CHAPTER 7

The Association Goes
to Federal Court

“We deserve for the government to pay us as an indemnity for the work we and our foreparents was rob[bed] of from the Declaration of Independ [ence] down to the Emancipation.”

CALLIE HOUSE
(1899)

DESPITE THE FEDERAL government’s attacks on the movement, Callie House continued to lecture to local chapters and mobilize membership in the National Ex-Slave Mutual Relief, Bounty and Pension Association. Her family responsibilities were alleviated because her children, now grown, had their own jobs and could better fend for themselves. Her brother and his wife, who lived next door, could lend a hand, if needed, when she was away on association business. However, by now Mrs. House could see that the efforts in behalf of the always embattled poor rural and urban African Americans could only go so far. The association could have pension legislation introduced, but it did not have the resources to gain its passage. Further, at the Pension Bureau’s instigation, the whole reparations idea had been denounced by key members of Congress. In addition, the association leaders had to worry about fraud charges against local agents brought by state prosecutors, urged on by the Justice Department. Local chapters maintained their mutual assistance programs, but the communications barriers and attacks on their leaders made effective organizing toward the reparations goal increasingly difficult. The fraud order made fund-raising perilous. Through use of expensive commercial delivery services, solicitations at meetings, and occasional mailings to intermediaries, Association leaders kept a bare trickle of financial support flowing to the national office. Clearly, the movement needed another strategy. At this juncture, according to federal officials, Callie House “instigated and paid for” a reparations lawsuit.¹

This new tactic taken after they had practically destroyed the movement infuriated federal officials; it provided yet another reason to harass House. They denounced the litigation as part of a continuing moneymaking scheme to defraud “credulous” ignorant ex-slaves. Mrs. House saw the courts as responsible for deciding claims of injustice when legislative lobbying failed. Even though the courts had proved inhospitable to suits seeking protection for blacks under the Fourteenth Amendment, judicial protection of minority rights was firmly embedded in the Constitution. And the Constitution was the rock on which all of Mrs. House’s claims of political agency and citizenship rights for the ex-slaves stood. This lawsuit offered another route to establish their claims legally. Besides, even if the effort failed, it might engender more public understanding of the pensions cause. Turning to the judiciary was just another example of using whatever weapons came to hand.²

From Mrs. House’s perspective, the national political climate after the election of Woodrow Wilson on the Democratic Party ticket in 1912 had made bad matters worse. The ex-slaves living in the poor communities where she lived and worked were without the right to vote, without land, and without means of support beyond meager wages for their labor; many were disabled and suffered in their feeble old age.

She understood that some leading African Americans had changed parties to vote for Wilson, hoping to attract more attention to the need to end lynching and disenfranchisement. However, the Wilson administration’s New Freedom agenda did not extend to African Americans. In Washington, D.C., where black employees had worked freely with whites in the federal workforce, the Wilson administration instituted segregation. The downturn in the fortunes of African Americans coincided with the continued harassment of the ex-slave pension movement by federal officials during the Wilson years.³

Mrs. House understood that the people she represented needed inspiration. They must not give up in discouragement. She thought that recording ex-slaves’ claims in the petitions continued to be important and the movement effectively served local ends. Members helped one another to survive and the movement also gave ex-slaves and their families a larger vision that the slave experience validly justified compensation for their suffering. The courts offered another venue to argue their case.

The Association had been in court supporting Isaiah Dickerson’s successful appeal of his Georgia criminal conviction, but this marked its first foray into civil litigation. They knew that Homer Plessy had achieved a victory in a civil case in the lower court before ultimately losing at the appellate level. After deciding on a suit, Mrs. House faced the challenge of identifying a competent lawyer to handle the case. She identified Cornelius Jones, an experienced litigator. Jones and Wilford Smith were the African Americans usually discussed as the best-known and most successful African-American attorneys in the Mississippi bar. Both had gained bar admission at the same time, and both argued separate cases before the U.S. Supreme Court on December 13, 1895, challenging the exclusion of blacks from grand juries. Newspaper publisher Calvin Chase’s Washington Bee reported that this marked the first time that more than one black lawyer had appeared before the Supreme Court in different cases on the same day. It was a time when, among the small number of African-American lawyers, few had argued before the nation’s highest court. Chase considered this a major indication of racial “progress.”⁴

Jones, both an active politician and a practicing lawyer, had served one term in the Mississippi legislature in the 1890s. He lost a disputed contest for a congressional seat in 1896 after claiming unsuccessfully that he had been elected with votes from 40,000 black voters and 10,000 whites. Hailing Jones as “a superb Constitutional Lawyer,” publisher Edward Cooper’s Colored American lamented the failure of Congress to act on his 1896 election challenge and noted Jones’s role as one of the first African Americans to openly oppose black disenfranchisement. The paper identified him as “the first and only Negro lawyer appearing in the Supreme Court of the United States, unsupported by a white lawyer” in defense of the rights of the “Negro,” under the Thirteenth, Fourteenth, and Fifteenth Amendments. Jones’s work with Emanuel D. Molyneaux Hewlett, one of the leading African-American lawyers at the bar, in a 1896 Supreme Court case, Gibson v. Mississippi, led to a decision that excluding blacks from grand juries violated the Fourteenth Amendment.⁵

Hewlett, a graduate of Boston University School of Law and admitted to the District of Columbia Bar in 1883, was one of only six black lawyers practicing in the city in 1885. He became a highly successful criminal defense attorney and stayed well connected in Republican political circles. He served as a justice of the peace from the Harrison administration through the presidency of Theodore Roosevelt. When he died in 1929, the Supreme Court of the District of Columbia adjourned out of respect for him, an honor reserved only for the most respected members of the bar. For Mrs. House, engaging Jones to seek compensation, she hoped, would not only ensure effective representation but might encourage the support of leading African Americans who had ignored or denounced the pension cause.⁶

Cornelius Jones was one of the widely known and respected African-American civil and criminal trial lawyers. Callie House chose him to sue the government for reparations from the cotton tax.

Calvin Chase, editor of the Washington Bee, an opponent of the ex-slave petition movement but a proponent of Jones. He published favorable stories about the cotton tax suit but not about Callie House and the Association.

Jones agreed with House that congressional action afforded the most reasonable approach to gaining reparations, but since that strategy had failed, he would develop the best possible case to bring before the courts. She and Jones decided to aim the court attack at the widely discussed cotton tax. The proceeds from the sale for federal tax payments of cotton confiscated by federal troops had been the subject of reports in black newspapers. The reports noted that ex-Confederates who had tracked the funds found that they lay untouched in the Treasury. When the Civil War began, the cotton had already been picked and stored. Congress enacted the tax first, in 1862, at two and one-half cents per pound on raw cotton, for the ostensible purpose of paying war debts. In 1866, Congress increased the tax to three cents a pound. This time Congress designated no specific purpose for the money. The newspapers also reported that southern senators unsuccessfully sought legislation to return the funds to the ex-slaveholders. Jones wanted this identifiable fund distributed among the old ex-slaves.⁷

The cotton raised and gathered by the hands of slaves was the source of funds sought in the tax suit. “Rolling Cotton on Board the ‘Tatum,’” Harper’s Weekly, May 2,1863.

First Jones wanted to make sure the cotton tax funds still existed. In May 1915, before filing the case, he wrote to Secretary of the Treasury William G. McAdoo, asking about cotton tax revenue. Assistant Secretary William S. Malburn responded that the courts had never decided whether the tax had been constitutional in the first place. Malburn concluded that “though bills for a refund of the cotton tax have been introduced in Congress from time to time, no legislation has been enacted; and the subject is one within the jurisdiction of Congress.”⁸

Consequently, the suit Callie House inspired claimed that the Treasury Department owed African Americans $68,073,388.99, collected in cotton taxes between 1862 and 1868 and demanded repayment of the debt. In July 1915, Attorney Cornelius Jones filed the association’s class action suit in federal court in the District of Columbia against Secretary of the Treasury McAdoo, claiming a specific debt owed from the production of certain cotton crops during slavery. Because this cotton had been identified when it was taxed, it could be traced in the Treasury, and thus the suit avoided the issue of whether Congress would appropriate funds to pay for pensions as compensation for the ex-slaves. Jones cited by analogy Indian monies held in the Treasury that were payable under specific Indian treaties. Jones wanted this identifiable fund distributed among the old ex-slaves.⁹

Jones avoided specific references to Reconstruction or developments during slavery to support the claim for debt repayment to African Americans. Callie House, Frederick Douglass, and other advocates did not discuss specific Reconstruction policies or failures either. They knew that the Freed-men’s Bureau had never really controlled any significant land in the South. Besides, President Andrew Johnson’s Amnesty Proclamation of 1865 had forced the restoration to ex-slaveholders of what the agency did control. Frederick Douglass, in insisting on reparations, emphasized that “the Russian serf was provided with farming tools and three acres of land with which to begin life,—but the Negro has neither spoils, implements nor lands.” House talked routinely of how the old ex-slaves had received nothing for their labor.¹⁰

In the suit, Jones avoided novel arguments and any focus on Jim Crow, the rights of blacks, or the horrors of slavery. Instead, he strategically formulated the suit in sterile, formal legal terms common in the period. His strategic arguments reflected the negative racial climate of the times. He and Mrs. House knew by the time they brought the case that African Americans had endured the reversal of positive uses of Reconstruction civil rights legislation. By this time, the courts had routinely affirmed the use of the Fourteenth Amendment to defend corporations, not African Americans.¹¹

Jones knew that legal rules, such as governmental immunity—the legal principle that the government cannot be sued without its consent—limited his case. That is why he kept insisting that though the government held the tax revenue, the proceeds always belonged to the ex-slaves. Surely, he argued, the ex-slaves had a right to the funds generated by their labor even though they could not exercise that right during their enslavement.¹²

In response to the suit the Treasury Department went on a public relations offensive. In a press statement of October 15, 1915, the department insisted the government had a right to keep the tax money and that if the ex-slaves “had any claim it would be against their masters.” The Treasury Department expected to win based on governmental immunity since “the usual fate of such suits is to be thrown out of court because of lack of jurisdiction.” The statement warned anyone who gave to a fund for prosecuting the suit against “throwing their money away.”¹³

Despite the earlier letter to Jones from Malburn, the Treasury Department not only slammed the lawsuit but denied the existence of the monies sought by the ex-slaves. Secretary of the Treasury McAdoo wrote to Jones denying the existence of the cotton tax revenue. He also asserted that “the United States Supreme Court decided the tax of 1862-68 was unconstitutional, and that the money collected as a Civil War revenue tax has been treated as part of the general receipts of the Government and applied to payment of government debts.” McAdoo stated, “There is no fund of $68,000,000 or any other sum in the Treasury of the United States for ex-slaves, or those who worked in the cotton fields of the South.” Jones denounced McAdoo’s response, insisting that either sometime after writing to him in June, Treasury had spent the funds, or the government still had them in the account and McAdoo was denying their existence to defeat the lawsuit.¹⁴

The District of Columbia Court of Appeals rejected Jones’s claim in the cotton tax case on the grounds of governmental immunity. The United States could not be sued without its consent. Jones filed an appeal to the U.S. Supreme Court but lost. The justices upheld the lower court decision.¹⁵

The freedpeople lost the case because the court would not let them overcome the government’s procedural objection to having a trial to determine who owned the funds. Today waivers of governmental immunity might allow such a claim to avoid immediate rejection in the courts. However, Jones’s plea failed because the court decided that governmental immunity superceded a determination as to whether African Americans might receive the funds.¹⁶

Out of regard for Jones’s prestige, black newspapers that usually ignored or denounced Callie House and the Association commented favorably on the suit when it was filed. However, the Washington Bee, still deeply committed to denigrating Mrs. House and the Ex-Slave Association and knowing of the federal government’s enmity toward the pension movement, insisted the case had no connection with the “agitation of freedmen” for pensions. Other African-American papers expressed the same view, or did not mention the association at all in the news coverage about the suit.¹⁷

After Jones filed the case, he circulated information about it to potential claimants and asked for support. Jones and the ExSlave Association asked for local chapters and general public contributions. Jones, in a letter, asked African Americans to contribute $1.75 each to support the suit and explained that exslaves would share in the proceeds if the case succeeded. Federal officials chose to characterize movement leaders’ efforts to publicize the case to their grassroots constituency as further evidence of criminality. Federal officials reported that, “renewed activity on the part of Callie D. House and other persons who had been connected with the ex-slave pension movement at once became apparent.”¹⁸

Although the case was lost, Jones, by representing the exslaves, made himself a target of the governmental officials already attacking Mrs. House and the Association—the hostile Post Office Department and Pension Bureau officials. Angered by the lawsuit, government officials tried a strategy against Jones that they planned to use against Mrs. House. Just as they could not harass her for exercising her citizenship rights to petition the government, they could not prosecute Jones for litigating the cotton tax suit at her instigation. Instead Post Office Department officials decided to prosecute him for violating the Postal Code by using the mails to defraud. They made this decision while Jones was appealing the cotton tax case to the U.S. Supreme Court.

Congress had enacted modifications in the postal fraud law to ease prosecution of fraudulent land and mining deals that were quite prevalent at the time, and the new Postal Code language made it possible to obtain a conviction even when no “scheme or artifice to defraud” had transpired. The new provision exacted a penalty of $1,000 or imprisonment for not more than five years or both for obtaining money or property by false or fraudulent pretenses or promises, by “placing or causing to be placed, any letter…in any post office.” Under this language, in 1914, the U.S. Supreme Court decided the postmaster did not need to prove a scheme to defraud. The placing of a letter in the mails concerning what the postmaster considered a fraudulent project provided sufficient proof. Using the mails to carry out a scheme, by making promises the postmaster considered impossible to perform—or promises the defendant had no intention of performing—constituted using the mails to defraud. The government charged Jones with fraud for mailing letters seeking support from African Americans who might benefit from the lawsuit. The government sought to punish Jones for having the temerity to bring the lawsuit and for his connection to the Ex-Slave Association.¹⁹

Alexander R. Pitts, the U.S. attorney in the Southern District of Alabama, wrote Justice Department headquarters enclosing a circular that J. D. Watson, an agent collecting funds for Jones, to support the case, had allegedly distributed. Pitts concluded that Jones’s agents had been “going through the country collecting hard-earned money from poor negroes” in violation of the Postal Code. Pitts volunteered that he could provide “plenty of witnesses” who had made contributions. He had called in Watson and directed him to produce receipts and communications from Jones soliciting contributions. Pitts later informed headquarters that he had enough evidence to prosecute Jones in either Memphis or Selma, and a decision was made to proceed in Memphis.²⁰

After the U.S. attorney in Memphis, Hubert Fisher, filed charges, he vacillated on whether to actually seek punishment. His uneasiness about prosecuting the case probably resulted from his background and professional aspirations. A Democrat, born in 1877, Fisher graduated from the University of Mississippi at Oxford (“Ole Miss”) and attended Princeton for a year. He read law and began a practice in Memphis. He became politically active, serving as a delegate to the Democratic National Convention in 1912 and later in the State Senate. President Wilson appointed him U.S. attorney in 1914. If he aspired to a federal appointment, he would need positive responses from respected members of the bar in addition to political connections. He first sought a postponement because “the cotton tax case, Johnson v. McAdoo, has not been decided by the U.S. Supreme Court.” Then he told the court he had decided not to prosecute at all, but later he went forward with the complaint against Jones. In the proceedings, the jury returned a guilty verdict.²¹

Instead of accepting the jury verdict, Judge John Ethridge McCall, who presided over the case, ordered a new trial. McCall appeared as uneasy as Fisher about the government prosecution of a lawyer on such a minor charge while the lawyer was suing the government in the underlying matter of the tax case then before the U.S. Supreme Court. McCall cared about the reputation of the judicial branch. A sixty-year-old Republican and native Tennessean, he attended the University of Tennessee and read law. After admission to the bar he began editing a newspaper, The Tennessee Republican. He savored the reputation of having “distinguished himself as a fearless fighter for principles which he believed to be right.” He also practiced law privately for about two years and served one two-year term in the state legislature before accepting a succession of political posts. He served as U.S. attorney, one term as a member of Congress, and ran unsuccessfully for governor in 1900. President McKinley had appointed McCall as a district collector of internal revenue before President Theodore Roosevelt nominated him to the district court. According to the Memphis Commercial Appeal, locals saw him as “a courageous foe of the liquor traffic back in the days when it required courage to take a stand against the system. He fought the liquor interests from the platform with great effectiveness and many Memphians will remember his forensic assaults here 15 years ago during the wide-open regime.” He thought it important that his behavior at all times reinforce public confidence in the integrity of the court.²²

Thus McCall was reluctant to accept a conviction, and in the next term U.S. Attorney Fisher decided not to prosecute the case further. Jones’s reputation and connections served him well. Each time Fisher had moved forward with the prosecution, a number of respectable African-American witnesses had gathered in Memphis to testify for Jones, including Calvin Chase of the Washington Bee and the Washington, D.C., justice of the peace Emanuel Hewlett. Their support, naturally, contrasted sharply with the negative racial tone of reports in the local Memphis Commercial Appeal. One article began, “The members of the race have been prone from time immemorial to strive to get something for nothing.” Now the government had charged Jones with “fleecing thousands of the members of his race out of hard earned dollars.” If he had confined his efforts to personal appeals, the newspaper concluded, Jones might have escaped, but the letter writing had sent the postal authorities after him. The newspaper likened Jones and Mrs. House’s suit to stories Harris Dickson of Vicksburg wrote regularly in The Saturday Evening Post that portrayed his belief in the stupidity, laziness, dishonesty, and childlike behavior of “big, black, credulous” African Americans. According to the Commercial Appeal, Dickson’s work included a series of “negro get-rich-quick schemes revolving about one Rev. Criddle and Virgil Custard” that “rocked the sides of readers of a well known publication for many a month.”²³

The Memphis Commercial Appeal of January 18, 1917, reported the first delay in the prosecution with a headline saying that Jones had been “Released but Warned.” The newspaper inadvertently gave evidence of the grassroots support for the movement, reporting that the ex-slave pension cause had become quite popular, with huge numbers of African Americans turning out for meetings. In Canton, Mississippi, in September 1916, masses gathered to hear Jones who composed a song for the occasion and sold copies for five cents each to support the cause. “Every emotion, which would stir the negro soul, was brought out in the several stanzas and chorus contained within the covers of the little pamphlet.” Under the title “Voices from the Tomb of the Slaves,” the first stanza expressed the mission of the ex-slave movement:

Do you hear those voices calling
From their lone and musty graves
Urging us to note the toilings
Of the poor neglected slaves?

Despite the hostile press, the government’s final decision not to prosecute Jones ended the matter. The lawyers involved survived the experience and even prospered. Hubert Fisher’s reputation remained intact; elected and reelected, he served in Congress from 1917 to 1931. Despite the Post Office Department’s threats to pursue Jones, no record has surfaced of any further prosecution of Jones in the Southern District of Alabama or elsewhere. The Washington Bee reported in 1920 that Jones, described as chief counsel of the cotton case, wanted to revive the issue of a home for ex-slaves in the District of Columbia. He also participated in subsequent litigation against segregated schools in Oklahoma.²⁴

The effort to gain pensions had failed again, but Callie House had been correct in her belief that the litigation would help to grow the movement. Ex-slaves were even more firmly convinced that they should continue to gather petitions seeking pensions and to continue to strengthen the Association’s local chapters. In addition, the cause gained favorable publicity among African-American leaders based on Jones’s respectable reputation. Because he was a successful male professional, blacks applauded his leadership role. With the failure of the litigation, the movement again concentrated on pursuing legislation.

However, there was still another case under way as the government was prosecuting Jones and as he pursued an appeal to the Supreme Court in the cotton tax case. At the same time that the government decided to prosecute Jones they also decided to bring charges against Callie House. Mrs. House lacked Jones’s status of black male respectability, and she did not have his legal standing as attorney representing a client in a case before the federal courts. Mrs. House was just a black woman with the audacity—and no money—to stand firmly on claims of citizenship rights for herself and freedmen and-women. She had much to fear.