4.3.3 Mountain South (1861-1877): Coming to Grips With Emancipation

Miscegenation and other problems of social equality

Lonas v. State – Tennessee, 1871 (50 Tenn. 287)

  • Most white Southerners grudgingly accepted postwar civil rights laws that granted freed slaves basic rights such as the right to hold property, control their own labor and travel freely, and in basic political rights fro blacks, including the right to vote and hold office.
  • But white Southerners of all stations fiercely resisted attempts to enact social equality, for example, laws requiring schools, theaters, restaurants and other public places to be integrated or allowing blacks and whites to intermarry.  Southern courts consistently rejected arguments that segregation laws violated equal protection rights:  they viewed segregation as an integral part of Southern life, equally beneficial to both races, and they could not understand let alone condone the idea that others might view it differently.  It would require more than a century to change this view.  Lonas, which upheld Tennessee’s miscegenation law, is the leading judicial example of this view in the mountain South.

“The laws of civilization demand that the races be kept apart in this country.  The progress of either does not depend upon an admixture of blood. … Their [blacks’] rights, social, civil, political and religious, will be jealously guarded; but they must not marry or be given in marriage with the sons and daughters of our people.” – Justice John Sneed, in Lonas

Coming to grips with emancipation:  the furor over black testimony

Bowlin v. Commonwealth – Kentucky, 1867 (65 Ky. 5)

  • Many postwar black codes prohibited blacks from testifying against whites.  This attracted unfavorable Northern attention and in 1866, Congress passed a law allowing black testimony in federal courts.  Many Southern states then repealed their testimonial restrictions, but Kentucky resisted what it perceived as yet another federal encroachment on its rights.  In Bowlin, Kentucky’s supreme court held that the 13th Amendment, abolishing slavery, did not extend to testimonial rights.  But five years later, when it appeared that the U.S. Supreme Court might rule against all testimonial restrictions, the Kentucky legislature bowed to the inevitable and repealed them.

Enforcement of slave contracts after the war

Jacoway v. Denton – Arkansas, 1870 (25 Ark. 625)

  • Another issue raised by emancipation was whether slave sale contracts made before emancipation could be enforced.  The issue was economically as well as emotionally important:  who should bear the loss of slaves through emancipation, buyer or seller?  In Jacoway, Arkansas’s supreme court held that such contracts should be enforced:  abolition of slavery did not mean abolition of contract rights.  Justice John McClure, one of the state’s leading Unionists, argued in dissent that slave contracts were part and parcel of an abolished institution and must be abolished with it.  This ideological clash was repeated in courts throughout the South during Reconstruction.   

Klan laws

Walpole v. State – Tennessee, 1878 (68 Tenn. 370)

  • One of the ugliest by-products of emancipation was the rise of white vigilante organizations, most notably the Ku Klux Klan, that used violence and fear to intimidate Southern blacks and deter them from exercising their newly-won civil and political rights.  In reaction, many Reconstruction legislatures enacted “Klan laws” imposing harsh penalties for vigilantism, for the wearing of disguises and for inactivity of local law enforcement officials in the face of mob violence against blacks.   The laws were seldom challenged but when they were, as Walpole demonstrates, Southern courts had no difficulty approving and upholding them.  The laws could not prevent all violence, but they served as a useful reserve weapon and perhaps helped make the long post-Reconstruction period of regular racial riots and lynchings at least marginally less grim than it otherwise would have been.

“It is apparent that the object of this statute was to repress a great evil which arose in this country after the war … This [vigilantism and Klan activity] was a kind of mob law, enforced sometimes by a multitude of vagabonds, who grew to be a great terror to the people … The penalties for a violation of this law are severe, but they have proved themselves wholesome in the partial suppression already of one of the greatest of the disturbing elements of social order in this State.” – Justice John Sneed, in Walpole

File:The Miscegenation Ball 1864.jpg

Cartoon, "The Miscegenation Ball" (1864), expressing white fears about racial mixing - courtsey WIkimedia Commons

“[The 13th  Amendment] gave the colored race nothing more than freedom.  It did not elevate them to social or political equality with the white race.  It … left them equally free in all the States, and equally subject to State jurisdiction and State laws … Notwithstanding the abolition of slavery, a State in which ‘freedmen’ reside might attempt their disfranchisement, or withhold from them the privileges of free men.”
– Chief Justice George Robertson, in Bowlin

“[W]hile we have attained a higher civilization than has blessed any other people we are not to perfection.  An age in the future may as deeply censure some of our present lawful practices as we now do that which has been termed ‘the legalized crime of the past.’” – Justice Lafayette Gregg, in Jacoway

File:Visit of the Ku-Klux 1872.jpg

Ku Klux Klan raid on black home (Harper's Weekly, 1872) - courtesy Wikimedia Commons