Strauder v. West Virginia WAS NOT THE SUPREME COURT’S last word on equal rights, however. Not two hours later, it established a far less expansive standard in a case every bit as odd as that of the West Virginia ax murderer.
It all started when a white teenager yelled “school-butter.”
Although the term sounds silly today, it seems that in the 1870s it was a most extreme insult. “To any who have known the conditions existing in backwoods schools it is unnecessary to explain this phrase,” a Kentucky man wrote.
What it originally meant, if indeed it meant anything, the writer has never been able to learn, nor to obtain a reasonable explanation. But from rural Pennsylvania to Arkansas, and even in parts of Indiana and Michigan, it was known as the most humiliating insult, and one certain to provoke swift revenge. All rules against fighting stood aside in favor of a pursuit of the person who called the word to the school.1
In mid-November 1877, Aaron Shelton’s younger brother, likely about sixteen, yelled “school-butter” as he was passing an African American school in Patrick County, Virginia. Patrick County was in the eastern part of the state, on the border of North Carolina; along with Henry County, immediately to the east, it was named in honor of the famous Virginia patriot and orator, who also happened to be one of the state’s most fervent defenders of slavery.2
What happened next was not totally clear. The younger Shelton complained to his brother that some of the students at the school, including eighteen-year-old Lee Reynolds, had given him a “ducking,” which usually meant pushing him under water, although this incident might have involved simply pouring water on his head. Lee Reynolds’s brother Burwell, who was nineteen, was also said to have been a participant.
About two weeks later, on November 27, Aaron Shelton, who was twenty-two and “of extraordinary physical development,” was passing the school to fetch a load of logs for his uncle’s sawmill. He yelled “school-butter,” without provoking a response. Later that day, however, during recess, in which the teacher had “left his school in charge of one of the grown and advanced scholars,” another of Aaron Shelton’s brothers, this one only thirteen, yelled “school-butter” at the those playing outside. They chased him and he ran to where his brother was loading his wagon.
That provoked a confrontation in which Aaron Shelton told the black children that he would yell “school-butter” whenever he wanted, and that if anyone objected, “he would shoot their heart-strings out.” If the teacher interrupted, he would shoot him as well. One of the black children was the Reynolds brothers’ younger sister, to whom Shelton used “abusive language.” That evening, “Shelton and the Reynolds boys had a dispute about some logs Shelton’s uncle had cut and left in the road.”
The stage was then set for the final confrontation between Aaron Shelton and the Reynolds brothers. It took place on November 29, 1877, when Shelton was hauling a wagon up the road to pick up the load of logs. Lee and Burwell Reynolds were leading their father’s team of horses in the opposite direction on the same road. A quarrel ensued. According to one of Shelton’s younger brothers, Green, who was a witness to the events, the confrontation quickly escalated, and Lee Reynolds took a shot at Shelton with the rifle he always carried. The shot missed. Shelton, wielding a heavy stick, then charged Lee Reynolds and knocked him to the ground. “At that time, Burwell Reynolds ran up and stabbed Shelton in the back with a large butcher knife.” Aaron Shelton died on the spot.
Lee Reynolds was arrested at the scene. His brother fled the county but was soon caught. Each claimed that Green Shelton’s version of the events was a lie: no gun was ever fired; Aaron Shelton started the fight by charging at Lee with a length of lumber; the knife had been Shelton’s; he died after being stabbed in the struggle he began; Burwell Reynolds had merely tried to separate the two, as Shelton was much stronger than Lee.
Not surprisingly, which version residents of Patrick County believed was determined almost solely by race. Since the grand jury that was to decide whether or not to bring criminal charges was all white, both brothers were indicted for first-degree murder, the most serious offense possible. For Lee Reynolds in particular, the charge was extreme because he had not personally had a hand in Aaron Shelton’s killing.
The Reynoldses’ lawyers were white, and, like Blackburn Dovener, were war veterans. This time, however, the two men—Colonel William Martin and Captain A. M. Lybrock—had fought for the Confederacy. Martin, in his sixties, had a long record of public service, and “as a lawyer, orator, and statesman, he was regarded as the peer of any man in Virginia.”3 He had lost a brother in the war. Although they had fought to protect slavery, they would defend the Reynolds brothers with as much energy as Blackburn Dovener had exhibited with Taylor Strauder.
Their first problem was in jury selection. Virginia law stated, “All male citizens twenty-one years of age, and not over sixty, who are entitled to vote and hold office, under the constitution and laws of this state, shall be liable to serve as jurors.” In practice, however, a trial judge—and all the judges in Patrick County were white—picked a pool of potential jurors as he wished, and then placed their names in a box from which the actual trial jurors were selected. For this trial, as for just about every trial in Virginia, the judge chose a jury pool that was also exclusively white. Martin and Lybrock petitioned the judge to include men of color, since the verdict of an all-white jury was almost certain to be unfavorable to the defendants. The judge refused, replying that he had chosen the jury pool according to law. That no black men were included—or were ever included in Patrick County—was not an issue for the court.
Martin and Lybrock then asked that the trial be moved to federal court on constitutional grounds. The judge refused. Lee and Burwell Reynolds chose to be tried separately and each was found guilty, Burwell of first-degree murder, Lee of second. On technical grounds, Martin and Lybrock managed to get a new trial for each. Their motion to have the retrial moved to federal court was denied.
Lee was again found guilty and sentenced to eighteen years in prison. Martin and Lybrock, however, succeeded in obtaining a hung jury for Burwell on the grounds that first-degree murder, which required Burwell to have decided in advance to kill Shelton, had not been proven. That Burwell would be convicted of second-degree murder, like his brother, there was no doubt. At that point, Martin and Lybrock filed a motion with United States District Court Judge Alexander Rives to have both cases heard in federal court.
They could not have made a better choice.
Bright, quirky, and fearless, Rives had spent his entire adult life following his own dictates with little or no concern for the opinions or even the loathing of friends, family, neighbors, or peers. Both his mother—a Cabell—and his father were members of the “First Families of Virginia,” with a long tradition of gracious living, deference to authority, and slave owning. From an early age, Rives not only demonstrated a dislike of all three, but made it quite clear that he would live his life as he pleased. He put them on notice just after his twentieth birthday, when, rather than taking a bride from Virginia gentry, he chose a minister’s daughter, two years his senior, and an immigrant besides. The two would remain married until her death in 1861 and would have ten children. (Rives took a new wife the very next year.)
After Hamden-Sydney College, in which he enrolled in 1821 at age fifteen, Rives studied law at the University of Virginia. Upon graduation, he accepted a professorship at a small Virginia college, resigned it soon afterward, and returned to Charlottesville to start a law practice. For a time, he handled mostly real estate transactions, but in the 1830s he became involved in local politics as a Whig. There, he continued to speak his mind and make enemies, including engaging in a feud with Governor Thomas Gilmer because of Rives’s harsh views on slave-owning. The two did not speak for years.
In 1845, Rives leapt into the public eye under extremely peculiar but quite revealing circumstances.
When officials at the University of Virginia had attempted to crack down on a series of pranks by a group of students who called themselves “Calathumpians,” disturbances had erupted that escalated into full-blown riots. The Calathumpians had formed the year before, and was composed of “exemplary students bent on ‘fun, frolic, and childish folly.’”4 With alcohol as a contributing agent, the students soon began to engage in behavior that their elders did not deem childish folly at all. When three Calathumpians were suspended in February 1845 for “raising a scene of disorder at one of the college hotels”—dormitories—the others in the group put on masks and “made an attack with sticks and stones on the home of the chairman.”
A truce was arranged and held for about six weeks. In April, Calathumpians surrounded the home of an unpopular professor, raised a din with horns and drums, and soon afterward began pounding on his windows, terrifying his wife. They had only dispersed when the professor appeared with a rifle and promised to shoot anyone who refused to leave. The Calathumpians retreated but were soon laying siege to the homes of university officials across the campus. Windows were broken, and even the famed university rotunda, designed by Thomas Jefferson, was pitted with damage from stones.
University officials began to consider calling in the militia, something they very much did not want to do. They considered the campus almost a separate state, quite superior to the town that surrounded it. But before they were forced to make the fateful decision, a savior appeared.
A member of the Charlottesville bar, Alexander Rives, an able but eccentric man, without invitation from anyone, hurried up from town, and through his influence, the students announced that a meeting of their body would be held at four o’clock that afternoon. In the meanwhile, they promised . . . that they would refrain from all disturbances . . . At four o’clock, about seventy students assembled, and after an address by Rives, who had held no communication with the Faculty or the executive committee, they formally pledged themselves to commit no further breach of the peace.5
And so, the Calathumpian revolt ended.
Although he obviously held appeal for students, Rives continued to infuriate just about everyone else. His family was incensed that he opposed secession, which he had done even as a young man. In 1832, when he was only twenty-six, he had written to James Madison, who was then eighty-one, and asked if secession would be legal under the Constitution, as many Virginians—and most of the Rives and Cabell families—believed it was. “The opinions of the chief architect of our political systems should not be misconstrued or perverted to sinister purposes,” he wrote to Madison. He signed the letter, “A Friend of Union and State Rights.”6 Madison replied that he did not believe a state may “at will” renounce its agreement to remain in the Union. “A rightful secession requires the consent of the others, or an abuse of the compact absolving the seceding party from the obligation imposed by it.”7
In the decade before war broke out, Rives again turned to politics and served in the Virginia state legislature. He left government when Virginia left the Union. Rives remained in Charlottesville during the conflict, never masking his belief that Virginia’s secession was illegal. It is likely that only his personal reputation saved him from violence at the hands of secessionists. After the defeat of the Confederacy, he was appointed to the state’s highest court and then, in 1870, decided to run for Congress as a Republican. He lost, but was appointed by President Grant as a federal district court judge. And there he had continued to serve when the Reynolds brothers’ motion arrived on his desk.
Rives loathed abuses of power, and in the conviction of Lee Reynolds and the near-conviction of Burwell Reynolds, that is precisely what he saw. Rives declared the trial judge’s refusal to include African Americans in the jury pool a violation of the United States Constitution, in denying them a trial by a jury of their peers. Although he did not put it in those terms, Rives had clearly ignored precedent and used Fourteenth Amendment guarantees to apply the Bill of Rights to the states.
He also decided that simply ordering the trial moved to federal court in Danville, where he sat, would not be enough. So he sent federal marshals to take the brothers into custody and hold them in safety until they could be tried in federal court by a jury that included men of color.
This legal kidnapping of the defendants “created no small stir amongst the bar,” newspapers reported. “Its substantial effect is to strip the State courts of their jurisdiction in cases where a negro is tried unless a black jury is empanelled to try him, and looks as if the honorable Judge sought either to force the judges of the State courts to put negroes on their juries or to take the cases from them.”8
Rives was unperturbed. “In my own court,” he said in an interview, “I have always ordered mixed juries, and have not discovered that any harm resulted from it; on the contrary, the lawyers seem to prefer them.”9
But “a small stir amongst the bar” was soon replaced by huge storm of protest. Judge Rives was called a usurper and worse. Rives’s “capture” of the Reynolds brothers was called “a flagrant and unconstitutional encroachment upon the exclusive and unquestionable authority of the State.”10 When the Virginia legislature was criticized by a Philadelphia newspaper for announcing that it intended to “look into” the situation, a Virginia newspaper responded that the author was “a man who either regards all the people of the United States as slaves, or else regards the southern people as slaves.”11 White Southerners were quite fond of accusing Northerners of treating them like “slaves,” seeming to forget that it was the South, not the North, in which human slavery had been important enough to fight a war over.
Some critics used reason, trying to demonstrate that all-white juries were more fair.
The absurdity of the decision, that a verdict of a white jury against a negro is not good, is scarcely worth while discussing. Judge Rives, in fact, instead of placing the two races on a civil equality, does exactly the reverse, and decides that the whites and negroes have different rights and different privileges—that a white man must have a white jury to try him, a negro a colored jury.12
Other articles claimed black criminals begged to be tried by a white jury.13
While reaction in the South was predictable, feelings in the North were often just as extreme. An editor in The Brooklyn Daily Eagle wrote that the issue was “whether a colored man, on trial for a criminal offense which is clearly within the exclusive jurisdiction of a State court, has a right to demand a jury composed in whole or in part of men of his own color.” He then added, “If such a right exists in Virginia, it also exists in New York.”14
Eventually, the Virginia legislature did take up the matter, and in January 1879 drafted an official twelve-point proclamation denouncing Rives and calling his action “unwarranted by the Constitution” and “destructive of the rights of the people of each State to protect life, liberty, and property in their own way, by their own courts and officers,” which “ought at once be remedied by proper judicial action.” The governor was “instructed to direct the Attorney-General to institute proceedings in the name of this Commonwealth before the Supreme Court of the United States.”15
Rives responded in character. Instead of backing down, he issued arrest warrants for five Virginia county judges who had publicly refused to seat black jurors, the judge in the Reynolds case not among them. Then he locked them up. And he did not intend to stop there. “That the Judge is not dismayed by the adverse criticism on his conduct, not only in the State, but throughout the country, is certain. He has determined to carry on the war against the offending State Courts everywhere, and will demand the indictment of other Judges, who, as he claims, have violated the law.”16
The judges petitioned to the Supreme Court to be released on a writ of habeas corpus. Ex parte Virginia, the judges’ petition, which had been joined by the Commonwealth, would be reported out immediately with Virginia v. Rives, the Reynolds brothers’ appeal.
In the first case, whether Judge Rives had acted properly in removing the Reynolds brothers to federal jurisdiction depended on whether their Fourteenth Amendment rights had been violated, which led directly to Virginia’s law governing the selection of potential jurors. In Strauder, West Virginia law had restricted jurors to white men; Virginia law did not. Still, for practical purposes the effect was same, since, as Alexander Rives had made plain, Virginia trial judges simply refused to consider African Americans for jury service, although most had not made a point of saying so. Virginia claimed judges were merely adhering to its laws, which made no mention of race and were therefore nondiscriminatory. Would the Court take into consideration that—whatever Virginia law might have said or not said—it was clearly being administered in a discriminatory fashion, as Rives had insisted?
The decision, handed down immediately after Strauder on March 1, 1880, was unanimous. As in Strauder, it was written by Justice Strong.
As was common in cases involving discrimination against African Americans, the justice began with lofty rhetoric: “The plain object of these [enforcement] statutes, as of the Constitution which authorized them, was to place the colored race, in respect of civil rights, upon a level with whites. They made the rights and responsibilities, civil and criminal, of the two races exactly the same.”
Then, however, Strong pointed out “that [neither] the Constitution or laws of Virginia denied to [the defendants] any civil right, or stood in the way of their enforcing the equal protection of the laws. The law made no discrimination against them because of their color, nor any discrimination at all . . . It does not exclude colored citizens.”17 The state, therefore, was blameless.
As for the trial judge who “confined his selection to white persons, and refused to select any persons of the colored race, solely because of their color,” Strong restated that the Fourteenth Amendment “was intended for [African Americans’] protection against State action, and against that alone.” And so, “any action [that] was not the state, but a person,” such as the trial judge, “was not covered under the Fourteenth Amendment.” And so, Judge Rives’s actions were deemed improper and the Reynolds brothers were ordered returned to state custody.
Rives fared better in Ex parte Virginia. For the majority opinion in a 7–2 decision, Justice Strong, again citing a published intention to discriminate, refused to grant the writ of habeas corpus to the five jailed judges. Rives then announced his attention to make each of them stand trial.
In April 1880, Rives held trials for two of the five jailed county judges in federal court, but, in an irony, mixed-race juries acquitted them both. Rives declined to pursue the matter further and freed the other three. In June, Burwell Reynolds went on trial in Danville, the very city in which Alexander Rives sat as a federal judge. Perhaps because of the previous incarceration of his colleagues, the trial judge included black men in the jury pool, and four of them were chosen to sit on the jury. That is perhaps why, although Burwell Reynolds was convicted, it was only of manslaughter, a lesser charge than murder. He was sentenced to five years’ imprisonment, much lighter than the eighteen years Lee had originally received. Lee Reynolds did even better. The prosecution declined to prosecute him before a mixed-race jury, and he went free.18
Soon, however, jury selection in Virginia reverted to its pre-Rives state. Judges continued to insist that black jurors were not required, even in cases in which a black person was plaintiff or defendant, an opinion sustained by the Virginia Supreme Court of Appeals. As such, local judges were free, as before, to avoid placing black men in the jury pool wherever possible.
* * *
The impact of the Court’s rulings on March 1, 1880, was immense, but to appreciate the impact, the three cases must be taken together and not viewed as separate events. While Strauder is widely cited, many analyses fail to blend in Rives. As such, Strauder can easily be seen as a victory for equal rights.19 But Rives disemboweled Strauder—it was a discrimination handbook. It assured white Southerners that as long as they did not announce their intent to discriminate by putting references specific to race in their laws or their constitutions, they were free to treat American citizens of color pretty much as they pleased in jury selection, voter registration, or anything else. These were lessons that white Southern Democrats learned all too well, and black Americans paid with their freedom and their lives. One can gussy up the analysis by referring to “state action,” “original intent,” “political rights vs. civil rights,” or any other jargon, but at its core, this was law with a wink and a nod. If anyone is looking for a case that defines the Court’s view of equal rights, it is Rives, not Strauder.
The following year in Neal v. Delaware, the Court refined the principle. There, a black man accused of raping a white woman petitioned to have his case removed to federal court since the grand jury that indicted him and the petit jury that would hear his case would be exclusively white. The state constitution, which predated ratification of the Fourteenth and Fifteenth Amendments, had restricted voter registration to free white males over the age of twenty-one. But with the amendments in effect, Delaware courts “held that the restriction to a ‘white’ citizen is without effect.” Delaware, however, did not change the law and not a single black man had since been called to sit on a Delaware jury.20
Although the case would ordinarily have seemed to fall under the Rives rule, Delaware, unlike Virginia in the Rives case, made no attempt to refute Neal’s claim. In fact, the chief justice of the Delaware Supreme Court had stated precisely the opposite. “That none but white men were selected is in nowise remarkable in view of the fact—too notorious to be ignored—that the great body of black men residing in this State are utterly unqualified by want of intelligence, experience, or moral integrity to sit on juries.” As such, Strong’s opinion in Rives, that the mere assertion of discrimination—regardless of overwhelming support by the facts—“fell short of showing that any civil right was denied, or that there had been any discrimination against the defendants because of their color or race,” did not apply.
Justice Harlan, speaking for a 7–2 majority, ruled for the plaintiff on the grounds that he had provided ample evidence of discrimination.
The showing thus made, including, as it did, the fact . . . that no colored citizen had ever been summoned as a juror in the courts of the State . . . presented a prima facie case of denial, by the officers charged with the selection of grand and petit jurors, of that equality of protection which has been secured by the Constitution and laws of the United States. It was, we think, under all the circumstances, a violent presumption which the State court indulged, that such uniform exclusion of that race from juries, during a period of many years, was solely because, in the judgment of those officers, fairly exercised, the black race in Delaware were utterly disqualified, by want of intelligence, experience, or moral integrity, to sit on juries.
Justices Field and Waite dissented. After noting, “It is obvious that the mere fact that no persons of the colored race were selected as jurors is not evidence that such persons were excluded on account of their race or color,” Field posited, “It would seem, when the law has been obeyed, as in this case, that something more than the mere absence of colored persons from the panels should be shown before they can be set aside.” Then he concluded, “And the fact that colored persons had never, since the act of Congress of May 1, 1875, been selected as jurors may be attributed to other causes than those of race and color.”21 It would have been interesting if Justice Field had enumerated just what those possible other causes were.