LAW, CASES AND AFRICAN-AMERICANS IN MICHIGAN HISTORY TO 1950 Dedication To the memory and scholarship of David Augustus Straker (1842-1908), lawyer, jurist, author, lecturer, politician and Civil Rights Leader. Straker was born in Bridgetown, Barbados. In 1887, he moved to Detroit from South Carolina. Straker was the second black lawyer admitted to the bar in Michigan, and he practiced law in Detroit until his death in 1908. While in Detroit, he published several books, lectured extensively, and served as a Wayne county Circuit court Commissioner.- E.J.L PREFACE For the second consecutive year, we have the opportunity to read an outstanding analysis about law in Michigan history, and African Americans unique role in shaping it. In 1988, the Wolverine Bar Association focused on African American attorneys in Michigan history. The publication, black lawyers, Law Practice, and Bar Associations-1894-to 1970: A Michigan History by EJL chronicled the history of Michigan’s African-American attorneys. This work received national recognition through the excerpts published by the National Bar Association, as an important example for African-Americans bar associations in other states. The NBA joined us in urging lawyers throughout the country to follow Michigan and begin to research and publish their histories. In Laws, cases and African-Americans in Michigan history to 1950, Professor Littlejohn takes a different but equally engrossing look at Michigan History. Discussed is the gradual evolution of Michigan laws from protecting the rights of slave-owners to the full recognition of civil rights of slave-owners to the full recognition of civil rights for former slaves. Professor little john also gives insights into the attitudes and fears that fueled the resistance to granting African Americans basic civil rights. This history provides information not otherwise readily available to us, but which is essential to a full understanding of our predecessors struggles for full citizenship. Our access to this well documented history is the result of professor little john’s work and dedication with little personal gain other than the personal satisfaction of making knowledge about Michigan laws and African American lawyers available to us and others. We hope you will join with the Wolverine Bar Association in thanking professor little john for his efforts, current and past, in making known the history of African-Americans lawyers, the contexts in which they worked as well as the laws and cases that were pivotal along the way. We believe you will enjoy reading EJL and will find it an important source of information and inspiration to call upon again and again. Saul Green President WBA Detroit, MI 1989 EARLY MICHIGAN LAWS, AFRICAN SLAVES, BLACK INHABITANTS AND AFRICAN AMERICANS. Slavery existed in early Detroit. While the numbers were never large compared with other regions of the country, in 1773, 96 slaves, Indian as well as African, were reported in the Detroit settlement. Although slavery was forbidden by the Northwest Ordinance of 1787, many prominent Detroiters owned slaves when the Michigan Territory was created in 1805. Letters reproduced in Silas Farmer’s History of Detroit and Wayne County and Early Michigan; show a method of sale and prices for slaves as well as “the spirit of these olden times”. The Jay treaty of 1794 transferred the Northwest Territory which included Michigan to the United States on July 11, 1796. Notwithstanding the abolition of slavery under the northwest ordinance, the jay treaty contained a provision protecting British settlers in the ownership of “all their property of every kind” slaves included. After American governance of Michigan was established Canadian slaves fled to freedom through Detroit. Ironically, this passage was later reversed. After Canada abolished slavery, it became a haven for escaped American slaves. Detroit, because of its proximity to Canada, was an important link in the “underground railroad” for slaves escaping the American south. Abolitionist and anti-slavery organizations were very active in Detroit. The northwest Ordinance also contained a section allowing the recapture of fugitive slaves within the territory. Also in force during this period were the Fugitive slave Act of 1793 and article IV section 2 of USA constitution which provided. No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall delivered up on claim of the party to whom such service or labor may be due. In 1850, congress, seeking to limit the authority of the states and to enlarge federal jurisdiction over slavery, passed a new fugitive slave law. Under this law, federal marshals could recapture slaves in Free states, and the fines in the 1793 law were doubled. Congress action, no doubt, was motivated, in part, by the 1842 united states supreme court decision, Prigg v.Pennsylvania (41 US 539 (1842) . In Prigg an 1826 Pennsylvania statute forbidding the removal of colored persons from the state to enslave them was declared unconstitutional and void. The court held that the 1793 federal fugitive slave law was constitutional and that the federal constitution article IV section 2 vested in congress exclusive legislative power regarding fugitive slaves. The states, therefore, had no authority to legislate on the subject nor could they interfere with or impede the federal mandate. In keeping with exclusive federal jurisdiction, the court also ruled that state magistrates were not bound to act under the federal law but could do so if they chose, unless prohibited by state law. In 1855, Michigan enacted “a statute to protect the rights and liberties of the inhabitants of the state”. This act, which showed that blacks were state inhabitants rather than citizens, prohibited Michigan public officials from assisting federal marshals in the recapture of fugitive slaves. It specifically prohibited the use of county jails to detain fugitive slaves and required county prosecuting attorneys to defend them. By the mid-19th century modest black population growth added to the existing tensions in Detroit due to the unresolved slave question and less than tranquil race relations. Free blacks were not citizens of the state nor could they vote. They were discouraged from settling in Michigan. Those blacks who did, experience segregated education, housing and public accommodations. Racial intermarriage was forbidden by law. Blacks could, however, sue and testify in court. Social and political conditions for blacks, amid abolitionism in Detroit, must have appeared, as least on the surface, as social “Schizophrenia”. On one hand, a majority of white citizens opposed slavery. On the other hand, they did not want blacks as neighbors and were xenophobic with regard to blacks having basic civil rights. Suffrage illustrated and symbolized these larger social concerns. Between 1835 and 1861 black reformers and their supporters constantly attacked the ‘mainstay of caste” in Michigan—the denial of the right to vote. By 1860, however, due to white fears over the consequences of complete emancipation, “the colored suffrage issues in Michigan had become almost the sole property of blacks In reality, white concerns were not supported by population data. In 1850, only about 2,583 blacks lived among 97,654 whites in Michigan. Opponents of Black suffrage often exploited popular sentiments and 19th century “Scientific racialism” in openly vitriolic and demagogic attacks on black people. For example, formisano quotes democratic leader and free press editor, John S. Bagg. “He would not go to the zoophyte and trace up the numerous gradations in animal life to our noble selves, and say what rank the African holds in the chain”. If they vote, Michigan would be “people by these dark bipeds, a species not equal to ourselves”…what man would like to see his daughter encircled by one of these sable gentlemen, breathing in her ear the soft accents of love”. Later, the free press, along with other Democratic newspapers, “became a vocal and persistent champion of white supremacy and made “****** baiting of ‘black republicans” an almost daily habit”. Finally, in 1850, after many petitions for the franchise were refused by the legislature, the suffrage issue was submitted to a popular referendum. It was resoundingly defeated—71.3% of 44,914 votes were against black suffrage. Blacks persisted, nevertheless, and in 1865, they again petitioned the state legislature to confer suffrage and again the legislature refused. Michigan Constitutions of 1835 and 1850 limited the franchise to “free white male citizens”. An 1827 territorial act entitled “an act to regulate blacks and Mulattoes and to punish the kidnapping of such persons”, made unlawful the kidnapping or the selling of slaves. As the Acts title suggest, a second purpose was to restrict severely black migration into the territory. It required blacks entering the territory to carry certificates showing they were free-born to register in their resident county, and to post an obviously prohibitive $500.00 bond against their good behavior. These laws, and others previously discussed severely circumscribed the political and social existence of blacks, and, inevitably led to racial confrontations. Two race riots occurred in Detroit during the 19th century. The first, which occurred before emancipation, was the so-called “Negro riot” of 1833 or the “Blackburn riot”. Mr. Blackburn, a fugitive slave was freed from a Detroit jail by other blacks and escaped to Canada. In the process the sheriff was “dangerously wounded”. The second riot, then characterized as “one of the darkest pages in the history of Detroit”, occurred on January 6, 1863. William Faulkner, described as a mullatto, was convicted for sexually assaulting a white child. People filled the streets around the courthouse and prepared to lynch Faulkner. It was necessary to call in soldiers from the military barracks on Gratiot Avenue to assist with transporting the prisoner from the court to prison. When the mob failed to disperse, the soldiers fired several shots over the heads of the crowd—wounding several persons and killing another. The mob now became infuriated, and an attack was begun on the colored people. Many of them were fearfully beaten; their buildings were set on fire for the purpose of burning those who were inside; and paying-stones were torn up and thrown at those who tried to escape, thus driving them back into the flames. Faulkner’s guilt was always questioned. When the doubt became a certainty, he was pardoned and, on December 31, 1869, he was released from prison. The real reason for the riot was the racial disharmony that followed from poor immigrants, mostly Irish and German, competing with blacks for work. Emancipation meant more blacks, many of whom were skilled tradesmen, in the job market. Also, the federal government in 1863 instituted conscription. The conscription Act permitted a payment of $300.00 in lieu of serving in the military. Obviously, this sum was well beyond the means of poor men. The anger over conscription, Civil War, as well as the economic threat from emancipated slaves erupted into violence in virtually every northern city of any size. These riots were called Irish Riots or conscription riots rather than race riots, but they were directed at northern blacks. In Detroit, these strong racial tensions were a backdrop for the 1863 riot. In 1870, the 15th amendment to the United States Constitution became effective. It guaranteed the right to vote against denial or abridgement on the basis of “race color or previous condition of servitude. As a result, on November 8, 1870, the word “white” was stricken from Michigan’s constitution as a voting qualification. On this day, Black citizens cast their first votes in Detroit. As the cases will show, during the 19th century, blacks quest for citizenship and civil rights had marginally greater success in Michigan courts than at the national level. While Michigan courts were decidedly ambivalent or reticent to the status quo, the United States Supreme Court was very clear and unrestrained. Crushing blows came from that court. In the Supreme Court’s most odious decision, Dred Scott v. Sanford, Chief Justice Roger Taney, writing for the majority, held the Missouri Compromise of 1820 unconstitutional: Taney held as well that Congress had no power to forbid slavery in the territories. The ruling denied US citizenship to persons of African descent and gave validity to state laws declaring a person a slave, notwithstanding entry into a ‘free’ area. As to the Negro race, in the opinions most controversial and most often quoted portion, chief Justice Taney wrote: They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relationship; and so far inferior that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern without doubting for a moment the correctness of this opinion. Dred Scott enraged public opinion throughout much of the North and contributed to the start of the Civil War. In 1868, it was ultimately “overruled” with the ratification of the 14th amendment, which provided national and state citizenship for all persons born in the USA. The Civil War and, finally, in 1865, the 13th amendment, put an end to slavery. The 13th, 14th and 15th amendments were enacted to protect the Civil rights recently emancipated slaves. With each Amendment, Congress was given the power of enforcement through “Appropriate legislation”. Accordingly, congress passed the Civil Rights Acts of 1866, 1870, 1871 and 1875. For blacks, these Acts accomplished several important goals: They protected contract rights and prohibited the deprivation of rights secured by the constitution or federal law by any person acting under color of state law; they protected voting rights; they created a civil cause of action for deprivations of civil rights. In the balance of power between the federal and state governments, the amendments and their related acts represented a decided shift to the national government for the protection of civil rights. The Supreme Court, however, by narrowly construing the amendments and their statutory provisions emasculated many of the post-war enactments. The Court, through its rulings, limited national government’s influence in the area of states police powers, preserved much of the pre-amendments balance between the federal and state governments and, in the process, promoted racial segregation. Illustrative are the civil rights cases and Plessey v. Ferguson decided in 1883 and 1896, respectively. In the Civil Rights cases, the Supreme Court vacated indictments that were issued for excluding black persons from public accommodations because of their race. The court also ruled that the 14th amendment equal protection clause applied only to “state action” and held that the public accommodations provisions of the Civil Rights act of 1875 were unconstitutional. I other words, congress could not sanction private discrimination and, in that area, the protection and regulation of important civil rights was left to the individual states. This state action doctrine did, however, allow the federal government to intervene when the states themselves violated constitutional rights. Plessey was authored by a Michigan Ian, justice Henry billings brown. Brown, born in Massachusetts, studied law at the Yale and Harvard law schools. He later migrated to Detroit, “read in the law’ in offices of Walker & Russell, and was admitted to the bar in July, 1860. Before his appointment to the United States Supreme Court, Brown served briefly as assistant US attorney and as judge in the Wayne County Circuit Court and the US District Court. He was appointed Associate justice in 1890 and served to 1906, during which he authored over 450 opinions. Plessy was his most memorable and infamous opinion. Through it, brown showed insensitivity to basic rights and ‘became the champion of an old order”. Plessy involved a Louisiana statute requiring railroads to “provide equal but separate accommodations for the white and colored races”. Homer Plessy was 7/8 white and 1/8 black, but was considered black under Louisiana Law. He refused to surrender a seat assigned to white passengers, and was jailed and tried for violating the statute. Plessy eventually appealed to the United States Supreme Court, where he alleged the Louisiana statute violated the 14th amendment’s prohibition of unequal protection of the laws. The court, giving its legal imprimatur to the “separate but equal” doctrine, upheld the Louisiana statute. Also, because the state action required by the civil rights cases was involved, Plessy further circumscribed the scope of the Equal protection clause. In essence, the decision had two immediately devasting results for blacks. On one hand, the court said that a state’s action imposing the “Separate but equal” principle did not violate the 14th amendment and, on the other hand, it said that congress could not federalize equal protection. Plessy had momentous impacts beyond the law of the case. The opinion advanced a “scientific racialism” position, which at the time was augmented by social Darwinism, that law could not create feelings of inferiority since differences between the races could be explained in biological, rather than social terms. The court maintained that prevailing customs and traditions, even those that promoted social prejudice, could not be changed by legislation. Therefore, if blacks considered themselves inferior, they did so independent of the statute. In this context, Plessy, at the highest legal level followed the view that according to the laws of nature racial differences confirmed and made immutable black natural inferiority and white intrinsic superiority. Plessy also provided the legal underpinnings for the De jure racial segregation that survived sustained and erosive legal attacks until 1954 when the court declared “separate but equal” inherently unequal and unconstitutional. Michigan’s connection with Plessy went beyond the authorship of Justice Brown. The forerunner of the Wolverine bar Association was the Harlan law club, founded in 1919. The club’s name honored Justice John marshal Harlan for his lone, but powerful, dissent in Plessy. He wrote: The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty. But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race. In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case. It was adjudged in that case that the descendants of Africans who were imported into this country, and sold as slaves, were not included nor intended to be included under the word &lsquocitizens&rsquo in the constitution, and could not claim any of the rights and privileges which that instrument provided for and secured to citizens of the United States; that, at time of the adoption of the constitution, they were &lsquoconsidered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them.&rsquo 17 How. 393, 404. The recent amendments of the constitution, it was supposed, had eradicated these principles from our institutions. But it seems that we have yet, in some of the states, a dominant race,—a superior class of citizens,—which assumes to regulate the enjoyment of civil rights, common to all citizens, upon the basis of race. The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the constitution, by one of which the blacks of this country were made citizens of the United States and of the states in which they respectively reside, and whose privileges and immunities, as citizens, the states are forbidden to abridge. Sixty millions of whites are in no danger from the presence here of eight millions of blacks. The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana. ( This was picked up at brown Vs board of Education) The above discussions encapusules some of the legal and social conditions that confronted Blacks before the turn of the 20th century. Readers of the Michigan appellate cases that follow must be mindful of these legal and social backdrops, and read the cases into the context of their times. II CAES IN THE SUPREME COURT OF THE TERRITORY OF MICHIGAN The enabling ordinance for the Northwest Territory created a three judge court with common-law jurisdiction. The courts first session were held August 30, 1788, and when Michigan’s came under American control, the court convened in Detroit annually. On July 24, 1805 by act of Congress, the Supreme Court of the territory was formed. Its first session was held on July 29, 1805. In addition to limited general jurisdiction the court had appellate jurisdiction over the several districts courts. At this time, many cases were conducted in French, the language spoken by a large portion of litigants, witnesses and jurors. The proceedings were translated to English, sentence by sentence, making “the proceedings very tiresome”. Early descriptions of the court were sometimes humorous and portray a loosely organized, whimsical bench, given to gross favoritism, and which met irregular hours, “sometimes in the council house and sometimes at the clerk’s office; sometimes at a tavern and sometimes on a woodpile”. Augustus B. Woodward was the court’s first judge and, accordingly, he became its first chief judge. Judge Woodward was characterized as a learned, but eccentric genius. He was, apparently, a bizarre character of the first rank, one “that only dickens could properly portray”. His personal habits and hygiene were also described as rank, given to “slovenliness so extreme, as to almost defy description”. He, reportedly, drank brandy and quarreled often with his fellow judges while on the bench. Notwithstanding, many public complaints about his judicial conduct and follies including petitions to congress and the president, judge Woodward served on and dominated the court for 19 years. Two cases affecting slaves were decided by Judge Woodward. The first, Denison v. Tucker, was heard in court session on September 26, 1807. Judge Woodward’s written opinion suggests a personal aversion to slavery. Judge Woodward, nevertheless, denied a writ of habeas corpus to Elizabeth, James, scipio and Peter Denison, slaves of Catherine Tucker, a British settler in Detroit. Judge Woodward discussed the Abolition of slavery in England as well as in Michigan. He was obligated, however, to recognize Tucker’s claim under the jay treaty, which protected the property interest of British settlers as of July 11, 1796. The denisons enslavement, having been lawful under the laws of Upper Canada, which governed Detroit prior to July 11, 1796 continued for life. However, the children of slaves had rights under the law. Depending on their dates of birth, some were immediately freed and others had to continue in slavery until they reached age 25. On October 23, 1807, the case of In the matter of Richard Pattinson presented different facts, and gave judge Woodward new opportunities with the jay Treaty and the laws of Upper Canada. He denied Richard Pattinson a warrant to apprehend as his lawful property, “The bodies of Jane, a mulatto woman, of about 20 years of age, and joseph, a boy of about 18 years”. Unlike the British settler-defendant in denison v. Tucker, pattinson lived in Canada. His claimed slaved “property” had escaped from Canada to Detroit. Judge Woodward, relying on natural law principles, rejected arguments that the common law and the law of nations recognized property rights in persons and, therefore, a concomitant obligation to restore such persons, as the law would “escaped” domestic animals. Finding also that no reciprocity existed with Canada for the return of fugitive slaves, judge Woodward ruled on the applicability of the jay treaty: “A right of property in the human species can’t exist in this territory”. III CASES IN THE MICHIGAN SUPREME COURT By act of March 26, 1836, the Supreme Court of the State succeeded the territorial court. Originally comprised of the three circuit court judges, the court, by legislative act in 1938, became a four-member bench, consisting of a chief justice and three associate justices. In 1848, the number of judges on the court increased to five. The court was changed under the constitution of 1850 to a bench of eight popularly elected circuit judges. In 1857, the court was again reorganized to consist of four elected appellate judges, who no longer sat as circuit court judges. As abolitionism intensified, along with the mounting north-South conflicts, racial consciousness, white fears and racism also heightened within an “already negrophobic white majority. Suffrage became the ‘lightning rod” on the question of the status of free blacks in the north. “In no other state does the suffrage issue seem to have channeled or dominated the discussion of race as much as in Michigan. It is, therefore, not surprising that the Michigan Supreme Court’s first case by a black claimant involved the franchise. A. The right to vote B. Gordon v. Farrar, 2 Mich. (Doug) 411 (1847) In Gordon, the plaintiff sued Detroit election inspectors who had refused his vote in a federal election held November 4, 1844. At that time, the Michigan constitutional limited voting to white male residents over 21 years of age. Gordon was described as ‘partly Saxon and partly of African descent, but the Saxon blood in him greatly predominates over the African. He is of a complexion as white as, or whiter, than many persons descended from European nations. A Wayne county Circuit Court jury found for Gordon and awarded him 12 cents in damages. Gordon’s judgment, however, was a special verdict conditioned on whether the inspectors had authority to determine voter qualifications based on race, inasmuch as the statute regulating their duties contained no such provision. The trial judge reserved this question for an opinion by the Supreme Court. Notwithstanding the absence of statutory authorization, the court decided that if race had to be determined in qualifying voters, the responsibility properly belonged to the inspectors. Such decisions, the court also ruled, were ministerial and not judicial, as the plaintiff alleged. Accordingly, the inspectors were exempt from liability and the judgment for plaintiff was reversed. People v.Dean, 14 Mich 406 (1866). 19 years after Gordon v. Farrar, the question of black voting rights again came before the Michigan Supreme court. Significant changes had occurred since Gordon, in law and within the Supreme Court itself. A new state Constitution was adopted in 1850. Blacks were still denied the vote, but detribalized Indians were granted the right. The most important changes were in the court. The court, in 1866, had four members. They were the distinguished bench of Chief justice George Martin, and the so-called “Three C’s—Justice James Campbell, Isaac P. Christiancy, and Thomas M Cooley (Cooley law school named after him in lansing,Mi & anti-Slavery Judge). The latter three justices supported the anti-slavery cause before joining the court. When Benjamin F. Graves succeeded Justice Martin on January 1, 1868, the court was comprised of Chief Justice Cooley and Justice Campbell, christiancy, and Graves. This court became known as the “Big Four” and was considered “the ablest state court that ever existed”. Campbell and Cooley were faculty members of the Law department of the University of Michigan during their terms on the court. Cooley and Christiancy had been activist in the free-soil battle “Which furnished the background for the Republican party. Before assuming an important role in the anti-slavery wing of the Democratic Party. Thus, a very able, and an obstensively sympathetic, court was called upon to review William Dean’s conviction for illegal voting, and “ to settle the position of persons of mixed blood under our constitution”. At trial, dean took the position that the darkness of his skin was due to his Indian descent. Witnesses for the prosecution testified that they regarded dean as a mulatto. A prosecution expert witness, a physician, testified that nothing in Dean’s appearance, except his color, which was “not different from Europeans of bilious temperament”. Indicated African blood. His opinion, however, was that African blood, much diluted and not exceeding one-sixteenth part was present.” The only clear indication of African blood is a peculiarity in the cartilages of the Nose. And this was an infallible indication. The trial judge rejected Dean’s requested jury instruction that a trace of African blood, not exceeding 1/16, qualified him to vote. Instead, the court instructed the jury that if they found Dean had a portion of African blood equal to 1/16, he was not a white man and should be convicted. Dean was convicted, and his appeal to the Supreme Court raised the question: what constitutes a White man within the meaning of the Michigan constitution? The attorney General, on behalf of the people, argued that white prejudice against Negroes “has not been confined to the Negro, Mulatto, Quadroon, and mustee (octoroon 1/8), but has extended to all known to have any African blood in their veins”. Thus, all “colored persons” should be excluded as electors. Dean’s counsel argued that white in the constitution referred to race, not color. Therefore, whichever blood preponderates, white or black, the person would be of that race. In an opinion authored by Campbell and joined by Christiancy and Cooley, the court discussed the history and laws related to race voting restrictions, racial classifications, and the need for judicial restraint when interpreting positive law. Following its analyses, the court held “that persons are white within the meaning of our constitution, in whom white blood so far predominates that they have less than ¼ of African blood; and no other persons of African descent can be so regarded”. Since Dean was within the rule enunciated a new trial was ordered. By including the word “less” in the rule, the court established a very restrictive standard. Negroes, mulattoes, and even quadroons were excluded as electors. Thereafter, for a “colored man” to qualify as a voter, he had to be more “white” than a quadroon. Chief Justice Martin, in a 14 page dissent, strongly attacked the majority opinion. He discussed the Northern origin of the race prejudice and the growing hostility toward the Negro as historical bases for his view that the meaning of “white” within the constitution meant the blood of a voter, not his color, and that this was more properly determined by a “preponderance of blood” ruling. As to the absurdity of any other rule, judge martin sarcastically referred to the examination of Dean’s nose, and suggested that to enforce the majority rule in preventing illegal elections, the constitution should be amended “to authorize…nose pullers, or nose inspectors”. Notwithstanding his acquittal, election officials in Nankin Township refused to register dean. His registration was eventually compelled by writ of mandamus in The People exrel. Dean V. Board of Registration of Nankin. Four years later, with the adoption of the 15 amendment to the Constitution, the Dean case became moot. The people ex rel john hedgman v. Board of registration of the first ward of the city of Detroit 26 Mich. 51 (1872) Hedgan was a mandamus action seeking to compel the petitioner’s registration as a voter. The se arose after adoption of the 14 & 15 amendments and involved the citizenship status of a foreign-born child of former slaves. Hedgman, then age 35 years, was born in Canada. At age twenty, he moved to Michigan. His parents had been born into slavery in Virginia. In 1834, they escaped to Canada, where they resided thereafter. Hedgman argued that the 14th amendment, which made all persons born in the United States, citizens, required citizenship for children born of citizens in a foreign country. While this position was correct, the court first had to decide whether or not Hedgman’s parents were ever United States citizens. Justice Cooley authored the opinion, and made clear an abhorrence of slavery. The court, nevertheless, found that since hedgman’s slave parents were not citizens before the 14th amendment was enacted, and were not subject to American jurisdiction after its adoption, neither was he or his offspring. The abolition of slavery, the court noted, did not abolish the history that preceded it, nor its consequences. Hedgman, the court advised, like any other British subject, could become a citizen under the naturalization laws, if he wished. Equal Access to Public Schools The People ex rel. joseph Workman v. The board of Education of Detroit 18 Mich. 399 (1869). In 1867, a year after the decision in People v. dean, Justice Martin, the case’s sole dissenter, died. He was replaced by Justice Benjamin F. graves, an “independent thinker” who had been a “vigorous worker” in the antislavery cause” two years later, the Supreme court decided People v. Board of Education and imposed on Detroit a legislative mandate for desegregated schools. Unlike Dean, which turned on constitutional construction People v. board of Education required judicial interpretation of Michigan’s public school laws. In this regard, the court’s task was not particularly onerous. The case’s legislative history was complex, however. Justice Cooley, who wrote for the majority, recounted the case facts. A general state law governing primary schools divided townships into school districts, each having considerable powers to manage the district’s schools and to elect district school officials. Most were single schools districts. With the larger school districts, however, it became necessary to enact laws creating union school districts with larger boards of education, and to give these boards more authority in the management of their schools. The city of Detroit was such a large district, and, in 1842, a legislative act “relative to free schools in the city of Detroit” was passed. This act made Detroit a single district, and gave its board of Education “full power and authority to advance the interest of education in the city”. Previously, as justice Cooley noted, Detroit had been an “anomaly of a district within a district; the former including only the colored population; but this was inconsistent with the free school act, and was therefore repealed by implication”. In 1867, the legislature amended the primary school law to provide that “all residents of any school district shall have an equal right to attend any school therein”. The Detroit board of Education took the position that it was exempt from the primary school law because of the special legislation under which it operated, and it, accordingly, did not comply with the 1867 act. By 1869, Detroit had two black schools, and a third was under construction. Black student’s numbered 185, white students 6, 942. 38 of the black students lived in wards over 2 miles from the Black schools. To attend their designated all-black schools, these students had to pass other, closer, white public schools. Also, the white schools had upper grades, while, as the court noted, “the colored school is still a primary school only” and their exclusion from the white schools was ‘an absolute prohibition of an enjoyment of the higher grades of the free schools”. In April, 1868, Joseph Workman attempted to enroll his child, a mulatto of more than ¼ African blood, in the Duffield union or the tenth ward school. Admission was filed. The case came to the Supreme Court in the form of a writ of mandamus for the Detroit board of Education to show cause why the workman child should not be admitted to the duffield school. In addition to its position that it was not controlled by the 1867 legislation, the Detroit board argued that the separation of children by race was reasonable since state law forbade their intermarriage, and “that there exists among a large majority of the white population of Detroit a strong prejudice or animosity against colored people, which is largely transmitted to the children in the schools, and that this feeling would engender quarrels and contention if colored children were admitted to the white schools. Justice Cooley acknowledged the Detroit board’s board powers under the special act, however, such legislation, he readily found, was complimented by the general 1867 primary school law. “its is too plain for argument that an equal right to all the schools…was meant to be established “. The majority opinion was joined by Justice Christiancy and graves. Justice Campbell, a Detroiter, dissented, taking a position that the general law placed very broad discretion in the board “over the various complications and difficulties incident to a heterogenous city population. Thus, eighty-five years before Brown v. board of Education imposed a similar result on the nation, the court, in People v. board of Education, validated legislation intended to assure equal rights to attend public schools. The case also illustrates that during the second half of the nineteenth century, the Michigan Legislature, similar to the national congress role vis a vis the United States Supreme Court through its efforts to improve the status of black citizens under Michigan law. The RIGHTS TO EQUAL PUBLIC ACCOMODATIONS Between 1858 and 1948, the Mochigan Supreme Court decided four public cases. The first, Day v. Owen was decided before the civil war, and before the Michigan Legislature enacted the state’s first civil rights case before the Sipes v. McGhee decision in 1947, was Ferguson v. Gies. Ferguson was decided in 1890, and was the first civil rights case considered by the Supreme Court under the 1885 Civil Rights act. The plaintiff’s attorney in Ferguson was D. Augustus Straker, one of the state’s most prominent attorneys, and the second black admitted to law practice in Michigan. Straker was probably the first black lawyer to appear before the Michigan Supreme Court. William H. day v. John Owen 5 Mich 520 (1858) In day v. Owen, the plaintiff, a black abolitionist attempted to book passage on the defendant’s steamer, arrow, which travelled between Detroit and Toledo. Day offered to pay for an available cabin, but was told he could travel only on the boat’s deck. Day, rather than occupy the deck, travelled overland and sued for damages, alleging the defendant, as a common carrier, was obligated to receive all persons who apply for transportation”. The defense claimed that because of its regulations and the customs of the country and navigation, “colored persons were not received as cabin passengers”, and that such practice was reasonable as plantiff’s use of a cabin “would have been offensive to other cabin passengers”. The Supreme Court held that because the defendant was a common carrier, the plaintiff had a right to be carried, and this right was superior to the defendant’s contrary rules and regulations. Therefore, if the defendant had been refused passage altogether, liability would have followed. A mode of carriage, however, was on a different footing. The court held that a defendant could adopt reasonable rules if they were calculated to make travel most comfortable and least annoying…to a large majority of the passengers ordinarily carried. Therefore, the regulation in question did not depend on the color of plaintiff or other black travelers, since they were all excluded from the cabins, but rather it addressed the effect they would have on white boat passengers. The law, the court stated, could not require a carrier to accommodate a particular individual and, thereby, “incommode the community at large”. The court also found that the reasonableness of the defendant’s regulation was a mixed question of fact and law to be decided at a trial by a jury, and not by the court. Judgment for the defendant was affirmed. Day, it has been suggested, illustrated that, in 1858, the caste system in Michigan hardened as black suffrage was derailed for yet another decade. Describing the political and social conditions for blacks during the 1850. William W. Ferguson v. Edward G. Gies 82 Mich 358 (1890) William Ferguson, who later became a lawyer and the first black elected to the Michigan legislature (1893-94), was refused service in defendant Gies restaurant. The establishment was divided into two sections: a restaurant side and a saloon side. The former was set up for dinning, while the latter was equipped primarily with the beer tables normally found in saloons. The defendant’s house rule allowed only white patrons to eat in the restaurant section. His offer to serve Ferguson supper in the saloon side was refused, and Ferguson filed suit. The trial judge discussed the Dred Scott case, the emancipation of slaves, and the legislature 1885 civil rights law before instructing the jury in his version of full and equal accommodations. In essence, he followed Day v. Owen, and charged the jury that “full and equal accommodations” did not mean identical, but rather “substantially the same accommodations. Thus, while Ferguson could not be denied service totally, Gies could, under the law, reserve certain tables for white men and others for colored men. The jury found for the defendant. Ferguson appealed, and the Supreme Court reversed. Justice Allen B. Morse, writing for a unanimous court, discarded day v. Owen as but a reminder of the injustice and prejudices of a time past, and held that discrimination based on color alone was unlawful. At a time when anti-negro sentiments and support for the “separate but equal” principle were pervasive, the manner in which this court expressed its approval of the 1885 civil rights law is noteworthy. One commentator characterized Justice Morse’s opinion as a “product of the heart” but, in the context of its time, an espousal of the “white man’s burden” philosophy. Apparently, these “excesses” did not dampen black enthusiasm for Ferguson. Black attorney Fitzhugh L. styles, in his seminal 1936 book, Negroes and the law, wrote: “The decision in this case was a great victory for the colored people of Michigan”. In Bolden V. Operating Corporation, the plaintiff, a Black dentist, was refused a first floor seat in the defendant’s theater. At trial, the defendant attacked the constitutionality of the amended 1885 civil right statue, and whether it, a penal law, could confer a civil cause of action. On both issues, the Supreme Court found against the defendant. People v. BoB-Lo Excursion Company, 317 Mich. 686 (1947). People v. Bob-Lo was a criminal case. The defendant company was convicted in a bench trial in the Detroit recorder’s Court for violating the Michigan Civil Rights statute. It was fined $ 25.00. At trial, the defendant admitted that, on June 21, 1945, it had refused passage on a boat to Sarah Elizabeth ray because she was “colored”. On that day, Miss Ray and 12 white students from Detroit Commerce high School were on a school outing from Detroit to the defendant’s Bob-Lo island amusement park. After the group had purchased tickets and boarded, the boat, defendant’s agents insisted that only Miss Ray leave the boat, and, over her protest, they escorted her ashore. Bob-lo Island (or Bois blanc) is part of Ontario Province, Canada. The defendant claimed it was engaged in foreign commerce as its boats navigating from Detroit to Bob-Lo Island crossed the international boundary between the United States and Canada. Therefore, the defendant maintained, it was exclusively within Congress jurisdiction pursuant to the commerce clause of the US constitution, and not subject to the Michigan statute. On appeal, a unanimous Michigan Supreme Court held the Michigan Civil Rights Act was applicable, and that it did not impose an undue burden on the defendant’s business in foreign commerce. The court also noted that the statute was in accord with the anti-discrimination provisions of the federal Civil Rights Act and the interstate commerce act. The defendant appealed to the United States Supreme Court and in Bob-Lo Excursion Co. V. Michigan the judgment of the Michigan Supreme Court Affirmed. The court held that the commerce clause of the federal Constitution did not prohibit the Defendant’s conviction under the state’s civil rights statute. While defendants business in foreign commerce was subject to federal regulation, the court found that, in this case, the local interest in preventing racial discrimination were of greater concern, and they were not inconsistent or “out of harmony” with federal policy. Racial restrictive Covenants in use and occupancy of real Property (reciprocal negative easements) look up Sipes vs McGhee 316 Mich 614 (1947) In 1920, 40, 438 blacks lived in Detroit. By 1944, this number increased five times to 210,000, approximately 12 percent of the city’s population. Available housing for blacks, however, did not increase proportionately “Ghettoization” worsened. Racial restrictive covenants were one legal means used to limit black housing in Detroit and in other Michigan cities. These covenants involved mutual agreements among property owners to restrict the use and occupancy of their respective properties. The legal result was a reciprocal negative easement, which created a servitude that attached to and “ran with” the land as to subsequent purchasers. Typically, the covenants would provide: “this property shall not be used or occupied by an person or persons except those of the Caucasian race. Parmalee v. Morris 218 Mich 625 (1922), the Michigan Supreme Court upheld the following restrictions: “no building shall be built within 20 feet of the front line lot. Said lot shall not be occupied by a colored person, nor for the purpose of doing a liquor business therein”. The defendants, Mr. and Mrs. Morris, “both colored”, were from Pontiac and were represented by a black attorney W. Haynes McKinney, with the prominent black firm, Barnes and Stowers, of counsel. The Morris argued that racial restrictions were contrary to public policy, and contravened the 13 and 14 amendments of the US constitution. The court’s opinion was comprised almost entirely of quotes. Included were the trial court’s recitations from Civil Rights Cases and Plessy v. Ferguson restating the absence of state action in private property discrimination, and the opinion that law could not eradicate racial distintions in purely private matters. Finally, the court ended its unanimous decisions with a decidedly spurious question and answer session. Ironically, in 1925, the Supreme Court in Porter v. Barrett, following the precedent announced in an 1874 case, Mandlebaum v. McDonnell, had declared restrictions against alienation or the sale of real property “to a colored person” void. As a result, black citizens were in a curious legal quandary. On one hand, they could purchase property, notwithstanding private restrictive sale covenants. On the other hand, they could not occupy or use it, when confronted with private restrictive use covenants. During the 1940’s, the need for housing, exacerbated by Black population influxes caused by World War II and an ever industrializing Detroit, became more critical. Attorneys, Black and White, mounted persistent and more intense legal assaults on the legal recognition of restrictive covenants. The effort was spearheaded by black attorneys; the two most active were black lawyers from Detroit: Francis M. dent and Willis M. Graves. In no less than nine Supreme Court covenant cases decided between 1941 and 1948, graves and Dent represented black clients in four. The most significant case was Sipes vs McGhee. Sipes v. McGhee 316 Mich 614 (1947) In Sipes, the Supreme Court affirmed a decree restraining Black defendants, Orsel McGhee and his wife Minnie from using or occupying a house on Seebaldt Avenue in an all-white Detroit neighborhood. The defendants, seeking to overturn Parmalee v. Morris, raised familiar arguments based on state public policy and the 14 amendments. Many amicus curiae briefs were filled. Included were: numerous home owners associations; briefs on behalf of the Wolverine bar association by earnest Richards and Hobart Taylor Jr; the NAACP led by Thurgood marshall; the Detroit chapter national lawyer’s guild. The Supreme Court, in what appeared an almost stubborn fidelity to stare decisis, reinforced its long and almost uninterrupted history of judicial willingness to follow rather than lead, declined to overrule Parmalee. In the following year, change came decisively. Sipes was a companion case to a Missouri case, Shelley v. Kraemer. In Shelly, a unanimous Supreme Court struck down state judicial enforcement of restrictive agreements as an unconstitutional denial of equal protection of the laws. CONCLUSION This history of Michigan law cases ends with the 1940’s. Shelly v. Kraemer, a landmark case, was a fitting prelude for the momentous decision in brown v. Board of Education in 1954. Brown positioned the country for the massive legal and social changes in the 1960’s that gave equal rights under law to all American citizens. It is hoped that this article, whatever its legal historical value, provides insights into the limitations as well as the efficacy of law as a means for social change. America is a country of laws, but law in action is a human enterprise. The record in Michigan, as elsewhere, shows that when social change involves radical departures from well-established customs and values, the legal system moves slowly, if at all, and that law’s affinity for the status quo can be as large as its capacity to force change. In American race relations, real and dramatic progress was made during the 1960’s and the 1970’s. Laws, particularly those that imposed economic sanctions, helped to end much of the conduct that helped to create and sustain negative racial attitudes. A federal Constitution, in a democratic country with broad equalitarian principles, ultimately prevailed. The declaration and enforcement of rights promoted equality in law, but not necessarily in life. A changed status has yet to affect a disparate quality of life for many blacks in United States. Institutional discrimination and de facto segregation are the challenges for today and the future. They, too, involve social interests, customs and values that are deeply “institutionalized”, in human behavior patterns rather than law. Accordingly, the challenges facing Blacks in the 1980’s are different. While less overt and more subtle, they, in some respects, will be as demanding and difficult as those past. Understanding history will help to understand them. As Justice Oliver W. Holmes Jr so aptly stated: The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism governed. The law embodies the story of a nation’s dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what is, we must know what it has been, and what it tends to become.