Edward J. Littlejohn (Wayne St.) on "A History of Slavery, Race Laws, and Cases in Detroit and Michigan"...

Edward J. Littlejohn, Black Before the Bar:  A History of Slavery, Race Laws, and Cases in Detroit and Michigan, 18 Journal of Law in Society 1 (2018).  Also see Dr. Tiya Miles (Michigan), Dawn of Detroit:  A Chronicle of Freedom and Slavery in the City of Straits (2017).

Edward Littlejohn (Wayne St.)

Edward Littlejohn (Wayne St.)

[While many black folks are tired of hearing about slavery, there are still fundamental misunderstandings about it which disconnect its brutality then from racial economic subjugation today.  African-Americans are playing a game of Monopoly in which we were prevented from participating at all for two hundred rolls of the dice only to be let in the game under the same rules but without reparations and after the most valuable properties and immense wealth had been acquired therefrom. While the typical narrative on race deals with New England and the Ante-Bellum South, Professor Littlejohn draws the connection between slavery, law and current racial caste in the North-Midwest, i.e., Detroit and Michigan.]

“Throughout most of American history, dominant beliefs in the inherent inferiority of blacks and the concomitant superiority of whites were impressed in law. … Segregation and discrimination in post-slavery Michigan had their antecedents in the colonial and ante-bellum periods, in the South as well as the North. The rationale for these two modes of subjugation paralleled the principal justification for American slavery: blacks were an inferior race that racially superior whites had a right to keep in “their place.”

[In Part One, Professor Littlejohn begins with an excellent synopsis of how the racial state in American was created between 1640 and 1900 in both the southern and northern United States.]

“America's first blacks were brought forcibly into the American colonies in 1619 … The first Africans sold in the colonies were treated similarly [as indentured servants] and were set free, usually within four to seven years. As freemen they could own property, including land and a few, in a seeming irony, held slaves. They voted, testified in court and worked for wages, many as skilled artisans. One important aspect of the socioeconomic status of early black settlers was that it carried few legal implications of racial inferiority - this stigma was to come later.

The institution of slavery evolved as a consequence of burgeoning colonial economies that created demands for cheap and perpetual servants. Indentured servants had become scarce and because they had to be replaced every few years, their limited service did not solve the colonies' growing labor problems…

[I]n the 1640 Virginia decision, In Re Negro John Punch …. three runaway servants, two white and one black (John Punch), were convicted and sentenced for the identical offense. All three were sentenced to be whipped, a common punishment for running away. The white servants were sentenced to four years additional service as further punishment. But as to the black servant, the court ordered an amazingly harsh additional penalty: “John Punch shall serve his said master or his assigns from the time of his natural Life here or elsewhere.””

…” when the forces promoting a slave economy as a solution to the Southern colonies' labor problems prevailed, the flow of slaves into the South escalated sharply. Between 1790 and 1820, the number of slaves doubled, and the problems of how to manage them exacerbated. Accordingly, a concomitant development was the enactment of slave codes in each of the slave states.

…Northern colonies, and the newly developed spinning and weaving machines had created an insatiable demand for cotton. The Southern response was hampered by having to process cotton fiber with slave hand-labor, an incredibly slow and inefficient method. This critical problem was solved with the invention of the cotton gin in 1792, and mechanized “ginning” spurred a new Southern economic revolution. Cotton became “king” and “a curtain of cotton rang down on some four million human beings ... and they were systematically deprived of every right of personality.”

[Describing the generalized restrictions on the humanity of enslaved peoples:]

“Under the codes, slaves had no civil rights nor any legal protections beyond laws that putatively prevented uncharacteristic brutality and assured them of the most basic necessities. They were denied any juridical capacity, except in surrogate suits for their freedom. Their few personal rights yielded when in conflict with their owners' property rights. Slaves were forbidden to learn reading and writing nor could they gather in small groups or hold religious services without a white minister present since it was believed black ministers encouraged slave rebellions. They were bred as if horses or mules, and since their marriages lacked legal recognition, their families could be separated at the whim of their masters. Contrary to English common law, under the codes, children followed their slave mothers' condition and were deemed slaves notwithstanding the race of their fathers. These laws permitted white men to breed slaves and, consequently, enslave their own children.

Most slaves worked under inhumane conditions, and they could be beaten, branded and even put to death for offenses that were ignored or treated less severely when committed by whites. They could not leave their owners' land without a pass and if discovered without one, even a few miles from “home,” they could be severely punished, and if they resisted “lawful apprehension,” they could be killed.

Numerous lawsuits were filed on behalf of slaves in both state and federal courts. Because of their legal status as chattels, they, invariably, were the “objects” of litigation rather than actual parties in the suits.

Southern judges, with occasional exceptions, joined legislators in promoting racial solidarity and white security by denying slaves any basic human rights.

State v. Mann, an 1829 North Carolina decision, was a classic representation of the judiciary's role in the tyranny of slavery. In Mann, the defendant was convicted of assault and battery upon a hired slave, Lydia. Lydia, who had run off while being chastised by the defendant for some minor offense, was shot and wounded by the defendant when she ignored his command to stop. On appeal, the Supreme Court of North Carolina reversed the defendant's conviction and made clear a legal, if not a natural relationship that conferred absolute dominion to masters and imposed total subordination on their slaves.

The end [of slavery] is the profit of the master, his security and the public safety; the subject, one doomed in his own person, and his posterity, to live without knowledge, and without the capacity to make anything his own, and to toil that another may reap the fruits ... The power of the master must be absolute, to render the submission of the slave perfect…’”

…” Free blacks were also affected by the codes. Slave owners considered freemen undesirable, if not dangerous, examples for their slaves. Their very presence was “an anomaly, a living denial, ‘that nature's God intended the African for the status of slavery.” Some Southern states did not permit freemen to visit relatives, and in 1793, Virginia, which had enacted a registration law for free blacks, actually barred their entry into the state. By the 1850s, private manumission was discouraged or prohibited by law in most states, even when it occurred outside of the  state. Southern courts generally construed wills to defeat the masters' intent to free their slaves post-mortem. In most slave states, blacks were presumed to be slaves and when challenged, they had to produce papers proving they were free at the risk of re-enslavement.

“Northern blacks were denied the use of public facilities and places of public accommodations. Routinely, they were the scapegoats of politicians and other demagogues who, for political gain and to exploit white animosities, frequently portrayed them as subhuman miscreants. Between 1829 and 1839, race riots, ominous precludes to the “Draft Riots” that occurred in 1863, broke out in Cincinnati, Columbus, Detroit, New York City and Philadelphia.

Alexis de Tocqueville, the Frenchman who toured the United States in 1831 and published his observations, concluded that blacks faced ultimate extinction or expulsion. In the North, where segregation rather than slavery was practiced, de Tocqueville wrote:

[T]he prejudice of race appears to be stronger in the states that have abolished slavery than in those where it still exists; and nowhere is it so intolerant as in those states where servitude has never been known .... Thus the Negro is free, but he can share neither the rights, nor the pleasures, nor the labor ... of him whose equal he has been declared to be; and he cannot meet him upon fair terms in life or in death.

Because of the dearth of opportunities for education and employment, most freemen in the urban North lived in stark poverty. So bleak was their existence that in actuality they had merely exchanged one form of bondage for another.”

[He includes several letters describing how Michiganders traded in Africans.]

Mr. Carpenter Wharton:

Sir,

*21 Upon your arrival at Philadelphia, please advise us by letter addressed to the care of Mr. Samuel Franklin, Jun., if you can purchase for us two negro lads from fifteen to twenty years, for about fifty pounds, New York currency, each. They must be stout and sound, but we are indifferent about their qualifications, as they are for a Frenchman in Detroit. * * *

Yours,

P. & E.16

 [He also contrasts French and English slavery.]

French custom permitted and encouraged manumission. Second, the influence of the Catholic Church gave French slaves rights and protections that were uncommon in the British slave regime. For example, a 1724 ordinance of Louis XV required that slaves be educated and baptized in the Roman Catholic faith. French slaves also received other sacraments, were confirmed, married and served as witnesses in religious ceremonies.

… Under the British, Detroit prospered and its population increased. Slavery also increased sharply, going from 60 in 1765 to an all-time high of 300 in 1796.

[Focusing next on the establishment of racial caste in the North-Midwest, Littlejohn examines Slaves, Laws, and Courts in Early Detroit and Michigan 1701-1835.  This is a history rarely explored or exhibited.]

“In early Michigan, Africans and Native Americans were enslaved in the Detroit settlement, which at the time spanned both sides of the Detroit River. On a smaller scale, slavery also was practiced in the northern fur trading posts at Michilimackinac. Black slavery existed during three distinct periods of governance in Michigan's history: the French, 1701-1760; the British, 1760-1796; and the American, 1796-1837.

…During its early period, most of the slaves in Detroit were Indians. The transition to black slavery progressed slowly under the French and was not completed until after Detroit came under British rule in 1760.

The first black slaves brought into Detroit were captured by the Indians in raids on Southern slave plantations and sold or traded to the French. Later, some slaves came with their masters who migrated from the South. A small number of slaves were purchased from Eastern slave-merchants

…Notwithstanding the provisions of the Northwest Ordinance of 1787 that prohibited slavery in the area above the Ohio River between the Appalachian Mountains and the Mississippi River, slavery was not abolished legally in Michigan until 1837 when the state's first constitution officially ended involuntary servitude.”

“… Large slaveholding was rare throughout Michigan's slavery period. With the exception of a few wealthy Detroiters, whose names remain prominent in Detroit and Michigan, e.g., William Macomb and Joseph Campau, most owners held only one or two slaves. Inasmuch as eighteenth century Michigan was primarily a hunting and trapping region, only a few settlements of any size existed. Accordingly, the white population was never large and the number of slaves, because of their limited use, fluctuated with the general population.

… in 1782, about one of every four families owned at least one slave, which made slavery in Detroit “about as common as in some parts of the South at the time.”

…Even though Michigan slaves were treated differently than their southern brothers and sisters, slavery, which is intrinsically debasing, could never have been considered “benevolent,” Michigan slaves, similar to slaves elsewhere, were not acquiescent. They persistently sought  freedom by escape, usually across the Detroit River into Canada, through military service and, occasionally, in the courts.

… By the terms of the 1783 Treaty of Paris, title to the Northwest Territory, which included Michigan, passed from the British to the United States. … The Jay Treaty contained a provision guaranteeing to the British that “[a]ll Setlers [sic] and traders Shall  Continue to enjoy unmolested all their property of every Kind.” This provision protected the British settlers' property rights in their slaves.

…, on May 31, 1793, while Michigan was still under British rule, the legislature of Upper Canada, then the central government for Detroit, enacted a law intended to abolish slavery gradually.

… While the Article apparently was intended to abolish slavery totally, this objective was not achieved in the Territory or in Detroit. Unofficially, Article Six appeared to have been generally ignored, “[o]ur ancestors paid but little attention to it, for whenever a spruce negro was brought [in] by the Indians he was sure to find a purchaser at a reasonable price.”

… In the early nineteenth century, many runaway slaves from Canada were reported in Detroit.48 However, after Canada abolished slavery, it became a haven for escaped American slaves and the traffic in fugitive slaves through Michigan and Detroit was one way into Canada.”

[Littlejohn presents two cases decided by a Judge Woodward of a loosely constructed and operated Michigan Supreme Court.]

“Judge Woodward decided two important slave cases. The first, Denison v. Tucker,107 came before the court on a writ of habeas corpus and was heard by Woodward on September 26, 1807. The petitioners were a family of slave siblings--Lisette (Elizabeth), James, Scipio and Peter Denison Jr. All the Denisons, with the exception of Peter Jr., were born prior to 1793. Their parents had been purchased in 1784 by an Englishman, William Tucker. The respondent, Catherine Tucker, William's widow, was a British citizen residing in the Territory.

The Denison decision was complicated legally because of the petitioners' dates of birth and their owner's British citizenship. Judge Woodward had to determine the legality of slavery in the Territory in 1807 as affected by the 1763 Treaty of Paris, the Northwest Ordinance of 1787, the 1793 statute of the Province of Upper Canada, the 1794 Jay Treaty and the United States Constitution.

Mrs. Tucker argued that her detention of the Denisons was lawful under the Jay Treaty, notwithstanding the anti-slavery provision of the Northwest Ordinance of 1787. Woodward agreed. Apparently, his agreement was legal, not personal, as early in his lengthy opinion, he expressed a strong aversion to slavery:

In this territory Slavery is absolutely and peremptorily forbidden. Nothing can reflect higher honor on the American government than this interdiction. The Slave trade is unquestionably the greatest of the enormities which have been perpetrated by the human race. The existence at this day of an absolute & unqualified Slavery of the human Species in the United States of American is universally and justly considered their greatest and deepest reproach.

…[But] Since none of the Denisons had protected status under the 1793 Upper Canada law, Judge Woodward ordered that they “be restored to the possession of Catherine Tucker.””

[A second case involved black folks escaping from Canada to the United States, a story and circumstance hardly ever considered.  Here a better outcome, one which would increase black migration to the Territory.]

“On October 23, 1807, less than a month after the Denison decision, In re Richard Pattinson came before Judge Woodward.

…The petitioner, Richard Pattinson, sought a warrant to apprehend his claimed lawful property, namely, “the bodies of Jane, a Mulatto woman, of about twenty years of age, and Joseph [Quinn], a boy of about eighteen years ....” Unlike the British settler-slaveowner in Denison. who resided in the Territory, Pattinson, a wealthy merchant, lived in the Town of Sandwich, Canada. His “property” had escaped from Canada to Detroit and had refused to return to his service.

…Pattinson claimed that since both the United States and Great Britain recognized slaves in North America as property, the Jay Treaty protected British subjects in the full use and enjoyment of their property. Woodward rejected each of the petitioner's arguments

…Much sensibility in Upper Canada is excited on account of their slaves. Some have recently left their masters and come into this territory. Their masters have applied to me to have them apprehended by authority and sent back.”

[Professor Littlejohn, like Douglas Blackmon in Slavery By Another Name, provides additional evidence establishing that slavery persisted its de jure abolition well into the 20th century.]

“… An ironic slave anecdote involved Judge Woodward. Apparently, he owned a slave up to about the time he left the Territory in 1824. “One of the last slaves in Detroit was an aged Pawnee servant belonging to Judge Woodward, who enjoyed full liberty for several years before his death.”

…Catlin reported a slave working in Detroit as late as 1930, “a husky African slave,” named Hector, owned by General John R. Williams.”

[Still…]

“In 1835, when Michigan adopted its first constitution and formally abolished slavery, three slaves were reported in the state--two in Monroe County and one in Cass County.

Detroit was to become a major terminus for the Underground Railroad. It became the passageway across the Detroit River into Canada and freedom for thousands of black slaves escaping the American South.”

[Yet….]

“As the laws and cases discussed in the next section make clear, although a majority of whites in Michigan opposed slavery and fugitive slave laws, most did not equate black freedom with equality. As laws and events show, not only were black residents in Michigan denied the fundamental rights of citizenship, they were unwelcomed neighbors.”

[Part Three explores “from Statehood to Reconstruction:  No Longer Slaves, Not Yet Citizens.”]

“The Midwest region of the United States, which included Ohio, Indiana, Iowa, Michigan, Wisconsin and Minnesota, was regarded as second only to the South in its citizens' resolve to white supremacy and racial discrimination. “To most mid-westerners, Negroes were biologically inferior persons to be shunned by all respectable whites ...' Our people [of Indiana] hate the Negro with a perfect if not a supreme hatred.”'

…Every state in the Midwest enacted laws that disabled black residents and discouraged the emigration of others. Indiana (1850), Illinois (1853) and Iowa (1857) enacted stringent laws forbidding blacks from settling in their states. All seven Midwest states denied black suffrage and excluded them from military service. As late as the 1850s, Indiana and Ohio adopted constitutions that denied the vote to blacks, and in Michigan (1850), Iowa (1857) and Wisconsin (1857) referenda seeking the franchise for blacks were resoundingly defeated.

Interracial marriages were illegal in Indiana, Illinois, Ohio as well as Michigan.

…Characteristically, they paid the taxes imposed on white citizens but their children were relegated to racially segregated, inferior public schools.

…Some of Michigan's post-statehood “black laws” were “reaffirmations” of territorial laws that the new constitution declared in force until altered or replaced. The Constitution of 1835 limited voting to “every white male citizen above the age of twenty-one years.” This disenfranchisement effectively excluded blacks from jury duty since only electors could serve. The territorial laws that limited militia service to whites continued in force after 1835.

Among the most odious of the Territory's laws was the 1827 “Act to regulate Blacks and Mulattoes, and to Punish the Kidnapping of Such Persons.” The act was intended to exclude blacks and mulattoes from the Michigan Territory. It required that they possess valid certificates of freedom or proofs of birth before they could reside or settle in the Michigan Territory and register such proofs with a county clerk. In addition, blacks and mulattoes entering the Territory had to post a $500 bond, an enormous sum in 1827, as security for their good behavior and to insure they would not become public charges. The act also made it a misdemeanor to “harbor or secrete” a black or mulatto or to prevent a lawful owner from repossessing a servant.

In 1828, because the act was unpopular and widely disobeyed, it was amended to empower public officials to evict noncomplying blacks.

…Socially, blacks in Detroit were victimized by a severe color-caste that segregated them in society's lowest strata in all areas. Black children attended segregated public schools. Housing discrimination in Detroit confined blacks primarily to an area that contained the city's poorest housing on Detroit's near east side. The employment opportunities available to blacks were limited to the lowest-skilled, lowest paying jobs. Even in church, segregation thrived. The first black church in Detroit, the Second Baptist Church, was founded because blacks attending the white First Baptist Church had to sit in the church's black-only gallery, unable to “take their seats below with the whites.”

…Census enumerations for Detroit showed only 67 blacks in a total population of 1,422 in 1820; 126 of 2,322 in 1830; and 138 in about 5,000 in 1834.

…between 1840 and 1850, blacks in Detroit increased from 193 to 587, and in the entire state from 707 to 2,583. In 1860, the year before the Civil War began, blacks in Michigan numbered 6,799, representing only 0.9 percent of the total population.28 Nevertheless, even these modest increases caused alarm.

…Race riots occurred in Detroit in 1833, 1839, 1850 and 1863; those in 1833 and 1863 were major and required the militia's intervention.”

[According to Littlejohn, however, Michiganders responded well to the Fugitive Slave Act.  It remains to be seen whether similar actions will be taken by progressives in opposition to ICE deportations under the Trump Administration.]

“In 1850, the 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 allowed by the 1793 law were doubled.

Congress' action was preceded by the 1842 United States Supreme Court decision, Prigg v. Pennsylvania. In Prigg, an 1826 Pennsylvania statute forbidding the removal of colored persons from the state to enslave them was declared unconstitutional and void.

In 1855, as a response to the 1850 federal fugitive slave law, Michigan, as did other Northern states, enacted a personal liberty law: “an Act to protect the rights and liberties of the inhabitants of this State.” This act applied to state inhabitants not citizens since blacks at the time were not citizens under Michigan law. It prohibited Michigan public officials from assisting federal marshals in the recapture of fugitive slaves, but required county prosecuting attorneys to defend them and barred the use of county jails for their detention.

…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 granting them basic civil rights.”

[He describes the Blackburn Affair as an example of how social and public forces (the court system) combined and conspired towards an informal racial caste system.]

On July 3, 1831, Thornton and Rutha Blackburn escaped from their owner, one Fowler, of Louisville, Kentucky. They arrived in Detroit on July 18, 1831 and lived in Detroit for the next two years.56 During this time, Mr. Blackburn, a mason by trade, worked in Detroit and was highly *48 regarded; “a respectable, honest and industrious man and considerably superior to the common class of Negroes.”57

…In the spring of 1833, Fowler learned the whereabouts of the Blackburns and sent his agents to Detroit to apprehend them. …  Accordingly, the magistrate ordered the slaves taken into custody for delivery to Fowler's agents.

…On Sunday, a large crowd of blacks, armed with clubs and intent on preventing the Blackburns' removal to Kentucky, gathered near the jail.

Many had come over from the Negro settlement at Maiden and other Canadian towns as well as from Detroit and its surrounding communities. When the sheriff and his deputies appeared in front of the jail with Blackburn, the sheriff was attacked and severely beaten.70 Blackburn, in keeping with a prearranged plan, was spirited away and later the same day was transported across the Detroit River to freedom in Canada.

… After news of the Blackburn affair spread throughout the city:

[f]rom every direction men appeared armed with guns, pistols and swords, and military patrol roamed the streets of the city arresting every negro man and woman found thereon. The jail was soon crowded to the door with negro prisoners .... For the balance of the month of June and all during July Detroit was an unhealthy place for colored people.

… Racial antipathy engendered by the riot was now fanned by new waves of negro-phobia. The result was an unwillingness on the part of the whites to give them employment. Many negroes promptly sold their property and fled from the persecution. Some even ‘left their property unsold and never returned, .... For nearly a year this state of things continued.’… In large measure because of the “Blackburn” riot, black migrants avoided Detroit until the late 1830s.”

[Littlejohn also recounts the story of the Crosswhites, a fugitive family escaping their former masters in Michigan.]

“The Crosswhite case also demonstrated the zeal with which Michigan residents, white as well as blacks, protected fugitive slaves and resisted enforcement of the federal 1793 Fugitive Slave Law.

…In 1843, after learning that Giltner planned to break up their family, Adam, then age forty-four, Sarah and the four Crosswhite children escaped.84 The Crosswhites travelled the Underground Railroad through Ohio, Indiana, and Southwestern Michigan to Marshall where they settled. …  Accounts of the attempted capture of the Crosswhites are lengthy, complicated, and sometimes conflicting. The lawsuit that resulted from the affair is reported in Giltner v. Gorham.

…While accounts of the initial confrontation at the Crosswhite cabin vary, including reports that weapons were brandished and fired, it is clear that news of the episode spread quickly throughout Marshall. A large crowd, by one estimate nearly three hundred, white and black, collected at the cabin. An account of the events that followed is contained in the Giltner case:

Threats against the lives of the Kentuckians were made, if they persisted in taking the fugitives. They were denounced as kidnappers, and some proposed to tar and feather them--others to massacre them.

…Troutman made out a warrant and requested that the Deputy Sheriff Dickson arrest the Crosswhites. Dickson, apparently responding to the obvious, refused. He, instead, arrested Troutman on warrants sworn to by two members of the crowd charging Troutman with assault and battery and housebreaking. Troutman was tried on these charges before Justice Randall Hobart later the same day and a portion of the next. He was fined one hundred dollars on the trespassing charge. Meanwhile, the Crosswhites were taken by covered wagon to Jackson, placed on a train to Detroit, and later they crossed safely to Canada.

Upon returning to Kentucky, Troutman along with Giltner, “began a campaign of legal revenge designed to portray Marshall's citizens as flagrant violators of an inadequate and unenforceable federal law.” The Kentucky legislature passed a resolution demanding redress from Michigan and forwarded it to the Michigan legislature. A report of the affair that called for a new fugitive slave law was given in the U.S. Congress on December 20, 1847.”

[The Michigan Court of Appeals addressed the jury:]

”This provision of the constitution is a guaranty to the slave states, that no act should be done by the free states to discharge from service in any other state, any one who might escape therefrom, but that such fugitives should be delivered up on claim being made. This clause was deemed so important, that, as a matter of history, we know the constitution could not have been adopted without it.”

…The jury, after a night's deliberation informed the justice they could not agree and they were discharged. On November 10, 1848, a second trial was held in Detroit before Judge Ross Wilkins. This time the jury returned a judgment for the plaintiff which including court costs totaled about $4,500.106

… The enactment of the Personal Liberty Law in 1855 showed the state's resolve to provide a modicum of due process in resisting the return of black fugitive slaves to slave states. On the question of granting civil rights to free blacks in Michigan, a contrary resolve remained. In 1850, a ballot to approve the new state constitution contained a constitutional amendment that would have granted civil rights to Michigan's free blacks. While the constitution itself was readily approved, the amendment lost by a three-to-one margin. Although a majority of Michigan's white citizens manifested support for the abolitionist movement, they overwhelmingly refused Michigan's black residents the franchise. It would be another twenty years, not until 1870, after ratification of the Fifteenth Amendment to the federal Constitution before a black voted in Michigan.”

[From there, his work examines the role of the Michigan Supreme Court after statehood in adjudicating and constructing black rights between 1850-1870.]

“Between 1847 and 1890, the Michigan Supreme Court decided five cases that involved black claimants: three voting rights cases including the prominent People v. Dean decision; a nationally significant public accommodations case; and an important equal access to public schools case.

From 1835 to the start of the Civil War in 1861, blacks and their white supporters constantly attacked the “mainstay of caste” in Michigan--the denial of the right to vote. However, as abolitionism intensified along with mounting North-South tensions, racism also heightened within an “already Negrophobic white majority.” By 1860, as a result of white anxiety over the consequences of complete emancipation, “the colored suffrage issue in Michigan had become almost the sole property of blacks.”

A primary reason for denying blacks the right to vote was the fear that it would encourage black migration to Michigan. Inextricably interrelated with the broader migration issue was the concern that resident blacks would compete for jobs with whites, primarily European immigrants. In contrast, immigrants were encouraged to settle in Michigan. … between 1860 and 1910, the black population percentage in Michigan actually declined from 1% to 0.6%.… From 1850 to 1860, Detroit's black residents more than doubled to 1,403, while the city's white population had increased to approximately 44,000.

… in 1850, after many petitions for the franchise had been refused by the Michigan legislature, the suffrage issue was submitted to a popular referendum. It was resoundingly defeated - 71.3% of 44,914 votes were against black suffrage.

…Since the Michigan Constitution restricted voting to white male citizens over twenty-one years of age, it was not possible to muster judicial challenges on behalf of blacks, generally. Rather, the several voting cases that were decided by the Michigan Supreme Court between 1847 and 1866 involved mixed race males or so-called mulattos. These claimants, in essence, argued they were white within its constitutional meaning.

…the court held “that persons are white within the meaning of our Constitution, in whom white blood so far preponderates that they have less than one-fourth of African blood; and that no other persons of African descent can be so regarded.”

…. election officials routinely refused to enroll electors they arbitrarily considered black. This practice continued until the late 1880s, and by 1884, some black Detroiters were able to vote only with the aid of United States marshals.

…Meanwhile, in 1868, Michigan voters defeated a proposed new constitution that included Negro suffrage as its most controversial provision by a 110,582 to 71,733 margin. Only after ratification of the fifteenth amendment to the United States Constitution guaranteeing the right to vote against abridgment “by any State on account of race, color, or previous condition of servitude,” the Michigan electorate in November 1870 approved by a close vote, 54,105 to 50,598, a constitutional amendment that ended the state's racial bar to voting.”

[The Michigan Supreme Court also dealt with whether a black man living in Canada as the son of fugitive slaves from America possessed US citizenship upon his arrival in Michigan due to his parents being or not being citizens before passage of the 14th Amendment?]

“…Justice Cooley, who authored the opinion, made clear his abhorrence of slavery. The court, nevertheless, found that because Hedgman's slave parents were not citizens before the fourteenth amendment was enacted and were not subject to American jurisdiction after its adoption, having previously fled to Canada, they were not citizens and, therefore, neither was the petitioner, their 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.”

[It presents Day v. Owens to show the emergence of racial caste in commercial relations, whether private citizens may discriminate against blacks in public, quasi-public or private affairs.  The case exemplifies why rational basis is a poor standard for equal protection cases involving race.]

“Day was an important case in Michigan racial and legal history. It gave legal approval and legitimacy to the common treatment of blacks in Michigan--separate and unequal.

In Day, the plaintiff, a black abolitionist attempted to book passage on the defendant's steamer, Arrow, that travelled between Detroit and Toledo. Day offered to pay for an unoccupied cabin. The defendant refused Day cabin passage and told him he could travel only on the boat's deck. Rather than occupy the deck, Day travelled overland to Toledo. He later sued for damages and argued that because the defendant was a common carrier, it was obligated “to receive all persons who apply for transportation.”

The Michigan Supreme Court decided that because the defendant was a common carrier, the plaintiff did have a right to be carried, and this right was superior to any of the defendant's contrary rules and regulations. Accordingly, the defendant had a general duty of carriage, and if Day been refused passage altogether, liability would have followed. The mode of carriage, however, was on a different footing. The court held that defendant could adopt reasonable rules, such as those that refused “colored persons” cabin accommodations and relegated them to boat deck spaces, if the rules were calculated to make travel “most comfortable and least annoying ... to a large majority of the passengers ordinarily carried.””

[With regard to public education, Professor Littlejohn presents The People ex rel. Workman v. Board of Education.]

“Michigan's race caste system was ubiquitous. Blacks experienced separate and unequal treatment in all important facets of their social, civil and political existence. The depths of the caste system was most evident, however, in the draconian measures undertaken to maintain Michigan's public schools as segregated and grossly unequal. The practices in Detroit, the state's largest school district, were the most illustrative.

…Rev. Pierce was an avowed segregationist who believed white supremacy was “divinely ordained.” During his six years as superintendent, black children, whose parents paid general school taxes as well as private school fees, were completely barred from the state's public schools. Also, it was during Pierce's tenure that Detroit's segregated school districts were created.

In 1839, Detroit's City School Inspectors established school district no. 8 as a special segregated district for black children only. No appropriations were made, however, to hire a teacher or maintain a school in district 8 until 1841

…On February 28, 1867, the Republican legislature passed a bill that eliminated de jure school segregation in Michigan. This act, was the culmination of over three decades of persistent struggle by black parents to eradicate inferior black schools that school officials eventually admitted were “poorly calculated for school purposes.” The legislation also made moot a writ of mandamus that former Governor Austin Blair had filed a month earlier in the Michigan Supreme Court to admit a black student, George Washington, to the Jackson public schools.

The Democratic Detroit Board of Education, notwithstanding the mandate from the Republican legislature, ignored the 1867 law.

…By 1869, Detroit had two black schools, and a third was under construction. Black students numbered 185, white students 6,942.157 Thirty-eight of the black students lived in wards over two 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 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.”

…Following the Workman decision, in 1870, Cassius Workman and Robert J. Willis were admitted to the previously all-white Duffield Union School. Thus, eighty-five years before Brown v. Board of Education imposed a similar result on the nation, the Michigan Supreme Court validated legislation intended to assure equal rights to attend public schools.

…he favorable result in the Workman case, as has often been the case with civil rights decisions, was not self-actualized. The Detroit school board continued to flout the law and maintained its segregated public schools. Black children routinely were turned away from white schools. When the school board did comply with the law, it was usually compelled by the prospect of expensive fines from mandamus actions that could not be defended successfully. Some compliance by the board was “sham” integration as when black students admitted to newly integrated schools were segregated into all black classes. Black students reportedly were abused by their white classmates “without rebuke or correction from the teachers,” and were constantly reminded that they were unwelcome in the previously all-white schools. The board of education, “[r]esponding to the anguish of white parents and teachers,” used limited school funds to replace double desks with single ones so that black and white students would not sit next to one another.”

[Between 1870 and 1955 when the SCOTUS decided Brown v. Board of Ed, the Michigan Supreme Court decided several more de-segregation cases.]

“…he 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.

….Justice Allen B. Morse, writing for a unanimous court, discarded Day v. Owens 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:

‘[I]n Michigan there must be and is an absolute, unconditional equality of white and colored men before the law. The white man can have no rights or privileges under the law that are denied to the Black man ‘

... Black attorney Fitzhugh L. Styles, in his seminal 1937 book, Negroes and the Law, wrote: “[T]he decision in this case was a great victory for the colored people of Michigan.”

 [No less than Thurgood Marshall filed an amicus brief in Bob-Lo Excursion]

“…the defendant admitted that, on June 21, 1945, it had refused passage on its boat to Sarah Elizabeth Ray because she was “colored”. On that day Miss Ray and twelve white students from Detroit Commerce High School were on a school outing 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 protests, they escorted her ashore.

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 defendant's 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.”

[Results were not as favorable in other cases.

“In 1920, 40,438 Blacks lived in Detroit. By 1944, this number increased five times to 201,000, approximately 12 percent of the city's population.

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 of occupancy of their respective properties. …. Typically, the covenants would provide: “this property shall not be used or occupied by any person or persons except those of the Caucasian race.2

…In Parmalee v. Morris, the Michigan Supreme Court upheld the following restrictions: “No building shall be built within twenty 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. Hayes 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 Thirteenth and Fourteenth Amendments of the United States Constitution.

…the court ended its unanimous decision with a decidedly spurious question and answer:

The issue involved in the instant case is a simple one, i.e., shall the law applicable to restrictions as to occupy contained in deeds to real estate be enforced or shall one be absolved from the provisions of the law simply because he is a negro?

…Attorneys, black and white, mounted persistent and more intense legal assaults on the legal recognition of restrictive covenants. The effort was spearheaded by 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. Clearly, their most significant case was Sipes v. McGhee.

…In Sipes, the [Michigan] 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 [Michigan] 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: “After a careful study, we are not persuaded that the rule laid down in the Parmalee Case was wrong, or is wrong now.”

...In the following year, change came decisively. Sipes was a companion case to a Missouri case, Shelley v. Kraemer.234 In Shelley, a unanimous U.S. Supreme Court struck down state judicial enforcement of restrictive agreements as an unconstitutional denial of equal protection of the laws.”

[Professor Littlejohn concludes by acknowledging the importance of legal change while recognizing its limitations.  He hopes an improving sense of history will lead to better decisions when issues of racial justice arise - DreSmith.]