based anti-disfranchisement case were in place for Jones and Hewlett and all that they really wanted was to have his case remanded to a U.S. district court. That might seem anticlimactic, but it would have meant that southern judges, sheriffs, and voting registrars would find themselves standing before federal district judges to justify their administration of jury selection and voter registration. In the immediate short term, there would almost surely be some benefit for disfranchised African Americans.

They argued the cases on December 13, 1895, and the Supreme Court announced decisions in Gibson and [a companion case] Smith on April 13, 1896, little more than one month before [Jim Crow landmark] Plessy v. Ferguson. Justice John Marshall Harlan wrote both opinions and dismissed each case on jurisdictional grounds. The problem lay in the evidence, which was conspicuous by its paucity … Mississippi did not exclude blacks in terms … [and] in Gibson, Jones had not shown that Mississippi’s courts committed “any error of law of which this court may take cognizance” or that his client’s murder conviction “was due to prejudice of race.”

Washington Post, Oct. 27, 1895

In the real world, where rights need enforcement if they are to thrive, this ruling had the effect of giving a free hand to white power so long as it had the sense God gave a vegetable and didn’t directly declare that any of its universally all-white juries (or electorates) were constituted as a matter of explicit race prejudice. Just a marvelous coincidence! Nothing to see here, you federal judges.

As the Southwestern Christian Advocate editorialized after the ruling (Apr. 23, 1896)

Proof need hardly be asked that there was a deliberate purpose on the part of the persons charged with that responsibility [i.e., seating juries] to absolutely ignore the colored man as a juror. This is the cold truth, that the sheriffs and other court officers who have charge of the impanneling of juries will not select colored men. The persistency with which they deny such intent is one of the most gigantic mysteries of the age.

Of course, there is no constitutional enactment on the statute books of the State of Mississippi denying the right of jury service to Negroes, yet they do not serve, and for the simple reason that they are not chosen. It is the easiest matter in the world to keep Negroes out of the jury box in Mississippi. It is one of their sovereign rights.

There is no enactment against it, nothing for it, so there it is. And what is the Supreme Court or the Federal government going to do about it? Why, simply render its decisions upon what it does not permit. The fact is that the amendments to the Constitution, so far as the black man is concerned, are not worth the paper they are written upon without the moral sentiments of high minded and noble people behind it. And this will apply to State, Federal and Supreme Courts as well.

Meanwhile, the black man is expected to be an intelligent and a loyal citizen, notwithstanding the rights which he fought and bled for are now almost exclusively in the hands of those who at one time sought to pull the fair fabric of our Constitutional liberties to the ground.

It’s still to this day the case that defendants have very little scope to scrutinize potentially prejudicial jury composition. It’s still to this day the case that the Supreme Court has nothing but a toothless remedy. And it’s still to this day the case that some state’s attorneys can and do craft racially discriminatory juries more prone to convict by excluding blacks … so long as it’s “not in terms” and instead for literally any other pretext.

* Except for one black man.

** Representative sentiment of a Mississippian: “We are not afraid to maul a black man over the head if he dares to vote, but we can’t treat women, even black women, that way. No, we’ll allow no woman suffrage.” Mississippi only ratified female suffrage in 1984.

† There are some claims out there that the first black attorney to argue a case before the U.S. Supreme Court did so only in 1910; I may be overlooking a nuance in the manner these issues were presented to the high court, but so far as I can discern, Gibson was argued by black attorneys. This source suggests that it was hardly the first.

On this day..

1870: Wyatt Outlaw lynched by the Ku Klux Klan

On this date in 1870, the lynching of a mulatto freedman in Alamance County, North Carolina sounded the tocsin for ex-Confederates’ rollback of Reconstruction.

Perhaps America’s most tragic period, the aftermath of the Civil War saw a too-brief attempt to enforce ex-slaves’ civil rights, before it succumbed to violent counterattack. The prevailing historiography in the century-long era of Southern apartheid that followed remembered it as a time of impertinent Negroes ravishing Dixie’s virtue by being seated in the legislature and giving orders to their natural betters.

Winners write history, after all.

Those of the pro-Republican coalition at the time, before Northerners folded their hand, had a mind to write a different history.

Alamance County was one epicenter of this aborted alternative. The enclave was cool to secession from the beginning, and in the early years of Reconstruction had a live black-white coalition. Wyatt Outlaw, a mixed-race Alamance native who had fought for the Union, was a local leader in it. A member of the antislavery Union League, which registered freedmen as voters throughout the South, he was appointed a town commissioner for Graham, N.C. under the state’s new constitution.

This made him a prime target of Ku Kluxers. On the night of February 26, 1870, an armed party of white supremacists about 100 strong raided his home and strung him up on an elm tree facing the county courthouse. Pinned to his corpse for the edification of the morning’s churchgoers was a note:

“Beware you guilty — both white and black.”

North Carolina Governor William Holden complained to the U.S. Senate of federal unwillingness to act against such outrages.

What is being done to protect good citizens in Alamance County? We have Federal troops, but we want power to act. Is it possible the government will abandon its loyal people to be whipped and hanged? The habeas corpus should be at once suspended.

After another pro-Reconstruction politician was murdered later that year, Holden boldly took the initiative himself and called out the troops to arrest suspected Klansmen. But the right-wing Democratic party won midterm elections in 1870, and promptly impeached Holden for this atrocious tyranny; he was the first U.S. governor ever removed from office by impeachment.*


A “carpetbagger” ally of Wyatt Outlaw named Albion Tourgee — a judge who stood as one of North Carolina’s most prominent and hated advocates for African American equality — later wrote a novel about his experiences, A Fool’s Errand, by One of the Fools. Now in the public domain and available free online, this book’s portrayal of the Reconstruction South is receiving renewed scholarly appreciation** — including Tourgee’s catalogue of terrorism against emancipated blacks and the Republican government. The novel was a sensation (pdf) in its time.

One of the characters in Fool’s Errand is a nearly exact representation of Wyatt Outlaw: “Uncle Jerry Hunt”, who resists the Klan. It is “chiefly through Uncle Jerry’s persuasions, and because of his prominence and acknowledged leadership, this spirit had gone out among the colored men of the county.” He meets a graphic end that almost journalistically reports Outlaw’s real fate.

It was a chill, dreary night. A dry, harsh wind blew from the north. The moon was at the full, and shone clear and cold in the blue vault.

There was one shrill whistle, some noise of quietly moving horses; and those who looked from their windows saw a black-gowned and grimly-masked horseman sitting upon a draped horse at every corner of the streets, and before each house, –grim, silent, threatening. Those who saw dared not move, or give any alarm. Instinctively they knew that the enemy they had feared had come, had them in his clutches, and would work his will of them, whether they resisted or not. So, with the instinct of self-preservation, all were silent–all simulated sleep.

Five, ten, fifteen minutes the silent watch continued. A half-hour passed, and there had been no sound. Each masked sentry sat his horse as if horse and rider were only some magic statuary with which the bleak night cheated the affrighted eye. Then a whistle sounded on the road toward Verdenton. The masked horsemen turned their horses’ heads in that direction, and slowly and silently moved away. Gathering in twos, they fell into ranks with the regularity and ease of a practiced soldiery, and, as they filed on towards Verdenton, showed a cavalcade of several hundred strong; and upon one of the foremost horses rode one with a strange figure lashed securely to him.

When the few who were awake in the little village found courage to inquire as to what the silent enemy had done, they rushed from house to house with chattering teeth and trembling limbs, only to find that all were safe within, until they came to the house where old Uncle Jerry Hunt had been dwelling alone since the death of his wife six months before. The door was open.

The house was empty. The straw mattress had been thrown from the bed, and the hempen cord on which it rested had been removed.

The sabbath morrow was well advanced when the Fool [i.e., Tourgee himself] was first apprised of the raid. He at once rode into the town, arriving there just as the morning services closed, and met the people coming along the streets to their homes. Upon the limb of a low-branching oak not more than forty steps from the Temple of Justice, hung the lifeless body of old Jerry. The wind turned it slowly to and fro. The snowy hair and beard contrasted strangely with the dusky pallor of the peaceful face, which seemed even in death to proffer a benison to the people of God who passed to and fro from the house of prayer, unmindful both of the peace which lighted the dead face, and of the rifled temple of the Holy Ghost which appealed to them for sepulture. Over all pulsed the sacred echo of the sabbath bells. The sun shone brightly. The wind rustled the autumn leaves. A few idlers sat upon the steps of the court-house, and gazed carelessly at the ghastly burden on the oak. The brightly-dressed church-goers enlivened the streets. Not a colored man was to be seen. All except the brown cadaver on the tree spoke of peace and prayer–a holy day among a godly people, with whom rested the benison of peace.

The Fool asked of some trusty friends the story of the night before. With trembling lips one told it to him,

“I heard the noise of horses–quiet and orderly, but many. Looking from the window in the clear moonlight, I saw horsemen passing down the street, taking their stations here and there, like guards who have been told off for duty, at specific points. Two stopped before my house, two opposite Mr. Haskin’s, and two or three upon the corner below. They seemed to have been sent on before as a sort of picket-guard for the main body, which soon came in. I should say there were from a hundred to a hundred and fifty still in line. They were all masked, and wore black robes. The horses were disguised, too, by drapings. There were only a few mules in the whole company. They were good horses, though: one could tell that by their movements. Oh, it was a respectable crowd! No doubt about that, sir. Beggars don’t ride in this country. I don’t know when I have seen so many good horses together since the Yankee cavalry left here after the surrender. They were well drilled too. Plenty of old soldiers in that crowd. Why, every thing went just like clock-work. Not a word was said–just a few whistles given. They came like a dream, and went away like a mist. I thought we should have to fight for our lives; but they did not disturb any one here. They gathered down by the court-house. I could not see precisely what they were at, but, from my back upper window, saw them down about the tree. After a while a signal was given, and just at that time a match was struck, and I saw a dark body swing down under the limb. I knew then they had hung somebody, but had no idea who it was. To tell the truth, I had a notion it was you, Colonel. I saw several citizens go out and speak to these men on the horses. There were lights in some of the offices about the court-house, and in several of the houses about town. Every thing was as still as the grave,–no shouting or loud talking, and no excitement or stir about town. It was evident that a great many of the citizens expected the movement, and were prepared to co-operate with it by manifesting no curiosity, or otherwise endangering its success. I am inclined to think a good many from this town were in it. I never felt so powerless in my life. Here the town was in the hands of two or three hundred armed and disciplined men, hidden from the eye of the law, and having friends and co-workers in almost every house. I knew that resistance was useless.”

“But why,” asked the Fool, “has not the body been removed?”

“We have been thinking about it,” was the reply; “but the truth is, it don’t seem like a very safe business. And, after what we saw last night, no one feels like being the first to do what may be held an affront by those men. I tell you, Colonel, I went through the war, and saw as much danger as most men in it; but I would rather charge up the Heights of Gettysburg again than be the object of a raid by that crowd.”

After some parley, however, some colored men were found, and a little party made up, who went out and saw the body of Uncle Jerry cut down, and laid upon a box to await the coming of the coroner, who had already been notified. The inquest developed only these facts, and the sworn jurors solemnly and honestly found the cause of death unknown. One of the colored men who had watched the proceedings gave utterance to the prevailing opinion, when he said,–

“It don’t do fer niggers to know too much! Dat’s what ail Uncle Jerry!”

And indeed it did seem as if his case was one in which ignorance might have been bliss.

The multitalented, ahead-of-his-time Tourgee might well have uttered the same sentiment in 1896, when he was the lead attorney on the losing side of Plessy v. Ferguson — the Supreme Court’s landmark sanction of the color line that Uncle Jerry’s hangmen had drawn.

There are a couple of interesting journal articles touching on Alamance County during Reconstruction which are freely available as pdfs from the Journal of Backcountry Studies: “Other Souths”: The Civil War and Reconstruction in Alamance County, North Carolina and Scalawags Among Us: Alamance County Among the “Other Souths”.

* Narrowly beating Nebraska’s David Butler, who got the boot a few months later. Holden remains the only governor to suffer this indignity in North Carolina history; there has been a recent push in the Raleigh legislature to posthumously pardon him. Holden’s own memoirs are also available free online.

** Along with the book’s contention that northern Republicans were to blame for vacillating on Reconstruction. “This cowardly shirking of responsibility, this pandering to sentimental whimsicalities, this snuffling whine about peace and conciliation, is sheer weakness … [the North is] a country debauched by weak humanitarianisms, more anxious to avoid the appearance of offending its enemies than desirous of securing its own power or its own ends.”

On this day..